er, and this was done and the money applied thereon. Held, in an action by the owner against the tenant for conversion of the owner's share, that it did not lose its exempt character.

2. In an action for conversion of exempt property, a judgment cannot be set off against the claim.

3. Under Sayles' Rev. Civ. St. art. 751, providing that a plea setting up a counterclaim shall state distinctly its nature, a judgment cannot be set off under plea of payment for use and benefit.

4. Under Sayles' Rev. Civ. St. art. 754, providing, if plaintiff's cause of action be a claim for unliquidated damages founded on a tort, defendant cannot set off a debt due him, he may not set off, in an action for conversion, a claim for payment for use and benefit, and for repairs and work.

Appeal from Parker county court; F. O. McKinsey, Special Judge.

Action by C. A. Staggs against W. R. Piland and another. On the death of plaintiff his heirs were made parties. Judgment for defendants. Staggs' heirs appeal. Reversed. McCall & McCall and Martin & Smith, for appellants.

SPEER, J. We adopt the trial court's findings of fact, which are as follows, to wit: “(1) I find that, prior to the year 1900, Mrs. C. A. Staggs owned a tract of land in Parker county, and resided on and occupied same as a home, she being a widow with several minor children and the head of a famlly; that in the latter part of 1899 she rented said place to defendant Piland for the year 1900, and vacated same to Piland, but she did not permanently abandon same, but same continued to be her homestead up to the time of her death. By the terms of the rental contract, said Staggs was to have onethird of the corn and hay, and one-fourth of cotton raised on the place, Piland to gather the corn, and gather and sell the cotton, and pay her one-fourth of the money.

"(2) In December, 1899, defendant Braselton recovered a judgment for $295 against said C. A. Staggs in the county court of Parker county, which is still unpaid, except as to part paid by Piland, as hereinafter explained."

"(4) On June 14, 1900, defendant Braselton sued out a writ of garnishment on said judgment against said Piland as garnishee, which writ was served on same day. The garnishee filed his answer in obedience to said writ on September 1, 1900, setting up his rental contract, and that the rents were on hand; that plaintiff Mary Reynolds and her husband were asserting some claim to the rent; and asking that they and said C. A. Staggs be made parties to the garnishment suit, and that he be protected.

"(5) On September 3d thereafter the court rendered judgment against the garnishee on this answer, refusing to require plaintiff in the garnishment to bring in the claimants, and directing the garnishee to gather and 12. See Exemptions, vol. 23, Cent. Dig. § 164.

sell the crops and pay the proceeds to the clerk of that court, to be credited on Braselton's judgment.

"(6) Within two days after this judgment and during the term of court Mrs. Mary Reynolds and Mrs. C. A. Staggs filed a petition in the said garnishment case, Mrs. Staggs claiming that the crops garnished were exempt to her and Mrs. Reynolds, claiming that she had a mortgage on the rents to the amount of $152, and they asked the court to set aside the garnishment judgment, and permit them to intervene and litigate their rights in the property. This petition and motion were denied, but on what ground, or what evidence, if any was introduced, was made to appear on this trial. No further proceedings were had in the garnishment case, neither party appearing.

"(7) When the garnishment was served on Piland all the crops on the Staggs place were growing, and at the time he answered, on September 1st, a part of the corn and part of the cotton had been gathered, but the evidence does not show how much was still unsevered. Piland, in pursuance of said garnishment judgment, gathered said crop, and applied same to the Braselton judgment, selling the cotton, and applying the proceeds, amounting to $88.60, and delivering the corn and hay direct to Braselton, which amounted to $42.55. The total value of the rents so applied was $131.15, which I find to be the value of all the rents from the Staggs farm for 1900.

"(8) The affidavit for garnishment was defective, and said proceedings were subject to quashal by motion, had such motion been made in that proceeding, for this: Said affidavit stated that plaintiff's debt was just and due, and that C. A. Staggs had not in her possession, within the knowledge of plaintiff (Braselton), property within this state subject to execution sufficient to make the debt, and other formal allegations stating amount of debt. The writ of garnishment recited that Braselton had made affidavit that he had a judgment against C. A. Staggs, etc. No affidavit that Braselton had a judgment against C. A. Staggs was filed by Braselton.

"19) Mrs. C. A. Staggs died pending this suit on May 13, 1901, and on suggestion of her death the present plaintiffs were permitted to make themselves plaintiffs and to prosecute this suit, and plaintiffs are the heirs and only heirs of said C. A. Staggs.

"(10) C. A. Staggs originally filed this suit on October 27, 1900, against defendant Piland alone for herself and for the use of plaintiff Mary Reynolds, who she alleged had a mortgage on the rents in controversy. J. W. Braselton was made defendant on December, 1901.

"(11) I find that said C. A. Staggs left no property except her exempt homestead and personalty (excepting the claim in contro versy); that she was a widow and had two

minor children at the time of her death, both boys, one of whom lived with her all the time up to her death, and the other occasionally, being part of the time at work away from home. She did not live on the homestead after renting it to Piland, nor did she keep house, but lived with her children. The evidence does not show whether there are any other debts than Braselton's judgment against the estate of C. A. Staggs. It did show that the debt sued for herein is the only asset of said estate subject to the demands of creditors. Braselton's judgment amounts to more than the rents sued for, and said estate is insolvent.

"(12) Plaintiff Mrs. Mary Reynolds produced in evidence a mortgage executed by said Mrs. C. A. Staggs for $152 on the rents In controversy, dated January 11, 1900, filed for record in county clerk's office January 17, 1900, reciting the consideration to have been paid out of the separate estate of said Mary Reynolds. I find that said mortgage was fictitious, and that it was made for the fraudulent purpose of defeating Braselton in the collection of his judgment. If the evidence offered to establish said mortgage were sufficient for that purpose, it also shows that the same was not the separate property of Mary Reynolds, but was the community property of herself and husband, Baldwin Reynolds."

The court found, as matter of law, that "the rents sued for having been severed, and having lost their exempt character, while still rightfully in Piland's hands, and before they were applied to Braselton's judgment, the claim of plaintiffs therefor is subordinate to the rights of Braselton thereto as a creditor of said C. A. Staggs' estate; and the debt herein sued for being the only claim due to said estate, and the judgment of defendant Braselton being the only debt shown by the evidence to be due by said estate, I conclude that the two debts ought to be offset one against the other. Hence I render judgment for the defendants."

We are unable to assent to this judgment. The crops growing upon the homestead of C. A. Staggs were exempted by law from every species of execution, and did not lose their exempt character simply because they were reduced to a nonexempt state by the appellees after being unlawfully impounded by them. They will not be permitted to profit by their own wrongful conduct.

The property converted being exempt, it was error to permit appellees to offset the judgment of Braselton against a claim therefor. This would render the exemption laws ineffective. Moore v. Graham (Tex. Civ. App.) 69 S. W. 200. Besides, this judgment was not pleaded in offset, and could not for that reason have availed appellees anything. Sayles' Rev. Civ. St. art. 751. The claim actually pleaded in offset was one by Piland for money paid to Braselton for the use and benefit of C. A. Staggs, in the sum

of $125.15, and for repairs and work in the sum of $56. This money paid to Braselton was not at the instance or request of Mrs. Staggs, and, not being bound by the garnishment judgment which directed its payment, the transaction amounted to nothing short of a conversion of her rents. This suit then being for a tort, for unliquidated damages, the offset pleaded was improper. Sayles' Rev. Civ. St. art. 754.

The trial having been before the court, and all material facts having been found by him, it becomes our duty on reversing the cause to render the proper judgment here. It can make no difference to appellees whether the Reynolds mortgage is fictitious or not, since in no event can their claims be offset against the judgment here rendered. It is therefore ordered that the judgment of the county court be reversed, and here rendered for the appellants against the appellees jointly and severally, for the sum of $131.15. Reversed and rendered.

CITY OF SAN ANTONIO v. POTTER.* (Court of Civil Appeals of Texas. Jan. 21, 1903.) CITIES-DEFECTIVE BRIDGE APPROACH-PERSONAL INJURY-ALTERNATIVE ALLEGATIONS -PROPRIETY OF SPECIAL DEMURRER-APPEAL-SUFFICIENCY OF OBJECTION BELOWADMISSIBILITY OF EVIDENCE HARMLESS ERROR INSTRUCTIONS - SUPPORT IN EVIDENCE-PROPRIETY OF REFUSAL-CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF.

1. The mere fact that the averments of a petition in a personal injury case are in the alternative will not subject it to a special de

murrer.

2. In a personal injury case, a physician was asked whether, from his examination of plaintiff, plaintiff impressed him as a temperate or intemperate man. Defendant's counsel said: "I object to that. I don't think it is a proper question." Held, that it was not error to overrule the objection; no ground therefor being stated.

3. In a personal injury action, in answer to a question as to whether plaintiff impressed the witness as being temperate or intemperate, the latter replied, over objection, that, knowing the possibility of plaintiff's condition being brought on by excessive alcoholism, he had carefully examined the manifestations of the disease. Held, that the overruling of the ob jection was harmless error; the witness' answer not being prejudicial.

4. A party cannot complain of the admission of evidence over his objection where he later permits similar evidence to be introduced without objection.

5. In a personal injury case against a city, defendant requested an instruction that trav elers must use due care to avoid accident, and if plaintiff failed to use that care which, under the circumstances, a person of ordinary prudence would have used, and this contributed to the injury, the jury should find for the defendant, though it was negligent. Held, that this instruction was sufficiently covered by a charge that if the injury was proximately caused by defendant's negligence, and plaintiff did not know of the unsafe condition of the highway, and was not guilty of contributory negligence, the jury should find for plaintiff;

*Rehearing denied February 4, 1903, and writ of erzer denied by supreme court March 2, 1903.

that, if plaintiff assumed the risk, he could not recover; and that persons using the streets were bound to use ordinary care to prevent accident, and if plaintiff failed in this, and if such failure contributed to his injury, he could not re

cover.

6. In a personal injury case against a city, for permitting an approach to a bridge to become defective, the evidence showed that nearly two months before the injury a heavy rain had damaged the approach; that the bridge had been washed out several times; that about the time of the injury, and before, several bridges had been washed out; that on the evening of the accident a heavy rain fell, and washed out the bridge and injured the approach; that no notice had ever been given the city of the defects in the approach. Held insufficient to warrant submitting the issue as to whether the condition of the approach was caused by the act of God, which could not have been foreseen by the city, so as to exculpate it.

7. Where plaintiff's testimony in a personal injury case fails to make a prima facie case of contributory negligence, the defendant cannot complain of an instruction that the burden is on it to show contributory negligence.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by W. H. Potter against the city of San Antonio. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank H. Wash, for appellant. Shook & Vander Hoeven and Jas. Routledge, for appellee.

JAMES, C. J. W. H. Potter sued the city for damages for personal injury alleged to have been sustained by his falling through an approach to a bridge, which had become undermined, and in respect to which the city had been negligent. The city answered by demurrers, denial, and plea of contributory negligence and assumed risk; also that the condition of the approach was due to the act of God, in this: that for a few days before the 29th of July, 1900, heavy, unusual, and continuous rains fell in and around San Antonio, and that on the night of July 29, 1900, the date plaintiff alleges he was injured, there was a sudden and unusual rainstorm, which washed away parts of the bridge and approaches thereto; that defendant did not know the bridge or its approaches were injured, and could not by the exercise of reasonable care have ascertained such fact in time to have repaired same prior to the accident. The verdict was for plaintiff in the sum of $2,000.

As conclusions of fact, we find, in deference to the verdict, that plaintiff received his injury from the caving in of a street at and upon an approach to one of defendant's bridges within the city, and upon that portion of the street and approach which was in use by the public, and apparently safe; that this unsafe condition of the place through which plaintiff fell was due to the negligence of defendant; that plaintiff had no knowledge of the unsafeness of the place, and was in the exercise of ordinary care.

By the first and second assignments the

point is made that the court erred in overruling special demurrers complaining of the petition that its allegations were so inconsistent, vague, and indefinite as to leave defendant in doubt as to what negligence it was charged with. We overrule this assignment. The petition consists of positive, though alternative, allegations. Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787; Ewing v. Duncan, 81 Tex. 236, 16 S. W. 1000. In the case of Railway Co. v. Clark, 21 Tex. Civ. App. 167, 51 6. W. 276, similar demurrers to a petition were held properly overruled.

The third assignment is also overruled. The bill of exceptions discloses as follows: "Question to a physician: 'From the examination that you have made of him [plaintiff], and the opportunities you had of examining him as to his disease, what did he impress you as being,-a temperate or intemperate man? Whereupon counsel for defendant stated: "I object to that. I don't think it is a proper question.' The court overruled the objection, and the witness stated: 'Knowing the possibility of this condition being brought on by a contact or excessive alcoholism, I examined very carefully these manifestations of that disease.' To which ruling of the court defendant excepted." Then the bill of exceptions proceeds as follows: "This bill is given with the qualification that thereafter said witness was permitted to testify, without objection by defendant, as follows: Witness stated that he had examined Potter, and was then asked the question: 'In regard to the excessive use of tobacco or alcohol, did you examine that carefully? Yes, sir. Did you find any symptoms? I am free to say that I didn't find any." It is quite clear from the recitals of this bill that defendant has not saved any point. The objection made did not present the ground, if any, upon which it was intended to be based, and was not entitled to consideration as an objection. And on that occasion there was no answer evoked of which it could complain. Afterwards, and presumably at a later stage of the examination, the question was renewed, and allowed to be answered without objection.

The fourth assignment is not well taken. Mrs. Spruce was asked the question: "What was the condition of the bridge? Was it in good or bad condition?" To which she answered: "I should say the bridge was in a bad condition." The objection made to the question was that plaintiff had alleged that he fell through an approach to the bridge, and not through the bridge, and because the question should be confined to the condition of the spot or place where plaintiff actually fell. The particular point we need not decide. We may assume that the evidence was improper, yet a number of other witnesses were allowed to give substantially the same testimony without objec

tion. Under such circumstances, the judgment will not be disturbed. Railroad Co. v. John (Tex. Civ. App.) 29 S. W. 558; Railroad Co. v. Kindred, 57 Tex. 491.

The fifth insists that the following requested charge should have been given: "Persons traveling upon the streets and bridges must use due care to avoid accidents, and if you believe from the evidence that the plaintiff failed to use that care, under all the circumstances in evidence, which a person of ordinary prudence would have used under such circumstances, and that such want of care on his part contributed to cause the alleged injury, you should find for the defendant, though you should also believe that the defendant was negligent." The court, in the first paragraph, charged, in substance, that if the injury was proximately caused by defendant's negligence, etc., and the jury further found that plaintiff did not know of the unsafe condition of the approach, if unsafe, and the plaintiff was not guilty of contributory negligence which caused or contributed to his injury, to find for plaintiff. After this followed a proper charge on assumed risk, and the jury were told that plaintiff could not recover if he assumed the risk. Then the court charged: "You are further charged that persons using the streets of said city are bound to use ordinary care to prevent accidents and injury to themselves; and if you find that plaintiff failed to use such care, and that such failure, if any, either caused or contributed to his injury, if any, then plaintiff cannot recover." It will be seen that there is nothing in the requested charge but what was given, except the concluding words, "though you should also believe that the defendant was negligent." We cannot be lieve that the failure of the court to add those words to its charge on contributory negligence should entitle defendant to a reversal of the judgment. In view of what the court did charge, these words would amount to repetition or emphasis. The court told the jury to find for plaintiff, if defendant was negligent, unless he was negligent himself, and, again, not to find for plaintiff if he himself was guilty of contributory negligence. It seems to us that no jury of ordinary intelligence would fail to comprehend the effect and meaning of these instructions, or that the omitted language was necessary to enable them to properly understand them.

The sixth assignment complains of the refusal of the charge: "You are hereby charged that although you may believe from the evidence that the approach to the said bridge was in a defective condition, and that plaintiff was injured by reason of such defective condition, still, if you believe that such defective condition was caused by an act of God, by which is meant, in this case, heavy and unusual rains, such as could not have been foreseen by the defendant by the exer

cise of ordinary care,-then you must render a verdict for the defendant." We think the charge was properly refused, because the testimony did not warrant submitting the issue. We have not read all the testimony,some 72 pages of typewritten matter, but shall quote the statement in appellant's brief, which presumably presents in the strongest light all the evidence which could be found to support the claim that such issue was raised: "The last time I was over that bridge before I was hurt was the night before. Saturday night, going from my shop, I crossed that bridge. Got off the car and crossed that bridge going home. When I went over the bridge that night, it appeared safe. I had not been across the bridge in daytime for three or four days. When I crossed over it in the daytime, I judged it to be safe previous to the accident. (Testimony of Wm. Potter, transcript, pp. 32 and 33.) On the night when this accident occurred, I was at home. My little daughter had gone to her uncle's, on Pierce avenue, right after dinner, and was to be back that afternoon late. There came up a rain. It got pretty cloudy, we had quite a shower of rain. (Testimony of Wm. Potter, transcript, p. 32.) That night it was lightning,-a constant flash of lightning. I could see glimpses of the road as I walked along, and that's how I kept in the road. (Testimony of Wm. Potter, bottom page 33 and top of page 34.) Prior to July 29, 1900, there had been a rain of consequence in May,-about 7th or 8th. There had been no rain of any consequence between May 7th or 8th and July 29th. It was right after that rain in May that I first noticed the bridge had caved in on the south side of the west end. It was after that rain that it showed the hole there where it had caved in. That was a pretty heavy rain. The water came down off the Heights with a tremendous force, and it washed those holes there caved in at the bridge. There have been heavier rains since that. I have seen it rain harder out there than it did at that time. (Testimony of Wm. Potter, transcript, bottom of page 34 and top of page 35.) I remember a rainfall early in May that washed that bridge terribly. (Testimony of S. R. Wilson, transcript, p. 57.) Along the main portion of the road where it between those two washes the road looked all right,-appeared to be sound and safe. (Cross-examination of S. R. Wilson, transcript, p. 58.) I suppose it was something like three miles out there from the center of the city. (Recross-examination of S. R. Wilson, transcript, p. 59.) About the 29th of July, 1900, and before, we had very rainy, muddy weather. Several bridges were washed out. The bridge on South Flores street was washed out three times during the first part of 1900. There was also one over San Pedro creek, and one over Tampico street, washed out. Prior to the 29th day of July, 1900, I never received any notice

ran

in regard to this bridge being defective. (Testimony of R. G. Scott, transcript, p. 67.) There was a heavy rain the night he got hurt that washed out the bridge. (Testimony of J. W. Mathis, witness for plaintiff on re-direct examination, transcript, p. 94.)" Defendant's plea alleged "that a few days on or before the 29th of July, 1900, heavy, unusual, and continuous rains fell in and around the city of San Antonio, and that on the night of July 29, 1900,-the date plaintiff alleges he was injured,-there was a sudden and unusual rainstorm, which washed away parts of said bridge and the approaches thereto, as well as most all of the smaller bridges in and around the city of San Antonio." It has been held by the court of civil appeals for the Third district that these allegations are insufficient to constitute a defense. Railroad Co. v. Davidson, 60 S. W. 278. But whether this ruling be correct or not, the testimony here relied on to support such defense is insufficient. It showed that such floods had been frequent. The strongest testimony cited by appellant in the above statement is that of the witness Mathis. His testimony is quoted only in part. He testified that the bridge had been washed out there several times. Railway Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722; Railway Co. v. Hadnot, 67 Tex. 506, 4 S. W. 138; Railway Co. v. Johnson, 72 Tex. 102, 10 S. W. 325.

The seventh assignment complains of the instruction that the burden was on defendant to show that plaintiff was guilty of contributory negligence. It is claimed that the rule stated in Railway Co. v. Hill (Tex. Sup.) 69 S. W. 140 applies. The testimony introduced by plaintiff does not, in our opinion, make a prima facie case of negligence on his part; and it would have been improper, upon such testimony, to instruct the jury to find against plaintiff. In fact, there is some doubt in our minds as to the entire evidence being such as to require that issue of contributory negligence to be submitted. There was no error in giving the charge, so far as appellant is concerned.

The judgment is affirmed.

ALLEN v. FROST.

(Court of Civil Appeals of Texas. Jan. 17, 1903.)

TRESPASS TO TRY TITLE-PUBLIC LANDS-APPLICATION TO PURCHASE-ACTUAL SETTLER -CHARGE ON WEIGHT OF EVIDENCE-SPECIAL ISSUES.

1. A charge that it is not necessary to constitute one an actual settler on school lands for him to have his wife or family on the land at the very time he makes his settlement, if in fact he has himself, in good faith, established his residence thereon with the bona fide purpose and intention of making his home on it, is erroneous, as on the weight of evidence.

2. That an application to purchase school land as an actual settler was sworn to and mailed while applicant was on his way to, and

a few hours before he made settlement on, the land, is immaterial, he being a settler on it when the application was filed in the land office, from which time it becomes effectual.

3. Under Sayles' Rev. St. art. 1331, requiring the court when it submits a case to the jury on special issues to submit all the issues made by the pleading, refusal in trespass to try title, defendant claiming under an application to purchase the land as an actual settler, to submit the issue, asked by plaintiff, whether defendant made a tender to the state treasurer of the first payment under his application, this being a material part of the defense, is error.

Appeal from district court, Stonewall county; P. D. Sanders, Judge.

Action by B. F. Allen against Dade Frost. Judgment for defendant. Plaintiff appeals. Reversed.

Woodruff & Hughes, for appellant. H. G. McConnell, for appellee.

SPEER, J. B. F. Allen, the appellant, filed this suit originally in the district court of Stonewall county, in action of trespass to try title, to recover from Dade Frost, the appellee, section No. 342, in block D, situated in said county, and located by virtue of certificate No. 29/2153, issued to the Houston & Texas Central Railway Company. Appellant applied to purchase the land in controversy, which is state school land, as additional land, making his application therefor on the 20th day of January, 1900, which application was filed in the general land office of the state on the 26th day of the same month. On March 20th following the land was duly awarded him by the commissioner of the general land office, and all payments of principal and interest due the state under said application and award have been made. The appellee defended by pleading the general issue and plea of not guilty. He made an application to purchase the land in controversy as an actual settler on November 7, 1899, and the same was filed in the general land office on the 11th day of said month. The trial was had before a jury upon special issues submitted by the court, and a judgment entered for the appellee, Frost; hence this appeal.

Appellant's first complaint is of the following definition of "actual settler" given by the court in its charge to the jury, viz.: "An actual settler on school land is one who has in good faith established his residence thereon for the purpose of making his home thereon. It is not necessary for him to have his wife or family on the land at the very time he makes such settlement, if in fact he has himself, in good faith, established his residence upon the land, with the bona fide purpose and intention of making his home upon the land." We are of opinion the charge is subject to the criticism that it is upon the weight of the evi dence, and therefore erroneous. As an abstract proposition of law it is doubtless cor rect, but, in determining the all important question whether or not the appellee had in