by making the necessary transfer, when ap-ises to West prior to the time that Kinney pellant apprised him of the fact that he notified him or his agent, Lewis, of his achad procured a purchaser for said land. | ceptance, and of his intention to close the This being true, we think that appellant, trade, before they could find for the defendwho was in no sense a party at interest in ant, since, as we believe, if he had entered the sale to West, was not in a position to into a parol contract with West prior to urge that such sale contravened the statute said time for the sale of said land, then he of frauds. The right to so object does not was entitled to a verdict in his behalf. inure to the benefit of a stranger to the con- Plaintiff, in the first count of the petition, tract. See G., C. & S. F. Ry. Co. v. Sette- declared on an express contract for the paygast, 79 Tex. 256, 15 S. W. 228, and author- ment of certain commissions, and in the ities there cited. For which reason these second on a quantum meruit. The court, in assignments are overruled. submitting the case to the jury on appellant's theory, told them to find for him the amount set forth in the contract, if they further believed that the same was reasonable compensation for his services. There was no issue raised on the trial as to the amount of commissions that plaintiff was entitled to, in the event that he should recover; all the evidence going to show that, if he was entitled to recover at all, it was for the full amount of his commission, as set forth in his petition. This being true, appellant could not have been injured by reason of said charge. It has frequently been held that, notwithstanding an erroneous charge has been given, still, where it is apparent that it could not possibly have affected the result, the error was harmless. See Shurmard v. Johnson, 66 Tex. 70, 17 S. W. 398. [2] The third and fourth assignments insist that the court erred in refusing to permit appellant to show by appellee and West that, subsequent to the parol sale of the land, they entered into a written contract of sale, and appellee thereafter made a deed to West for same. As we view the matter, this evidence was immaterial; and if any error was committed at all it was in favor of appellant, since it was to the interest of appellee to show that the parol sale was afterwards closed up by a deed. These assignments are therefore overruled. [3] Complaint is made of the refusal on the part of the court to give the following special charge: "You are instructed in this case that, though you believe from the evidence that prior to the acceptance by R. D. Kinney of the proposition made to him by the defendant L. H. Vaughan, the said L. H. Vaughan made a sale of the lands described in the plaintiff's petition to Lester West, yet if you believe from the evidence that defendant agreed with the said R. D. Kinney that he would sell him the said lands at the price and upon the terms alleged in plaintiff's petition, and take in part payment therefor the property of the said R. D. Kinney at the sum of $4,500, as alleged, and that the said R. D. Kinney should have time to inspect the said land, and that the said defendant would close the deal with him upon the said terms and at the said price, if after inspection of the said lands the said R. D. Kinney should so desire, if you so believe from the evidence you will find in favor of the plaintiff and against the defendant in such an amount as you may find from the evidence that he is entitled to recover." Besides being involved, we think said charge was properly refused for two reasons: First, there was no pleading raising the issue as to the right of the proposed purchaser to inspect the land before appellee would have the right to sell to some one else; and, second, because, if there had been such pleading, this charge failed to submit for the consideration of the jury as to whether or not he did in fact inspect the land and agree to purchase the same prior to such sale by appellee to West. Special charge No. 2 was properly refused, for the reason that it required the jury to believe that Vaughan entered into a written contract for the sale of the land and prem The remaining assignments are on the facts, and we therefore deem it unnecessary to consider them. Finding no error in the proceedings of the court below, its judgment is, in all things, affirmed. Affirmed. On Rehearing. Appellant has filed herein a motion for rehearing, in which he has abandoned all other assignments, except that in which he complains that the court erred in the following paragraph of its charge, to wit: "If you further believe from the evidence that the defendant agreed with the plaintiff to pay 21⁄2 per cent. commission on $4,500, the value of the land in exchange, and 5 per cent. commission on the value to be paid in cash, and you further believe that the said sum was reasonable compensation for said services, if any, then, in that event, if you so believe, you will find in favor of the plaintiff and against the defendant in such an amount as you may find from the evidence that he is entitled to receive." [4] It is urged that the jury, under this charge, could not find for plaintiff, unless they should believe from the evidence, not only that appellee had agreed to pay such amount as a stipulated commission, but also that said amount was reasonable. We differ with appellant in this construction. It is true, as stated, that if the jury believed that appellee had agreed to pay said