author: PLEASANTS, C. J.

text:
    GALVESTON ELECTRIC CO. v. SWANK.

    (No. 7207.)
    (Court of Civil Appeals of Texas. Galveston.
    June 22, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Street Railroads <§=>73 — “Fenders.”
    Galveston ordinance, making it- unlawful to operate cars without lifeguard or fender on the front end, merely requires an effective contrivance to prevent persons from being run over, and it need not project in front of the car.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 153; Dec. Dig. <§=>73. ]
    2. Trial <^=>252(9) — Instructions—Application to Evidence.
    Evidence held not to warrant charge to find for the injured pedestrian if the car had no fender, since it tended to show that there was a fender, and such charge was therefore prejudicial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <§=>252(9).]
    3. Street Railroads <§=>103(2) — Injuries to Pedestrians — Discovered Peril.
    A street railway company is not liable if the injured pedestrian has negligently placed himself in danger, if the peril could have been discovered by the exercise of ordinary care, but only if, after actually discovering it, che operatives failed to use all means at their command to prevent injury to the pedestrian.
    [Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. <®=>103(2).]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Elizabeth Swank against the Galveston Electric Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for ap-pellee.

      Applleatio-n for writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by apipellee against appellant to recover damages for personal injuries to appellee, alleged to have been caused by the negligence of appellant and its employés. The petition alleges, in substance, that while crossing appellant’s street car track at a public street crossing in the city of Galveston, appellee was struck and injured by one of appellant’s cars, which was being operated on said track by employés of appellant. The grounds of negligence relied upon for recovery of damages was the running of the car at a dangerous rate of speed, the failure to keep a proper lookout to discover plaintiff on said crossing, the failure to use proper care to prevent the injury to plaintiff after her peril was discovered, “or could have been discovered by said operatives by the use of due care,” and the failure to provide a life guard or fender “on the front end of the car.” as required by an ordinance of the city of Galveston. The defendant denied each of the allegations of negligence charged in the petition, and pleaded that plaintiff was guilty of contributory negligence in going upon defendant’s track without looking or listening for the car, and such negligence of plaintiff was the proximate cause of her injury. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $2,000.

The first assignment of error complains of a paragraph in the court’s charge which instructs the jury to return a verdict for the plaintiff if they find from the evidence that the car which struck plaintiff “was not at such time and place equipped or provided with a life guard or fender on the front end of such car,” because there is no evidence showing, or tending to show, that the car was not at said time and place equipped or provided with a life guard on its front end. The ordinance which appellant is charged to have violated is as follows:

“That it shall be unlawful for any person to operate a street car within the limits of the city of Galveston unless such car shall be provided with a life guard or fender on the front end of such car and for each violation thereof the offender shall be fined the sum of ten dollars.”

The testimony of plaintiff’s witnesses was to the effect that there was no fender upon the front end of the car. In regard to what these witnesses considered a fender, one of them said:

“I don’t know what a fender is; I suppose it is some kind of protection in the front of the cai-to protect from running over people; it is like a cowcatcher of a locomotive, something on that order. I did not go around to examine the front end of that car.”

The other stated:

“A fender is a kind of a basket of steel attached to the front of the car. There are a great many different kinds of fenders. I never paid any particular attention to the latticework arrangement, kind of slats, that come down in front of the Galveston Electric Company cars; I cannot say that there was one of those latticework fenders on that car or that there was not. I did not_ make any examination of the car. This car did not have a dip net or scoop, or anything like that in the front end of it.”

All of the testimony shows that there was no fender on the car of the kind described by plaintiff’s witnesses.

George Ritzier, motorman of the car, testified as follows:

“I saw the lady as she lay under the car. I did not get off the car. I saw her after the conductor and the men pulled her off to the side. They took her from the west side of the car, right by that fender. There was a fender on the car. The fender consists of latticework, like latticework. That fender works with a trigger in front of the car. When it runs against anything, that trips the fender underneath, and that puts the person on the fender. There was one of those on this car; there was a fender on the car.
“This instrument, that I called a while ago a fender, is about 8 feet from the wheels — from the front end of the car. There is nothing on the front end of the car like that they have in Houston and New Orleans; it is a fender underneath the car, 8 feet from the front. That was true as to my car that day. I have never operated a street car in Houston, and I have never observed the operation of cars in other cities. I have never been to El Paso. I have heard of their taking one of those fenders and picking up a little dog with it..
“It is not a fact that that old lady was pulled right out from underneath the running board by the side of the car; she was on the front end. Her foot was nearly touching the fender. Her head was outside and her feet was nearly on the fender. Her head was to the west, and her feet was on the inside of the fender. That is true, I know it. She wasn’t dragged over 5 feet. I think she was barely touched, because her heel was right against the fender, and her head was out in the street.”
“There was a negro school over there. Her head was out toward the Rosary School, and her feet up against the fender.”

M. B. Osborn, appellant’s master mechanic, testified as follows:

“There is a fender on the car. In the first, right under the front end of the car, is a gate or trigger that when that gate is struck that it trips the pick-up in front of the wheels, about 8 feet from the front end of the car. I would roughly state that the fender itself is about 24 or 80 inches ahead of the wheels, and any object that comes under that guard will be picked up by this fender automatically; it takes about 14 pounds pressure to trip that gate, and that trips your pick-up. My inspection of the car was made early the next morning after the accident at night. I found the fender there at that time in good working order, and tested it with a pair of scales to be sure. I could not say how many different kinds of fenders there are in use in street cars generally throughout the country, but there must be a dozen or 15 'different kinds. There are some types- of fenders that extend out in front, and there are some that go underneath, and I have only found one that will do anything like it is claimed to do; that is the H. B. lifeguard, which is our standard, the only one we use. There is objection from the standpoint of a street car to a fender that extends out in front of the car; one thing is, in turning curves it overhangs, and it is liable to strike something clear of the track, and also possibly cause accidents that if it didn’t project you may not have that trouble. The general purpose of a fender is to keep from running over anybody that is struck by the car. Of course, the main part is to keep the wheels from running over them and cutting the body in two. I have been in New Orleans, but I could not-say about thousands of street ears there passing up and down Canal street, I could not say that all of them have fenders sticking out in front that scrape along the track and picks you up and throws you in a basket; I have not seen it happen. 1 have seen the fenders, but not particularly in New Orleans. We had a fender of this kind on car No. 159, right under the front end of the car, and there is a pick-up on the front end of the car. There is no fender on the front end of the car.”
“Q. Now, take this old lady, if she crumpled up she would go 8 feet under the car before she would get to the wheels and the fender? A. She would probably be 8 feet from the front of the car before she would be picked up.”
“I could not say if a fender in front would pick her up and throw her in a basket; I have not had any experience. I was out there; I did not see the old lady. I do not know that the state law compels us to put a fender on the front end of the car. We have the same type of fender here that they have in Houston. I have been in Houston lately. I do not think they were in existence at the time this old lady was hurt last year. The front end of the car No. 159 is level with the caí-, extends out; there is no platform along there b*efore you get to the trucks; there is an extension and a floor. It is about 20 inches from the top of the rail to the bottom of the platform. I am not about 40 inches thick like you (Mr. Marsene Johnson). I am about 14 inches thick. If the front end of that car were to hit you or me, it would not roll us up like a ball; there is room enough for a body to go under cleai*. I would imagine it pretty close to death. Big men like you and me would have more show than a rabbit; it would be a matter nearly impossible to kill a man. I don’t think we have killed a person since these fenders were installed, and they were completed in the spring of 1912. I don’t think we killed a person in Galveston since then by running over them. We have hit a good many people and picked them up in every case. The fender they have on the Galveston Electric Company cars is the only one that I have had experience with. From a mechanical standpoint that is nearer perfection than any other fender that I ever investigated and tried. It is very nearly impossible for a body to pass under this car with the fender down. The fender goes down, works automatically by a gate that goes down when it is struck. That gate is right near the front end of the cax*. There is no fender which will prevent a person being struck by a car. The thing that a fender is supposed to prevent is to keep a body that is struck by the car from being run over by the wheels and cut to pieces.”

