author: MeMEANS, J.

text:
    JONES v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Galveston.
    April 25, 1913.
    Rehearing Denied May 15, 1913.)
    1. Tbial (§ 194) — -Instruction—Weight of Evidence.
    In an action against a carrier for wrongful expulsion, where the defense was that the carrier’s officers really believed with reasonable grounds that plaintiff was not the purchaser of the ticket which he presented for carriage, and the court generally charged the jury that, if plaintiff failed or refused to identify himself as the original purchaser in a manner to satisfy an ordinarily prudent person, then verdict should be for defendant, a special charge, given on request of the defendant, that, if there was a sufficient difference between the signature upon' the ticket offered and the signature made by plaintiff at the request of the train auditor to make plaintiff’s identification unsatisfactory, then the burden rested upon plaintiff to establish his identity by such proof as would satisfy the mind of a reasonable, prudent man, and unless this was done plaintiff was not entitled to passage, was not improper as upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194; Carriers, Cent. Dig. § 1337.]
    2. Trial (§ 229) — Instructions — Repetition.
    In an action against a carrier for wrongful expulsion, where the court charged abstractly upon defendant’s theory of defense, the giving of a special charge presenting the rule of law in connection with the concrete facts was not improper as undue repetition.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.]
    3. Carriers (§ 356) — Carriage of Passengers — Identification.
    A purchaser of a reduced rate ticket providing for identification of the holder as the original purchaser, to be established by signature or otherwise to the satisfaction of any agent or conductor whenever requested, and that the ticket should be void if presented by any person other than the original purchaser, has the burden of identifying himself to the railroad company’s train auditor as the original purchaser in such a manner as ought to satisfy an ordinarily prudent person in the situation of the auditor, and if he fails or refuses he cannot recover damages for ejection.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.]
    4. Cabrieks (§ 384) — Misleading Instructions.
    In an action by the purchaser of a reduced rate ticket for wrongful expulsion, a special charge, given at the request of defendant, that if there was sufficient difference between the signature upon the ticket offered and the signature by plaintiff, made at the request of the train auditor, to make identification unsatisfactory, then plaintiff was bound to establish his identity by proof to the auditor of such a character as to satisfy the mind of a reasonable, conscientious and prudent person, or he was not entitled to passage, was not so misleading to the jury as to render probable the rendition of an improper verdict or to induce them to consider alone the circumstances relevant to identification.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dee. Dig. § 384.]
    Error to District Court, Harris County; Chas. E. Ashe, Judge.
    Action by John L. Jones against the Missouri, Kansas, & Texas Railway Company of Texas. There was a judgment for defendant, and plaintiff brings error.
    Affirmed.
    John Lovejoy and Presley K. Ewing, both of Houston, for plaintiff in error. Baker, Botts, Parker & Garwood and John C. Townes, Jr., all of Houston, for defendant in error.

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

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

   MeMEANS, J.

This is an action by plaintiff in error, John L. Jones, to recover damages from the defendant in error, Missouri, Kansas & Texas Railway Company of Texas, for his alleged wrongful expulsion as a passenger from one of defendant’s passenger trains. Plaintiff alleged that on January 29, 1911, he purchased at St. Louis at reduced tourist rates, from defendant’s connecting line, it being duly authorized by defendant, three whole tickets and one-half ticket for his family, including himself, to San Antonio and return, the going trip to be begun on that day, and the return trip completed before midnight of June 1, 1911, with stopover privilege at Houston, and the right to have the ticket validated at Houston for return without continuing the journey to San Antonio; and that each ticket provided for identification of the holder as the original purchaser to be established by signature and otherwise, to the satisfaction of any agent or conductor whenever requested, and that if the ticket should be presented by any person other than the original purchaser it would be void and might be confiscated. Plaintiff further alleged that he made the trip to Houston, and that, desiring to return to St. Louis, he had his ticket duly validated for return to Houston and started on his return journey on March 5, 1911, and that defendant’s auditor on the passenger train on which he took passage required plaintiff to sign his name a number of times on slips of paper for identification, denounced ’him as a forger and subject to the penitentiary, and after confiscating his ticket forcibly ejected him from the train at Sealy, at the same time insulting and abusing him. Plaintiff alleged further efforts on his part to identify himself as the original purchaser of the ticket by exhibiting to the auditor his business card, with assurances of where he lived and of his business there, and charged that such reasonable identification of himself was established in the manner required as would have been satisfactory to any ordinarily prudent man in the situation of the auditor. He prayed for damages in the sum of $15,000. The defendant answered by general denial. A trial before a jury resulted in a verdict and judgment for defendant. Plaintiff has appealed.

The allegations of the petition as to the purchase by plaintiff of the ticket at St. Louis, its due validation at Houston, its presentation to the train auditor upon the beginning of the return trip, and its confiscation, were sustained by the evidence. As to the conduct of the auditor towards plaintiff, whether insulting, abusive, or otherwise, and whether plaintiff was forcibly ejected from the train, or left it quietly upon the auditor’s request, were matters about which there was sharp conflict in the evidence, and this conflict was, by the verdict of the jury, resolved in defendant’s favor.

When the train auditor in taking up the tickets reached the sleeping car where plaintiff was, the ticket was presented to him by plaintiff, and in a short while thereafter the auditor requested plaintiff to sign his name on a slip of paper, and afterwards again requested him to sign his name on another slip, and plaintiff testified that he wrote his name several times at the auditor’s instance, and continued to write his name as often as the auditor requested. It was shown that the auditor claimed he was not satisfied by this that plaintiff was the original purchaser of the ticket, claiming that the signature written by plaintiff on the slips of paper did not correspond with that written on the ticket, and that he asked plaintiff to identify himself by showing his business card or by a letter addressed to him. Plaintiff testified that he thereupon produced his business card, and also showed him a name of a St. Louis house from which he purchased' his overcoat stamped on the inside of the coat. The auditor denied this, and testified that plaintiff only wrote his name twice, each time at his (the auditor’s) request, and did nothing further to identify himself as the purchaser of the ticket, although requested to do so. The ticket contained this provision: “Identification of holder as original purchaser must be established by signature and otherwise to the satisfaction of any agent or conductor whenever requested.” There was a further provision that, if the ticket should be presented by any person other than the original purchaser, it would be void and might be confiscated.

Under substantially this evidence the court charged the jury as follows: “If, from the evidence, you believe that plaintiff was the original purchaser of the ticket in question, and that he identified himself to defendant’s agent in that behalf as the original purchaser by signature and otherwise in such manner as ought reasonably to have satisfied an ordinarily prudent person in the situation of such agent, and that notwithstanding he was by the defendant’s agent in that behalf expelled from the train at Sealy, that is, compelled to leave the train at that point, then plaintiff is entitled to recover, and, if you so find, return your verdict in his favor. The burden is upon plaintiff to prove the facts necessary for his recovery, as submitted to you by the court, and, unless such facts are shown to you by a preponderance of the evidence, return your verdict for the defendant. If from the evidence you find that the plaintiff, on request of defendant’s agent engaged in taking up the tickets on the train, failed or refused to identify himself as the original purchaser, in such manner as ought reasonably to have satisfied an ordinarily prudent person in the situation of the agent of his identity as the original purchaser, then return your verdict for the defendant. If you believe from the evidence that plaintiff, after signing at the request of defendant’s agent in that behalf, refused to further sign, and you believe that, by the acts and conduct of such agent towards plaintiff as alleged, plaintiff was reasonably induced to believe that any further signature or effort at identification on his part would be vain and useless, then plaintiff’s refusal to further sign would not prevent his recovery, if otherwise entitled to recover under the instructions herein,”

Appellant’s first and only assignment of error is based upon the action of the court in giving the following special charge at the instance of defendant: “If you should find from the evidence that there was a sufficient difference in the signature upon the ticket offered for transportation by plaintiff and the signature made by said plaintiff at the request of the auditor, Wilson, to make the plaintiff’s identification unsatisfactory to a person of ordinary prudence and conscience, then you are instructed that, under the form of ticket which plaintiff presented to said auditor on defendant’s train, the burden rested upon the plaintiff, Jones, to establish his identity by proof to the said auditor of such character as would have satisfied the mind of a reasonable, conscientious, and prudent man; and unless plaintiff discharged this burden, if you find it rested upon him' as above set out, he would not be entitled to passage on the train of the defendant railway company.”

