author: MONTEITH, Chief Justice.

text:
    HIGGINS v. STANDARD LLOYDS et al.
    No. 11096.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 23, 1941.
    Rehearing Granted Feb. 27, 1941.
    Rehearings Denied March 27, 1941.

      John B. Warren, of Houston, for appellant.
    Gammage, Gammage & Bauer and Pink-ney H. Fowler, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This action was brought in the County Court at Law of Harris County by appellant, E. N. Higgins, as beneficiary under an automobile collision policy issued by ap-pellee, Standard Lloyds, to recover damages to his automobile caused by an accidental collision with another automobile. Appellee, Mossier Acceptance Company, was made a party defendant under allegations that it was making some claim to the proceeds of said policy.

Appellees answered by general demurrer, exceptions and general denial. Appellee, Standard Lloyds, alleged that appellant was bound by the terms of said insurance policy, which provided that its maximum liability was what it would cost to replace the automobile or its parts and that it was not liable for recovery of damages thereto while the automobile was being used as a public or livery conveyance. It denied liability on the ground that said automobile was in the taxicab service 'at the time of said collision. •

Appellee, Mossier Acceptance Company, by cross-action, sought recovery against appellant of the sum of $68.72, alleged to have been the balance due it by appellant on a note given as part of the purchase price of said automobile.

At the conclusion of the evidence, upon motion by both appellees, the court instructed the jury to return a verdict for appellees and in favor of appellee, Mossier Acceptance Company, on its cross-action for the sum of $68.72, with interest. On the return of said verdict judgment was rendered accordingly.

Appellant assigns error in the court’s action in directing said verdict and in rendering a judgment thereon, for the alleged reason that the testimony presented fact issues which should have been submitted to the jury for determination.

The record shows that appellant purchased the automobile in question on October 6, 1936. As a part of the purchase price therefor he executed his note for the sum of $898.20, payable in monthly installments of $29.94, and secured by a chattel mortgage on the automobile. This note and the chattel mortgage by which it was secured were assigned to appellee, Mossier Acceptance Company.

Appellee Standard Lloyds issued its policy of insurance covering damages from collision to said automobile, with a $25 deductible clause, on May 2, 1938. The loss under said policy was payable to appellant and appellee, Mossier Acceptance Company, as their interest might appear. Said policy provided for the payment of direct damage to said automobile and its operating equipment caused by accidental collision, but expressly - excluded loss incurred while it was being used as a public or livery conveyance or while carrying persons for a consideration. It provided that the company’s liability for damage to the automobile should not exceed the actual cash value thereof at the time the damage occurred or the amount it would then cost to repair it or replace its damaged parts.

The automobile in question was damaged in a collision with another automobile in the City of Houston on October 23, 1938. At the time of said collision said policy of insurance was in full force and effect.

The sole question presented in this appeal is whether there is any evidence in the record which, when considered by itself, would, if accepted as true by the jury, raise an issue of fact under which the judgment rendered by the trial court in favor of appellees might be rendered in favor of appellant.

It is the established rule in this state that, as against an instructed verdict, the testimony of the party against whom such judgment is rendered must be taken as true and that he must be given the benefit of all' fact evidence, circumstantial or otherwise, bearing on his cause of action, as well as all reasonable inference arising therefrom. Lawson v. Hutcherson, Tex.Civ.App., 138 S.W.2d 131; Owen v. Al Parker Securities Co. et al., Tex.Civ.App., 296 S.W. 620, affirmed Tex.Com.App., 1 S.W.2d 271; Coca-Cola Bottling Co. v. Dickson, Tex.Civ.App., 115 S.W.2d 1223; Dendy v. Cockerham et ux., Tex.Civ.App., 82 S.W.2d 756; Texas Emp. Ins. Ass’n v. Ritchie, Tex.Civ.App., 75 S.W.2d 942; Panhandle & S. F. Ry. Co. v. Jones, Tex.Civ. App., 105 S.W.2d 443.

This rule is followed in the case of Bragg v. Houston Electric Company, Tex.Civ.App., 264 S.W. 245, 251, in which the court in its opinion, quoting from the Supreme Court of.the State of Ohio in the case of Hickman v. Ohio State Life Insurance Company, 92 Ohio St. 87, 110 N.E. 542, lays down the following rule: “Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact, even though the trial judge should himself be convinced as to what the conclusion should be.”

In the case of Needham v. American Nat. Insurance Co., Tex.Civ.App., 97 S.W. 2d 1016, 1020, it is said: “While appellee offered sufficient evidence to raise jury issues on the questions raised by its pleadings, this being an appeal on peremptory instructions against appellant, we shall not review appellee’s evidence, for, under the disposition of the case against a plaintiff on peremptory instruction, appellant’s evidence must be taken as true, and every reasonable inference arising from such evidence must be indulged in favor of appellant, notwithstanding all such evidence may have been contradicted by substantial evidence offered by appellee, and a contrary reasonable inference could have been indulged”, citing Bragg v. Houston Electric Co., Tex.Civ.App., 264 S.W. 245; First National Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Gattis et al. v. Kirk et al., Tex.Civ.App., 12 S.W.2d 589; Shaffer v. Rhyne et al., Tex.Civ.App., 75 S.W.2d 133; 3 Tex.Jur., 1050.

It is held in the case of Kleising v. Miller et al., Tex.Civ.App., 83 S.W.2d 732, 733, that: “The test to he applied in determining whether the trial court is authorized to instruct a verdict is whether there is any evidence which, when considered by itself, would, if accepted as true by the jury, raise a fact issue. Thomas v. Postal [Telegraph-Cable] Company (Tex.Com. App.) 65 S.W.(2d) 282; Stinnett v. [Gulf, C. & S. F.] Railway Co. (Tex.Civ.App.) 38 S.W.(2d) 615.”

While the testimony in the instant case as to the value of said automobile, the extent of the damages thereto, the reasonable costs of repairs and necessary parts, and as to whether it was in the taxicab service at the time of said collision, is conflicting and in some instances meager, ample testimony was introduced by appellant to prove that said automobile was damaged at the time and place and in the manner alleged. Appellant introduced testimony to the effect that many parts of said automobile were damaged in said collision to such an extent as to require their replacement. He proved the value of the necessary parts and the reasonable cost of the labor necessary for repairs and the installation of necessary parts. Ample evidence was also introduc. 1 by appellant to the effect that said automobile was not in the taxicab service at the time of said collision.

While, under, appellant’s testimony, he would not have been entitled to recover the full amount of the damages alleged by him, he was unquestionably entitled, under the record herein, to have had issues submitted to the jury as to whether said automobile was_ in the taxicab service at the' time of' said collision and as to whether he sustained any damages by reason thereof and, if so, the amount thereof.

Applying the principles above stated, that where there has been an instructed verdict only the evidence favorable to appellant’s contention can be considered in determining whether the issues of fact, if any, raised by the evidence should be submitted to the jury, to the instant case, we must hold that the trial court erred in withdrawing the case from the jury and instructing it to return a verdict for appel-lees.

Appellant’s assignment of error, that the cross-action of appellee, Mossier Acceptance Company, against appellant for the sum of $68.72, alleged to have been a balance due appellee on a note executed by appellant, w;as a separate and independent suit, and that the court had no jurisdiction of the amount in controversy, must be sustained.

It is the established rule in this state that a defendant cannot, by filing a cross-action, counter-claim,, or plea in re-convention, litigate a suit entirely different and foreign to the main action for an amount over which the court has no jurisdiction. Hardeman v. Morgan, 48 Tex. 103; Fridh et al. v. Giberson & Kempff et al., Tex.Civ.App., 21 S.W.2d 563; Dawson v. Duffle, Tex.Civ.App., 191 S.W. 709. Under such circumstances, since the court in the instant case had no jurisdiction over the amount sued for in Mossier Acceptance Company’s cross-action, it was the duty of the court to dismiss said cross-action for want of jurisdiction. Dawson v. Duffic, Tex.Civ.App., 191 S.W. 709; Armstrong v. Clayton, Tex.Civ.App., 255 S.W. 1015; Fridh et al. v. Giberson & Kempff et al., Tex.Civ.App., 21 S.W.2d 563.

Appellant’s cause of action is for the recovery of the amount alleged to be due under an automobile collision insurance policy, payable to appellant and to appellee, Mossier Acceptance Company, as their interests may appear. Appellee Mossier Acceptance Company was made a party defendant under allegations that it was making some claim to the proceeds of said policy. By its cross-action said appellee sought recovery of an alleged balance due it by appellant on a note. The court, in its judgment, found that appellant was not entitled to recover under said insurance policy. It necessarily follows that the action asserted by appellee, Mossier Acceptance Company, in said cross-action was not only different and foreign to the main action, but, being for the sum of only $68.72, the County Court at Law of Harris County had no jurisdiction thereof.

The judgment of the trial court is therefore reversed, and the cause remanded for a new trial except with respect to the cross-action of the appellee, Mossier Acceptance Company, and that in this respect the trial court is instructed to dismiss said cross-action for want of jurisdiction.

Reversed and remanded.

On Motion for Rehearing. _

Upon motion of appellee, Standard Lloyds, for a rehearing and upon a careful re-examination of the record herein we have concluded that we were in error in reversing and remanding that portion of the judgment of the trial court denying appellant recovery against appellee, Standard Lloyds.

As stated in our original opinion, the sole question involved in this appeal is whether there was any evidence in the record which would raise an issue of fact under which judgment might he rendered in favor of appellant.

Upon a review of the record we find that there is neither competent proof of the value of said automobile immediately prior to its injury, nor is there testimony of any kind as to its value in its injured condition immediately after its injury.

The correct measure of damages to personal property is the difference between its reasonable market value at the time and place of its injury immediately before its injury and its value immediately after the injury. If the injured property has no market value at such time and place, then the damage may be calculated upon the basis of its actual value. Standard Paving Co. v. Pyle, Tex.Civ.App., 131 S.W. 2d 200; Anderson et al. v. Reichart et al., Tex.Civ.App., 116 S.W.2d 772; Whitley v. Kinsel Motor Co., Tex.Civ.App., 94 S.W.2d 202; Union City Transfer Co. v. Texas & N. O. R. Co., Tex.Civ.App., 55 S.W.2d 637.