We think upon this state of the evidence the trial court erred in giving this charge. According .to the testimony a “fender” and a “life guard” are synonymous terms, and the undisputed evidence shows that there was a fender, or life guard, on the front end of the car, which the only witness who testified as to the merits of different kinds of fenders stated was the best that could be used. The charge must have been given upon the theory that it was for the jury to say whether the fender which was shown to have been on the car was the kind of fender contemplated by the ordinance before set out, and the jury must have so understood it.' The ordinance does not describe the kind of fender or life guard which appellant was required to place upon its cars. The requirement that it must be on the front end of the car cannot be construed to mean that it must project in front of the car. It is apparent, as stated by the witness Osborn, that the primary purpose of' a fender, or life guard, is to prevent a person, when struck by a car, from getting under the car wheels, and a fender or life guard which is placed in front of the front wheels of the car is on the front end of the car, and one so placed, which is of approved type and effectively accomplishes the purpose for which it is intended, must be regarded as fulfilling the requirements of the ordinance. We think no other reasonable construction can be placed upon the ordinance.

The testimony upon the other issues of negligence submitted to the jury was sharply conflicting, and therefore the error of court in giving the charge complained of was highly prejudicial to appellant, and was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

The court further erred in the charge submitting the issue of discovered peril, in that the jury was instructed that they might find for the plaintiff upon this issue if they believed from—

“the evidence that the motorman of said street car discovered the peril, or in the exercise of ordinary care could have discovered the peril of the plaintiff, in time to have stopped said car and avoided such collision, and that said motorman so failed to stop said car, and if you believe from the evidence that such failure, if any, constitutes negligence on the part of the defendant.”

It is the settled rule of decisions in this state that the duty which devolves upon the operatives of cars or other vehicles by which others may be injured, to use all the means at their command to prevent injury to one who has negligently placed himself in the way of the car or vehicle, is not called into exercise until such person’s peril is actually discovered. In the case of Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410, the principle upon- which the doctrine of discovered peril rests, and the rule for the application of the doctrine, are thus stated:

“This new duty and liability for its breach is iinposed, upon principles of humanity and public policy, to prevent what would otherwise be, as far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves to peril. The same principle of law which, on grounds of public policy, will not permit a person to recover when his own negligence has' proximately contributed to the injury, will not permit the party who has inflicted the injury in violation of such new duty to defend upon the ground of such negligence. The principle, however, has no application in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured, in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same.”

The case of San Antonio Traction Co. v. Kelleher, 48 Tex. Civ. App. 421, 107 S. W. 66, clearly and forcibly restates the rule, and cites a number of the authorities by which it has been approved and followed.

If any error is pointed out by the other assignments of error presented in appellant’s brief it is not such as is likely to occur upon another trial, and therefore said assignments need not be discussed.

For the errors in the charge before pointed out the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <£=>For otlier cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J. REV, O. J. RICE, J.

license: Public Domain

text:
    HUME v. CARPENTER et al.
    (No. 5548.)

    (Court of Civil Appeals of Texas. Austin.
    April 27, 1916.
    On Appellant’s Motion for Rehearing, June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    1. Estoppel <&wkey;52 — Elements—In General.
    The essential elements of an estoppel are a false representation or concealment of a material fact, made with the knowledge of the fact to one ignorant of the truth of the matter with intent that he should act upon it and which induces him to act upon it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. &wkey;52.]
    2. Estoppel &wkey;>98(2) — Elements — Knowledge oe Fact.
    A statement by one who had been the secretary and treasurer of an investment corporation, made to the assistant county attorney prior to the institution of tax proceedings against lots of unknown owners, to the effect that the company was dissolved, and that the ownership of the lots was unknown to him, made when he had been away from the city where it had its proper office for some time and was not familiar with the company’s business, would not estop a purchaser from the company subsequent to such proceeding from claiming that the record title was then in the company.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 290; Dec. Dig. &wkey;9S(2).]
    8. Estoppel <&wkey;55 — Elements—Reliance on Repbesentations.
    Such statement constituted no estoppel against such claim by the purchaser, where it appeared that the county attorney knew that the record title was then in the company, and where the records failed to show that it had ever conveyed the title, where the county attorney did not wholly rely or act on such statement, but acted partly on information otherwise acquired, and since the statement was not made to induce his action in making a purchase for himself or others, but was made to him merely in the line of his duty as a county officer in ascertaining against whom suit might be brought to collect the unpaid taxes on the property.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 136-141; Dec. Dig. <&wkey;55.J
    4. Cobpoeations t&wkey;425(5) — Act oe Oeeicee— Estoppel.
    The secretary of an investment corporation who had attested its deeds to purchasers, but who had never undertaken to convey its property without the consent of its directors, and who had no express authority to state to the county attorney that the company had been dissolved and that he did not know who held the record title to certain lots formerly owned by it, which statement was not made while acting in behalf of the company, had no such authority to make the statement as would estop subsequent purchaser from the company from claiming that the record title was in it, when they were sold in a tax proceeding against unknown owners.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1700; Dec. Dig. <&wkey;425(5).]
    5. Taxation <&wkey;642 — Sale oe Taxes — In-quiby as to Owner — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7696, providing that whenever the name of the owner of lots returned delinquent for taxes is unknown, upon affidavit setting out that fact to the state’s attorney and after inquiry cannot be ascertained, such parties may_ be cited and made parties defendant by notice in the name of the state or county, the county attorney’s failure to exercise such diligence as would have ascertained the true owner, rendered the tax proceeding and sale thereunder void; and the fact that the petition therein was duly attested by the attorney would not be conclusive evidence of the fact that the owner was unknown; and in a suit to trespass to try title thereto a subsequent purchaser from the party having the record title at the time of such proceeding might show by competent evidence that the attorney in the exercise of reasonable diligence could have ascertained the ownership of the land before the institution of the proceeding, and if he does so, the judgment therein and the sheriff’s deed based thereon is void and conveys no title.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1305-1307; Dec. Dig. &wkey;642.]
    6. Taxation &wkey;>811 — Sale eob Taxes — Question fob Jury — Inquiry as to Ownee.
    In trespass to try title to land sold in tax proceeding against unknown owners, whether the county attorney had exercised such diligence as would have ascertained the ownership before the proceeding, held a question for the jury.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1609, 1610; Dec. Dig. &wkey;>811.]
    On Appellant’s Motion for Rehearing.
    7. Appeal and Eeeoe <&wkey;263(l) — Instructions — Acquiescence—Statute.
    Under Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the ruling of the court in giving or refusing instructions shall be regarded as approved, unless excepted to, applies to appellees as well as to appellants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. <&wkey; 263(1).]
    8. Appeal and Eeeoe &wkey;>747(2) — Cross-Assignments oe Error — Rule op Court.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1639, requiring decision of all issues presented by proper assignments of error, and in view of rule 101 for district and county courts (159 S. W. xi), relating to assignments of error, appellees, even if they had properly excepted to the court’s charge and its refusal to charge, could not complain thereof where they failed to file any cross-assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3053; Dee. Dig. <@=»747(2).]
    Key, C. J., dissenting in part.
    Appeal from District Court, McLennan County; J. Walter Coche, Special Judge.
    Trespass to try title by the Central Texas Improvement Company and W. B. Carring-ton against R. B. Carpenter and others, in which S. L. Hume filed a plea of intervention, setting up the ordinary allegations in trespass to try title. Dismissed as to plaintiffs Central Texas Improvement Company and W. B. Carrington, and judgment for defendants, and the intervener Hume appeals.
    Reversed, and judgment rendered for inter-vener.
    H. N. Atkinson, of Houston, W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. R. Saunders, and Chas. B. Braun, all of Waco, for appellees.