Under this assignment appellant contends: First, that the special charge was on the weight of the evidence, in singling out the circumstance of difference in the signatures and instructing as to its legal effect, instead of leaving it to be considered in connection with all the other facts on the issue of proper identification; second, that in view of the specific provisions of the general charge, on the issue of identification, the special charge was undue repetition, reasonably calculated to operate to plaintiff’s prejudice; third, that the special charge was erroneous as placing too great a burden on plaintiff, requiring him to establish his identity by proof of such character as would have satisfied the mind of a reasonable, conscientious, and prudent man; and, fourth, that said charge was misleading in that it was calculated to induce the jury to believe that the plaintiff, without regard to the meager means of proof at command on the train, had on him there and then the judicial burden as defined in the main charge, or some equally exacting burden, to establish his identity, and in that it was calculated to induce the jury to consider separately alone, instead of together in their entirety, the circumstances relevant to the identification.

We are of the opinion that the special charge is not subject to any of the criticism made against it. It was the contention of the railroad company that the plaintiff made no effort to identify himself as the original purchaser of the ticket further than to write his name upon the slips of paper, and that because of dissimilarity of the signature written upon the slips and upon the ticket the auditor was not satisfied with the identification, whereupon, under the provisions of the ticket above quoted, it was incumbent upon plaintiff to otherwise establish his identity, failing in which the defendant was entitled to confiscate the ticket and eject the person presenting it upon his failure to pay his fare. The court charged the jury that: “If from the evidence you find that the plaintiff, on request of defendant’s agent engaged in taking up the tickets on the train, failed or refused to identify himself as the original purchaser, in such manner as ought reasonably to have satisfied an ordinarily prudent person, in the situation of the agent, of his identity as the original purchaser, then return your verdict for defendant.” This charge stated in broad and general terms the defendant’s defense, and the special charge submitted it in connection with the very facts upon which defendant relied to defeat recovery. We understand from the authorities that this is permissible, and that in so submitting defendant’s defense the charge is not open to the objection that it is upon the weight of the testimony or of undue repetition. Anderson v. Jefferson Cotton Oil & Refining Co., 32 Tex. Civ. App. 288, 74 S. W. 342; Railway v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway v. Shieder, 88 Tex. 167, 30 S. W. 902, 28 L. R. A. 538.

The court’s charge defining the burden resting upon plaintiff to identify himself as the original purchaser to be such as ought reasonably to have satisfied an ordinarily prudent person in the situation of the auditor is, we think, correct. We are of the opinion, however, that the special charge requiring plaintiff to establish his identity by such proof as would have satisfied the mind of a reasonable, conscientious, and prudent person, was not so misleading as to cause the jury, which we assume was composed of men of ordinary judgment and common sense, to render an improper verdict. The special charge seems to follow what is declared in Railway v. Hudson, 117 Ky. 995, 80 S. W. 454, approved in Railway v. Cassell, 122 Ky. 317, 92 S. W. 281, to be the burden under which the passenger rested. Nor do we think the special charge was calculated to induce the jury to consider separately alone, instead of together in their entirety, the circumstances relevant to identification.

We think the assignment does not present reversible error, and the judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    MARSHALL & E. T. RY. CO. v. BOAZ.
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1913.
    Rehearing Denied May 15, 1913.)
    1. Railboads (§ 443) — Killing- Animals — Evidence-Sufficiency.
    Evidence held not to support a finding that a train struck and killed an animal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1543; Dec. Dig. § 443.]
    2. Railboads (§ 441) — Killing Stock — Bubden of Peoof.
    Ono suing a railroad company for the loss of an animal killed by a train must, to discharge the burden of proof, show that a train struck and killed the animal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig..§ 441.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by E. P. Boaz against the Marshal] & East Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for another trial.
    R. A. Sexton, of Marshall, for appellant. J. H. T. Bibb, of Marshall, for appellee.

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

   LEVY, J.

Claiming that his horse was struck and killed by the appellant’s locomotive, at a place where the railway company was not excused from fencing its track, the appellee brought the suit for damages. The appellant by proper assignment makes the contention that a finding that the horse was struck and killed by its train is not warranted by the evidence, and that as a consequence the judgment in favor of appellee is erroneous. After a careful consideration of all the evidence, we are constrained to conclude that the positive and affirmative evidence offered. for the appellant so sufficiently and strongly shows that a locomotive did not strike the horse as to require such finding of fact, and that the circumstances offered by appellee did not sufficiently negative the fact as to warrant a verdict in his favor.

The facts show that appellee was the owner of a horse about three years old, and he had placed it in the pasture of Mr. Hughes. The railway runs southwest through the pasture. Mr. Hughes, on Sunday morning of the 18th of June, 1911, missed seeing the horse as usual, and went into the pasture to look for it, and found it lying dead in a thicket on the north side of, and 30 steps away from, the track. He found the horse’s left forefoot with two gashes nearly to the bone, and there was blood in the horse’s nose and blood on the ground under his nose, and as well there was some blood on the weeds about there, and horse tracks where the blood was. The appellee was notified, and he and several others came at once to see the horse. They testify that they examined around the ground and found, at 140 steps east from where the horse was lying, and at the bottom of the railway dump, by a drain box, weeds were broken down, and it looked as if cattle had rolled down there, and as if there had been scuffling close to the rails, and at about seven steps from the railway track there was a puddle of blood. There was no blood on the railway track, and neither the skin nor hair was knocked off on any part of the body of the horse except the forefoot. A pine sapling was at the horse’s feet where he was lying, and the bark was knocked off the sapling. On Monday the owner went back there and cut open the horse’s neck, and the flesh was found to be black looking and bruised. It was further shown for appellee that the horse was seen by Mr. Hughes in the pasture on Friday before Sunday morning, and at- that time he was “as gay as ever.” The owner of the pasture further testified that on Saturday morning, as he was leaving for Harleton, he heard a train of appellant in the pasture blowing the whistle in little jerks for about one-half of a minute, making in all between 15 and 20 blasts. It was proved that a regular schedule train each of passengers and freight passed there at about 8:30 and 9 o’clock that Saturday morning. The engineer of the freight train testified for appellant that he passed the pasture at the time stated, just behind the passenger train, and that he did not strike nor see the horse. T. D. Rudder testified that on Saturday morning he was plowing, and was within 20 or 30 steps of the railway track, when the two morning trains passed, and that between 12 and 1 o’clock he saw the horse of appellee grazing in the pasture, and that it was about 50 yards from him, and that he saw the horse the next morning dead about 100 yards from where he saw him grazing on Saturday. Fred Rudder testified that appellee had permitted him to ride the horse some, and that on returning from a baseball game between 5 and 6 o’clock Saturday afternoon he went down the railway track through the pasture, and saw the horse, “and went up to it and put my hand on it.” This witness says he wanted to see the horse at the time because he “wanted to ride him Sunday, and I intended to ask Mr. Boaz about it when I got to town.” About 7 o’clock Sunday morning the same witness saw the horse again, and it was dead. This witness further testifies that at the time he saw the horse Saturday afternoon the afternoon train going back toward Marshall had passed, and that the morning trains had not passed at the time he saw the horse dead, and that “No train passed along there from the time I saw it (the horse) on Saturday ' evening, until I found it dead Sunday morning.” This witness was in a position, according to the record, to have actual knowledge and information of the movements of the trains on the railway at that time.