While appellant contends that the witness Charles E. Evans testified as to the market value of said car prior to its injuries, the record shows that this witness testified that he did not know the condition of the car in the fall of 1938. He testified that he had seen the car when it came into his place of business to be serviced, but that he had not paid particular attention to it; that he had heard that the car had been in a wreck, but that he did not know when the wreck occurred or when he had last seen the car, and that the only way that he could give his opinion as to its,market value would be to compare it with a car of similar age and then give his opinion as to its value. Based on these facts he testified that the value of the car was about $450 at the time of its injury.

In our original opinion we took into consideration the fact that said car had been injured and the reasonable cost of certain repairs and replacements.

While our courts have, under certain circumstances, permitted the recovery of replacements and repairs made necessary by an injury to personal property, this rule is based on the theory that, by such replacements and repairs, the injured property will be restored to its former condition immediately before the injury, and, if the injured property, after being repaired, is worth less than it was before the injury, the difference in its value before the injury and after said repairs may also be recovered. It follows that if the .injured article, after being repaired, is worth more than it was immediately before the injury, the party who has caused the injury or who is obligated to pay damages therefor is not required to pay the full cost of said repairs, but is only liable for so much of the expenditures made therefor as are necessary to put the injured property in its former condition immediately prior to its injury. Union City Transfer Co. v. Texas & N. O. R. Co., Tex.Civ.App., 55 S.W.2d 637; Robson v. Zumstein Taxicab Co., 198 Ky. 365, 248 S.W. 872; White v. Beaumont Implement Co., Tex.Civ.App., 21 S.W.2d 559; 13 Tex.Jur., 160.

Since there was no competent proof in the record of the value of appellant’s car, either before or after its injury, nor was proof offered that repairs or replacements were made thereon, or, if made, that they did not put the car in a better condition than before its injury, there was no basis in the record for the submission of issues to the jury as to the amount of damages sustained by appellant, and it was proper for the trial court to instruct the jury to return a verdict in favor of appellee, Standard Lloyds.'

It follows that appellee Standard Lloyds’ motion for a rehearing must be granted and that the judgment of the trial court as to it must be affirmed.

Since no useful purpose can be served by remanding this cause as between appellant arid appellee, Mossier Acceptance Company, the order to that effect heretofore entered will be set aside and judgment here rendered that the cross-action of ap-pellee, Mossier Acceptance Company, be dismissed.

Rehearing granted.

Affirmed in part, and in part reversed and rendered.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED FINANCE CORPORATION v. QUINN.
    No. 11108.
    Court of Civil Appeals of Texas. Galveston.
    March 6, 1941.
    Rehearing Denied March 27, 1941.
    Gammage, Gammage & Bauer, of Houston, for appellant.
    Camille Openshaw, Albert J. DeLange, F. A. Stamper, and R. P. Beman, Jr., all of Flortston, for appellee.
   MONTEITH, Chief Justice.

This -is an appeal from a judgment of the County Court at Law No. 2 of Harris County in an action brought by appellant, United Finance Corporation, against ap-pellee, A. R. Quinn, for the recovery of a balance of $93.36 alleged to have been due on a note executed by appellee as a part of the purchase price of an automobile, and $25 attorney’s fees, and for foreclosure of a chattel mortgage lien on said automobile.

Appellee answered by general denial and’ general demurrer. By cross-action he alleged that the note in question had been procured by fraud and that he had paid usurious interest thereon in the sum of $69; that there was incorporated in said note the sum of $38.43 with which appellant had agreed to procure insurance on said car but that, after he had had a collision, with resultant damage thereto, he had learned that appellant had failed to procure said insurance. He sought cancellation of said note, attorney’s fees and said mortgage lien, the statutory penalty of double the amount of usurious interest paid in the sum of $138, the net amount of damage to his car by reason of said collision in the sum of $50, and the reasonable value of the loss of its use in the sum of $10. By alternative plea he sought recovery of said sum of $38.43 alleged to have been retained by appellant to procure said insurance.

This action was originally brought in the justice court of Harris County. On appeal to the County Court at Law No. 2 of Harris County in a trial before the court, judgment was rendered that appellant take nothing by its suit for the balance of principal and attorney’s fees alleged to have been due on said note. The foreclosure of said mortgage lien was denied and said note and mortgage were cancelled and adjudged as paid in full and appellee was awarded judgment in the sum of $138, double the amount of $69 found by the court to have been usurious interest paid, and the further sums of $50 for damages to appellee’s car, and $10 for loss of the reasonable value for the use thereof, a total of $198 in addition to the cancellation of the balance due on said note and said attorney’s fees.

The judgment recites that a general demurrer was urged by appellant to appellee’s cause of action; that it was overruled, and that appellant duly excepted thereto.

Appellant contends that the trial court did not have jurisdiction to entertain ap-pellee’s cross-action, for the alleged reason that the amount involved in said cross-action was in excess of the maximum original jurisdictional amount of the justice court, and the maximum appellate jurisdictional amount of the county court at law.

It is the established law in this state that, in determining the amount involved in a cross-action of this character for jurisdictional purposes, the amount of principal and attorney’s fees alleged to be due on the note sued upon and sought to be can-celled must be taken into consideration in addition to the amount of damages claimed by defendant in his cross-action. Lewis v. Fowler, Tex.Civ.App., 128 S.W.2d 107; Commercial Investment Trust, Inc. v. Smart, 123 Tex. 180, 69 S.W.2d 35; Pennant Oil & Gas Co. v. Lightfoot, Tex. Com. App., 292 S.W. 517; Commercial Credit Co., Inc. v. Moore, Tex.Civ.App., 270 S.W. 582; Bishop & Babcock Sales Co. v. Haley, Tex.Civ.App, 115 S.W.2d 772.

Further, it has been uniformly held that the pleadings filed by a litigant determine jurisdiction, and that if they allege a cause of action without the jurisdiction of the court, the court has no jurisdiction ■notwithstanding the fact that it may render a judgment for a sum within its jurisdiction. This rule is laid down in 11 Texas Jurisprudence, page 739, wherein it is said: “Jurisdiction, in so far as matter or amount in value in controversy is concerned, is determined by the petition, and that question is concluded by the averments in so far as they state facts in relation to the thing in controversy, * * *. Or, as otherwise stated, where the question of jurisdiction depends on the amount in controversy, the damages claimed in actions sounding in damages, or the amount claimed in actions ex contractu, and not the evidence, nor the findings, nor the amount of the verdict or judgment, give the court jurisdiction, * *

It is further said in 11 Texas Jurisprudence, page 737: “It is the amount or matter in controversy at the time of filing suit and not the amount of the recovery— something to be determined only at the end of the litigation — that determines jurisdiction.”

The following amounts are shown by the petition in appellee’s cross-action to have been in controversy in the trial court: (a) The balance of $93.36 alleged by appellant to have been due on said note, with $25 attorney’s fees; (b) the sum of $138, double the amount of the $69 alleged to have been the amount of usurious interest paid by appellee; (c) the sum of $50 damages alleged to have been sustained by appellee by reason of appellant’s failure to insure appellee’s automobile; (d) the sum of $10 alleged to have been the reasonable value of the loss of the use of said car; and (e), in the alternative, for the cancellation of said note to the extent of $38.43 alleged to have been included in the face amount of said note to procure insurance on appellee’s car.

It thus clearly appears that the amount sought by appellee in his cross-action, under above authorities, is in excess of the maximum jurisdiction of the justice court, and, as the jurisdiction of said county court at law to which this suit was carried by appeal was appellate and not original, the court acquired no jurisdiction to render the judgment from which this appeal was prosecuted.

It follows that the judgment of the trial court should be reversed and the cause remanded.

Reversed and remanded.


author: HALL, Justice.

text:
    TALCO ASPHALT & REFINING CO. v. McCANN.
    No. 5791.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1941.
    Malone, Lipscomb, White & Seay, of Dallas, Hiram Brown, of Mt. Pleasant, and Bromberg, Leftwich, Carrington & Gowan, of Dallas, for appellants.
    Seb F. Caldwell and Cook & Russell, all of Mt. Pleasant, for appellee.
   HALL, Justice.

This is an appeal from an order of the District Court of Titus County overruling a plea of privilege filed by Jack Frost, J. Harold Byrd, J. F. Lucey, and Ralph E. Fair. Appellee, McCann, brought suit against the Talco Asphalt & Refining Company, alleging it to be a partnership composed of Jack Frost, J. Harold Byrd, J. F. Lucey, and Ralph E. Fair, for damages to his land, brought about by the pollution of Tankersley Creek which runs through same. It was alleged that the pollution of said creek by the asphalt company rendered appellee’s land unfit as a pasture for his cattle. It was also alleged that said pollution by the asphalt company constituted a penal offense, prohibited by the laws of this state, and that said act also constituted damages to land.

To this action appellants filed their plea of privilege to be sued in Dallas County, Texas, the county of their residence. In due time their plea of privilege was controverted by appellee, in which he alleged that venue was properly laid in Titus County under exceptions 9 and 14 of Article 1995, R.C.S., relating to trespass and damage to land, respectively. The plea of privilege was overruled by the trial court.

Article 1995, R.C.S., provides that:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domifcile except in the following; cases: * * *
“9. A suit based upon a crime, offense, or trespass may be brought in the county where said crime, offense, or trespass was committed. * * *
“14. Suits for the recovery of lands or damages thereto, * * * must be brought in the county in which the land, or a part thereof, may lie.”

Appellee’s controverting affidavit was based upon the two foregoing exceptions, and in order for him to maintain his suit in Titus County, it was incumbent on him to establish by legal testimony the existence of at least one of said exceptions. Compton v. Elliott 126 Tex. 232, 88 S.W.2d 91; Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867. And it was also, incumbent upon appellee to establish as a fact that appellants were legally responsible for the acts complained of. Conner v. Manning, Tex.Civ.App., 54 S.W.2d 249; Harrison v. Amador, Tex.Civ.App., 9 S.W.2d 279, and cases there cited.

The statement of facts i's short, comprising only seven pages, and while it contains sufficient proof of acts of the Tal-CO Asphalt & Refining Company in turning refuse matter into Tankersley Creek, no reference whatever is made to the appellants. There is no proof of any kind showing their connection with the Talco Asphalt & Refining Company. Only one witness testified, the son of appellee, and his testimony makes no reference whatsoever to any ownership, or claim of ownership, of the asphalt company by appellants.

Under this state of the record, it is our opinion that the plea of privilege should have been sustained. Therefore the judgment of the trial court is reversed, and remanded with instructions to transfer this cause of action to a district court of Dallas County, Texas.


author: SMITH, Chief Justice.

text:
    LAIRD v. FORREST.
    No. 10856.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1941.
    Rehearing Denied March 26, 1941.
    Elmer Ware Stahl and A. R. Sohn, both of San Antonio, for appellant.
    Leonard Brown and E. B. Chambers, both of San Antonio, for appellee.
   SMITH, Chief Justice.

O. S. Laird brought this action in a district court against John P. Forrest for usurious interest and for damages, in effect, for delay in adjusting and settling certain amounts alleged to be owing Laird. The parties will be designated as plaintiff and defendant, respectively, as in the court below.

The suit went off by dismissal after a special exception to the jurisdiction of the court over the subject matter was sustained, and plaintiff had refused to amend. Plaintiff Laird has appealed.

The case stated in plaintiff’s lengthy petition may be summarized as follows : Plaintiff borrowed $30 from defendant and gave his 'note therefor in the usurious sum of $42.50, together with deed of trust on certain realty as security. It was stipulated in the deed of trust that defendant should have the exclusive agency to sell the realty and 5 per cent on the sale price when sold, as commission, but said purported commission was in fact additional interest on the $30 loan. Plaintiff himself procured and consummated a sale of the property for $750, represented by a vendor’s lien note. Plaintiff then borrowed an additional $50 from defendant, giving his note for $72 to cover the loan with usurious interest, and also as further security, executed a written assignment of said $750 note to defendant, as collateral to secure said loan, but which instrument was by its terms an outright transfer to defendant. Through that device defendant attempted (but later failed) to defraud plaintiff out of said $750 note by selling it for $700 cash, claiming ownership of the proceeds by virtue of the written assignment of the note to him. From November 1, 1938, plaintiff begged defendant to account to him for his share of the proceeds of the $750 note, but defendant failed and refused to do so, thereby attempting to defraud plaintiff out of said share, until November 10th, when defendant “reconsidered and finally gave plaintiff the sum of $443.65” out of said proceeds, retaining $256.35 for himself. Plaintiff further alleged in his petition, “That for the loans of $30.00 and $50.00, he was required by defendant to pay the sum of $256.35, and that $176.35 of said sum so paid represented interest unlawfully demanded and paid, whereby defendant became bound and obligated to pay plaintiff double the amount of such unlawful and usurious interest, to-wit: $352.70. That by reason of defendant selling the $750.00 note for $700.00, plaintiff sustained the further damage in the sum of $50.00.”

Plaintiff prayed for $352.70, being double the amount of the alleged usurious interest paid to defendant, and $50 discount at which defendant sold the $750 note, or for the aggregate sum of $402.70, for which plaintiff prayed an accounting. And plaintiff prayed, further, “That by reason of the wrongful, oppressive, deliberate, malicious, and studied conduct on the part of the defendant in attempting to defraud plaintiff out of the $750.00 note, plaintiff suffered mental pain and anguish in the sum of $2,000.00. That defendant’s conduct in attempting to defraud plaintiff out of the $750.00 note was wrongful, fraudulent, oppressive, deliberate, studied, and done for the malicious, wrongful and fraudulent purpose of cheating and defrauding plaintiff out of all or part of the money plaintiff was to receive from the sale of his equity in his real estate, and by reason thereof plaintiff was entitled to exemplary damages in the sum of $4,000.00.”

So, 'the sum of the ultimate relief sought by plaintiff in his petition was (1) for penalty of $352.70, being double the amount of usurious interest alleged to have been paid to defendant for the loans of $30 and $50, respectively, and $50 for which defendant discounted the $750 note; (2) for damages for mental pain and suffering caused by defendant’s attempted fraud, in the sum of $2,000; (3) and for exemplary damages on the latter count in the sum of $4,000.

Defendant challenged the jurisdiction of the court over the amount in controversy by special exception, which was sustained, as follows: “1. Defendant specially excepts to the petition because this court does not have jurisdiction of the amount of usurious interest sought to be recovered, amounting to $352.70, but the County Court at Law has jurisdiction of the same.”

It must be conceded, of course, that the district court had no jurisdiction of the amount, only, of the penalty sought for usurious interest, which was $352.70, plus $50 on accounting. The question remains then, Did plaintiff allege a cause of action for either actual or exemplary damages in amounts which, added to the sum demanded for usurious interest, aggregated an amount within that jurisdiction, to-wit: $500?

We have carefully examined plaintiff’s lengthy petition, and have undertaken to state its contents, in general terms, sufficiently to give its maximum effect upon plaintiff’s claim of jurisdiction. It may be summarized by saying that plaintiff alleged that defendant attempted (but failed) to defraud plaintiff out of the note and deed of trust he had obtained for the realty he had sold, and attempted (but failed) to defraud plaintiff out of the proceeds from the sale of said note and deed of trust, which defendant had collected. The detailed allegations of those conclusions as to fraud show, affirmatively, that the parties each asserted a different ■ construction upon their agreements, the very terms of which negatived plaintiff’s contentions; that the delay in concluding the final settlement resulted more than otherwise from disputes between the parties as to their respective obligations to each other, and from plaintiff’s contentions that he was entitled to rights actually negatived by the written agreements of the parties. And, at most, the allegations of the petition, if given the full effect intended and contended for by plaintiff, show that both alleged attempts to defraud plaintiff failed, and that the sole actionable allegations are those which set up the alleged transactions smacking of usury and for accounting.

In determining jurisdiction the courts may and should examine the allegations of the parties, and disregard those which do not show actionable complaints. If, after such are eliminated from the petition, the remaining allegations do not show a course of action for an amount within the jurisdiction of the court, it is the duty of the court to dismiss the suit in the absence of effective amendment. 11 Tex. Jur. p. 741, § 27, and authorities.

The judgment is affirmed.


author: GRAVES, _ Justice.

text:
    CALLISON v. RED et al.
    No. 11125.
    Court of Civil Appeals of Texas. Galveston.
    March 6, 1941.
    Rehearing Denied March 27, 1941.
    Taliaferro & Graves, of Houston, for appellant.
    W. Scott Red, George Red, and Tom M. Davis, all of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellees.
   GRAVES, _ Justice.

This appeal is from a judgment of the 127th District Court of Harris County, in favor of appellees and against appellant, entered upon the verdict the court instructed the jury to render at the close of appellant’s evidence and before the appel-lees had offered any in their own behalf; the suit having been one for damages for personal injuries, allegedly suffered by appellant’s wife from slipping and falling upon an office floor, claimed to have been maintained in a negligent and unsafe condition by the appellees.

These respective statements from the briefs of the parties outline more fully the reaches of the cause, to-wit:

(1) That of the appellant:

“Appellant, plaintiff, alleged, in substance, that his wife, Marie Callison, on July IS, 1938, visited the offices of ap-pellees, defendants, practicing; physicians, 817-819 Caroline Street, Houston, for professional examination. That, in passing from the reception room to a consultation, via a hallway, Marie Callison fell, due to defective condition and negligent maintenance of the premises. A partnership, ■joint-adventure, and joint-maintenance, were alleged between both appellees, and ownership alleged in S. C. Red. That, as a result of the fall, Marie Callison suffered a fractured hip, with consequent complications, one of which was phlebitis, an inflamation of the veins.
“Appellee-defendants filed separate, but identical, answers, consisting of the usual general demurrer, general denial, special pleas of contributory negligence, and specially denying partnership or any joint adventure.
“The proof showed Mrs. Marie Callison, wife of appellant, on July IS, 1938, visited appellees’ offices to have her blood pressure tested. Dr. S. C. Red waited on her companion. After waiting a short time, Marie Callison saw Dr. W. S. Red pass through the hall. There was no one else in the reception room and Mrs. Callison started up, intending to go to the consultation room of Dr. W. S. Red. Just as she stuck one foot out into the hall, from the reception room to the hallway, she slipped and fell.
“For reversal, appellant submits the following' propositions:
“Proposition No. One. The trial court erred in directing a verdict for the defendants, because the pleadings and the evidence of the witnesses Marie Callison, Robert B. Taylor, W. S. Red, S. C. Red, Raster Colbert, and the proffered, improperly rejected testimony of the witness Robert Taylor, raised issues of negligence on the part of the defendants in failing to maintain the premises in a reasonably safe condition.
“Proposition No. Two. Where the witness, Robert B. Taylor, testified that he examined the floors on February 4, 1939, and that the floors at that time were uneven, such testimony was admissible for the purpose of showing that the same condition existed on July 15, 1938.
“Proposition No. Three. Where the witness, Robert B. Taylor, testified that on February 4, 1939, the floors were not level on the premises where the injured person ' fell and where the defendant, S. C. Red, who is the owner of the property, testified that there was no change of condition. Then the testimony of the witness, Taylor, was admissible.
“Proposition No. Four. Where the witness, A. E. King, after qualifying as an . expert on floors, testified that he examined the floors in September, 1939; that at that time the floors sloped and were uneven; this testimony was admissible as affording a presumption that the same condition existed on July 15, 1938.
“Proposition No. Five. Where the witness, A. E. King, after first having qualified as an expert on floors, testified that in his opinion the floors were not safe at the time of his examination, in September, - 1939, this testimony was admissible where the defendant, S. C. Red, said that there was no alteration of condition.”

(2) That of the appellees:

“The trial court properly instructed a verdict herein for appellees, for the following reasons:
“(a) The evidence failed to show any actionable negligence on the part of ap-pellees, or either of them;
“(b) Irrespective of negligence, the condition of the floor was open and obvious, and Mrs. Callison assumed the risk of using it; and
“(c) Even if the evidence was sufficient to show actionable negligence in the case of an invitee and the risk of using the floor was not assumed, Mrs. Callison, the injured party, at the time and place of receiving her injuries, was a trespasser, or at most a licensee, and took the premises in the condition in which- she found them.
“The following facts were proven by undisputed evidence:
“(a) Mrs. Callison had suffered for years with an arthritic right knee which, through a lack of full flexion and extension, created a tendency to slip and an in- , ability to retain or regain her balance in the event her foot slipped. Despite that condition she was wearing high heel shoes instead of low heel, broad surface walking shoes, and was not using a cane or other support to assist in walking.
“(b) Her fall was occasioned by her right foot slipping on an ordinary hardwood floor, which had been polished with Johnson’s floor wax in the usual manner eleven days before, and thereafter traversed by numerous persons who had neither slipped nor noted any unusual condition of the floor. No greasy, oily, wet, or foreign substance of any kind was found on the floor. It does not appear that any mark was left on the floor due to Mrs. Callison’s slipping. She described the floor as “a little rough”, but she did not expressly attribute her fall to that fact. For some ten minutes or more just prior to her fall Mrs. Callison had been seated in a position to observe the floor where she slipped, and had actually noted that it was an uncovered wooden floor. She admittedly expected any hardwood floor to be waxed. Hence, before proceeding upon the floor, there was no condition or circumstance about the same which was not known to or anticipated by her.
“(c) At the time and place of her fall, Mrs. Callison was a trespasser, or a licensee, in that, despite her knowledge of the custom of the particular offices and that of other physicians’ offices which she had visited in the City of Houston and elsewhere, Mrs. Callison, without invitation and before she fell, left the reception room, the public portion of said offices and entered the private portion of same, where the private consultation and examination rooms were located.
“First Counter-Proposition. Even assuming that Mrs. Callison was an invitee at the time and place that she sustained her injuries, the evidence in this case wholly fails to raise any issue of negligence, which proximately caused said injuries, and hence the trial court properly instructed a verdict for appellees.
“Second Counter-Proposition. The trial court properly excluded evidence as to the slope in the floors found to exist in February and September, 1939, there being evidence that such slope did not exist on July 15, 1938, the date of the accident, and no evidence, or basis for a presumption, to the contrary.
“Third Counter-Proposition. Even if the evidence of the slope of the floor found to exist in February and September, 1939, was admissible, its exclusion was harmless error, because:
“(a) The existence of such a slope, taken either alone or in connection with all other evidence in the record, was insufficient to raise an issue of negligence;
“(b) Assuming negligence due to' a slope in the floor, appellant failed to present evidence sufficient to warrant a jury finding that Mrs. Callison’s fall was proximately caused thereby; and
“(c) • The floor was plainly visible, its condition was open and obvious, and Mrs. Callison assumed the risk and dangers, if any, in using the same.
“Fourth Counter-Proposition. The trial court properly instructed a verdict for ap-pellees, because under the undisputed evidence Mrs. Callison was a trespasser, or at most a licensee, at the time and place that she sustained her injuries, so that appel-lees owed her no duty of maintaining the premises in safe condition and Mrs. Cal-lison accepted the risk of using the premises in the condition in which she found them.
“Fifth Counter-Proposition. The undisputed evidence shows that W. S. Red, Jr., as tenant of S. C. Red, owed the duty of keeping up the offices, including the cleaning and polishing of the floor where Mrs. Callison fell, so that-W. S. Red, Jr., could not have recovered from S. C. Red for an injury caused W. S. Red., Jr., by the condition of the floor. As Mrs. Callison was solely the invitee of W. S. Red, Jr., if an invitee at all, the trial court properly instructed a verdict in favor of S. C. Red, because an invitee of a tenant could have no greater right against the owner of the premises than the tenant would, have.”

These respective statements have been contrasted for this reason: Appellant’s quoted propositions, in effect, make two contentions: (1) That the testimony of appellant’s wife, Robert B. Taylor, the two appellees, and Raster Colbert, raised issues of negligence, in that it reflected that “the floor was in a slippery condition and was oily and slippery at the time Mrs. Cal-lison fell on July 15, 1938”; and (2) the exr eluded testimony of the witnesses Robert B. Taylor and A. E. King, to the effect that the floors were uneven when examined by one of them, each, on the respective dates of February 4 and in September of 1939, was admissible as tending to show the same condition to have existed on July 19 of 1938, especially when Dr. S. C. Red, the owner of the property testified there had been no change of condition in the floor between those several dates.

This court, however, after careful consideration of the record, is unable to agree either with appellant’s stated assumptions of fact, or his conclusion of law that he draws therefrom; that is, as it reads the statement of facts, there is no testimony showing or reasonably tending to show that the floor was in a “slippery condition”, or was “oily and slippery”, at the specified time Mrs. Callison testified she fell upon it; indeed, Mrs. Callison herself did not so testify, her own version being the other way from “oily and slippery”, when she merely stated that the floor seemed to her at the time to be “a little rough”; nor did any other witness testify that it was “slippery”, or “oily and slippery”, or to any other facts from which that was a legitimate inference; indeed, the only testimony in that field was that eleven days before July 15 of 1938 the floor, which was of hardwood, had been polished with Johnson’s floor wax in the usual manner, and for that eleven days had been walked on by many people, none of whom had been shown either to have slipped up or noted any unusual condition upon the floor.

It would serve no useful purpose to recapitulate the testimony upon this feature of the cause, it being sufficient to find that appellant’s assumption of there having been such a “slippery and oily condition” at the time Mrs. Callison fell is without support in this record; hence his propositions of law upon such a premise, as well as his citation in support thereof of such authorities as Brockman v. J. Weingarten, Inc., Tex.Civ.App., 115 S.W.2d 753, affirmed 134 Tex. 451, 135 S.W.2d 698; Hohlt Co. v. Routt, Tex.Civ.App., 48 S.W.2d 386; Campbell v. F. W. Woolworth Co., Tex.Civ.App., 16 S.W.2d 907; Kress & Co. v. Dyer, Tex.Civ.App., 49 S.W.2d 986; Berwald v. Turner, Tex.Civ.App., 52 S.W.2d 112; Gordon v. McIntosh, Tex.Civ.App., 54 S.W.2d 177; Kress & Co. v. Jennings, Tex.Civ.App., 64 S.W.2d 1074; Harsha v. Renfro Drag Co., Tex.Civ.App., 77 S.W.2d 584; Renfro Drag Co. v. Jackson, Tex.Civ.App., 81 S.W.2d 101; Alamo National Bank v. Hazlitt, Tex.Civ.App., 92 S.W.2d 315; and New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, are not applicable here.

In each and all of those cases there was either direct or admissible circumstantial proof to the effect that the fall had been attributable to some foreign substance on the floor, as to which there is a complete hiatus in this instance; no such dangerous foreign substance was upon this floor at the time involved, except the wax polish referred to, which, even Mrs. Callison herself said, you would expect on such a hardwood floor as it was, otherwise “a floor may be badly scarred if you don’t put wax on it.”

So that, the factual premise of appellant’s contention that an issue of negligence was so raised here being untenable, and the ultimate purport of the testimony as a whole being to the contrary, as indicated supra, it is held, under these authorities, that no such issue was raised; Kay v. Audet, 306 Mass. 337, 28 N.E.2d 462; Miller Bros. v. Mansfield, 3 Negligence Cases, 842; Mack v. Woman’s Club, 303 Ill.App. 217, 24 N.E.2d 898; 100 A.L.R. 748.

Neither, it is thought was there reversible error in the exclusion of the quoted testimony of the witnesses, Robert B. Taylor and A. E. King to the effect that when their separate examinations of the premises were made, the former on February 4, 1939, and the latter in September of 1939, that the floors were uneven; this, for the reasons given in the appellee’s counter-propositions two and three, supra. In the first place, here again the factual premise to the effect that Dr. S. C. Red, the owner of the property, had testified that there had been no change in the condition of the floors between the dates of July 15 of 1938, and February 4 and September of 1939, is likewise thought to have been mistakenly laid; on the contrary, this record seems to reflect no probative testimony that conditions had not changed between those periods, but a well-nigh undisputed showing that such a change had occurred, between the date of the fall and February 4 of 1939, as accounted for the slope or unevenness Mr. Taylor testified to having seen on that date.

In other words, this court finds the record upon this detail to be substantially as thus stated in the appellee’s brief:

“Mrs. Callison' and S. C. Red did not know whether the floors sloped in July, 1938. W. S. Red, Jr., and Kaster Colbert testified they did not slope. The proper closing of the door between the white reception room and the passageway in July, 1938, and its sticking in the winter of 1939, is conclusive proof that a change took place between those dates. The probability of such a change was accounted for by Taylor, appellant’s own witness, due to the accumulation of water under the house from the overflow of a basin and two leaky pipes. It thus clearly appears that the condition had so changed by February, 1939, as not to be representative of conditions which existed on July 15, 1938.”

Wherefore, since in this instance it neither affirmatively appears that there had been no change in the condition of the floors between the dates involved, nor are there presented circumstances compelling a presumption to that effect, the testimony as to a condition found at two subsequent dates to the occurrence is not admissible; especially where, as here, direct testimony to the effect that a material change had occurred, and how and why, was present. Houston & Texas Central Ry. Co. v. Waller, 56 Tex. 331, 339; Galveston, H. & S. A. Ry. Co. v. McAdams, 37 Tex.Civ.App. 575, 84 S.W. 1076, writ of error refused; 20 Am.Jur. 284; Milano v. Wasserman, 255 Mass. 1, 150 N.E. 835; Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P.2d 820; Midco Oil Corp. v. Hull, 182 Okl. 21, 75 P.2d 1126; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Western Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ of error denied.

Further discussion is deemed unnecessary, since the conclusions stated determine the merits of the appeal. They require an affirmance of the judgment; it will be so ordered.

Affirmed. '


text:
    HARTFORD FIRE INS. CO. v. LaMON.
    No. 10864.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1941.
    Rehearing Denied March 12, 1941.
    Johnson & Rogers, of San Antonio, for appellant.
    Grover C. Morris and S. Engelking, both of San Antonio, for appellees.
   SMITH, Chief Justice.

LaMon brought this action against the Insurance Company to recover $1,000, the amount of a fire policy covering furniture and fixtures burned while contained in a building used as a cafe and rooming house in the town of Natalia, in Medina County. Upon a single jury finding, not challenged here, that the value of the destroyed property was $1,500, the court rendered judgment for plaintiff for $1,000, the amount sued for. The Insurance Company has appealed.

Appellant submits the case on its propositions of law, based on three assignments of error: first, that. the evidence failed to show, and there was no jury finding, that appellee made proof of his alleged loss, as required by the policy, wherefore, the trial judge should have directed a verdict for appellant or granted its motion for judgment non obstante veredicto; and, second, that the single jury finding, of the value of the destroyed property, was not sufficient to support the judgment.

The case is essentially one of fact. It was undisputed, was in effect conceded, that the property was insured by appellant against loss by fire in the amount of $1,000, and that it was destroyed by fire. That being the case it was not necessary to submit those basic issues to the jury. The jury found upon sufficient evidence that the value of the insured property was $1,500. The only remaining issue was that of whether appellee complied with his contractual obligation to furnish appellant with written verified proof of the loss, which issue was not submitted to the jury. Appellee contends, however, that that defense was waived by appellant. Upon that issue appellee and his father each testified emphatically and without the least contradiction that after the fire and in due course they presented to appellant’s admittedly authorized adjuster a list of the property insured and destroyed and offered to make any further proof of loss required by the company, whereupon the adjuster assured them that no further proof was necessary, that the proof appellee had already furnished him was “sufficient.” Now, this adjuster was present and testified for appellant upon the trial of this case, hut did not undertake to deny, did not mention, and was not even asked by appellant’s counsel about the statements and assurances attributed to him by appellee’s witnesses. Obviously, those statements, if true, constituted a complete waiver of appellant’s right to proofs of loss required in its policy. Chicago Fire & Marine Ins. Co. v. Herring, Tex.Civ.App., 54 S.W.2d 236, writ refused. And it is equally obvious that the testimony of ap-pellee’s witnesses, and the pointed silence of'appellant’s adjuster, who alone, if any one, was in a position to refute that testimony, conclusively established the fact of waiver.- The fact being established as a matter of law, it was not necessary to submit the issue thereof for a jury finding. That seems to be all there is to the case.

For, with the undisputed facts of coverage and' loss and of wavier of proofs of loss, and the jury finding of value in excess of the award, no other judgment could have been rendered, and it must be affirmed. The original opinion will be withdrawn and this substituted therefor.

Affirmed.


author: BOND, Chief Justice.

text:
    STRINGER v. GRIFFIN GROCERY CO.
    No. 12997.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 8, 1941.
    Rehearing Denied March 15, 1941.

      Gerald L. Johnson, of Dallas, for appellant.
    Geo. O. Wilson and E. M. Reichman, both of Dallas, for appellee.
    George A. McNulty and Irving J. Levy, both of Washington, D. C., and Llewellyn B. Duke, of Dallas, and Harry Campbell, Jr., of Tulsa, Old., Amici Curiae.
   BOND, Chief Justice.

This suit was instituted by appellant (plaintiff), seeking to recover from his former employer, the appellee (defendant), certain alleged unpaid wages for overtime, liquidated damages, and attorney’s fees, as provided by the Act of Congress, known as the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. § 201 et seq.

Plaintiff alleged that he is a resident of Dallas County, Texas, that the defendant is a corporation, organized under the laws of the State of Oklahoma, having a proper permit to do business in the State of Texas, engaged in the business of selling and transporting groceries and other merchandise, in its own trucks, across the state lines of Oklahoma and Texas, and maintaining a warehouse in the City of Dallas, Texas, in furtherance of its interstate business. Plaintiff further alleged that he was employed by defendant and engaged in its interstate business from November 24, 1938, to March 4, 1939, and, during that time, worked 1,090 hours, or 307 hours overtime, to the regular 44 working hours per week provided by law; that he was paid for only 783 hours, at the legal minimum wage of 39 cents per hour; that he is entitled to 58½ cents per hour, for hours worked in excess of the 44 hours per week, $179.59, being the rate provided on the basis of time and one-half for hours in excess of the 44 hours per week, plus an equal amount as liquidated damages, and $100 attorney’s fees.

In answer to such petition, the defendant interposed a general demurrer, special exceptions, general denial, and special answer controverting all issues of fact.

On hearing of demurrers and exceptions, the trial court sustained the general demurrer and special exception number 4, each challenging the jurisdiction of the state court to enforce the civil action brought by plaintiff, under and by virtue of the federal labor statute, supra, for wages, penalty, and attorney’s fees provided in the Act; thus dismissing the suit.

The Fair Labor Standards Act, passed by Congress 'in 1938, is unquestionably a law regulating commerce, and it specifically provides for civil and criminal liability for any violation of its terms. Section 216(a) imposes a penalty by fine or imprisonment, or both, for the violation of provisions set out in section 215 of the Act, which has no direct application to this suit; and, section 216(b), the section under consideration, reads:

“Any employer who violates the provisions of section 206 or section 207 of this chapter [pertaining to minimum wages and maximum hours for employes, as alleged and involved in this suit] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees rqay designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”

The sole question under consideration is whether a state court has jurisdiction of an action by an employe against his employer, pursuant to section 216(b), to recover the amount of unpaid compensation claimed to be due under the provisions of sections 206 and 207 of that Act, and an additional equal amount as “liquidated damages” and attorney’s fees.

We take it there is no question that courts of the United States and of the states have concurrent jurisdiction in all cases between citizens of different states, if it is one of judicial cognizance, unless such jurisdiction is limited or abridged by the Federal Constitution and Acts of Congress, or the Constitution and statutes of the states. State courts of general jurisdiction have power to decide cases involving the rights of litigants, like unto the one here involved, unless deprived of such right,by law. The rule is succinctly stated in 21 C.J.S., Courts, p. 797, § 526: “Concurrent jurisdiction in federal and state courts to enforce rights granted by federal law is not uncommon, and may exist even without an express grant. Generally, whenever a legal right arises and the state court is competent to administer justice, the right may be asserted in such court, although the federal court may have concurrent jurisdiction, unless the jurisdiction is limited by law to the federal courts, or unless the state courts are expressly or by necessary implication excluded by statute.” Under the Constitution and statutes of Texas, the county court, in which this action was instituted, is a court of competent jurisdiction of the amount involved.

The subdivision of the Act 216(b) was evidently passed for the laborers, and the rights and remunerations therein granted are exclusively for their benefit. Its provisions impose no penal liability in which the public may be interested, clearly-' a civil liability action inuring only to employes having aggrievance against their employers ; thus any suit instituted under its terms is necessarily one directed against an employer for violation of its terms and personal to an aggreived employe or employes. The language of the Act definitely vests “in any court of competent jurisdiction” the right to hear controversies arising under its provisions, and directs judgment in favor of the employe, as plaintiff, and against the employer, as defendant. It clearly provides for a civil action.

The court of “competent jurisdiction,” expressly designated in the Act, is not necessarily a Federal court, nor can it be said that such is exclusively a state court. The Act contains nothing which is suggestive of such restrictions. We think it is clear that Congress intended that all courts, Federal and state, shall have concurrent jurisdiction to hear controversies arising under the Act, leaving it to the complaining employe or employes to determine the forum where such action shall be instituted. There is nothing in the Act committing jurisdiction of such civil action to the Federal courts and withholding from the state courts jurisdiction of such suits; clearly, Congress had no such intention. This is emphasized by the fact that no court was designated in section 216(a) (the section immediately preceding the one under consideration), because it had reference exclusively to criminal liability, imposing a penalty by fine and imprisonment, thus, without more, under 28 U.S.C.A. § 371, the Federal courts are vested with exclusive jurisdiction of crimes, penalties, and forfeiture. In section 217 (the section next following subsection (b), Federal courts are expressly committed the trial of injunction proceedings arising under section 215 of the Act. And, in section 216 (b), the Act commits “action to recover such liability” (employer’s wages) to “any court of competent jurisdiction,” without expressing a remedy for its violation other than by civil action. The reasonable interpretation of the phrase, “any court of competent jurisdic- ; tion,” is generally held in both state and Federal courts to mean any Federal, state or territorial court, whose jurisdiction oveV cases of like nature is not prohibited by law. Burke v. McDonald, 2 Idaho, Hash., 339, 13 P. 351, 420; Mining Co. v. Bullion Mining Co., 9 Nev. 240; National Sash & Door Co. v. Continental Casualty Co., 5 Cir., 37 F.2d 342; Ex parte Justus, 3 Okl.Cr. 111, 104 P. 933, 25 L.R.A.,N.S., 483.

It is urged that section 216(b) provides a penalty to a party aggrieved, denominated “liquidated damages,” thus the suit thereunder must, in accordance with 28 U.S.C.A. § 371, be maintained in a Federal district court. We do not so regard it. In the case of Cox v. Lykes Brothers, 1924, 237 N.Y. 376, 143 N.E. 226, 227, analogous situation as here, the action was instituted in a court of the City of New York by a seaman, to recover double wages under R. S., U.S. Sec. 4529, 46 U.S.C.A. § 596. The court held, opinion by the late Mr. Justice Cardozo, that the case was not one for a penalty under the laws of the United States; thus the state court had jurisdiction. In the course of the opinion, the court said: “Congress has expressly said that the extra compensation, when due, ‘shall be recoverable as wages.’ This would seem decisive, without more, that in determining the bounds of jurisdiction it is not to be classified as a penalty. There was no thought that the state courts, which have undoubted jurisdiction to give judgment for wages in the strict sense, should be shorn of jurisdiction to give judgment for the statutory incidents. This conclusion is fortified when we search for the purpose of the statute. The purpose, or at least the predominant one, was, not punishment of the master or owner, but compensation to the seaman.” A statute is not penal, merely because it awards punitive liquidated damages to a party aggrieved as the measure of liability of the wrongdoer, so as to confer exclusive jurisdiction on the Federal court. If, however, it can be said that the Act of Congress awards a penalty to the parties aggrieved, and specifies the remedy for its enforcement in a court of competent jurisdiction, as in a civil action, it may be enforced in a state court. Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833; Pennsylvania-Dixie Cement Corp. v. H. Wales Lines Co., 119 Conn. 603, 178 A. 659; 15 C.J. 1159, Note 30, 21 C.J.S., Courts, 526; Campbell v. Superior Decalcominia Co., Inc., D.C. Tex., 31 F.Supp. 663; Robertson v. Argus Hosiery Mills, D.C.Tenn., 32 F.Supp. 19. It is therefore the right of the employe to prosecute his suit in any court of competent jurisdiction, Federal, territorial or state, and when once attached, the right may be asserted in that court, although other courts may also have jurisdiction of the cause.

The judgment of the court below is reversed and cause remanded for trial on the merits of the action.

Reversed and remanded.


author: STOKES, Justice..

text:
    NIENDORFF et al. v. WOOD et al.
    No. 5249.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 10, 1941.
    Rehearing Denied March 17, 1941.

      W. J. Rutledge, Jr., of Dallas, for appellants.
    G. E. Lockhart, W. R. Porter, Nelson & Brown, and Geo. W. McCleskey, all of Lubbock, for appellees.
   STOKES, Justice..

This suit in the form of trespass to try title was filed November 16, 1936, by appellants, Mary Starr Niendorff, joined pro for-ma by her husband, J. H. Niendorff, and Ruth Starr Baker, a feme sole, against ap-pellees, R. C. Wood and Marvin Wood. The original petition described by metes and bounds the land in controversy as being a tract of 56.4 acres off of the extreme north side of Se'ction 49. On October 10, 1938, appellants filed their first amended original petition, upon which the case was tried and in which the 56.4 acres was described only by field notes, and in this description no reference is made to any section line or other official 'object by which the 56.4 acre tract in controversy can be located from the record. The record shows that Section 40 lies immediately north of Section 49 and the official map attached to the statement of facts shows that the two sections have a common boundary, the south line of Section 40 constituting the north line of Section 49. Appellants state in their brief that the 56.4 acre tract lies either within Section 49 or within Section 40, or partly in each section; or possibly between the north line of Section 49 and the south line of Section 40. It is further admitted in the brief that the parties do not know the true location of the division line between the two sections, which we presume refers to the actual location on the ground.

It was stipulated at the trial that appellant, Mary Starr Niendorff, holds the record title to Section 49, and that appel-lees hold the record title to Section 40, and that they and those under whom they claim have been the owners of the respective sections for many years. The only question presented by the record and briefs pertains to the ten years’ statute of limitation in respect to the 56.4 acres in controversy and it becomes our duty to determine whether or not appellants, under the facts shown by the record, have perfected a title thereto by adverse possession under the provisions of Article 5510, R.C.S. 1925, regardless of what may be the condition of the record title to any portion of the land involved.

A jury was impaneled to try the case but at the close of appellants’ testimony, upon motion of appellees, the trial judge instructed the jury to return a verdict in favor of appellees and when such verdict was returned the court entered judgment in their favor, decreeing that appellants take nothing by their suit. Their motion for a new trial being overruled, appellants gave notice of appeal and have perfected an appeal to this court.

The record shows that, beginning with May 26, 1902, Clara C. Starr leased Section 49, consisting of 640 acres, to Tahoka Cattle Company for one year and that she and her successors in title leased that section to various lessees continuously until October 24, 1930, covering a period of twenty-eight years. These leases were all in writing and were introduced in evidence. Each of them describes the leased premises as being Section 49, consisting of 640 acres. The testimony shows that sometime prior to 1911 a fence was erected by two men by the names of Robinson and Lupton but it is not shown by whose authority they erected it nor that the then owner of either section authorized its erection. The exact location of this fence with reference to any of the section lines is not shown by the record. About January 20, 1927, appel-lees, who owned Section 40, caused this fence to be removed and erected another fence a distance of some 168 varas south of where it was located. The strip of land between the location of the old fence and the present location of the new fence constitutes the strip of land in controversy.

As we have said, there is no controversy over the question of the record title to either of the two sections of land. The controversy pertains only to the question of whether or not appellants, who own Section 49, have title by adverse possession under the provisions of Art. 5510, R.C.S.1925, commonly known as the ten years’ statute of limitation, of the strip of 56.4 acres lying between the locations of the respective fences. Appellants contend that they, and the lessees of their predecessors in title of Section 49, having had possession of the tract in controversy from 1902 to January. 20, 1927, had perfected title by adverse possession and limitation to the strip of land in controversy, whether it constitutes a portion of Section 40 or a portion of Section 49, the section owned by them. At least, they say an issue was presented on this question which they were entitled to have determined by the jury and that the trial court erred, therefore, in giving to the jury a peremptory instruction to return a verdict in favor of appellees.

Appellants were the plaintiffs in the trial court and they must recover, if at all, upon the strength of their own title and not upon the weakness of the title of their adversaries. Patrick v. Barnes, Tex.Civ.App., 163 S.W. 408. Whether the basis of their title is the record, or limitation and adverse possession, they must show title in themselves and it was not necessary for appellees to proceed or produce any title whatever unless appellants had shown by the testimony that the title upon which they depended was in them. Campbell v. San Antonio Machine Co., Tex.Civ.App., 133 S.W. 750; Griffin v. Ray, Tex.Civ.App., 135 S.W. 248; Reese v. Cobb, 105 Tex. 399, 150 S.W. 887. The rule is well established in this state that in trespass to try title, the strength of the defendant’s title is immaterial when it appears that the plaintiff has no right to the land. Staley v. King Bank & Mercantile Co., Tex.Civ.App., 144 S.W. 308; Houston Oil Co. v. Miller & Vidor Lumber Co., Tex.Civ.App., 178 S.W. 830.

Appellants contend that they met these requirements and discharged the burden of proving title in themselves by limitation and adverse possession when they showed that they and their predecessors in title had, over a period of twenty-five years, been the owners of Section 49 and that the strip of land in controversy was possessed, occupied and used by their lessees under the leases above mentioned. They assert that this is true whether the strip of land in controversy is located on Section 49 or Section 40. It may be well to observe just here that, regardless of where the strip of land in controversy is located, appellants do not show by the testimony or otherwise that they have been deprived of any land to which they are entitled because the record is devoid of any showing that the new fence erected by ap-pellees is not on the north line of appellants’ Section 49. If the strip in controversy is actually located on the south side of Section 40, or constitutes an independent area lying between the two sections, appellants have failed in their efforts to prove a title by limitation and adverse possession because the only right thereto which they have shown or indeed which is asserted by them is such as they claim to have acquired through their lessees and by use and occupancy of their lessees of the strip of land in controversy in connection with the leases executed by appellants and their predecessors in title over the period of twenty-five years from 1902 to 1927. Each of the leases demised to the respective lessees only Section 49, consisting of 640 acres. At no time did appellants or any of the former owners of Section 49 include in any lease executed by them the strip of land in controversy if it is located elsewhere than on Section 49. The record does not show that any person who purported to be the owner of Section 49 built or authorized the building of the old fence nor that any of them authorized any lessee to possess, occupy or use any land other than that which was included within the boundaries of Section 49. The owner of land is deemed in law to have possession only to the extent of the right of possession of his tenant under the terms of the lease contract when the owner claims title by virtue of the possession of the tenant. Williams v. Fuerstenberg, Tex.Com.App., 23 S.W.2d 305.

The cited case is strikingly similar in all of its aspects to the instant case and Judge Leddy, speaking for the Commission of Appeals, quoted with approval from a Kentucky case, West v. Price’s Heirs, 2 J.J.Marsh. 380, as follows: “But if a man give authority to a tenant to take possession of a certain close or tract of land, and the tenant enters on other lands not embraced by the authority, such entry cannot invest possession of the land entered upon, in the person, granting the authority. In reference to such an entry on land, there is no connexion between landlord and tenant. The power given, is disengaged; the entry, therefore, is merely the tortious act of the tenant.”

Adverse possession, .to ripen into title, must be such as would expose the possessor to some liability for what was done by him or under his authority during the limitation period. It could not be said that any act or trespass committed by any of the lessees who held Section 49 under the various leases executed by appellants’ predecessors in title during the twenty-five years from 1902 to 1927 subjected the lessors or any of them to liability or exposed them to a suit for damages or otherwise, because the leases specifically described Section 49 and gave to the lessees no right or authority to enter upon any land not enclosed within its boundaries. If the lessees committed trespasses on other land, therefore, such trespasses were their own acts and constituted tortious conduct for which they alone would be liable. Holmes v. Turners Falls Lumber Co., 150 Mass. 535, 23 N.E. 305, 6 L.R.A. 283; West v. Price’s Heirs, 2 J.J.Marsh., Ky., 380; Bayne v. Brown, 60 Or. 110, 118 P. 282; Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918; Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183.

Under the law, as it is firmly established by the above authorities and many others that could be cited, we are forced to the conclusion that appellants were not entitled to recover upon the theory contended for by them. Assuming that the strip of land in controversy is either a portion of 'Section 40, the record title to which is owned by appellees, or an independent strip lying between the two sections, the mere fact that lessees and tenants of appellants and their predecessors in title occupied it, used it and had possession of it over the period of twenty-five years did not give to appellants any rights whatever and did not perfect in them, as they contend, a title thereto by adverse possession under the provisions of Art. 5510, R.C.S. 1925. Appellants having failed to show that the strip of land was a portion of their Section 49 and, therefore, included in the leases, they were not entitled to recover upon any theory of the case and it must follow that the trial court was correct in giving to the jury the peremptory instruction and entering judgment in favor of appellees.

