text:
    CONTINENTAL OIL CO. v. CITY OF WICHITA FALLS et al.
    No. 1027-5207.
    Commission of Appeals of Texas, Section B.
    Oct. 14, 1931.

      W. B. Hamilton, of Dallas, G. R. Pate, of Fort Worth, and W. E. Whightsel, of Wichita Falls, for plaintiff in error.
    AV. E. George and Weeks, Morrow, Francis & Hankerson, all of Wichita Falls, for defendants in error.
   RYAN, J.

The city of Wichita Falls, joined by certain property owning and taxpaying citizens of that city, brought this suit to restrain the Continental Oil Company of Texas from ■erecting and maintaining a service station for the retailing of oil and gas on a certain lot in said city situated in what is denominated a residence district within the meaning of an ordinance hereinafter to be noticed.

A trial was had before the court without a jury and judgment rendered that plaintiffs take nothing and that they'be enjoined from interfering in any manner with the defendant oil company in the erection and lawful operation of the oil and gas service station on the property in question.

Upon appeal that judgment was reversed and the cause remanded with instructions to the court below to issue the permanent writ of injunction as prayed for in the petition. 5 S.W.(2d) 561.

The complaint in the petition consists of two counts:

First. That, based upon Ordinance No. 419 of the City of Wichita Falls, adopted August 30, 1922, entitled “an ordinance regulating and controlling the granting of permits for the erection of certain buildings or the conduct of certain businesses within the residence districts of the City of Wichita Falls, defining a residence district, providing for a board of appeals or review, prescribing a penalty and declaring an emergency,” the Continental Oil Company was refused a permit to erect an oil and gas station and to conduct a retail oil and gas business on the property in question, after a full hearing and consideration, by the governing board of said city. Notwithstanding such refusal, said oil company intends to proceed and is actually proceeding with the erection and operation of said filling station, and unless restrained, will go forward with said project and operate said station contrary to said ordinance.
It was further averred that the refusal of the city’s governing body to issue said permit was proper under the circumstances of the case; that the location of said station is not within the city’s fire limits, but is within a residential district, as defined by the ordinance, and the location of said station and its operation there are injurious to the health, safety, morals, comfort, and welfare of inhabitants of said residence district in the enjoyment of their homes and the use of their property.
Second. That said location is situated “in the heart of a long established residential district, far removed from factories, wholesale and retail stores; that the individual plaintiffs along with numerous other citizens and property owners in Wichita Falls, a city with some sixty thousand people, have invested hundreds of thousands of dollars in homes in and around said site.”

It was further averred that at numerous times there is great traffic congestion at said place; that the business proposed to be conducted there will produce great and continuous noises necessarily incident, with the operation and moving of automobiles, stopping and starting at said station for the purpose of getting gasoline, oil, and the like; that said automobiles will necessarily have to cross the sidewalks dedicated to the use of the public, thus creating a public hazard to pedestrians using the sidewalks; that said filling station will produce obnoxious fumes, odors, vapors, and smoke, increase the fire risk to houses adjacent thereto, will disturb the peace and comfort of the surrounding home owners in said residential district, greatly reduce the value of their properties, and render the neighborhoocl undesirable for residential purposes, all of wbicb consequences and conditions will be continuous.

It was further averred that said business will be a nuisance, not only of a public nature in respect to traffic, fire hazards, and the like, hut more especially with respect to the individual plaintiffs and others similarly situated.

Opinion.

1. An exact copy of said ordinance is contained in the opinion of the Court of Civil Appeals [5 S.W.(2d) 561], and it is a copy (except in certain particulars, not important to note here) of Ordinance No. 742, adopted by the city of Dallas, on December 30, 1921, which has had consideration in the courts and held to be invalid.

The two ordinances (except as to such matters not pertinent here) are identical, and if the one' has been declared invalid, the other should meet the same fate.

Ordinance No. 742 of the City of Dallas superseded a former building ordinance of that city, the latter having been declared void and unconstitutional by the Supreme Court in Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, on November 2, 1921.

Judge Speer of this Section of the Commission of Appeals, in answering a certified question touching the present ordinance, held that it and the one involved in the Spann Case and the facts of the two cases are different in very substantial respects, and those differences will enter into the final consideration of the validity of the ordinance in the present case. City of Wichita Falls v. Continental Oil Company, 1 S.W.(2d) 596.

Treating, as we do, the Wichita Falls Ordinance No. 419 and the Dallas Ordinance No. 742 as substantially identical, Judge Speer’s comment on the differences between the one and that in the Spann Case necessarily applies to both, and their validity or invalidity are not dependent, altogether, on the holdings in the Spann Case. The ordinance in the latter is copied in the opinion of the Court of Civil Appeals (189 S. W. 999), and an inspection of it will show the differences referred to by Judge Speer.

Ordinance No. 742 came into review in City of Dallas v. Mitchell, 245 S. W. 944 (writ of error refused by the Supreme Court), because of the city’s refusal to issue permit for the erection, in a residence district, of a brick building to be divided into sections and used for grocery and drug stores.

The Dallas Court of Civil Appeals held unconstitutional that portion of the ordinance relative to the securing of permits for the erection of such business buildings in the residence sections of the city because the ordinance requires a hearing at which all persons residing within 300 feet of the proposed building shall be notified to appear and testify, thereby making the granting of the permit subject to the wishes, whims, and caprices of one’s neighbors, and beeause that character of business does not, in itself, endanger the health, safety, morals, or welfare of the community.

The court expressly stated that the remaining portions of the ordinance are not in any way involved or presented in that suit, and therefore no holding whatever is made as to their validity or invalidity.

A similar controversy, involving the right to erect a building in the city’s residence section, to be used to conduct either, a retail grocery store or a retail drug store, notwithstanding the ordinance, arose in City of Dallas v. Burns (Tex. Civ. App.) 250 S. W. 717 (writ of error refused), and it was again held that the city was without power to prohibit the erection of that class of building. The validity pf no other portion of the ordinance seems to have been involved and no holding was made thereon.

In Marshall v. City of Dallas (Tex. Civ. App.) 253 S. W. 887 (application for writ of error dismissed for want of jurisdiction), the trial court sustained general demurrer to the petition of twenty-nine resident citizens of the city of Dallas, seeking an injunction against the city and certain of its officials restraining the issuing of building permits for the erection of buildings to be used as retail stores and oil and gas filling stations in certain residential districts of the city, far removed from its business portion, and restraining ten defendant citizens from using the building permits which had therefore been granted them, and from the erection, or attempted erection, of the buildings authorized by said permits.

It appears from the opinion of the Court of Civil Appeals, affirming the judgment below, that the petition contained no allegation showing or tending to show that those to whom permits were granted, or the others to whom it was contemplated permits would be granted, would conduct a business in a manner to constitute it a nuisance, either public or private. The court held that the businesses proposed to be conducted in the buildings under such permits are lawful and the city was without power to refuse the permits in question, and that unless there be a public or private nuisance created in the use of property (although the lawful use of one’s property might be disagreéable to his neighbor and tended to diminish the value of the neighbor’s property), no recovery could be had. No reference is made in the opinion to ■Ordinance No. 742, and the validity or invalidity thereof seems not to have been considered ; the theory upon which the case was tried, was that the plaintiffs were entitled to relief against the use of property by defendants disagreeable to plaintiffs and which nse would diminish the value of plaintiff’s property; in other words, that one has no right to so use his property as to work a damage to a nearby owner, even though the •use made of the property be a lawful one.

That case is differentiated from the one now under consideration, in that here it is alleged that said businesses as conducted would constitute a nuisance, public and private, and the same is sufficient, in our ■opinion, to raise the issue.

In City of Dallas v. McElroy (Tex. Civ. App.) 254 S. W. 599, 601 (application for writ -of error dismissed for want of jurisdiction), permit to erect a business building in a residential district was refused, as stated in the -court’s opinion, because “the responsible -executive officers of the city of Dallas testified that the permit was declined on the ground that construction of the store building which appellee desired to erect in the location would depreciate the value of the homes -of people in that vicinity.” To quote further from the court’s opinion: “For the protection of highly developed residential sections against the encroachment of business buildings the city of Dallas enacted a ‘zoning-ordinance’ which constitutes the only basis for the exercise of authority by the city of Dallas and its officers in denying building permits for the erection of business structures -of a kind which are not nuisances, or which, in their very nature, may not become nuisances, in residential sections of the city. Again and again this ordinance has. been ■declared void and unenforceable by the courts of this state. It is now the settled law that the city of Dallas and its officers are not warranted in refusing a property owner a permit to build a business house in a residential district merely on the ground that other property owners in the vicinity of the proposed 'building object, or upon the ground that the ■officials of the city deem it unwise to permit the construction of such buildings in such 'districts.”