amount, and that the same was reasonable, then they should find for plaintiff, but this did not preclude a finding for him upon less than this. See G., C. & S. F. Ry. Co. v. Hill, 95 Tex. 629, 69 S. W. 136; Railway Co. v. Brown, 78 Tex. 397, 14 S. W. 1034; Railway Co. v. Wood, 69 Tex. 679, 7 S. W 372; and Boswell et al. v. Pannell, 146 S. W., decided by this court February 21, 1912. The only issue presented by the pleading and evidence on the part of plaintiff was that he had procured a purchaser for the land which appellee had listed with him before appellee had sold the same to West. There was no controversy as to the compensation, nor any other fact. [5] The undisputed evidence showed that appellee, who had reserved the right to sell the land himself, had in fact sold the same tion, the meaning of a statute upon which such right depended. Cent. Dig. §§ 337, 343; Dec. Dig. § 152.*] 14. Note For other cases, see Injunction, 3. STATUTES (§ 140*)-AMENDMENT-SUBJECTMATTER. It is a sufficient compliance with the constitutional requirements if the subject-matter of an amendment is germane to the subjectmatter of the original statute, and within the title of that statute. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 208; Dec. Dig. § 140.*] 4. FISH (§ 13*)-REGULATIONS PROHIBITED WATERS "PASS." A defined channel, extending between Padre and Mustang Islands, through which the tide flows and ebbs, leading from the interior end of a strait to Corpus Christi Bay, one of the coast waters of Texas on the Gulf of Mexico, through which channel the Gulf waters flow, is a part of the Corpus Christi Pass, within Pen. Code 1895, art. 529g, as amended by Acts 31st Leg. (1st Ex. Sess.) c. 23, prohibiting the takwaters within one mile on either side of all to West before plaintiff had secured his purchaser. This being true, we think the court would have been justified in peremptorily instructing a verdict in favor of defendant.ing of fish, except by hook and line, from all Therefore the error complained of, if any, was harmless. It is not every erroneous charge that is ground for reversal. If the jury could have found no other verdict under the evidence, error in a charge is not cause for reversal. See Hubby v. Stokes, 22 Tex. 220; Sypert v. McCowan, 28 Tex. 639; Albright v. Corley, 40 Tex. 112; McClane v. Rogers, 42 Tex. 220; Railway Co. v. Delahunty, 53 Tex. 206; Gaston & Thomas v. Dashiell, 55 Tex. 520; Worthington v. Wade et al., 82 Tex. 28, 17 S. W. 520. It has also been held that, where a verdict is authorized by the evidence, and the justice of the case has been attained, the same will not be reversed for error in the charge. James v. Thompson, 14 Tex. 464; Hill v. Gulf, C. & S. F. Ry. Co., 80 Tex. 435, 15 S. W. 1099. The error in the charge, if any, being harmless, appellant has no just ground of complaint, for which reason the motion for rehearing is overruled. Motion overruled. GIBSON v. STERRETT, Game, Fish and Oyster Com'r, et al. (Court of Civil Appeals of Texas. San An tonio. Feb. 7, 1912.) passes leading from the Texas coast waters into the Gulf of Mexico. [Ed. Note.-For other cases, see Fish, Cent. Dig. §§ 22-24; Dec. Dig. § 13.* vol. 6, pp. 5215-5217; vol. 8, p. 7747.] For other definitions, see Words and Phrases, Appeal from District Court, Nueces County; W. B. Hopkins, Judge. Suit by C. W. Gibson against W. G. Sterrett, Game, Fish and Oyster Commissioner, and others. From an order dissolving a temporary injunction, plaintiff appeals. firmed. Af G. R. Scott and Boone & Pope, for appellant. A. B. Davidson and C. E. Lane, for appellees. JAMES, C. J. This is an appeal from a vacation order dissolving a temporary injunction which restrained the said commissioner and his deputy, Everhart, and the county attorney of Nueces county from causing the arrest of any of the employés of plaintiff, C. W. Gibson, or otherwise interfering with them, while engaged in the taking of fish from certain waters. The substance of the petition is that plaintiff was lawfully engaged in the business of taking from the coast waters of Texas fish and oysters and dealing in same; that the 1. INJUNCTION (§ 174*)-TEMPORARY INJUNC-principal fishing waters near Corpus Christi TION-DISSOLUTION-SUFFICIENCY OF NEGATIVING AFFIDAVIT. In an action to restrain defendant from arresting plaintiff for unlawfully fishing, an affidavit accompanying the answer held to sufficiently deny the material allegations of the petition, so as to warrant dissolution of a temporary injunction on hearing in vacation. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 386, 387; Dec. Dig. § 174.*] 2. INJUNCTION (§ 152*)-TEMPORARY INJUNCTION-FINAL HEARING. Upon hearing in vacation, after granting a temporary injunction, the judge could finally determine plaintiff's probable right to the temporary injunction and construe, in that connec are the waters of Corpus Christi Bay channel and the flats contiguous thereto, which are bounded "on the west by Laguna Madre, on the east by Mustang Island, on the north by the one-mile limit from Corpus Christi Pass and those parts of Padre Island and Mustang Island beaches on the waters of the Gulf of Mexico one mile either side of Corpus Christi Pass; said Corpus Christi Pass being that portion of the channel of Corpus Christi Bay between Padre Island and Mustang Island, where the waters of Corpus Christi Bay and the Gulf of Mexico, flowing through said channel, meet; that all said waters are For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes outside