author: MOURSUND, J. A. D.

text:
    ZUCHT v. SAN ANTONIO SCHOOL BOARD.
    (No. 5318.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Schools and School Districts (§ 172)— ■ Powers of School Board — Regulations.
    A regulation imposed by a school board under its general powers and without express authority must be reasonable.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 343; Dec. Dig. § 172.]
    2. Schools and School Districts (§ 172*)— Regulations — Construction—Jury Question.
    Whether an ordinance, or a regulation of a quasi municipal corporation as a school board, is reasonable, is a question of law for the court, although it may depend largely upon surrounding circumstances.
    [Ed. Note. — For other cases, see Schools and Seh. Districts, Cent. Dig. § 343; Dec. Dig. § 172.]
    3. Schools and School Districts (§ 172)— Power of School Board — Regulations.
    A municipal ordinance, or a regulation passed by a quasi municipal corporation as a school board, is prima facie valid.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 343; Dec. Dig. § 172.]
    4. Schools and School Districts (§ 158)— Regulations — Validity. ,
    When an epidemic exists or the danger from smallpox is imminent, a regulation of a school board requiring the children to be vaccinated before they can attend school is not unreasonable.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 329; Dec. Dig. § 158.]
    5. Schools and School Districts (§ 158) — Regulations — Validity.
    A rule of a school board requiring the vaccination of pupils as a condition to their attending school, passed at a time when an epidemic of smallpox was imminent, was not invalid because it did not provide when it should expire; the rule automatically expiring when the conditions changed.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329; Dec. Dig. § 158.]
    6. Constitutional Law (§ 278) — Due Process of Law — Unreasonable Regulations.
    A rule of a school board requiring pupils to present a vaccination certificate as a condition to attendance, - which also provided that vaccination should be deferred for 60 days upon a certificate from a physician and concurrence by the school physician that vaccination would imperil the pupil’s health, and that it might be further deferred upon order of the board of health of the city and the school physician, is not unreasonable as conferring upon the board of health and the school physician arbitrary powers, and so is not invalid under Const, art. 1, § 19, and Const. U. S. Amend. 14, prohibiting the deprivation of life, liberty, or property without due process.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 763, 765, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278.]
    7. Schools and School Districts (§ 158)— Regulations — Validity. ,
    A regulation of a school board requiring vaccination of pupils as a condition to attendance does not violate Const, art. 7, §§ 1-3, 5, which declare that, a general diffusion of knowledge being essential, the Legislature shall make suitable provision for the support and maintenance of an efficient public school system and provide a means by which state' revenues may be used for school needs.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329.; Dec. Dig. § 158.]
    8. Schools and School Districts (§ 158)— Regulations — Validity.
    A regulation requiring vaccination before children could attend school is not in violation of Rev. St. 1911, arts. 2899, 2900, declaring that all children of school age shall be entitled to school privileges; the statute not depriving school authorities of the right to pass necessary regulations for protection of the health of pupils.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329; Dec. Dig. § 158.*] .
    9. Trial (§ 350) — Verdict—Special Verdicts.
    In a suit to compel the school board to receive children without the vaccination which was required by the rules, a special issue submitting the question whether smallpox constituted a menace to the public health in the vicinity was not misleading.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dee. Dig. § 350.]
    10. Appeal and Error (§ 1070) — Review —Harmless Error.
    Where the evidence was such that the court would have been justified in instructing a general verdict for defendant, errors in special issues submitting the question to the jury are harmless to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.]
    11. Appeal and Error (§ 1070) — Review-Harmless Error.
    Where answers to other special issues were sufficient to sustain the judgment for defendant, plaintiff cannot complain of errors in other findings by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.’]
    12. Evidence (§ 5) — Judicial Notice.
    The courts will take judicial notice that vaccination is, in the common belief, a preventive of smallpox; and hence, where it was contended that a regulation of a school board requiring vaccination of the pupils was invalid, it is unnecessary for the jury to find that vaccination is a preventive of smallpox.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. § 5.]
    13. Appeal and Error (§ 1070) — Review-Harmless Error.
    In a suit to compel the board of a school district to admit pupils without vaccination, plaintiff cannot complain that the jury improperly found that vaccination was a preventive of smallpox, where the school board had the right to determine that question and determined it adversely to him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.]
    14. Schools and School Districts (§ 158) —Power oe School Board.
    The school board of an independent school district authorized by the act creating it to make rules for the protection of health may require vaccination to prevent the spread of smallpox, even though the danger from the disease wa's equally great in places under the control of the city where no such regulation was imposed.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329; Dec. Dig. § 158.]
    15. Evidence (§ 14) — Judicial Notice. The courts can take judicial notice that the
    danger of contagion from smallpox is equally great in theaters and street cars as in the schools.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 19; Dee. Dig. § 14.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by A. D. Zucht against the San Antonio School Board. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. A. Lipscomb and Don A. Bliss, both of San Antonio, for appellant. Arnold, Cozby & Peyton and S. D. Hopkins, all of San Antonio, for appellee.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Application for writ ol error pending in Supreme Court.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J. A. D.

Zucht, as next friend of his infant children, Arthur William and Rosalyn, sued the school board of the San Antonio independent school district, which is a corporation duly incorporated by special act of the Legislature as an independent school district, and against Charles J. Lukin, the superintendent of the public free schools of said district, praying for a peremptory writ of mandamus requiring said board and superintendent to .admit said children to attendance in the public schools of the district, and .also praying for a writ of injunction restraining the board and superintendent from enforcing a certain rule or regulation adopted by the board with respect to vaccination, which rule was to be effective at the February term. The case was submitted upon the following special issues:

“(1) Is the danger of an epidemic of smallpox imminent at this time in the city of San Antonio? (2) Do the existing conditions in reference to smallpox constitute a menace to the public health? (3) Is the regulation of the San Antonio school board requiring vaccination of the children reasonably necessary for the preservation of the public health by preventing the spread of smallpox?”

The first question was answered in the negative, and the other two in the affirmative. The verdict was returned March 10, 1914. Judgment was entered denying plaintiff the relief prayed for.

Conclusions of Fact.

1. The San Antonio school board of the San Antonio independent school district was incorporated by special act of the Legislature and given the exclusive management and control of the public free schools in said district. Its charter provides:

“Said board shall have the power to make reasonable rules and regulations for the government and conduct of said schools and for the protection of the health and safety of those attending such schools and to enforce such rules and regulations, but such rules and regulations shall not be in conflict with the general laws of the state.”

2. Chas. J. Lukin was the superintendent of the schools in said district.

3. About January 12, 1914, the said school board adopted a new rule with reference to vaccination of children, which reads as follows:

“That in order to make more effective the ordinances of the city of San Antonio and to assist the city in the enforcement of its ordinances the following rule is adopted: No pupil or teacher shall be admitted at the February term of school without presenting a proper certificate from a physician practicing in conformity with the laws of this state showing successful vaccination within seven years; or unless such certificate is on record. Provided that, if an unsuccessful vaccination is shown, such teacher or pupil shall be admitted if compliance with paragraphs (b) and (c) hereinafter set forth is shown. Providing further that, if any child or teacher shall bring a certificate from such physician to the effect that the health of the teacher or child is such that vaccination should not be done, then, if the school physician so recommends, vaccination may be postponed sixty days, at the end of which time, a certificate of vaccination shall be required. If, however, after the expiration of the sixty days above mentioned the child should again produce a certificate from such physician that vaccination should not be done, the question shall be referred to the board of health of the city together with the school physician to determine whether and how long said child may attend the public schools of this city without vaccination.”

4. Prior to the adoption of said rule, the board had a rule requiring vaccination, but containing an exception permitting children to attend without vaccination if their parent or guardian filed with the superintendent an affidavit that he conscientiously believed vaccination would be prejudicial to the health .of the child.

5. Under such prior rule, A. D. Zucht had filed such an affidavit, and his children, Arthur William and Rosalyn, aged 12 and 9 years, had been attending the public schools. They were both in perfect health, hut had never been vaccinated because their parents would not permit them to be vaccinated, so at the February term, 1914, they were refused admittance to the public schools because they had not been vaccinated.

6. The findings of the jury in answer to special issues Nos. 1 and 2, set out in stating the case, are sustained by the evidence and are adopted by us. The county health officer, Dr. Berry, testified that from October, 1913, to the date of the trial, there had been about 61 cases of smallpox in Bexar county, of which number 21 or 22 were from the city of San Antonio; that on the date of the trial lie had 21 cases in the detention hospital, and had two cases in the city which he expected to take to the detention hospital the next day, one of said eases being a child which had been attending the public schools; that probably six or eight of the cases from the city were Mexicans who came in from Mexico. This testimony is uncontradicted. One physician testified that reputed cases of smallpox he had examined were in fact chickenpox, but admitted he had seen none of the cases reported as smallpox by the health authorities. Several witnesses gave negative testimony to the effect that they knew of no cases, and had heard of none. One of appellant’s witnesses testified that he knew a great many Mexicans came from Mexico during the preceding December and January. This was uncontradicted, and so was the testimony to the effect that the sanitary conditions in the Mexican portion of the city are not as good as in other portions, and that the lower classes of Mexicans are very secretive about diseases and dislike to call in physicians.