If, as said by appellant’s witness, the horse was alive and in the pasture grazing between 12 and 1 o’clock, after the only two morning trains had passed, then it could not be said that either of the Saturday morning trains struck and killed the horse; and there is nothing in the record to suggest any reason why the testimony of the witness should not be taken as true and given weight and force. And if, as said by the other witness, he saw and put his hand on the horse, and the horse was alive and not injured, between 5 and 6 o’clock Saturday afternoon, after the afternoon train had returned, then it could not be said that the Saturday afternoon train had struck and killed the horse. And, moreover, if this witness had seen the horse dead Sunday morning before the morning trains of that day had yet come, it could not be said that either of the Sunday morning trains struck and killed the horse. And, further, if, as said by this witness, “No train passed along there from the time I saw it (the horse) on Saturday evening, until I saw it dead Sunday morning,” and if this witness was in a position to be truly informed and have actual knowledge of the movements of the trains at that time, as it appears from the record he was, then it could not reasonably be said that it appears that the horse was struck by a train of appellant at any time between Saturday evening and Sunday morning, when he was found dead. There is nothing in the record to suggest any bias or mistake on the part of this witness, but the contrary fairly appears. Thus the evidence for appellee that the morning train was heard to blow 15 or 20 stock signals in the pasture, as a circumstance to show that the train had struck the horse, would be sufficiently overcome by the fact that between 12 and 1 o’clock and again between 5 and 6 o’clock and after the passing of the trains, the horse was seen in the pasture uninjured. And all the facts concerning the tracings on the ground below and away from the track, offered as circumstances to show that a train inflicted the injuries on the horse, would not sufficiently show that the train inflicted the injuries in the face of the affirmative fact that the horse was uninjured by either the morning trains or the evening train, and that no other train passed between Saturday evening and the time when the horse was found dead.

It was incumbent upon the appellee, in order to discharge the burden of proof required of him, to show that the train struck and killed the horse. Ry. Co. v. Langford, 104 S. W. 920; Ry. Co. v. Earle, 14 S. W. 1068.

The cases cited by appellee of Ry. Co. v. Wilson, 84 S. W. 275, and Ry. Co. v. Evans, 78 Tex. 370, 14 S. W. 798, are not applicable here. For in the Wilson Case the court expressly finds the fact that “the evidence showed that the steer was struck by the engine,” and afterwards moped about in a drawn condition; and in the Evans Case there was no affirmative testimony for appellant as in the instant case.

The judgment is reversed, and the cause is remanded for another trial.


author: KEY, C. J.

text:
    HUGHES v. MULANAX.
    (Court of Civil Appeals of Texas. Austin.
    April 9, 1913.
    Rehearing Denied May 7, 1913.)
    1. Executors and Administrators (§ 327)— Sale qe Land — Eeeect oe Testamentary Provisions.
    In view of Rev. St. 1895, art. 2007, providing that particular directions in a will respecting the sale of any property belonging to the estate shall be followed unless annulled by an order of court, a testator can, under article 1991, providing that where a will has been probated its provisions shall be executed unless they are annulled by order of the court probating the same, so frame his will as to deny to the executor and probate court the power to sell property to pay debts or for any other purpose until the provision of the will creating such limitation has been annulled or suspended.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1344; Dec. Dig. § 327.]
    2. Executors and Administrators (§ 327) —Sale oe Land — Effect of Testamenta-ba Provisions.
    In the beginning of a will, the testator directed his executor to pay all his just debts, while the sixth and seventh paragraphs directed the executor to take charge of the real estate, but pi'ohibited him from selling or incumbering the same, and directed Mm to lend all money coming into his hands until he had a fund of a certain amount, which was to be invested in realty. Held, that, as these provisions created an ambiguity, the will must be construed as authorizing the executor and probate court to sell land to pay debts, for, where a testator’s intention is ambiguous, the will should be construed if possible so as to dispose of his property in a reasonable manner.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1344; Dec. Dig. § 327.]
    Appeal from District Court, Coleman County ; J. W. Goodwin, Judge.
    On motion for rehearing. Decided in conformity to the answers to question certified to the Supreme Court, which can be found in 153 S. W. 299.
    J. P. Ledbetter, of Coleman, for appellant. ■Snodgrass & Dibrell, of Coleman, for appel-lee.

      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

   KEY, C. J.

At the last term of this court this case was reversed, because it was the opinion of this court that the will set out in our former opinion prohibited both the executor and the probate court from making a sale of the land in controversy for the purpose of paying debts, or for any other purpose, until that provision of the will had been annulled or suspended by an order of the probate court. No such order was shown, and therefore we held that the case came within the purview of article 1991 of the Revised Statutes, wMch declares that when a will has been probated its provisions and directions shall be executed, unless the same are annulled or suspended by an order of the court probating the same.

Appellee Mulanax filed a motion for rehearing, and also a motion requesting this court to certify to the Supreme Court the question of the validity of the sale under which he claims title to the property. The latter motion was granted and this court certified to the Supreme Court two questions, which were: First, was the will sufficient under article 1995 to remove the estate beyond the jurisdiction of the probate court, and thereby to deprive that court of power to cause the land to be sold for the payment of debts? And, second, did the provision in article 1991 alone, or in connection with others, give to the sixtji clause of the will and the probate thereof the effect to deprive both the executor and the probate court of the power to make or cause to be made a sale of the land to pay debts until that provision of the will had been annulled or suspended by the probate court? The Supreme Court has returned to this court a copy of its opinion, in which it is held, in response to the first question, that the will did not remove the estate beyond the jurisdiction of the probate court; and, as to the second question, that court said: “In view of our conclusions, as above stated, and as the sale and conveyance of the land in controversy by the executor finds its ultimate support in the jurisdiction and orders of the probate court rather than in the independent power and authority of the executor, under the will, to sell and convey said land, we consider the second certified question immaterial. We accordingly answer the first certified question negatively, and make no answer to the second.” Hughes v. Mulanax (Sup.) 153 S. W. 299.

With due respect to that court, we are unable to concur in the view that the answer made to the first renders the second question immaterial. This court, in effect held, as shown by its opinion, a copy of which accompanied the certificate, that even if the will did not take the estate out of the jurisdiction of the probate court, the clause thereof which prohibited the sale of real estate deprived that court of the power to require such sale to be made, until an order was made annulling or suspending that clause of the will. That was and still is the controlling question in the case, and the holding that the will did not deprive the probate court of jurisdiction over the estate does not render that question immaterial.

We are still of opinion that a testator can so frame his will as to deny to the executor and the probate court power to sell specific property belonging to the estate for the purpose of paying debts, or for any other purpose, until the provision of the will creating such limitation has been annulled or suspended in the manner prescribed by the statute. And this is true, although the will may not withdraw the estate from the jurisdiction of the probate court; and we are confirmed in that construction of article 1991 by that portion of article 2007 which reads: “And when any particular directions are given by a testator in his will respecting the sale of any property belonging to his estate, the same shall be followed, unless such directions have been annulled or suspended by order of the court as hereinbefore provided.” A direction in a will that certain property shall not be sold constitutes a direction respecting the sale of the property, and therefore is within the plain and ordinary meaning of the statute quoted. But, if mistaken in this construction of article 2007, we are still of opinion that the broad and comprehensive language of article 1991 should be held to include directions in a will prohibiting the sale of designated property. The foundation, of that article was section 155 of the probate law of 1870 (Laws 1870, c. 81; Article 5623, Paschal’s Dig.), which provided, that directions in a will for the management of an estate, or for the sale of property, must be confirmed by an order of the court before the executor or administrator was authorized, as against creditors, to pursue the same, where such directions differed from the mode of administration prescribed by that act. Succeeding sections prescribed the course to be pursued in order to confirm such directions in a will. In 1879, the commissioners who codified our statutes, having authority to do so, made material changes in'reference to the execution of the provisions and directions contained in a will, by incorporating into that revision article 1938, which is exactly the same as article 1991 in the Revised Statutes of 1895, and article 3358 in the revision of 1911. As thus revised and changed, our statute is broad enough to include provisions of a will prohibiting the sale of specific property for the purpose of paying debts, or for any other purpose; and we are satisfied that it was intended to cover any and all provisions and directions contained in a will. Of course, it was not the intention to permit a testator to absolutely withdraw his property from the reach of creditors; and, in order to prevent that result, article 1991, and succeeding articles, point out the mode by which a creditor can have such a provision in the will annulled or suspended until the debts of the estate have been paid. Article 2007 is a substitute for section 82 of the probate law of 1876; and, as that section and the one for which article 1991 is a substitute specifically mentioned creditors, we see no reason why they should be excluded from those two articles which by their terms include all persons “interested in the estate.”

