court, therefore, was in error in rendering against both the county and the Ft. Worth. judgment on the verdict finding appellee Improvement District No. 1, a private corguilty of contributory negligence. He should poration that had constructed a levee near either have set the verdict aside or rendered the property to confine the water in the river a judgment for appellant. Owing to the in- during its overflow. Upon the trial of that consistency of the verdict, we believe a new suit the jury in answer to special issues trial should have been awarded. found that prior to the construction of the bridge and levee the market value of plaintiff's property was $4,000, and that by reason of those obstructions the market value of the property was depreciated $2,500, one half of which depreciation was caused by the erection of the bridge and the other half by the levee, thus leaving the market value of the lot at the time of the trial of the former suit to be $1,500. There was no appeal from that judgment, and the $2,500 damages allowed plaintiff therein was collected, and, with $1,350 of the proceeds, plaintiff raised the house on the lot to a level with the bridge. [13] As to whether the battering-ram as constructed in this case was an instrumentality such as required special skill in its operation by the helper guiding it, we have concluded not to discuss. We will only refer to the rule generally stated that, where skill or special fitness is required, the duty appears to be on the master to use ordinary care to furnish a competent helper. This is, we believe under the record in this case, a question for the jury. We shall not discuss the assignments further, but believe what has been said disposes of most of them. In the present suit, which was instituted This case will be reversed and remanded. against Tarrant county, Medley sought a MEDLEY v. BROWN, County Judge, et al. (Court of Civil Appeals of Texas. Ft. Worth. JUDGMENT 590(2)-RES JUDICATA-CHANG- Recovery of damages for obstructing access to property by erection of a bridge in front of it at a higher grade bars plaintiff, after he has raised his house to the bridge level, from recovering damages for the obstruction of access to his premises by the bridge balustrade, a permanent part of the bridge and not changed since the first action, and also from claiming a mandatory injunction requiring the tearing down of the bridge balustrade in front of his property; for the test of whether the same evidence would support both actions does not apply, plaintiff himself having caused the changed conditions. Appeal from District Court, Tarrant Coun ty; Ben M. Terrill, Judge. Action by H. C. Medley against Jesse Brown, County Judge, and others. From judgment for defendants, plaintiff appeals. Affirmed. Marvin H. Brown and Ocie Speer, both of Ft. Worth, for appellant. Marshall Spoonts and J. E. Mercer, both of Ft. Worth, for appellees. mandatory injunction to compel the commissioners' court to cut the balustrade of the bridge immediately in front of his lot, so as to allow him access to his house from the bridge, and in the second count of his petition he prayed in the alternative for a judgment against the county in the sum of $10,000 as damages to his property by reason of such obstruction of access to his property; and from a judgment in favor of the county, he has prosecuted this appeal. The former judgment was pleaded by the county as res adjudicata, and that plea was sustained by the trial court. The petition and judgment in the former Isuit were introduced in evidence and appear in the statement of facts. In that petition it was alleged that prior to the erection of the bridge plaintiffs' property was improved with buildings, and was valuable both as business and residence property, having a rental yalue of $75 per month, and a market value of $10,000; that its value was wholly destroyed by reason of the fact that access thereto was plaintiff prayed for a judgment for the value wholly cut off by reason of the bridge, and of his property, or, in the alternative, for the deterioration in its value by reason of the bridge and levee. And in all other respects the allegations with reference to the injury to plaintiff's property by reason of his deprivation of access thereto from the highway DUNKLIN, J. H. C. Medley is the owner was substantially the same in the petitions of a lot of land abutting on the Arlington in the former suit and in the present suit, Heights boulevard in the city of Ft. Worth save and except that in the petition in the in close proximity to Trinity river, and at a present suit the raising of the house upon point where Tarrant county has constructed the lot to a level with the bridge is alleged a bridge across the river. At the point in connection with further allegations that where the lot abuts on the highway the by cutting the balustrade of the bridge in bridge is 20 feet above the level of the front of his property, and thus giving him ground. Prior to the institution of the pres- ingress and egress to and from the building ent suit he instituted a former suit against situated on the lot, the property could be the county for damages for obstructing in- utilized advantageously to plaintiff; while gress to and egress from the lot by means of in the former suit it was alleged that by reathe bridge. The former suit was instituted son of the bridge the property could not be used for any purpose whatsoever. The property fronted south on the bridge, and in the petition in the former suit it was alleged that a concrete wall constituting a part of the bridge was built from the ground at the southern boundary of his lot to a height of 25 feet. This wall extended above the floor of the bridge, and that portion of it above the floor is what is known as the balustrade, which extended the entire length of the bridge. We are unable to perceive any escape from the conclusion that the plea of res adjudicata was properly sustained. Grayson Co. Bank v. Wandelohr, 105 Tex. 226, 146 S. W. 1186; Hermann v. Allen, 103 Tex. 382, 128 S. W. 115; Nichols v. Dibrell, 61 Tex. 539; Hanrick v. Gurley, 93 Tex. 479 480, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Flippen v. Dixon, 83 Tex. 421.1 In Hermann v. Allen, supra, the following was said by Justice Williams: "The pleadings certainly put in issue (1) the right of the defendants therein to move the house, and (2) the right of Allen to recover damages caused by Herman's interference with that right. The judgment determined the first in his favor, saying nothing about the second. This was necessarily an adjudication that that which was given was all that he had shown himself to be entitled to. The necessary legal effect of the failure to award damages for which a claim was pending in the pleadings was a denial of the right to them. This does not mean that it appears the court actually made a decision upon the plea in reconvention. The record does not show whether that was done or not. The proposition is that the necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the cause when that judgment is pronounced, unless, indeed, the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged is the decision of the court that it is all the parties are entitled to. In determining the effect of a judgment it sometimes is important to inquire whether or not a particular question or issue was tried and decided in the cause in which the judgment was rendered. That is true when, although the cause of action is not the same in the second as that decided in the first action, it is claimed that a party to the second is estopped upon a question common to both which was decided in the first. Nichols v. Dibrell, 61 Tex. 541; Hanrick v. Gurley, 93 Tex. 480 [54 S. W. 347, 55 S. W. 119, 56 S. W. 330], and authorities cited. Such an inquiry is out of place where the cause of action is the same in the two causes and a final judgment on the merits has been rendered in the first." Appellant has cited many cases announcing the general rule to be that the test of res adjudicata is whether or not the same evidence would support both actions such as U. S. v. Haytian Republic, 154 U. S. 118, 14 Sup. Ct. 992, 38 L. Ed. 930; Water Co. v. Hutchinson, 160 Fed. 41, 90 C. C. A. 547, 19 L. R. A. (N. S.) 219; Hodge v. Shaw, 85 Iowa, 137, 52 N. W. 8, 39 Am. St. Rep. 290. Invoking that test, appellant insists that the plea is not applicable here, because when the former suit was tried the house upon his lot had not been elevated to a level with the bridge, and that as evidence of that fact was admissible in the present suit and not in the former suit, the causes of action are not the same. But the fact is that the bridge is a permanent improvement, and that plaintiff was allowed full damages to his property by reason of its erection. In that suit he was entitled to recover damages to his property for all uses for which it was adapted, and as he accepted the amount recovered by him therein, he is conclusively estopped from now claiming by another suit additional damages for the same obstruction, and also from claiming a mandatory injunction requiring the tearing down of the balustrade of the bridge in front of his property. S. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908, and cases there that plaintiff not only could recover damages for the obstruction in the present suit in addition to amount already received by him, but in the future could recover other damages for the obstruction of some other use to which he might desire to subject his property; and to allow him to do so, we think clearly would be contrary to the essential elements of the defense of res adjudicata. For the reason indicated, the judgment of the trial court will be affirmed. Affirmed. cited. To hold otherwise would be to say tended credit to an insolvent corporation on The petition of plaintiff which, having exfaith of statements made to commercial agencies, sought to recover against the directors, properly alleged that the dividends in bankruptcy amounted only to 19 per cent. of plaintiff's claim; such allegation being permissible as to the question of the insolvency, and affecting the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 18 S. W. 803, 29 Am. St. Rep. 653. 6. APPEAL AND ERROR ASSIGNMENTS OF ERROor. 730(1)-REVIEW Where neither in the assignment of error nor in the proposition thereunder was any specific reason or ground given why error was committed, in the refusal of a requested instruction such assignment need not be considered. 7. TRIAL 260(1)—INSTRUCTIONS-REFUSAL -REPETITION. The refusal of requests covered by the charge given is not error. 3. CORPORATIONS 335-ACTIONS-DEFENSES. In an action against corporate directors by plaintiff which extended credit to the corporation, though insolvent, relying on statements issued to mercantile agencies, defendants cannot escape liability because the identical statements rendered to the commercial agencies were not transmitted; it appearing that the material contents were made known to plaintiff and that it extended credit in reliance thereon. 9. TRIAL 252(2) — INSTRUCTION-CONFLICT WITH TESTIMONY. The refusal of a request based on a theory in conflict with the uncontradicted testimony is proper. 10. CORPORATIONS 361-FRAUD OF DIRECTORS - ACTIONS-EVIDENCE-ADMISSIBILITY. In an action against corporate directors by plaintiff which extended credit to the corporation on the faith of false statements given to commercial agencies, evidence as to the dividends paid on subsequent bankruptcy of the corporation was admissible. Appeal from District Court, Comanche County; J. H. Arnold, Judge. Action by the Wichita Mill & Elevator Company against W. F. Durham and others. From a judgment for plaintiff, defendants appeal. Affirmed. Smith & Palmer and H. N. Goodson, all of Comanche, for appellants. Martin, Bullington, Boone & Humphrey, of Wichita Falls, and Callaway & Callaway, of Comanche, for appellee. BUCK, J. This suit was instituted by appellee, a corporation, against appellants, alleged to be the directors of Martin Company, a corporation of Comanche, Tex. Plaintiff alleged that during the years 1913 and 1914 it was a wholesale dealer in the milling and grain business in Wichita Falls, Tex., and the Martin Company was a general mercantile corporation, and a customer of the plaintiff; that during the said time the defendants, as directors of said Martin Company, held said corporation out to the plaintiff and to the public generally, and to R. G. Dun & Co. and Bradstreet & Co., the agents of the plaintiff, as of undoubted financial ability and deserving credit, which was done for the purpose of deceiving the plaintiff and other merchants from whom the Martin Company was purchasing or expecting to purchase merchandise and obtain credit; that during said years said defendants, on behalf of Martin Company, caused and permitted to be furnished written statements of its financial condition which purported to show its true financial condition to Bradstreet & Co. and R. G. Dun & Co. for publication in their printed reports, believing that the plaintiff would receive, read, and rely upon said statements; that one of said statements was furnished on June 18, 1913, and the other on May 14, 1914; that, relying upon said statements and induced thereby, the plaintiff sold and delivered to the Martin Company merchandise amounting to $4,787.61, exclusive of interest. It was alleged that said financial statements and representations so furnished were false and untrue, and that during said time said corporation was insolvent; by reason of said premises, the plaintiff was misled to its damage in the sum of $3,027.55. Defendants answered by way of general demurrer, special exceptions, general denial, and specific de fensive answers. The nature of the special exceptions urged and the special denials pleaded will be noticed further in the course of this opinion. From a judgment based on a jury verdict in favor of plaintiff against defendants W. F. Durham, W. R. Slider, N. E. Palmer, and W. G. Dingus in the amount sued for, defendants have appealed. The record in this case is rather volumi nous, and appellants present in their brief some 66 assignments of error; there being 10 separate assignments under the caption "Fifty-Third Assignment of Error." It would be an unnecessary labor, and an extension of the opinion beyond its proper limits, to attempt to discuss each separate assignment, but we have examined every assignment presented, and have found that in several instances many of them present but a single question. Consequently, in such cases such assignments will be grouped in our discussion. Appellee objects to the consideration of practically every assignment presented, urging that such assignments in their form and manner of briefing are not in compliance with the rules provided by our Supreme Court for our guidance, and we find that in many instances the criticisms made and objections urged by appellee to the assignments are well founded, but we have concluded, except as may hereinafter be noted, to give said assignments consideration. But we think appellant's first assignment, directed to the action of the trial court in overruling defendant's general demurrer, is too general to warrant consideration. Neither in the assignment nor in the proposition thereunder is any reason given why the court erred in its and purpose of defendants in furnishing the action. [1] By assignments 2 to 8, inclusive, it is urged the court erred in overruling several exceptions leveled at plaintiff's petition, but we do not find error shown. It was not necessary for the plaintiff to allege that the Martin Company or the defendants were subscribers to the mercantile agencies to which were furnished the financial statements as to said Martin Company's standing, or to allege that said mercantile companies were them- | selves deceived or misled by reason of said statements or representations. It was alleged these mercantile companies were the agents of plaintiff for the purpose of collecting and securing information as to the financial standing of plaintiff's actual or prospective customers, and if defendants, knowing this, furnished false and misleading reports or statements as to the Martin Company's financial standing, and such reports were calculated to and did mislead the plaintiff, relying thereon, it would be immaterial whether the mercantile companies themselves were deceived thereby. [2] Neither do we think there is any error in overruling the exception directed to that part of plaintiff's petition in which it was alleged that the defendants caused to be published said financial statements for the purpose of deceiving the plaintiff and other merchants from whom it was purchasing and expecting to purchase merchandise during said years, and that the statements were carelessly and negligently allowed to be furnished. The very basis of the liability of directors of a corporation in a case of this kind is the fraud, arising from actual intent or negligence, perpetrated in the issuance of the financial statement. Ordinarily, a director of a corporation is not responsible individually for the corporate acts. But such directors may be personally liable for damages sustained by reason of the insolvency of the corporation when a person is induced by false representation, either knowingly made, or when in the exercise of ordinary care the directors would have and should have known said representations to be false, to rely on said representations in his dealings with said corporation and suffers loss by reason thereof. Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592; Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359; Slater Trust Co. v. Coal Co. (C. C.) 166 Fed. 171. report of its financial condition, and also as an admission by plaintiff of payment. We think what we have heretofore said disposes of the first eight assignments, and they are overruled. [4, 5] In the ninth assignment complaint is made of the refusal of the court to strike out and remove from the record testimony of plaintiff's witnesses Welborn Patterson and Mrs. W. J. Howard. These witnesses, Mrs. Howard being in the employ of R. G. Dun & Co. and Patterson of Bradstreet & Co., testified at length concerning the methods used by said mercantile companies in securing desired information for their subscribers, and especially for the plaintiff, and of the particular reports from the Martin Company, and of the forwarding of said reports to W. M. Priddy, credit man of the plaintiff. least much of the evidence given by these witnesses was admissible, and, in the absence of a specific objection to certain parts of the statement claimed to be inadmissible, the motion was properly overruled. It seems the main contention made by appellants is that Priddy did not rely on the reports furnished by the Martin Company, but rather on the reports made by the mercantile companies. Priddy testified in part: * * * At I "To the best of my knowledge and belief the statement we received from R. G. Dun & Co. lington, attorney for plaintiff, says that he lost was an exact copy of this. * Mr. Bulthis copy; that is the original copy that R. G. Dun & Co. sent to the plaintiffs. * received this statement from R. G. Dun & Co. about the 1st of June, 1914, and read it carefully and believed it was correct and relied on it as being correct, and continued soliciting the business from the Martin Company based on that representation or statement rendered." Priddy further testified: "I believe this to be an exact copy of the statement we received from Bradstreet & Co. that I afterwards turned over to our attorney." Mrs. Howard testified: "On_application of the Wichita Mill & Elevator Company we sent a copy of the report received by us from the Martin Company to said Wichita Mill & Elevator Company." Patterson testified: "In addition to the said publication [made by Bradstreet] there was forwarded to the Wichita Mill & Elevator Company at Wichita Falls, Tex., a copy of the statement given the Bradstreet & Co. by the said Martin Company in June, 1913, in which was the said statement of the said Martin Company purporting to give its said financial condition.' It was not essential to show that plaintiff relied exclusively on the information fur [3] Nor are we prepared to agree with the contention of appellants, as urged in their nished by the Martin Company in order to sixth assignment, that the allegations con- hold the defendants liable. tained in plaintiff's petition that on or about made by the Martin Company was false and If the report the 9th day of January, 1915, the said Mar- misleading, and the plaintiff relied theretin Company was adjudicated a bankrupt, etc., and business was suspended and its as-tended the credit it did except for such reon, even in part, and would not have exsets, when sold, only paid to the plaintiff 19 per cent. of the indebtedness due it at the time. We think this allegation was permissible as affecting the question of Martin Company's solvency, as affecting the intention liance, defendants would be liable. R. C. L. § 112, it is said: In 12 "It is not necessary that the misrepresentation should be the sole cause or inducement of the contract or transaction in question, con tributing to the result, but it is enough that it [7] We believe the instructions contained in the special charge requested by defend ants, to the refusal of which the eleventh assignment of error is directed, are sufficiently covered by the court's main charge. Hence we overrule appellants' assignments, ninth to eleventh, inclusive, and also the twelfth, which complains of the refusal of the trial court to give a special charge instructing the jury in effect that before the plaintiff could recover it must be shown that the plaintiff relied solely and alone upon the statement furnished by the Martin Company. Buchanan v. Burnett et al., supra. This ruling applies also to the thirteenth assignment, which complains of the refusal of a special charge to the same gen eral effect as that set out in the twelfth assignment. ments with a knowledge or intention that they would be used and relied on by plaintiff in furnishing goods or extending credit to defendants' company, and the material information contained in such statement or statements was in fact furnished plaintiff, and it relied thereon to its detriment, then it would be immaterial whether the statement furnished by the Martin Company was in its entirety, either as original or copy, forwarded by the mercantile agencies to the plaintiff. We think what we have said disposed of the fourteenth and fifteenth assignments. We think the special charge requested by defendant, the refusal of which is urged as error in the sixteenth assignment, was on the weight of the evidence and should not have been given. The seventeenth assignment is too vague and uncertain to warrant consideration. [9] The eighteenth assignment complains of the refusal of a special charge instructing the jury that, unless they found that Hill Huddleston, bookkeeper and secretary of the Martin Company, was directed and authorizBradstreet & Co. the information contained ed by the defendants to make and transmit to in the statement furnished in 1913, the jury should find against the plaintiff as to all the items alleged to have been furnished by plaintiff in reliance upon said statement. We think the evidence is uncontradicted as to the authority of Huddleston to furnish these statements. Huddleston testified that in sending out these statements he acted under the direction and authority of the defendants and this testimony was uncontroverted. None of the defendants testified in the case. In his main charge the court instructed the jury that before they could find against the defendants they must find and believe the financial statements of 1913 and 1914 were made or caused to be made by the de fendants. It is true that, if the evidence were conflicting upon the question of the authority under which and the capacity in which Huddleston acted in making these statements, the defendants would probably be entitled to an affirmative charge, but we do not construe the evidence as presenting an issue of fact for the jury as to the authority of Huddleston in this respect. [8] In the fourteenth assignment objection is made to the refusal of a special charge to the effect that it was the duty of the mercantile agencies to furnish to plaintiff a correct copy and report of all statements received by it from the defendants, and if the jury found that said mercantile agencies failed to send to plaintiff such statement or statements then the defendants would not be liable. We do not think such charge should have been given. Even if the evidence upon this point makes it a question for the jury whether the iden- By another group of assignments, appeltical statements rendered to the commercial lants complain of the failure of the court to agencies, or exact copies thereof, were for- give certain tendered special charges to the warded by said commercial agencies to the effect that if plaintiff had other sources of plaintiff, yet if the material contents there- information as to the financial condition of were furnished by such agencies to plain- of the Martin Company during these two tiff, and these portions contained material years, and if they should find it was the duty and false representations as to the Martin of the traveling salesman of plaintiff, and Company's solvency, and plaintiff relied others, to inquire into the financial condithereon in extending further credit, defendants would be liable. If defendants caused to be furnished a financial statement containing false representations as to ma tion of its customers and report thereon, and that through these other sources of information knowledge was brought to the plaintiff, or its agents, as to the failing or |