Ordinance No. 742 was again before the Court in City of Dallas v. Urbish (Tex. Civ. App.) 252 S. W. 258, 259 (application for writ of error dismissed for want of jurisdiction). In that case permit to erect a building in which to operate a motion picture show, in .a residence district, was- refused upon order of a body designated as the “Board of Appeals or Review of the Oity of Dallas,” a tribunal created under said ordinance to review the action of the mayor and board of commissioners in granting and refusing permits for the erection of business establishments in those portions of the city defined by the charter and ordinances as “residence districts.”

The Court of Civil Appeals held the ordinance ineffective, because it leaves to the -caprice and whim of the board of appeals or review or to the desires of nearby property owners whether or not property in any given locality may be used for a purpose not a nuisance per se, and which may be declared a public nuisance merely by reason of Its location in a residential section, although in such location, under certain circumstances, it might readily become a private nuisance, subject to the orders of a court of equity at the instance of a citizen living in close proximity to it. The court further held that, conceding picture shows are subject to restriction, control, and regulation by the municipal authorities and that a picture show cannot be established or maintained until a permit is applied for and received, yet such regulation and control must be reasonable and based upon a foundation which is substantial and not upon the various expressions of choice voiced by owners of property in close proximity, and because the ordinance authorizes such procedure, it amounts to a deprivation of property without due process of law, in violation of both the federal and state Constitutions.

And in Gulf Refining Co. v. City of Dallas, 10 S.W.(2d) 151 (application for -writ of error dismissed), the Court of Civil Appeals flatly held said Ordinance No. 742 to be unconstitutional and void.'

If Ordinance No. 742 is unconstitutional, it necessarily -follows that Ordinance No. 419 of the City of Wichita Falls, identical with it, is unconstitutional and void, and the trial court correctly so held.

We are passing upon the single question of that particular ordinance’s validity, and not upon any other.

What is here said has no reference to so-called “zoning statutes” and “zoning ordinances,” and we express no opinion thereon.

2. The unconstitutional ordinance therefore can impose no burden upon plaintiff in error or its property, and the case must be controlled by a determination of whether or not, under the rules of equity, the pursuit of its business should be enjoined under the ordinary law of nuisances.

The findings of the trial court, so far as pertinent are as follows:

“The erection of the proposed service station and the operation of the business which defendant will conduct thereon will not materially increase the hazards incident to the travel of automobiles by or through said station or across the streets, or around the corners in that vicinity except that there will be a small increase in hazards to pedestrians using the sidewalks adjacent to the filling station site since a necessary incident to the conduct of said business is the use of the sidewalks by customers availing themselves of the supplies offered for sale at said station.
“There will be no material obnoxious odors or fumes escaping from said proposed service station except such as commonly escape from all well operated service stations, and the same will be insignificant and will not be materially offensive to any person as far away as the nearest residence to said location.
“There will be no more noise at said station than is ordinarily incident to the stopping of automobiles and starting them again while their motors are still warm and where they start easily by reason of that fact, and such noise will not be sufficient to disturb the peace or comfort of persons at any of the surrounding residences, and such noise will not be any greater than the noise created by cars which are now passing said premises and stopping and starting again at the Boulevard stop signs now located on the East and West sides of Brook Avenue where it is crossed by Eleventh Street.
“There will be no inconvenience or discomfort to the persons residing in that vicinity by reason of the glare of automobile lights any more than already exists, by reason of the passing of cars and the turning of corners at that point at the present time.
“The defendant contemplates keeping the premises in the proposed service station in a clean, sanitary and healthful condition by washing the same with a chemical compound and with water after night; said chemical compound has no odor.
“The defendant contemplates the construction of a building which will not be unsightly ; and operating the same in a proper and orderly manner.
“There will be some extra hazard to the school children or other pedestrians who pass the premises on their way to school, and up and down the sidewalk, in the City in that vicinity, but such extra hazard is not material.
“The erection of the proposed service station on the lots described in plaintiffs petition will not increase the fire hazard in that vicinity and will not increase the rate of fire insurance on any building in that vicinity.
“The erection and operation of the proposed service station by the defendant, upon the location in question, will materially depreciate the market value of the residence property in the vicinity of said location including property owned by individual plaintiffs ; said depreciation will amount to at least 20% of the present market value of said property for residence purposes. In this connection however, the court finds that such station will not depreciate the value of said property for any purpose except for strictly residential purposes, and such depreciation in value caused by the location and operation of said service station at said point would be no more than would necessarily follow and be incident to the location of any other lawful business on said corner.
“The proposed location of defendant’s oil and gas service station is in the heart of a long established residential district, removed from factories, wholesale and retail stores; the record discloses the relative location of retail stores and filling stations with reference to the proposed site. The individual plaintiffs along with numerous other citizens and property owners in Wichita Falls, Texas, a city with a population of sixty thousand people, have invested hundreds of thousands ■of dollars in homes in and around the proposed filling station site.
“The erection of said station and the conduct of said business by the defendant will, as above stated, depreciate the value of this property for residence purposes at least 20% and the individual plaintiffs will sustain such a loss by the location and operation of said business at said point.
“The location and operation of said service station at said point will render said neighborhood less desirable for residential purposes, in that from aesthetic and other reasons as shown by the record these plaintiffs and a portion of the general public do not like to have business establishments located and conducted adjacent to or in the neighborhood of their homes.”

The trial court concluded that said Ordinance No. 419 of the City of Wichita Falls, in so far as it prohibits the defendant company from erecting and operating its proposed service station on the lots described in its petition, is unconstitutional and void; that said company, notwithstanding the action of the board of aldermen and board of appeals or review and building inspector in refusing a permit, has the right under the law to erect and operate its proposed service station; that such erection and operation will not constitute either a public or private nuisance; and that the mere fact that a lawful business at the location in question will depreciate the market value of the residence property for residence purposes in that vicinity is not a sufficient reason in law for denying the defendant company the use of its property for a lawful purpose.

The trial court’s findings of fact are in no way set aside by the Court of Civil Appeals for insufficiency of evidence to support them, and upon them no judgment other than one for the defendant could have been rendered. The “extra hazard to school children or other pedestrians who pass the premises” is found to be “not material.” The only injury found is a property injury due to depreciation in the vicinity for strictly residential purposes, but such depreciation is because of aesthetic considerations and is found to be “no more than would necessarily follow and be incident to the location of any other lawful business on said corner.”

The fact that owners have invested hundreds of thousands of dollars in homes around the proposed filling station site, and that the presence in the neighborhood of structures such as that contemplated by plaintiff in error renders less desirable, and even less valuable, their property for home purposes, does not constitute the proposed structure a nuisance so as to enjoin its construction as an unlawful interference with the rights of such home owners. The same result might follow from the construction of a number of cheap and undesirable residence cottages in the same neighborhood. The law cannot and does not undertake to deny the ordinary right of an owner to use his property as he pleases upon a consideration thus purely resthetic, even though it does result in pecuniary loss.

If there be no public or private nuisance created in the use of property, no recovery can be had for the diminution in value of riearby property by reason of the lawful ube of such property. The harm or damage is that which comes from the unlawful use of property and not from its lawful use. Marshall v. City of Dallas (Tex. Civ. App.) 253 & W. 887.

We recommend that the judgment of the Court of Civil Appeals be reversed and that of the district court be affirmed.

LEDDY, J„ not sitting.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: RYAN, J. CURETON, C. J.

license: Public Domain

text:
    HOUSTON, E. & W. T. RY. CO. v. SHERMAN et al.
    No. 1086-5314.
    Commission of Appeals of Texas, Section B.
    Oct. 14, 1931.

      Baker, Botts, Parker & Garwood, Stevens & Stevens, and Garrison & Watson, all of Houston, and P. J. & C. T. Duff, of Beaumont, for plaintiff in error.
    Smith, Combs & Matthews, of Liberty, for defendants in error.
   RYAN, J.

