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chair in the car so that he would be more likely to hear his station called, and that the conductor did not take up his ticket until after the train had passed Clarendon, was negative in character, and from it the jury could not have legally inferred that the Station was not called by the conductor before the train arrived at Clarendon. The burden being on the plaintiff, he could not discharge it by negative testimony of this character. Moreover, according to the testimony of the conductor, he called the station aloud in the car in which the plaintiff was riding before the train reached Clarendon. The train stopped at Clarendon long enough for the passengers in the coaches to leave them, and several passengers on the train debarked from it. His testimony was reasonable and consistent in itself. The negative testimony of the plaintiff did not tend in any wise to contradict it. Therefore the judgment will be affirmed.

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“This contract entered into this 7th day of February, 1917, by and between J. C. Vaughan and Max Hulse, of Fayetteville, Arkansas, parties of the first part, and Frank Barr, of Fayetteville, Arkansas, party of the second part, witnesseth :

“1. That for and in consideration of the sums of money hereinafter provided to be paid by the party of the second part to parties of the first part, J. C. Vaughan and Max Hulse, parties of the first part mutually agree and covenant with the party of the second part that they will close down their picture show now being operated in the Ozark Theater and keep, same closed so long as the party of the second. part performs the conditions of this contract; that they will not be interested in, nor in any way connected with any picture, show or any other entertainment that is given in the Ozark Opera House or Skydome Airdome during the life of this contract; that on the nights that the Ozark Theater or Skydome Airdome is opened for entertainments of any character

the second part is released from the obligation assumed by him to pay the parties of the first part any sum or sums of money for such nights as the said Ozark Opera House or Skydome Airdome is opened. “2. That during any week that the opera house or Skydome Airdome is opened three nights or more for picture shows or vaudeville, the party of the second part will be released from the payment of any sum of money to parties of the first part for that particular week. “The party of the second part, Frank Barr, covenants and agrees that for every Week night that the Ozark Opera House and Skydome Airdome is kept closed, except as otherwise provided herein, he will pay to the parties of the first part the sum of five ($5) dollars per night; said sum or sums of money to be paid weekly at the end of each week to parties of the first part at such time and place as may be agreed upon by the parties to this contract. “It is further agreed by the parties hereto that this contract shall be in full force and effect from Monday, February 12, 1917, and to continue in force until and including the 28th day of April, 1917. “The parties to this contract further mutually agree and covenant that in the event that any of them should in any way breach this contract or fail to perform the conditions hereof, then such party so violating or breaching the provisions thereof shall owe and be indebted to the other party in the sum of one hundred ($100) dollars to be collected as liquidated damageS. J. C. Vaughan, “Max Hulse, “Parties of the First Part. “Frank Barr, “Party of the Second Part. A. G. Flowers.”

There appears to be no Substantial conflict in the testimony, and it may be summarized as follows: Vaughan and Hulse were not the owners of the opera house or Skydome AirdOme, but had a lease thereon which expired on the 28th day of April, and they were required under their lease Contract to pay $10 for each day's use of the leased property. The contract set out is dated the 7th day of February, and Barr admits that notwithstanding its execution On that day, it was not to become effective as a contract, unless and until Vaughan and Hulse Secured their release from their contract of lease With the management of the Opera house COmpany. This release was Obtained on the 9th day of February, and thereafter Vaughan and Hulse discontinued all use of either the Opera house or the airdome. It is also undisputed that Barr made an additional COntract With the management of the Opera house and airdome by which it, too, agreed to put On no shows until after the 28th day of April, and there was no violation of that contract, so that Barr. had no competition in the show business from either |V' and Hulse or from the opera house management during the period of time covered by the contract set out above.

Having reached the conclusion that there are no questions of fact for the jury, it is necessary only to construe this contract as applied to the facts which we have stated.

