Freeman v. Wilson, (No. 133-2995.)

• Decision Date: 16 June 1920
• Docket Number: (No. 133-2995.)
• Citation: 222 S.W. 551
• Parties: FREEMAN v. WILSON.
• Court: Texas Supreme Court

222 S.W. 551

FREEMAN v. WILSON.

(No. 133-2995.)

Commission of Appeals of Texas, Section B.

June 16, 1920.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by C. W. Wilson against T. J. Freeman, receiver of the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed and remanded the cause (149 S. W. 413), whereupon writ of error was sued out by plaintiff to the Supreme Court, which held it was the duty of the Court of Civil Appeals to determine an excess in the judgment (108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203), and thereafter the Court of Civil Appeals required remittitur and affirmed (189 S. W. 1199), and defendant brings error. Judgment of the Court of Civil Appeals affirmed, on recommendation of the Commission of Appeals.

Ramsey, Black & Ramsey, of Austin, Wilson, Dabney & King, of Houston, F. C. Davis, Marshall Eskridge, and Hicks & Hicks, all of San Antonio, and John M. King, of Houston, for plaintiff in error.

J. D. Childs, of San Antonio, W. C. Campbell, of Palestine, and James W. Brown, of San Antonio, for defendant in error.

SADLER, P. J.

On the 12th day of June, 1911, C. W. Wilson, as plaintiff, recovered a judgment in the district court of Bexar county against T. J. Freeman, receiver of the International & Great Northern Railway Company, for $20,386.05, from which judgment an appeal was had to the Court of Civil Appeals, and the judgment reversed and the cause remanded. 149 S. W. 413.

The Court of Civil Appeals held that the verdict was excessive, overruling all of the contentions made by the appellant except in this particular. Writ of error was sued out by Wilson, and the Supreme Court (108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203) held that it was the duty of the Court of Civil Appeals to determine the excess in the judgment. Thereafter the Court of Civil Appeals required a remittitur of $8,000, and, on same being filed, affirmed the judgment of the trial court. The appellant filed a motion for rehearing, which being overruled by the Court of Civil Appeals, writ of error was granted to the Supreme Court.

On the trial of the cause, after the plaintiff had rested, the receiver filed a motion asking for an instructed verdict in its favor. This was overruled. After all of the evidence was in, the defendant below requested a peremptory instruction, which was also overruled.

Touching the question of the jurisdiction of the Supreme Court to entertain this case because of want of importance in the questions presented, we desire to call attention to the fact that the jurisdiction to entertain the petition for writ of error is governed wholly by the act of 1913 (Laws 1913, c. 55), as the petition was filed under that act.

The cause is before us on several grounds of error assigned to the judgment of the Court of Civil Appeals. In our view of the case, however, it will be necessary to consider only those assignments relating to the refusal of the trial court to give a peremptory instruction. The disposition of these assignments will be inclusive of the questions presented by other germane assignments. In alleging negligence as a basis for recovery, plaintiff charged:

"That on the 6th day of December, 1909, near Overton, in Rusk county, Texas, he was in the employ of said defendants and temporarily stationed in said Rusk county, Texas, and while in said employ to the carelessness and negligence of defendants, it became necessary for him, in his regular line of employment, to engage at a...