author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. HAMON et al.
    (No. 5403.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1915.
    On Motion for Rehearing, Feb. 24, 1915.)
    1. Evidence <&wkey;481— Opinion Evidence — Questions of Law ok Fact. '
    In an action for damages to a shipment of cattle, a question asked a witness, as to what would have been the market value of cattle at their destination at the time they should have arrived there if they had been handled in the usual and customary manner and delivered there within the proper time and in the condition that they would have been in if handled in the usual and customary manner, care, speed, and diligence, involved a mixed question of law and fact, and should have been excluded, as the witness could give no intelligent answer without giving an opinion as to what would constitute diligence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dee. Dig. &wkey;>481.]
    On Motion for Rehearing.
    2. Appeal and Error &wkey;G 173 — Disposition of Cause — Reversal in Part.
    Where, in an action against the I. Company and the G. Company, in which judgment was rendered in favor of the G. Company and in favor of plaintiffs against the I. Company, neither plaintiffs nor the I. Company excepted to the judgment for the G. Company or complained thereof on appeal, the reversal of the judgment against the I. Company did not require the reversal of the judgment in favor of the G. Company. .
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. &wkey;5-1173.]
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Action by M. A. Hamon and another against tlie International & Great Northern Railway Company and another. From a judgment against it, the defendant named appeals.
    Reversed and remanded in part, and affirmed in part on rehearing.
    Wilson, Dabney & King, of Houston, and W. B. Teagarden, of San Antonio, for appellant. L. Old, L. E. Lanier, G. B. Fenley and I. H. Burney, all of Uvalde, and Baker, Botts, Parker & Garwood, of Houston, for appellee.
   CARL, J.

H. A. Hamon and J. R. Otten-house sued the International & Great Northern Railway Company and the Galveston, Harrisburg & San Antonio Railway Company for damages to a cattle shipment made about October 4, 1913, from Henderson to Uvalde, Tex., over the defendant railways, and recovered a judgment against the International & Great Northern Railway Company for $500, from which this appeal is prosecuted.

It is charged that the agent at Henderson took charge of and superintended the loading of the cattle and crowded, too many into the cars; that said cars were not properly bedded, but were muddy and filthy and so slick that the cattle could not stand, to which plaintiffs then objected, all to no avail; that the stock were handled roughly and negligently, whereby they were bruised and thrown down and trampled by others; and that they were delayed in transit. From all these acts of negligence it is alleged that a number died en route, others died as a result of the trip after arrival, while tlie others were damaged and depreciated in value.

The first assignment of error is that the verdict of the jury is contrary to law and against the great weight of the evidence. Forty pages of the brief are devoted to setting out practically the statement of facts, in an attempt to show: First, that the agent did not superintend and have charge of the loading; and, second, that the stock were not roughly handled nor unduly delayed.

The trial court assumed the validity of the shipping contract and charged the jury that the defendants would not be liable for overloading and crowding of the cars, unless they themselves assumed to load, and did load, the cattle. The court gave appellant six special charges covering every phase of this question requested by it, and refused none that were requested.

Appellant’s theory is that Hamon overloaded the cars, over Gould’s (the agent’s) protest, and several witnesses agree with Gould. Much testimony is in the record that the cattle were not handled roughly and were not unduly delayed; but, on the other hand, appellees, Hamon and Ottenhouse, say that Gould superintended the loading, and they were running the cattle into the chute, and Gould was to tell them when he had enough in the cars. Suffice it to say that the evidence was in sharp conflict on the point as to who supervised the loading and as to the condition of the cars, and bedding therein for the cattle. The cattle were started about 2:30 p. m., October 4, 1913, and arrived at Uvalde about 9:30 p. m. October 6th. The evidence shows that the trip should be made in about 32 hours. So it will be seen that there was a delay of about 22 hours and 30 minutes.

The jury found against appellant on the issues of negligence and damages, and an examination of the evidence discloses that there is sufficient in support of appellees’ theory to preclude this court from overturning such finding. The first assignment 'is overruled.

The second assignment is based upon the overruling of objections made to the following question:

“If these cattle had been handled in the usual and customary manner, and delivered here within the proper time, and in the condition that they would have been in, if handled in the usual and customary manner, care, speed, and diligence, what would have been the market .value of these steers at .Uvalde, Tex., at the time they should have arrived here?”

To which he answered as follows:

“The two year old steers would have been worth $30. In the condition that they got here in, the two year old would have been worth, I suppose, about $23. The cows would have been worth $30, and, in the condition that they got here in, they were worth $25, I guess. There was one two year old heifer dead. Her market value would have been $30. The steer yearlings would have been worth about $25. In the condition they arrived here in, they were worth about $20.”

The trial court qualifies the bill of exceptions by saying that the words “usual and ordinary manner” were not used, but that instead the phrase, “the usual and customary manner,” was used. And, further, that “and delivered there within the proper time and condition” was not used, but that the statement was “and delivered there in the condition that they would have been in, and at the time they would have arrived there, if handled with the usual and customary manner, care, speed and diligence.”

The objection was that the witness was not qualified’ as an expert on the subject; that his information is hearsay with reference to values; that the answer is an opinion or conclusion of the witness; and that it is an invasion of the province of the jury and is an opinion of the witness on a mixed question of law and fact.

There is no doubt that the evidence shows that the witness had sufficiently qualified as an expert both as to values and as to the handling and shipping of cattle, injuries thereto, and the time required to make the trip. But, under the rule as announced in the Roberts Case (H. & T. C. Ry. Co. v. Roberts, 101 Tex. 421, 108 S. W. 808), did this question call for an opinion on a mixed question of law and fact? In that case, the court held that the question called for an opinion on what would constitute ordinary care and as to what was a reasonable time for the transportation and as to what would be due diligence. In the case at bar, even if we take the question as qualified by the court, with which qualification the transcript of the testimony seems to conflict, the witness would be called upon to give an opinion as to what diligence is; for he must necessarily do so to give an intelligent answer. Turn this question as we may, we have' been unable to view it from any angle as being other than squarely in conflict with the Roberts Case, supra, as well as the following cases: T. P. Ry. Co. v. Jones, 124 S. W. 195; Railway Co. v. Kimble, 49 Tex. Civ. App. 622, 109 S. W. 234; Railway Co. v. Schults, 109 S. W. 445; H. & T. C. Ry. Co. v. Hawkins, 167 S. W. 191. This question, under the above authorities, involved a mixed question of law and fact, and we sustain the assignment.

The third and fourth assignments are overruled.

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

On Motion for Rehearing.

Neither the International & Great Northern Railway nor appellees excepted to the judgment in favor of the Galveston, Harrisburg & San Antonio Railway Company; nor do they on this appeal make any complaint as to the judgment rendered, in favor of the latter railway company. Therefore the judgment heretofore rendered reversing the whole case will be so modified as to affirm the judgment rendered in the trial court in favor of the Galveston, Harrisburg & San Antonio Railway Company. Otherwise, as between appellees, Hamon and Ottenhouse, and the International & Great Northern Railway Company, the judgment will stand reversed as in the original- opinion.

The motion of the Galveston, Harrisburg & San Antonio Railway Company is granted, but that of ’the appellees Hamon and Otten-house is overruled.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. SHORT.
    (No. 5391.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1915.
    Rehearing Denied Feb. 24, 1915.)
    Careiers &wkey;>355 — Ejection oe Passengers— Failure to Produce Ticket.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6560, providing that every conductor, brakeman, etc., employed in a passenger train shall wear upon his bat or cap a badge indicating bis office and the initial letters of the corporation by which he is employed, and article 6561 providing that no conductor or collector without such badge shall demand or be entitled to receive from any passenger any fare, toll, or ticket, where a passenger gave up his ticket to a brakeman authorized to receive it, his ejection because of his failure to produce it upon demand by the conductor was wrongful, as the statute does not say that only the conductor may take tickets.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1416-1422; Dec. Dig. &wkey;355.]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action by H. E. Short against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed on condition that plaintiff file a remittitur.
    See, also, 158 S. W. 175.
    Baker, Botts, Parker & Garwood, of Houston, and Emil Mosheim, of Seguin, for appellant. H. M. Wurzbaeh, of Seguin, for appel-lee.
   CARL, J.

This is the second appeal of this case; the former opinion being reported in 168 S. W. 601, and that case is here referred to for a statement of the nature of the cause of action. Any change that may have been made in the pleadings or proof will appear in this discussion. The judgment, based upon the jury’s verdict, was for $300.

The charge complained of in the first assignment is not subject to the criticism made. It contained the essential provisions of articles 6560 and 6561 of Vernon’s Civil Statutes with regard to the wearing upon their caps or hats, by the employes, badges which indicated their office and the initial letters of the style of the corporation by which they were employed, and says that only such would be authorized to collect fares, etc.; and, as a whole, the charge requires that it be proven, by a preponderance of the testimony, that the ticket was delivered to an authorized agent of the company. The statute does not say that only the conductor may take tickets, but says “conductor or collector,”, and without such badge they are not authorized to demand or receive fares, etc. The requirement is that such collector be an authorized agent, and the uniform provided is evidence to the traveling public of the position held. It is but fair to presume that a railway would not permit persons on its own trains to wear the, uniform of the company who are not authorized so to do. If those servants of the company exceed their authority or act outside of the scope of their authority in taking up tickets, and some one must suffer thereby, it should not be an innocent passenger who is in the care of the company, but the corporation that places them in such position, and which is responsible for and has control over such servants.

