author: JENKINS, J.

text:
    ENID, O. & W. RY. CO. et al. v. STATE.

    (No. 5495.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1915.
    On Motion for Rehearing, Dec. 17, 1915.)
    1. Railboads <&wkey;57 — Abandonment — Common Daw.
    Rev. St. art. 6625, declaring that in case of the sale of a railroad new corporations may be formed to operate and maintain the railroad, and that no main track of any railroad once constructed and operated shall be abandoned or moved, is merely declarative of the common law.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 124r-126; Dec. Dig. &wkey;57.]
    2. Railboads <&wkey;32 — Operation — Main Track — Co nstruction .
    Under Rev. St. art. 6633, declaring that if any railroad corporation shall not, within two years after its articles of association shall be filed and recorded, begin the construction of its road and construct and equip in good running order at least 10 miles of its proposed road, and if any railroad, after the first two years, shall fail to construct and equip in good running order at least 20 additional miles, until completion of its line, its powers, as far as relates to that portion of the unfinished road, shall cease and shall be incapable of resumption by any subsequent act of incorporation, is self-executing, and precludes renewal of construction after loss of charter rights by failure to complete.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 63-69); Dec. Dig. <§=>32J

      3. Railroads <&wkey;57 — Operation —.“Main Track.”
    Where 10 miles of a proposed railroad was constructed within the two years provided by Rev. St. art. 6633, but no more was constructed, such 10 miles constituted the “main track” of the railroad and could not, under section 6625, be removed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 121-126; Dec. Dig. <&wkey;-57.
    For other definitions, see Words and Phrases, Second Series, Main Track.]
    4. Railroads <&wkey;120 — Operation—Enforcement of Operation.
    Where a railroad became insolvent and was sold by a receiver under order of court, to persons who had no charter to operate it, and, operation being unprofitable, they cannot be required by the court to operate; for it would be impracticable to enforce such judgment.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 392, 393, 399^03; Dec. Dig. &wkey; 129.]
    5. Railroads <&wkey;129 — Operation by Purchaser-Authority of Court.
    Where an insolvent railroad company was sold by a receiver under order of court, the operation being unprofitable, the court cannot require the purchasers to continue operation; for that would work a confiscation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 392, 393, 399l-403; Dec. Dig. <&wkey; 129.]
    6. Evidence Judicial Notice.
    The court will take judicial cognizance of the fact that rails and ties left on a railroad right of way will ultimately become worthless if they remain unused.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 7; Dec. Dig. <&wkey;8.]
    7. Railroads <&wkey;129 —Abandonment —Removal of Property.
    Where a railroad company became insolvent, was placed in the hands of a receiver, and its property sold under order of court, operation being unprofitable, the purchasers who formed no corporation to carry on the business of the railroad, and who did not have any right to continue the construction, the railroad having forfeited its right to extend its line, cannot, on the theory that a railroad is a public highway which should not be ■ abandoned, be restrained from removing the rails and ties for use elsewhere.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 392, 393, 399-403; Dec. Dig. <&wkey; 129.]
    8. Railroads <&wkey;57 — Operation — Dedication.
    While a railroad upon construction is dedicated to public use, the operation having been abandoned, the physical properties as the rails and ties may be removed.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 124-126; Dee. Dig. <&wkey;57.]
    On Motion for Rehearing.
    9. Railroads <&wkey;57 — Insolvency—Sale.
    Where the property of a railroad company which had no rolling stock and the operation of which had been abandoned was sold, the right to dismantle the road existed independent of the judgment.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 124^-126; Dec. Dig. &wkey;57.]
    10. Railroads <&wkey;129 — Insolvency—Sale.
    Where the property of an insolvent railroad corporation is sold by a receiver under order of court, such sale does not work a forfeiture of the company’s charter, but purchasers become, in effect, its stockholders, and are bound by the provisions of the charter and the common law applicable to the sold-out company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 392, 393, 399-403; Dec. Dig. &wkey;
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by the State of Texas against the Enid, Ochiltree & Western Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    This is a suit by the state of Texas to perpetually enjoin the appellants from taking up and removing the ties and rails on the Enid, Ochiltree & Western railroad, from Dalhart, in Hartley county, Tex., to Wilcoe in said county, a distance of about 13 miles. The case was tried before the court upon an agreed statement of facts, and judgment was rendered for the appellee. From said agreed statement, we find the following as the facts material to the decision of this case: The Enid, Ochiltree & Western Railway Company was incorporated November 2, 1908, under the laws of this state, to build a railroad from Ochiltree, in Ochiltree county, Tex., to Dalhart, in Dallam county, Tex., a distance of about 113 miles. Subsequently, by amendment to its charter, its eastern terminus was fixed at the eastern boundary of Lipscomb county, making the length of the proposed road about 165 miles. The company acquired, with the exception of 12 or 15 miles, the right of way from Ochiltree to Dalhart. It constructed on its right of way a first-class dirt roadbed from Dalhart to Dumas, in Moore county, Tex., a distance of about 34 miles, and within two years from the date of its charter, constructed and completed its track to Wilcoe, a distance of about 13 miles. Neither it nor its purchasers have ever constructed any additional road. It obtained grounds for terminal facilities and made physical connections at Dalhart with the Ft. Worth & Denver and the Chicago, Rock Island & Gulf Railway Companies, and erected depots at Dalhart and Wilcoe, the former at a cost of $198.87 and the latter at a cost of $204.72, and for about two months operated a mixed freight and passenger train once a day each way between said stations. On December 22, 1910, the road was placed in the hands of a receiver. On January 6, 1911, the receiver submitted to the court his sworn report (omitting formal parts) as follows:
    “That about the 2d day of November, 1910, and before a receiver was appointed for said railroad company, it put in operation a train for freight and passengers from Dalhart to Wilcoe, Tex., a distance of about 13 miles, and since that time has been operating said train one way each day for the purpose of hauling freight and passengers, and that the expense of operating said train is not less than $1,500 per month, and perhaps $2,000 per month, and that the gross earning's resulting from the operation of said train during the months of November and December did not exceed $350 per month, owing to the fact that the crops have been moved and that there is hut little freight being shipped in which would go over this road, and for several months to come the earning capacity of said road by the operation of its train will be practically nothing. That said railroad company is in imminent danger of insolvency, as was shown in petition of J. B. Cartwright against said railroad company in.the cause wherein this petitioner was appointed receiver, and said road was, at the time the receiver was appointed, totally without funds, and is now without funds and without any means of procuring same, except by creating a debt against the corpus of the railroad property, which, if done, will operate only to the detriment of said railroad company and its creditors. That the station of Wilcoe, the point where said train is operated to out of Dal-hart, is only a siding or switch. That there is no settlement there, and the territory between Dalhart and Wilcoe is also sparsely settled, and for said reasons the railroad company cannot hope to get sufficient business at any time in the future to pay the operating expenses of said train.
    “Your petitioner would further show to the court that an arrangement can be made, and will be made, if the order is granted by said court, which will hereinafter be prayed for, by which any freight that may accumulate at Wil-coe, Tex., can be handled, put and delivered to connecting carriers, which will be done promptly on request of the shipper, at a cost not exceeding one-third of the amount of freight or revenue that will be received by the company as freight charges for transporting said freight, and by said arrangement the company will be able to earn and receive some net profit from the freight handled over its line.
    “Your petitioner would further show to the court that there is practically no passenger traffic over said railroad line, and therefore all the practical results desired will be obtained with reference to handling of passenger and freight traffic by said railroad company by and through the plan hereinbefore suggested.”
    It was agreed that the matters set forth in said application are true. In compliance with said application and order, the operation of said road was discontinued about the date of said order, and on June 6, 1911, under order of the same court, the receiver sold the engine and coach owned by the company, and since said time the corporation has owned no operating equipment whatever. After the date of said order, January 6,1911, no train has ever been run over said road. Shortly after the receiver was appointed the court directed a sale of the property belonging to said corporation, and the receiver made many efforts to sell same at a price approximating $60,000. Having failed to do this, the court, on March 22,1912, ordered the receiver to sell all the property of said railroad, and fixed $31,000 as a minimum bid that would be accepted therefor. Thereafter, on June 1, 1912, in pursuance of said order, the individual defendants herein submitted their bid of $33,000, which, after consideration, was accepted by the receiver and approved by the court, and the property ordered to be conveyed to them. The purchasers at the receiver’s sale, the appellants herein, are themselves unable to further extend said road, and are unable to obtain money for that purpose. They are threatening to take up and remove the ties and rails on the road between Dalhart and Wilcoe, their declared purpose being to use them in the construction of a road from Higgins, in Lipscomb county, to the town of Ochiltree, for the construction of which they have been promised financial assistance by citizens of Higgins, and they aver that by so doing they hope thereafter to be able, with the aid of bonuses, to construct the road from Ochiltree to Dalhart, as contemplated in the original charter of the Enid, Ochiltree & Western Railway Company. The appellants have not organized a railway company, and have no charter to build a railroad, and no charter has been granted to any one to build a railroad from Higgins to Ochiltree. There is no town or post office at Wilcoe,- nor at any other point on the 13 miles of completed track. Wilcoe was designated as a station on the survey filed by the railway company.
    H. J. Cureton, of Meridian, and Ramsey, Black & Ramsey, of Austin, for appellants. B. E. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.

      pplication for writ oí error pending in Supreme Court.

