In this case error was assigned because the trial court refused "to give to the jury the defendant's demurrer offered and asked by defendant at the close of the evidence offered by plaintiff," and because the court refused a like instruction at the close of all the evidence.
This assignment is repeated under Point "III" in appellant's brief, and the following is added: "It was error for the court to submit this case to the jury, under the case made by the undisputed evidence produced by plaintiff. The plaintiff wholly failed to prove the allegations *Page 24 of the petition." In support of this proposition seventeen decisions of this court and the courts of appeal are cited.
On this Point "III" appellant printed an argument of twenty pages in which it insists the demurrer should have been sustained on "the evidence which was put in by plaintiff and not denied by defendant." In this argument it is emphatically stated that "we are now considering this case under the evidence in the case as made by plaintiff himself; and upon this rock we found our contention." The argument deals only with the evidence concerning the circumstances of the injury and is directed solely to a discussion of those circumstances. In it are quoted excerpts from ten of the decisions cited under "III" of the Points and Authorities. These quotations have no relevancy to the question whether appellant's abstract shows the Railways Company assumed the liabilities of the receivers. The matter was not controverted at the trial. Among the seventeen decisions cited under "III," in a very modest position indeed, near the last, are two decisions now said to bear upon the failure of the evidence in the abstract to show the substitution of the Railways Company for the receivers. The first appearance of this contention, in the open, was in the oral argument in this court.
Rule 13 of this court requires abstracts to "set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision." When this abstract and brief were served upon respondent's counsel it is clear they were not fairly open to the construction that appellant was standing upon one rock and intending to wreck respondent's craft upon another so carefully submerged by words as was this one, first brought to the surface in the oral argument. In the circumstances respondent had the right to assume that the argument made under Point III disclosed appellant's whole position thereunder. He was under no obligation to bring here parts of the record which were not *Page 25 relevant to any question appellant presented. I am of the opinion that appellant should not be permitted to secure a reversal of this judgment on this point, whether or not the additional abstract is permitted to be filed. He is in no position to raise the question now brought forward. I concur.