Appellee had bought his ticket and same had been taken up by the brakeman. He had not left the train and was rightfully thereon. It is not on a parity with a case where a man boards a train without a ticket, or with a ticket not properly validated, and refuses to pay his fare. It was not his negligence, but that of the company, that the ticket was lost or misplaced after it was taken up, and, when he was ejected from the train, it was wrongfully done.

The Supreme Court, speaking through justice Williams, in Texas & Pacific Railway Co. v. Payne, 87 S. W. 332, 70 L. R. A. 946, says:

“When the holder has done all he can to perform the condition precedent imposed upon him, his right to transportation is complete, and he has in the ticket all the evidence which the contract exacts of him to furnish; that which is lacking being only the evidence which the carrier has undertaken to furnish for the information of its employés. The ease is not one in which the passenger has failed to comply with reasonable regulations concerning tickets, but one in which he has. complied as far as was in his power.”

That was a case in which, a drover had a' contract for return passage which the agent refused to validate. The conductor refused to permit him to ride; the appellee, Payne, refused to pay his fare and was ejected. He had the means to pay his fare but declined to do so. The court says:

“We therefore answer that plaintiff was entitled to recover damages sustained from the expulsion, and was not required either to purchase a ticket at Ft. Worth or to pay his fare on the train.”

When Short gave up his ticket, he had done all that was required of him, and what subsequently became of that ticket was due solely to the action of appellant’s employés. He had performed all the duties incumbent upon him, and the company did not have any right to put him off until he reached his destination.

This holding is not at all in conflict with Mr. Justice Fly’s ruling in G., C. & S. F. Ry. Co. v. McCormick, 45 Tex. Civ. App. 425, 100 S. W. 202, because in that case McCormick knew, before he boarded the train, that he did not have a ticket, and it appeared that he (himself) had lost his ticket.

Short did not board the train without a ticket, and the loss' of it is not attributable to him, and, as judge Moursund said on the former appeal, he “could stand upon his right to remain on the train until carried to his destination, and was not required to anticipate that defendant’s employes would not protect him in his rights.”

What we have said indicates our views of the law on the whole case, as made, and we overrule the first to fifth assignments, both inclusive; and if the appellee shall, within 20 days, file a remittitur of $150, the judgment will be affirmed for the sum of $150. But, if such remittitur is not so filed, the judgment will be reversed, and the cause remanded for trial.
      tgu^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    ELLIOTT v. STANDARD STEEL WHEEL & TIRE ARMOR CO.
    (No. 1393.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 21, 1915.)
    1. CORPORATIONS <&wkey;6'88 — ACTIONS— SERVICE op Process — 'Validity.
    The court, on suggestion that service on a foreign corporation was not procured by service on an individual as local agent, may consider the affidavit of the individual, averring that he was not at the time of filing of the affidavit, or at the time of the bringing of the suit and service of citation on him, an officer or local agent of the corporation, and that the corporation was not engaged in business in the state.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2603-2G27; Dec. Dig. &wkey;668.]
    2. Corporations <®=o6G8 — Foreign Corporations — Service op Process — Service on Agent.
    Service of process on a foreign corporation by service on one who came into the county to sell stock and to establish a local sales agency, and whose territory was unlimited, was not good as made on a local agent within the statute authorizing service on foreign corporations by service on such agents, and, even if such person was a general agent, the service was not within the statute.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. &wkey;668.]
    3. Corporations <&wkey;6G9 — Foreign Corporations — Service op Citation — Appearance.
    The appearance of the regular attorney of a foreign corporation as amicus curise, to object to the sufficiency of service of citation on the corporation, is not an appearance for it.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2641, 2642; Dec. Dig. &wkey;G69J
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Action by D. T. Elliott against the Standard Steel Wheel & Tire Armor Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Elliott & Larsen and Burdett & Connor, all of Paris, Tex., for appellant. Moore & Hardison, of Paris, Tex., for appellee.
   LEVY, J.

Appellant instituted the suit to recover a sum of money alleged to have been obtained from him through fraudulent representations. The petition alleged that the defendant was a corporation organized and existing under the laws of the state of Arizona, and a citizen of that state, but having its principal place of business in Oakland, Cal., and also averred that defendant was doing business in the state of Texas through its duly appointed and authorized agent, 6. B. Bohan-non. Citation was accordingly issued on the 21st day of October, 1913, and served on same day by the sheriff of Lamar county upon G. B. Bohannon in person as the local agent of the defendant corporation. At an ensuing term of the court, on April 6, 1914, there was filed an affidavit of G. B. Bohannon, which is to the effect that he is not, and was not when the citation was served upon him, any officer or local agent of the defendant, and that defendant was not engaged in business in Texas. Whereupon Moore and Hardison appeared as friends of the court and suggested to the court that such affidavit was filed, showing no valid service on the defendant. The court proceeded to hear testimony, and upon the conclusion thereof made the findings of fact that the defendant was a nonresident corporation created under the laws of Arizona and doing business in California, and that at the date of the suit, and at the time of service of citation upon G. B. Bohannon, such corporation was not doing business in Texas, and that G. B. Bohannon was not in fact the local agent of the corporation. Upon the plaintiff declining to continue the case for further service, the court entered an order of dismissal of the suit. The appeal is from the ruling of the court.

The first and third assignments of error assail the findings of fact made by the court. The evidence is without dispute that the appellee is a foreign corporation, and that Bohannon was not an officer of any kind of the corporation. The affidavit of Bohannon, which the court was authorized to consider, also stated that he was not at the time of filing the affidavit,' nor at the time the suit was brought, nor at the time the citation was served upon him, a local agent of the appellee in Lamar or any other county in Texas.

And it is thought .that the court could have inferred as a matter of fact, as he did, ■from the affidavit and other circumstances, that Bohannon was not the local agent of appellee at the times mentioned. The evidence in substance showed that in March, 1913, Bohannon came to Paris, and, claiming that he was the representative of appellee, solicited the taking of capital stock of the corporation, and tried to contract a district sales agency. Appellant, it appears, agreed to the proposal, and a written contract was entered into, signed by Bohannon as agent, and forwarded to the principal office of appellee at Oakland, Cal., and the contract was in all things approved by the officers of appellee. The reply letter of appellee to appellant stated that Bohannon was the representative of appellee in making the sale and agreement. The company also received the money paid by appellant for the stock. Bohannon remained in Baris between two and three months from the date of appellant’s contract, and then left there. It was proven without dispute that Bohannon did not reside or do business in Paris or Lamar county. While in Paris, Bohannon took orders from different people, and went with appellant to solicit orders from several people. The letter from Bohannon to the appellee explains his soliciting orders as follows:

“I have agreed to spend some little time with Mr. Elliott in soliciting some wheel business, or more to add to the fact that he will represent your company.”

The orders were sent in to the company for appellant’s benefit, but they were not filled by the company, for the reason given that the company was not in a position at the time to market their proposed products. All this was before the suit and service of citation. It was next shown that in October, 1913, Bohannon was in attendance upon the federal court as a witness, and he stated to appellant that he had come from Dallas, his headquarters, and was still representing the appellee, and that “the whole world was his territory, and he would take orders anywhere,” and that he intended to come back to Paris. Bohannon was directed, it appears, by appellee, to come as a witness in the case in the federal court, and was authorized by appellee to employ counsel for them in that case. While Bohannon was in attendance as a witness upon the federal court, the citation was served upon him.. Clearly, in the facts, Bohannon was not a local agent in Lamar county, and was not an agent in any given place or territory. Even if Bohannon was a general agent for the state, he would not be such an agent as is meant by the statute. Piano & Organ Co. v. Anderson, 97 Tex. 432, 79 S. W. 516; Iron Works v. Reeves & Co., 43 Tex. Civ. App. 254, 95 S. W. 739.

The third assignment is overruled. It is not believed that the appearance of the regular attorney as amicus curite to object to sufficiency of service of citation' was in this case an appearance of the company. Railway Co. v. Moore, 32 S. W. 379; Olsen v. Insurance Co., 11 Tex. Civ. App. 371, 32 S. W. 446.