   JENKINS, J.

(after stating the facts as above). Article 6625, R. S., in reference to “new corporations in case of sale,” provides for the formation of new corporations “for the purpose of acquiring, owning, maintaining and operating ‘sold-out’ ” railroads, from which article we make the following excerpt: “Nor shall the main track of any railroad once constructed and operated be abandoned or moved.” This is but declarative of the common law. State v. Sugarland Railway Co., 163 S. W. 1047. As the sold-out company is not threatening to remove its ties and rails, and as the appellants have not organized a railway company to maintain or operate the road as constructed, the article above cited and the other articles cited in the Sugarland Case, are important only as showing the general policy of this state in reference to the permanent location of railroads.

We do not agree with either of appellants’ contentions that the road as constructed from Dalhart to Wilcoe is not a part of a “main track” of a railroad, and that the proposed action of the appellants does not constitute an abandonment of such track. Article 6633, R. S., provides:

“If any railroad corporation organized under this title shall not, within two years after its articles of association shall be filed and recorded as provided in this title, begin the construction of its road, and construct, equip and put in good running order at least ten miles of its proposed road, and, if any such railroad corporation, after the first two years, shall fail to construct, equip and put in good running order at least twenty additional miles of its road each and every succeeding year until the entire completion of its line, such corporation shall, in either of such cases, forfeit its corporate existence, and its powers shall cease as far as relates to that portion of said road then unfinished, and shall be incapable of resumption by any subsequent act of incorporation. * * * ”

This article is self-executing. S. S. & Mt. Ry. Co. v. A., T. & S. F. Ry. Co., 2 Tex. Civ. App. 650, 22 S. W. 107, 23 S. W. 1012. The Enid, Ochiltree & Western Railway Company constructed and operated more than 10 miles of its road, as required by this article of the statute, that is to say, prior to November 2, 1912, but more than a year having elapsed since that time, and it having failed to construct any of its road, in addition to the 13 miles from Dalhart to Wilcoe, it has forfeited all of its charter rights as to its additional road, and is forever barred from resuming the same, so that the road as constructed between said stations now constitutes, not merely a part of its main line, but its entire main line.

That the appellants in good faith purpose to attempt, at some indefinite time in the future, to relay said track when they shall have completed the eastern end of the road from Ochiltree to Wilcoe, and that they may believe that by first constructing a road from Higgins to Ochiltree they may be enabled to finance the construction of the road from Ochiltree to Dalhart, does not militate against the proposition that removing the rails and ties from the roadbed between Dalhart and Wilcoe constitutes an abandonment of said road, if it has not already been abandoned by the facts herein-above set out.

But the question still remains, Have the courts the power to enjoin the appellants from removing the rails and ties from the track which has been constructed? They are the property of appellants, and one may do as he pleases with his own property, so long as he does not interfere with the rights of others. The only others whose rights could in any manner be interfered with by the proposed action of appellants is that portion of the public who might be benefited by the operation of the road as constructed. The right of the state to control railway property arises from the fact that railroads are public highways, and therefore the public is interested in such roads being maintained and operated. But no one can be benefited by allowing rails and ties to remain upon a roadbed, if no trains are operated thereon.

Could the state compel appellants, or any one else, to operate the road from Dalhart to Wilcoe? We think not, for the reason that it would be impracticable to enforce a judgment of a court to that effect; and, if it could he enforced, it would amount to confiscation under the undisputed facts of this ease. How could a court compel the operation of a railroad? If a railway company failed to operate its road, the state might forfeit its charter on account of such dereliction of its public duty. The Enid, Ochil-tree & Western Railway Company possesses no charter privileges. They have been sold under an order of a court of competent jurisdiction. If a railway company fails to operate its road, the court may appoint a receiver to operate the same. The proper district court did appoint a receiver. But he could not be compelled to continue the operation of the road, for the reason that the company had no funds; the operation of the road would not pay operating expenses, and, of course, a receiver could not be compelled to operate a railroad with his private funds, if he was possessed of such funds. In order to operate a railroad it is necessary to keep the track in repair, to have rolling stock, to purchase fuel and to pay the crew’s wages. The appellants have no rolling stock, and they could not pay the crew out of the earnings of the road. Suppose the court should order them to purchase rolling stock necessary for the operation of the road and they should refuse to do so, what could the court do about it? Forfeit their charter? They have none. Appoint a receiver to operate the road? The court tried that, and it proved a failure. Sell it? It is worthless, unless its material can be utilized as junk. The purchaser could not operate the road except at a loss, and of course would not do so. Put appellants in jail? Certainly not. If the court had the means of compelling appellants to take money out of their pockets and invest the same in operating a railroad which did not and never would pay operating expenses, as is admitted to be the ease with the road in question, the exercise of such means would amount to confiscation, and would be violative of the Constitution of this state and of the United States.

In Jack v. Williams (C. C.) 113 Fed. 823, 15 miles of a projected railroad had been built, and its operation had proven unre-munerative. By order of the court the constructive material of its roadbed had been sold and the purchasers had removed the same. It was sought to- compel them to replace it. The circuit judge said:

“A railroad is in a sense a public concern. To its construction * * * the action of the sovereign is needed. * * * The consideration Eor these acts of the sovereign is the utility of the enterprise to the public. * * * However, no corporation or private person is oblig'ed to continue the service without a reasonable remuneration. No one can be compelled to serve the public for nothing. Private property of no kind, including railroad property, can be used for public purposes without compensation. Smyth v. Ames, 169 U. S. 467, 18 Sup. Ct. 418, 42 L. Ed. 819; Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970; Railway Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858. All these cases determine that a railroad company, in the full enjoyment and use and capacity to use its franchises, cannot be compelled to exercise its franchises without reasonable remuneration. A fortiori a railroad corporation, or a person owning a railroad, cannot be compelled to operate that road, not only without remuneration, but at a loss. And this not by any means because such corporation or person is insolvent. If a citizen has the wealth of the Rothschilds, he cannot be compelled to use a dollar of Ms wealth for public purposes without compensation.”

The relief sought was denied, and the decision was affirmed by the Circuit Court of Appeals. See 145 Fed. 281, 76 C. C. A. 165.

The case of Trust Co. v. Railroad Co. (C. C.) 192 Fed. 728, arose upon an application to sell an insolvent New Hampshire railroad as a going concern if a purchaser could be found, and if not as junk, with the privilege on the part of the purchaser to dismantle the road. The statutes of New Hampshire, as do the statutes of Texas, declared all railroads to be public highways and forbade their discontinuance. The conclusion was reached that the court had the power, if necessary in order to realize anything from the property, to order a sale in the alternative; that is to say, if it had no value as a railroad, to sell its material as junk.

In State v. Railway Co., 53 Kan. 329, 36 Pac. 755, 24 L. R. A. 564, it was sought to compel a bankrupt railway company and the purchaser thereof to relay a portion of the track which had been taken up. The court said:

“The court will not make a useless or futile order. It will not do a vain thing. The order prayed for should only be issued in the interest of the public. If the track is replaced, there is no reasonable probability that the road will be or can be operated. * * * If the railway is not operated, the mere existence of a road, not in use, is not beneficial to any one.”

The Attorney General seems to recognize the soundness of the proposition that the appellants cannot be compelled to operate the road in question, in that he does not controvert such proposition, but calls attention to the fact that this is not a case wherein the state is seeking to compel such operation, but is asking only that the ties and rails be not removed. If the state has no authority to compel such operation, it is because to 'do so would be to take private property for public use without compensation. There can be no difference in principle in compelling a party to expend money for the use of the public in the operation of a railroad, and in taking from him the value of his property invested in such enterprise. In the instant case we take judicial cognizance of the fact that the rails and ties will ultimately become worthless if they remain where they are. In compelling them to so remain the state is as effectually destroying them, and thereby depriving appellants of their property therein, as if it should bum the ties and sink the rails in mid-ocean, or convert them into money and deposit the same in the state treasury. And cui bono? Not the public, nor any portion thereof. A railroad which is not operated, which cannot now or ever be made to pay expenses, and therefore will never be operated, is not and can never be beneficial to the public.