However, upon further consideration, we have reached, the conclusion that it was not the intention of the testator in the will here involved to deny the right and power to sell the land in controversy for the purpose of paying debts of the estate. In the very beginning of the will and constituting the first direction as to the disposition of his property, the testator said: “I direct that my executor hereinafter named pay all my just debts and discharge promptly all my legal obligations.” The sixth paragraph directs the executor to take charge of the real estate, and contains a provision prohibiting him from selling or incumbering the same, except for the purpose therein stated. The seventh paragraph directs the executor to loan any and all moneys coming into his hands as such executor, until he has a fund amounting to $1,000, which he is then directed to invest in real estate.

. Thus it will be seen that, if literally construed, a conflict might arise between the first paragraph, which directed that all debts be promptly paid, and the sixth paragraph, which provided that the executor should not sell real property, and the seventh paragraph, which directed him to loan any and, all moneys received by him as executor. These conflicting provisions create an ambiguity, which we think should be solved by holding that it was the intention of the testator that all of his just debts should be paid, and that, if necessary to do so, his real estate might be sold for that purpose. One of the rules for the construction of a will is that, where the testator’s intention as expressed in his will is ambiguous or obscure, such a construction should be adopted, if possible, as will dispose of his property in a just, natural, or reasonable manner. 40 Cyc. 1411. That rule, we think, has application to the will under consideration, and justifies the conclusion at which we have arrived. It is also intimated, though not distinctly held, by the Supreme Court in its opinion in this case, that the construction we now place upon the will is correct.

Eor the reasons stated, appellee’s motion for rehearing is granted, the former judgment of this eourt is set aside, and the judgment of the trial court is affirmed.


author: CONNER; C. J.

text:
    TEXAS OVERALL CO. v. MUMMERT.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 10, 1913.)
    Principal and Agent (§ 183) — Actions by Agent.
    One who was a party to the contracts sued on could sue for their breach, though he was, when the contracts were executed, also an agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 691-700; Dec. Dig. § 183.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by Harry B. Mummert against the Texas Overall Company. Judgment for plaintiff. Defendant appeals;
    Affirmed.
    Bryan & Spoonts, of Ft. Worth, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellee.

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

   Conclusions.

CONNER; C. J.

It is insisted that the appellant company should have had an instructed verdict, on the ground that there was no testimony showing the right of appel-lee to maintain the suit in his own name. While appellee testified that he was engaged as a salesman for the “Wirter Press Company,” and the orders constituting the basis of this suit recite that appellee was “state agent,” nevertheless the orders as a whole are susceptible of a construction which sustains appellee’s allegation that he was the owner and entitled to sue. The orders do not necessarily bear the construction that they were addressed to the “Writer Press Company,” but, on the contrary, may reasonably be construed as addressed to “Harry B. Mummert,” state agent, to whom the express promise to “pay” was made. The term “state agent” may be disregarded as surplusage or treated as a mere descriptio personse, and we think that the construction of the orders indicated should now, at least, be adopted, in view of the fact that the question was not raised below.

The evidence, therefore, authorizing the conclusion that appellee was a party to the contracts sued upon, it follows that he could sue for its breach, notwithstanding the fact that he at the time, was an agent of the Writer Press Company. See Sydnor v. Hurd, 8 Tex. 99, 100; Frazier v. Moore, 11 Tex. 755-756; Tinsley v. Dowell, 87 Tex. 23, 26 S. W. 946; M. P. Ry. Co. v. Smith, 84 Tex. 348, 19 S. W. 509; So. Kansas Ry. Co. v. Morris, 100 Tex. 611, 102 S. W. 396, 123 Am. St. Rep. 834; O’Brien v. Mayer, 143 S. W. 240.

No other question requiring notice having been presented, it is ordered that all assignments of error be overruled, and the judgment affirmed.


author: RICE, J.

text:
    WALTER BOX CO. v. BLACKBURN et al.
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1913.
    On Motion for Rehearing, April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. LANDLORD AND TENANT (§ 129) — SPECULATIVE Damages — Breach oe Lease.
    In an action for damages for withholding possession of leased premises, plaintiff alleged, as a basis for its claim of damages for loss of profits while the building was withheld, that two years before it had rented a building and conducted a similar business therein, and that before making the present contract its president talked with many old customers who promised their patronage, and that the building was as well located as the building in which plaintiff had formerly done business, and that it would have realized a net profit of $700 during the time it was deprived of possession, and further alleged that after it got possession on July 6th it realized net profits in the sum of $1,500. Held-, that the net profits which plaintiff would have made from the use of the building were too uncertain and speculative to be recovered; there being nothing to show with certainty that any profits would have been made and no certain basis for estimating the profits.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 450-457; Dec. Dig. §

    2. Damages (§ 40) — Items oe Damage — Loss oe Proeits.
    Loss of profits from breach of a contract are recoverable where they can be shown with reasonable certainty.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.]
    3. Damages (§ 40) — Loss oe Proeits.
    To be recoverable as an item of damage for breach of contract, net profits must not be speculative or dependent on chance, but must be sufficiently certain to be susceptible of proof.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dee. Dig. § 40.]
    4. Landlord and Tenant (§ 129) — Breach oe Contract — Items Recoverable — Expenditures.
    In an action for damages for withholding possession of leased premises, plaintiff could recover the amount it. had paid its manager during the time it was kept from using the store, where it appeared that it employed him immediately after making the lease with defendants, and his services were reasonable and necessary, and defendants knew when the building was rented that the business would be conducted by employes.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 450-457; Dec. Dig. § 129.]
    5. Appeal and Error (§ 877) — Assignments oe Error.
    Appellant cannot assign error against a party defendant not made a party to the appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    6. Appeal and Error (§ 226) — Assignments oe Error — Briees.
    Alleged error in rendering judgment for costs will not be reviewed, where appellant’s brief does not show that the matter was called to the trial court’s attention by motion to retax costs or otherwise.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1324; Dec. Dig. § 226.]
    On Motion for Rehearing and Motion to Dismiss Appeal.
    7. Appeal and Error (§ 376) — Appeal Bond — Persons Payable — “Adverse Party.”
    Plaintiff sued defendants as executors for breach of a contract to rent a store, possession of which was wrongfully withheld, and defendants interpleaded a hardware company, alleging that it had wrongfully withheld the building from them after the expiration of their rental contract, so that they were unable to give possession to plaintiff according to their contract, and prayed, in case of judgment against them, for recovery over against the hardware company. The hardware company made a defense similar to that of the executors, and judgment went against the executors and in their favor against the hardware company for a similar amount. Rev. St. 1895, art. 1400, requires the appellant or plaintiff in error to execute a bond with sureties payable to appellee or defendant in error, and article 1384 provides that the party taking an appeal is called the “appellant” and the adverse party the “appellee.” Held' that, since the executors were entitled to judgment over against the hardware company, that company was an “adverse party” to plaintiff appellant, so that the appeal bond should have also been made payable to it; an “adverse party” being every person interested in opposition to the modification or reversal of - a judgment appealed from and every person interested in sustaining it (quoting 1 Words & Phrases, p. 224).
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2011-2016; Dee. Dig. § 376.]
    8. Abpeal and Error (§ 835) — Rehearing —Presentation on Original Hearing— Jurisdictional Questions.
    An objection to maintaining the appeal, because plaintiff’s appeal bond was not made payable to one of defendants who was an adverse party” plaintiff, was jurisdictional, so that the question could be first raised on rehearing, though not raised in appellee s brief or on the original hearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241 — 3243; Dec. Dig. § 835.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by the Walter Box Company against W. D. Blackburn and others in which defendant named and another sued for judgment over against the Hoch Hardware Company. Prom a judgment for plaintiff for a lesser amount than claimed, it appeals.
    Appeal dismissed on rehearing.
    J. P. Taulbee and Jno. D. Hudson, both of Georgetown, for appellant. W. A. Barlow, of Taylor, for appellees.

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

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

   RICE, J.