“WitneSS:

during the life of this contract, that party of J There was a verdict and judgment in favor

Q-oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Vaughan and Hulse for $430, which includes $5 for each day during which the contract continued, exclusive of SundayS, and the sum of $100 named in the contract. Appellant earnestly insists that the parties by their agreement have stipulated for liquidated damages, and have named $100 as measuring that damage; and the correctness of this contention presents the real question in the case. We think it apparent that the contract contemplated that Vaughan and Hulse might keep their part of the contract, While the management Of the Opera house and airdome company might give ShOWS either at the opera house or the airdome, and against this contingency it was provided that if either Was opened three nights Or more in any week, nothing should be paid Vaughan and Hulse for that week. In other Words, Barr was attempting for the time covered by the contract to free himself from competition, and was to pay the stipulated sum Only during the period of time when he had this immunity. When the contract is read as a whole, we do not think that this last clause was intended to deprive Vaughan and Hulse of the sum which would be due them when they had finally and fully performed their part of the contract. In that event there could be no necessity for any stipulation in regard to liquidated damages, because the contract plainly specified that Vaughan and Hulse should be paid $5 for each night during which the contract was performed, and no other damage could accrue. It was not proper, therefore, to allow Vaughan and Hulse the $5 for each night and the $100 in addition, and error was committed in entering up judgment therefor. The judgment of the court below will therefore be modified, and it will be reduced to the sum of $330, and for that sum affirmed.

(136 Ark. 520) HUNTER et al. v. MULLINS. (No. 339.)

May 6, 1918.)

1. DAMAGEs &130(1)–PERSoNAL INJURYEXCESSIVE DAMAGES. Verdict of $666 in favor of passenger thrown to the floor of a car, confined to his room for 30 days, suffering great pain and inconvenience for 8 months, whose physician testified that it was impossible to say whether the injuries would be permanent or not, but said that there might be complete recovery within 5 or 6 months, was not excessive. 2. APPEAL AND ERROR Q->928(1)-REVIEWPRESUMPTION-INSTRUCTIONS. Ruling of the court on instructions given or

(Supreme Court of Arkansas.

tions are abstracted, since in the absence of such abstract the court, must assume that the issues were correctly submitted to the jury. 3. CARRIERS @->3.20(19), 347(6)–PASSENGERSINJURIES TO PASSENGERS - QUESTIONS FOR

JURY. - Evidence held to , warrant, submission to jury of the issues of the carrier's negligence in

suddenly bumping engine against string of cars, throwing passenger against a seat, and the Contributory negligence of the passenger. 4. EvIDENCE 3:571(1)—ExPERT TESTIMONYPHYSICIANS. Where physician attending injured passenger testified to the nature of the injuries, his whole testimony could not be excluded merely because he could not give an opinion as to the permanency of the injury.

5. APPEAL AND ERROR GR499 (1)—FORM OF JUDGMENT—RECORD-EXCEPTIONS. In the absence of record showing that objection was made to the form of the judgment, £ 'signed thereto on appeal will not be conS1Clelled.

Appeal from Circuit Court, Columbia County; Chas. W. Smith, Judge.

Action by J. E. Mullins against Geo. W. Hunter, as receiver of the Louisiana & NorthWestern Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Stevens & Stevens, of Magnolia, for appellants.

McCULLOCH, C. J. This is an action instituted by the plaintiff, Mullins, to recover damages for injuries received while a pasSenger On a railroad train. The action is against the receiver Of the Louisiana & Northwestern Railroad, who was at the time of plaintiff's injury operating the road under the Orders of the court which appointed him. The railroad extends from McNeal, Ark., to Natchitoches, La. Plaintiff took passage at HOmer, La., On a mixed train at night en route to his home at Magnolia, Ark., and his injuries were received at Haynesville, La., an intervening Station. The train Was Composed Of a long string of freight cars, and the passenger coach in which plaintiff and the other passengers were riding was attached to the end Of the train. When the train reached Haynesville the engine was detached, and went forward about a quarter of a mile to do some switching at a stave factory. After Switching around the stave factory about a half hour the engine was mOVed back to the train, and in doing SO it was thrown back against the train with such unusual force that the plaintiff was thrown down and severely injured. At the time the engine came back against the train the plaintiff had arisen from his seat, and Was Walking down the aisle toward. the Water COOler at the end of the train. He testified that the engine had been away from the train about 30 minutes, and that he did not hear any sound to indicate

refused cannot be reviewed unless the £ return of the engine until it struck the

rain at the front end of the string of cars with great Violence, Sufficient to throw him down. He testified that he was thrown against the end of a seat, his knee striking against the frame of the seat.