In Sherwood v. Railway Co., 94 Va. 306, 26 S. E. 943, the court said:

“Where the line of railway, falten as a whole, cannot be profitably maintained; where its operation, when discreetly and economically managed, is attended with loss, it is difficult to perceive how a court can, by mandamus or otherwise, compel its operation to be continued.' If the loss is the result of improvident and un-thrifty management, the court may, at the suit of those interested, take charge of it for the benefit of all concerned, and run it through the instrumentality of a receiver, but if the traffic of a road is really insufficient to support a wise and economical administration of its affairs, there would seem to be no escape from its ultimate abandonment.”

A railroad over which no trains are or will ever be run is, for all practical purposes, already abandoned, and no public interest can be subserved by compelling its ties and rails to remain until the one rots and the other is destroyed by rust. The road in question was, for all practical purposes, abandoned by order of the district court when it authorized the receiver to cease its operation and to sell all of its rolling stock, which was done prior to its purchase by appellants.

The appellee insists that appellants should not be heard to say that to compej the rails and ties to remain is to take their property without compensation, for the reason that by the construction and operation of the road it had been dedicated to public use prior to their purchase of the same, and that they bought with knowledge that the law forbade the abandonment of the road. But we hold that such is not the law and has never been, but that a railroad track may be abandoned and its construction material removed when it is conclusively shown that the public no longer has any interest in such material’s remaining on the roadbed.

The case of the State v. Sugarland Railway Co., 163 S. W. 1047, is not authority for the proposition here contended for by the state, for the reason in that case the railroad was a going concern, and was not proposed to be abandoned, except as to a few miles at one of its termini, and it was not alleged that the operation of the road as a whole was not remunerative.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered for the -appellants.

Reversed and rendered.

On Motion for Rehearing.

The argument of the Attorney General on motion for a rehearing indicates some misunderstanding on his part as to the grounds of our decision herein, and for fear that we have not made our position quite plain, we will here attempt to do so.

1. We do not hold that the judgment of the district court of Hartley county, under which the road was sold, authorized the purchasers to dismantle the road. The right, exists independent of that judgment.

2. We recognize the fact that, -though the purchasers have not organized a corporation to take over the sold-out road, for-which reason the provisions of article 6625, B. S., do not apply to them, nevertheless, the sale of the road did not work a forfeiture of its charter, but the purchasers became, in effect, its stockholders, and were bound by all of the provisions of the statute and of the common law applicable to the sold-out company. Railway Co. v. Morris, 67 Tex. 700, 4 S. W. 156; Railway Co. v. Newell, 73 Tex. 338, 11 S. W. 342, 15 Am. St. Rep. 788; Railway Co. v. Harle, 101 Tex. 181, 105 S. W. 1107; Bailway Co. v. Anderson County, 150 S. W. 250; Id., 156 S. W. 503; Thayer v. Wathen, 17 Tex. Civ. App. 392, 44 S. W. 906; Williams v. Railway Co., 22 Tex. Civ. App. 281, 55 S. W. 130. Therefore, the question is: Could the railway company, under the facts of this case, be enjoined from removing the ties and rails, if it was threatening to do so, as are the individual defendants herein? It is a general rule of the common law that when a railroad has been constructed and operated, its location shall not be changed without legislative consent, and such is the general policy of this state as indicated by our statutes. Articles 6550, 6625, B. S. This rule is founded on reason and justice. The reason of the rule is that a railway is a public highway, and property is acquired with reference to its location, and with the view of its permanent operation. To allow railway companies to remove their tracks would generally destroy the rights of the public, acquired with reference to such public highway. If railway companies could change their location or discontinue operations at their will, a threat to do so would be a potent means of levying blackmail on that portion of the public whose interest would be affected by such removal or abandonment. The' consideration which a railway company receives for the enforcement of such rule is its charter granted by the state, and the privileges conferred thereby. A railway company, while a going concern, may be enjoined from violating its implied contract not to move its track. Por failure to operate its road, its charter may be forfeited. But, as we have stated in our previous opinion herein, the state has no power to compel any one to operate a railroad, and when the owners have permanently ceased to do so, and thereby abandoned all of the privileges granted them by the charter, it has ceased to be a railroad in any proper sense.

There is another well-established rule of the common law, and that is, the owner of property may use it as he pleases, so long as he does not infringe upon the rights of others. This rule is not violated by forbidding a railway company that is a going concern to move its track, for in so doing it violates the property rights of that portion of the public contiguous thereto. When the reason of a rule ceases, the rule itself ceases. There can be no violation of public rights ■where the public has no rights. The public can have no beneficial interest in maintaining the ties and rails on a roadbed, if no trains are ever to be operated thereon, and can suffer no wrong by their removal. It cannot be anticipated that trains will ever be operated on a road which will never pay expenses. The state, by its Attorney General, has signed an agreed statement of facts wherein it is stated that the road here under consideration can never be made to pay operating expenses. It is suggested that it might do so if extended, as called for in its charter. But the railway company has forever forfeited its right to continue the construction of the road, and there is no way of compelling the individual owners, or any one else, to do so. We are not called upon to deal with the rohd as it may be extended in the future, but as it now exists, this being the road that it is proposed to dismantle. Consideration as to this road’s ever being able to pay operating expenses is precluded by the agreement of the parties hereto that it can .never be made to do so, which agreement will be taken as a fact by this court.

It is suggested that this case is differentiated from Jack v. Williams (C. C.) 113 Fed. 823, in that, in that case no part of the expense of constructing the road had been paid for by subscriptions of private parties, whereas, in the instant case the road was built principally, if not entirely, by such subscription. The Subscribers to that fund are not complaining — they are not parties to this suit. The only party plaintiff in this suit is the state, in behalf of the public, represented herein by the Attorney General.

The Attorney General denies the applicability of Trust Co. v. Bailway Co. (C. C.) 192 Fed. 728, to this case, inasmuch as the decree in that case was in the alternative. The fundamental proposition there decided was that, under proper circumstances, the court may order the sale of the constructive material as junk, in which case, of course, the purchasers would have the right to remove the same. If a court in a given case could rightfully make such order, it would be because the public had no interest in having such material remain in place. If such be the fact, the right of removal would not be created by the judgment of the court permitting the same, but such judgment would be entered because such right already existed, just as the judgment of a court quieting title or to recover a debt does not create such title or debt, but only evidences its previous existence.

The facts being that the Enid, Ochiltree & Western Bailway Company has no rolling stock and is not able to purchase any; that it has ceased operations for several years, and can never resume such operations, except at a loss, as is admitted by the Attorney General, having thus in fact been permanently abandoned — said railway company would have the right to remove the rails and ties; and, as the purchasers have succeeded to all of the rights of the company, they likewise have such right of removal.

Such being our views of the law, we overrule appellee’s motion for a rehearing. Overruled.
      ©roFor other eases see same topic and KEY-NTJMBBR in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    INTERNATIONAL & G. N. RY. CO. v. BLAND.
    (No. 5515.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Appeal and Error <&wkey;263 — Reservation of Grounds of Review — Exceptions.
    The Practice Act of 1913, amends Rev. St. 1911, art. 1971, to provide that the charge shall be submitted to the parties for inspection and a reasonable time given in which to present objections thereto, which objections shall, in every instance, be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered as waived. Article 1974, which formerly provided that refused instructions should be filed and constitute a part of the record, subject to revision for error “without the necessity of taking any bill of exception thereto,” is amended by omitting the quoted provision. 'Article 2091, which formerly provided that the giving or refusal of instructions should be regarded as excepted to in all cases, is amended to provide that such rulings shall be regarded as approved, unless excepted to “as provided for in the foregoing articles.” Article 1972, which is not amended, provides that charges given shall be regarded as excepted to and subject to revision for errors, without the necessity of taking any bill of exception thereto. Articles 2058-2000 provide that whenever in the progress of a cause either party is dissatisfied with any ruling or action of the court, he may except thereto at the time, and at his request time shall be given to embody such exception in a written bill, and prescribe the requisites of bills of exceptions. Held, that though timely objections to the charge were presented and overruled, and though special charges were requested and refused, the giving and refusal of' instructions could not be reviewed, where no exception was reserved, as article 1972, so far as it conflicts with amended article 2061, is repealed thereby, and the reference in article 2061 to the “foregoing articles” refers to articles 2058-2060, and not to the other articles amended by the act of 1913.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <@=j263.]
    2. Statutes <&wkey;148r-Amendment of Provisions of Revised Statutes.
    When the Legislature amends an article of the Revised Statutes by referring to it by number, and providing that it shall thereafter read as therein set forth, the article as amended takes the place in the Revised Statutes formerly occupied by the superseded article.
    [Ed. Note. — Eor __other cases, see Statutes, Cent. Dig. § 217; Dec. Dig. &wkey;?148.]
    3. Constitutional Law <&wkey;70 — Determination of Validity of Statutes — Judicial Authority.
    The courts cannot substitute their judgment for that of the Legislature, and decline to enforce a statute merely because they deem it unwise.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. &wkey;?70.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by’ Howard Bland against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Eisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. W. A. Barlow, of Taylor, for appellee.
   KEY, C. J.