This suit was brought by appellant against Wm. D. and Nathaniel T. Blackburn, as independent executors of the estate of Annie L. Blackburn, deceased, to recover damages in the sum of $957 on account of a breach of a rental contract, alleging that they had entered into a written contract with said parties, whereby they leased to it for a period of one year, beginning May 1, 1911, a certain storehouse for the purposes of conducting a mercantile business in the city of Taylor, and that possession was withheld from it of said building from the 1st of May, 1911, to the 6th day of July, 1911, during which time plaintiff sustained a net loss in profits to the amount of $700, together with $220 it was compelled to pay its manager, McKinzie, as well as $37 moneys expended by it for storage, drayage, and demurrage. The appellees answered by general demurrer, special exception, addressed to the claim for special damages on account of loss of profits, a general demurrer, and further that if they were liable at all the Hoch Hardware Company, a private corporation, was liable to them for a like amount, asking that said company be made a party, and for judgment over against it in the event that appellant recovered against them, and also for an offset against appellant for rents on said building, which had not been paid. The Hoch Hardware Company answered adopting the demurrers of appel-lees to plaintiff’s petition and by general denial. There was a nonjury trial, resulting in a judgment in favor of appellant against appellees for $37 and interest thereon from May 1, 1911, to date of judgment, and in favor of appellees for a like amount against the Hoch Hardware Company, and in favor of appellees against appellant for $464 for rents from July 6, 1911, to May 1, 1912, adjudging costs equally against appellant and the Hoch Hardware Company, from which judgment appellant prosecutes this appeal alone against the appellees.

A special exception was sustained to that part of plaintiff’s petition seeking to recover damages for loss of profits pending the time the building was withheld from plaintiff, on the ground that the damages claimed were uncertain and speculative, and therefore not recoverable. As a basis therefor, the petition set out facts showing that plaintiff, two years before it had rented the building, had conducted a similar business in the city of Taylor, and that, before making the present contract, its president had talked with many of his friends and old customers who had promised their patronage, and that the building so rented was as well located as the one in which appellant had formerly conducted its business, alleging that it would have realized a net profit of $700 during said time, if it had not been denied possession of said storehouse. It further alleged that, after plaintiff did get possession of said storeroom on the 6th of July, it realized net profits from its business between that time and the 6th of October in the sum of $1,500.

We think this demurrer was properly sustained, for the reason that such profits were uncertain and speculative, and the facts pleaded did not warrant their recovery. It appears from the allegations of the petition that appellant had no established business at the time. There was nothing upon which to base an estimate of the profits that it would have made, nor is it certain that it would have made any profits. It is said in Eraser v. Echo Mining Co., 9 Tex. Civ. App. 210, 28 S. W. 714, that “damages in the nature of lost profits cannot be recovered for delay in furnishing material for a smelter, where it is not shown with certainty that the smelter could have been operated at a profit.”

Where the loss of profits can be shown with reasonable certainty, the rule seems to be that they are recoverable; but in the present case it does not appear that if plaintiff had conducted the business during said period of time it would have made any profits whatever. The uncertainty does not depend upon the difficulty of proof as to the exact amount of damages in such cases, but upon the determination of ' the fact as to whether or not there would have been any profits at all. In the present case it is entirely problematical as to whether appellant could have operated such business at a profit or loss for the period it was deprived of the building. It had no going or established business upon which to predicate such a claim for profits, as was the basis of recovery in American Const. Co. v. Caswell et al., 141 S. W. 1013. It is true that it alleges that two years before it had conducted a similar business as the one proposed in the same town, and it alleges that it had talked with and obtained assurances from former customers that they would again favor it with their patronage ; but it is not alleged nor shown whether such former business was conducted at a loss or profit, nor does it appear from the petition that similar conditions existed as when such former business was conducted. It is true, it is alleged that for three months after it obtained possession of the building it made a profit, stating the amount; but this was at a different season of the year— during the fall — and, as a matter of common knowledge, business is much better then than at any other season.

As said by the Supreme Court of Maryland in Lanaham v. Heaver, 79 Md. 421, 29 Atl. 1038: “The profits claimed must be free from speculation and must be sufficiently certain to be capable of adequate proof; they must not depend on the chances of trade, but upon the market value and other facts which are susceptible of definite proof.”

In Fraser v. Mining Co. supra, among other things, it is said, quoting from United States v. Behan, 110 U. S. 344, 4 Sup. Ct. 81, 28 L. Ed. 168: “Damages may be so uncertain, contingent, or imaginary as to be incapable of adequate proof; and there they cannot be recovered, because they cannot be proved. But when it is certain that the damages have been caused by breach of contract, and the only uncertainty is as to the amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach.” Further, the court, quoting with approval from Wakeman v. Manfg. Co., 101 N. Y. 209, 4 N. E. 264, 54 Am. Rep. 676, says: “The rule that damages which are uncertain or contingent cannot be recovered, does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived at all.”

See, also, the following cases: Graves v. Brownson, 120 S. W. 560-563; Alamo Mills Co. v. Hercules Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S. W. 448; De La Zerda v. Korn, 25 Tex. Supp. 188-194; 13 Cyc. 36, par. E, Profits; 13 Cyc. 59.

By its second assignment it is insisted that the court erred in refusing to render judgment for plaintiff for the sum of $220 for money paid to McKinzie, its manager, from May 1 to July 6, 1911, because the proof showed that plaintiff was entitled to recover for such amount. Plaintiff alleged and proved that it had paid McKinzie $220 as manager during the time that it was kept out of the use of the storeroom; that this amount was reasonable and necessary; that appellees at the time the building was rented knew that the business would be conducted by employSs, as shown by their written contract. It was further shown that appellant employed McKinzie immediately after making the lease contract with appellees and ordered its goods, which arrived on the 1st of May; that McKinzie could not obtain other employment for the reason that he, from time to time, was promised the use of the building by appellees, and was continually expecting to get it. Appellant was therefore compelled to pay McKinzie under his contract, for which it received no benefit or return, and this was brought about by ap-pellees’ failure to furnish the building in accordance with their contract.

We sustain this assignment and hold that the court erred in not rendering judgment in behalf of appellant on this item in the sum of $220, with interest.

It is insisted that the court erred in rendering judgment against plaintiff for one-half of the costs in this case, and in not stating in the' record the cause therefor, for the reason that the plaintiff, being the successful party, and there being no judgment rendered in favor of the defendant Hoch Hardware Company, no part of the costs should have been adjudged against the plaintiff. We overrule this assignment, because appellant did not make the Hoch Hardware Company a party to this appeal. Besides, it does not appear from appellant’s brief that this matter was called to the attention of the court below, either by motion to retax the costs, or in any other way, without which it cannot be made the subject of review. See Valentine v. Sweatt, 34 Tex. Civ. App. 135, 78 S. W. 385; Hoskins v. Velasco Nat. Bank et al., 48 Tex. Civ. App. 246, 107 S. W. 598; De Cordova v. Rodgers, 67 S. W. 1042; Bridge v. Samuelson, 73 Tex. 522, 11 S. W. 539.

The remaining assignments have been considered and are regarded not well taken.

Believing that the court erred in not rendering judgment in favor of appellant for the sum of $220, as above indicated, its judgment is now here so reformed as to give judgment for appellant for said amount, which should be subtracted from the amount of the judgment recovered against it by appellees, leaving judgment to stand in favor of appellees for the sum of $244, with 6 per cent, interest thereon from the 25th day of April, 1912, and, as so reformed, the same will in all things be affirmed.

Reformed and affirmed.

On Motion for Rehearing and Motion to Dismiss Appeal.

Since rendition of the judgment reforming and affirming this case in favor of appellant, appellees William D. and Nathaniel T. Blackburn have filed two motions herein, one for rehearing, and the other to dismiss the appeal. If we grant the latter motion, it necessitates, of course, the granting of the former.

The motion to dismiss is predicated on the fact that the appeal bond is made payable only to W. D. and Nathaniel T. Blackburn, executors of the estate of Annie L. Blackburn, deceased, and was not also made payable to the Hoch Hardware Company, one of the parties defendant in the court below, and whose interest it is claimed was adverse to that of appellant in said cause. Appellant brought suit against the Blackburns as independent executors of the estate of Annie L. Blackburn, deceased, to recover damages on account of the breach of a rental contract for a certain storehouse, the possession of which, it was alleged, was withheld from it by appellees, whereby ’ appellant claims to have been damaged on account of loss of profits, and for money it was compelled to pay its manager, as well as sundry other items of expense. The Blackburns interplead-ed the Hoch Hardware Company, alleging that said last-named company had unlawfully and wrongfully withheld from them said building after the expiration of their rental contract, for which reason they were unable to give possession thereof to appellant, in accordance with their contract, and praying that, in the event any judgment should be rendered in favor of appellant as against them, they recover a like amount against said Hoch Hardware Company. The Hoch Hardware Company answered, making a similar defense to appellant’s action as was made by the Blackburns. The trial resulted in a judgment in favor of appellant against the Blackburns for $37, and in favor of appellees for a similar amount against the Hoch Hardware Company. There was also a judgment in favor of appellant against the Blackburns for $220, but no judgment against the Hoch Hardware Company for said last-named amount.