This suit was instituted in the district court of Liberty county by Mrs. Settie Sherman in her own right and as next friend for her seven minor children, against the railway company, to recover damages for the death of J. S. Sherman, her husband and the father of said minors, as the result of a collision between a Ford truck driven by the deceased and a passenger train operated by the railway company, at a public road crossing, occasioned by the alleged negligence of said company. *

The grounds of the company’s negligence relied on by plaintiffs may be succinctly stated as follows: (a) In failing to properly construct and maintain said crossing, as to make it safe and convenient for the use of the traveling public; (b) in failing to sound the whistle, as required by law, at least 80 rods before reaching said crossing; (c) in failing to ring the bell on said locomotive at least 80 rods before reaching the said grossing and continuing to ring the same until the engine had crossed over it; (d) in failing to exercise ordinary care and to use all the means within the power of the road’s operating agents, servants and employees, to avoid said collision and to save the life of the said J. S. Sherman after they saw him in a perilous position and realized his danger; (e) in failing to exercise ordinary care in approaching said crossing, in that the engineer, fireman, and other employees having charge of said passenger train failed to keep a proper lookout ahead for the deceased or for other persons on or about to go upon said crossing and to give the necessary warning signals of the approach of said passenger train; (f) in failing to reduce the speed of said train after they saw and realized the peril in which the said Sherman was situated, which they could easily have done in the exercise of ordinary care and saved his life.

Plaintiffs then allege the amount of their damages as $70,250, for which they sued.

The defendant railway company answered by general demurrer, general denial, that the road traveled by the deceased was not a public. road, but a private road constructed specially for the use and benefit of the owners of lands adjoining each side of the right of way, had never been dedicated to public use or recognized by the commissioner’s court of Liberty or San Jacinto counties, and was not such a road under the law as to require compliance with the statutory duties of blowing the whistle and ringing the bell eighty rods from the crossing, and by a special plea of contributory negligence.

By supplemental petition, plaintiffs below alleged that said road was a public road by prescription and use, that the crossing across its track was opened and maintained by the railway company for the use of the public, and the road has been for more than fifteen years, and is, freely used and traveled by the general public by and with the consent of the landowners across whose land said road extends.

At the close of the evidence, the railway company requested a peremptory instruction in its favor, which was denied, and the case was submitted to a jury upon special issues, in answer to which they found: (1) That the road upon which the crossing where the collision occurred was a public road at the time of the accident; (2) that said crossing was being used by the public with the knowledge and consent of the railway company prior to and at the time of the accident; (3) that the operators of the train did not blow the whistle at least eighty rods from said crossing, and sufficiently near to same, to be reasonably calculated to give warning to persons about to use it; (4) that such failure to blow the whistle was negligence; and (5) a proximate cause of the collision and death of J. S. Sherman; (6) that the operatives of the train did not, upon approaching the crossing in question, begin to ring the bell at least eighty rods from said crossing and continue to ring the same until the crossing was reached, (7) which was negligence, and (8) a proximate cause of Sherman’s death; (9) that the engineer, fireman, and other employees having charge of the train failed to keep a proper lookout for the deceased or other persons on or about to go upon said eross-mg, which (10) was negligence, and (11) a proximate cause of the collision and death of said Sherman; (12) that the engineer in charge of and operating the train in question failed to exercise ordinary care to use all the effective means within his power, consistent with the safety of the train and passengers, to avoid the collision after be discovered the deceased about to go upon the crossing and realized his danger, • which (13) was negligence, and (14) a proximate cause of the collision and death of the deceased.

In answer to special issue No. 15, the jury answered that the deceased, as he approached the crossing in question, did not fail to stop his truck a safe distance from said crossing, after he had entered upon the right of way, for the purpose of looking and listening for the approaching train. The effect of this answer was that the deceased did stop his truck a safe distance from the crossing, after he had entered upon the right of way, for the purpose of looking and listening for the ap-. proaching train.

The court then, conditioned upon the jury answering special issue No. 15 in the affirmative (instead of in the negative as they did answer it), submitted special issue No. 16 as follows: “Was the deceased in not stopping his car for the purpose of looking and listening for said train, after he entered upon the right of way, and as he approached the crossing, negligent as that term has been herein (in the charge) defined?” The jury answered: ‘Tío.”

The court then, conditioned upon the jury answering special issue No. 16 in the affirmative (instead of in the negative as they did answer it), submitted special issue No. 17, as follows: “Was such negligence on the part of the deceased in failing to stop his car, after he entered upon the right of way, for the purpose of looking and listening for the approaching train, a proximate or contributing cause of the death of the deceased?” The jury answered: “No.”

Special issue No. 18 was as follows: “Did the deceased as he approached the crossing in his truck after entering upon the right of way and within a reasonable distance from the crossing, fail to look for an approaching train?” The jury answered: “No.” The effect of this answer, of course was that the deceased did look for an approaching train.

The court then conditioned upon the jury answering said issue No. 18 in the affirmative (instead of in the negative as they did answer it) submitted special issue No. 19 as follows: “Was the failure of the deceased to look for the approaching train' after entering upon the right of way negligence as that term has been defined?” which the jury answered: “No.”

Conditioned upon issue No. 19 being answered in the affirmative issue. No. 20 was submitted viz.: “Was such negligence on the part of said J. S. Sherman a proximate or contributing cause of his death?” which was answered: “No.”

Then in answer to issue No. 21 the jury found that the deceased did not fail to listen for the approaching train — the effect of which was that h'e did so listen.

Conditioned upon issue No. 21 being answered in the affirmative issue No. 22 answered “No” by the jury was submitted as follows: “Was such failure on the part of the deceased to listen for the approaching train, negligence?” and, conditioned on said issue No. 22 being answered “Yes,” issue No. 23 was submitted as follows: “Was such negligence, if any you have found, a proximate cause of the collision and death of J. S. Sherman?” which the jury answered: “No.”

The jury assessed total damages against the railway company in the sum of $45,000, of which $24,000 was apportioned to the widow and $3,000 to each of the seven minor children.

The trial court accordingly so rendered judgment for the plaintiffs against the railway company, which was affirmed by the Court of Civil Appeals. 10 S.W.(2d) 243.

Plaintiff in error’s first assignment in its application for writ of error to the Supreme Court complains of the trial court’s refusal to peremptorily instruct a verdict for it, on the ground that the deceased, with an unobstructed view, drove upon the track in front of an approaching train, and was therefore guilty of contributory negligence, as a matter of law. The question of contributory negligence was appropriately submitted to the jury, and they found against the company’s contention, based on sufficient evidence to go to the jury on that issue.

The Court of Civil Appeals has, at some length, detailed this evidence [10 S.W.(2d) pages 246 and 247], which it is unnecessary to repeat here.

What is said above applies to plaintiff in error’s second assignment of error to the effect that the deceased was guilty of contributory negligence as a matter of law, in that, the jury having found that, after entering upon the right of way, he stopped his truck, looked and listened, he must have seen the approaching train. This, like the first assignment, is based upon the assumption that the evidence is undisputed that the deceased, after he entered the right of way, had a clear view of the approaching train, which assumption is incorrect, in that the evidence shows there were obstructions upon the right of way, and the question therefore became one of fact — resolved against the company in the trial court and Court of Civil Appeals. That the whistle was not blown nor the bell rung for the crossing was testified to by the engineer; tlie railroad lay through a heavy skirt of timber which extends to within one hundred yards of the crossing; the road along which the deceased was traveling toward the crossing was up grade on a fill or ■dump twelve or fifteen feet in width, extending across the bar ditch and up to the track. As the road entered the west gate, where the deceased came in, there was a depression beginning some 8 or 10 feet outside of the right ■of way fence and extending some four or five feet inside of it. Prom that point there was a gradual rise of the road toward the track. The train was making about 4S miles an hour. The burden of proof was upon the railway company to establish the negligence, if any, of the deceased, and it was for the jury to say whether that burden was satisfied under the facts of the case. Salter v. G., H. & S. A. Ry. Co. (Tex. Civ. App.) 285 S. W. 1112.

Plaintiff in error’s next assignment in its fipplication for writ of error complains that the jury’s finding .that it failed to exercise ordinary care, after the fireman or engineer actually discovered the peril of the deceased, cannot be upheld, the jury having also found that the engineer and fireman were negligent in failing to keep a proper lookout for the purpose of discovering deceased; the fifth assignment and proposition thereunder is to the effect that the jury’s finding that the engineer and fireman were negligent in falling to keep a lookout for the purpose of discovering the deceased eliminated the issue of discovered peril; the sixth assignment is based upon the proposition that negligence cannot be predicated upon failure to blow the whistle or ring the bill, if the deceased, after he entered upon the right of way, stopped, looked, and listened for the approaching train — this is followed by the statement (which, as we have shown above, is erroneous) that the undisputed evidence shows that, If he did stop, look, and listen, “he was compelled to see the approaching train before he entered upon the track.”