In this case appellee recovered a judgment against appellant for $158.84, to reverse which this appeal is prosecuted. We overrule all of the assignments of error, but do not care to discuss but one question in this opinion.

The main points presented in appellant’s brief relate to objections urged against the charge of the trial court and to the action of that court in refusing certain instructions requested by appellant. Counsel for appellee contends, and we feel compelled to sustain the contention, that the record fails to show that appellant reserved any exception to the action of the court in the matter complained of, as required by the Practice Act of 1913 (Acts 33d Leg. c. 59). This court, and most of the other Courts of Civil Appeals, have construed that act, and held that since it became the law, objections cannot be urged on appeal to the action of the trial court in giving or refusing instructions to the jury unless the record shows that the complaining litigant excepted to such action of the trial court. The rulings referred to have caused dissatisfaction; and, inasmuch as able counsel for appellant in this case are, in effect, insisting upon a different ruling, we have reconsidered the question, with the result that no reason has been found for changing the conclusions heretofore reached. The caption of the act of 1913, as well as.its body, shows that the purpose of the act was to amend four different chapters of title 37 of the Revised Statutes of 1911. The body of the act reads as follows:

“Be it enacted by the Legislature of the state of Texas:
“Section 1. That chapter 14, title 37, Revised Statutes of Texas, is hereby amended so as to add thereto article 1984a as follows:
“ ‘Article 1984a. In all jury cases the court, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately, and without being intermingled with each other, so that each issue may be ánswered by the jury separately. In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues, and the court may submit said cause upon special issues without request of either party, provided that if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse the request to do so, but the action of the court in refusing may be reviewed on proper exception in the appellate court, and this article shall be construed in connection with article 1985 of chapter 14, title 37, Revised Statutes.’
“See. 2. That article 1954 of chapter 12, title 87, of the Revised Civil Statutes of the state of Texas, of 1911, be amended so as to hereafter read as follows:
“ ‘Article 1954. Before the beginning, of the argument, the court shall read to the jury the charges and instructions, if any, under the provisions of this title relating thereto.’
“Sec. 3. That articles 1970, 1971, 1973 and 1974 of chapter 13, title 37, and article 2061 of chapter 19, title 37, of the Revised Civil Statutes of the state of Texas of 1911, be so amended as to hereafter read as follows:
“ ‘Article 1970. In all civil cases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court, deliver a written charge to the jury on the law of the case, or submit issues of fact to the jury if said cause is submitted to the jury on special issue of fact at the time, in the manner and subject to the restrictions hereafter provided, provided that failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon repeal (appeal) upon proper exception.’
“ ‘Article 1971. The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived; before the argument is begun, the judge shall read his charge, and all special charges given by him to the jury in the precise words in which they were written; he shall not charge or comment on the weight of evidence; he shall so frame the charge as to distinctly separate the questions of law from the questions of fact; he shall decide on and instruct the jury as to the law arising on the facts, and shall submit all controverted questions of fact only to the decision of the jury.’
“ ‘Article 1973. Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give; provided, such instructions shall be' prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.’
“ ‘Article 1974. When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and shall subscribe his name thereto, and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error.’
“ ‘Article 2061. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.’
“See. 4. That all laws and parts of laws in conflict with the articles here amended be and the same are hereby repealed.”

The act amends chapter 12, the title of which chapter is “Trial of Causes”; chapter 13, the title of which is “Charges and Instructions to the Jury” ; chapter 14, the title of which is “The Verdict”; and chapter 19, the title of which is “Bills of Exceptions and Statements of Facts.”

The proper solution of the question under consideration depends upon the construction to be placed upon amended article 2061, and if that article had not been so radically changed ‘by the amendment, this court would be disposed to rule differently from what it has heretofore ruled, and from the ruling we feel compelled to make in this case. In order to properly construe this act it is important, not only to consider the main purpose which the Legislature had in view, but also the law as it existed prior to that enactment. Chapter 13 of the Revised Statutes relates entirely to charges to the jury, and article 1972 declares that charges given to the jury shall be regarded as excepted to and subject to revision for errors therein, without the necessity of taking any bill of exception thereto. That article is not amended by the act of 1913, but if conflict exists between them, then, to the extent of such conflict, article 1972 is repealed. Before the amendment of 1913, article 1974 read as it does in the act of 1913, with this addition: “Without the necessity of taking any bill of exception thereto.” In other words, prior to the amendment of 1913, article 1974 declared that the action of the court in giving or refusing requested instructions should be subject to revision on appeal, without the necessity of taking any bill of exception; while the amended act omits the language “without the necessity of taking any bill of exception thereto,” which omission strongly indicates the purpose of the Legislature, in enacting amended article 2061, to require a bill of exception to the action of the court in giving or refusing instructions. Pri- or to the act of 1913, article 2061, which constituted part of the chapter relating to bills of exception and statements of facts, read as follows:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as excepted to in all cases.”

Article 2061, as amended by the act of 1913, not only changes, but it reverses, the entire signification of that article as it formerly existed. Formerly that article declared that in all cases rulings of the court in the giving, refusing, or qualifying of instructions should be regarded as excepted to, while no;w, as amended, it declares that such rulings, shall be regarded as approved, “unless excepted to as provided for in the foregoing articles.” It is quite clear that this amended article declares that the rulings of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved unless excepted to; and the only question that remains for decision is, What did the Legislature mean by the additional language “as provided for in the foregoing articles”? Was that language intended to refer to the preceding articles amended by the act of 1913, which articles constitute amendments to three other chapters, relating to three other subjects, or was it intended to refer to the three preceding articles of chapter 19, relating to the subject of bills of exceptions? The articles last referred to are numbered 2058, 2059, and 2060, and they prescribe when and bow exceptions may be reserved by any party wbo is dissatisfied with any ruling, opinion, or other action of the court. Then, following immediately after those three articles comes article 2061 in the Revised Statutes, which prior to the amendment declared that the rulings of the court in the giving, refusing, or qualifying of instructions shall be regarded as excepted to.

It is a well-known rule of construction that when the Legislature amends an article of the Revised Statutes by referring to it by number, and, as in this instance, declaring that it “shall hereafter read as follows,” the article as amended is intended by the Legislature to take the place in the Revised Statutes formerly occupied by the superseded article. In fact, the language quoted admits of no other construction. Therefore, since the passage of the act of 1913, the first four articles of chapter 19 of title 37 of the Revised Statutes of 1911, read as follows:

“Article 2058. * * * Whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.
“Article 2059. * * * No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.
“Article 2060. * ♦ * Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions; but it shall be sufficient to refer to the same as it appears in the statement of facts.
“Article 2061. * * * The ruling of the court in the giving, refusing or qualifying of in-instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

So it will be seen that when amended article 2061 is given the place assigned to it by the Legislature, its concluding words, “the foregoing articles,” ought to be held to refer to articles 2058, 2059, and 2060, unless there is something in the amendatory act clearly showing that such was not the legislative purpose; and we have searched the act in vain for language so showing. If it be contended that the language “as provided for in the foregoing articles” was intended by the Legislature to refer and apply to the objections which amended article 1971 requires the dissatisfied litigant to make to the charge of the court, still, that would not give meaning to all the language of amended article 2061, because it would not apply to requested instructions refused by the court. There is nothing in any of the preceding articles as amended by the act of 1913 which requires a litigant whose requested charge has been refused to do anything that could, in any proper sense, be called an exception to the ruling of the court in refusing to give such instruction. In fact, after his requested instruction has been refused he is not, except by article 2061, required to do anything.

So, after reconsideration, we still believe that the language of amended article 2061, “as provided for in the foregoing articles,” refers to the three articles in the Revised Statutes of 1911 which immediately precede article 2061, and which prescribe the mode and manner of reserving exceptions to any ruling or action of the trial court. And, of course, we also hold that article 1972 is repealed in so far as it conflicts with amended article 2061.