It will be seen, therefore, that it was as much to the interest of the Hoch Hardware Company to defeat appellant’s claim as it was to the interest of the Blackburns to do so; it is true, however, that it was only a conditional liability. If the Hoch Hardware Company was an adverse party to appellant, then it became necessary for appellant, in order to perfect its appeal, to make the appeal bond payable, not only to the Blackburns, but to that company as well, and a failure so to do would be fatal to its right of appeal.

The party taking an appeal is called the “appellant,” and the adverse party is called the “appellee.” See article 1384, R. S. 1895. By article 1400, Id., the appellant, or Ijlaintift in error, as the case may be, is required to execute a bond, with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in error, etc., in a sum at least double the amount of the costs of suit, etc.

In 1 Words & Phrases, p. 224, it is said: “An adverse party entitled to notice of appeal is every party whose interest in relation to the judgment and decree appealed from is in conflict with the modification or reversal sought by the appeal; every party interested in sustaining the judgment or decree” — citing a long line of cases in support thereof. Again, it is said in the same volume, same page: “Every party whose interest in the subject-matter of an appeal is adverse to and will be affected by the reversal or modification of the judgment or order from which the appeal has been taken is an ‘adverse party’ and entitled to notice of appeal, irrespective of the question whether such party appears on the face of the record in the attitude of plaintiff, defendant, or in-tervener” — citing cases.

In Millikin v. Houghton, 75 Cal. 539, 17 Pac. 641, it is said that “notice of appeal by one of several codefendants should be served, not only on the plaintiff, but also on the non-appealing eodefendants; they having an interest in the judgment to be affected by a reversal.”

In Seattle Trust Co. v. Pitner, 17 Wash. 365, 49 Pac. 505, it is held that a garnishee is an adverse party on an appeal by a plaintiff from a judgment declaring defendant in the principal action not indebted. This was on the ground, of course, that in the event the judgment was set aside against the principal defendant the garnishee on another trial might be held liable, provided judgment should go in the second case against the principal defendant. It is also said in Commercial Nat. Bank v. U. S. Savings, Loan & Bldg. Co., 13 Utah, 189, 44 Pac. 1043, that: “The term ‘adverse party’ means every person whose interests require that the order, judgment, or decree appealed from be sustained, and if such party must be served with notice of appeal. This is so regardless of whether he appeared as one of the original parties to the action or was brought in by order of the court. * * * A person who has once appeared in an action is a necessary party to the appeal, unless, after his appearance, he has ceased to have an interest in such action.” See, also, Moody v. Miller, 24 Or. 179, 33 Pac. 402; Kosminsky v. Hamburger Bros. & Co., 20 Tex. Civ. App. 291, 48 S. W. 1107; Smith & Williams v. Parks, 55 Tex. 82; Young v. Russell, 60 Tex. 684.

This matter was not called to our attention by counsel for appellees, either in the brief or on the hearing; but, the question being jurisdictional, it is never too late to present it. Young v. Russell, supra. In Kosminsky v. Hamburger Bros., supra, Mr. Chief Justice Key, then Associate Justice, delivering the opinion, said: “If a party to a suit is, upon appeal, adversely interested to the party appealing, such party must be made an obligee in the appeal bond, whether he be plaintiff, defendant, or intervener in the trial court. In this case, judgment might have been rendered against the defendant Gus Less for the costs, as well as for the debt owing to Hamburger Bros. & Co., and as judgment was not so rendered, but was rendered against appellant Kosminsky for the costs, it is to Less’ interest that the question of costs should not be reopened, and he is adversely interested to Kosminsky to the extent of the costs in the court below. It follows therefore that the bond should have been made payable to him, as well as to Hamburger Bros. & Co., and on account of this fatal defect, the motion to dismiss the appeal must be sustained.”

So in the present case, under the pleadings and evidence, whatever judgment might properly be rendered in favor of appellants against the Blackburns, the Blackburns were entitled to judgment over against the Hoch Hardware Company for like amount; for which reason said company was materially interested in the cause of action asserted by appellant against appellees, thereby becoming an adverse party to appellant in said cause of action, notwithstanding it may not be regarded technically as such. See Senter v. De Bernal, 38 Cal. 637.

Believing that the motion to dismiss the appeal is well taken, it is therefore necessary, irrespective of the merits of the motion for rehearing, to grant same, and dismiss the appeal, which is accordingly done.

Motions for rehearing and to dismiss appeal granted.


author: JENKINS, J.

text:
    HOUSTON CHRONICLE PUB. CO. v. McDAVID.
    (Court of Civil Appeals of Texas. Austin.
    April 2, 1913.
    Rehearing Denied May 7, 1913.)
    1. Libel and Slander (§ 51) — '“Malice”— Privileged Communications.
    Malice is implied, as a matter of law, from the publication of a defamatory article not privileged, but actual or express malice must be proved as a fact to authorize a recovery for a defamatory article which is privileged.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. § 51. For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712-7713.]
    2. Appeal and Error (§ 1040) — Harmless Error — Erroneous Rulings on Pleadings.
    Where" a mother alone sued for a libel based on a publication charging that her daughter’s bad traits were inherited from her, the error in overruling a special exception to the allegation of a petition that the publication was a libel on the entire family, and especially on the daughter, was harmless, where the court charged that plaintiff could not recover for any defamation referring solely to the daughter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 40S9-4105; Dec. Dig. § 1040.]
    3. Libel and Slander (§ 119) — Damages— Elements — Mental Anguish.
    Mental anguish is a proper element of damages for a libel.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 347; Dec. Dig. § 119.]
    4. Evidence (§ 127) — Admissibility — Res Gestae — Declarations.
    The exclamations of a person libeled, on first hearing the libelous article read, are admissible as a part of the res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.]
    5. Trial (§ 85) — Evidence — Objections— Sufficiency.
    An objection to testimony, a part of which is admissible, is properly overruled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    6. Libel and Slander (§ 100) — Damages— Special Damages.
    One suing for a libel may not prove illness or physical and mental breakdown as a result of the libel unless specially pleaded as special damages.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 246-256, 258-272, 291, 322, 323; Dec. Dig. § 100.]
    7. Witnesses (§ 275) — Cross-Examination op Party — Scope.
    Where a defamatory article did not mention any names, and the issue was whether plaintiff and his wife could be identified by the language as the persons referred to, the refusal to permit defendant to prove by plaintiff on cross-examination that on reading the article he would not have known to whom it referred, except for information not possessed by the public, or by friends, and acquaintances, was erroneous.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig. § 275.]
    8. Trial (§ 133) — Improper Argument op Counsel — Correction by Court.
    The misconduct of counsel of the successful party in making an improper argument is not ground for reversal, where the argument was withdrawn by him and where the court instructed the jury to disregard it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    9. Libel and Slander (§ 112) — Malice — Evidence.
    The actual malice essential to authorize a recovery for a defamatory publication, which is privileged, may be proved by circumstances showing wanton malevolence and reckless disregard of the rights of others, including the party injured.
    [Ed. Nóte. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. § 112.]
    Appeal from District Court, Bastrop County ; Ed R. Sinks, Judge.
    Action by Dock McDavid against the Houston Chronicle Publishing Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    This is a suit for damages, compensatory and punitory, by reason of the publication of an answer in a divorce suit filed by the daughter of appellee in Houston. The ap-pellee and his wife reside in Bastrop county, and were unknown to the appellant at the time of such publication in the Houston Chronicle, a paper of extensive circulation throughout this state, including Bastrop county. Said answer will be found in the report of this case on a former appeal in 146 S. W. 252 et seep, reference to which is here made. There was a verdict and judgment for appellee for both compensatory and puni-tory damages.