The judgment is affirmed.
      (g^jPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TODD et ux. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 1386.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 20, 1915.
    Rehearing Denied Feb. 11, 1915.)
    1. Appeal and Eeeoe <&wkey;931 — Presumptions —Conclusions op Fact and Law.
    In the absence of a showing in the record that the judge was not requested to file conclusions of fact and law, the presumption is that the court, filing conclusions of fact and law, did so because he was requested as provided
    by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1989.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. <@=3931.]
    2. Appeal and Eeeoe <&wkey;719 — Findings— Review.
    The court on appeal must treat a finding of the trial court as warranted by evidence, when not attacked as erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. &wkey;>719.]
    3. Municipal Coepoeations <&wkey;394 — Changing Geade op Land — Damages by Sub-pace WATER.
    Where the natural flow of surface water from lots was not changed by change of grade of the lots, the owner of adjacent property could not recover for damages by surface water.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 938-945; Dec. Dig. <&wkey;394.]
    4. Appeal and Eeeoe &wkey;> 719 — Conclusions Reviewable — Assignment op Eeeoes.
    Where conclusions of fact and law were filed after the close of the term, the defeated party attacking the conclusions must do so by a distinct assignment of error, as required by the statute and rules prior to 1911.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <&wkey;719.]
    Appeal from Special District Court, Bowie County; W. T. Armistead, Judge.
    Action by Chas. S. Todd and wife against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Lots 1, 2, and 3, in block 22, each fronts east 50 feet on State street in Texarkana, and extends west 140 feet to an allqy. Lot 1 is bounded on the north by Third street. Lot 2 adjoins lot 1 on the south, and lot 3 adjoins lot 2 on the south. In 1900 or 1901, one Hardin, who then owned lots 1 and 2, had same graded down to about the level of State and Third streets. In 1902, Hardin conveyed said lots 1 and 2 to F. H. Britton. In August, 1912, appellants became the owners of the north one-half of lot 3, on which a two-story brick house, fronting east 25 feet on State street and extending thence west 100 feet, was situated. After appellants became the owners of said one-half of lot 3, they leased the lower story of the house thereon to one Smith, who used same to carry on his business as a retail grocer. In January, 1913, and at times subsequent thereto, the stock of goods owned by Smith was injured by water entering the storeroom he had leased from appellants. The latter claimed that the water entered the storeroom because of the manner in which lots 1 and 2 had been graded, and, having paid to Smith a sum of money representing damages he had suffered because of the water, and having taken from him an assignment of .his claim for such damages, they brought this suit against appellee and sought to recover against it as the owner of said lots 1 and 2 at the times water entered their building the sum they had paid to Smith, sums they had expended in efforts to prevent water from entering the building, and a sum they claimed as damages suffered by them because of injury to the north wall of their building caused by water which, they alleged, had been impounded against same as a result of the manner in which said lots 1 and 2 had been graded and maintained. In their petition appellants alleged that their building was “constructed upon a foundation beneath the surface of the ground made of cement, brick, and mortar, which was substantial, durable, and sufficient foundation for a house of its size and kind,” and further alleged as follows:
    “That the defendant’s said lots numbered 1 and 2, according to their natural lay, were higher at the place where they joined the plaintiffs’ lot than they were at either end thereof or the. north side thereof. That the defendant or its vendors of said lots graded or caused to be graded its said lots prior to January 1, 1910, and so graded same that the portion of the defendant’s said lot No. 2 at and near the central portion of the wall of plaintiffs’ said building was much lower than the remainder of lot No. 2 east and west'thereof, and was much lower than any portion of lots Nos. 1 and 2, and all the water falling on lots numbered 1 and 2 was by the negligence and carelessness of defendant in permitting said lots to remain in such condition and in maintaining said lots in said condition caused to flow in a basin which was formed by the manner of grading aforesaid, and that the said basin held and retained all the water so flowing or falling into same until it was absorbed or had percolated through the adjoining foundation and wall of plaintiffs’ building, and the defendant had been prior to January 3d notified of the conditions aforesaid on their said premises, and they had also been notified by plaintiffs that, by reason of the existence of the said basin and the accumulation of water therein in times of ordinary rainfall, the plaintiffs’ building and foundation thereunder had been and would be injured, damaged, and impaired thereby, and the contents of said storeroom damaged, injured, and destroyed.
    “That heretofore, about the 3d day of January, 1913, and at sundry times thereafter, there were heavy rainfalls in Texarkana, Tex., and on the property aforesaid. That by reason of the manner of grading and the fact that de-, fendant was maintaining its lots in the condition aforesaid, large quantities of water fell upon defendant’s said lots 1 and 2, and which would have naturally flowed away from plaintiffs’ building but for the negligent manner of grading aforesaid, was on said account caused to flow into and remain in the basin formed as hereinbefore described, and the same did collect and stand near to and against the foundation and wall of the north side of plaintiffs’ said house or storeroom, and so continued to stand there. That same did undermine the foundation of plaintiffs’ said storeroom and soak through the' mortar, cracks and bricks in said foundation, and softened the ground thereunder, and washed through the lower part of the wall of said building, thereby damaging the plaintiffs’ said building in the sum of $500. That the water flowed through the wall thereof into said storeroom and damaged the goods of Paul M. Smith, the plaintiffs’ said tenant, in the full sum of $145.75.”
    The court below found as facts: (1) That E. H. Britton held the title to lots 1 and 2 in trust for appellee; (2) that lots 1, 2, and 3 originally were several feet higher than the grade line established by the city, and were cut down by their respective owners to conform to that line; (3) that lots 1 and 2 were so cut down by Hardin while he owned them, but that in grading them he did not change the natural flow of surface water thereon; (4) and that the flow of surface water on said lots 1 and 2 as graded by Hardin was toward the northwest corner of lot 1 and away from appellants’ building. Other findings of fact by said court were stated by him as follows:
    “I find that plaintiffs have a concrete floor in their building which is several inches lower than the surface of lot No. 2, and considerably lower than the surface of the west end of the south half of lot No. 3. I further find that at the back of plaintiffs’ said building there is an excavation with a concrete floor which is considerably lower than the surrounding soil. I find that after January 1 and prior to January 11, 1913, water seeped into plaintiffs’ building through the north and south walls and also ran in the back and front door of the same, and that the goods were damaged to some extent ; but I find it impossible to determine from the evidence what damage, if any, was caused by water that came through the north wall. I find .that the defendant herein had no notice that water ever came through said north wall until January 11, 1913, and after said damage had occurred. I find again in February, 1914, water ran in said building in practically the same way as in January, 1913, and some of the goods were damaged by moisture; but I find it impossible, from the evidence, to determine what damage, if any, was caused by the water that seeped through the north wall. I find from the evidence that the walls have not been damaged.”
    The court made other findings, which he designated as “conclusions of law,” as follows:
    “First. I conclude that plaintiffs have shown that the defendant is the owner of lots 1 and 2, and that it is not responsible for any of the damage for which plaintiffs sue.
    “Second. I further conclude that plaintiffs have failed to show that the surface of lots 1 and 2 has been changed so as to cause the surface water thereon to flow over the plaintiffs’ lot, or against their wall, or changed in any manner so as to constitute a nuisance. I still further conclude that no illegal use has been made of lots 1 and 2, and that if plaintiffs have been damaged in any way same is damnum absque injuria, and that plaintiffs are not entitled to recover in this suit.”
    In accordance with the findings made by him, the court rendered judgment that appellants take nothing by their suit.
    Chas. S. Todd and P. A. Turner, both of Texarkana, for appellants. Glass, Estes, King & Burford, of Texarkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The trial was by the court without a jury. It is contended by appellants that the court’s conclusions of fact and law, reduced to writing and copied into the record, should not be considered, because it is not made to appear that he was requested by either of the parties to prepare and file such conclusions. It has been held, correctly, we think, with reference to article 1989, Vernon’s Sayles’ Statutes, that:

“In the absence of a showing in the record that he was not requested to file such conclusions, the presumption will be indulged that the court filed the conclusions of fact and law because he was requested so to do.” Biggins v. Trickey, 46 Tex. Civ. App. 569, 102 S. W. 919.

In the assignments the judgment is attacked as erroneous on two grounds only, stated as follows:

“(1) Because the court erred as a matter of law in holding that the defendant is not liable because the nuisance complained of was not constructed by the defendant but by its vendor. This is error because under the law the excavation or grading made by^ defendant’s vendor constituted and was a continuing nuisance likely to cause damage to plaintiffs’ property adjoining by changing the natural flow of water from the lower on to the higher land, and constituted and was a servitude upon the land, and liability went with the ownership of the land.
“(2) Because the undisputed evidence shows that prompt notice and protest was given by plaintiffs to defendant of the injury caused to plaintiffs’ property by such nuisance, and the plaintiffs are entitled to recover at least all damages shown to have accrued after such notice, and all cost of preventing further damage.”

By referring to the statement above, it will be seen that the court found as a fact that the natural flow of surface water oh lots 1 and 2 was not changed by the grading thereof by Hardin. As this finding is not attacked as erroneous in either of the two assignments, this court must treat it as warranted by evidence heard by the trial court. Best v. Kirkendall, 107 S. W. 932; Railway Co. v. Bowles, 88 Tex. 634, 32 S. W. 880; Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946; Carrera v. Dibrell, 42 Tex. Civ. App. 99, 95 S. W. 628; Faubion v. Western Union Tel. Co., 36 Tex. Civ. App. 98, 81 S. W. 56; Deutschmann v. Ryan (Mo.App.) 148 S. W. 1140. In the case first cited above the court said:

“The findings of fact by the court have the same force, and are entitled to the same -weight, as the verdict of a 'jury. This court is authorized to overrule them only when they are without any evidence to support them, or when they are so against'the great weight and preponderance of the evidence as to be manifestly wrong. It is not claimed in the assignment of error that the finding of fact of .the court referred to is subject to either of these objections. It does not present any such question. We cannot say that it was intended to do so, and we cannot so consider it.”

If the natural flow of the surface water was not changed by the grading of said lots 1 and 2, then, obviously, the judgment is not erroneous; for appellants would have no right to complain if the damage suffered was due to surface water flowing from said lots as it flowed before they were graded.

It appears from the record that the motion for a new trial in the court below constitutes the assignments of error relied upon here. It further appears that the term of court at which the trial was had ended eight days before the conclusions of fact and law were filed. If it should be contended that appellants therefore could not, in their motion for a new trial acted upon before the conclusions were filed, have attacked as erroneous the specific finding referred to, the answer is that “in such a case,” using the language of the court in Overton v. Colored Knights of Pythias, 163 S. W. 1054, “there should be a distinct assignment of error as to this matter filed with the clerk of .the trial court, as required by the statute and rules prior to 1911.”

The judgment is affirmed.
      <Su=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    HOUSTON, E. & W. T. RY. CO. v. CAVANAUGH.
    (No. 6733.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 19, 1915.
    Rehearing Denied Feb. 4, 1915.)
    1. Evidence <&wkey;>544 — Experts—Competency— PRELIMINARY EVIDENCE.
    Testimony of a witness, showing his long-continued familiarity with and experience in the use and effect of dynamite as an explosive, held to qualify him to testify as an expert as to the effect of exploding dynamite on a human body.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dec. Dig. <&wkey;>544.]
    2. Evidence &wkey;>570 ■ — Expert Testimony — Weight.
    The weight of the testimony of an expert is for the court on a trial without a jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. <S=»570.]
    3. Appeal and Error <&wkey;1050 — Harmless Error — Admission op Evidence.
    Any error in admission of testimony is harmless, other witnesses having, without objection, given similar testimony.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §| 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;5l050.]
    4. Appeal and Error <&wkey;690 — Becord—Be-view.
    The record not affirmatively showing articles were admitted, an assignment of error to their admission must be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. &wkey;690J
    5. Appeal and Error <&wkey;>204 — Objections in Lower Court — Evidence.
    Admission of evidence having been without' objection, error cannot be predicated thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. &wkey;204.]
    6. Appeal and Error <&wkey;501 — Bill op Ex-ceptio ns — Evidence .
    Exception to admission of evidence need not be preserved by bill of exceptions, but by provision of Bev. St. 1911, art. 2060, may be reserved and noted in the statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. &wkey; 501.]
    7. Appeal and Error <&wkey;501 — Statement op Facts — Dispensing with Bill op Exceptions.
    One relying on the right under Bev. St. 1911, art. 2060, to have his objections and exceptions noted in the statement of facts, thus dispensing with bills of exceptions, must present the grounds of his objections clearly, so that the appellate court will not be left in doubt as to which one of numerous objections and exceptions is presented for review, or required to search a mass of statements of facts to ascertain what objection was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. &wkey;501.]
    8. Municipal Corporations <&wkey;122 — Ordinances — Adoption—Evidence.
    Whether a city council adopted an ordinance is a question of fact, and to show that it was passed, it may, if necessary, be shown a mistake in the minutes was made, by reciting' that it was adopted as a chapter instead of a title.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. <&wkey;>122J
    9. Explosives <§^S — Personal Injury — Concurrent Proximate Cause.
    Defendant’s negligence per se, in keeping dynamite in quantity in its warehouse, in violation of an ordinance, was a concurrent proximate cause of plaintiff’s injury from explosion thereof, rendering- it liable whether its servant who caused the explosion was at the time performing any service for it, or negligently or intentionally caused it.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8.]
    10. Explosives &wkey;>8 — Illegal Keeping — Liability.
    A holding that the keeping by a railroad company for over two days from 200 to 400 pounds of dynamite in the warehouse in its depot, in the center qf the town, in close proximity to business houses and dwellings, constitute!! a public nuisance, rendering it liable for injury to one in an office in the vicinity from explosion of the dynamite, without regard to its care in keeping it, would be justified, did not under an ordinance render its keeping the dynamite negligence per se.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Action by M. D. Cavanaugh against the Houston, East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker. & Garwood and John T. Garrison, all of Houston, for appellant. IC W. Denman, of Lufkin, and Woods, Harris & King, of Houston, for appellee.
   McMEANS, J.

This suit was brought by M. D. Cavanaugh against the Houston, East & West Texas Railway Company to recover damages for personal injuries sustained by him by reason of an explosion of dynamite in the depot of defendant in the city of Lufkin. Plaintiff alleged, in substance, that ho was an employs of the Wells Fargo & Company’s Express, whose office was situated about 150 or 200 feet from the defendant’s depot; that on the night of March 2, 1913, while in the performance of his duties in the office of the express company, -a large quantity of dynamite in defendant’s said depot exploded; and that the force of the explosion threw him to the floor and caused the injuries for which he sued. The grounds of negligence upon which a recovery was predicated were alleged to be: (1) The storing by defendant in its said depot at and before the time of the explosion more than 25 pounds of dynamite and more than 50 gallons of gasoline, in violation of an ordinance of the city of Lufkin; (2) in maintaining a nuisance as at common law by keeping and permitting to be kept and stored great quantities of dynamite and gasoline in its depot in the center of the town of Lufkin, where hundreds of people congregated daily for thp purpose of taking passage upon appellant’s trains and transacting business with appellant, delivering and receiving freight, and at a point in a central place in said city around which and within a few hundred feet of which numerous residences and business houses were occupied by numbers of people; (3) that appellant, having at the time of the explosion great quantities of dynamite and gasoline in its warehouse, negligently permitted the gasoline containers to become and remain in a leaky condition, and the warehouse to collect the gases and vapors arising from the escaped gasoline, and while in such condition permitted its employs, George Frank Parsons, to enter said warehouse in the discharge of his duties to plaintiff, or for the performance of work for himself, and who while there stepped upon or struck a match, igniting the gases arising from the escaped gasoline, causing the dynamite to explode. Other grounds of negligence were alleged which we deem not necessary to be stated. Defendant answered denying each ground of negligence charged, but admitting the explosion of dynamite. It further denied that its employs George Frank Parsons was performing any service for it at the time he entered its warehouse immediately preceding the explosion, and charged that the dynamite was exploded intentionally by its said employs. A trial by the court without a jury resulted in a judgment for plaintiff for $7,500, from which the defendant has appealed.

The evidence shows that defendant’s depot and warehouse were in the same building, and were within the corporate limits of the city of Lufkin, and near many dwellings and business houses; that a great many people visited the depot for the purpose of taking passage upon trains and for the transaction of other business with defendant; that on the afternoon of February 28, 1913, a large quantity of dynamite had been unloaded by defendant from its cars into its warehouse. On March 1, 1913, about 1,000 pounds of this dynamite was removed, by the consignor, but there still remained about 200 or 400 pounds. On Sunday night, March 2, 1913, about 10 o’clock, the dynamite remaining in the warehouse exploded, and by reason thereof plaintiff, who was at work in tlie express office near the warehouse, received physical injuries, and was damaged in the amount of the judgment.

The city of Lufkin was duly incorporated under the general law. At and before the time of the explosion, there was in force in said city an ordinance prohibiting any person or corporation from keeping within the city limits in any store, house, shop, or building, more than 25 pounds of dynamite or more than 50 gallons of gasoline. It was shown that on Saturday, the day before the explosion, there were in defendant’s warehouse, and situated about three or four feet from the dynamite, about three or four barrels of gasoline, and the gasoline was leaking to such an extent as to wet the floor “around there.” One George Frank Parsons was in the employment of defendant as a warehouseman at Lufkin; his duties being to receive and deliver freight, and his activities being largely confined to work in the warehouse. His desk was situated some six or eight feet from the dynamite. His office hours were from 8 o’clock in the morning to 5:30 o’clock in the afternoon, but he not infrequently worked at his desk in the warehouse at night. He was permitted by defendant to carry a key to the warehouse and could admit himself at any hour. On Sunday, March 2, 1913, the warehouse remained closed all day. In the early evening of that day, Parsons went to the depot and did some work at his desk, then left, and in company with his sister and a friend went to church, and, after the services were over, accompanied his sister and friend to the house of his stepmother, where lie also resided, and, with the statement that he had some unfinished work to do at the depot, bade them good night and left the house. About 10 o’clock that night, he went into the telegraph office in the depot, and invited the operator to go with him to a restaurant, about 150 feet distant, to get lunch, and both started to the,restaurant; but, before reaching it, Parsons told the operator to go ahead and order for both, that he had to go back to the warehouse to attend to some unfinished business that had to be attended to right away, and that he would join the operator at the restaurant when he had finished. They were then about 70 feet from the depot. After this conversation, Parsons went back toward the warehouse, and when the operator last saw him he was going into the bag-gageroom, and about four minutes later the explosion occurred. The explosion set fire to the building, and the end in which the warehouse was situated was partly destroyed. Parsons’ body was not found in the warehouse nor anywhere in the vicinity. Some pieces of bones that were identified as bones of a human skull, covered with what was thought by chemists to be human blood, and to which were attached hairs identified as human hairs, were found a short distance from the warehouse, and also a bunch of keys, which were identified as belonging to Par» sons, was found in the same locality.

Defendant strongly contended on the trial that Parsons intentionally exploded the dynamite, and that he escaped uninjured. To prove this, it introduced in evidence the deposition of two witnesses, sisters, the oldest being 15 years of age, who live at Bisbee, Ariz., and who formerly lived in Lufkin, and who testified that they knew Parsons well, and both testified that they saw Parsons in Bisbee at a date subsequent to the explosion. It was also shown that a certain interline ticket, No. 544, was missing from the ticket files of the Lufkin office of defendant; that this ticket was used from Houston to El Paso, and was taken up by a conductor after leaving El Paso, and the party holding same was given an exchange slip which gave him the right to ride to California; that this exchange slip was never turned in; and that the coupon entitling the holder to transportation from Lufkin to Houston was never used. Norman Stokes, 18 years of age, testified for defendant that the bones found near the warehouse, and' which were indentified as pieces of bones of a human skull, were placed there by him after the explosion; that he got the bones at a slaughterhouse near town; and that he placed them there to see whether the doctors could tell the difference between beef bones and human bones. It was also shown that a short time before the explosion Parsons had taken out several policies of insurance upon his life, in which his stepmother, Mrs. Lena Parsons, was named as beneficiary.

On the trial the witness Moore was asked the following question:

“Now, Mr. Moore, I will ask you from your experience in the handling of dynamite, and the explosion of dynamite, and its effect, and all about it, as you have stated from your experience with it and its use, if there had been a man in the freight depot, within a few feet of this 400 pounds of dynamite, or 200 pounds, whichever it was, at the time it exploded, what effect would that explosion have had upon the man within a few feet of it?”

This question was objected to on the ground that the witness had not shown his qualification to testify as an expert as to the effect of exploding dynamite upon the human body. The objection being overruled, the witness answered, in substance, that a man, or any living substance, would have been blown all to pieces. To the admission of this testimony defendant duly preserved a bill of exceptions and presents the question to us by its first assignment of error.

We are of the opinion that the assignment should be overruled. Before the question was put to the witness, he had testified substantially as follows:

“I. have used dynamite a great deal, and would say that I guess I have been using it ever since they commenced making it. I have used it all of the time in connection with the railroad construction work. I have been using it for about 30 years, and maybe some time longer than that. I have been using it in this construction work for the purpose of blowing rocks and blowing stumps out of the ground, and such as that, during all of the time that I have used it. I think that I am acquainted with the effect of dynamite as an explosive. I have used it constantly for the tíme I said, and have never been engaged in anything else at all during that entire time. I know that you can take a stump, say,' four or five feet through, and blow it out of the ground with 15 or 20 pounds of dynamite. I have also seen the effect of dynamite upon the human body — a person. . I have seen two persons killed by dynamite.’ These two persons that were killed were working for me at the time. I do not remember, now, just exactly how much dynamite exploded at the time these two persons were killed; but I think about 25 or 30 sticks, and I know not over 40 sticks. These were one-pound sticks I am speaking about. This happened while I was at work building on the Santa Fé tracks from Cleveland over to another place. The dynamite exploded and the Mexicans were dead there. Two of them were dead, and one of them was blown across the right of way, and the other one about 20 feet therefrom.”

We think this testimony, showing as it does such long-continued familiarity with and experience in the use and effect of dynamite as an explosive, qualified the witness to testify as an expert. The weight of his testimony was for the court. The assignment is overruled, as is also the fourth assignment, which complains of the admission' of similar testimony of the witness Jour-dan, who the evidence, we think, shows was also qualified to testify as an expert.

Appellant’s second assignment is as follows :

“The court erred in permitting the witness Gus Strouble to testify, over the objection of the defendant, that George Frank Parsons, on the night of March 2, 1913, after he and his sister and the witness had returned from church, told him when he left his mother’s house that he was going back to the depot to do some work, for the reason that the same is hearsay and inadmissible.”

It is not necessary for us to determine whether the testimony was admissible in view of the fact that other witnesses .testified to similar declarations upon the part of Parsons, without objection, and therefore, if the testimony was not admissible over the objection urged, the error in admitting it was harmless.

The third assignment complains of the action of the court in permitting plaintiff to introduce in evidence, over the defendant’s objection, the bones claimed to have been found near the warehouse, and the testimony of Dr. Terrell to the effect that the blood on the bones was human blood. It does not affirmatively appear from the record that the bones mentioned in the assignment were in fact introduced in evidence, but it does appear that the testimony of Dr. Terrell, as to his examination of the bones, was admitted without objection. The assignment is overruled.

On the trial the plaintiff introduced in evidence the following ordinance of the city of Lufkin, which was in force before and at the time of the explosion:

“Ordinance. (Art. 101.) It shall be unlawful for any person, persons, or corporation, within the corporation limits of the city, to keep on hand, for sale or otherwise, in any house, store,shop or building, more than twenty-five pounds, in all, of gun or blasting powder, dynamite, nitroglycerine or other high explosives, or more than one hundred gallons, in all, of kerosene or other illuminating oils, or more than fifty gallons, in all, of turpentine, oil of vitriol, gasoline, naphtha, or other oils or liquids of a combustible nature.”

By its fifth assignment defendant complains of the action of the court in admitting this ordinance in evidence over its objection. Under this assignment it presents the following proposition:

“Appellee, plaintiff below, sought to hold defendant company liable for keeping in its depot dynamite in excess of 25 pounds, alleging that it was in violation of a certain city ordinance duly enacted by the city of Lufkin. Before this ordinance could be introduced, it was incumbent upon plaintiff to show that said ordinance had been legally enacted as required by statute, and, the plaintiff having failed to show that said ordinance was legally enacted and in force and effect at the time of the explosion, the same was immaterial and prejudicial to the rights of the defendant.”

The exception to the action of the court in admitting the ordinance in evidence was not preserved by a bill signed by the judge and filed by the clerk, but was reserved and noted in the statement of facts, which is permissible. R. S. art. 2060. While plaintiff was attempting to lay the proper predicate for the introduction of the ordinance, quite a number of witnesses were examined touching the manner and regularity of its adoption by the city council. They were examined, cross-examined, re-examined and recrossed, and their testimony, together with the numerous objections made by both' parties, cover about 20 printed pages of appellant’s brief. We have counted 16 objections urged by the defendant to various parts of the testimony of the several witnesses, and 6 made by the plaintiff. At one point it appears that the defendant itself introduced the ordinance, but later on it seems to be insisted that it was not introduced as evidence in the case but for some other purpose. During the course of the colloquy, all of the ordinances of the city of Lufkin seem to have been introduced by plaintiff and quite a number of them by defendant. As presented, the mind of this court is left in utter and hopeless confusion as to what objection of defendant to the introduction of the ordinance the court overruled, or which one of the many exceptions, is relied upon. Parties have the right to have their objections and exceptions noted in the statement of facts, and thus dispense with the necessity of preparing bills and having the same signed by the judge and filed with the clerk; but, when they rely upon this right, it is incumbent upon them to present the grounds of their objection clearly, so that the appellate courts will not be left to conjecture as to which one of a great number of objections and exceptions is presented to it for review, or to wade through a mass of statement of facts to ascertain what objection was made. Because the statement following the proposition is, for the reason stated, wholly insufficient, we decline to consider the assignment.

It appears that some time prior to the explosion the city council of the city of Lufkin appointed a committee to revise and codify the ordinances of the city. This committee made their reports from time to time, accompanied by the ordinances which it had revised and codified, and the city council would in a proper manner adopt the revised ordinances thus presented, placing each ordinance under a separate title, beginning with title 1 and running past title 15. Each title consisted of one or more chapters. Title .15, containing fire regulations, also contained the ordinance prohibiting the storing of dynamite in the city in greater quantity than 25 pounds. The witness Humason, who at the time was city secretary, produced the minute book of the proceedings of the council, in which there was recorded the action of the city council in adopting chapter 15. This witness was permitted by the court, over the objection of the defendant, to testify that the city council in fact duly adopted title 15, but that in writing this proceeding in the minutes he erroneously, and by mistake, wrote it that the council had adopted chapter 15. The objection urged was that parol testimony of the witness, to the effect that the city council had adopted the ordinance as title 15, was not admissible to contradict the recital in the minutes that chapter 15 was adopted.

We think that whether the city council had adopted the ordinance was a question of fact, and, if the ordinance was in fact passed, that fact could be shown, even if it was necessary, in order to do so, to show that a mistake in the minutes had been made by reciting that the ordinance was adopted as chapter 15 instead of title 15.

Under the seventh assignment of error, the appellant presents the following proposition:

“The plaintiff having alleged as a ground of negligence against the defendant that dynamite was exploded by reason of its employé George Frank Parsons striking or stepping on a match which caused the gas or gasoline to explode, ■causing the dynamite to explode, resulting in injury to the plaintiff, and the undisputed facts showed that if the dynamite was exploded by George Frank Parsons, either by striking a match or stepping on a match, or otherwise, that said George Frank Parsons was not at the time performing any services in behalf of the appellant, the defendant below, nor was he in the discharge of any of the duties in behalf of the appellant, defendant below, and that the explosion of the dynamite by George Frank Parsons -while not in the discharge or performance of any duties that he owed to appellant would not make appellant liable, regardless o,f whether the dynamite was exploded intentionally or otherwise.”

The substance of this proposition is that if Parsons caused the explosion of the dynamite, either intentionally or accidentally, while not in the discharge of any duty he owed appellant under his employment, the appellant would not be liable to plaintiff for the injuries resulting from the explosion. This proposition presents a question of law and does not call for a review of the facts. The court did not file its findings of facts, and we cannot say, therefore, whether its judgment was based upon the view that Parsons caused the explosion intentionally, or that he did so by accident. That Parsons caused the explosion does not seem to be controverted. The testimony in the record is sufficient to base a finding in favor of plaintiff upon either of these theories. We shall assume, in support of the judgment, however, that the court found that Parsons unintentionally caused the explosion. If he did, we think that, under the facts proved, the appellant was liable for the injuries to plaintiff caused by the explosion. We have seen that an ordinance of the city of Lufkin prohibited the storing of such a large quantity of dynamite in any house within the corporate limits. .The act of appellant in storing and keeping the dynamite in its warehouse was in direct disobedience of the ordinance, and thus was negligence as a matter of law. Railway v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 148, and authorities cited; Railway v. Calvert, 32 S. W. 248; Railway v. Pendery, 14 Tex. Civ. App. 60, 36 S. W. 794; Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 230. If Parsons negligently caused the explosion, the negligence of the appellant in storing the dynamite in its warehouse concurring with the negligence of Parsons was unquestionably the proximate cause of plaintiff’s injuries, and appellant is liable therefor. But we may go even further. It being shown that the keeping of the dynamite in the warehouse was negligence per se, we cannot see why the appellant would not be liable even if Parsons intentionally caused the explosion; for, whether the explosion was due to accident or was intentionally caused, the keeping of the dynamite at a place prohibited by ordinance was a concurring proximate cause of plaintiff’s injuries, for which appellant is liable.

In Gonzales v. Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17, the plaintiff was injured by the falling of lumber which the city had unlawfully permitted to be piled and remain in a public street. The lumber was caused to fall by a drayman running his dray, loaded with lumber, against the lumber pile. It was contended that, even if it was negligence on the part of the city’ to allow the lumber to remain upon the street, such negligence was not the proximate cause of the injury, but that the proximate cause was the act of the dray load of lumber being driven against the pile. In deciding the case, the court uses this' language:

“It is true, if the drayman had not run his-load against the lumber, the accident would not have occurred, and, on the other hand, if the lumber had not been in the street, it would not have occurred. Dispense with either of these facts, and there would have been no injury. The liability cannot be tested in this manner, nor by comparing the negligence of the two, if both were guilty of negligence. If the presence of the lumber pile in the street was at the time chargeable to the negligence of the city, and such negligence, together with the act of the dray-man, caused the injury, it would be in part the proximate- cause.”

In Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653, the plaintiff was injured by an explosion of gas which had accumulated in his cellar, alleged to have escaped from one of defendant’s service pipes in the street. In the concluding portion of the opinion, we find this language:

“It is further contended that, although the defendant may have negligently permitted the gas to escape from its main into the plaintiff’s cellar, that negligence was not the proximate cause of the explosion, and that if George Walters, and not its servant sent to examine the premise, lighted the match it is not responsible. Under the facts of this case, it is immaterial whether Walters or Householder, the defendant’s servant, struck the match. The concurrence of the presence of the gas and the lighting of the match, the negligence of the defendant with that of Walters, was necessary to and did cause the explosion. In such cases, the injured party has his redress against either of the wrongdoers, or both, at his election.”

Even if the ordinance had not existed, we think the court would have been justified in holding that the keeping by appellant, for such a length of time as shown by the evidence, of such a large quantity of dynamite in its warehouse, situated near the center of the town in such close proximity to business houses and dwellings, and as a part of its depot which was much frequented, constituted a public nuisance, the mere existence of which rendered appellant liable for damages resulting from an explosion, without regard to the degree of care exercised in keeping it. Railway v. Beauchamp, 95 Tex. 496, 68 S. W. 502, 58 L. R. A. 716, 93 Am. St. Rep. 864. In Schintzer v. Powder Mfg. Co. (Mo. App.) 160 S. W. 286, the reason given for the rule is this:

“If damage happen to a person from explosion, the injured party is entitled to compensation witbont proving negligence on the part of the defendant. He is injured by that which breaks the law made for his protection — the law against public nuisance. He is in no fault, while the other man is, and he has received damage from that other man’s wrongful act. He has a right to immunity from this injury, and the other man owed him the duty of securing him immunity. The state is wronged by the maintenance of a nuisance which may at any moment take the lives and destroy the property of its people passing and repassing over its highways, and reposing and working in their accustomed places, and the particular person hurt has special cause of complaint, because he is especially injured.”

In French v. Powder Mfg. Co., 173 Mo. App. 220, 158 S. W. 723, it is held, in effect, that one who stores on his premises a large quantity of nitroglycerine thereby creates a nuisance per se so far as it affects those in the zone of danger from an explosion, regardless of the degree of care exercised by him, and, where an explosion occurs and injury results to another having no contractual relations with him, he is liable for the damages naturally resulting therefrom. The following authorities are to the same general effect as the cases above referred to. Glycerine Co. v. Manufacturing Co., 60 Ohio St. 560, 54 N. E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740; Rudder v. Koopman, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489; 29 Cyc. 1161.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.
      d&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KAINEY, O. J.

text:
    WHITE v. BEDELL et al.
    (No. 7242.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 16, 1915.
    Rehearing Denied Feb. 13, 1915.)
    1. Judgment <@=475 — Pinal Judgment — COLLATERAL ATTACK.
    Pinal judgments, including a final judgment of the county court rendered in matters within its probate jurisdiction, can only be directly attacked by-a proceeding instituted for that purpose, and set aside only for want of jurisdiction or for mistake or fraud in their rendition ; otherwise remaining valid and not subject to collateral attack in another proceeding..
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 910; Dee. Dig. <@=>475.]
    2. Guakotan and Ward <§=>105 — Confirmation oe Guardian’s Sale — Vacation—Collateral Attack.
    Where the probate court of H. county authorized guardian to sell certain land of Ms minor ward at private sale and confirmed the sale, reciting that it was fairly made, the same court, on application for the guardian’s removal and the appointment of petitioner and for judgment against the guardian for misappropriation of the ward’s money, without service on the guardian or upon his sureties, had no jurisdiction to reopen or set aside the sale and render judgment against the guardian and his sureties for his gross negligence in selling for less than actual value.
    [Ed. Note. — Por other oases, see Guardian and Ward, Cent. Dig. §§ 383-389; Dec. Dig. <©=> 105.]
    3. Guardian and Ward <@=>182 — Guardian’s Bond — Liability of Sureties —Jurisdiction.
    In such case, the probate court had no jurisdiction to decree an indebtedness against the sureties on the guardian’s bond, since it had no jurisdiction as to them.
    [Ed. Note. — Por other oases, see Guardian and Ward, Cent. Dig. §§ 423, 623-636, 638-652, 654-663; Dec. Dig. <@=>182.]
    Appeal from District Court, Hill County; I-Iorton B. Porter, Judge.
    Action by Mrs. M. J. White, as guardian of' the estate of Lucile Spinks, a minor, against A. E. Bedell and others. Judgment for plaintiff, and she. appeals.
    Affirmed.

      Morrow & Morrow, of Hillsboro, for appellant. T. H. Jackson and P. E. McKee, both of Hillsboro, for appellees.
   KAINEY, O. J.

Statement of the case taken from the brief of appellee, to wit:

“This suit was instituted by Mrs. M. J. White, as guardian of the estate of Lucile Spinks, a minor, against A. E. Bedell, a former guardian of said estate, and the American Surety Company of New York, surety on Bedell’s bonds as such guardian, to recover the aggregate sum of $2,017.35, with interest as specified in the petition. Plaintiff in her first amended original petition, upon which the case was tried in the court below, makes, substantially, the following allegations: That A. E. Bedell was duly appointed by the county (probate) court of Hill county, Tex., guardian of the estate of Lucile Spinks, and duly qualified as such with the defendant surety company surety on his bond as guardian. That, while guardian of the estate of said minor, said Be-dell, on the following dates, collected the following sums of money on account of said estate and appropriated the same to his own use: On the 8th day of January, 1910, the sum of $053.90; on the 9th day of January, 1911, the sum of $364; and on the 9th day of January, 1912, the sum of $343.20. She also alleged that these items had been adjudged as liabilities against said Bedell and his surety by the probate court of Hill county, Tex., in a decree therein rendered on the 9th day of May, 1913, and that in such decree the probate court had also found that the said Bedell, as guardian, had, under the orders of said court, sold a tract of land belonging to the estate of said minor, consisting of 43% acres, at a price of $45 per acre, when said land was in fact worth $60 per acre; that said guardian knew that said land was worth $60 per acre; that in selling at the price he did he was grossly negligent; and that he and his surety were therefore liable to said estate in the sum of $656.25, being the difference between the value of the land at $60 per acre and the amount it actually brought at $45 per acre. The defendant surety company admitted that on the 8th day of January, 1910, A. E. Bedell, as such guardian, under the orders of the probate court of Hill county, Tex., sold to J. E. and T. I. Edens 43% acres of land in Hill county, Tex., for a consideration of $653.90 cash, and five notes of the' purchasers, secured by vendor's lien on the land, each in the principal sum of $260, due, respectively, January 9, 1911, 1912, 1913, 1914, and 1915, with interest at the rate of S per cent, per annum, payable annually, and that on the Sth day of January, 1910, he collected the cash payment of $653.90; that on the 9th day of January, 1911, he collected the sum of $364, the amount of the first note and annual interest on the others; and that on the 9th day of January, 1912, he collected the sum of $343.20, the amount of the second note and annual interest on those still outstanding. It was also admitted that said guardian accounted to the estate of his ward for none of these amounts.
“The defendant surety company .contended, however, that neither it nor Bedell were liable to the estate of the minor for the item of $656.-25, the difference between the alleged value of the land and what it actually sold for under the orders of the probate court, because: First. The sale was regularly made under a valid order of sale rendered by the probate court of Hill county, Tex., having jurisdiction of the parties and the matter. That the sale was duly reported to the probate court showing the exact terms upon which it was made, and the same as shown above, and that the sale was only consummated after the probate court had duly considered the report of sale and had duly confirmed it by an order of record on the minutes of said court, and that such order of confirmation, dated January 11, 1910, has never been attacked nor set aside. That the order of the court relied upon by plaintiff, being rendered upon the application of M. J. White for the removal of Bedell as guardian and the appointment of herself in his stead and in which no assault was made upon the order of confirmation nor fraud practiced upon the court alleged, was, in so far as it attempted to fix any liability against the guardian and his surety, wholly void and of no effect. Second. That portion of the decree rendered by the probate court of Hill county on the 9th day of May, 1913, attempting to adjudge against the guardian and the surety on his bond any liability in favor of said estate, was wholly void and of no effect whatever, because said decree was rendered upon the application of Mrs. M. J. White, filed on the 8th day of May, 1913, the day before the rendition of said decree, in which she suggested the removal of the guardian from the state of Texas, and alleged that he had misappropriated funds belonging to the estate, and on these grounds sought his removal and her appointment in his stead, and the only matters that the probate court in this proceeding had the power to determine was whether or not Bedell had removed from the state of Texas, and whether or not Mrs. White should be appointed guardian in his stead.
“The trial court rendered judgment for the aggregate amount of the sums of money admitted to have been collected and appropriated by Bedell, but denied plaintiff any recovery on account of the alleged difference between the actual value of the land sold and the amount received therefor.”