The judgment of the court below will be affirmed.


author: JOHNSON, Chief Justice.

text:
    JONES et al. v. DAVIS.
    No. 5699.
    Court of Civil Appeals of Texas. Texarkana.
    March 13, 1941.
    Jones & Jones and C. A. Brian, all of Marshall, for appellants.
    Stinchcomb, Kenley & Sharp, of Long-view, for appellee.
   JOHNSON, Chief Justice.

This appeal is from an order of the court overruling pleas of privilege. W. M. Davis filed suit in the District Court of Gregg County against Franklin Jones, S. P. Jones, L. J. Womack, Jr., and C. A. Brian. The defendants Jones, Jones, and Womack each filed identical pleas of privilege to be sued in Harrison County, the county of their residence. The pleas of privilege complied with the provisions of R. S. Article 2007, Vernon’s Ann.Civ.St. art. 2007. In answer to the pleas of privilege plaintiff filed controverting affidavits. Omitting the formal parts, each of the controverting affidavits read as follows:

“That Plaintiff herein has filed a Petition alleging that heretofore, to-wit on February 16, 1935, W. M. Davis entered into a written agreement with S. P. Jones, Franklin Jones, and Julian Moseley, which agreement provided that on cases referred to Jones & Jones by W. M. Davis on and after November 11, 1934, the said W. M. Davis should receive as a part of the fee an undivided 29 percent. Plaintiff also alleges in his Petition that on March 11, 1936, the said W. M. Davis entered into an agreement in writing, whereby a partnership was formed between said Plaintiff and Jones & Jones, and that by the terms of its contract same was to be wholly or partially performed in Gregg County, Texas. Plaintiff further alleged that thereafter on September 1, 1936, another written contract or partnership agreement was entered into by and between said parties, whereby Plaintiff agreed to perform and do certain things, and said contract was to be performed wholly or partially in Gregg County, Texas.
“This court has venue of this suit, because the Defendant has contracted in writing to perform an obligation in Gregg County, Texas, and falls within Exception No. 5 to Article 1995, Revised Civil Statutes of Texas .[Vernon’s Ann.Civ.St. art. 1995, subd. 5],
“II. The Plaintiff has filed herein a Petition naming, as Defendants, Franklin Jones, S. P. Jones, L. J. Womack, Jr., and C. A. Brian. That C. A. Brian is a necessary and proper party in this suit and a member of the law partnership of Jones & Jones, and is an indispensable party to a proceeding for an accounting, having a vested interest in the assets of said partnership, and that the said C. A. Brian was a member of said partnership during the time Plaintiff was a member of said partnership.
“This court has venue of this suit, because C. A. Brian is a resident of Gregg County, Texas, where this suit is brought, and by virtue of Exception No. 4 to Article 1995 of the Revised Civil Statutes of Texas [Vernon’s Ann.Civ.St. art. 1995, subd. 4], providing that if two or more Defendants reside in different counties, suit may be brought in any county where one of the Defendants resides.”

Plaintiff’s petition and the contract therein referred to were not attached to or in any way made a part of the controverting affidavits. Upon a hearing the trial court sustained the controverting affidavits and overruled each of the pleas of privilege, from which order the defendants Franklin Jones, S. P. Jones, and L. J. Womack, Jr., have perfected their appeal to this court.

By proper assignments of error and propositions, the controverting affidavits are challenged as wanting in allegations of fact sufficient to sustain venue in Gregg County, under either Section 4 or Section 5 of R.C. S. Article 1995, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 5, as claimed in said controverting affidavits.

Since the controverting affidavits fail to make the petition a part of same, the sufficiency of the controverting affidavits must be tested by their own allegations, unaided by the petition. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391.

The conclusion stated in the controverting affidavits that the District Court of Gregg County has venue of this suit, “because the defendant has contracted in writing to perform an obligation in Gregg County, Texas, and falls within exception 5 of Article 1995, R.C.S. of Texas,” and other ’conclusions of the affiant of like import, are held not to be sufficient in “setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending” as required by R.C.S. Article 2007.

It is the duty of the court to determine whether the alleged written contract provides that it is to be performed in ' the county in which the suit is brought, whereby venue is conferred under exception 5 of Article 1995. “In order to perform his office of construing the; instrument, the trial judge must have the instrument itself, or a statement of its specific provisions, before him, and the general conclusions of law formed by the litigant are not sufficient to enable the court to perform that office.” Bender v. Kowalski, Tex.Civ. App., 13 S.W.2d 201, 202.

Also the conclusion of the affiant that the defendant, C. A. Brian, a resident of Gregg County, “is a necessary and proper party in this suit”, by reason of which the suit falls within exception 4 of Article 1995, is insufficient because the controverting affidavit, in absence of the petition being made a part thereof, is insufficient in allegations of fact showing a cause of action against the defendant Brian or against either of the other defendants. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747.

The judgment of the trial court will be reversed and the cause remanded with instructions that the suit against the defendants Franklin Jones, S. P. Jones, and L. J. Womack, Jr., be transferred to the District Court of Harrison County.


text:
    EMMONS v. TEXAS & P. RY. CO.
    No. 5704.
    Court of Civil Appeals of Texas. Texarkana.
    March 11, 1941.
    Rehearing Denied March 27, 1941.
    Lincoln & Harris, of Texarkana, for appellant.
    Wheeler, Atchley & Vance, of Texar-kana, for appellee.
   HALL, Justice.

This suit was brought by -appellant against appellee for damages resulting from the loss of his left eye, proximately caused by the alleged negligence of appel-lee. Appellant was an employee of ap-pellee in the capacity of head brakeman on one of its freight trains, and on the occasion of the alleged injury was riding on the engine where his duty called him. Appellant alleged that while he was crossing from the left to the right side of the engine in the performance of his duty, hot sand or other foreign matter was blown from the firebox of said engine, striking him in the left eye, destroying the sight thereof; that it was necessary for the operatives of the locomotive at regular intervals to throw sand into the firebox to be forced or sucked through the flues in order to clean them of accumulated soot. The sand was thrown into the firebox through an opening about four inches in diameter (hereafter referred to as the sand-hole) at the end of the firebox. The smaller opening or sand-hole had a cover secured by a spring, which, if in proper working order, would not permit hot sand from the firebox to be blown out into the cab of the engine. Appellant alleged further “that on the occasion referred to the particle of hot sand which was blown out of the firebox of said engine into the left eye of plaintiff (appellant) * * * was due to the negligence of defendant (ap-pellee) and of its officers, agents and employees in that there was a defect and insufficiency due to their negligence, in said engine, appliances and machinery in the following particulars: * * *” (1) The door to the sand-hole did not fit securely; (2) the tension spring designed to hold the sand-hole door securely in place was defective and insufficient; (3) the sand-hole door was left open by the fireman or engineer without appellant’s knowledge; (4) defective firebox door; (5) negligence of the operatives of said engine in not properly closing the firebox door; (6) failure of the fireman to cut off atomizer after engine had reduced speed on approaching the depot at Bonham and permitting same “to work too strongly and to force hot sand o'r other hot substances from the floor of said firebox and from other portions of said firebox through the door of said sand-hole and escape out into the cab of said engine;” (7) that the burner and atomizer were out of adjustment and not functioning properly. In the alternative, appellant alleged negligence generally, and sought a recovery under doctrine of res ipsa loquitur. It was averred that the damage resulting to appellant from loss of his eye was the direct and proximate result of defendant’s negligence in one or more of the particulars set out above.

Appellee answered by general denial, and specially that appellant assumed the risks connected with and incident to his employment; that at the time of his injury both it and appellant were engaged in interstate commerce and that this cause of action is governed by the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.

Trial was to a jury, and at the conclusion of appellant’s evidence, appellee moved for a peremptory instruction, which was granted. In response to this instruction the jury returned a verdict for appellee, and judgment was entered accordingly.

Appellant’s first three propositions are directed at the action of the trial court in peremptorily instructing the jury to return a verdict against him. The facts, of course, are undisputed, and must be taken as true in discussing these propositions. Appellant alone testified concerning the circumstances attending his alleged injury. His evidence is that he was tiead brakeman on one of appellee’s freight trains, and was riding in the cab of the engine on the ocr casion of his injury. The engine was originally a coal-burner which had been transformed into an oil-burner. In the back end of the firebox (the end next to the operatives of the engine) there is a circular firebox door about two feet in diameter, in the center of which is a four-inch hole known as the sand-hole. This sand-hole is used by the fireman to sand out the flues of the locomotive. It is covered by a flap or door about one-half inch larger than the hole. This flap is held in place by. a spring fastened to a bolt at its upper end. Normally this flap is held firmly over the sand-hole when closed, its purpose being to keep any foreign matter from being blown out of the firebox into the cab. The flap can be moved from side to side to permit sanding out the flues of the locomotive. This sanding out process is necessary in oil-burning locomotives to prevent the collection of soot in the flues, and is accomplished by holding a scoop of sand near the sand-hole, allowing the draft or suction from the exhaust of the engine to draw the sand into the firebox, through the flues, and out of the smokestack. This act is performed when the engine is laboring. It is never done when the engine is slowing down as it approaches a station. Not all the sand fed into the sand-hole is drawn out through the smokestack. Some of it remains in the firebox and gets very hot, while other particles collect at the front end of the boiler directly under the smokestack. It is the fireman’s duty to sand out the flues, to regulate the flow of fuel oil into the firebox, and to control the steam atomizer which breaks up and scatters the fuel oil throughout the firebox. The oil burner and atomizer are attached together and affixed to the front end of the firebox near the bottom of same. The atomizer exerts its force toward the back end of the firebox. The force of the atomizer is increased or decreased proportionally with the flow of fuel oil into the firebox. A reduction in the power of the engine requires a proportionate reduction in the force of the atomizer or a backfire might occur, which would blow foreign matter, if any were loose in the firebox, back through the sand-hole into the cab. On approaching the depot at Bonham, with the speed of the train reduced to four or five miles per hour, appellant, in the performance of his duty, started from the left side to the right side of the engine cab, and as he got about even with the sand-hole, and with his left eye next to it, heard a clattering sound coming from the door covering the sand-hole and some hot substance (later found to be a grain of sand) struck him in the left eye. The sand-hole was about three feet from his left eye when the accident occurred. Appellant had on other occasions observed the vibration of the. sand-hole cover or flap and concluded that the “tension spring wasn’t stout enough to hold it, the tension spring that holds it in place.” At the time appellant received the injury to his eye, he testified that he was crossing the engine cab from left to right:

“Q. As you crossed over, did anything happen to you? A. Yes, sir; a piece of hot sand hit me in the left eye.
“Q. Where did that grain of sand come from? A. From the firebox.
“Q. How do you know it came from the firebox? A. Because it was hot.
“Q. Was there any other place it could have come from and be hot ? A. No other place.
“Q. When he (the engineer) released the throttle, state whether or not the fireman reduced the atomizer any. A. No, sir; not until after the door on the sand-hole went to vibrating.
“Q. And at the time that this particle got in your eye, had or not the atomizer been reduced at that time? A. No, sir.
“Q. It had not. Was there any noise of any kind whereby that could be determined? A. That flap vibrating.
“Q. The noise of the engine? A. The roar of the engine.
“Q. Can you tell from the roar of the engine whether the atomizer is on full or has been reduced? A. You can tell when the engineer released his throttle if the fireman don’t close his atomizer, by the roar.
“Q. You can tell by the roar? A. Yes, sir.”

Other evidence offered by appellant was to the effect that other parts of the engine in the cab such as the fire door, sand-hole door, valves, and steam pipes get hot. Some of them “awfully hot,” and that it is impossible to keep sand from the sandbox and the elements from settling on the engine. The engine cab is open at the rear and has windows in front and on the side of the engineer’s and fireman’s seats. The wind was not blowing on this occasion. The head brakeman while riding in the engine sits on the seat with the fireman.

Do these undisputed circumstances establish the causal connection between appellee’s alleged wrongful acts or , omissions and appellant’s injury? After a careful study of the record herein we have concluded that they do not. There must be some reasonable and probable connection between - appellant’s injury and the negligence charged against appellee. It must not be left to pure conjecture. Western Telephone Corp. of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895, and the numerous authorities there cited and .approved, including Southwestern Tel. & Tel. Co. v. Morris, 106 S.W. 426, and Lumpkin v. Texarkana Gas & Elec. Co., 164 S.W. 435, both by this court. The only circumstances relied upon by appellant to show negligence either on the part of the fireman in failing to reduce the force of the atomizer or appellee’s failure to maintain a spring “stout enough” to hold the sand-hole door fast, was the roar of the engine and the clattering or vibration of the sand-hole door heard by him at the time of his injury. From these circumstances appellant concluded that the spring holding the sand-hole door was too weak and that the fireman failed to cut off the atomizer. It must be remembered that the mere fact that appellant received an injury to his eye does not establish negligence against ap-pellee. Gulf, C. & S. F. Ry. Co. v. Shieder; 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Galveston, H. & S. A. Ry. v. Landeros, Tex.Civ.App., 264 S.W. 524; Phillips v. Citizens’ National Bank, Tex.Com.App., 15 S.W.2d 550; Texas & N. O. Ry. v. Hancock, Tex.Civ.App., 134 S.W.2d 408; Pennsylvania Ry. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819. The only reason appellant “knows” that the sand which struck him in the eye came from the sand-hole is the fact that it was hot. The circumstances in this case raise a suspicion, and we might, by conjecture, reach the conclusion, as the jury might have done, that the fireman negligently failed to cut down the force of the atomizer when the engineer reduced the speed of the train; that this act caused a backfire in the firebox, which on account of the weakened condition of the spring holding the flap over the sand-hole, permitted grains of hot sand to escape and be blown into the cab of the engine; that one of these grains of hot sand struck appellant in the eye, causing the injury thereto. But neither we nor the jury nor the court below are permitted to conjecture and speculate in ■ matters of this character. In Southwestern Tel. & Tel. Co. v. Morris, supra [106 S.W. 428], Judge.Levy'in discussing the same proposition of law involved here, stated: “Was the horse killed by electricity which came from the wires, or directly by a bolt of lightning from the clouds? If the same bolt of lightning struck both the telephone line and the horse, but if the wire did not control the path of the bolt from the clouds to the earth so as to be the proximate cause of the bolt’s striking the horse, the appellant as a matter of law would not be liable. It is not sufficient that the wire was a possible consequence of conducting the lightning to the horse.1’ (Italics ours.) So in this case, it is not sufficient to show that the grain of sand found in appellant’s eye could have been blown by the force of the atomizer through the loosely-fastened sand-hole door. But was it reasonably probable that it was so blown? It must be observed that there were several exposed parts of the locomotive firebox which were hot; and “sand settled on the engine.” Also the sand fed through the sand-hole was carried back over the engine' and cab from the smokestack by the exhaust. These conditions are not made the basis of negligence, yet, in our opinion, it is possible, that the grain of sand which struck appellant in the eye came from one of these hot portions of the engine or the exhaust as from the sand-hole. “If the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and, if the evidence leaves it to conjecture, the plaintiff must fail in his action.” Warner v. St. Louis & M. Ry. Co., 178 Mo. 125, 77 S.W. 67, 70; Caudle v. Kirkbridge, 117 Mo.App. 412, 93 S.W. 868; Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N.E. 365, Ann.Cas. 1917A, 474. Furthermore, the “fact of causal connection between an alleged negligent act or omission and an injury can no. more be presumed than can the act or omission itself.” Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049, 1052. Chief Justice Conner in Gulf, C. & S. F. Ry. v. Davis, Tex.Civ.App., 161 S.W. 932, 934, writ refused, in discussing negligence of the railway company as inferred from the .injury to a passenger, stated: “That there was a loose screw or other projection on the platform of the car in question is a mere inference from the fact that appellee’s dress caught, and to proceed' yet further in the course of reasoning, and infer negligence in permitting the screw or other projection to be there, seems to be adding presumption upon presumption, which the law never permits.” See also Houston Fire & Casualty Ins. Co. v. Biber, Tex.Civ.App., 146 S.W.2d 442; Galveston, H. & S. A. Ry. v. Fred, Tex.Civ.App., 185 S.W. 896; Sutton’s Administrator v. Louisville & N. Ry., 168 Ky. 81, 181 S.W. 938. There must be more than “a scintilla of evidence, or a mere surmise” connecting the alleged negligent act with the injury before the trial court will be authorized to submit the case to the jury. In this connection we think it proper to quote from the well-considered opinion of Judge Denman in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, the following: “From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to he established, such testimony, in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.” Galveston, H. & S. A. Ry. v. Faber, 77 Tex. 153, 8 S.W. 64; Gulf, C. & S. F. Ry. v. Mannewitz, 70 Tex. 73, 8 S.W. 66. These propositions are overruled.

By his 4th proposition appellant asserts that the evidence was sufficient under the doctrine of res ipsa loquitur to warrant a submission of the case to the jury. Res ipsa loquitur is a rule of evidence and is said to be applicable “ * * * Where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.” Scott v. Docks Co., 3 Hurl. & C. 596. The locomotive was under the exclusive control of the engineer and fireman at the time appellant received his alleged injury. The undisputed evidence as shown in our discussion of propositions 1, 2 and 3, discloses that it is as probable that appellant’s injury was due to an act for which appellee was not negligent as to one for which it was negligent. Under such circumstances it is held that when “the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply.” Davis v. Castile, Tex.Com.App., 257 S.W. 870, 872; Klein v. Beeten, 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237. This proposition is overruled.

By propositions 5, 6 and 7, appellant asserts that the trial court committed reversible error in refusing to permit him to testify while a witness in his own behalf “that when he had previously reported this clattering sound and the weakness of the tension spring (holding the door over the sand-hole) it would not be fixed by defendant, and that his report had been made to the engineer and fireman; that a few days before the grain of hot sand got in his eye, the sand-hole door was out of fix, and that he called it to the attention of the fireman and the fireman called it to the attention of the engineer, and the engineer at that time stated that he would report it, but that it would not do any good to report it, because it had been reported so many times before and that it had not been fixed.” It was contended that this testimony was admissible to establish negligence of appellee in permitting the sand-hole door to remain out of repair. Granting as true the fact that appellee was negligent in permitting the sand-hole door to continue out of repair, still we think under the undisputed facts of this case appellee would not be liable for the reasons heretofore pointed out; that is, that it is no more reasonably probable that the hot sand which struck appellant in the eye came from the sand-hole door than from any other hot, exposed part of the back end of the locomotive or' from the exhaust. So the error, if any, in excluding this evidence, was harmless. These propositions are overruled.

By propositions 8 and 9 it is asserted that the trial court erred in sustaining objections to certain testimony of appellee’s .witness Heath. We are not advised by either a bill of exception or the statement of facts the nature of this proffered testimony. Therefore these propositions present no error. Motion was filed in this court by appellant on November 1, 1940, seeking a writ of certiorari to the 5th District Court of Bowie County “directing it to perfect or cause to be perfected the statement of facts on file therein,” by adding thereto the testimony made the basis of these propositions. The statement of facts sought to be corrected was filed in this court July 3, 1939. On July 18, 1940, this cause was set for submission November 7, 1940, and the interested parties were immediately notified. On October 7, 1940, appellant filed his briefs herein. Under ..the authority of Barboza v. Service Mutual Ins. Co. of Texas, Tex.Civ.App., 125 S.W.2d 1095, writ dismissed, and cases therein cited, the motion is overruled.

The judgment of the trial court is. affirmed.