      Hunt, Myer & Teagle, of Houston, for appellant. Sam 'Schwartz, of Houston, and Or-gain & Maynard, all of Bastrop, for appellee.

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

   JENKINS, J.

(after stating the facts as above). 1. On the former appeal of this case we held, in substance, the publication was privileged; that it was libelous as defined by our statute; and that the second article was admissible in evidence as tending to identify the appellee and his wife as being the parties referred to in the first article. We adhere to these holdings, which dispose of appellant’s first, second, third, and sixth assignments of error.

2. The definition of libel as contained in our statute (Acts 27th Leg. c. 26), is not essentially different from that of a libel per se at common law, but the scope of privileged publications is broadened. The chief difference between a privileged communication and one that is not privileged is that in the latter malice is implied as a matter of law from the publication of the defamatory article, while in the former, actual or express malice must be proven as a fact before damages can be recovered. 25 Cyc. 375; Ency. of Law, vol. 6, p. 1049; White v. Nicholls, 3 How. 286, 291, 11 L. Ed. 600-602; Cranfill v. Hayden, 97 Tex. 564, 80 S. W. 609.

3. We sustain appellant’s fourth assignment of error complaining of the action of the court in overruling its special exception to the allegation in appellee’s petition that the publication was a libel on his entire family, and especially on his daughter Mrs. Leona Alice Allison, who was the plaintiff in the divorce suit above referred to, but was not a party to this suit. Said error, however, was harmless, in view of the following charge given by the court:’ “You are instructed that the plaintiff herein cannot recover for any charge or defamatory language contained in the published articles complained of, and which charge or language is directed or refers solely to- Mrs. Leona Alice Allison.”

4. The fifth assignment is as to permitting appellee to testify that upon reading the article in question to his wife, which was the first time she heard it, she exclaimed: “How could they say that about a woman who has lived the life she has. [This evidently referred to her daughter.] I will be ashamed to look my friends in the face after that has gone out, after I have lived the life I have lived so long. Not a man, woman, or child could bring anything against my reputation.” Mental anguish is a proper element of damages for the publication of a libel. Zeliff v. Jennings, 61 Tex. 458; Young v. Sheppard, 40 S. W. 62; 25 Cyc. 509. The exclamations of Mrs. McDavid upon first hearing the article read, and which referred to herself, tended to show her mental anguish and were properly admitted in evidence. They were not inadmissible as self-serving declarations, for the reason that they were res gestse.

5. That part of Mrs. McDavid’s statement in reference to her daughter should not have been admitted, but as the objection was to the whole of the testimony, and a part of it was admissible, the assignment must be overruled, Williams v. Neill, 152 S. W. 694; Compress v. Railway Co., 18 Tex. Civ. App. 622, 45 S. W. 967.

6. The seventh assignment of error complains of the action of the court in permitting appellee to testify that after the publication of the article complained of his wife “gradually went down; she was confined to her bed; and about the middle of December her mind was gone.” The objection to this testimony was that it was not pertinent to any issue in the case; that the pleadings did not set up any claim for damages sustained by plaintiff, based on either his wife’s physical breakdown or loss of mind, and did not allege that she did break down, either physically or mentally. This assignment must be sustained. Such injuries were special damages, and, if recoverable, must have been specially pleaded. In Publishing Co. v. Jones, 83 Tex. 308, 18 S. W. 654, it is said: “Special damages must be pleaded and proved by the plaintiff.” In Receiver v. Cook, 86 Tex. 632, 26 S. W. 487, 40 Am. St. Rep. 878, the court said: “It is well settled in this state that a general allegation of damages will let in evidence of such damages as naturally and necessarily result from the wrongs charged; but, to admit proof of damages which do not necessarily result from the injury alleged, the petition must set up the particular effects claimed to have followed the injury.” Physical breakdown and total loss of mind cannot be said to be the natural and usual result of the publication of a libel. For the same reason the court should not have permitted appellee to testify that his wife was sick in bed, as complained of in the eighth assignment of error.

7. Appellant assigns as error the refusal of the court to allow it to prove by appellee on cross-examination that upon reading the article he would not have known to whom it referred except for “inside information.” It was not made to appear what was meant by “inside information.” If it was meant that he would not have known that he and his wife were referred to, except for information not possessed by the public nor by friends and acquaintances, the evidence should- have been admitted. No names were mentioned in said article, and it was an issue as to whether or not appellee and his wife could be identified by the language used and the facts stated in said article.

8. If the remarks of appellee’s counsel, as complained of in the tenth assignment of error, were improper, which is not fully evident, they did not constitute reversible error, for the reason that the same were withdrawn by the counsel who made them, and the court instructed the jury to disregard them, and presumably they were disregarded by the jury.

9. There was no error in the charge of the court. Said charge instructed the jury that the communication was privileged, and that their verdict should be for the defendant, unless they found from a preponderance of the evidence that the agents of the defendant, in publishing the same, were actuated by actual malice, and defined actual malice as “ill will, bad or evil motives, or such gross indifference to the rights of others as will amount to a willful or wanton act.” The charge given was equally as favorable to defendant as the special charge requested and set out under appellant’s thirteenth assignment of error..

10. The portion of the charge complained of is that which permitted the jury to render a verdict for the plaintiff if they found the publication was made with such gross indifference to the rights of others as to amount to a willful or wanton act. The publication being privileged, it was necessary for the plaintiff to prove malice as a fact. But this does not mean that such proof must be made by direct testimony. It is true in libel, as in prosecutions for murder in the first degree, that express malice may be proven by circumstances. While express malice, in its primary sense, implies personal ill will, still in libel, as in murder, the demands of the law in this regard may be met by proof of such wanton malevolence and reckless disregard of the rights of others as to include the party injured. McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Bradstreet v. Gill, 72 Tex. 121, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; 25 Cyc. 523.

The appellee and his wife were unknown to the agents of appellant, and the publication was not made at the request of any one; hence it follows that there was no actual malice in the sense of ill will, but we cannot sáy, as a matter of law, that the publication was not made with reckless disregard of the rights and feelings of appellee and his wife. This issue was properly submitted to the jury.

For the error pointed out in the sixth subdivision of this opinion, this case is reversed and remanded.

Reversed and remanded.


author: WILLSON, C. J.

text:
    CONSUMERS’ FERTILIZER CO. v. J. M. BADT & CO.
    (Court of Civil Appeals of Texas. Texarkana.
    March 13, 1913.
    On Appellee’s Motion for Rehearing, April 3, 1913.
    On Appellee’s Motion for Further Rehearing, May 9, 1913.)
    1. Sales (§ 88) — Actions fob Price — Sufficiency of Evidence.
    Evidence, in an action for the price of fertilizer, held to support a finding that the parties orally agreed that the purchaser n,eed not pay for the fertilizer until he sold it.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 248-250; Dec. Dig. § 88.]
    2. Sales (§ 89) — Consideration of Contract.
    Where the purchaser of fertilizer, the price of which was payable by the original contract on demand, after arrival, did not agree to pay interest on the price up to the time he sold it, there was no consideration for a subsequent agreement by the seller that the purchaser need not pay the price until the fertilizer was sold.
    TEd. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dee. Dig. § 89.]
    On Appellee’s Motion for Rehearing.
    3. ArPEAL and Error (§ 493) — Record-Contents— Jurisdiction of Lower Court.
    In a case involving less than the mimi-mum value required to give original jurisdiction to the county court, the fact that the county court acquired jurisdiction by an appeal from a justice’s court must appear from the transcript which the justice is required to send to the county court by Rev. Civ. St. 1911, arts. 2396, 2397, in order to give the Court of Civil Appeals jurisdiction of an appeal from the county court, and the fact of jurisdiction cannot be shown by the appeal bond filed in the justice’s court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2282-2284; Dec. Dig. § 493.]
    On Appellee’s Motion for Further Rehearing.
    4. Costs (§ 236) — Appellate Costs.
    The fact that the county court, instead of dismissing a suit brought by appellant for want of jurisdiction, which it did not have, rendered judgment that appellant take nothing, and that the Court of Civil Appeals, instead of dismissing appellant’s appeal, reversed the judgment and dismissed the case, was not ground for adjudging costs against appel-lee, but costs should be adjudged against appellant in both courts.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 907-933; Dec. Dig. § 236.]
    Appeal from Titus County Court; W. E. Riddle, Judge.
    Action by the Consumers’ Fertilizer Company against J. M. Badt & Co. From a judgment for defendant, plaintiff appeals.
    Reversed, and case dismissed.
    S. P. Pounder, of Mt. Pleasant, for appellant. J. M. Burford and Rolston & Ward, all of Mt. Pleasant, for appellee.