The appeal is taken by plaintiff White from the action of the court in not rendering judgment for the further sum of $656.25, and interest, being the. difference between the real value of the land and what it was sold for by Bedell.

The facts, about which there is no dispute, are, in effect, that Bedell was appointed b5r the probate court of Hill county guardian of the estate of Lucile Spinks, minor, and ho duly qualified as such. On January 7, 1910, the probate court entered an order authorizing said Bedell to sell the land of said minor at private sale, which sale was made on the 8th day of said month, and report made to the said court, which report was, on the 11th day of said month, duly approved by an order entered upon the minutes of said court, which recites that:

“From said report of sale and from the evidence * * * the price for which said tract of land was sold is a fair and adequate price for the same, and that the sale of said tract of land was in all respects fairly made and in conformity with law and with the orders of this court, and that it is to the interest of said estate for sale to be confirmed.”

It was therefore decreed “that said sale be and hereby is in all respects approved and confirmed by the court,” and conveyance ordered made to the purchaser. On May 8, 1913, Mrs. M. J. White, appellant, who is .an aunt of Lucile Spinks, filed with the probate court an application for the removal of Be-dell as guardian, and praying that she be appointed such, and alleging, in effect, that Bedell had left the state and his residence unknown, but was informed he was in South America; that he had sold the ward’s land by order of the court, had received part cash and balance in promissory notes in payment of same, which notes had since been collected; and that he had not turned over any thereof to, nor paid it out for the benefit of, said minor, but had appropriated it to his own use. She further alleged other moneys collected and misappropriated, the exact amount not known. She prayed that the amount due by said Bedell be determined, that he be removed, and that she be appointed guardian of said minor.

On the next day, May 9, 1913, the court heard the application of Mrs. White and entered a decree removing Bedell as guardian, and appointing Mrs. White, and reciting:

“And it appearing to the court that the said A. E. Bedell has removed from the state of Texas, and from the United States, and that his exact residence and address is unknown, and it further appearing to'the court that the said A. E. Bedell has misapplied property belonging to the estate of said minor, Lucile Spinks, and has been guilty of gross mismanagement in the performance of his duties as guardian, it is hereby ordered, adjudged, and decreed by the court that the said A. E. Bedell, guardian, be and hé is hereby removed fx-om the guardianship of the estate of said Lucile Spinks, and he is no longer further authorized to perform any duties as such guardian, and he is hereby required to surrender his letters of guardianship, and he is also further required to deliver the estate of the said Lucile Spinks now in his hands to M. J. White, or her successor, upon her or their qualification as guardian of said estate.”

Then, after decreeing Bedell to be indebted to the ward, it further decrees:

“And it further appearing to the court that at the said time said land was worth a great deal more than $45 per acre, and was worth the sum of, to wit, $60 per acre, and the action of A.. E. Bedell as guardian in contracting to sell said land at said sum of $45 per acre was grossly negligent, and that the sale of the same at said sum was knowingly made in disregard of his duties as guardian, and that by reason of thq above facts, and all the facts adduced upon this hearing, it is the order and finding of the court that the said A. E. Bedell is indebted to the said estate of Lucile Spinks, minor, in the sum of $650.25, together with 6 per cent, interest thereon from the said 9th day of January, 1910, being a difference between what said land sold for, and what the same was reasonably worth and should have sold for. It is further the judgment and decree of the court that the surety for said A. E. Bedell is indebted as such surety to the said estate in the above-named amounts upon its bonds, the first of date May 24, 1904, and the second of date October 11, 1904, which are both now valid and subsisting obligations. And it further appearing to the court that M. J. White, of Kaufman county, Tex., has made application to be appointed guardian of the estate of Lucile Spinks, and it appearing that she is a proper person, and it further appearing that she has been selected by the said Lucile Spinks as her guardian, and it further appearing that the said Lucile Spinks is more than 14 years of age, it is hereby ordered, adjudged, and decreed by the court that the said M. J. White be and she is hereby appointed guardian of the estate of .Lucile Spinks, minor, upon her filing an inventory and appraisement, and a bond in the sum of double the appraised value of the estate, conditioned as required by law, and upon her complying with the provisions of the law.”

It was shown that the American Surety Company was surety on Bedell’s guardian bond.

The only assignment presented' is:

“Because the court erred in failing to enter judgment in favor of plaintiff on the item of $656.25 with interest from the 9th day of January, 1910, it appearing from the evidence that the county court of Hill county sitting in probate on the 9th day of May, 1913, after the removal of A. E. Bedell, guardian of the minor, Lucile Spinks, judicially determined that said guardian, A. E. Bedell, was indebted to the said minor, Lucile Spinks, for the said sum of $656.-25 with 6 per cent, interest from the 9th day of January, 1910, and that said court had entered its decree and judgment establishing said item as due by said guardian and the sureties on his bond, it further appearing that the American Surety Company was the surety upon said bond of A. E. Bedell as guardian, and that, after the removal of said A. E. Bedell as guardian, the plaintiff, M. J. White, was duly appointed and qualified as the guardian of said minor.”

The proposition submitted under this assignment is:

“The judgment of the county court sitting in probate in a collateral proceeding in another court must be given absolute verity, unless on its face it appears that the county court had no jurisdiction when the judgment was rendered.”

We concede that the county court is given general jurisdiction over probate matters, and its final judgments, when rendered in matters within that jurisdiction, cannot be collaterally attacked. This is but stating the rule that applies to final judgments rendered by all courts of general jurisdiction over the matter decided. Final judgments can only be directly attacked by a proceeding instituted for that purpose, and can be set aside only for want of jurisdiction or for mistake, or fraud in their rendition; otherwise they remain valid and are not subject to collateral attack in another proceeding.

But did the probate court of Hill county have jurisdiction of the matter here in controversy in the proceeding it had on the 9th day of May, 1913, under thq circumstances then existing, which rendered it not open to a collateral attack? The records of the probate court of Hill county in the guardianship of Lucile Spinks, minor, show that on January. 7, 1910, by an order duly entered, Bedell, guardian, was authorized to sell certain land of the ward, at private sale; that it was sold on January 8, 1910, which sale was reported to the court, and on the 11th day of said month said sale was duly confirmed, the. court reciting in its judgment that said'sale was fairly made. Over three years afterwards, to wit, on May 8, 1913, Mrs. White filed in said court an application for Bedell’s removal as guardian, and that she be appointed in his stead, and that judgment be rendered against Bedell for the money he had misappropriated of the ward’s. On the next day, the court heard the case and rendered the judgment relied on by appellant for a recovery in this case. The judgment recites that Bedell was beyond the confines of the United States, which necessarily shows that no kind of service whatever was attempted to be served on Bedell or his sureties, and the judgment was ren-' dered against him and his sureties for his gross negligence in failing to receive more for the land than he did, in the sum of $656.-25, beside what he had received and had not accounted for as such guardian. There was no charge in Mrs. White’s application that Bedell had sold the land for less than its value, nor was there any charge that in any way attacks the former judgment confirming the sale of the land. We therefore take it that the court in rendering the judgment acted on its initiative, which he had no power to do, at a succeeding term of the court. Davis v. Stewart, 4 Tex. 223. In rendering the judgment in January, 1910, the court adjudicated the issue of fairness in making the sale on the part of Bedell, and that question was settled and binding on all parties at the end of the term at which it was rendered, and the court had no power to reopen it, unless upon a direct attack for that purpose. The order of May 9, 1913, was not rendered in a direct proceeding attacking the order confirming the sale of the land, and, the order showing upon its face that it was not such, it did not supersede the judgment of 1910 on which Bedell and his sureties had the right to rely. Murchison v. White, 54 Tex. 78; Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325.

The order of May 9, 1913, also decreed an indebtedness against the sureties on Bedell’s bond. This action of the court is at least void as to said sureties, the probate court having no jurisdiction of them. Timmins v. Bonner, 58 Tex. 554.