      Application for writ of error pending in Supreme Court.

   Statement of the Case.

RICE, J.

In 1890 the Provident Investment Company, a private corporation, was chartered and organized for the purpose of buying, improving, and selling real estate, with its principal office in the city of Waco; its directors and officers being prominent business men of said city, Sam Sanger being president and H. N. Atkinson secretary and treasurer during the time of the transactions herein involved. Soon thereafter the company purchased several tracts of land adjacent to the city of Waco, which it plotted into blocks, lots, streets, and alleys as an addition to the city of Waco, known as Provident Heights addition, and made numerous sales thereof, the deeds being executed by Sanger as president and attested by Atkinson as secretary, which were duly recorded in the Deed Records of McLennan county. The unsold portion of this property seems to have been rendered for taxes up to 1901 in the name of the company, but after that time was rendered as “unknown” for the years 1902, 1903, and 1904, inclusive, and for which years the taxes were unpaid, and the property was placed on the delinquent roll.

During the year 1905 suit was instituted in the name of the state by the county attorney of McLennan county against the unknown owners of block 41 of said addition, to enforce the collection of the taxes due thereon for the years 1900, 1902, and 1903, and judgment was thereafter rendered against the unknown owners, and the property sold and purchased by W. R. Denton, for a nominal consideration, who thereafter conveyed the same to his codefendants Cannaday and Carpenter. The Provident Investment Company, at time of such tax proceedings against the uúknown owners, and at the time of.the execution of the deed to Carpenter and Can-naday, was the record owner of the lots in controversy from the sovereignty of the soil. Subsequent to such sale, and before this suit was brought, the Central Texas Improvement Company and W. B. Carrington purchased from the Provident Investment Company the unsold portion of said addition, including lots 1, 2, 5, 6, 7, 8, and 9 in block No. 41 thereof, and they thereafter conveyed same to S. L. Hume; and this suit was brought on the 22d of December, 1913, in the ordinary form of trespass to try title, by the Central Texas Improvement Company, a corporation, and W. B. Carrington, against defendants R. B. Carpenter, W. R. Denton and wife, Mattie D. Denton, and H. E. Can-naday, to recover title and possession of the lots above named.

On the 2d of May, 1914, S. L. Hume, appellant herein, filed his plea of intervention, complaining of the defendants hereinbefore mentioned, setting up the ordinary allegations in trespass to try title to said lots.

Appellees, defendants below, in their second amended original answer denied the allegations of plaintiff’s pleading, and interposed plea of not guilty, as well as the three and five year statutes of limitation, and also improvements in good faith; and the Central Texas Improvement Company and W. B. Carrington and intervener Hume filed their second supplemental petition, wherein, among other things, they denied each and all of the allegations of said defendants’ second amended original answer, and prayed as in their original pleadings for title and possession of the property, except that appellant admitted the improvements alleged.

During the progress of the trial at the conclusion of the evidence and before the charge was read to the jury, the Central Texas Improvement Company and W. B. Carrington, on their own motion, were dismissed from the case without prejudice, after which the trial proceeded in the name of the intervener alone. The court, after instructing the jury that the evidence showed that the intervener had the record title to the lots in controversy, submitted the case on the issues of estoppel and improvements in good faith only, these phases being submitted on special issues; and the jury in response to both found in favor of appellees, and judgment was entered in accordance therewith, from which appellant has prosecuted this appeal.

•The ground of estoppel relied on was based on certain alleged statements by Atkinson to Street, the assistant county attorney of McLennan county, made prior to the institution of the tax proceedings, to the effect that the Provident Investment Company was dissolved, and that the ownership of the lots in question was unknown to him. It appears from the testimony of Mr. Street that before he filed the tax proceedings against the unknown owners of' the property above referred to, that he had understood that the Provident Investment Company had been dissolved, and that Col. Atkinson, its former secretary and treasurer,- had moved to Houston, and that he knew more about the history of the property than any one else; and for the purpose of obtaining information he wrote him in regard to same, hut received no reply. Soon thereafter he met Col. Atkinson on the street in Waco, and asked him if he had received his letter, to which Atkinson replied, “Yes, hut on account of press of business I have not answered it.” He told Atkinson that he was anxious to find out who owned the lots, as he wanted to collect the delinquent taxes. He then asked him whether the company had dissolved, and who were the owners of the lots in controversy, and where were its records. Atkinson stated that the company had dissolved, having previously distributed its property among the stockholders; that he did not know who now owned the lots in controversy, and that the stock book was lost; that he did not know much about it, and particularly as to the lots inquired about. On cross-examination Mr. Street admitted in this connection that Atkinson stated that he had been absent from Waco for á considerable period of time, during which he had given no attention to the business of the company, and that he did not know who owned the lots.

It was shown that Mr. Denton, before purchasing the property in controversy, had a talk with Street about the title, who told him what Atkinson had said in reference thereto; but Denton stated that in purchasing the property he relied on his own knowledge, as well as upon what Street told him. Mr. Street admitted that the conversation with Atkinson was a hurried one on the street, and at the time of such conversation he knew that the deed records showed the title to the property in controversy to be in the Provident Investment Company, having examined the records for the purpose of ascertaining who owned the lots. He further admitted that he had testified in the Harvey Case that he might have gotten the impression that the property had been distributed among the stockholders from other sources— may have been quick to conclude this on account of such information.