7. The limits of the San Antonio independent school district coincide with those of the city of San Antonio, which city has a population of about 100,000. The charter of said city empowers it by ordinance:

“To do all acts and make all regulations which may be deemed necessary for the protection and promotion of health or the suppression of disease ; * * * to prevent the introduction of contagious diseases into the city, to make quarantine laws for that purpose and to enforce the same within the five miles of the city, and to make all ordinances and regulations to prevent the spread of any contagious disease within the city limits; to enforce vaccination and to establish hospitals and pest houses, and to regulate the establishment of private hospitals.”

8. Said dty has adopted no other ordinance with respect to vaccination than one providing that no child or other person shall be permitted to attend any of the public schools, or any place of education within the city, unless such child or other person shall first present a certificate from some duly qualified physician to the city physician that such' child or other person has been successfully vaccinated within six years preceding the time at which such child or person desires to attend school. The ordinance is lengthy, but we consider it unnecessary to state its other provisions, which are merely for the purpose of carrying into effect the provision above set out.

9. “There are a large number of establishments in said city conducting moving picture shows where great crowds of men, women, and children daily and nightly assemble in close personal contact. There are number of theaters in said city where large concourses of men, women, and children assemble in close personal contact almost daily and nightly. There are a number of factories in said city where crowds of men, women, and children are assembled and working together in close personal contact every day in the week except Sunday. There are in said city a number of churches where concourses of men, women, and children assemble together in close contact every Sunday. There is a system of street car lines operated in said city carrying day and night crowds of passengers who are pressed close together on the seats of the cars and in the aisles of said cars. There are a number of passenger depots of railroads in said city where large crowds of men, women, and children daily and nightly assemble, and where passengers assemble for the purpose of taking passage upon trains for other points from said city, and where large crowds of passengers get off trains coming into the city. There is in said city what is called the ‘Mexican Quarter,’ a portion of the city having approximately 10,000 inhabitants where the sanitary conditions are not good and where crowds of children daily and nightly assemble as well as crowds of men and women in close personal contact.”

Conclusions of Law.

1. As the Legislature did not expressly empower the school board to adopt the regulation in question, it must be determined whether the same is reasonable. Whether an ordinance or regulation is reasonable is a question of law for the court, but frequently the solution of the question is dependent upon the operation of the ordinance or regulation upon particular persons or conditions of fact which cannot be known to the court until made to appear by evidence, Conditions may change, so that an ordinance when applied thereto may be arbitrary, unjust, and oppressive. The following language is quoted with approval in the ease of Railway v. City of Dallas, 98 Tex. 417, 84 S. W. 655, 70 L. R. A. 850:

“Much must be left to the judgment and discretion of the city council, and when they have exercised their judgment and discretion in passing an ordinance it is prima facie valid, and, to justify a court in setting aside their action, its unreasonableness, and the want of necessity for it as a measure for the protection of life and property, must be clear, manifest, and undoubted, so as to amount, not to a fair exorcise, but an abuse of discretion, or a mere arbitrary exercise of the power of the council.”

See, also, Dillon on Municipal Corporations (5th Ed.) vol. 2, §§ 591-599; Austin v. Cemetery Ass’n, 87 Tex 330, 28 S. W. 528, 47 Am. St. Rep. 114; Railway v. Matherly, 35 Tex. Civ. App. 604, 81 S. W. 589; City. of Brenham v. Holle & Seelhorst, 153 S. W. 348.

2. The power of local bodies to require the vaccination of school children as a condition to their admission to public schools, in the absence of express authority, is dependent upon the conditions existing in the community with reference to smallpox. When an epidemic exists or is imminent there can be no doubt that the power may be exercised. It has also been held that such regulations may be adopted and enforced when smallpox exists in a community, and by some courts the expression is used that such regulations may be adopted when an epidemic is reasonably apprehended. In this case it was found that no epidemic existed or was imminent, but that the existing conditions with reference to smallpox constituted a menace to the public health. We conclude from our investigation of the authorities that it is not necessary for an epidemic to exist or be imminent in order for the school board to be justified in adopting and enforcing the regulation complained of, because, if the conditions are such that they constitute a menace to the public health, it camiot be said that the board’s action was unreasonable and that the want of necessity for the measures has been shown to be “clear, manifest, and undoubted.” If existing conditions constitute a menace to the public health, an epidemic is threatened, and it cannot be said that it did not reasonably appear to the board to be necessary to adopt the regulation. If much must be left to the discretion of the board, certainly the undisputed facts in this case and the finding of the jury in response to the second issue show that the board has not abused its discretion. McSween v. Board of School Trustees, 129 S. W. 206; note to case of People v. Board of Education, 17 L. R. A. (N. S.) 709.

3. It is contended that, as the regulation in question does not provide when it is to expire, it is permanent and to be enforced whether or not conditions justify it, and therefore void. We cannot agree with such contention. Ordinances and regulations which are valid when measured by existing conditions become unenforceable when such conditions cease. Dillon on Municipal Corporations (5th Ed.) § 591. But they need not provide the time when they shall cease to be in effect or that they shall expire when certain conditions change. In the case of Hutchins v. School Committee, 137 N. C. 68, 49 S. E. 46, 2 Ann. Cas. 340, the Supreme Court of North Carolina held an objection similar to the one here made as without merit. In this connection we quote from the opinion of the United States Supreme Court in the case of Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, the following:

“Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe — perhaps to repeat a thought already sufficiently expressed, namely— that the police power of a state, whether exercised by the Legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.”

4. It is also contended that the regulation is unreasonable and void because it provides that a child or teacher who brings a certificate from a physician to the effect that the health of the teacher or child is such that vaccination should not be done can be admitted for 60 days without vaccination if the school physician so recommends, and should the child at the end of said time produce another such certificate then that the question be referred to the board of health of the city together with the school physician to determine whether and how long the child may attend the schools without vaccination. This portion is attacked on the ground that the question of admission is first left to the arbitrary discretion of the school physician, and ultimately to said physician and the board of health of the city. It is difficult to conceive of an exception based upon physical unfitness which might not be applied arbitrarily, and permit of some discrimination being practiced, because, even if the board of trustees passed upon the matter itself, it could act in an arbitrary manner. But we will not assume that the power will be exercised arbitrarily, nor should the regulation be construed as authorizing such an exercise thereof, for it is apparent that all decisions with respect to the matter are to be based upon the physical condition of the child, and the power is placed in the hands of persons competent to investigate the facts and make a decision which will not be arbitrary.

This, is not a case in which it is contended that the children are entitled to attend under the exception stated in the regulation, and therefore no issue is raised of the arbitrary exercise of the power vested in the school physician; but it is merely contended that the conferring of such power renders the entire regulation void. It appears to be doubtful whether appellant can, under the circumstances, question the validity of the ordinance upon the ground now being considered. He made no application to the school physician for permission for his children to be exempted on account of physical unfitness for vaccination, so it would seem unimportant to him whether the power vested in such physician admits of arbitrary exercise. Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725. But assuming that the question may be raised by him, we conclude that such provisions do not invalidate the regulation. We therefore overrule the contention that such regulation violates section 19 of article 1 of the state Constitution and the fourteenth amendment to the Constitution of the United States. Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603; New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305; Dillon on Municipal Corporations (5th Ed.) § 598; Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; McSween v.'Trustees, 129 S. W. 206.

5. Said regulation does not violate sections, 1, 2, 3, and 5 of article 7 of the state Constitution, and is not in conflict with articles 2899 and 2900 of the Revised Civil Statutes. The portion of article 2899 relied upon by appellant was first enacted as section 94 of Chapter 122, Acts of 23d Legislature. The caption to said act throws no light upon the intent of the Legislature, but it is apparent from section 94 and from present article 2899 that the purpose in enacting the same was to permit children to attend the schools in the districts in which they reside, notwithstanding they were enumerated elsewhere or had attended school elsewhere for a portion of the year. The idea was to do away with certain hardships which had theretofore been imposed upon children, and not to declare it to. be the law of this state that no child could be kept out of school by the authorities, regardless of whether its presence in the school constituted á menace to the other pupils and threatened the destruction of the efficiency of the school. We cannot hold the regulation in question to be in conflict with said statute unless we take the view, that the statute permits every child to attend the schools, and therefore no regulation could be adopted by the board of trustees which interfered with such attendance. In other words, that the board could only pass regulations for the health of those attending the schools, but such regulations must not go so far as to prohibit the attendance of any pupil of scholastic age. The Constitution imposed the duty upon the Legislature of making provision for an efficient system of public schools, and the statute cannot be given a construction which would charge the Legislature with the absurdity of providing that a child afflicted with a contagious disease must be admitted although at the risk of having only that one child to attend. Then if the language does not admit of the construction that every child must be admitted regardless of physical fitness, it is evident that such statute cannot guide us in determining whether the school board had the power to adopt the regulation complained of. If the school board can keep out children afflicted with contagious diseases and those who have been exposed to the contagion, without coming in conflict with the Constitution and said statutes, it also has the power to keep out those who fail to comply with other regulations reasonably necessary to protect the health of those attending the schools. 'Duffield v. School District, 162 Pa. 476, 29 Atl. 742, 25 L. R. A. 152; Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 72, 80 Am. St. Rep. 195; Hutchins v. School Committee, 137 N. C. 68, 49 S. E. -46, 2 Ann. Cas. 340. Appellants in their able argument admit that the school board could have adopted such a regulation as a temporary measure had an epidemic of smallpox prevailed or been imminent. We go further, and hold that it was not prevented by anything in the statutes or Constitution from adopting the regulation in question where conditions with reference to smallpox were such as are established in this case to have existed in the city of San Antonio.