Believing the court ruled correctly in refusing appellant judgment for the $656.25, claimed for gross negligence in the sale of the land by Bedell, the judgment is affirmed.
      <@=>lr°r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HARPER v. WINFIELD STATE BANK et al.
    (No. 1392.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 21, 1915.)
    1. Bills and Notes <@=>26 — Draft^-Liability of Drawee.
    The drawer of a draft undertakes in legal effect to pay the sum mentioned therein to the owner of the draft, upon notice of dishonor duly given, if it is not accepted and paid by the drawee.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 31, 34; Dec. Dig. «=> 26.]
    2. Bills and Notes <@=>495 — Presumption— Guaranty.
    Where defendant’s draft, with bill of lading to a third party attached, was made payable to plaintiff bank in payment of money due to it from such third party, and, after assignment of the bill of lading, the amount was credited to such party’s account, and the draft was thereafter protested, and, after indulgence to defendant, such third party indorsed the draft at the bank’s request, there was a presumption that his undertaking or guaranty was a part of the original transaction.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1663-1668, Dec. Dig. <§=> 495.]
    3. Bills and Notes <@=^>241 — Guaranty—Effect.
    One who, as part of the original transaction, indorses a draft, is liable to pay it if the drawer fails to do so.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 542, 547-559; Dec. Dig. <§=>241.]
    4. Venue <@=>22 — Residence of Parties — Statute — Subsequent Holder.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1830, subd. 4, providing that, where there is more than one defendant, suit may be brought in the county where one of them resides, a guarantor upon a draft -was a necessary or proper party to the owner’s suit thereon, and where plaintiff bank, the payee, and owner and the guarantor were residents of T. county, and the drawer, a party defendant, resided in H. county, the action was properly brought in T. county; and the plaintiff did not become a subsequent holder by indorsement by a third party, within the proviso that the transfer or assignment of a note, etc., should not give any subsequent holder right4 to institute suit thereon in any other county than that in which suit could have been brought if no assignment had been made.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. «=>22.]
    5. Bills and Notes <@=>437 — Draft—Liability of Drawer — Discharge—Sale of Property.
    The drawer of a draft to plaintiff bank, to which a bill of lading in the name of a third person was attached, giving it a lien on the proceeds of certain cotton with a right of sale, was not released from his liability by agreement between plaintiff’s cashier, the guarantor, and a third person that such third person should sell the cotton ; and, where it was sold at its market price and fully credited on the drawer’s debt, he could not complain of irregularities in the sale.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1275, 1276, 1279, 12S0; Dec. Dig. <@=>437.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by the Winfield State Bank against Walter Harper and others. Judgment for plaintiff, and defendant Harper appeals.
    Affirmed.
    The suit was by the appellee bank to recover $114.55 as due against the maker, indorser of, and drawee of the following draft:
    “Winfield, Texas, October 29, 1913.
    “Pay to the order of the Winfield State Bank nine hundred ninety-nine dollars and eighty-two cents for value received and charge to account of • Walter Harper.
    “To Felix Nelson, Sulphur Springs, Texas.”
    The maker of the draft, Walter Harper, interposed a plea of privilege to be sued in Hopkins county, which was overruled by the court. Judgment was entered by the court in favor of the bank against the maker and indorser, but in favor of the drawee. The maker of the draft appeals.

      The material facts are that Walter Harper was a cotton buyer, and had contracted to sell Felix Nelson 250 bales of cotton at an agreed price, basis middling, grades and weights guaranteed, and had delivered on his contract 225 bales of cotton. On October 29, 1913, Walter Harper went from Mt. Pleasant to Winfield, and there bought, at an agreed price, from Miller ■& Tabb, a copartnership, 15 bales of cotton, and from W. T. Cameron 10 other bales of cotton. These 25 bales of cotton made the exact amount necessary to fill the contract with Nelson. After purchasing the cotton, Walter Harper at once personally graded same. It was then delivered to the Cotton Belt Railway Company at Win-field for shipment to Sulphur Springs. The bill of lading was issued in the name of Miller & Tabb for the 15 bales, and in the name of W. T. Cameron for the 10 bales, consigned to shipper’s order, notify Felix Nelson, Sul-phur Springs, Tex. Walter Harper then drew two drafts for the respective amounts; the one involved in this suit being set out above. It appears that Miller & Tabb were indebted to the Winfield Bank for money advanced by it to them for the purpose of paying, in the first instance, for the cotton; and they had the draft made payable to the bank, in payment of the money due. Miller & Tabb assigned the bill of lading and delivered the draft to the bank, and the bank on the same date credited the amount of the draft to the overdrawn account of Miller & Tabb. The draft and the bill of lading were then forwarded by the bank, in due course of business, to the First National Bank of Sulphur Springs, and payment thereof by Felix Nelson, the drawee in the draft, was refused, whereupon the draft was protested, and the fees of protest paid by the bank at Winfield. Felix Nelson claimed the right to refuse to pay the draft or receive any more cotton until alleged losses in weight on the 225 bales previously delivered had been adjusted by Walter Harper. After being notified of the draft’s being dishonored, Walter Harper asked the Winfield Bank to hold it until a certain date and then return to same bank for payment. The Win-field Bank then asked Miller & Tabb to indorse the draft, which they agreed to do and did do. At the date specified by Harper, the Winfield Bank returned the draft to the bank at Sulphur Springs. Payment was again refused- by Nelson, and the draft was returned to the Winfield Bank. The cashier of the Win-field Bank and Miller & Tabb and W. T. Cameron then agreed that W. T. Cameron should sell the cotton, which was at Sulphur Springs. The 15 bales of cotton were sold by Cameron at the market price, which was $110.55 less than the amount of the draft. The difference was due to decline in market price. The proceeds of the sale were applied by the bank as a credit on the draft. It was proved that Miller & Tabb and the Winfield Bank were residents of precinct No. 8 in Titus county, and Walter Harper was a resident of precinct No. 1 in Hopkins county.
    Rolston & Rolston, of Mt. Pleasant, for appellant. J. M. Burford, of Mt. Pleasant, for appellees.
   LEVY, J.

(after stating the facts as above). The appellant contends that the court was in error in overruling his plea of privilege to be sued in the place of his residence. It is thought that the provision of the statute authorizing suits to be brought against plural defendants in the county where any one of them resides is applicable to this suit. According to the face of the draft sued upon, the bank was the payee. And the object of drawing the draft in favor of the bank instead of Miller & Tabb was, it appears, for the purpose of having the bank credit Miller & Tabb with the proceeds of the paper in extinguishment of their account then due and owing the bank. The bank, it fairly appears, received the instrument, together with an assignment of the bill of lading, and credited the amount of the draft on the books of the bank to Miller & Tabb upon their account owing the bank. The effect of the transaction, by intention of the parties, was to make the bank the owner of the draft with its attendant security of the bill of lading for the cotton. And Harper, being the drawer of the draft, undertook, in legal effect, to pay the sum mentioned to the owner of the draft, if the draft was not accepted and paid by the drawee, and upon notice of the dishonoring of same being duly given him.

Upon protest of the draft, and due notice to Harper, and after further indulgence in time requested by Harper was given him by the bank, Miller & Tabb put their names on the back of the draft at the request of the bank. As it plainly appears that the bank was the payee in the face of the draft, and the actual owner of it by the intention of the parties at the time of its delivery in the first instance, the subsequent placing of their names on the back by Miller & Tabb could not be properly held to have transferred any title or interest of Miller & Tabb to the bank; but rather the placing of their names on the back was to add strength and credit to it. Upon the record we cannot say that the placing of their names on the draft was not a part of the original transaction between the bank and Miller & Tabb. Placing their names on the draft at the request of the bank would raise the presumption, in the absence of evidence to the contrary, that their guaranty, which is the effect, was a part of the original transaction.

The effect of the guaranty by Miller & Tabb was to pay the draft if the maker failed to do so. Therefore, if the drawer of the draft was liable to the bank on his obligation, the guarantors were liable also, and were proper parties to the suit. A suit may be brought against plural defendants in the county where any one of them resides. Subdivision 4, art. 1830, Vernon’s Sayles’ Stat. Construing this subdivision, it has been held that the defendant, who resides in the county where the suit is brought, must be either a necessary or proper party defendant; and, if he is not, then a plea of privilege by a defendant of another county joined with him in the action should be sustained. Railway Co. v. Mangum, 68 Tex. 342, 40 S. W. 617; Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1065; Cobb v. Barber, 92 Tex. 309, 47 S. W. 963. The provision of the statute extends to one who is liable as a guarantor of the claim. Turner v. Brooks, 2 Tex. Civ. App. 451, 21 S. W. 404; Cleveland v. Campbell, 38 S. W. 219. The proviso added to the former act by the Acts of 1913 has no application to the case as presented by the record. The bank in this case being the payee in the face of the draft, and the legal owner, did not become a “subsequent holder” of the draft by the indorsement of Miller & Tabb, as comprehended by the proviso mentioned.

It is concluded that, in view of the facts, the other assignments should be overruled. The drawer of the draft was liable if the drawee failed to pay the same, and upon due notice to him, all of which is shown. And having a lien on the cotton, as the bank did, a sale of the cotton for the account of the drawer was authorized. The proceedings respecting the sale may properly be claimed to have been irregular, but it reached no further than a mere irregularity of proceeding. The agreement respecting the fact and mode of sale cannot be construed as having the legal effect of releasing appellant from his liability. The cotton was sold, it appears, at the market price, and the proceeds actually and fully credited on the debt of appellant, so that no injury resulted in the least to appellant.

The judgment is affirmed.
      <g^For otilar cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. STEVENS.
    (No. 1391.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 21, 1915.
    Rehearing Denied Jan. 28, 1915.)
    Appeal and Error &wkey;>1001 — Review—'Verdict.
    Where there is any evidence to support it, a verdict will be upheld on appeal.
    (Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3028-3934; Dec. Dig. &wkey;1001.]
    Appeal from Fannin County Court; Rosser Thomas, Judge.
    Action by Ben Stevens against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. F. Holt and Head, Smith, Hare & Head, all of Sherman, and Geo. Thompson, of Dallas, for appellant. Cunningham & McMahon, of Bonham, for appellee.
   HODGES, J.

The appellee sued the appellant to recover damages in the sum of $250, alleged to be the value of an animal injured in a collision with one of appellant’s trains. The facts show that the animal was killed in the corporate limits of the city of Bonham, near the passenger depot. After a trial before a jury, a judgment was rendered in the appellee’s favor for $200.

Appellant insists that the testimony was insufficient to support the verdict and judgment, and that the court should have giveu a peremptory instruction directing a verdict for the appellant. We have carefully examined the evidence, and think the assignment should be overruled. There was evidence upon which the jury might base a finding of the negligence alleged.

The remaining assignments of error are without merit, and are overruled.

The judgment is affirmed.