Volume 247 — South Western Reporter

Action between Henry M. McCarthy and the States Oil Company and others. From the judgment of the Court of Civil Appeals after review of the judgment rendered the States Oil Company brought writ of error. On. motion by all parties praying dismissal of petition for writ of error and transmission of mandate to clerk of Court of Civil Appeals.

Suit by George Hamman against the Sam Jacinto Rice Company and others. Judgment for the plaintiff was affirmed by the Court of Civil Appeals, and defendants bring error, and! judgments of the district court and of the Court of Civil Appeals reversed, and remanded to the district court for entry of judgment in accordance with agreement.

<p>Appeal from District Court, Damar County; Newman Phillips, Judge.</p> <p>' Suit by the Lyon-Gray Lumber Company against the Gibralter Life Insurance Company and another. From a judgment against it, plaintiff appeals.</p>

<p>Assignments <@=>117, 132 — Assignor cannot maintain action on claim assigned prior to action.</p> <p>An assignor cannot maintain action on a claim assigned absolutely by him to a corporation, before the action was commenced, he not having an interest in the subject-matter, though he had guaranteed its collection, and proof, of such facts making a variance on his allegation of ownership.</p>

Action by the E. C. Flewellen Produce Company against the Home Insurance Company and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (221 S. W. 630), and defendants bring error.

Error from Randall County Court; Worth Jennings, Judge. Action by the Panhandle Grain & Elevator Company against Tom Dowlin and others. Judgment for plaintiff against the defendant named, and it brings error.

<p>1. Novation <@¿=>4 — Substitution of new contract.</p> <p>A novation exists where, by mutual consent and on sufficient consideration, the parties to an existing contract, intending to extinguish it, substitute therefor a new» one, inconsistent with it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Novation.]</p> <p>2. Carriers <§=1219(1 [ — Acceptance of new bill of lading from connecting carrier is not a novation.</p> <p>Where a shipper of live stock over connecting lines received from the second connecting carrier a new bill of lading covering the shipment over the connecting line, as required in order to obtain his drover’s pass, his acceptance did not establish a novation superseding the original contract for through shipment, since the initial carrier was not a party to the new bill of lading, there was no mutual dissolution of the old contract, and no consideration therefor, except the receipt of the drover’s pass which, under Vernon’s Ann. Oiv. St. Supp. 1922, art. 731, was an insufficient consideration.</p> <p>3. Carriers <§=>219(5) — Acceptance of bill of lading from connecting carrier held not to discharge initial carrier.</p> <p>The acceptance by a shipper of live stock from a connecting carrier, to whom the shipment was delivered by the initial carrier while still within the state, of a new bill of lading did not discharge the original contract with the initial carrier for the through interstate shipment, where the initial hill of lading was for the entire journey, and the freight charges of both carriers were paid to the terminal carrier at destination, so that the initial carrier was liable for injury to the stock during transportation by the terminal carrier under Vernon’s Ann- Civ. St. Supp. 1922, arts. 731, 732, and the Carmack and Cummins Amendments to the Interstate Commerce Act (U. S. Comp. St. §§ 8604a, 8604aa).</p> <p>4. Carriers <§=>218(3) — Requirement of notice of claim for damages within 120 days is reasonable.</p> <p>The provision of a bill of lading requiring the shipper to give notice of his claim for damages within 120 days as a condition precedent to. any right of action thereon was reasonable and one which the courts will enforce under Rev. St. art. 5714.</p> <p>5. Evidence <§=>158(29) — Written notice of claim against carrier admissible as best evidence to show notice given.</p> <p>Where a carrier denied that notice of claim had been given, thereby placing on the shipper the burden of proving such notice, and the shipper introduced the best evidence he had of such notice, the written notice itself, the carrier’s objection to the introduction of the notice in evidence was properly overruled.</p> <p>6. Interest <§=39(l) — Runs from date at which jury fixed damages.</p> <p>If it appears from a verdict that the sum •fixed by the jury is clearly the amqunt of the damage on the date of the injury, interest should run from that date, but if the verdict shows the sum was the damage at the time of the finding or if it is uncertain at what date the damage was the amount found by the jury, the interest should run from the date of the judgment and not from the date of the injury.</p> <p>7. Interest <§=>39(I[ — Special findings by jury held to show damage was assessed as of time it occurred.</p> <p>Special findings by the jury as to the value of live stock on the date of delivery by the carrier and the value they would have been if they had arrived in an undamaged condition, showing that the sum allowed as damages 'was the difference between such values on that date, clearly establishes that the damages were fixed as of the date of the injury, so that the shippers were entitled to interest thereon from such date.</p>