The findings of the jury in answer to special issues Nos. 9, 10, and 11, that the train operatives were negligent in failing to keep a proper lookout for the deceased or other persons on or about to go upon the crossing, and in answer to special issues Nos. 12, 13, and 14, that such operatives were •guilty of negligence proximatoly causing the death of the deceased after they actually discovered him and realized his danger, are not Inconsistent, as a matter of law. St. L. B. & M. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024; N. T. T. Co. v. Weed (Tex. Com. App.) 300 S. W. 41.

While the issue of discovered peril •cannot be predicated upon the failure of the ■engineer to discover the deceased (Crews v. Schaff [Tex. Civ. App.] 250 S. W. 749), the evidence shows that the engineer did discover the deceased before the latter had reached the track, and it was an issue of fact whether the deceased had ample time to stop and avoid the injury had he been warned of the train’s approach by sounding the whistle or ringing the bell. The trial court’s charge on this subject properly instructed the jury as follows: “In connection with the explanatory of special issue No. 12 submitted to you by the Court, you are instructed: That before you can find for the plaintiffs upon the issue of discovered peril submitted to you by the Court, you must find from a preponderance of the evidence that the engineer operating the engine actually discovered the peril of the deceased J. S. Sherman, at such a distance from the track that he could with all the means at his command, by the exercise of ordinary care, have prevented the accident; and in connection therewith, you are further instructed that you cannot find for the plaintiffs upon the issue of discovered peril upon the ground that the engineer, in the exercise of ordinary care, could have discovered the deceased in time to have prevented the accident, or that he was negligent in not discovering the deceased sooner than he actually did discover him, as the duties of the operators of the engine do' not arise until the peril of the deceased is actually discovered.”

As said by the Court of Civil Appeals: “Several witnesses who were near the scene, but who could not see what happened, testified that they heard the crash of the collision before the whistle was sounded. * * * The engineer said that he was about a polo and a half length from deceased when he first saw him. A pole length is 176 feet. That would have made about 264 feet between the engine and deceased. The deceased was about halfway across the right of way and traveling about 5 or 6 miles an hour. I-Ie was at least 20 or 25 feet from the track. It was in evidence that a car running 5 or 6 miles an hour could be stopped in about 2 or 3 feet. Blowing the whistle was the last thing the engineer did in his effort to avoid striking deceased. His efforts were directed to slowing up or stopping the train. If he had instantly sounded the whistle when he first saw deceased, it is very likely that it would have arrested the attention of deceased and he could have easily stopped his ear before reaching the track. To be sure, the engineer did what he conceived to be proper in the emergency. However, as was said in Trochta v. Railway (Tex. Com. App.) 218 S. W. 1039, the test of liability is not whether the engineer, after discovering the peril of deceased, acted in good faith in an effort to avoid the injury, but whether he acted as a man of ordinary prudence would have acted under the circumstances. 'This was a question to be determined by the jury from all the -evidence. Missouri, K. & T. R. Co. v. Reynolds, 103 Tax. 31, 122 S. W. 531. * * * Under the

circumstances of the instant case, we think an ordinarily prudent person would have realized the futility of attempting to stop the train before reaching the crossing and would have instantly sounded the whistle -to. alarm deceased and cause him to stop and thus have avoided the accident. The jury passed upon the question and found against appellant. We think the finding has support in the record.” •

Plaintiff in error’s seventh assignment of error goes to the action of the trial court in permitting the witness Jarvey to testify to an experiment made by him in July, after the accident happened in March, to ascertain how far a train approaching the crossing where the accident occurred could be seen, and in permitting the witness Graham Hightower to testify to a similar experiment made by him in connection with said witness. Jarvey on the Sunday before the case was first tried in July.

It is permissible to prove the existence or nonexistence of a fact by experiments made for that purpose, under circumstances substantially the same as those existing at the time of the occurrence or nonoccurrence of the alleged fact. G., C. & S. E. Ry. Co. v. Whitfield (Tex. Civ. App.) 206 S. W. 380; G., H. & N. Ry. v. Olds (Tex. Civ. App.) 112 S. W. 787; H. & T. C. Ry. Co. v. Ramsey, 43 Tex. Civ. App. 603, 97 S. W. 1067.

There was testimony that, when these experiments were made, the conditions surrounding the scene of the accident were the same as at the time of the accident, except that the "weeds, grass, and bushes on the right of way north of the crossing had been cleared away; the railway company had itself placed in evidence A. R. Hightower’s testimony of an experiment made by him about four weeks before the trial, also pictures, plats, and drawings of. the situation on the ground made in August, 1927. It was not error for the trial court to permit plaintiffs to make proof of observations made when the defendant itself offered similar testimony.

Plaintiff in error’s eighth assignment of error complains of the overruling by the Court of Civil Appeals of its eighth proposition as follows: “Where a witness is available to both parties to litigation no presumption whatever is to be drawn from the failure of the defendant to call witnesses,” based upon its fifty-fifth assignment of error in that court, the pertinent portion of which is as follows, as pointed out in plaintiff in error’s brief here and in the Court of Civil Appeals: “The court erred in instructing the jury over the objections of the defendant that the fireman would have testified to facts detrimental to the defendant and for that reason he was not placed on the stand.”

The record reveals that no such charge was given by the trial court, and therefore there is nothing on which to found the assignment or proposition.

An inspection of the transcript, however, discloses such fifty-fifth assignment to be as follows: “The Court erred in permitting plaintiff’s counsel, over the objections of the defendant, to state to the jury that the fireman would have testified to facts detrimental to the defendant and for that reason he was not placed on the stand,” and this seems to be the basis for the next assignment (numbered 10 in the application for writ of error). The bill of exceptions, as qualified by the trial judge, shows that Hamilton, the engineer, a witness for the company, had testified that Mullins, the fireman, was in attendance on the court; Mullins was not subpoenaed as a witness in the case, was not sworn and placed under the rule, nor did the company, at any time, tender him to the plaintiffs as a witness. The bill of exceptions further show that plaintiffs’ counsel in his argument stated to the jury that the defendant did not put the fireman on the stand, for the reason that the fireman would have testified, or the jury had a right to presume that he would have testified, adversely to the defendant with reference to the ringing of the bell — a statement quite - different from that contained in the assignment, which is overruled.

As said in M. P. Ry. Co. v. White, 80 Tex. 207, 15 S. W. 808, 811, “attorneys may comment upon the absence of witnesses or their nonproduction, when they are -shown to be cognizant of the facts in issue.” To the same effect, see 38 Cyc. p. 1490.

The next assignment, based on bill of exceptions No. 6, complains of the court’s permitting the witness Jarvey to testify that, by reason of the condition of the road, its narrowness, and the weeds having grown on the sides, and the ruts on the sides of the road, a person, in driving from the gate to the crossing, would have to exercise a very high degree of care or would have to drive very cautiously — this evidence was admitted, as shown by the bill of exceptions, as bearing upon the issue of the deceased’s contributory negligence, if any. The objection was that it was but an opinion and conclusion of the witness, invaded the province of the jury, and was prejudicial to the rights of the defendant.

The statement of facts shows that the witness was asked this question: “In the condition of the approaches and that roadway, at the time you first saw it, to what extent yVould a man driving a Ford truck in the gate and upon the track have to watch his business of driving?” The answer was: “He would have to be very cautious.”

The witness, before and after making such answer, fully described the condition of the roadway, track, fences, brush, grass, and obstructions alleged to have been along the right of way and crossing. Another witness, Graham Hightower, testified, apparently without objection, that a man, driving across, would have to use all his skill to get across there at that particular time he was there making observations with the witness Jar-ivey.

No reversible error is shown by said assignment, nor under the next assignment complaining of Mrs. Sherman’s testimony of the deceased’s earning capacity being based on what the deceased told her. The statement of facts shows that she testified of her own knowledge; and Mrs. R. S. Stebbins, a daughter of deceased (whose testimony is also complained of, as being hearsay), testified that she had occasion to see the checks that her father received for the timber that he sold, that she kept records thereof until he was killed; that her father had from two to three men working for him on an average, and paid them on the figures made by the witness.

The bill of exceptions shows that:

“The witness, Mrs. Sherman, testified, without objection, ‘I know what Mr. Sherman was earning on an average per month. He was averaging $300 and from four- up.’ She also testified, without objection, that he made money from other sources than for timber work, such as trading; that he kept stock, hogs, horses and cattle, and cultivated a truck patch of four or five acres.
“The daughter’s testimony to the effect that deceased made $300 and up to $400 in February was elicited by defendant on cross examination. She had previously testified that she had occasion to see the checks he got from week to week in payment for the timber that was sold; that she knew of her own knowledge the amounts of money, checks, etc., he got for the timber, and that she knew what her father paid the laborers who worked for him because she would figure it out for him and he would pay them on her figures.”