It further appears that Street, before bringing suit, had also talked with Mr. Bar-cus, who was formerly assistant county attorney, about the ownership of these lots, who detailed a conversation had by him (Barcus) with Col. Atkinson in reference thereto, the effect of which was to show that Atkinson had stated to Barcus that he did not know who owned the lots in controversy.

This seems to have been about the extent of the inquiry made as to the ownership of the lots prior to the institution of the tax proceedings against the unknown owners by Mr. Street, acting as assistant county attorney; and, notwithstanding the fact that the Provident Investment Company was a Waco concern, whose officers and directors were all prominent business men of said city, no further effort, than as above outlined, is shown on the part of Mr. Street to ascertain the ownership of said lots before instituting the tax suit.

It appears that Carpenter, before purchasing the property conveyed to him, had an abstract of the title made, which disclosed the fact of these tax proceedings against the unknown owners, and that his • attorneys advised him that he was only obtaining a tax title to the property; that while he might never be bothered, that he was taking a chance at it, and suggested to him that he call upon Mr. Sanger, who was still acting as president of the company. It seems that he called to see Mr. Sanger in accordance with such suggestion, and he stated that Sanger told him, in substance, that the company was dissolved and was satisfied that no one would interfere with him in the purchase; that so far as he (Sanger) was concerned, he would not, and expressed the belief that he would be safe in making the purchase, after which he purchased the property from Den-ton ; but this conversation occurred long subsequent to the tax proceeding and sale thereunder.

Opinion.

The chief contention on the part of appellant is that the court erred in submitting the case to the jury on the charge of estoppel, insisting: (1) That the statements of Col. Atkinson, the secretary and treasurer of the company, were not sufficient upon which to base such charge; and (2) if it be conceded that they were, then it does not appear therefrom that Atkinson had any authority from the company, either express or implied, to make any statement that would estop appellant, citing in support of such contention Bynum v. Preston, 69 Tex. 287, 6 S. W. 428, 5 Am. St. Rep. 49; Downes v. Self, 28 Tex. Civ. App. 356, 67 S. W. 897, writ of error refused 95 Tex. 677; Page v. Arnim, 29 Tex. 54; Burleson v. Burleson, 28 Tex. 383 ; Gaffney v. Clark, 115 S. W. 330; McLaren v. Jones, 89 Tex. 131, 33 S. W. 849; Mayer v. Ramsey, 46 Tex. 371; Near v. Green, 113 Iowa, 647, 85 N. W. 799; Hilburn v. Harris, 29 S. W. 923; Wortham v. Thompson, 81 Tex. 348, 16 S. W. 1059. See, also, Bigelow on Estoppel, 484.

In the case first cited it is stated that the essential elements of an estoppel are: (1) There must have been a false representation or concealment of a material fact; (2) the representation must have been made with the knowledge of the facts; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with intention that the other party should act upon it; and (5) the other party must have been induced to act upon it. So that if any of the essential elements of estoppel, as above outlined, are wanting, then it was improper for tile court to submit this issue to the jury,

Taking the evidence of Atkinson most strongly against appellant, we think it fails to meet the requirements of the law in order to establish an estoppel. In the first place the representations must have been made with a knowledge of the facts. It appears from the testimony of Col. Atkinson that he had been away from Waco for some time, and was not familiar with the business of the company, and did not know to whom the lots belonged; nor does it appear that Mr. Street, who was acting in behalf of the state, was wholly ignorant of the truth of the matter, since it appears that he knew the record title at the time he made the inquiry of Atkinson was in the Provident Investment Company, and the records failed to show that the company had ever conveyed the property. To constitute an estoppel it seems, according to the fifth subdivision above outlined, that Street must have relied and been induced to act upon such statements; while it is shown from the evidence that he did not wholly rely thereon, but acted partly on information otherwise acquired. Besides this, we think there is nothing in the evidence showing any authority on the part of Atkinson to make any statements that would estop the Provident Investment Company. The various deeds of the purchasers of this property offered in evidence, and which were of record at the time the tax proceedings were instituted, were executed by Sanger as president and attested by Atkinson as secretary of the company. The evidence shows that Atkinson had never undertaken at any time to convey the property without the consent of the directors.' No express authority to make such statements appears in the record; nor is it shown that such statements were made while acting in behalf of the company. See volume 2, Herman on Estoppel and Res Adjudieata, bottom of page 1300.- Nor do we think that any such authority can be implied from its course of dealing. It may be doubtful under the facts in evidence if anything less than a resolution of the board of directors would have authorized the disposition of this property on the part of Atkinson. Certainly, a street corner conversation ought not to be held to have such effect. Apart from this, however, we do not think the law of estoppel is applicable to or arises out of the facts of this case, and should not have been given in charge to the jury. The statements elicited by Street from Atkinson were not for the purpose of governing his action in making a purchase for himself or others, but was merely in the line of his duty as a county officer, for the purpose of ascertaining against whom suit might be instituted' in order to collect the unpaid taxes due upon such property; for which reason we think that the court erred in submitting this issue to the jury.

In our opinion the only issue involved in this appeal that should have been submitted to the jury for their consideration was as to whether or not Mr. Street, the assistant county attorney, before filing the tax proceeding, exercised due diligence to ascertain the owner of the property. By article 7698, Vernon’s Sayles’ Texas Civ. Stats., vol. 4, among other things, it is provided that:

“Wherever the owner or owners of any lands or lots returned delinquent or reported sold to the state, or that may hereafter be reported sold or returned delinquent for the taxes due thereon for any year or number of years are nonresidents of the state or the name of the owner or owners of said land or lots be unknown, then, upon affidavit setting out that the owner or owners are nonresidents, or that the owner or owners are unknown to the attorney for the state, and after inquiry cannot be ascertained, said parties shall be cited and made parties defendant by notice in the name of the state and county, directed to all persons owning or having or claiming any interest in the following described land delinquent to the state” or county for taxes, setting out the description of the land, etc., as contained on the assessment roll.

If the owner of the land was known, or could hawe been known to the county attorney at the time of institution of the suit, by the exercise of reasonable diligence, and he failed to exercise such diligence to ascertain the true owner, then the tax proceedings and sale thereunder would be void, for the reason that the true owner was not in. fact cited to appear and answer.

Judge Gaines, in the case of Scales v. Wren, 103 Tex. 304, 127 S. W. 164, held, as shown by the syllabus, that:

“Where an owner of land has his title on record, ascertainable by the county attorney on inquiry, and he is within the jurisdiction of the court, he is not a party to nor bound by a judgment and sale of the land for taxes thereunder in a proceeding against the ‘unknown owner’ of the land.”