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

   WILLSON, C. J.

Appellee J. M. Badt, a merchant engaged in business at Mt. Pleasant, under the name of “J. M. Badt & Co.,” bought fertilizer of appellant, agreeing to pay it therefor sums aggregating $404.68 less cost of carriage thereof from Shreveport, La., to Mt. Pleasant, Tex. The suit was by appellant to recover $114.58 as the part of the purchase price unpaid by appellee. The appeal is from a judgment denying appellant a recovery as sought by it, and in favor of appellee for costs.

The contract covering the sale of the fertilizer was made January 25, 1909. It was in writing. Among other stipulations in it was one as follows: “Settlement for all shipments is due on demand after their arrival, and any part not paid in cash is due in buyers’ notes, maturing October the 15th, November 1st, and November 15th, including 8 per cent, per annum interest after May the 1st. A discount of 8 per cent, per annum to May 1st will be allowed on cash payments.” Appellee claimed that the terms of the contract as to the time when the fertilizer was to be paid for had been so changed by a verbal agreement subsequently entered into between himself and appellant, through its manager, one Green, as to relieve him of the obligation to pay therefor on demand after he received the fertilizer, and as to bind him to pay therefor only after he had sold same. He further claimed that a portion of the fertilizer representing the sum unpaid of the purchase price remained in his hands unsold, and therefore that appellant was not entitled to a recovery against him as sought by it.

It appeared that the fertilizer was shipped out of Shreveport January 26, 1909, and reached appellee a few days later. Appellee testified that a few days after he received same appellant made demand on him for a settlement in accordance with the terms of the written contract, and about May 1st renewed the demand. It was then, he claimed, that he and Green entered into the agreement changing the time for payment to be made by him for the fertilizer. His testimony with reference to the agreement with Green was as follows: “I called him up over the telephone, and told him I had some of the fertilizer on hand I had not sold, and that I was willing to settle for the amount I had sold, but that the Caddo people had never demanded of me to pay for fertilizer until I had sold it, and I thought he ought to do the same thing, and he' said all right, he would do as well by me as his competitors, and that I need not pay for the fertilizer until I had sold it. I have never sold all of the fertilizer, and have paid for all I sold. I have paid for every sack I have sold, and have the balance now in my warehouse, and I have tendered it to the plaintiff. * * * It is the custom to pay for fertilizer only when sold.” With reference to the same matter, Green testified as follows: “Some time after I had demanded a settlement for the fertilizer, defendant called me up on the telephone, and said, in substance, that the Caddo people had always waited till the 1st of May for settlement of the fertilizer sold, and carried the balance over till the 1st of the next May in open account without interest, and he thought plaintiff ought to do the same. I told defendant that, if the Caddo folks did that, plaintiff would too; that I would do as well by him as my competitors. I did not agree in that or any other conversation with defendant that he could hold the fertilizer on consignment, or as plaintiff’s property, and not pay for it until he sold it. The written contract is the only contract I made with defendant, except I did extend the time of payment or settlement as stated.” The suit was commenced after May 1, 1910.

It will be noted that, according to the testimony of both appellee and Green, the agreement reached over the telephone was one merely for an extension of the time when the fertilizer was to be paid for. The only difference between them was as to the time to which the extension should operate. According to appellee, it was until he sold the fertilizer; while, according to Green, it was until May 1, 1910. If it was until May 1, 1910, as claimed by appellant, then the balance unpaid was due when the suit was commenced, and the judgment should have been for appellant. If it was when appellee sold. the balance remaining of the fertilizer, and was binding on appellant, then the judgment was right, for it was undisputed that appellee had not sold part of the fertilizer. As appellee’s testimony was sufficient to support a finding that the agreement was that he need not pay for the fertilizer until he sold it, whether the judgment should be disturbed or not therefore depends upon whether it appeared that the agreement was binding on appellant or not.

In Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 584, 29 S. W. 646, 30 S. W. 430, the payer of a note requested and was granted an extension of one week; he agreeing to pay within that time. In Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128, the parties to the note agreed upon an extension of 12 months. In the Bahn Case it did not appear that the payer had bound himself not to pay the debt before the expiration of the time of the extension agreed upon, or, if he should pay it before that time, nevertheless to pay interest to that time. The Supreme Court was of the opinion that it therefore did not appear that there was a consideration for the payee’s undertaking, and held he was not bound by the agreement. In the Phipps Case the court thought it did appear that the payer of the note had so bound himself, and therefore that there was a consideration for the undertaking on the part of the payee.

This case is like the Bahn Case in that it did not appear that appellee had bound himself not to pay for the fertilizer before he sold it, or, if he did, to pay interest on the purchase price to that time. As on the authority of that case (and Gibson v. Irby, 17 Tex. 174) it must be held that it did not appear there was a consideration to support appellant’s undertaking, it follows we are of opinion the judgment should be reversed. That the balance of the purchase price of the fertilizer remaining unpaid was $114.58, as claimed by appellant seems to have been established without dispute. Therefore the cause will not be remanded, but judgment for that sum, and costs of the court below and of this appeal, will be bere rendered in favor Of appellant.

On Motion of Appellee for Rehearing.

Prom appellant’s pleadings in the county court it appeared that the amount in controversy between the parties was $114.58. It is obvious therefore that the county court did not have jurisdiction of the cause, unless it acquired it by appeal from a justice’s court That it so acquired jurisdiction thereof is not shown in the record before us otherwise than by an appeal bond filed in the justice’s court by appellee, from which it appears that appellant there recovered a judgment against appellee for the sum of $96.33. In American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714, it was held that the fact that a county court had acquired jurisdiction of an appeal from a justice’s court must appear from the transcript the justice is required by articles 2396 and 2397, Revised Statutes 1911, to send to the county court when an appeal is taken from a judgment rendered by him. There, as here, the only evidence in the record before the Court of Civil Appeals of the rendition of a judgment in the justice’s court, and its nature, was recitals in a bond made on an appeal to the county court. With reference to this, the Court of Civil Appeals said in the Mason Case: “We cannot, therefore say from the evidence so specifically required by the law that the controversy between the parties to this suit ever proceeded to a final determination and judgment in the justice’s court. We do not think mere recitations in an original paper that the law requires to be sent up with the transcript can be made to supply the officially certified copy of the judgment and other entries which the statute provides. We are not allowed, as we understand the rule, to indulge presumptions in aid of the county court’s jurisdiction; but the same must be made to affirmatively appear.” On the authority of that case, we conclude it does not affirmatively appear from, the record before us that the county court acquired jurisdiction of this cause, and therefore that the motion for a rehearing should be granted, the judgment heretofore rendered by us set aside, the judgment of the county court reversed, and the case dismissed. It accordingly is so ordered.

On Motion of Appellee for Further Rehearing.

The motion is overruled, but the judgment of this court as entered will be so corrected as to adjudge the costs of both this court and the county court against appellant instead of against appellee. On the record sent to this court the suit must be treated as one commenced by appellant in the county court, which did not have jurisdiction to hear and determine it, and which, therefore, should have dismissed it at appellant’s cost. Had that court pursued that course, and had appellant prosecuted an appeal from the judgment, it is clear that his court in dismissing the appeal should have adjudged the costs thereof against appellant. That the trial court, instead of rendering that kind of a judgment, adjudged that appellant take nothing by its suit, and that this court, instead of dismissing the appeal, reversed the judgment and dismissed the case, we think was not a reason why the costs should be adjudged against appellee. The judgment of the county court that appellant take nothing by its suit, it appears from the record before us, was void as an adjudication of the controversy between it and aiipellee, and appellant was as free as it was before that judgment was rendered to go into a court having jurisdiction thereof and have the controversy determined. Therefore the prosecution by it of the appeal to his court was not necessary for its' protection or the enforcement of any right it had. This being true, there is no reason why appellee should be made to pay the costs of that appeal.