Whether or not the road crossing the railroad track is a public road was properly Submitted as a question of fact to the jury; the jury in answer to the first special issue found that the road in question was a public road at the time of the accident, and, in answer to the second special issue, found that the crossing where the accident occurred was being used by the public with the knowledge and consent of the railway company prior to and at the time of the accident.

The fifteenth assignment of error complains of certain portions of the argument' of plaintiffs’ counsel in addressing the jury. An examination of the bills of exception on which this assignment is based shows no reversible error upon that point. For instance, bill of exceptions No. 11 contains the following qualification: “The court’s recollection of the argument complained of is that plaintiffs’ counsel in discussing the issues submitted to the jury, relating to the contributory negligence of the deceased, argued that if deceased before entering upon the right of way satisfied himself that no train was approaching, it would not be negligence for him to drive upon the crossing without looking or listening after he entered the right of way. Plaintiffs’ counsel also argued in that connection that defendant’s failure to sound the whistle and ring the bell was the proximate cause of the accident, but plaintiffs’ counsel did not argue the statutory duty of the defendant to blow the whistle and ring the bell.”

Bill of exceptions No. 16 discloses that plaintiffs’ counsel in his closing argument stated to the jury that there were roads laid out by the county which were recognized as first, second, and third class roads, but this is qualified by the trial judge as follows: “Previous to the argument complained of, Mr. Garrison, attorney for the defendant, in arguing the issue submitted to the jury as to public character of the road had urged the proposition before the jury that the fact that there were gates across the road indicated it was not a public road and had said to the jury in substance, Don’t you know if you went down here and put a gate across this public highway that you would be put in jail. The argument complained of in the foregoing bill was made by plaintiffs’ counsel in answer to the argument of defendant’s counsel, Mr. Garrison.”

It thus appears that the argument was in reply to that of the defendant’s counsel, and states correctly the statutory law of this state respecting roads, and was in no way prejudicial to the defendant. The other portion of the argument complained of, in our opinion, was warranted by the evidence and conclusions that might be reasonably drawn therefrom. The length of this opinion precludes further detailed discussion thereof; suffice it to say that the Court of Civil Appeals correctly disposed of the subject.

The sixteenth assignment complains of the closing argument of plaintiffs’ counsel, in that the jury was instructed the effect of their findings upon the special issues submitted, by being told to answer questions 1 to 14 in the affirmative and all subsequent questions in the negative^

The bill of exception pertinent to the assignment recites that the argument by plaintiffs’ counsel complained of was as follows: “Now, Mrs. Sherman, the court told you that you are not entitled to anything for the loss of companionship, grief or bereavement, but he said you are entitled to damages for his loss in helping you and in advising you, in rearing these children. Who is going to help you raise them from here on out? Who is it going to fall upon from Aere on out to do everything? At the wee hours of the night, when the snow might be on the ground, oh, Mr. Sherman, you are not here to go after the doctor — you are not here to help her administer to this little sick fellow. Mrs. Sherman, that will fall on you — all that will fall on you from here on out. All I am asking you is just to take this court’s charge and then after figuring all these things up, when you do you are going to see this woman, under the undisputed evidence in this ease, figuring it at the least is entitled to every cent we have sued for. You must remember money is not worth as much as it was back several years ago. Yes, $50,000.00 — pay the expenses of all those children, keep them in school. Judge Garrison says we are going to argue * * * (statement here inaudible to reporter). You can’t do that because Sherman hasn’t given them the best education heretofore. He had just come into that community ; he hadn’t been there but two years. His older children, unfortunately he wasn’t so situated, he wasn’t able to give them an education that he would like to have given them, just like many other fellows. We don’t know what he would have done for the other little fellow. Two of them are in school now. I beg of you gentlemen to help her (meaning the plaintiff) to keep them (meaning the children) in school, and beg of you gentlemen to answer the first fourteen issues ‘Yes’ and ‘Yes’ and on down to the — until you get to number 15, in behalf of Mrs. Sherman and those seven children, and I want to beg of this jury to answer question No. 15 ‘No,’ No. 16 ‘No,’ No. 18 ‘No,’ No. 19 ‘No,’ No. 20 ‘No,’ No. 21 ‘No,’ No. 22 ‘No,’ No. 23 ‘No.’ Gentlemen, I thank you.”

The jury answered “Yes” to Questions 1 to 14, and “No” to the remaining questions, notwithstanding they were charged by the court not to answer certain questions if preceding ones were answered in the affirmative.For instance, special issue No. 15 submitted the question whether or not the deceased failed to stop his truck after he entered upon the right of way of the defendant company. The jury answered “No.” The court instructed the jury that, if they answered “Yes” to the above question, then they should answer special issues No. 16 and 17. Nevertheless, the jury answered special issues Nos. 16 and 17 that the deceased was not negligent in failing to stop his automobile for the purpose of looking and listening, and that such negligence was not the proximate cause.

In answer to special issues No. 18 and No. 21, the jury answered “No,” thus finding that the deceased did not fail to look for an approaching train, after entering upon the right of way and within a reasonable distance of the crossing, and did not fail to listen for the approaching train after he had passed through the gate and entered upon the right of way. The court instructed the jury to answer special issues No. 19, No. 20, No. 22, and No. 23 only in the event they answered “Yes” to issues Nos. 18 and 21; nevertheless the jury did answer said issues “No,” the effect of which was that the deceased was not negligent in failing to stop his truck for the purpose of looking and listening for the train, and that such negligence on the part of the deceased in failing to stop his truck for the purpose of looking and listening for the train was not negligence. Under the court’s charge the jury was directed not to answer questions 16, 17, 19, 20, 22, and 23 if they answered questions 15, 18, and 21 in the affirmative.

There is no escape from the proposition that the jury was guided, in this respect, not by the court’s charge, but by counsel’s argument, with the idea in mind that the effect of their findings upon the special issues submitted would be a resultant judgment for the plaintiffs.

The Court of Civil Appeals held that the issues were clear and simple, and such that any juror of average intelligence must have known the effect of his answer thereto, and therefore argument such as here complained of is not harmful, and, if error, is harmless.

This contention is disposed of adversely to the holding of the Court of Civil Appeals, by Judge Critz, in T. & P. Ry. v. Edwards (Tex. Com. App.) 36 S.W.(2d) 477, approved by the Supreme Court, upon almost a similar state of facts, involving practically the same issues. The same learned judge in McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, 217, approved by the Supreme Court, said:. “.We therefore conclude that, since it is undoubtedly error for the jury to first agree on the result they wish to accomplish by their answers, and then designedly frame said answers so as to accomplish such result. It is reversible error for an attorney- to make an argument to the jury which is calculated to cause them to do the very thing that the law prohibits. In the case at bar we are convinced that the argument set forth in the certificate of the Court of Civil Appeals, though made in good faith, was calculated to cause the jury to disregard their obligation as jurors to answer each question Separately, truly, and distinctly, and amounted in law to an appeal to the jury to designedly agree on a result and so form their answers as to accomplish such result.”

And Judge Sharp, in Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W. (2d) 302, approved by the Supreme Court, held reversible error the following argument: “Answer these questions as I have told you to answer them down to No. 6 and you will not have to answer the rest. When you have answered to the first question that, yes, Mose Cary did sustain an injury, and when you have answered to the second question, yes, such injury has permanently and totally disabled him, and you have answered the next two questions as to average wages as I have told you to answer them, and when you have answered #5 yes, that a manifest hardship and injustice would result to Mose Oary to deny him a lump sum payment of any compensation that might be due him, Judge Boyd will take your verdict and upon it render a judgment for Mose Cary and against Fidelity Union Casualty Company for 400. installments of compensation in a lump sum.”

In the instant case the jury were told to answer the questions in a certain way in order to help the plaintiff and keep her children in school; the plain inference being that, unless the questions were so answered, she would not be helped and her children would not be kept in school. We have reached the conclusion that such argument constitutes reversible error; other errors assigned and not specially disposed of here may not occur on another trial, and we pretermit discussion of them.

We recommend that the judgments of the District Court and Court of Civil Appeals be reversed and the cause remanded for trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeáls are both reversed, and the cause remanded, as recommended -by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LEDDY, J. CURETON, C. J.

text:
    SPRINGFIELD FIRE & MARINE INS. CO v. HUBBS-JOHNSON MOTOR CO.
    No. 1312-5816.
    Commission of Appeals of Texas, Section B.
    Oct. 14, 1931.