While the petition in the tax suit against the unknown owner was duly attested by the assistant county attorney, as required by the statute above cited, still, this was not conclusive evidence of the fact that the owner was unknown; and in a suit of this character by the owner to recover the land he has the right to raise this issue, and show -by competent evidence that, by the exercise of reasonable diligence, the county attorney could have ascertained his ownership of the land before the institution of the tax proceedings, and if this is done to the satisfaction of the jury, then and in that event the judgment in the tax proceeding and the sheriff’s deed based thereon would be nullities, and no title could be acquired by virtue thereof. See Nunley v. Blanton, 103 Tex. 316, 126 S. W. 1110; Wren v. Scales, 55 Tex. Civ. App. 62, 119 S. W. 879; Sellers v. Simpson, 53 Tex. Civ. App. 205, 115 S. W. 888; Bingham v. Matthews, 39 Tex. Civ. App. 41, 86 S. W. 781; Harvey v. Provident Investment Co., 156 S. W. 1127. We think the evidence was sufficient to raise this issue, and it should have been submitted to the jury under an appropriate charge. This not haw ing been done, and appellees having failpd to except to the charge of the court instructing the jury that the record title to the property in question was. in intervener, he insists that it becomes our duty to reverse and render the case, instead of femanding it, on the theory that the failure to except to such charge is conclusive on such issue on another trial in the event of a reversal — citing in support thereof the Acts of 1913, p. 113; article 2061, Vernon’s Sayles’ Rev. Civ. Stats., vol. 2; Needham v. Cooney, 173 S. W. 979, and authorities there cited; I. & G. N. Ry. Co. v. Feldman, 170 S. W. 133; Gulf, Colorado & Santa Fe Ry. Co. v. Battle, 169 S. W. 1048; Bohn v. Burton-Lingo Co., 175 S. W. 173; G., T. & W. Ry. Co. v. Dickey, 173 S. W. 967. While it is true that the statute cited prescribes that the ruling of the court in giving, refusing, or qualifying instructions to the jury should be regarded as approved unless excepted to, and the charge under consideration was not excepted to by appel-lees, still we are of opinion that this statute was intended to apply to appellants only who are urging a reversal based thereon. When a case is reversed for any reason we think it should stand in the court below just as though a new trial had been granted there, leaving all questions involved open in the court below for its consideration upon another trial. All of the cases cited by appellant are cases in which appellants were undertaking to have charges reviewed which were not excepted to, and therefore came within the rule prescribed by the statute, so that these cases are not authority for the contention of appellant; and, having determined that the court erred as hereinbefore indicated, it becomes our duty to reverse and remand the case for another trial not inconsistent with the views herein expressed, and it is so ordered.

Reversed and remanded.

REV, O. J.

While concurring in the result reached in this case, I do not indorse all that is said in the opinion of Mr. Justice RICE. My views as to what is necessary to constitute an estoppel in pais were expressed in Westbrook v. Guderian, 3 Tex. Civ. App. 406, 22 S. W. 59, and they have undergone no change. As to Mr. Atkinson’s authority to so act for the improvement company as to estop that corporation, I think the proof was sufficient. He was its secretary, treasurer, and general manager, and testified that he managed all its business, including the payment of taxes; and while, by force of statutory law, he could not, acting alone, execute a deed that would bind the corporation, he was in other respects the corporation’s alter ego or other self and authorized to act and speak for it. However, I do not think the question of estoppel is in the case. When Street, the government’s attorney, interviewed Atkinson concerning the ownership of the land, he did not do so as an intending purchaser at a future tax sale; and there was nothing to indicate that he was eliciting information for the purpose of transmitting it to others, or that Atkinson intended that such information should be so transmitted. In fact, Street did not become a purchaser at the tax sale, and therefore no estoppel could be asserted as to him; and, for the reasons just stated, as well as for other reasons, no estoppel can be based upon Atkinson’s representations to Street. ■

Furthermore, it is difficult, if not impossible, to see how the question of estoppel could arise as to the validity of the tax title. The proceedings which resulted in the tax sale seem to have been regular; and the deed made by the sheriff in pursuance thereof vested title in the purchaser, unless it be shown that, at the time the suit was instituted, Street, the officer who represented the state and made the affidavit of unknown ownership, either knew, or by the exercise of reasonable diligence could have known, that th,e improvement company was the owner of the property. If he had such knowledge or failed to exercise such diligence the tax title is void; but if he did not have such knowledge and exercised proper diligence in that regard, then that title is valid, although the facts which show the exercise of proper diligence may not be sufficient to constitute an estoppel.

Those issues should have been submitted to the jury, and their answers thereto would have settled the question of title. The fact that the deed records of the county show an apparent title in the corporation is not conclusive evidence as to Street’s knowledge of ownership, because the corporation could have parted with its title without the evidence, thereof having been placed of record; and if, in the exercise of proper care and diligence, Street concluded it had done so, and if, after exercising like care and diligence, he could not ascertain who was the real owner, then the ownership was unknown to him, and the tax title is valid.

On Appellant’s Motion for Rehearing.

RICE, J.

It is strongly urged on the part of appellant, in an able and elaborate motion for rehearing, that we erred in failing to reverse and render judgment for him, on the ground that appellees are not entitled to have the case reversed and remanded for trial on the issue of the diligence exercised by the county attorney, in order to ascertain the ownership of the lots in controversy before the institution of the tax suits, for the following reasons: First, because the court in its charge to the jury eliminated from their consideration all issues other than that of estoppel, telling them that intervener owned the record title to the lots in controversy, and withdrawing from them all issues except those of estoppel and improvements in good faith, which charge was not excepted to by appellees; and, second, because appel-lees waived their right to have the issue of diligence of the county attorney in this respect submitted to the jury, for the reason that they failed to except to the refusal of the court to give their special charges submitting such issue. The court instructed the jury that the evidence in the case showed that the intervener had the record title to the lots in controversy, stating that the only issues submitted for their consideration were those of estoppel and improvements, in good faith. This charge was not excepted to by appellees, but they excepted to the charge of the court on account of its failure to submit the issue as to the ■ diligence of the county attorney in ascertaining the ownership of the lots before bringing the tax suits, and requested two special charges submitting this issue to the jury, the refusal of which, however, was not excepted to by them.

Such being the state of the record, we must, under the law, hold that appellees have approved the action of the court, both in instructing the jury as to the record title’s being in appellant, and in eliminating all issues other than those of estoppel and improvements in good faith, as well as in refusing to give their special charges on the issue of diligence exercised on the part of the county attorney to ascertain the ownership of the lots in controversy before instituting the tax suits in question. See Acts 1913, p. 113; article 2061, vol. 2, Vernon’s Sayles’ Rev. Oiv. Stats. See, also, Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Bartek, 177 S. W. 139; Railway Co. v. Alcorn, 178 S. W. 833; Steele v. Dover, 170 S. W. 813; Railway Co. v. Barnes, 168 S. W. 991; Elser v. Putnam, 171 S. W. 1052; Railway Co. v. Wadsack, 166 S. W. 45; I. & G. N. Ry. Co. v. Bland, 181 S. W. 504.