6. We do not consider the objection to the second special issue, to the effect that it was misleading, as well taken. In addition, however, we are of the opinion that the facts in evidence which were undisputed wholly failed to show that the regulation was unreasonable, and that the court would have been justified in instructing a general verdict for defendants.

7. The special issue submitted at appellee’s request, which is described in our statement as No. 3, left to the jury the determination of the question of law whether the regulation was reasonable; also, the question whether vaccination would prevent smallpox. Their finding that the regulation was reasonable has not injured appellant, because the answer to the second finding is sufficient to support the judgment of the court, and in our opinion the court could not, from the evidence, arrive at any other conclusion than that the regulation was reasonable within the meaning of the law.

8. The cases relied upon by appellant to show that the efficacy of vaccination is not a question to be determined by court or jury are authority for the holding that courts ■ will take judicial notice of the fact that it is the common belief of the people of the state that vaccination is a preventive of smallpox, and that such judicial notice furnishes a basis for judgment upholding vaccination regulations. As such common be-: lief obtains in this state, the court’s judicial notice thereof was sufficient, and the finding by the jury that such belief was well founded could not have prejudiced appellant. Jacobson v. Massachusetts, 197 U. S. 34, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765; Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 334. Again, if such question is not one for the court or jury, it is bound to be one to be determined by the board of trustees, who did so adversely to appellant’s views on the question, and, as their decision upon that phase of the case is not to be reviewed by the court, appellant could not have been injured by the jury’s finding that the school board was correct in its views. Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 67, 80 Am. St. Rep. 195.

9. Appellant sought to introduce testimony to the effect that there was much more danger of the spread of the contagion of smallpox in the moving picture shows than in the schools; also in the crowds in street cars, the theaters, the passenger depots, factories, churches, and the crowds that assemble in the “Mexican Quarter” of the city of San Antonio. The school board was given no power by its charter to pass regulations with respect to the above matters, but merely with respect to the health of those attending the schools. It is true that appellees pleaded the existence of the ordinance and charter provisions of said city, which are copied in our conclusions of fact, as a justification of the action of the school board in adopting said regulation, and appellant pleaded that such ordinance was unreasonable and void. We hold that the school board had the power to adopt the regulation in question regardless of the city ordinance, and therefore testimony offered on the theory that it tended to show the ordinance to be unreasonable was immaterial. We therefore decline to pass upon the questions whether the city ordinance is invalid because applying only to those attending places of education, and whether the city is deprived of its police power with respect to the public free schools because of the control thereof being vested in a board of trustees incorporated by special act of the Legislature. Were it necessary to determine these questions, we would take judicial notice of the fact that the danger of the spread of contagion in the places mentioned, in view of the admitted facts with respect to the crowds frequenting them, was equally as great as in the schools, for such fact is a matter of common knowledge. Jacobson v. Massachusetts, supra.

All assignments of error are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    WORD v. BANK OF MENARD.
    (No. 5325.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1914.
    On Motion for Rehearing, Nov. 18, 1914.)
    1. Pleading (§ 283) — Supplemental Petition — Denial—Repetition.
    An allegation in plaintiff’s petition being denied by the answer, a mere enlarged repetition of it in the supplemental petition need not be denied to prevent it being taken as confessed.
    [Ed. Note. — For other cases, see ' Pleading, Cent. Dig. §§ 848, 849; Dec. Dig. § 283.]
    2. Bills and Notes (§ 497) — Bona Fide Purchaser — Burden oe Prooe — Feiaud oe Payee.
    The maker of a note sued thereon by its indorsee, denying plaintiff bought it before maturity for value, and alleging and giving evidence that the payee fraudulently put it in circulation, plaintiff has the burden of proving that it bought for value before maturity, in the ordinary course of business; the note and its indorsement not being enough.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-16S7; Deb. Dig. § 497.]
    On Motion for Rehearing.
    3. Bills and Notes (§ 525) — Bona Fide Holder — Fraud oe Payee — Evidence.
    Not only defendant, sued on a note by its indorsee, but his son, who was not interested, having testified to its having been fraudulently put in circulation by the payee, as alleged by the answer, the court may not disregard this, and give judgment for plaintiff, when it has not met the burden, shifted to it by such proof, of showing it was a bona fide purchaser, put in issue by the answer.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. § 525.]
    4. Bills and Notes (§ 497) — Bona Fide Purchaser — Burden oe Proof — Fraud of Payee.
    That the payee of a note put it in circulation, contrary to. agreement with the maker, without a certain event having occurred, is such fraud, as, being proved by the maker sued by an indorsee, shifts to plaintiff the burden of proof as to his being a bona fide purchaser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.]
    Appeal from District Court, Sutton County; J. W. Timmins, Judge.
    Action by the Bank of Menard against T. ,D. Word. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Dubois & Loveland, of San Angelo, and Chas. E. Davidson, of Ozona, for appellant.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   CARL, J.

Appellee, the Bank of Menard, a copartnership composed of Wm. Bevans, R. R. Russell, and W. P. Bevans, sued appellant, T. D. Word, for $500 principal, interest, and attorneys’ fees due on a certain note given by appellant to one A. S. Smith on May 11, 1912, and payable to his order December 31, 1912. The note bears the indorsement: “Pay to the order of Bank of Menard. A. S. Smith’,’ — but the transfer is not dated. Plaintiff alleges that it acquired the note before maturity for value.

The answer of Word denies that the bank acquired the note for a valuable consideration, that the note was due and unpaid, and denies that he owes the bank anything on said note. Appellant further sets out in his answer that the note was procured by Smith, who was organizing the Ranchmen’s & Bankers’ Life Insurance Company of San Angelo, Tex. It is alleged that he represented that the insurance company would be organized by December 31, 1912; that he told Word that, if he would give his note for $500, it would not be transferred, and if the company should not be so organized by said date, he would not have to pay the note; but if it was, then Word was to make payment of the balance of his $2,000 subscription $500 each six months after the date of organization of the insurance company. The company was not organized; and it is alleged that Smith knew at the time he took the note that he intended to transfer same, and fraudulently put it in circulation, and that the consideration for which the note was given has wholly failed. In a supplemental petition the allegation is made that the bank obtained the note in due course of trade for value, before its maturity, without notice of any infirmity in the note, and was an innocent holder for value.

Upon the trial before the court, the appel-lee bank introduced the note with the in-dorsements thereon and rested. Appellant himself, together with his son, testified in support of his allegations about the signing and delivery of the note, and that it was for stock in the insurance company. The court gave the bank judgment for $618.75, and Word has appealed, and has assigned as the sole ground of error in his motion for a new trial that the court erred in giving judgment for the plaintiff, because the uncontradieted evidence shows that the note was without consideration, and that same destroys the prima facie case made by the introduction of the note, and made it incumbent on the bank to show that it was an innocent holder for value before maturity of the note.

Paragraph 4 of the petition reads:

“That prior to December 31, 1912 (the due date), plaintiff bank for a valuable consideration purchased said note from the said Smith.”

This allegation is specifically denied under oath by the defendant below in his answer. In the supplemental petition, an enlargement is made, and it is there alleged that the plaintiff bought the note before maturity for value without notice of any defects, etc., and no denial of this is made in the pleadings of appellant. But we held in the case of G., H. & S. A. Ry. Co. v. Pennington, 166 S. W. 464, that it was unnecessary to deny under oath an allegation which was a mere converse of that -which had .already been alleged, and issue joined by such denial. So in this case the plaintiff alleged that it bought the note before maturity for value, which was denied under oath. And the fact that the bank in its supplement realleged that fact would not require a sworn denial to prevent the things so alleged again being taken as confessed, as provided in article 1829 of the Revised Civil Statutes of 1911.

The appellant’s sworn answer directly put in issue whether appellee bought the note before maturity and paid value therefor, and specifically set forth that there was fraud practiced upon him in obtaining the note. He followed this up by evidence which would justify the conclusion that the note was fraudulently put in circulation, and no evidence was introduced by the bank except the note and indorsement thereon. Chief Justice Stayton gives the rule which would govern this case when he says:

“If the averments of the answer are true, there can be no doubt that the paper was put in circulation fraudulently; and when this is shown to be the case, the presumption that an indorsee is an innocent holder cannot be indulged, and the burden of proving that he acquired- the paper before maturity, in ordinary course of business, for valuable consideration, rests upon him.” Risehe et al. v. Bank, 84 Tex. 413, and cases cited.

See, also, Hart v. West, 91 Tex. 184, 42 S. W. 546; Bank v. Chapman, 164 S. W. 900; Cowboy Bank v. Guinn, 160 S. W. 1103. The burden was on the bank to show that it bought the note for value before maturity, in the ordinary course of business, and this burden was not discharged.

The judgment does not contain the names of the parties except in the caption. Even there'the individual names of the plaintiffs are not shown. This matter will be corrected on another trial, but if that were the only trouble, this court would correct the judgment.

On account of the failure of the bank to make the proof above indicated, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

In the original opinion we stated that appellant assigned as the sole ground of error the fact that the court gave judgment for the plaintiff “because the uncontradicted evidence shows that the note was without consideration,” etc. We may say that statement should be amplified to include the further proposition that the note sued upon was fraudulently placed in circulation.

We are well aware of the line of cases which hold that a jury is left to weigh the testimony of an interested witness such as appellant is, and may wholly disregard the same. A court sitting in the trial of a case without a jury may do the same. But the son, D. W. Word, also testified to the same facts that appellant did, and he was not interested, except for the fact that he happened to be his father’s son. This fact does not discredit him, and while it might go to the weight of the testimony, the court, sitting as a jury, would not be authorized wholly to disregard his statements. Both his testimony and appellant’s tend strongly to show that the note was fraudulently placed in circulation, and there is absolutely no showing made by appellee that the note was obtained before maturity for value and without notice of its infirmity. When the burden of showing these facts shifted to appellee by reason of said proof having been made that the note was fraudulently placed in circulation, and appellee failed to meet'said proof, the court was not justified in rendering judgment on the note.

“It is a general rule, upheld by the great majority of the reported cases, that evidence of fraud in the origin or transfer of commercial paper throws on the holder the burden of proving his good faith; and the question presented in the foregoing case is whether proof that the paper was negotiated, contrary to an agreement, before the happening of a certain future contingency, is such a fraud as will shift the burden of proof. The cases upon this point are very harmonious in holding that such a negotiation is a fraud upon the right of the maker or other person to be charged, and shifts the burden of proof onto the holder.” McNight v. Parsons, 136 Iowa, 390, 113 N. W. 858, 22 L. R. A. (N. S.) 718, 125 Am. St. Rep. 265, 15 Ann. Cas. 665, and cases in note, among which is Rische v. Bank, cited in our original opinion.

The motion for rehearing is overruled.


author: HUFF, C. J.

text:
    HUGHES v. HUGHES.
    (No. 652.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1914.)
    1. Appeal and Error (§ 333) — Abatement oe Appeal — Death oe Party.
    Rev. St. 1911, art. 1618, provides that if any party of record to a cause taken to a Court of Civil Appeals shall have died, or shall die after the appeal has been filed and approved, or after the writ of error has been served, and before the cause has been decided, such cause shall not abate, but the court shall proceed to decide it and render judgment as if the parties were still living, and the judgment shall have the same force and effect as if rendered in the lifetime of all the parties. Held that, where an appellant dies after an appeal bond has been filed and approved, the appeal does not abate, though the original cause of action does not survive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1846-1850; Dec. Dig. § 333.}
    2. Homestead (§ 38) — Designation — Limitations.
    A husband may designate a homestead of 200 acres out of a larger tract of land, and in doing so is not limited by the mode prescribed by Rev. St. 1911, arts. 3794, 3795; the only limitation being that he cannot exclude his residence and the part actually used for homestead purposes.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 57; Dec. Dig. § 38.]
    3. Husband and Wife (§ 6) — Conveyance of Land — Homestead—Designation—Conveyance of Other Property.
    Where a husband has designated a homestead of 200 acres out of a larger tract, he may mortgage or convey the excess, and such conveyance passes the title, though the wife does not join therein.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 13-18; Dec. Dig. § 6.]
    4. Husband and Wife (§ 6) — Property-Homestead.
    Where plaintiff willingly left her husband and home without sufficient cause, and after failing in a suit for divorce, accepted from him another home and used and occupied it as such, the husband’s deed to property not then or theretofore occupied by either as a homestead, in which the wife did not join, was valid.
    [Ed. Note. — For other cases, see Husband and Wife, Cent Dig. §§ 13-18; Dec. Dig. § 6.]
    5. Pleading (§ 409) — Waiver of Objections.
    In answer to the first count of plaintiff’s petition, in trespass to try title, defendant pleaded the three-year statute of limitations and not guilty. Held, that the plea of not guilty was a denial of plaintiff’s allegation, and put her on proof of everything necessary to establish her right to the land, and in the absence of an exception taken to the plea, plaintiff was not entitled to judgment on the first count of her petition because defendant did not sufficiently deny the facts pleaded therein.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1375-1383, 1386; Dec. Dig. § 409.]
    Appeal from District Court, HaR County; J. A. Nabers, Judge.
    Action by M. E. Hughes against W. G. Hughes. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Moss & Leak, of Memphis, and R. E. Taylor and Leslie Humphrey, both of Henrietta, for appellant. J. K. Duke, of Memphis, for ap-'pellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellant, M. E. Hughes, instituted this suit against W. G. Hughes for 160 acres of land, and in the first count of her petition alleges that she and M. H. Hughes, deceased, were married and moved to Hall county as husband and wife; that M. H. Hughes is dead, and he died in August, A. D. 1913; that prior to his death, on the 16th of March, 1912, he deeded the land in controversy to W. G. Hughes, signing the deed alone, which was not joined in by the appellant; that the land at the time of the conveyance was community property of appellant and her husband, and was the homestead prior thereto, and at that date; that the deed was void and of no force and effect, for the reason that appellant did not join in the execution thereof; and that the property constituted their homestead at the time and prior to the execution of said deed, and she sued for the rents, etc., and possession of the land.

The second count in the petition is in the form of an ordinary trespass to try title. To this petition the appellee, W. G. Hughes, answered by the three-year statute of limitation and a plea of not guilty, which plea was sworn to.

The facts show that M. H. Hughes and M. E. Hughes, as husband and wife; purchased and settled upon section 4 of block 2, J. Pointervant survey, on the 11th day of November, A. D. 1895, and that the section of land was a full 640 acres, and that they resided on the south part of the section until they separated as husband and wife. The land in controversy is the south 160 acres of said section. At the time of the execution of the deed by M. H. Hughes to W. G. Hughes appellant and her husband had separated, and the deed to the 160 acres of land was executed by M. H. Hughes, without being joined by his wife, the appellant. The land is described as beginning at the southeast corner of the section; thence west 1,900 varas to its southeast corner; thence north 475 va-ras, east 1,900 varas, and south to beginning 475 varas. Mrs. Hughes testified in general terms that at the time of the separation and before that time the homestead was on the south part of the section, and at one place appears to state it was on title south %. The other testimony is clear that the improvements, house, etc., used by them as a home was not on the .160 acres so conveyed by the husband, and while the evidence is not clear just where the house was situated, it appears that the land in question during the time Hughes and.‘his wife lived together was segregated from the rest of the section by a wire fence, with a renter’s house thereon. The evidence is very indefinite as to what use the 160 acres was put. The effort, in this case appears to have been 'to show that Mrs. Hughes, in a division, did not get as good land as her husband. We are not able to find that the husband at any time dedicated the 160 acres to homestead use. The facts by. some of the witnesses, while not clear, indicate that the farm was, in fact, north of the house, and that the house and improvements in which they resided was north of the 160 acres in question. We think the court, from the evidence, was warranted in finding that the husband dedicated the land north of the 160 acres to homestead use, and that the land in question was not at any time part of the homestead, and we impute to the court such a finding. The facts further show that M. H. Hughes and his wife, Mrs. M. E. Hughes, at the time the deed was executed, were husband and wife, but were living apart; that previous thereto the wife sued the husband for divorce, alleging substantially that on the 29th day of October, 1908, her husband struck her in the breast with his fist and struck her on the .head with a knife, and that his conduct was such that she was obliged to leave and did leave him and placed herself under the care of her son, T. Hughes, since which time she had not dared to live with him. The suit for divorce was tried in the district court of Hall county, and upon hearing the evidence the court refused to grant the appellant a divorce from her husband, and rendered a judgment refusing her a divorce. In that case she swore to her pleadings. Upon the trial of this case she testified her husband left her upon having a quarrel about some chickens on a Friday, in 1908, but came back in about three days, and said nothing at that time about her leaving the place. She testified after her husband left her she filed the suit upon the advice of some one that she would have to do so to get any part of the land. She further testifies that she did not leave the place willingly, but was given notice to quit. It further appears that she and her husband thereafter entered -into an agreement, by which she took 180 acres of land on the north end of the tract, two cows and calves, three horses, and $200 in money, and moved on that land and built a house on it, and has since been living on it for about five years before the institution of the suit, and was then living on it. At the time-she signed the agreement she was at her son’s house in Donley county.

The evidence in this record is in a very unsatisfactory condition. Counsel in the case present in their brief matters not in the record and assume positions in no way supported by the record. There is no allegation that the husband disposed of the land in fraud of the rights of the wife in the homestead.

The appellee, W. G-. Hughes, suggests to this court that since the appeal was perfected that the appellant, Mrs. M. E. Hughes, has died, and moves to abate this appeal, because the homestead claim was personal, and died with the appellant. We took a submission of the motion to be considered with the main appeal. The appellee files an affidavit supporting his plea in abatement, which is not controverted. Under article 1618, R. C. S., an appeal does not abate upon the death of a party after the appeal bond has been filed and approved. It has been held under this article that an appeal does not abate after the appeal has been perfected, notwithstanding the original cause of action may be one which does not survive. White v. Manning, 46 Tex. Civ. App. 298, 102 S. W. 1160; Conn v. Hagan, 93 Tex. 334, 55 S. W. 323. It will therefore, as we understand the authorities, be our duty to entertain jurisdiction and determine whether or not the judgment of the district court was properly rendered. Ellis v. Brooks, 101 Tex. 591, 102 S. W. 94, 103 S. W. 1196.

The husband may designate his homestead of 200 acres out of a larger tract of land, and in doing so he is not limited to the mode pointed out by articles 3794 and 3795, R. C. S., but may otherwise make the designation. The only limitation is that he cannot exclude his residence and that part actually used for homestead purposes. Morris v. Pratt, 53 Tex. Civ. App. 181, 116 S. W. 646; McGaughey v. American National Bank, 41 Tex. Civ. App. 191, 92 S. W. 1003; Smith v. Van Slyke, 139 S. W. 619.

If the husband has so designated the homestead, he may mortgage or convey the excess, and such conveyance passes the title thereto. Medlenka v. Downing, 59 Tex. 32. The evidence indicates that on the north line of the 160 acres there was a fence which segregated that tract from the rest of the section. The residence was on the tract north of this fence. There is a tract of 300 acres where the house was situated suitable for the purposes of the homestead, and the evidence indicates it was so used. This tract is between the 160-acre tract of appellee and the 180-acre given to the wife, or set apart to her. Appellant, after the separation, built a house upon the 180-acre tract, in which she moved and where she has lived up to the time of the suit. We think the court was justified, from the evidence, in holding that the' 300 acres upon which the home place was situated was the homestead, and so designated by the husband, and, if so, he had the right to deed the. 160-acre tract to appellee, and sucli deed passed the title free from the homestead elgim of the appellant.

If the land in question was ever the homestead, the evidence is sufficient to warrant the trial court in finding that the appellant abandoned it, as did her husband, and we think it sufficient to show that both had abandoned it as the homestead. The wife sued her husband for divorce, alleging that she was forced to leave the husband on account of cruelty. This question she submitted to the court trying the case, which found against her. In this case she testified her husband left her, but in three days returned, and afterwards she was notified to leave the premises. It appears she and her husband after she left the home had some sort of a contract by which she was to have ISO acres of land, personal property, and money. The evidence is conclusive that she accepted the land, built a house thereon, and up to the trial occupied it as a home. It is evident, or at least the evidence authorized the trial court to find, that she willingly left her husband and home without sufficient cause therefor, and, in addition thereto, accepted another home and used and occupied it as such. While she was so living apart from her husband, the deed to appellee was executed by the husband. Under this state of facts we do not think the deed void, but that the husband had the right to deed the land. Mann v. Wilson, 89 Tex. Civ. App. Ill, 86 S. W. 1061; Duke v. Reed, 64 Tex. 705; Moore v. Dunn, 16 Tex. Civ. App. 371, 41 S. W. 530.

Under the appellant’s second assignment it is asserted the court erred in not rendering judgment on the first count of tlio petition, for the reason that the defendant did not deny the facts therein pleaded. The appellee’s plea is the three-year statute of limitation, and the plea of “Not guilty.” The appellant indorsed her petition: “Tin's action is brought as well to try title as for damages.” We find no request for judgment made in the trial court in the record, on the ground that there was no denial of the allegations in the first count. The first time it appears to have been raised was upon motion for new trial. There was no objection, either to the pleading or the evidence, nor was there, in so far as the record shows, a request for judgment as upon confession. The appellant introduced her evidence, and without objection on her part, the appellee introduced his evidence, and the court considered such evidence under the pleadings, and rendered judgment thereon without objection, and not until motion for new trial was there any complaint made. It has been repeatedly held, whatever the form of suit for the title of land, it is an action of trespass to try title. Johnson v. Bryan, 62 Tex. 623; Thomson v. Locke, 66 Tex. 383, 1 S. W. 112. The Supreme Court, speaking through Judge Coke, in the ease of Stroud v. Springfield, 28 Tex. 649, on pages 672, 673, said:

“By this plea (not guilty) they admit nothing, but demand strict proof of everything necessary to sustain the plaintiff’s action.”

Again that court said:

It “goes directly to the points in dispute under the evidence, and throws upon the plaintiff the burden of proving everything in relation to these points that is necessary to maintain his suit and entitle him to recover.”

It is clearly stated, we think, in that case that the plea of not guilty is a denial of the plaintiff’s allegation, and puts him upon proof of everything necessary. If under the amendment of the statute with reference to pleadings the denial was not specific enough, an exception should have been taken thereto on that ground, and, having failed to do so, we believe the appellant should be held to have waived her right to a better plea. It has been recently held that the amendment of the law with reference to pleading was made, in part at least, for the benefit of the litigants, informalities of which they could waive, and the record as here presented, we think, clearly indicates a waiver by the appellant before the trial court, and we so hold. Railway Co. v. Tomlinson, 169 S. W. 217.

We find no error in the judgment of the court requiring a reversal, and the case will therefore be affirmed.


author: TALBOT, J.

text:
    HOUSTON & T. C. R. CO. v. CORSICANA FRUIT CO.
    (No. 7160.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 24, 1914.
    Rehearing Denied Nov. 21, 1914.)
    1. Partnership (§ 213) — Actions—Parties— Variance.
    In an action brought in the name of two partners, defendant could show, without denying the partnership under oath as required by Rev. St.. 1911, art. 1906, that there were other partner's, each having an interest in the subject of the suit, so as to defeat the suit for want of parties.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 408, 409; Dec. Dig. § 213.]
    2. Partnership (§ 200) — Suit in Firm Name.
    A partnership may not sue in its firm name independently of the partners composing the firm.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 369-371; Dec. Dig. § 200.]
    3. Appeal and Ebrob (§ 1056) — Harmless Ebeoe — Exclusion oe'Evidence.
    The exclusion of evidence in a suit in the name of two partners that other partners were members of the firm will not be considered harmless error because plaintiff did not offer to show that such other members were not secret or dormant partners, where the objection to its admissibility did not urge that the members were secret or dormant partners.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]

      4. Appeal and Error (§ 499) — Bill op Exceptions — Exclusion op Evidence.
    Upon a bill of exceptions to evidence admitted, only such objections as were presented in the trial court and as stated in the bill will be considered on appeal, and this applies as well to evidence excluded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    5. Trial (§ 251) — Damask to Shipment — Pleading — Issues.
    Where it is alleged that the damage to a shipment of bananas resulted from negligence and delay, followed by specific allegations ascribing the damages to the failure to stop the car as per contract, it is error to submit to the jury as a separate ground of recovery the failure to ice the car.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    Appeal from Navarra County Court; R. R. Owen, Judge.
    Action by. the Corsicana Fruit Company against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Neblett & Rice and Gordon Damon, all of Corsicana, for appellant. McClellan & Prince, of Corsicana, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   TALBOT, J.

This suit originated in the justice court, and was brought by appellee against appellant to recover damages in the sum of $200. From a judgment in favor of (.he appellee in the justice court, appellant appealed to the county court, and from a lilse judgment in the county court appellant appealed to this court. It is alleged that the appellee, a firm composed of Ben Brown and Harry Miller, on the 24th day of July, 1912, delivered to appellant at Galveston, Tex., 580 bunches of bananas in sound condition to be transported, 200 bunches to Navasota, Tex., and the remainder to Corsicana, Tex.; that the agreement in the shipment of the bananas was that appellant would stop the car in which they were transported at Navasota to allow appellee to take therefrom 200 bunches of the bananas, and then to transport the remaining 880 bunches to Corsicana; that appellant negligently failed and refused to stop the car at Navasota, but carried the same on to Corsicana, where it arrived on July 25, 1912, and then carried back to Navasota the 200 bunches of bananas, and did not place the car for the unloading and delivery of said bananas until the morning of July 27, 1912; that when said bananas were returned to Navasota from Corsicana and the delivery thereof tendered they were overripe, damaged, spoiled, and of no value; that the market value of said bananas in good condition was $1 per bunch, and that by reason of the negligence and delay of the appellant, appel-lee had been damaged in the sum for which the suit was brought. Appellant denied it made the contract to stop the ear at Navasota to allow appellee to take therefrom 200 bunches of the bananas; denied the bananas were damaged; and denied there was any negligence or delay in delivery.

The first assignment of error complains of the rejection by the trial court of evidence offered by the appellant to show that the car of bananas, including the 200 bunches claimed in this suit to have been damaged, belonged, at the time of the alleged damage, to another copartnership firm, called, as was the appellee, “Corsicana Fruit Company,” composed of the alleged copartners, Ben Brown and Harry Miller, and two other persons, namely, Jake Brown and Jake Miller, all of whom were owners of the car of bananas involved in this suit, and each of whom had at the time of the trial of this case an interest in the cause of action declared on. The bill of exceptions reserved to the court’s action in refusing to allow this testimony shows that it was objected to because appellant had not, under oath or by any pleading, put in issue the question of partnership, and because the' suit was by the Corsicana Fruit Company, and a judgment in its favor would protect appellant from any subsequent recovery by any member thereof. The testimony should not have been excluded on either ground urged against its admissibility. The suit should be treated as the joint action of Ben Brown and Harry Miller, suing as partners composing the firm of Corsicana Fruit Company to recover the damages claimed to have been sustained, and in such a case the filing of a plea under oath denying the partnership alleged was not essential to appellant’s right to introduce evidence to show that said firm, at the time of the accrual of the cause of action, was composed of other persons not alleged to be members of the firm. Article 1906 of the Revised Statutes of 1911, cited by appellee in support of the court’s ruling excluding the testimony in question, simply requires that, in order to put an alleged partnership in issue, the party denying the same shall file a plea under oath to that effect. The contention and argument of appellant is that it did not wish to deny, and that the evidence excluded was not offered to deny, and does not deny, the existence of the partnership as alleged by appellee, but that appellee nowhere alleged, and appellant did not and does not concede, that the firm that made the contract of shipment of the bananas with appellant, and who owned the bananas at the time of their delay and damage, if any, and at the time of the trial of this case, was a firm composed of Ben Brown and Harry Miller only; that, these things being true, appellant had the right, without denying the partnership alleged by appellee, to introduce evidence to show that the firm which made the contract was composed of four members — plaintiffs and two others— and that each of said four members had a one-fourth interest, at the time of the trial of this suit, in the cause of action alleged, and therefore the suit could not be maintained alone by the two members suing. To sustain this view the recent case of Neal v. Adkins, reported in 145 S. W. 264, is cited. In that case four members of a firm styled “Brady Land Company” sued for a commission for a sale made by Brady Land Company when said company consisted of only three of the members suing. The Court of Civil Appeals for the Third District, in passing on the right of the defendants to present and urge the question of a variance between the cause of action pleaded and the proof, after stating that the suit was brought as a joint action by the plaintiffs, Adkins, Abernathy, Carrithers, and Spiller, and that in order to recover it was necessary for them to show that the defendants were liable, not to a portion of the plaintiffs, but to all of them as alleged, and reóiting that the undisputed proof showed that at the time the trade in question was made Spiller was not a member of the firm doing business as the Brady Land Company, and did not become a member of that firm until after the transaction out of which the suit arose, and that therefore there was a fatal variance between the plaintiffs’ case as alleged and the proof submitted in support of that case, said:

“It is true that the plaintiffs sued as partners, and the defendants did not file a plea under oath denying the existence of such partnership; but such plea was not necessary to present the question we are discussing. While the defendants concede that the plaintiffs were partners at the time the suit was brought, they do not concede, and the plaintiffs did not allege, that they were partners at the time the alleged cause of action accrued. But if it be conceded that they sued upon a contract alleged to have been made with them as a firm, including Spiller as a member of such firm, then, if they proved any contract, it was one between the defendants and another and different firm or partnership, and therefore they failed to prove the cause of action alleged. It is true that three of the plaintiffs were members of both firms, but th£t fact does not render the two firms or the partnerships identical, although each did business under the name of the Brady Land Company.”

We think the views and holding of the court in the above case correct and the principle enunciated applicable here, and that, had the testimony excluded been admitted and suffered to stand without contradiction or dispute in the evidence, it would have been sufficient to defeat the appellee’s recovery. It was, at all events, admissible and sufficient to raise the issue as to who composed the firm of Corsicana Fruit Company at the time of the accrual of appellee’s alleged cause of action.

The contention of the appellees that the suit was by the Corsicana Fruit Company, and therefore a judgment in its favor would protect the appellant from any subsequent recovery by any member thereof, whether such member joined in the suit or not, does not. meet and answer the contention of appellant that the evidence rejected by the court was admissible for the purpose urged by it. It is a well-established general rule that suits can only be maintained by or against persons natural or artificial, and that, unless otherwise provided by statute, a copartnership is not considered a person, and must sue or be sued by its partners. This general rule is not varied by any statute in this state, and it follows that the Corsicana Fruit Company was not authorized to sue in its firm name independently of its members. Frank v. Tatum, 87 Tex. 204, 25 S. W. 409. This suit must therefore be treated under tlie allegations as a joint action brought by Ben Brown and Harry Miller as the only partners composing the firm of Corsicana Fruit Company, not only at the time the suit was brought, but at the time of the accrual of the cause of action upon which the suit is based, and evidence showing that at the time of the accrual of the cause of action other persons were members of the firm and retained to the daté of the trial the interest they had in the subject-matter of the suit as such members was clearly admissible as tending to show a variance between the appellees’ case, as made by their pleadings and the proof, and to thereby defeat, if true, the recovery sought.

But appellees urge, in substance, in this court, that if the persons claimed by appellant to be members of the firm of Corsicana Fruit Company, and who were not made parties plaintiff in this suit, were silent, secret, or dormant partners, they were not necessary parties, and that, as it does not appear by the record that appellants offered to show that they were not such partners, the error of the court, if error, in including the evidence in question does not appear to be prejudicial, and the case should not be reversed therefor. The bill of exceptions taken to the action of the court in excluding this testimony does not show that, as an objection to its admissibility, it was urged that appellant did not offer, in connection therewith, to show that the persons claimed to be members of the firm, and not made parties, were not silent, secret, or dormant partners, and the presumption must be indulged that no such objection was urged. This being the state of the record, it must be said that the question of whether or not the partners not made parties to the suit were silent, secret, or dormant partners was not raised in objecting to the testimony, and that appellees should not be heard to urge in this court as a reason why a reversal should not be ordered that appellant failed to tender, in connection with the evidence excluded, proof that the partners not suing were not silent, secret, or dormant partners. If such an objection had been urged to the admissibility of the testimony offered, it may be that appellant would have proffered proof that such was not the character of the partners not parties to this suit.

It is a well-established rule of the Su-preine Court of this state that upon a bill of exceptions to evidence admitted only such 'objections as were presented in the trial court, and as stated in the bill, will be considered on appeal. Rector v. Hudson, 20 Tex. 237; Railway Co. v. Adams, 63 Tex. 206; Wheeler v. Railway Co., 91 Tex. 356, 43 S. W. 876. And we see no good reason why the rule should not obtain where evidence was excluded. But we are of the opinion that the action of the court in excluding the testimony in question cannot be justified on the ground that the appellant failed to offer proof that the partners not suing were not silent, secret, or dormant partners. The testimony offered by appellant was admissible as offered, and if the partners not suing were, in fact, silent, secret, or dormant partners, the burden of proof was upon appellees to show the fact.

We are also inclined to the opinion that the trial court erred in submitting to the jury as a separate and distinct ground upon which appellees might recover the failure of appellant to ice and properly care for the bananas. It is charged that the damage to the bananas resulted from the “negligence and delay” of defendant, but following these general allegations are specific allegations ascribing the damage'to the negligence of the appellant in failing to stop the car in which the bananas were shipped at Navasota, and the consequent delay in delivery at that point. We think the question should not arise upon another trial.

The judgment is reversed, and the cause remanded.


author: PLEASANTS, C. J.

text:
    WILSON v. CLEMMONS.
    (No. 6653.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 4, 1914.)
    1. Judgment (§ 682) — Conclusiveness—Persons Concluded.
    A. agreed with L. in 1895 that, if L. would take possession and hold 509 acres of land as his tenant for five years, he would convey to L. 50 acres of the tract. In pursuance of such agreement, L. took and held possession until 1899, when he conveyed his title and interest by a quitclaim deed to plaintiff’s grantor, who held possession until 1900, when he conveyed to plaintiff, who then took possession. In 1899 a third party filed suit against A. and L. to recover the 500-acre tract, and recovered judgment in May, 1901, after plaintiff and his predecessors in title had fully performed the contract with A. Meld, that this judgment was not conclusive in favor of one claiming under such third party as against plaintiff, who was not, and whose grantor was not, a party to the suit, especially where it appeared probable that the third party was claiming under a title acquired subsequent to the contract, with constructive notice of the rights of those in possession.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.]
    2. Vendor and Purchaser (§ 232) — Bona Fide Purchaser — Notice—Possession!
    Where an owner of land agreed that, if L. would take possession and hold it as tenant for five years, he would convey a part of the tract to L., the possession of L. and those claiming under him was constructive notice of their title or claim; there being nothing in the fact that they were in possession as tenants under a contract of purchase to change the general rule that possession of land gives constructive notice of the title or claim of the person in possession.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Action by J. W. Clemmons against A. D. Wilson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Smith, Crawford & Mead, of Beaumont, and W. A. Johnson, of Woodville, for appellant. Joe W. Thomas and Joe A. Harper, both of Woodville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This is an action of trespass to try title to a tract of 50 acres of land on the Robert Lucas survey in Tyler county. Plaintiff’s petition, in addition to the usual allegations in an action of trespass to try title, contains allegations of title under the three, five, and ten year statute of limitation, and further alleges, in substance, that on or about September 7, 1895, the Sam Allen Lumber Company and Sam Allen entered into an agreement and contract in writing with A. G. Lindell, the grantor of plaintiff, whereby it was agreed that in consideration of said Lindell holding possession for five years, as a tenant for said company, 555 acres of the R. Lucas league in Tyler county, that said company would execute and deliver to said Lindell a good and sufficient deed to 50 acres out of the southeast corner of the 555-aere tract, and that Lindell and his ven-dees and this plaintiff complied in every respect with said contract, and the defendants herein at the time of their pretended purchase of said land had notice of the possession of plaintiff and his vendors and of their claim and rights under said contract The defendants answered by pleas of not guilty and pleas of limitation of three • and five years. The trial in the court below without a jury resulted in a judgment in favor of the plaintiff.

The record shows the following facts: Sam Allen is the common source of the title under which both parties claim. In 1905 Sam Allen and A. G. Lindell entered in an agreement by which Lindell undertook to take possession and hold as tenant for said Allen, for a term of five years, a tract of 500 acres of land then owned by him and of which the 50 acres in controversy is a part, and in consideration of said Lindell’s holding possession and protecting said 500 acres for the time mentioned, Allen agreed to convey to him 50 acres out of the southeast corner of said tract, to be taken in a square. This agreement was in writing, and in pursuance thereof Lindell took possession of said tract and made improvements in its southeast corner consisting of a dwelling house and a small field. He held possession by a tenant of the entire tract of land under his agreement with Allen until March 24, 1899, when he conveyed to J. J. Fields by quitclaim deed all of his right, title, and interest in said land under his said contract. Fields took immediate possession, and held same under said contract until January 22, 1900, when he conveyed to appellee the 50 acres in controversy. Appellee held possession of the 50 acres under his deed and said original contract with Allen until November 11, 1903, on which date he conveyed to T. A. Birdwell. Birdwell did not make his home on the land, but he kept his household goods in the house on said 50 acres and kept his hogs on the place. He did not cultivate the farm. On March 4, 1905, Birdwell reconveyed the 50 acres to appellee, who has held continuous possession thereof by tenants up to the time this suit was tried, but his possession has not been exclusive during said time; appel-Iant having at different times since 1904 been in possession of portions of said 50 acres. On May 9, 1899, E. A. Blount filed suit against Sam Allen, the Sam Allen Lumber Company, and A. G-. Lindell to recover the 500-acre tract of land. Judgment was rendered in this suit on May 23, 1901, in favor of the plaintiff against all of the defendants. It does not appear under what title or in What right Blount recovered in this suit. The appellants have acquired the title obtained by Blount through this judgment.

Appellant’s first assignment of error complains of the judgment on the ground that the court erred in the conclusion of law that, upon the facts found by the court, the substance of which we have before set out, appellee acquired title to the land under the contract between Sam Allen and A. G. Lindell and the deeds from said Lindell to Fields and from Fields to appellee. Under this agreement it is contended that the judgment in favor of E. A. Blount against Sam Allen, the Sam Allen Lumber Company, and A. G. Lindell was conclusive of any right or title which the appellee may have had in said land. This contention cannot be sustained. Neither appellee nor his vendor, Fields, who was in possession of the land at the time the suit was brought, was a party to said suit. Lindell had transferred his rights under his contract with Sam Allen to Fields, and the latter had taken possession of the land before the suit was instituted. Before the judgment was rendered the contract with Allen under which appellee held had been fully performed by appellee and his vendors, and he had acquired the title to the 50 acres as against Allen, and the judgment against Allen and Lindell could not divest him of the title so acquired.

As we have before stated, it is not apparent from the record when or from whom E. A. Blount acquired the title upon which he recovered in said suit, but from the finding of the court which is not challenged, that Sam Allen had title at the time he made the contract with Lindell, it is to be inferred that Blount recovered upon a title acquired under Sam Allen subsequent to the date of the contract with Lindell. If this is so, it is clear that the appellee, who succeeded to the rights of Lindell, if he had been made a party to the suit, could have enforced his rights under said contract against the subsequent purchaser, Blount, who was by the possession of appellee and his vendors charged with notice of their rights under the contract. This being so, it is, we think, clear that appellee’s rights under the contract were not divested out of him by a judgment in a suit to which he was not a party.

It is unnecessary to cite authorities on the proposition that the possession of land gives constructive notice of the title or claim of the person in possession. Appellant insists, however, that because the possession of appellee and his vendors, who were tenants of Allen during the five-year period of the contract, was Allen’s possession, andi not adverse as to any part of the land, it was not notice of any claim they had to the land other than as tenants of Allen. In support of* this contention appellants cite the ease of Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585; Reichstetter v. Reese, 39 S. W. 597; Bruce v. Richardson, 26 Tex. Civ. App. 615, 64 S. W. 785. The contention finds no support in the cases cited. The case first cited only holds that when a person in possession of land attorns to another his possession ceases to be adverse possession under the statute of limitation, not only against the person to whom he attorns, but against the true owner of the land. The other two cases hold that one who with knowledge of the facts purchased from a tenant who has not repudiated his tenancy and given notice to the landlord of such repudiation enters as a tenant of the landlord, and his possession is not adverse until he repudiates his tenancy.

There is nothing in these decisions which can be considered as a holding that the possession of a tenant under a contract of purchase is not.notice of the tenant’s rights under his contract, and we can see no sound reason for such holding. We think the trial court correctly held that appellee, upon the facts which we have before stated, acquired title to the 50 acres of land, under "the contract between Sam Allen and Lindell, and that his title was not divested by the judgment in the suit brought by Blount against Sam Allen and others and to which appellee was not a party. This conclusion requires the affirmance of the judgment, and renders a discussion of the remaining assignments of error unnecessary. We will add, however, that the evidence is sufficient to sustain the finding that appellee, after the expiration of the five-year period, during which the land was held by him and his vendors as tenants of Allen, had and held exclusive adverse possession of the 50 acres acquired under the contract, cultivating, using, and enjoying the same continuously for more than three years, and was therefore entitled to a judgment in his favor on his plea of limitation of three years.

There is no evidence to sustain a finding that the 50 acres was ever the homestead of A. G. Lindell, and therefore there is no merit in appellant’s contention that, because the deed from Lindell to Fields was not joined in by Mrs. Lindell, appellee did not show title or color of title, and could not for that reason prescribe under the three-year statute-of limitation.

It follows from the conclusions above expressed that the judgment of the court below should be affirmed, and it has been so-ordered.

Affirmed.


text:
    RALEY v. BITTER, Tax Collector.
    (No. 5338.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Taxation (§ 500) — Suits foe Taxes— Pasties Entitled to Maintain.
    Suits for taxes are brought in the name of the state; hence a property owner cannot sue a tax collector to compel him to cancel invalid tax assessments which constitute a cloud on her title because he would not institute an action thereon; it not appearing that he had authority to do so.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 925-930; Dec. Dig. § 500.]
    2. Taxation (§ 500) — Collection — Power oe Collector.
    The tax collector is not empowered to make out the rolls, his sole duty being to collect the taxes; hence suit cannot be maintained against him to cancel an invalid tax assessment.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 925-930; Dec. Dig. § 500.]
    3. Taxation (§ 608) — 'Wrongful Enforcement-Injunction.
    Where the tax collector refused to sue to enforce void tax liens, the property owner is not entitled to an injunction to prevent suit.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1230-1241; Dec. Dig. § 608.]
    4. Taxation (§ 552%) — 1Collection—Power of Collector.
    Only the commissioners’ court can release property from void tax liens, and the tax collector is without power to do so.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1067; Dec. Dig. § 552%.]
    5. Taxation T§ 500) — Lien—Setting Aside —Petition—Exhibits.
    In a suit against a tax collector to cancel alleged void tax liens, a statement of the taxes, showing the years for which they were due and the lots incumbered, which accompanied the petition, constitutes a part thereof, and the petition is not bad because not stating with particularity the property incumbered.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 925-930; Dec. Dig. § 500.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Jennie Raley against John A. Bitter, Tax Collector. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    James Raley, of San Antonio, for appellant. Dan Lewis and W. S. Anthony, both of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

Appellant, Jennie Raley, brought suit against John A. Bitter, tax collector of Bexar county, appellee, and, as grounds of said suit alleged, substantially: That she is the owner of certain lots of real estate in the city of San Antonio, and that there are back taxes that appear to be due thereon and a lien on the property for various years from 1886 down to 1901, on others from 1886 down to 1905, and on still others from 1898 down to 1910. But it is alleged that all of the taxes are illegal and void on account of improper assessments, and still constitute a cloud on the title. It is also alleged:

“That the officers of state and county charged with the assessment and collection of taxes for the year 1894 have fraudulently charged to the above property $56.62 and $63 interest, when $4 or $5 was the very largest amount that could be saddled upon it.”
“Plaintiff says she has importuned the county officers to bring suit to collect these taxes and they have refused to do so.”
“Plaintiff asks for a decree clearing the title of the above property from the cloud now resting upon it and for an injunction restraining the collection of such taxes, but if the court should find that any part of said taxes are a legal charge on the property, she expresses a willingness to pay it.”