It may be conceded that the Legislature could have accomplished its main purpose and remedied the evil sought to be remedied without requiring the dissatisfied litigant to reserve a bill of exception to the action of the court in overruling his objections to charges given and in refusing to give charges requested; and, if this court had been called upon to frame the law, it probably would not have embodied any such requirement in it. But it cannot be doubted that the Legislature had the power to make such requirement, and the fact that it may have acted unwisely in so doing can constitute no sufficient excuse for the failure of litigants to comply with it, nor for the failure of appellate courts to enforce it The Legislature has the power to enact laws which courts and others may regard as unwise; but it would be an unjustifiable usurpation of authority for the courts to substitute their judgment for that of the Legislature, and decline to enforce a statute, merely because they deemed it unwise. Relief from legislation merely because of its lack of wisdom should be sought at the hands of the Legislature, and not at the hands of the courts. However, amended article 2061 can easily be complied with, because, as shown by article 2059 set out above, no formality is required for a bill of exceptions; and this court has held that a brief notation, signed by the trial judge, and showing that certain objections to his charge had been presented to him within proper time and were by him overruled, and that the appellant excepted, was a sufficient compliance with amended article 2061; and a similar notation upon a refused charge would likewise be sufficient.

In this case the record shows that appellant presented timely objections to the charge of the court, which objections were overruled by the court; and it also shows that certain special charges were requested, and that the court refused to give them, but it does not show that appellant reserved any exception to the action of the court in so ruling. This being the case, uje feel compelled to hold that, on account of amended article 2061, appellant must be held to have waived the objections now sought to be urged.

All the questions presented in appellant’s brief have been duly considered and the con-elusion reached that no ground for reversal has been shown, and therefore the judgment is affirmed.

Affirmed.
      <g=^For oilier cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WESTERN UNION TELEGRAPH CO. v. OAKLEY.
    (No. 846.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. TELEGRAPHS AND TELEPHONES &wkey;>37 — DELAY in Transmission op Messages — Excuse.
    Where a telegram is sent to an addressee in care of a third person or a corporation, delivery to either relieves the telegraph company of liability.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. @=>37.]
    2. Telegraphs and Telephones <&wkey;66 — De-lav in Transmission op Messages — Findings.
    That a telegraph company did not deliver a message consigned to the care of a telephone company to that corporation or disclose the contents of the message, warrants a finding that the telegraph company did not use ordinary care to deliver the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. @=>66.]
    3. Evidence <&wkey;121 — Telegraphs and Telephones @=>57 — Res Gestae — Delay* in Transmission op Messages — Liability.
    Where the agent of a telegraph company, instead of delivering a message to a telephone company to which it was consigned, attempted to discover the addressee’s whereabouts through the agency of the telephone company, the telegraph company was liable for the negligence of the telephone company, and conversations between the servants of the telephone company and the telegraph company’s agent, as well as conversations between the employes of the telephone company are admissible as part of the res gestro, so a conversation showing that had the contents of the message been disclosed to the employes of the telephone company it might have been delivered is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <&wkey;121; Telegraphs and Telephones, Cent. Dig. § 38; Dec. Dig. @=>57.]
    4. Evidence <@=5156 — Admissibility — Conversations.
    Where in an action against a telegraph company for delay in transmission of messages, it appeared that the telegraph company made a telephone company its agent to ascertain the addressee’s whereabouts and parts of conversations between the telegraph company’s agent and employes of the telephone company were received in evidence, the whole of such conversations should be received.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 446-458, 2148; Dec. Dig. &wkey;155.]
    5. Appeal and Error <&wkey;1053 — Review — Harmless Error.
    Where the agent of a telegraph company testified that he did not remember or understand a purported conversation whereby a telephone operator told him that if he would disclose the purport of a message she would deliver it to the addressee’s father-in-law or wife, and it would be received, and evidence of her statements to that effect was improperly received, a charge that such evidence could not be considered unless the conversation was transmitted to and understood by the telegraph company’s agent rendered its admission harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <&wkey; 1053.]
    6. Trial @=>314 — Conduct — Custody oe Jury.
    Where the court as a matter of pleasantry in directing the jury to attempt to agree, told them that they had the whole world to agree upon and the whole week, and it was not shown how long they had been deliberating or how soon thereafter they returned their verdict, the remark was not erroneous, notwithstanding the general rule that remarks having a tendency to leave an impression upon members of the jury that the court intends to coerce them constitute reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747, 748; Dec. Dig. &wkey;314.]
    7. Appeal and Error <&wkey;1046 — Review — Harmless Error.
    Where the jury in an action for delay in delivery of a death message agreed as to all the issues but that of damages, a remark by the court intended as a pleasantry, that the jury had the entire world to agree upon and the entire week, does not constitute reversible error where there was no showing how long, after the remark was made and the jury sent back, they deliberated, and there was no contention that the award of damages was excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. @=>1046.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by J. J. Oakley against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Huff, Martin & Bullington, of Wichita Falls, for appellant. Moss & Leak, of Memphis, for appellee.

      Application lor writ oí error pending in Supreme Court.

   HALL, J.

Appellee sued appellant company, charging in his petition substantially that on or about the 13th day of January, 1914, Frank Oakley, a brother of the plaintiff, delivered to the defendant at Ranger, Tex., the following telegram, addressed to plaintiff at Memphis, Hall county, Tex., to wit:

“J. J. Oakley, Memphis, Texas, care of phone line. Father not expected to live. Frank Oakley.”

That at the time of the delivery of said telegram Frank Oakley paid the agent of the defendant company at Ranger the sum of 30 cents, that being the charge for transmitting said message, and informed said agent of the serious illness of his father and the father of J. J. Oakley, and that plaintiff resided in a little town called Eli about seven miles southwest of Memphis, and requested that the message be delivered by the defendant company at the home of J. J. Oakley, at Eli, in Hall county, and guaranteed to pay and did pay all of the necessary expenses for delivering said message; that said agent promised Frank Oakley that said telegram should be delivered, and accepted the same for delivery under the above terms and conditions ; that defendant did not transmit and deliver said message on the 13th of January, 1914, nor at any other time; that by the use of reasonable and proper diligence the defendant could have transmitted and delivered said message to the plaintiff at Eli, Tex.; that had the t'elegram delivered to the defendant for transmission on the 13th day of January, 1914, been delivered to the plaintiff herein, or to his home at Eli, the plaintiff could and would have gone to Ranger and been present at the bedside, death, and funeral of his father; that the father of plaintiff died on the 16th day of January, 1914; that by reason of the failure of defendant company to deliver said message, plaintiff was deprived of the privilege of seeing and being with his father at the time of his death and funeral. There was a prayer for damages in the sum of $3,000.

The defendant’s answer contained general and special denials and alleged in substance that said message was promptly transmitted to Memphis and was received at Memphis at 10:10 a. m. on that day. That the agent at Memphis used proper diligence to deliver said message by inquiring of the telephone people conducting a telephone exchange at Memphis and by calling up various and sundry parties, but that said J. J. Oakley could not be located or his whereabouts learned; also every effort was put forth to find him until the hour of 10:45 a. m., when defendant’s agent was informed that there was a man by that name living at Eli; that defendant’s agent at once undertook to deliver said telegram to plaintiff at Eli, and at 10:55 a. m. was informed by the telephone operator that Mr. Oakley had been seen to go by the telephone office at Eli in a wagon earlier in the day and they thought he would be back and they would get him as soon as possible. That at 1 p. m. on the same day defendant’s agent at Memphis renewed the call for plaintiff and that he was informed that plaintiff had left Eli earlier in the day for some place out west; that plaintiff did in fact leave his home at Ell on a journey to Tulia, Swisher county, earlier in the morning of the 13th of January, and that he could not have been reached by telegram by the use of any amount of diligence on the part of defendant or its agents.

By supplemental petition plaintiff denied in general terms the allegation of defendant’s answer and alleged in substance that defendant could have delivered said telegram to one O. A. Barton, or to the wife of J. J. Oakley, at Eli, on the 13th day of January, 1914, and that in this way the plaintiff Oakley could have been reached.

Defendant filed a supplemental answer, denying that it had any knowledge that plaintiff had a wife at Eli, or that O. A. Barton was his father-in-law, but that after it failed to deliver said message at Eli, it immediately sent a service message to the office at Ranger, reporting the facts as learned, and did not learn until -several days later that plaintiff had relatives at Eli, Tex.