[1] The evidence tended to show that the plaintiff was confined to his room for 30 days,

and suffered great pain and inconvenience up to the time of the trial, about 8 months after the injury occurred. The physician who treated plaintiff's injuries testified concerning the Same, and Stated that there Was an injury to the ligaments surrounding the kneeCap, but that it was uncertain When there would be a complete cure, or whether the injury Would be permanent. The physician declined to give an opinion whether the injury was temporary or permanent, but said that there might be complete recovery in 5 or 6 months from the date of the trial, or that there might not be a complete recovery at all. The trial resulted in a Verdict in plaintiff’s favor, and the jury assessed the damages in the sum of $666, which was not, under the evidence, excessive. [2, 3] The instructions given and refused are not abstracted; therefore the rulings of the court thereon are not properly before us for review. We must assume that the issues were correctly submitted to the jury. The evidence Was Sufficient to Warrant a SubmisSiOn to the jury of the issues concerning negligence of "the defendant and contributory negligence of the plaintiff. [4] It is contended that the court erred in refusing to exclude the Whole of the testi

mony of the physician, who was introduced as a Witness, because the Witness was unable to state whether or not the injury WaS permanent. We must assume, in the absence of any showing to the contrary, that the court did not submit to the jury the question of the permanency of plaintiff's injury, but there was testimony sufficient to show that the injury would continue for a time in the future. The testimony of the physician tended to show such an injury, and other important testimony Was given by that Witness concerning the character and extent of the injury. It would not have been proper to exclude the Whole of the testimony of the Witness merely because he was unable to give an opinion as to the extent or permanency of the injury.

[5] It is als0 contended that the COurt erred in declaring the judgment in plaintiff's favor a lien On the roadbed Of the COmpany in this State, the cause of action being One which arose in another state. The record does not show that an objection Was made in any form to that feature Of the judgment. Therefore the record does not call for a review of the ruling of the court on that Subject.

Judgment affirmed.

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1. RELEASE &52—INADEQUACY OF CONSIDERATION-PLEADING. In an action by servant for injuries, averments that release was procured by defendant by means of representations of its claim agent and surgeon that plaintiff was not seriously injured and would be well in two months, that the representations were made by such claim agent and Surgeon as agent of defendant duly authorized to secure the release, that the representations were made for the purpose of inducing plaintiff to execute the release, and that plaintiff believed the representations and was thereby induced to sign and deliver the release, When in fact plaintiff was then suffering from permanent injuries from which he would continue to suffer, were sufficient, as against general "demurrer, to avoid release on ground of false representations. 2. PLEADING & 21 — CoNFLICTING ALLEGATIONS-INJURIES TO SERVANT—PETITION. Petition, which, in addition to claiming damages for injuries alleged to be permanent and wholly disabling plaintiff servant sought damages for breach of contract for plaintiff's continued employment as fireman, did not present inconsistencies and repugnancies fatal to any right of recovery for injuries, since the averment that plaintiff had been wholly disabled physically, and was unable to discharge the duties of any employment, negatives cause of action, attempted to be stated for breach of contract for continued employment. 3. APPEAL AND ERROR 3:1040(3)—HARMLESS ERROR-DEMURRER—REVERSAL. Where general demurrer, as well as special exceptions, were sustained to plaintiff's petition sufficient as against general demurrer, judgment will be reversed on plaintiff's appeal, though he # to complain of the sustaining of excep1OL1S.

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

Action by W. H. Reasoner against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, dismissing action, was affirmed by Court of Civil Appeals (152 S. W. 213), and plaintiff brings error. Reversed and remanded.

Odell & Johnson and S. C. Padelford, all of Cleburne, for plaintiff in error. Terry, Cavin & Mills, of Galveston, Lee & Lomax, of Ft. Worth, and Brown & Lockett, of Cleburne, for defendant in error.

GREENWOOD, J. The single question on this Writ of error is whether a general demurrer was properly sustained to the amended original petition, whereby plaintiff in errOr SOught to recoVer damages Of defendant in error.

The petition contained allegations which were sufficient to show that plaintiff in error had been damaged in the sum of $7,500 from personal injuries sustained by him, while in the employment of defendant in error, as the proximate result of its negligence. It is contended for defendant in error that, admitting these allegations to be true, no re

covery could be had: First, because the petition, having admitted the execution by plaintiff in error Of a release Of his claim for damages, averred no facts sufficient to avoid the release; and, second, because allegations Of the petition, seeking to show causes of action for damages arising from breach of a contract to continue plaintiff in error in the employment of the railway company and to furnish him a satisfactory service certificate, destroyed, through inconsistency and repugnancy, all the allegations Of permanent injury to plaintiff in error, without which he did not show any cause of action. The Court of Civil Appeals Sustained the latter contention. [1] It was averred in the petition that the release was procured by defendant in error by means of representations of its claim agent and surgeon that plaintiff in error was not seriously injured and would be well in two months, and that the representations were made by such claim agent and Surgeon as agents of defendant in error, duly authorized to secure the release; and it was also averred that the representations were made for the purpose of inducing plaintiff in error to execute the release, and that plaintiff in error, believed the representations, and Was thereby induced to Sign and deliver the release, when in fact plaintiff in error was then suffering from permanent injuries to brain and spine, besides other injuries, from which he would continue to Suffer all his life. These averments were sufficient, as against the general demurrer, to avoid the release. H. & T. C. R. CO. V. Brown, 69 S. W. 652; H. & T. C. R. Co. v. Bright, 156 S. W. 310. [2] In our opinion, the petition does not present the inconsistencies and repugnancies which were held fatal to any right of recovery thereon. It is true that, in addition to suing for damages claimed for injuries alleged to be permanent and incurable and arising from the negligence of the railway company, the plaintiff also set up a contract with the company, for his continued employment as a locomotive fireman and for a Certain kind of service certificate, and sought to recover damages for breach of such contract. No matter how necessary it may have been for plaintiff in error to have alleged his ability to perform the work of a fireman or to have done some other kind of railroad work, in Order to have stated any cause of action for damages for breach Of contract, it cannot be held that his petition contained Such allegations in the face of its express averments to the contrary. The presence of Such express averments negatives the causes of action, attempted to be stated for damages for refusal to COntinue to employ plaintiff in error or to give him a service certificate on which to seek other railroad employment. The defendant in error properly availed itSelf of these express allegations when it had the trial court to sustain a special exception to all that portion of the petition setting up plaintiff in error's wrongful discharge and his inability to secure employment with any railway company by reason Of the character of his service certificate “because it appears from the averments of the petition, if there is any truth whatsoever in the matters alleged, that ever since his claimed injury, plaintiff has been wholly disabled physically and incapable of performing any labor, and was a physical wreck, and therefore unable to discharge the duties of any employment.” In the face of contradictory facts, plainly stated, the law neither implied allegations into the petition to strengthen it against the special exceptions, nor to weaken it against the general demurrer. The allegations of the petition were therefore in no true Sense inconsistent Or repugnant.

[3] It is insisted that though the general demurrer, standing alone, ought to have been overruled, yet the judgment sustaining it should be affirmed, because no complaint is made by plaintiff in error of the action of the trial court in Sustaining 11 special exceptions to his petition.

The question here presented is not an open one in this state, this court having declared in Bigham Bros. v. Port Arthur Channel & Dock Co., 100 Tex. 202, 97 S. W. 689. 13 L. R. A. (N.S.) 656:

“Counsel for defendant in error insists that, although the court may have erred in sustaining the general demurrer, yet the judgment should not be reversed for that reason because some of the special exceptions were properly sustained and the plaintiffs did not amend their petition. The correct rule of practice is thus stated by Chief Justice Willie in the case of Everett V. Henry, 67 Texas, 405 [3 S. W. 566]: ‘‘We think the petition showed a good cause of action against Henry, and that his general demurrer should not have been Sustained. This renders it unimportant whether the special exceptions of the same defendant should have been sustained or overruled. If they were well taken, it would not have served any good purpose to amend the petition to meet the objections raised; for the court, having held the petition bad on general demurrer, would necessarily have dismissed it, though every special demurrer had been met and its force destroyed by a proper amendment.” That learned Chief Justice stated the same proposition even more tersely and forcibly in these words in Porter v. Burkett, 65.Tex., 383: ‘What does it avail a plaintiff to fortify his petition against a special exception, when the court. in effect, holds that if he does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.’”

In following the case of Bigham Bros. v. Port Arthur Channel & Dock Co., it is said in Brown v. Davis, 178 S. W. 845:

“In his brief, appellant presents as error only the action of the court in sustaining the general demurrer. The fact that he does not complain of the judgment sustaining the special excep

tions is no reason for refusing to reverse the judgment, if upon the whole a good cause of ac-tion is shown, even though there may be defects in the form of stating it.”

To eliminate the merely defective allegations, in passing on a general demurrer, would be, in effect, for the court to ignore, as to Such allegations, its undoubted duty to consider them as though properly pleaded. The allegations of the petition in this case, given every reasonable intendment in their favor, Stated a cause of action in behalf of plaintiff in error, and that is decisive of his right to have the general demurrer overruled. Warner v. Bailey, 7 Tex. 519; Erie Telegraph Co. v. Grimes, 32 Tex. 94, 17 S. W. 831; Blum V. Kusenberger, 158 S. W. 780.

The judgments of the district court and the Court of Civil Appeals are reversed, and the CauSe is remanded to the district Court.

HESS & SKINNER ENGINEERING CO. V. TURNEY et al. (No. 3047.)

(Supreme Court of Texas. May 22, 1918.)

1. APPEAL AND ERROR 3->722(1) — AsSIGNMENTS OF ERROR—MOTION FOR NEW TRIAL— “SHALL.” Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of the assignments, where a case is tried before the court without a jury, and appellant's motion for new trial is insufficient as an assignment of error, he is entitled upon his appeal to have considered formal assignments thereafter filed and duly incorporated in the record, and in form sufficient to challenge trial court's conclusion of law and fact; an exception having been duly reserved to judgment overruling motion for new trial, and the word “shall” as used in the statute not being mandatory. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Shall.]

2. APPEAL AND ERROR 3:265(1)—EXCEPTIONS —CONCLUSIONS OF LAW AND FACT. An exception having been duly reserved to judgment overruling motion for new trial, it was unnecessary that exceptions be also taken to conclusions of law and fact to secure their review under due assignments of error. 3. STATUTES @->205—CONSTRUCTION.—INTENT. The intent of a law is the essence thereof and is to be gained from the entire context. 4. STATUTES G->227—CONSTRUCTION.—‘‘MAY.” —‘‘SHALL.’’ The words “may” and “shall” are not infrequently used interchangeably, and are to be given that meaning which will best express the legislative intent. e [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, May.]

5. APPEAL AND ERROR 3:282 – CONDITION PRECEDENT—MOTION FOR NEW TRIAL. The trial having been before the court without a jury, appellant is entitled to appeal without filing motion for new trial.

6. COURTS @:85(3)-RULES FOLLOWING LANGUAGE OF STATUTE-CONSTRUCTION.

Where Supreme Court in preparing rule

101a (159 S. W. xi) adopted the language of a

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G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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