That act of the Legislature, we think, applies as well to appellees as to appellants, and our original opinion holding to the. contrary was error, and is now withdrawn. See Insurance Co. v. Finegold, 183 S. W. 836; Railway Co. v. West, 174 S. W. 293. Article 2061, supra, provides that:

“The ruling of the court in the- giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

Appellees having failed to except to the court’s charge in the respect mentioned, and to the refusal to give their special charges, as above indicated, must, we think, be held to have acquiesced in such rulings of the trial court, and are bound thereby. And even had they properly excepted, as required by law, still, by their failure to file any cross-assignments of error, they are not now in a position to complain of such rulings. See rule 101 (159 S. W. xi) for the government of district courts; Meyers r. Maverick, 28 S. W. 717; Tarrant County v. Rogers, 104 Tex. 227, 135 S. W. 110, 136 S. W. 255; article 1639, Vernon’s Sayles’ Rev. Civ. Stats. Under the new practice act it became necessary for appellees, in order to present this question here, not only to except to the charge and the refusal to give their special charges, but also to file their cross-assignments of error.

In addition to what has just been stated, we find that appellees in their brief, on page 75, made the following admission (to which our attention has been called by appellant in his motion for rehearing, and which we inadvertently overlooked in the preparation of our original opinion):

“Appellees have never contended in this case that they or their grantors had the legal title to the lots because of the title acquired by the suit for delinquent taxes; but appellees have contended that they did have title to the lots because appellant and the Central Texas Improvement Company were estopped to claim title to the lots in question because of the statements of Atkinson to Street.”

If, therefore, the issue of estoppel was improperly submitted, as we have held, then, under such admission, it is clear that appellant would have the legal title to the lots in controversy, and judgment should be rendered for him therefor.

For all of which reasons we think we are justified in reversing and rendering judgment in this case for appellant; and, as the facts have been fully developed, and the jury having found the value of the lots in controversy, as well as that of the improvements thereon, judgment is now here rendered for appellant for said lots, subject however to all the conditions imposed as required by chapter 2, title 128, Rev. Stats, of 1911, and it is so ordered.

Motion granted. Reversed and rendered.
      &wkey;?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HUME v. MOORE et al.
    (No. 5549.)
    (Court of Civil Appeals of Texas. Austin.
    April 26, 1916.
    On Appellant’s Motion for Rehearing, June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    Appeal from District Court,. McLennan County; J. Walter Cocke, Special Judge.
    Trespass to try title by the Central Texas Improvement Company and W. B. Car-rington against Marvin Moore and others, in which S. L. Hume filed a plea of intervention in trespass to try title against defendants. Plaintiffs at their own instance dismissed from the case without prejudice,' judgment for defendants, and intervener appeals.
    Reversed, and judgment rendered for inter-vener.
    H. N. Atkinson, of Houston, and W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. Ri Saunders, and Chas. B. Braun, all of Waco, for appellees.
   RICE, J.

The Central Texas Improvement Company, a corporation, and W. B. Carring-ton brought this suit in the form of trespass to try title against Marvin Moore and Mrs. j Eva Moore, R. B. Carpenter, W. R. Denton and wife, Mattie D. Denton, and H. E. Can-naday, defendants below, appellees here, to recover from them the title and possession of lots 3 and 4 in block 41 of the Provident Pleights addition to the city of Waco. During the pendency of the suit, on May 2, 1914, S. L. Hume filed his plea of intervention in trespass to try title against appellees for said lots, praying for title and possession thereof. Appellees filed their second amended, original answer, wherein they denied the allegations of plaintiff’s petition, and in addition thereto pleaded not guilty, the three and five year statutes of limitation and improvements in good faith. The plaintiffs and intervener replied by supplemental petition, denying the allegations of appellee’s second amended original answer, and prayed as in their original pleading for title and possession of said property, except that they admitted the allegations of improvements in good faith.

Upon the conclusion of the evidence the Central Texas Improvement Company and W. B. Carrington were, at their own instance, dismissed from the ease without prejudice, after which the suit proceeded in the name of intervener alone.

In all substantial respects the issues involved and the facts presented herein are similar to those- involved in cause No. 5548, styled S. L. Hume, Appellant, v. R. B. Carpenter et al., Appellees, 188 S. W. 707, this day decided by us, for which reason we adopt the opinion in that case as the opinion in this, and direct that the same disposition be made of this appeal as in that case.

The judgment of the court below is therefore in all respects reversed, and the cause remanded.

Reversed and remanded.

On Appellant’s Motion for Rehearing.

This case is, in all substantial respects, a companion case to that of S. L. Hume v. R. B. Carpenter et al., for which reason we adopt as the opinion in this case the opinion this day rendered on appellant’s motion for rehearing in that case; and the facts being fully developed, and the jury having found the value of the lots in controversy, as well as that of the improvements thereon, it becomes our duty to render judgment for appellant for the lots in controversy, subject to the condition as required by chapter 2, title 128, Revised Statutes of 1911, and it is so ordered.

Motion granted. Reversed and rendered.


text:
    HUME v. DENTON et al.
    (No. 5550.)
    (Court of Civil Appeals of Texas. Austin.
    April 26, 1910.
    On Appellant’s Motion for Rehearing, June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.
    Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against W. R. Denton and A. R. Roberts, with cross-action by defendant Roberts against his codefendant, and intervention by S. L. Hume, setting up the ordinary allegations in trespass to try title. Cause, dismissed as to plaintiff, judgment for defendants, and the intervener appeals.
    Reversed, and judgment rendered for intervener.
    I-I. N. Atkinson, of Houston, and W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. R. Saunders, and Chas. B'. Braun, all of Waco, for appellees.
   RICE, J.

The Central Texas Improvement Company and W. B. Carrington, as plaintiffs, brought this suit in the form of trespass to try title against W. R. Denton and A. R. Roberts, to recover of and from them the title and possession of lots Nos. 4, 6, 6, 7, and 11 in block No. 38 of the Provident Heights addition to the city of Waco.

Defendant Roberts filed his original answer and cross-action, wherein he pleaded a general demurrer, plea of not guilty, and that his codefendant Denton had conveyed to him the .lots by warranty deed, and prayed that in the event of plaintiffs’ recovery that he have judgment over against Denton for the purchase money paid by him and interest thereon, and asking that Denton be required to defend said suit.

Denton in due time thereafter filed his original answer, wherein he denied the allegations of plaintiffs’ pleading, interposing pleas of not guilty, and the three and five year statutes of limitations.

On the 2d of May, 1914, appellant Hume filed his plea of intervention, complaining of the above-named defendants, setting up the ordinary allegations in trespass to try title, and praying judgment against defendants for title and possession of said property. Subsequently plaintiffs and intervener filed their first supplemental petition, wherein, among other things, they denied each and all of the allegations of defendants’ original answer, and prayed as in their original pleading for title and possession of said property. Though not specially pleaded, appellees relied upon an equitable estoppel, based on certain alleged statements made by H. N. Atkinson, secretary and treasurer of the Provident Investment Company, the former owner of the lots, and one of the attorneys for appellant, to Mr. E. C. Street, formerly assistant county attorney of McLennan county.

During the progress of the trial the Central Texas Improvement Company and Car-rington were, at their own .instance, dismissed from the case, and the trial proceeded alone in the name of intervener, appellant herein. Judgment having been rendered in favor of appellees, appellant has duly prosecuted this appeal therefrom, asking a reversal on the ground that the , court erroneously. submitted the issue of estoppel to the jury.

This, in all substantial respects, is a companion case to cause No. 5548, styled S. L. Hume, Appellant, v. R. B. Carpenter et al., Appellees, 188 S. W. 707, this day decided by us, the issues being practically similar, and predicated upon the same testimony; for which reason we adopt the opinion in the case last referred to as our opinion in this, and direct that the judgment herein be in all things reversed, and the cause remanded.

Reversed and remanded.

On Appellant’s Motion for Rehearing.

This is a companion case to that of S. L. Hume v. R. B. Carpenter et al., this day reversed and rendered by us on appellant’s motion for rehearing, and involves the same issues as in that case, with the exception of the issue of improvements in good faith; for which reason the judgment of the court below is reversed and here rendered for appellant for the lots in controversy.

Motion granted. Judgment reversed and rendered.


text:
    HUME v. FLEWELLEN.
    (No. 5551.)

    (Court of Civil Appeals of Texas. Austin.
    April 26, 1916.
    On Appellant’s Motion for Rehearing, June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.
    Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against R. T. Flewellen, in which S. L. Hume intervened, pleading in the ordinary form of trespass to try title. Plaintiffs dismissed on their own motion without prejudice, and judgment for defendant, and intervener appeals.
    Reversed, and judgment rendered for intervener.
    H. N. Atkinson, of Houston, and W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. R. Saunders, and Chas. B. Braun, all of Waco, for appellee.

      Application for writ of error pending in Supreme Court. •

   RICE, J.

On December 20, 1913, the Central Texas Improvement Company, a corporation, and W. B. Carrington brought this suit against R. T. Flewellen to recover title and possession of lots 9, 10, 11, 12, 13, 14, 15, and 16 in block 34 of the Provident Heights addition to the city of Waco. On January 6th next thereafter defendant answered by general denial, plea of not guilty, and the three and five year statutes of limitation.

Appellant S. L. Hume intervened on May 2, 1914, complaining of the same defendant, pleading in the ordinary form of trespass to try title, and praying for judgment against defendant for title and possession of the lots in controversy. Thereafter on October 20th, plaintiffs and intervener by their first supplemental petition denied each and all of the allegations of the defendant’s original answer, and prayed as in their original pleading for title and possession of the property.

During the trial plaintiffs, upon their own motion, were dismissed without prejudice and the case proceeded alone in .the name of S. L. Hume, the appellant herein. The court peremptorily instructed the jury that the record title to the lots in controversy was in appellant, and the only issue submitted for their' consideration was as to whether or not appellant was estopped from claiming the lots by reason of certain statements made by H. N. Atkinson (the secretary and treasurer of the Provident Investment Company, the original owner of said lots), one of appellant’s attorneys, to Mr. E. C. Street assistant county attorney of McLennan county, prior to the institution of a suit brought by him in the name of the state against' the unknown owners of the lots for the recovery of taxes thereon. Judgment having been rendered in favor of appellee on said plea, this appeal is prosecuted therefrom by appellant, assigning error on the submission of such issue.

This is a companion case to cause No. 5548, styled S. L. Hume, Appellant, v. R. B. Carpenter et al., Appellees, 188 S. W. 707, this day decided by us; and for the' reasons set forth in the opinion rendered in that case, the judgment in this case is reversed and the cause remanded for another trial, not inconsistent with the views therein expressed.

Reversed and remanded.

On Appellant’s Motion for Rehearing.

This is a companion case to that of S. L. Hume v. R. B. Carpenter et al., 188 S. W. 707, this day reversed-and' rendered by us on appellant’s motion for rehearing, and involves the same issues as in that case, with the exception of the issue of improvements in good faith; for which reason the judgment of the court below is reversed and here rendered for appellant for the lots in controversy.

Motion granted. Judgment reversed and rendered.


author: HUFF, C. J.

text:
    ATCHISON, T. & S. F. RY. CO. et al. v. WHITE.
    (No. 1017.) *
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1916.
    On Motion for Rehearing, Oct. 11, 1916.)
    1. Carriers <&wkey;218(5) — Live Stock — Action eok Injury — Limitation—Failure to head Contract.
    A shipper of 'live stock, who had made a shipment over the defendant’s line about once a week for a number of years, and who knew that the carrier was relying- upon the terms of a written contract which ho would be required to sign, and who had never shipped without signing such contract, though he had never read the contract as he might have done, his failure to read it and learn of a 6 months’ limitation of action for damages to stock, was such negligence that he could not be heard to dispute the contents of the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).]
    2. Carriers <&wkey;218(5) — Live Stock — Action-Limitation — Validity.
    Where a shipper is furnished cars for a shipment of live stock, without requiring him to sign any written contract, and a contract is presented to him for signature after the stock is in the car and about to start, and where he or the person signing it does not know its contents, and has no time to read it, and signs to secure passes to attend the stock, such contract would not be a contract of the shipper, and the limitation restricting liability of the initial carrier to damages on its own line is not binding.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).]
    3. Carriers <&wkey;218(l) — Live Stock — Action for Injury — Limitation.
    A contract for the shipment of live stock containing a provision that a suit for damages thereto should be instituted within 6 months after the damage, and that a failure to do so would be conclusive evidence against the validity of any claim, was valid as to an interstate shipment under the law existing at the time of the shipment in February, 1913.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 933-935, 939; Dec. Dig. &wkey;218(l).]
    On Motion for Rehearing.
    4. Carriers <&wkey;228(5) — Live Stock — Delay-Action for Damages — Evidence — Contract.
    In an action against carriers for damages to a shipment of live stock by reason of the delay in transportation as the result of which the stock did not get time to rest and fill, which it otherwise would have had, evidence held, to show merely the shipper’s request for cars as required by Interstate Commerce Act (Act Cong. Feb. 4, 18S7, c. 104, 24 Stat. 379) § 1, as amended by Act Cong. June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. 1913, J 8563, subd. 2), and a promise by the agent to get them if he could and not to show the elements of a contract.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;>228(5).]
    5. Carriers <&wkey;218(l) — Interstate Commerce —Furnishing Cars.
    Where cars were furnished on request for an interstate shipment of live stock, as required by the Interstate Commerce Act, the conditions in the contract as to the carriers’ liability are controlling.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 933-935, 939; Dec. Dig. &wkey;218(l).]
    Appeal from District Court, Lipscomb County; Frank Willis, Judge.
    Action by C. R. White against the Atchison, Topeka & Santa Fé Railway Company, and the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment rendered that plaintiff take nothing by his suit.
    E. C. Gray, of Higgins, Hoover & Dial, of Canadian, and Terry, Cavin & Mills, of Galveston, for appellants. Adkins & Sewell, of Higgins, for appellee.
   HUFF, C. J.