Upon the answers returned by the jury to special issues submitted, a verdict and judgment were rendered against the defendant company, in favor of the plaintiff for the sum of $800.

The first assignment Is that the court erred in admitting the testimony of Mrs. Dora Davis, to the effect that she had a telephone conversation with some party at Memphis, Tex., on January 13, in which she informed said person that Mr. C. A. Barton, the father-in-law of the plaintiff, was there at Eli in -the office, and would receive the telegram, and that said party said that they would not deliver to any one but the addressee. The objection made was that the testimony was hearsay, immaterial, and inadmissible, because it was not shown that this information was ever brought to the knowledge of the defendant, its agents, or servants, or that the conversation was between the said Mrs. Dora Davis or any agent of the defendant. Mrs. Davis testified that she was a clerk in the store at Eli, and attended the telephone booth at times; that she answered the telephone call from the operator at the Memphis Telephone Exchange. The witness could not give the name of the operator at Memphis, but said she asked for J. J. Oakley, and that the Western Union was calling him; that she told the Memphis operator that Oakley was away. The witness proceeds:

“Then I turned and had a conversation with the father-in-law of J. J. Oakley, who was in the store at that time. He stated if it was a message to J. J. Oakley he would deliver it. Then I called the central office at Memphis and told the operator that C. A. Barton, the father-in-law of J. J. Oakley, was in the store, and would deliver the message to the plaintiff, and she, after waiting a few minutes, while I held the phone, told me that the Western Union refused to deliver the message to any one except J. J. Oakley. Why, I asked her to tell me what the message was so I might tell the father-in-law of J. J. Oakley, as he was then in the store. I asked for the contents of this message at the request of O. A. Barton.”

The first proposition under the assignment is that this is a hearsay statement, not made by any one in privity of contract .with or any agent of the defendant company.

The second proposition is that where the message was to be transmitted by the initial connecting carrier, the initial carrier is not responsible for the negligence of its connecting carrier, and there is no such relation or privity of contract between said initial carrier and the connecting carrier as would authorize the admission in evidence of the statement of declarations of the agents of the connecting carrier against the initial carrier, and such statements of the agent of the connecting carrier, if admitted in evidence against the initial carrier, over proper objections being made at the time, and when such statements tend to charge or do charge the initial carrier with negligence, the admission of such testimony is error.

C, T. Palmer, the manager for the Western Union Telegraph Company, at Memphis, testified to the following fact:

“When I received that message, the first thing I did was to send the messenger boy to the hotels, and he came back in about five minutes and said the party was not to be found there. First, though, I called on the phone people, as it was destined in care of the phone line, and they said they did not have any telephone in any such subscriber’s name, and then it was I sent the message up to the hotels; then I went out and tried to find the party myself. * * * In 10 or 20 minutes after I first talked to him (Mr. McQueen), he told me he was satisfied this party I was looking for lived at Eli, out west of town. So I called long distance and put in a call for J. J. Oakley at Eli, Tex., and they reported they were not able to get him; that it was impossible to got him. I waited awhile and then called up again and asked them if they had heard anything, and then they told me that the party had left Eli in a wagon going across the plains somewhere to Silverton, or Tulia, or somewhere out there and that he had been gone some time. I could not find out just what time he left but he had been gone some time and I could not get him.”

On cross-examination he said:

“When I talked to Gammage he told me there was a party at Eli by the name of Oakley and I then called up long-distance operator and put in a call for J. J. Oakley. I asked the phone operator to get J. J. Oakley at Eli; she reported to me the result of her efforts to get him, but I do not think she did so until after I had called up again with reference to the call. I called her up in the first instance and asked her to get J. J. Oakley at Eli. As to whether or not I told her what message I had I could not say. I could not tell you exactly what I did say at that time. I do not think I told her the contents of the message I had for J. J. Oakley. She later reported to me that J. J. Oakley had gone from Eli somewhere that morning. I do not think the phone operator told me that O. A. Barton, the father-in-law of the plaintiff, was in the store there at Eli, and asked if he would do. I did not ask her whether' or not Oakley lived at Eli. When she first spoke to me about it she said he was moving or loading a wagon to go across the country. I did not ask her whether or not the plaintiff was a married man; did not ask her anything in regard to that. I did not ask the operator if any one else was there at Eli to whom the message could be delivered. I presume that when I found J. J. Oakley was away from home I ceased my efforts, and immediately after I found that out I sent the service message back to Ranger, telling them he had left Eli, going to the plains. It is not a fact that the phone people advised me that the plaintiff’s father-in-law, C. A. Barton, was in the store, and would receive the telegram; they did not report that fact to me. I think at that time the phone office reported the conversation which they had with Eli. I do not think they asked me if O. A. Barton, the father-in-law of the plaintiff, would do. I did not reply that it was a message to J. J. Oakley and no one else would do. I only used the phone for the purpose of finding the plaintiff.”

Under this testimony the question of the liability of a connecting carrier does not arise. The defendant company would have been relieved of liability if, as directed by the sender of the message, delivery within a reasonable time had been made to the telephone company. The rule is settled in this state that when a telegram to an addressee is sent in care of a third person or corporation, delivery within a reasonable time by the telegraph company to either the addressee or the person or corporation in whose care the message was sent, relieves the company of liability. Western Union Telegraph Co. v. Young, 77 Tex. 245, 13 S. W. 985, 19 Am. St. Rep. 751; Western Union Telegraph Co. v. Terrell, 30 S. W. 71; Western Union Telegraph Co. v. Elliott, 27 S. W. 221; Western Union Telegraph Co. v. Thompson, 31 S. W. 318; Western Union Telegraph Co. v. Pearce, 95 Tex. 580, 68 S. W. 772; Jones on Telegraphs and Telephones, § 290. It appears from the testimony of defendant’s superintendent, Palmer, at Memphis, that the sender’s directions were disregarded, and that instead of making delivery to the telephone company the defendant company, through its superintendent, constituted the telephone company its agent to locate the addressee.

The jury found, in reply to the first question, that the defendant’s agent at Memphis did not use ordinary care to deliver the telegram, and the fact that the message was not delivered to the telephone company, and the further fact that its contents were never made known to the operators of the telephone company, is sufficient to sustain this finding. Having constituted the telephone company its agent, to locate and find J. J. Oakley, the defendant is properly chargeable with negligence, if any, of such agent, and the conversations between the employes of the telephone company, in an effort to accomplish the purpose of the principal, are clearly admissible as part of the res gestas. Hudson v. Slate, 53 Tex. Civ. App. 453, 117 S. W. 469; Western Union Telegraph Co. v. Uvalde National Bank, 97 Tex. 219, 77 S. W. 603, 65 L. R. A. 805, 1 Ann. Cas. 573; Naylor v. Parker, 139 S. W. 93. Since the evidence clearly showed that the telephone company was constituted the agent of the defendant company, and part of the conversation and transaction between the superintendent of the telegraph company and the op.erators of the telephone company was introduced by the defendant, plaintiff was entitled to have the whole of such conversations in evidence. We think the testimony of Mrs. Davis was further admissible upon the question of the negligence of the agent of the telephone company with which it is properly chargeable.

Even though we should hold the admission of this evidence to be error, the court gave appellant’s special charge No. 3 as follows, which in our opinion, would render the error, if any, harmless:

“You are further instructed by the court that you cannot consider any part of the testimony of Mrs. Dora Davis or Mr. O. A. Barton, relative to a phone conversation between the lady in charge of the telephone exchange at Memphis and the said Mrs. Dora Davis, unless you believe from the evidence that such conversation was transmitted to and understood by the agent of the defendant, G. T. Palmer, at Memphis, Tex., and the defendant would not in any way be bound by sueb conversation unless at least in substance the same would be known to its agent at Memphis.”

Appellant next insists that the court erred in telling the jury, after answers to all of the issues save one had been agreed upon:

“You are bound to agree on the last special issue. You have the whole world to agree on and the whole week before you.”

The billl of exception upon which this assignment is based, omitting the formal parts, is as follows:

“That during the trial of the above numbered and styled cause, and while the jury were deliberating upon their verdict in said cause, the jurors came into open court and reported to the court, and handed to the court their answers to special issues ‘A,’ and ‘B,’ and ‘0,’ and announced to the court that they could not agree upon a verdict as to special issue No. ‘D,’ and the court inspected their answers to special issues ‘A,’ ‘B,’ and ‘0,’ and then remarked, ‘You are bound to agree on the last special issue. You have the whole world to agree on and the whole week before you.’ Said last-named special issue referred to by the court was the question of the amount of damages suffered by the plaintiff by reason of the nondelivery of the telegram sued upon, whereupon defendant, Western Union Telegraph Company, in open court, excepted to said remark of the court as being prejudicial to the rights of the defendants,” etc.