the one-mile limit either side of said and the act is not otherwise invalid, then pass, as above described, and are open wa- appellant would not be entitled to the inters under the laws of the state of Texas junction. If, on the other hand, this parrelating to fish and oysters;" that plaintiff, ticular section of the article is not suscepthrough his employés and agents, has long tible of this construction, and appellant's been engaged in taking fish from the waters construction of what is meant by the use of above described; that on or about June 8, the word 'pass' is correct, it was not in1911, the said W. G. Sterrett, commissioner, tended by the Legislature to close the waclaiming the same to be closed waters, in ters declared by the commissioner to be which the taking of fish by other means closed waters, and therefore appellant is enthan the ordinary hook and line is prohib-titled to the relief sought. This issue goes ited by that portion of article 529g of the to the merits of the case, and is in fact Penal Code 1895, as amended by Acts 31st the entire case." Leg. (1st Ex. Sess.) c. 23, defining prohibited waters as "all water within one mile of either side of all passes leading from the Texas coast waters into the Gulf of Mexico," declared the channel of Corpus Christi Bay to be Corpus Christi Pass, within the meaning of said act, and that the mile limit provided by said article begins at a point in Corpus Christi Bay channel six miles from the Gulf of Mexico, at or about the bulkhead of said channel, and caused to be arrested the employés of plaintiff, who were fishing in the open waters as above described, upon charges of committing the offense of fishing in prohibited waters, which charges are pending in the county court of Nueces county; that afterwards, about June 16, 1911, the said Sterrett officially notified plaintiff that he intended to arrest and prosecute all persons seining the waters described and construed by him as Corpus Christi Pass, with the further information that acquittals would not deter him from continuing such arrests and prosecutions. The remainder of the petition consists of averments to show irreparable injury to plaintiff in his business and property and want of other adequate remedy, etc. The answer, filed September 11th, was not sworn to. But on October 19th, the date of the hearing, the commissioner filed his affidavit as a part of the record, stating in substance, that the issue was as aforesaid; that the Nueces river which empties into Nueces Bay, and Corpus Christi Bay, and certain creeks flowing into the lagoons, bays, and lakes forming the salt waters of Laguna Madre and Nueces and Corpus Christi Bays, all constitute part of the coast waters of the state of Texas; that these coast waters, in their confluence or joining in what is known, on the geodetic or coast surveys of the United States, as "Corpus Christi Pass"; that such confluence creates a pass leading from the waters of Nueces and Corpus Christi Bays, and other coast waters above referred to, into the Gulf of Mexico, and through which said coast waters flow, while the Gulf of Mexico waters likewise lead into the said coast waters, and flow through said pass; that the coast waters of the Gulf flow through the same back into Corpus Christi and Nueces Bays and the Laguna Madre and other salt water basins on the Texas coast, and make what is known on the United States geodetic or coast surveys as "Cor A temporary writ of injunction was grant-pus Christi Pass," and said pass is, as also ed, except as to prosecutions already begun, and a day then set for hearing, upon which day the hearing was had and the injunction dissolved. Gibson appeals. Under the first and second assignments of error, appellant makes the proposition that a temporary injunction should not be dissolved on hearing in vacation on an unsworn answer which does not specifically negative every material allegation of the petition. all intervening territory or water, within one mile on either side thereof exempt waters under the laws of the state, in which persons cannot, with seines, nets, or any other device, except with the ordinary hook and line, take fish, etc., without violating the laws of the state of Texas. [1] The affidavit reached the material matter in controversy, and was sufficient to warrant the court in hearing testimony, in order to determine which contention or construction was correct. All other matters alleged in the petition do not appear to have been brought into controversy. The one point in the controversy is one of law, or a mixed question of law and fact, viz., whether or not the commissioner's construction of the act, in view of the situation, was correct. We quote from appellant's [2] It is contended, under the third asbrief: "The appellees depended on the signment, that the evidence raised an issue ground that the construction placed by them of fact which could only be determined upon on the act in question was the proper con- final hearing; and it was therefore the duty struction, and that these waters were closed of the court to continue the injunction until waters. Therefore the gist of the entire the cause could be determined upon its matter, is whether the act in question war- merits; it being shown upon the hearing rants the construction placed thereon by the that a probable right, with probable injury game, fish and oyster commissioner of the to that right, existed. The district judge state of Texas. If by this act the Legis-granted the injunction