E. Mullally, Judge. Suit by L. A. Reiser and others against the Two Republics Oil & Gas Company and others, to cancel an oil and gas lease. From an adverse judgment, defendants appeal.

<p>1. Master and servant <S=»288(5), 289(19) — Assumption of risk and contributory negligence of trucker using unblocked running board held for jury.</p> <p>Where plaintiff, a railway trucker assisting in unloading freight from car, knew another employee had gone for the bolts with which to block the running board, and after loading his truck was told by his foreman to go ahead, and there was evidence that it was the duty of the foreman to see that the running board was safe before giving the order to go ahead, it could not be said as matter of law that plaintiff should have kept in mind while loading his truck the matter of the blocking of the running board, so as to charge him with negligence or assumption of risk in using the unblocked running board.</p> <p>2. Appeal and error 1062,( I)_, 1068(1) — Errors in charge and in submission of issue in too general way held harmless when sp'ecific issues answered against appellant.</p> <p>Any errors in a charge on assumed risk or in the submission of the issue of assumed risk in a too general way were harmless where the court submitted specific issues as to whether railway trucker knew running board was not blocked, whether the fact that bolts had not been placed therein was open and obvious, and whether a person' in the exercise of ordinary care would have learned that the bolts had not been placed in the board; all of which were answered against appellant.</p> <p>3. Trial <§=352 (5) — Special issue not error because assuming undisputed fact.</p> <p>Where it was undisputed that the failure to block a running board used in unloading freight from a ear was the cause of its slipping, a special issue was not erroneous because so assuming.</p> <p>4. Trial <©=352(5) — Special issue assuming fact submitted in another issue not error.</p> <p>A' special issue in an employee’s action for injuries was not erroneous because assuming that the 'failure to block a running board used in unloading freight was the proximate cause of plaintiff’s injuries where another issue submitted'the question of proximate cause.</p> <p>5. Trial <©=352(1) — Special issues held to sufficiently present question of contributory' negligence.</p> <p>In railway trucker’s action for injuries sustained while unloading freight through the slipping of a running board, special issues as to whether plaintiff was negligent in attempting to pull the truck on the running board without looking to see if it was blocked, and whether a person in the exercise of ordinary care would have learned that bolts had not been placed in the running board, held to present sufficiently the question of contributory negligence.</p> <p>6. Witnesses <©=396(2) — 'When written statement offered to impeach plaintiff he could prove all that was said at the time.</p> <p>A written statement obtained from an injured employee by a claim agent concerning circumstances of the accident was not within the parol evidence rule, and, where it was introduced to impeach the employee’s testimony, he could state all that passed between him and the claim agent at the time in explanation thereof.</p> <p>7. Witnesses <©=406 — Testimony concerning self-serving declaration admissible where it might be reasoabiy concluded that it was the same statement testified to by defendant’s witnesses.</p> <p>In an employee’s action for injuries, testimony that shortly after the accident he said he did not know a board which slipped was not bolted, and that when he was given a check by his foreman he understood he was expected to go with his truck, was admissible to contradict or explain testimony for defendant that he said he knew another employee had gone after the bolts for fastening the board, but was in a hurry, and forgot about him not coming back, where, though it did not positively appear, it might be reasonably concluded that all witnesses werfe referring to the same conversation.</p>