The court qualified this bill as follows:

“Examined and approved, and order filed as a part of the record herein, with the qualification that while the remark of the court was in substance as above given, that my recollection of it is as follows: ‘You can agree all right. You got the whole world to agree on and the whole week before you.’ This was merely a little chaff to the jury containing no specific meaning capable of being discovered by the naked eye, and encouraged the jury to come to some agreement and not hang. Judge Martin, when the jury had gone out, came around and says: T believe X will except to the remarks of the court to the effect that they got the whole world to agree on and all the week to do it in. I did not call the plaintiff’s counsel’s attention to the exception at the time, considering it as a pleasantry of Judge Martin’s as the remark of the court was.”

As a general rule, remarks of this kind which-have a tendency to leave the impression upon the members of the jury that the court intends to coerce them, constitute reversible error. Pecos & North Texas Ry. Co. v. Finklea, 155 S. W. 612; G., C. & S. F. Ry. Co. v. Johnson, 99 Tex. 337, 90 S. W. 165; Wootan v. Partridge, 39 Tex Civ. App. 346, 87 S. W. 356; Cornelison v. Ft. Worth & Rio Grande R. R., 46 Tex. Civ. App. 509, 103 S. W. 1186; North Dallas Circuit Ry. v. McCue, 35 S. W. 1080.

We must take the court’s qualification of the bill as true. According to the record before us, we doubt if the language used by the court, as stated in his qualification, was taken by the jury in the sense in which it is construed by appellant. The record does not show how long the jury considered the case after the remark was made, and we must presume in support of the judgment that they gave the matter of the amount of damages full and careful consideration. Appellant does not insist that the verdict is excessive, or that it was returned in undue haste. No injury being shown, this assignment is overruled. Hermann v. Allen, 118 S. W. 794, 798.

The evidence is sufficient to support the verdict. The remaining assignments are overruled, and the judgment is affirmed.
      ®=>Por other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BENHAM v. TIPTON.
    (No. 504.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.
    Rehearing Denied Jan. 13, 1916.)
    1. Exchange of Property <&wkey;5 — Hands — Remedies — Rescission for Fraud.
    The owner of lands in Texas who was induced to exchange them for lands in Mexico by misrepresentations of the owner and his agent that such lands in Mexico were good and smooth, while, in fact, they were rough and worthless, had a cause of action to rescind the contract for fraud.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <S=35.]
    2. Exchange oe Property &wkey;>5 — Remedies— Rescission por Fraud — Representations.
    Where the owner of land in Mexico, proposing to exchange them for lands in Texas, when asked by the Texas owner regarding the Mexican lands, stated that he had not been in Mexico, had not seen the land, and knew nothing personally about it, but referred the Texas owner to a third person then present for definite information, who confirmed the Mexican landowner’s previous assertions that the land was good and smooth, possessing value, such representations, in fact false, the Mexican land being worthless, were of a character to -support a suit for rescission of the contract of exchange for fraud, although what one states to another merely as his information touching the subject of a transaction will not support an action for rescission.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. &wkey;>5.]
    3. Exchange op Property &wkey;>8 — Remedies— False Representations — Sufficiency of Evidence.
    In a suit to rescind an exchange of lands as having been induced by defendant owner’s false representations, evidence held sufficient to sustain a finding that defendant and his agent made positive misrepresentations of fact.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <&wkey;>8.]
    4. Trial <&wkey;351 — Refusal of Special Issues.
    The refusal of a special issue requested by a party is not erroneous where the same question was submitted and answered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §jj 829, 834r-S39; Dec. Dig. &wkey;351.]
    5. Appeal and Error <&wkey;216 — Reservation of Grounds of Review — Instructions.
    An appellant who did not prepare and ask a special charge cannot take advantage of error in the charge given.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>216; Trial, Cent. Dig. §§ 627-641.]
    6. Trial <&wkey;260 — Instruction Covered by Those Given — Burden of Proving Fraud.
    In action to rescind an exchange of lands as having been induced by false representations, where the general charge contained a charge upon the burden of proof, the refusal to defendant of a special charge that fraud is never presumed, but must be proved by competent evidence, was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    7. Exchange oe Property <&wkey;5 — Remedies— Rescission for Fraud — Fraud.
    Where the owner of lands in Mexico, proposing to exchange them for Texas lands, recklessly stated that his Mexican lands were good and valuable, which was false, having no knowledge of the truth or falsity of the statement, so that it was calculated to convey the impression that he knew it to be true, such representation was fraudulent, supporting the other owner’s suit for rescission of the exchange.
    [Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <&wkey;5.]
    8. Exchange oe Property <&wkey;8 — Remedies— Rescission eor Fraud— Judgment — Support by Finding.
    In suit to rescind an exchange of lands as having been procured by fraud, where plaintiff plead defendant’s misrepresentations, and the testimony of witnesses was confined to the statements charged, which were all material, without anything in the record indicating that the jury considered anything not material in reaching their verdict, their answer to a special issue that the representations were relied upon by plaintiff’s agent was not insufficient to support judgment for plaintiff in that it could not be ascertained whether the representations taken into consideration were matters of opinion, or those upon which an action for fraud could be based.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14 — 18; Dec. Dig. <S&wkey;8J
    Appeal from District Court, Ector County; S. J. Isaacks, Judge.
    Suit by G. E. Tipton against Henry Ben-ham. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Seott & Brelsford, of Cisco, for appellant. F. A. Judkins, of Odessa, Chas. Gibbs, of Midland, and W. E. Allen, of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

Appellee, plaintiff below, brought this suit against appellant, defendant below, and for cause of action alleged that he was the owner of about 2,558 acres of land in Crane county, Tex., and that defendant was the owner of certain lands in the republic of Mexico; that they agreed to exchange said properties, the exchange was consummated, and plaintiff executed and delivered his deed to defendant and received a certificate of transfer from defendant to two blocks of land, as agreed.

He further alleged that he had been induced to make the contract by false representations made to him by defendant and his agent, one Wasson, substantially as follows: That defendant represented that blocks 37 and 45 in the estate of Rio Cajones in the republic of Mexico was worth $5 per acre; that it was situated in a broad valley, in the tropical section of Mexico; that said land was fertile, level, all tillable, and suitable for agricultural purposes; that he (plaintiff) was ignorant of the location, valuation, character, or description of the land; that, in addition to defendant’s claim that he was familiar with the land in Mexico, he (defendant) represented to plaintiff and his agent that one Williamson and one Wasson were also in possession of valuable information as to the value of the land, knew its adaptability for agriculture, and specifically referred plaintiff and his agent to them for further information concerning the lands, and represented to plaintiff that said Williamson and Wasson were truthful and reliable men; that plaintiff and his agent applied to said persons for information, and that they confirmed in all things the representations made by defendant, and furnished plaintiff with literature which purported to minutely describe said lands; that on account of the assertion of defendant as to the said Williamson and Wasson being reliable and truthful men, and that they were possessed with valuable information concerning the lands, plaintiff believed the statements made and also the facts asserted in the literature; that he had confidence in the defendant and in the said Williamson and Wasson, believed the statements made by them and was thereby induced to make the exchange.

He further charged that the defendant and the said Williamson and Wasson conspired together to defraud plaintiff out of his said lands; that all the representations made by said persons and the literature furnished as to the location, description, and valuation of the lands in Mexico were false; that, in fact, the lands as described by the defendant and Williamson and Wasson, were mountainous, rough, unfit for cultivation, and practically worthless; that, if he had known of the true condition of the lands offered for exchange by defendant, he would not have agreed to exchange; that as soon as he discovered the facts he demanded a rescission and tendered back the title to defendant, etc.

Defendant answered by general and special exceptions to the petition upon the ground that the representations alleged to have been made were mere expressions of opinion, and therefore would not support a judgment, and denied that he entered into any conspiracy with Williamson and Wasson; that he made no false representations concerning the lands in Mexico; that he expressly stated to plaintiff and his agent that he knew nothing of his own knowledge about the lands he offered in exchange; that he had never seen it; and insisted that plaintiff examine the lands for himself; that plaintiff made the exchange upon his own responsibility and upon investigation from other sources than from defendant, and that he is estopped from claiming that defendant misled him or made any representations with reference to said land whatsoever.

The cause was submitted upon special issues, and upon the findings the court entered judgment ior plaintiff for rescission of the contract, for title and possession of his lands, that defendant recover nothing, etc., from which this appeal is perfected.