provisionally, and lature intended to and did close the Corpus evidently subject to the hearing, for which Christi channel from bulkhead to the Gulf, he fixed a date. Upon that hearing, he un The construction of the word "pass" insisted on by appellant would defeat the evident purpose of the statute. The purpose the Legislature had in view was to enable fish to have free access to and from the coast waters, and if they are allowed to be questionably had the right to hear the matter and determine finally the right or probable right of plaintiff to the temporary injunction. He could determine, in that connection, the proper intent of the statute in question, upon which depended the right or probable right. The assignment is overruled. | intercepted in or near the channel afore said the purpose would be defeated. In MORIN. Dallas. (Court of Civil Appeals of Texas. [3] The fourth assignment reads as follows: "The judgment of the court in dissolving said temporary injunction in vacation was further contrary to the law and evidence, in that plaintiff's petition and supplemental petition directly attacked the validity of article 529g of the Penal Code of the state of Texas, and plaintiff's said petition and the evidence offered by plaintiff and MISSOURI, K. & T. RY. CO. OF TEXAS v. defendants before the court conclusively show that if said act is invalid plaintiff will be greatly injured and damaged by the enforcement thereof." Under this assignment, it is contended that the caption of the act in question did not express the nature of the amendment, but referred to the articles proposed to be amended simply by article number of the Code and the Statutes, or to the title of the article, and did not refer to the purpose of the amendment, and is therefore unconstitutional. It is sufficient compliance with the constitutional requirement if the subject-matter of the amendment is germane to the subject-matter of the original act, and is within the title of that act. School Dist. v. King, 20 N. D. 614, 127 N. W. 515. 1. EVIDENCE (§ 588*)-WEIGHT AND SUFFICIENCY-PHYSICAL FACTS. in loading a car, was lying on sacks of chops Evidence that plaintiff, who was engaged piled in the east end of the car, with his head to the east, when the car was struck by a moving engine roughly propelled against it from the east, as a result of which he was violently thrown in a westerly direction and injured, was not so in conflict with physical facts as to destroy its probative force. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. 588.*] 2. TRIAL (§ 191*)-INSTRUCTIONS-ASSUMPTION OF FACTS. care, which resulted in plaintiff's injury, the [Ed. Note.-For other cases, see Trial, Cent. [4] The position of appellant in this case ceived while engaged in loading a car owing to In an action by a laborer for injuries reis that the Corpus Christi Pass is merely its being suddenly struck by an engine, a charge the strait separating Padre and Mustang Is- that if plaintiff had remained in the car, waitlands, and that plaintiff had the right to take ing for it to be replaced at the proper place fish anywhere in coast waters further than after it had been moved, and if the servants of the defendant knew of plaintiff's presence in one mile distant from the extremities of the the car, and caused the engine to be run against channel separating said islands. That of ap-it with such force that plaintiff was thrown pellee is that by the word "pass" the Legis- from the top of sacks which had been loaded into the car, and if defendants' servants in so lature intended the entire channel connect-running the car failed to exercise ordinary ing Corpus Christi Bay, a coast water, with Gulf of Mexico. That Corpus Christi Bay is one of the coast waters clearly appears. The testimony shows a defined channel, through which the tidewater flows and ebbs, several miles long, leading from the interior end of said strait to Corpus Christi Bay. Appellant says this is no part of the "pass," but that the "pass" is restricted to that part of the channel which is bounded on either side by said islands. The prohibition of article 529g extends to "also all waters within Cent. Dig. §§ 910-923; Dec. Dig. § 282.*] one mile on either side of all passes leading from the Texas coast waters into the Gulf of Mexico." The purpose of the enactment was to enable fish at all times to pass to and from the coast waters of the state without being molested by the character of fishing prohibited. The evidence shows clearly that the water from and to the Gulf flows through a defined channel extending from the strait between the islands to Corpus Christi Bay; and it is therefore as much a part of the pass leading from such coast water to the Gulf as the strait itself. In an action by a laborer injured while loading a car, evidence held sufficient to warrant a finding that the railroad employés knew of his presence. [Ed. Note.-For other cases, see Railroads, 4. APPEAL AND ERROR (§ 882*)-PERSONS ENTITLED TO ALLEGE ERROR. Where defendant requested two special charges to be given in the alternative, and the court indorsed the first refused and the second given, and had them filed, and defendant's counsel, over the protest of plaintiff, obtained permission to withdraw the second, which was on the same subject as the one refused, only fuller and more applicable to the case, defendthe first instruction. ant cannot on appeal object to the refusal of [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Appeal from District Court, Hunt County; should remain out of same while they were T. D. Montrose, Judge. Action by F. E. Morin against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed. Alex. S. Coke, A. H. McKnight, and Dinsmore, McMahan & Dinsmore, for appellant. Sherrill, Mulkey & Hamilton, for appellee. RAINEY, C. J. Appellee sued the railway company to recover damages for personal injuries received by him through the negligence of the company's employés. Appellee's cause of action, in effect, was based upon the following facts, as stated by appellee in his brief, as follows: "First. He was working for the Greenville Mill & Elevator Company, loading sacks of chops into defendant's car, to be shipped by it in due course of business as a carrier. The work was for the benefit of his employer and the defendant, and defendant owed him the duty to exercise ordinary care for his safety. "Second. That while so engaged the servants of appellant interrupted the work, removed the car from the place where it was being loaded, and left it on the switch track for some time, and appellee and two of his coemployés remained in the car while it was being switched, and while it was standing on the switch track, waiting for it to be replaced, so that they could continue loading. "Third. That while the car was standing on the switch track the servants of the defendant negligently and carelessly caused it to be struck by an engine, or engine and cars, with great and unnecessary force and violence, whereby plaintiff was thrown from the top of a pile of sacks to the floor of the car, and thereby injured. "Fourth. That the negligence of the servants of the defendant in striking and bumping the car in a violent manner and throwing plaintiff on the floor was the proximate cause of his injuries." Appellant answered by general denial, and also by special plea of contributory negligence on the part of the plaintiff, in that he should have left the car and not remained in it while it was being moved, that the sacks of chops were piled loosely in the car, and liable to be thrown down, and that plaintiff was guilty of negligence in sitting or lying on top of them. It further specially pleaded that there was a rule and custom of the employés of the mill company not to remain in a car while it was being switched, and that appellee, by remaining in the car, violated said rule, and also violated instructions from his employer not to remain in a car while it was being moved. The appellee, by supplemental petition, denied specifically the charges of contributory negligence, and denied that there was any custom or rule or any instructions that the men loading cars being switched; that, if there was any such custom, rule, or instruction, he knew nothing of it, and was not guilty of any negligence in remaining in the car. A trial was had be fore a jury, and judgment rendered in favor of appellee for $10,000. The evidence suptions of plaintiff's petition. ports substantially all the material allega [1] The first assignment of error is: "The court erred in refusing to instruct the jury peremptorily for the defendant as requested by defendant's special charge No. 1. The refusal of special charge No. 1 was error because the evidence was not sufficient to prove that defendant's servants in charge of its switch engine knew that plaintiff was in the car at the time, and there was no evidence sufficient to show that defendant's said servants were guilty of negligence, under the circumstances, in the manner in which the engine was coupled onto the car." The proposition presented under this assignment is: "Testimony that is in conflict with admitted or established physical facts or opposed to natural or physical laws is of no probative force and should be disregarded by the court in disposing of the case." Special charge No. 1, requested by appellant, reads as follows: "The evidence in this case is not sufficient to support any charge of negligence made by plaintiff against the defendant. Wherefore you are instructed to return a verdict for the defendant." It is questionable whether the assignment raises the question presented by the proposition. But, treating it as raising the question, we will say that the court will not consider evidence that is in direct conflict with known and recognized natural or physical laws. In this case, however, we are unable to say that the evidence shows that the appellee's testimony as to how he was thrown to the floor was in conflict with a physical or natural law. He was lying on some sacks of chops piled up in the east end of a car against the east wall. His head was to the east, a little diagonally across the sacks, with his feet up against the south side on a brace or running board, which was fastened along the side of the car, when the car in which he was, without warning to him, was suddenly struck by a moving engine being roughly propelled against it from the east, which caused him to be thrown violently in a westerly direction to the floor of the car and injured. Considering his position and the force of the jar, we cannot say what effect the physical or natural law would have in such a contingency as to the manner of his being thrown. The contention, under the second assignment of error, to the effect that the verdict is not supported by the evidence, we think untenable, and the same is overruled. [2] The fourth assignment is: "The court erred in giving to the jury the third paragraph of his general charge, which said paragraph is as follows: "Therefore, if you be |