      W. B. Silliman, of Pt. Stockton, and Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for plaintiff in error.
    W. C. Jackson and R. D. Blaydes, both of Pt. Stockton, for defendants in error.
   LEDDY, J.

Defendants in error, Jack Hubbs and 0. S. Johnson, were co-partners doing business under the firm name of the Hubbs-Johnson Motor Company. On November 26, 1926, plaintiff in error, through its agent, Mrs. Ferguson, who resided at Ft. Stockton, Tex., issued to defendants in error a fire insurance policy No. 186, covering $1,000 on the contents of a building situated upon lot 13, block 34, in the town of McCamey, and $500 upon the building. There was additional insurance in three other companies in the same amount issued through the same agent. Shortly after policy No. 186 was written, defendants in error began the erection of a new building on lot No. 12, block 43, in the town of McCamey.

It is claimed by defendants in error that they informed Mrs. Ferguson they desired and wouid expect a transfer of the insurance from the old location to the new location-and to have an increase in the amount of insurance by reason of the increase in the cost of the building and the automobile accessories and parts carried by them at the new location ; that they wanted an additional $1,500 of insurance on the building and $3,000 additional on the stock of merchandise.

It is also claimed that Mrs. Ferguson, agent for plaintiff in error, and for a number of other insurance'companies, agreed that she would immediately cover said additional amount of insurance and make necessary change in existing policy as to change of location.

On December 15, 1926, defendants in error moved from their old location to the new, and informed plaintiff in error’s said agent of such removal.

On May 3, 1927, the building and contents at the new location were totally destroyed by fire. It is claimed that plaintiff in error denied liability under the policy and declined to receive proofs of loss.

This suit was brought by defendants in error against plaintiff in error, upon the contract made with the agent, to recover $1,500, the amount of policy No. 186, it being alleged that Mrs. Ferguson, plaintiff in error’s agent, agreed that no lapse of insurance would occur on account of the removal to the new location, that insurance would follow such merchandise, and that it would remain in full force and effect on the new building and its contents.

Among other defenses, plaintiff in error set up that the only contract it ever had with Hubbs and Johnson respecting their property at McCamey was policy. No. 186 covering the property located on lot 13, block 31, that said contract was canceled with the consent of defendant in error, and that no new contract was made with plaintiff in' error to insure the building and its contents at the new location.

The case was submitted to a jury upon special issues, in response to which the following findings were made: (1) That the agent, Mrs. Ferguson, did not agree to transfer the insurance sued upon from the old to the new location; (2) that the agent, Mrs. Ferguson, did agree to rewrite the insurance on the property at the new location in the defendant company; (3) that the policy -of insurance sued on was canceled with the consent of the plaintiff; (4) that the policy of insurance was canceled, with the agreement that the same would be rewritten on the property in the new location of the company; (5) that the record warranty clause was substantially complied with by the defendant in error.

Based upon these findings, the trial court rendered a judgment in favor of -defendants in error against plaintiff in error for the amount of policy No. 186 with legal interest thereon. Plaintiff in error duly perfected its appeal to the Court of Civil Appeals, where the judgment of the trial court was affirmed.

Plaintiff in error insists in this court that there is no evidence to sustain the findings of the jury that the agent, Mrs. Ferguson, agreed to rewrite the insurance on the property in- defendant company at the new location or that the policy of insurance was canceled with the agreement that it wouid be rewritten on the property at the new location.

The sufficiency of the evidence -to support • the findings of the jury that policy. No. 186 for $1,500 was canceled with the consent of defendants in error, and that Mrs. Ferguson, plaintiff in error’s agent, did not agree to transfer this policy of insurance from the old to the new location, is not in any way challenged.

It is the settled law that parol contracts to effect insurance by issuance of a policy are valid and enforceable. Cooley’s Briefs on Insurance, vol. I, p. 497, and authorities there cited; Cohen v. Continental Fire Insurance Co., 67 Tex. 325, 3 S. W. 296, 60 Am. Rep. 24; Ginners’ Mutual Underwriters’ Association v. Fisher (Tex. Civ. App.) 222 S. W. 285.

But it is equally well settled that an executory contract for insurance is not enforceable, unless all of the elements essential to a contract of insurance have been agreed upon by and between the insurer and the insured. The contract must be in such condition that nothing is left open for future negotiations with reference to the subject-matter, parties, rate of premium, amount, or duration of risk. Corpus Juris, vol. 32, p. 1105, and authorities there cited.

It is a recognized principle of the law of contracts that the minds of the parties must meet upon the substantial terms of the contract before it can be enforced. This principle applies with equal force to an insurance contract. New York Life Insurance Co. v. Levy, 122 Ky. 457, 92 S. W. 325, 5 L. R. A. (N. S.) 739; Corpus Juris, vol. 32, p. 1105, § 19.

Where a party applies for insurance, and there is an acceptance upon terms variant from those offered, it results in a rejection of the offer, but operates as a counter offer, which, in order to render the insurance effective, must be accepted by the insured. ¿Etna Ind. Co. v. Crowe Coal Co., 154 F. 545, 83 C. C. A. 431; Costello v. Grant County Mut. Fire Ins. Co., 133 Wis. 361, 113 N. W. 639.

When tested by these well-settled rules of law, it affirmatively appears frota this record that the minds of the parties never met upon a contract of insurance which would justify a recovery in favor of defendants in error for the amount of policy No. 186. We think this fact becomes apparent from a consideration of the material evidence offered upon this point. Mr. Hubbs, one of the defendants in error, testified:

“I always looked to her (meaning Mrs. Ferguson, the agent) for renewal of my insurance. When I gave her insurance I requested that she keep it covered. I depended upon her to watch these dates for me — I expected her to watch the date of expiration and to keep the property insured. I did not know how many companies she represented. It did not make any difference to me. She always made her own selection of the companies and she said that they were all standard companies, and it did not make any difference to me, just so I got the insurance— that was all I wanted. That was what took place when I first ordered $6,000.00 in coverage on that property at McCamey.”
“I told Mrs. Ferguson that we were building the new building and expected to transfer the stock at the new location, and she said she wanted to take care of it and make the transfer, and I asked her to handle it so there would be no lapse in the coverage, and she assured me she would handle it in that way; she promised to keep it covered.”
“My specific request at the time was that there should be no lapse in the coverage.
“What I wanted was $3,500.00 on the building and $7,000.00 on the stock, and I did not care how I got it, so it was in a good company. We made no request for any particular company and did not ask her what company she had.. That did not enter into the conversation. The distribution was left up to her.
“I never thought anything about the insurance on the building and stock being in the same company. I never seen the policy and so far as the companies were concerned I never did discuss that with Mrs. Ferguson. * ⅜ * I do not know how many companies she had — I don’t know whether she had eighteen or twenty-five.
“It didn’t make any difference to me how she handled it. I was asking her to give me $3,500.00 on the building and $7,000.00 on the stock, and that was the extent of my interest, and it then passed out of my mind.
“I told her to handle it in her regular manner of handling, so there would be no lapse of coverage, and she assured me it would be handled in that way.
“She did tell me she might have to rewrite, but in the transaction there would be no lapse of coverage. She assured me there would be $7,000 on the stock and $3,500.00 on the building, or at least I took it that way and that we would have that increased over the old insurance and she agreed to it.”

Mrs. Ferguson testified that Mr. Hubbs directed her to handle this insurance on the property in the new location according' to her regular custom. She stated that in accordance with such custom she canceled the existing policy, and then undertook to get one of the companies represented by her to carry this risk, but that neither plaintiff in error nor any other company she represented would agree to carry the same, and that it was impossible for her to get any company to carry this oil field risk, that for this reason she never wrote any new policy, and that ' no insurance was carried on the building and contents at the new location, so far as she knew.

When the unchallenged findings of the jury are considered in connection with the undisputed evidence, we can find no justification for a recovery against plaintiff in error upon the theory that a valid contract of insurance was made between defendants in error and plaintiff in error for $1,500, the amount of policy No. 186.

In the first place, the jury found that policy No. 1S6 for $1,500 was canceled with the consent of defendants in error. This being true, no recovery could be had upon such policy. It therefore devolved upon defendants in error to establish the proposition that a new contract was made with plaintiff in error by the terms -of which it agreed to insure the building and contents in the new location for the same amount as the original policy. There is no pretense that they made any agreement with plaintiff in error to write $1,500 insurance on the property at the new location. On the contrary, it is undisputed that their proposal to Mrs. Ferguson was for a different and increased amount of insurance on the building and contents in the new location over that covering the building and contents at the old location. It is clear that, if any contract of insurance resulted from the agreement between defendants in error and plaintiff in error’s agent, it was one for the different amount requested, and not one for $1,500.