The special issues and answers are as follows:

“No. 1. Did the defendant, Henry Benham, make representations prior to the consummation ■of the exchange of lands between plaintiff and defendant to plaintiff’s agent, I. W. Tipton, that were false, in regard to the character of blocks 37 and 45 of the estate of Rio Cajones, situated in the republic of Mexico, as to the adaptability for agricultural purposes? Answer: Yes.
“No. 2. Did the defendant, Henry Benham, pri- or to the consummation of the trade in question, refer plaintiff’s agent, I. W. Tipton, to C. L. Wasson for information concerning the Mexico lands? Answer: Yes.
“No. 8. If you have answered question number 2 in the affirmative then: Did the said C. L. Wasson confirm to plaintiff’s agent, I. W. Tipton, the representations if any, made by the defendant, Benham? Answer: Yes.
“No. 4. If you have answered questions 1, 2, and 3 in the affirmative, then: Were such representations of material nature? Answer: Yes.
“No. 5. If you have answered questions numbers 1, 2, and 3 in the affirmative, then: Were the said representations relied upon by plaintiff’s said agent? Answer: Yes.
“No. 6. If you have answered questions numbers 1, 2, and 3 in the affirmative, then: Did said false representations induce the plaintiff’s agent, I. W. Tipton, to make the exchange of lands in question? Answer: Yes.
“No. 7. Was plaintiff damaged by the exchange of lands in question? Answer: Yes.
“No. 8. Did the defendant represent to plaintiff’s agent prior to the contract of exchange of lands that he personally knew the character of the Mexico lands? Answer: No.
“No. 9. Did the defendant, Henry Benham, tell plaintiff’s agent prior to the making of the exchange of lands that he, Benham, had never been in Mexico and had never seen the Mexico lands? Answer: Yes.”

The first assignment charges that the court refused to pass upon appellant’s demurrers to the petition, stating that it was a rule of the court that all exceptions must be called to the attention of the court before the jury was called into the box to try the cause; that this was error. The petition charges a good ■cause of action. It was therefore immaterial whether the demurrers were specifically passed on or not.

By the second, fourth, fifth, eleventh, twelfth, fourteenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third assignments appellant urges in various ways that the judgment entered is not supported by the evidence, in that the statement charged to have been made by appellant were matters of opinion, and do not constitute a basis for an action for fraud.

The entire testimony concerning representations made by appellant relied upon by ap-pellee to form the basis for Ms judgment is that of I. W. Tipton, as follows:

“Benham told me that on this land all kinds of tropical fruits, vegetables, cane, and almost everything. I think he named bananas, oranges, and one stuff and another, that way, you know-tropical fruits. He spoke to me with reference to the soil of these two blocks of land being fertile and smooth; described it as being as fine as could be. He claimed it to be bottom land-valley. Wasson was with him at the time. I am not sure whether or not Benham claimed to have been on this land himself, but he represented Mr. Wasson knew all about it, and whatever he would tell me I could depend on it being true. He referred me to Wasson as being possessed of knowledge in regard to the land. He said I could depend on whatever Wasson told me. I did receive communications from Wasson in regard to the land down there; letters or literature; I have quite a bunch of them here; that is a bunch of stuff I received from Wasson. I did not believe the representations made to me in regard to the land by Benham — well, I believed it right then.”

On cross-examination he stated:

“I met Benham and Wasson at Midland because they sent me literature and I had read it and got in correspondence. I do not know that I asked them to come out; they came, though. They went down to Orane county to see the land. I proposed to trade my place if their land was what they recommended it to be. I think Benham told me that he did not know a thing in the world about the land; that he had never been in Old Mexico. Benham described the land as being as fine as could be, and recommended that other man for me to consult with. I did not suppose that he personally knew anything about it, only from what he had heard and talked with the company about it. Of course, I believed he ought to have known something about it. I thought that what he had stated to me about the land was from hearsay, but he recommended this other man, Wasson, as having been in Mexico and as knowing all about it, and that whatever he would tell me was true. Benham recommended it to be good, as fine as could be, as far as that is concerned; turned me over to Wasson to take his advice, what he said about it.”

The rule sought to be applied in this case by appellant is that what one states to another merely as his information touching the subject of a transaction will not support an action for rescission, if such was in fact the information received, though in fact it was untrue. But the facts stated by the witness are more than an expression of an opinion. They amount to positive representations of fact made as upon information. They were definite and material statements concerning the property in Mexico sought to be exchanged. While it is true Benham told witness that he had not been in Mexico, had not seen the land, and knew nothing personally about it, at the same time he refers witness, who was agent for appellee, to Wasson, who was then present, for definite information, a confirmation of the statements made with the assertion that he (Wasson) had been on the land and knew the facts to be as stated, and immediately upon being interrogated Wasson in all things confirmed the statements of appellant as to the value, condition, etc., of the lands. In addition to this, Tipton testifies that he received printed matter in the form of circulars from Wasson which confirmed the statements made by Benham and Wasson as being true. These representations come clearly within the rule laid down in Boles v. Aldridge (Sup.) 175 S. W. 1052, and Maddox v. Clark (Sup.) 175 S. W. 1053, by the Supreme Court, and, the evidence being that the land so described was practically worthless, undoubtedly such facts should be held sufficient to uphold the judgment of the court.

By some of these assignments and the propositions thereunder appellant urges that the preponderance of the evidence as to the representations made is in favor of appellant; therefore the judgment should not be permitted to stand. It is true, as urged by appellant, that Benham and Wasson denied that they made any positive representations of fact, and stated that they both informed appellees’ agent that they had not seen the land, but there are many circumstances revealed by the record that would justify the jury in believing the appellee’s evidence instead of the statements of these witnesses.

The fact that the land in Mexico was almost worthless, that these two men sought out the agent of appellee together, that literature was sent in to him, in all things confirming the very statements admitted to have been made, but asserted now to have been made simply upon information and belief, are strong circumstances in support of witness Tipton’s testimony; for, if he would trade over 2,000 acres of land for something he had not seen, and without any information from any one who had seen it or claimed to have seen it, he certainly ought not to be permitted to trade his own property, much less others. All these things strongly indicate that the court trying the case is sustained in concluding that the testimony cf these witnesses is not true.

Assignment No. 3: The court did not err in refusing to give special issue No. 6 requested by defendant, to the effect that plaintiff’s agent had good reason to believe at the time the trade was made that defendant, Ben-ham, had not been in Mexico, because this question was submitted and answered.

The sixth is that the court erred in not sustaining defendant’s exceptions to paragraph 2 of the charge, because the question asked is a matter of law.

By reference to the said issue, as copied above, it will be seen that it is simply a question of fact; so we conclude that this assignment was intended to be the same as No. 8, which charges that the court erred in giving paragraph No. 4, because it did not explain the different representations which were matters of opinion and those that were not, to enable the jury to predicate their answer on material representations. In order for appellant to take advantage of this objection to the charge, he should have prepared and asked a special charge, which he did not do. This disposes of the fifteenth assignment, which is to the same effect.

The ninth charges that the court erred in refusing special charge offered by appellant to the effect that fraud Is never presumed, but must be proved by competent evidence. The general charge contains a charge upon the burden of proof which was sufficient under the facts of this case. The plaintiff, under his allegations of fact, is not restricted to actual fraud. In Harris v. Shear, 177 S. W. 136, it is held that it is not always necessary that the speaker should actually know that representations made are false.

“If the statement is a matter susceptible of actual knowledge, and he makes it recklessly, without any knowledge of its truth or falsity, and in the form of _ a positive assertion, calculated to convey the impression that he knows it to be true, the representation is equally fraudulent.”

The tenth assignment is:

“Because the answer of the jury to paragraph No. 1 of the court’s charge is not supported by the evidence, in this, the testimony of Williamson, the only man who testified that he had ever been on blocks 37 and 45, was at least 50 per cent, of block 37, and greater per cent, of block 45, was smooth, undulating '• land, fertile, and suitable for agricultural purposes.”

The answer is that the question is: Did Benham make false representations concerning the lands? So what Williamson may have testified has no application.

The sixteenth is:

“Because the answer of the jury to special issue No. 5 is not sufficient upon which to predicate a judgment for plaintiff, in that it cannot be ascertained whether the representations taken into consideration by the jury in answering that issue were representations that were matters of opinion or representations upon which an action for fraud could be based.”

The plaintiff plead definite statements, and the testimony of the witnesses is confined to those charged. They were all material, and there is nothing in the record which indicates that the jury considered anything not material in arriving at their verdict.

Finding no error in the record, the assignments are overruled for the reasons given above, and cause affirmed.
      cg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes