Volume 160 — South Western Reporter

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Suit by the Texas & Pacific Railway Company against George C. Denton and another. From decree for plaintiff, defendants appeal.</p>

<p>Appeal from Tarrant County Court; Charles T. Prewett, Judge.</p> <p>Action by Mrs. James Mooney against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 301*) — Motion for New Trial — Contents — Objection to Charges.</p> <p>Court of Civil Appeals rule 24 (142 S. W. xii), which requires assignments of error to distinctly specify the grounds of error relied on, and that a ground not distinctly set forth in the motion for new trial shall be considered as waived, unless it be fundamental, is in conflict with Rev. Civ. St. 1911, art. 2061, providing that rulings on instructions shall be regarded as excepted to in all cases, and article 2062 providing that, where the ruling appears otherwise of record, no bill of exceptions is necessary to reserve an exception thereto, and hence assignments of error to the giving or refusing of charges, and to other rulings which otherwise appear of record, are entitled to consideration whether a motion for new trial complaining of such rulings is filed and urged in the trial court or not.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p> <p>2. Courts (§ 92*) — Rulings oe Decision— Highest Appellate Court.</p> <p>The Supreme Court’s construction of a rule of court, clearly expressed, and called for by the questions certified, is not obiter dictum, but is binding upon the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.*]</p> <p>3. Evidence (§ 397*) — Parol Evidence — Fraud.</p> <p>Where the terms of a contract are reduced to writing, parol evidence is inadmissible to add to or vary its terms in the absence of fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.*]</p> <p>4. Evidence (§ 434*) — Parol Evidence At?, pecting Writings — Fraud.</p> <p>Allegations that, to induce him to sell timber, defendant fraudulently represented that notes made by another party and given in payment therefor were good, that the maker was solvent, and that they would be paid, that plaintiff had no means of investigating such representations, but acted thereon and accepted the notes as consideration for the timber, and that the statements were in fact false, were sufficient to admit parol evidence to vary the written contract of sale, or to show the facts inducing its execution.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.*]</p> <p>5. Fraud (§ 18*) — Legal Fraud — Materiality.</p> <p>Such false statements relied upon by the plaintiff were material, and operated as a legal fraud upon him.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 16; Dec. Dig. §, 18.*]</p> <p>6. Fraud (§ 31*) — Action por Damages — Af-firmance of Contract.</p> <p>Where defendant, on purchasing timber from plaintiff, falsely represented that the maker of notes given in consideration therefor was solvent, and that the notes would be paid, and plaintiff, in reliance thereon, made the contract, and delivered timber thereunder, plaintiff might recover a money judgment for the value of the timber delivered and tendered, while at the same time affirming the contract, since the deceit was in the method of payment, and not in the contract itself.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 27; Dec. Dig. §, 31.*]</p> <p>7. Fraud (§ 13*) — Falsity — Knowledge Thereof.</p> <p>Where one states as of his own knowledge material facts whereby another is defrauded, it is no defense to reply that, although the statements were false, the person making them believed them to be true, and where worthless notes of a third person, falsely represented to be good, were indorsed to plaintiff “without recourse” in payment under a contract, the defendant, when sued for damages for the deceit, could not shield himself behind such in-dorsement.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.*]</p> <p>8. Trial (§ 251*) — Instructions—Conformity to Issues.</p> <p>Where it could be found that, when the notes were discussed and agreed to be taken by plaintiff as a consideration for the sale of his timber, defendant had falsely represented that the maker of them was solvent, and that they would be paid, when in fact he was not solvent, and the notes were worthless, a charge that the undisputed evidence showed that under the contracts defendant did not agree to guarantee the solvency of the maker or the payment of the notes by him was properly refused as not conforming to the proof.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 587-595; Dec. Dig. § 251.*]</p> <p>9. Fraud (§ 64*) — Action for Damages — Question for Jury.</p> <p>In an action for fraud in giving worthless notes as the consideration of a contract, under which plaintiff sold and defendant took and removed timber, the questions whether plaintiff accepted the notes relying upon his own judgment as to their value, and whether he had opportunity to investigate their value before making the contract, were for the jury.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§• 65½, 67-71; Dee. Dig. § 64.*]</p> <p>10. Fraud (§ 22*) — Estoppel to Deny Falsity.</p> <p>When fraudulent misrepresentations are shown by which a person was induced to enter into a contract, it is no answer to his claim for damages to assert that he might have known the truth by further inquiry; the defendant being estopped from so asserting want of caution.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19-23; Dec. Dig. § 22.*]</p> <p>31. Fraud (§ 64*) — Action for Damages — Question for Jury.</p> <p>Under evidence in an. action for fraud in representing notes given as consideration for a contract for the sale of timber to be good, held, that the questions whether the representations were made by defendant before or at the time the first contract was made, and whether his later statements to plaintiff as to the notes were intended to and did induce plaintiff to make a second contract, were for the jury.</p> <p>[Ed. Note. — Eor other eases, see Fraud, Cent. Dig. §| 65½, 67-71; Dee. Dig. § 64.*]</p> <p>12. Fraud (§ IS*) — Deception Constituting Fraud — Knowledge of Falsity.</p> <p>Whether a party making a contract, and misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it was true or false, is immaterial, for the affirmation of what one does not know or believe to be true is as unjustifiable as the affirmation of what is known to be positively false.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.*]</p> <p>13. Appeal and Error (§ 1064*) — Harmless Error — Contradictory Instructions — Ruling of Court.</p> <p>Where a general charge, in an action for fraud, erroneously required that the representations be knowingly and falsely made, and a special charge relieved the plaintiff of the burden of showing that they were knowingly made, and the evidence showed that defendant knowingly and falsely represented that the notes were good, and their maker solvent, and that, if he did not knowingly make such representations, they were in fact false, and the notes worthless, the defendant could not be injured whichever rule was adopted by the jury, and hence such contradiction in the charges could not probably cause the rendition of an improper judgment, so as to be reversible error within rule 62a (149 S. W. x).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>14. Trial (§ 252*) — Instructions—Conformity to Issues.</p> <p>In an action for fraud, where the evidence was wholly insufficient to show that the representations made by defendant were mere expressions of opinion, the defense being that no such representations were made, the refusal of his requested instruction that, if they were such, plaintiff could not recover was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 505, 596-612; Dec. Dig. § 252.*]</p> <p>15. Trial (§ 260*) — Refusal of Instruction —Instruction Given.</p> <p>The refusal of requested charges was not error where the matter was sufficiently covered by other charges given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from District Court, Harris County; E. R. Campbell, Judge.</p> <p>Action by J. A. Greber against E. S. Clark and others. From judgment for plaintiff, defendant A. P. Hartfield appeals.</p>

<p>1. Railroads (§ 389*) — Injuries to Person Near Track — “Proximate Cause.”</p> <p>The negligent construction of a railroad trestle over a street, but for which a lump of coal would not 'have fallen and injured plaintiff, driving below, was in law the proximate cause of the injury, since though negligence he removed from the injury by intermediate causes and effect, yet, where the one guilty of negligence ought reasonably to have foreseen tbe ultimate consequence, it is the'“proximate cause.”</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dee. Dig. § 389.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]</p> <p>2. Railroads (§ 398*) — Injuries to Person Near Track— Sufeiciency' oe Evidence — Negligence.</p> <p>In an action for injuries from a lump of coal falling upon plaintiff as he was driving underneath defendant’s railroad trestle, evidence held sufficient to sustain a finding that the trestle was negligently constructed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p> <p>3. Trial (§ 251*) — Action eoe Injuries — Instructions.</p> <p>In an action for injuries from a lump of coal falling from defendant’s trestle over a street, where it was not charged that any particular part of the trestle was out of repair, but that as built it was inherently unfit for the protection of the public using the street, the refusal to charge as to the particulars in which the trestle was defective was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>4. Railroads (§ 401*) — Actions for Injuries —Instructions—Negligence.</p> <p>In an action for injury from a lump of coal falling from a locomotive tender from defendant’s trestle upon plaintiff riding beneath, where it appeared that it might have fallen over the railing of the trestle, a charge, limiting the jury to negligence from defendant’s failure to board up the open spaces in the railing, was properly refused.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]</p>

<p>Appeal from Erath County Court; J. B. Keith, Judge.</p> <p>Action by Charles Neblett against H. C. Barron, in which J. W. Hall and Adam Caughman intervened. From á judgment for interveners, plaintiff appeals.</p>