If, under the application made by defendants in error, the plaintiff in error had actually issued a policy of insurance for the exact amount against the property on the old location, it would not have been binding upon defendants in error unless such reduced amount had been accepted by them. The act of the insurance company in refusing to issue a policy in the amoiiát requested would have constituted a rejection .of the amount applied for, and resulted in the making of a counter -offer to insure for a lesser sum. Under such circumstances, no contract would have resulted until the lesser amount was accepted by defendants in error. New York Life Insurance Co. v. Levy, 122 Ky. 457, 92 S. W. 325, 5 L. R. A. (N. S.) 739. As said by the Supreme Court of the United States in the First National Bank v. Hall, 101 U. S. 43, 50, 25 L. Ed. 822, “A proposal to accept, or acceptance upon terms varying from those offered, is a rejection of the offer.”

The case made by the proof offered by defendants in error shows a proposal by them for insurance, not in the sum of $1,500, the amdunt of the original policy on the old location, but for the increased amount they desired written on the property at the new location. According to their theory, this was agreed to by the agent of the plaintiff in error. After such agreement was entered into, it is not shown that there was any further communication by defendants in error in regard to this contract of insurance. They never at any time agreed with the insurance company to accept any lesser amount, nor was any offer, made by the insurance company rejecting the amount applied for and proposing to issue a policy, for a lesser sum. Therefore under no view of the evidence can it be said that the minds of the parties ever met upon a contract for insurance at the new location in the sum of $1,500.

It follows we must hold there is no evidence in the record to sustain the material finding of the jury that an agreement was made between defendants in error and plaintiff in error’s agent to rewrite the insurance on the new location in the same amount as existed on the old.

There is an additional reason why no valid contract of insurance was shown by defendants in error. According to an unchallenged finding of the jury, the policy issued by plaintiff in error covering the building and contents at the old location was canceled. Defendants in error’s right to recover must therefore be predicated upon a new contract for insurance. No such contract was shown to have been consummated, because it does not appear that plaintiff in error was ever designated by its agent or by defendants in error as the company which would carry any part of the insurance upon the property at the new location. Diamond v. Duncan, 107 Tex. 256, 172 S. W. 1100, 177 S. W. 955; Grimes v. Virginia Fire Ins. Co. (Tex. Civ. App.) 218 S. W. 810.

Mrs. Ferguson represented a large number of fire insurance companies.' The defendants in error frankly admit that they did not know which of the companies she represented carried the risk on their property at the old location, and they further concede that they did not even mention what company they desired the new insurance should be placed with. In this connection Mr. Hubbs testified: “We made no request for any particular company, and did not ask her what companies she had — that did not enter into the conversation. The distribution was left up to her. I never thought anything about the building and stock being in the same company. I had never seen the policy and, so far as the companies were concerned, I never did discuss that with Mrs. Ferguson.”

Defendants in error do not controvert the rule that, where an agent represents a number of insurance companies, a parol contract with such agent for insurance is not effective, unless the particular company in which the insurance is to be written is specified by the assured, or unless the agent has designated a particular company to carry the risk prior to the time a loss occurs. They insist, however, that the doctrine announced in United States Fire Insurance Co. v. Fife (Tex. Civ. App.) 6 S.W.(2d) 211, applies to the contract shown by the evidence in this case. In the case relied upon, it was merely held that, in the absence of an agreement to the contrary, the presumption is that a renewal of an existing policy is by the same company and upon the same terms and conditions as provided in the original policy. Such principle can have no application to the facts shown by this record. Here the jury expressly found that the existing policy was canceled by agreement of the parties. There was, therefore, no agreement for renewal of an existing policy under which it might be fairly iin-plied that it was to he written by the company issuing the original policy. There is merely an effort to show a new contract for insurance without any designation, either by the agent or the assured, of the company by which the risk was to be assumed.

Defendants in error insist the finding of the jury that an agreement was made to rewrite the insurance on the property at the new location is equivalent to a finding of an agreement for renewal of the existing policy. Where a policy has been issued covering a certain building, an agreement to write a policy against another building for a different amount is in no sense a renewal of the old policy, and this is true, even though the parties may so designate it. “The very request to renew a policy,” says the court, in Orient Ins. Co. v. Wingfield, 49 Tex. Civ. App. 202, 108 S. W. 788, 792,. “implies that the new policy shall be exactly like and similar to the old policy.” The terms of the contract relied upon to show a renewal of the existing policy disclose provisions materially differing from those of the existing policy, in that the new contract showed an agreement for insurance upon a different risk and in a larger amount than the old policy. A contract to write such a policy cannot, by any sound process of reasoning, be held to constitute an agreement for the renewal of the existing policy.

We therefore recommend that the judgment of the trial court and the Court of Civil Appeals be reversed, and that judgment be here rendered for plaintiff in error.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.


author: LATTIMORE, J. MORROW, P. J.

text:
    Ex parte SCHUTTE.
    No. 14062.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1930.
    Rehearing Denied Oct. 7, 1981.
    Linden & Linden, of San Antonio, for petitioner.
    T. D. Cobbs, Jr., City Atty., C. K. Quin and W. C. Davis, Asst. City Attys., all of San Antonio, and Lloyd W. Davidson, State’s; Atty., of Austin, for the State.
   LATTIMORE, J.

Relator seeks release by an original writ, of habeas corpus sued out in this court upon propositions which are discussed later.

The city of San Antonio, Tex., has a population of more than five thousand, is incorporated and operating under section 5, art-11, of our Constitution, which is known as the Home Rule Amendment. An ordinance of said city requires that all automobiles carrying passengers for hire on the streets of said city must obtain a license, pay a license fee, and make bond in writing as a prerequisite to engaging in such business. Relator in this case was charged in corporation court of said city with operating such vehicle without having made bond. Upon conviction he appealed to the county court at law No. 2 of' Bexar county, where, upon trial, he was again convicted and his punishment fixed at a fine of $10. Affirming the illegality of the ordinance in question, and that he could appeal no further because his fine was less than $100, relator seeks through a writ of habeas corpus release from custody of an officer of the trial court who holds him under a capias profine until said fine and costs be paid.

The attack on the complaint, charging relator with operating a car for hire on the streets of San Antonio without having first made the bond required by the ordinance mentioned, is based on the following propositions and facts, viz.: That the courts have held that no license fee could be legally col-leeted by municipal authorities from persons operating for hire motor vehicles on the streets of incorporated cities; that in the ordinance referred to, the requirement that a license fee be paid and bond be-made, is joint and so commingled and interdependent as that if the one be illegal the other must of necessity also fall; tha-t the conditions of the bond required by the ordinance are unreasonable; that the ordinance is discriminatory, and the terms of the bond required so difficult of compliance as to be confiscatory.

We may say in the beginning that our discussion will necessarily be of the legal questions presented, no facts by agreement or otherwise being before us. There appears a document in the nature of a statement of facts which does not bear the approval of any one.

Examining in reverse -order the propositions advanced by relator, we note that the only authority cited in his brief as sustaining his last-mentioned contention is City of Arlington v. Lillard, 116 Tex. 446, 294 S. W. 829. In its facts and principles involved that case is wholly unlike the one before us. The issue there was the power of a city to deny the right to use its streets to motorbusses engaged wholly in intercity passenger traffic on a highway extending to, through and from said city, which busses declined intracity passengers from one point to another in said city. The street whose use was forbidden by the ordinance' was admittedly a part of a state highway over which said motorbusses were engaged in carrying passengers for hire as a business. The Supreme Court of this state held the city without power to deny the use of said streets to said motorbusses. We agree to the correctness of -this holding.

What rights of Telator are contravened by requiring of him a substantial bond? In West et al. v. City of Waco et al. (Tex. Civ. App.) 275 S. W. 282, affirmed by the Supreme Court in 116 Tex. 472, 294 S. W. 832, it is in substance declared that no person has any vested right to -maintain or claim a public street as a place of business, and that if the city be denied the right to -control and regulate the use of its public streets in such regard, such streets would be at the mercy of all who desired -to ply any business or trade thereon, and the city would be thus deprived of -one of its most valued functions, viz., to protect the inhabitants from such encroachments. In Gill v. City of Dallas, 209 S. W. 209, in a lucid opinion -by Judge Rasbury of the Court of Civil Appeals, the lack of right to use -the public streets as a place of business by individuals operating public utilities is affiz-med and discussed. It is said therein that a sufficient number of public utilities is a great convenience, but that too many of same might be equally as inconvenient; the question being one for -the local authorities to determine. The mere fact, if it be a fact, that the ordinance of a city fixes the amount of bond prerequisite to engaging in a public or quasi public business at such sum as that named persons who have sought to engage-therein could not pay the cost of a surety company bond for that amount, does not bring us to any fair conclusion that such bond is therefore necessarily excessive. Inordinate competition or inadequate facilities on the part of such persons, as well as many other considerations,- might rightly affect their income without affecting the justice of the ordinance or the amount of the bond demanded. We do not think the ordinance in question on its face discriminatory, or that its effect would be to confiscate the property of any citizen.

We see no need for discussing at any length the right of the city of San Antonio-to require a bond- from -those who seek to engage within said city in the business of carrying passengers for hire. The purpose of the bond is manifestly the protection of the people in and of such city from harm and injuries resulting from the acts of those thus authorized by the city to use its domain and streets as a source of gain. The subject has been treated in many cases and settled adversely to relator. Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732; Nelson Co. v. Stephenson (Tex. Civ. App.) 168 S. W. 61; Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6. Other authorities are numerous.

We pretermit extended discussion of the proposition that the decision in Doeppenschmidt v. City of New Braunfels (Tex. Civ. App.) 289 S. W. 425, supports relator’s contention. We do not -think so, but any expression from us that said opinion incorrectly interprets the legislative denial in article 6698, Tex. Civ. Stats., of a grant of authority in that particular act — into a general denial of -such power and authority claimed to be derived from other sources — would be dicta, and this usually leads only to confusion.

Believing that there is no question of the power and right of the city to require of relator the bond mentioned, and that his failure to give same and his-subsequent operation of his car for passenger hire on the streets of San Antonio brought him in conflict with the provisions of said ordinance, it follows that we believe the writ of habeas corpus should be denied, and it is accordingly so ordered.

On Motion for Rehearing.

MORROW, P. J.

Relator relies upon the decision of the Supreme Court in the case of City of Arlington v. Lillard, 116 Tex. 446, 294 S. W. 829, 830. The city of Arlington attempted to enforce an ordinance prohibiting the use of two of its streets (Abrams and Division) by motor vehicles for hire. Arlington is' a city situated between the cities of Port Worth and Dallas, two of the large cities of the state. The streets mentioned were the only route available to persons traveling from one of the cities mentioned to the other. Lillard, an operator of a bus line on the state highway, a part of whose route was from Port Worth to Dallas, enjoined the enforcement of' the ordinance against him. The city sought by appeal to the Court of Civil Appeals to have the injunction dissolved. The Court of Civil Appeals referred the matter by questions to the Supreme Court. The questions propounded and the answers of the Supreme Court are found in the case of the City of Arlington v. Lillard, above mentioned. Touching the questions the Supreme Court said: “The facts of the case as pleaded and certified to us raise two distinct and important issues, either of which, under our view of the law, is conclusive of the case. One involves the power of a municipal corporation in the exercise of its dominion over its streets to affect and interfere with the use of a State thoroughfare or highway outside of and beyond the city limits by prohibiting the use of two certain streets within the city, one of which is a part of said highway. This issue is embodied in question No. 1. The other issue is the power of a city to prohibit the use of all its streets to those carrying passengers for hire. This issue is certified in question No. 2.”

In ordering the injunction sustained, the Supreme Court said, in part:

“Appellees alleged Abrams and Division streets are the only streets or thoroughfares which can be used by them in traveling from Port Worth and other points west of Arlington through the latter city to Dallas and other points east of Arlington; that there are no other ways through Arlington over which they may travel; and that a denial of the use of Abrams and Division streets prevents them from passing through the city, which affects and interferes with their use of the state highway between Port Worth and Dallas and intermediate points. That such a prohibition and denial does affect and interfere with their use of the state highway, not only through the city of Arlington but outside of and beyond that city’s limits, is fairly evident. * * *
“The power sought to be exercised by the city of Arlington, that to prohibit the use of its streets by commercial vehicles desiring to pass through the city, cannot be treated as coming within the fair intent and purpose of its creation reasonably proper to give effect to the powers granted to it.”

The second question reads as follows: “¾. Irrespective of the foregoing question, has a city the right to prohibit the use of its streets, by an ordinance that does not seek to merely control and regulate the use of said streets, to those operating motor bus-ses?”

Of it the Supreme Court said; “The other issue, embodied in question No. 2, is based on the allegation that Abrams and Division are the only through streets and that the denial of their use prevents appellees from passing through the city and is a denial to them of the use of any of the streets or of all the streets of the city.”

Relator takes the position that the answer of the Supreme Court to the second question propounded by the Court of Civil Appeals supports the claim that the city of San Antonio was without power to enforce the ordinance. The position is deemed untenable. In answer to the first question the Supreme Court declared that the city of Arlington could not legally, by ordinance, block the use of the state highway through the city. The answer to the second question, as that question is interpreted by the Supreme Court, as above quoted, is not regarded as bearing upon the question presented by the relator. The second question mentioned, as shown by the italicized language of the question, relates to the form of the ordinance, tlie terms of which are not set forth in the opinion of the Supreme Court, and there seems to be .no publication of the opinion of the court of Civil Appeals in the case of CSty of Arlington v. Lillard, supra. It is true that the Supreme Court uses the following language: “The other issue is the power of a city to prohibit the use of all its streets to those carrying passengers for hire. This issue is certified in question No. 2.”

The interpretation of the question, however, as set forth in the opinion of the Supreme Court, repels the idea that it was in the mind of that court to extend its announcement any further than was called for upon the facts before it, namely, the right of the city of Arlington to obstruct the highway through the city or to control the use thereof without appropriate ordinance.

In the case of City of Ballinger et al. v. Nichols et al., 297 S. W. 480, 481, the Court of Civil Appeals, said: “The decision in the Arlington Case is expressly limited to the holding that a municipality may not deny the use of all its streets to intercity motor vehicular transportation for hire, or pass any ordinance that would have the effect of such denial. A city has the general power to regulate the use of its streets, and may even deny their use for private business conducted wholly within the city limits. See West v. Waco [116 Tex. 472] 294 S. W. 832, and cases therein cited.”

In the case of West v. City of Waco, 116 Tex. 472, 294 S. W. 832, 834, the Supreme Court said:

“Under the enabling act to the Home Rule Amendment to the Constitution of the state, sections 12, 16, 18, 20, and 21 of article 1175, R. S., the power was delegated to the cities to regulate and control the operation of vehicles carrying passengers or freight for hire on and over the streets and public grounds of the cities.
“The power to prohibit the use of the public square in Waco as a place of business by commercial vehicles clearly comes within the powers delegated to the city of Waco.”

Reasonable restrictions by ordinance of the streets of a city upon which automobiles operated for hire may operate have been upheld by the courts of this state in cases so numerous and so well-considered that the right to make such restrictions cannot be regarded as an open question.

Touching the proposition that the appellant cannot profitably operate his motor vehicle for hire and incur the expense of the bond required by the ordinance of the city of San Antonio, the precedents are numerous against the soundness of his contention. Among them are Auto Transit Co. v. City of Fort Worth (Tex. Civ. App.) 182 S. W. 685, in which an application for a writ of error was denied by the Supreme Court. See also Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Ex parte Bogle, 78 Tex. Cr. R. 1, 179 S. W. 1193; City of Dallas v. Gill (Tex. Civ. App.) 199 S. W. 1144; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Craddock v. City of San Antonio (Tex. Civ. App.) 198 S. W. 634; City of San Antonio v. Fetzer (Tex. Civ. App.) 241 S. W. 1034.

As stated in the original, opinion, the conviction is for operating a motor vehicle without first executing the bond required by the ordinance. Appellant lays stress on the question of license, citing Doeppenschmidt v. New Braunfels (Tex. Civ. App.) 289 S. W. 425. The subject of license seems rather foreign to the issue here presented. License is a permission. The city of San Antonio, possessing the right to regulate the use of its streets by motor vehicles for hire, would obviously have the right to issue a written certificate of permission. Whether charging a fee for the certificate would be legal is ‘not involved. Article 6698 of the Revised Civil Statutes 1925, upon which the appellant relies for the contrary view, contains the following language: “This provision shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation.”

In view of the remarks in the original opinion, a further discussion of the subject in hand is deemed unnecessary.

The motion is overruled.