The trial court sustained exceptions to the petition on the following points: (1) Because the tax collector of Bexar county has no power to relieve the property of any such lien for state and county taxes; (2) because the petition is vague and indefinite, in that it does not appear therefrom what property is incumbered with taxes for particular years; (3) because the petition charges county officers with fraud in the assessment of interest and penalties, and does not specify what officers did this; (4) because plaintiff has an adequate remedy at law under articles 7702, 7703, and 7704 of the Revised Statutes of 1911; and (5) because no right to equitable relief appears in the bill.

The plaintiff declined to amend, and her suit was dismissed, and from the order of dismissal this appeal is prosecuted.

Counsel for appellant, in his brief argument, says: “When the best lawyers are trying to raise the standard of legal learning, it is not wise to offer a premium on ignorance” — and again: “Poor Richard says, ‘Necessity knows no law,’ and I know some attorneys in the same condition”; and this court is somewhat inclined to agree with those statements. At the same time, we are unable to determine upon what theory appellant predicates her right to the relief prayed for in this case. It is alleged that the officers (which must be taken to include appellee) have refused to bring a suit to enforce collection of the taxes, although they have been importuned to do so. And it is not charged that the tax collector has the right or power in law to do that which this suit seeks to compel him to do. Appellant must know that suits for taxes are brought in the name of the state of Texas. The collector could not even make a correction or adjustment of the taxes, for that right rests with the commissioners’ court. The assessor makes up the rolls, and the sole duty of the collector ,is to collect the taxes and pay them over where they properly belong.

The proposition of appellant that “injunction is the proper remedy to prevent the collection of taxes under a void assessment” has absolutely nothing to do with this case, because the petition itself shows that , Bitter has refused to make any attempt to collect the taxes. This court knows of no 'law that gives the tax collector arty right to release property from tax liens, whether they be “void liens” or otherwise; and we had always thought that the commissioners’ court was the proper body to exercise that function, if exercised at all.

The court did not err in sustaining the exceptions mentioned, unless in sustaining the one referred to in No. 2 above. The statement of the taxes showing the years for which same were due and the lots incumbered thereby was attached to the petition and made a part of it. This becomes immaterial, in the disposition we make of the case, and the judgment is affirmed.


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. RYAN.
    (No. 7202.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 31, 1914.)
    1. Justices oe the Peace (§ 174) — Review-Amendment — “New Cause oe Action.”
    On appeal from judgment of the justice of the peace in an action upon an expressed contract for employment at an agreed compensation of $75 per month, an amendment alleging an employment without any agreement for compensation, and that the reasonable value of the services was $75 per month, sets by a new cause of action, within the meaning of the prohibition of Rev. St. 1911, art. 759, since both pleadings cannot be supported by the same evidence, and are not subject to the same defenses.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174

    For other definitions,' see Words and Phrases, First and Second Series, New Cause of Action.]
    2. Justices oe the Peace (§ 174*) — Apeeaj>-Pieadings — Amendment.
    The fact that an amendment of pleadings, on appeal from justices of the peace, which changed the action from one on an expressed contract to one on an implied contract, thereby setting by a new cause of action, did not surprise the defendant or deprive him of any defense does not authorize the Court of Appeals to disregard the statutory rule against such amendment.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    Appeal from Hunt County Court; Geo. B. Hall, Judge.
    Action by H. Ryan against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff in the county court, on appeal from a justice of the peace, the defendant appeals.
    Reversed and remanded.
    C. C. Huff, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore and Paul G, Thompson, all of Greenville, for appellant. Evans & Carpenter and Neyland & Neyland, all of Greenville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   RASBURY, J.

The only issue tendered by appellant in its brief by this appeal is: Did appellee in the county court set up and recover judgment upon a cause of action different from that asserted in the justice court, where the suit originated? In the justice court appellee filed a written pleading stating his cause of action, by which he in effect charged that appellant employed him as trainl auditor for the period of two months, agreeing to pay him for such services $75 per month, from which service he was wrongfully discharged by appellant after 14 days of service, to appellee’s damage $155, while, by amended statement filed after appeal to the county court, he in effect charged that appellant employed him as train auditor for a period of two months, without any agreement as to the amount to be paid for such services, but that the reasonable value thereof was $75, and that, after a service of 12 days in that behalf, he was wrongfully discharged by appellant, to his damage in the sum of $120. The case was tried upon the amendment, and it is presumed that the judgment is based upon evidence sustaining the allegations of such amendment. Did the amendment allege a new and different cause of action,' as contemplated by article 759, R. S. 1911? We believe an analysis thereof will, in the light of the decided cases, show that it did.

The statement of the cause of action in the justice court alleged employment at $75 per month for a period of two months, and' a wrongful' discharge and consequent damages on a basis of the agreed remuneration. Such pleading clearly alleged an express contract, of employment. The amendment filed in the county court alleged employment for two months," without any agreement as to compensation, and a wrongful discharge and consequent damages based upon the reasonable value of appellee’s services, alleged to be $75 per month. Clearly the last amendment alleged an implied contract. It is said in such cases that the causes must not only be similar, “but essentially identical”; the general rule or test being .mainly: Will “the same evidence support both of the pleadings,” and “are the allegations of each subject to the same defenses?” Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707. A case nearly in point is Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613. In that case Abbey alleged that Shiner, with his permission, inclosed certain lands of Abbey’s, promising to pay the reasonable value of such use, alleged to be six cents per' acre per annum, which he refused to do, and for which Abbey sued. Our Supreme Court in that case held,, upon demurrers urging that neither an implied nor express contract was shown, that such allegations constituted in law an implied contract, and overruled the demurrers. The application to the instant case is obvious. The general rule is recognized and applied in Booth v. Houston Packing Co., 105 S. W. 46, and in Griffin v. Allison, 138 S. W. 1068. In the latter case it is said, “The measure of damages is different,” which has peculiar ‘ application here, since by the pleading in the justice court, if the contract was as there alleged, the measure of the damages would be $75 per month, as fixed by the contract, while by the terms of the amendment the defense of the reasonableness of the amount sought to be recovered could have been put in issue by appellant, and, that being true, it is readily seen that both pleadings cannot be supported by the same evidence, nor subject to the same defenses.

It is earnestly urged by appellee that, by changing the suit from one upon an express to one upon an implied contract, appellant was neither surprised nor deprived of any defense. The argument may be meritorious, but the rule invoked is one of long standing and was enacted as a rule of action for litigants, and it is not our right or •duty to disregard it any more than other similar rules, since our system of laws is largely rules, upon a proper observance of which much obviously depends.

For the reasons indicated, it becomes necessary for us to reverse the judgment and remand the cause for another trial not inconsistent with the views here stated


author: HALL, J.

text:
    QUANAH, A. & P. RY. CO. v. CAMPBELL.
    (No. 647.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1914.
    Rehearing Denied Nov. 14, 1914.)
    •CARRIERS (§ 94) — CONVERSION—Measure of Damages.
    The measure of damages for the conver•sion of a car of coal is the reasonable market value of the coal per ton at the place where it was taken.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    Appeal from Cottle County Court; W. E. Prescott, Judge.
    Action by R. M. Campbell against the Quanah, Acme & Pacific Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Decker & Clarke, of Quanah, for appellant. Browne & Hawkins, of Paducah, for ap-pellee.

      For other cases see same topic and section NUMBER in' Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

This is an appeal from the county court of Cottle county. Appellee sued appellant for conversion of one car of coal. Upon a trial before the court there was a judgment for appellee for the difference between the retail price or market value of the coal at Paducah and what it would have cost plaintiff delivered there.

There are several assignments of error which it will not be necessary to consider in detail. The principal contention is that the court applied an improper measure of damages. It is held in G., C. & S. F. Ry. v. Cleburne Ice & Cold Storage Co., 79 S. W. 836, that the measure of damages for conversion of a car of coal, by the carrier, is. the reasonable market value of the coal per ton at the place where it was taken, and this seems to be the correct rule, as announced by other authorities. Horres v. Berkeley Chemical Co., 52 L. R. A. 51, 52, note.

There are no reversible errors in the record, and the judgment is affirmed.