
    GULF, C. & S. F. RY. CO. v. TIPS et al.
    (No. 5574.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1916.)
    Appeal and Eeeoe <&wkey;750—Questions Re-
    viewable—Assignments of Eeeoe.
    An assignment of error complaining of the refusal to direct a verdict for defendant, a carrier, based on the fact that the shipment in question did not originate at S., as alleged in the petition, but at A., must be limited to the question of variance between the pleading and proof, and cannot be considered as an objection to the court’s charge directing a verdict for plaintiff.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 750.]
    Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge.
    Action by Walter Tips, prosecuted after his death by Mary J. Tips and others, his heirs, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    E. H. Cavin, Terry, Cavin & Mills, and A. H. Culwell, all of Galveston, for appellant. Allen & Hart and Frederick C. Von Rosenberg, both of Austin, for appellees.
   KEY, C. J.

Walter Tips brought this suit against appellant to recover the value of an engine and certain other property, which he alleged the defendant had contracted to transport from San Angelo and deliver to him at Austin, Tex.; and from a judgment in favor of the plaintiff, the defendant has appealed. Walter Tips died, and his heirs were substituted as plaintiffs.

The court instructed a verdict for the plaintiffs, and, as appellant has assigned no error upon that charge, it must be held to have assented thereto, and the case must be disposed of upon the assumption that the charge referred to was properly given. It is true that the appellant requested the court to instruct a verdict in its favor, and error is assigned upon the failure to do so. The only question presented by that assignment is tlie contention that the shipment in question did not originate at -San Angelo, as alleged in the plaintiff’s petition, but at Austin, Tes.; and if it should be held that the assignment complaining of the refusal to give that charge constitutes an objection to the court’s charge directing a verdict for the plaintiff, such objection would be limited to the question of variance between the pleading and proof. We have considered that question and decide it against appellant.

The only other questions presented for decision relate to certain rulings in reference to the admissibility of testimony. Those questions have been duly considered and are decided against appellant. The record shows that appellant’s counsel admitted in open court that appellees were entitled to recover unless its sale of the property for freight charges was legal, and we agree with the trial court that the sale referred to was not legal.

No reversible error has been shown, and the judgment is affirmed.

Affirmed. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     