The appellee White sued the appellants for damages sustained in a shipment of cattle. He alleges that he delivered 382 head of cattle to the initial carrier, the Panhandle & Santa Fé Railway Company, at Higgins, Tex., for shipment to Wichita, Kan., on the 22d day of February, 1913; that the cattle were sold to one Frederick, to be delivered at Wichita, for the price of $6.90 per cwt. for 343 head, and $6 per cwt. for the remaining 39 head of cattle so shipped. These cattle, under the contract of sale, were to be delivered and weighed at 10 o’clock a. m. on the 24th day of February, 1913; that 'the cattle left Higgins at 11 o’clock p. m. on the day of shipment, and that the Southern Kansas Railway Company of Texas, whose name is admitted, was changed to the Panhandle & Santa Fé Railway Company, Issued a bill of lading or contract for the transportation of the cattle; that the agreement between White and Frederick was that the cattle should be shipped in time to' rest and “fill” before being weighed, of which agreement White notified the agent at Higgins and of the importance of getting the cattle to Wichita in the usual and in a reasonable time. -It is alleged the trip was not made in the usual time or within a reasonable time;, and as a result thereof the cattle did not get the rest and fill which they otherwise would have had and taken on; that if the cattle had been transported within a reasonable time they would have arrived at Wichita 6% hours earlier than they did; and that the appellants permitted the cattle, after arriving, to remain in the ears about 2 hours before unloading them. These acts are alleged to have been negligence on the part of the appellants, by reason of which the cattle did not get the fill they otherwise would have taken on, which would have amounted to 38 pounds per head, and that the cattle lost about 8 pounds in addition to the fill, by reason of unnecessary delay and the failure to-deliver the cattle at Wichita in the time in which they should have arrived.

The appellants filed a joint answer, with general and special exceptions, and specially, among other things, pleaded the execution of the bill of lading or contract, setting up several special provisions, among which, that the cattle were not to be transported to market in any particular time or by any particular train; that no suit could be maintained unless the same should be commenced within 6 months of the date of the injury.

The appellee replied that this contract was without consideration; that he had made an oral contract for the shipment; that after the cattle were loaded and ready to. start on. the trip, the contract was presented to him to-sign; that he did not read the same and could not have done so in the time required, and that he did not know its contents; that he signed for the transportation of himself with the cattle and his return with all the usual allegations that go with such pleas 'to this class of contracts.

The eighth and fourteenth assignments are based on the refusal of the court to give the second specially requested charge of appellants and their exception to the main charge of the court, on the ground that the appellee was bound by the written contract with reference to the time in which suit should be instituted. The shipment was made February 22, 1913. The cattle arrived at Wichita February 24, 1913. The suit was filed February 12, 1914; more than 6 months after the alleged damage. The ninth’ provision in the contract relied on is as follows:

“It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment, or of any contract pertaining to the same, or the furnishing of facilities for such shipment, shall be sustained in any court by law or equity, unless such suit or action shall be commenced within 6 months next after the loss or damage shall have occurred. The failure to institute suit within said time shall be deemed conclusive evidence against the validity of such claim or cause of action, and shall be a complete bar to such suit.”

The charge requested by the appellant is as follows:

“The defendants ask the court to charge the jury that under the circumstances in this case the plaintiff failed to institute this suit within the time prescribed by the limitations of the contract, and therefore plaintiff is not entitled to maintain this suit, and your verdict should be for defendants, and you are instructed to return a verdict for the defendants.”

The trial court instructed the jury that under the written contract the jury should find for the defendant, unless by a preponderance of the evidence the initial road received the cattle for shipment, and furnished cars for that purpose, without demanding a written contract of White, and after the cattle were upon the ears and the train about to leave, the contract was presented to the shipper for signature, and if they further found that the shipper did not know the contents of the contract, and had no time to read it and sign it'under these conditions, in order to secure a pass to attend the cattle, in such event the written contract,was not binding upon the shipper.

Appellants timely excepted to the charge. The appellee White testified on this point, on cross-examination:

“I stated that I have been shipping cattle for about 13 years over this road, and at this particular time I think I have been in the habit of making the shipments about once a week. Prior to the time I shipped these cattle I always was required to, and always expected to, and did, sign a contract under which they were shipped. I knew that is customary and that was required in order to get transportation. I knew that the railroad company only accepted and shipped cattle under a contract; I knew- we always signed a contract for transportation about a minute and a half before we started and after‘the cattle were loaded (shows witness contract). I signed that contract; I carried that contract on the train- with me, and that is the same kind.of a contract that I always signed. I had those contracts in my possession until I got to Wichita, and if I went to Kansas City, I had them in my possession until I reached "there. If I went every week I had those contracts in my possession lots of times.”
On redirect examination the witness stated that he signed the contract after the cattle were loaded, but there was nothing said about the contents of the contract at the time he was arranging for the cars at the time they were loaded; that the train was ready to go when the cattle were loaded and he ran up to the depot and signed the contract and left; that he did not know the contents of this instrument when he signed it. I-Ie was not given time to read it; that he always signed these contracts for transportation and gave them to the conductor and he punched them the same as he does a ticket.

On recross-examination he states;

That he did not ask time to read the contract; that he could read; that he could read while testifying. “I did want time to read it. When I ordered the cars, and when I got into the caboose, I knew it would be required of me to sign one of these, such as I had been signing. I could have read one of these contracts at different times on the train. I did not think it was necessary to read it. So far as I know, every contract I signed was just like this, so far as I know.”

In the original petition appellee alleged:

“That the time said cattle were delivered to the Southern Kansas Railway Company of Texas, said defendant issued to plaintiff a receipt or bill of lading therefor, whereby said defendant acknowledged delivery of said cattle for transportation, as aforesaid.”

And then alleged that the same was taken up and in the possession of appellants, and demanded its production on the trial, or pa-rol evidence would be offered of its contents. It is only in the supplemental petition that he alleges an oral agreement to furnish cars, and the reception of the cattle by appellants, and the loading of them on the cars before issuing the receipt therefor. We believe, however, in his original petition, that this cause of action is based on the written contract, and the evidence of appellee clearly indicates, we think, that he brought his cattle to the shipping pens with the understanding and knowledge that the written contract for transportation would be required. The fact that he did not read it should not, under such circumstances, defeat the appellant’s rights thereunder. Knowing ■ that he must sign it and that he would do so, and tha.t appellant required a written contract before shipment, for the transportation of the cattle, he ought not to be permitted to say that he is not bound thereby, because he did not know its contents. His secret purpose could not make a contract, especially so when he knew the appellant was relying upon the terms of the written contract, which he was, and would be, required to sign, and which he did sign. For 13 years he had been shipping cattle over the appellant roads, and lately liad been shipping every week, and bad never shipped without signing and making such contract. Even though he had never read one he certainly in that length of timg ought to have done so, when, by his admission, it is shown he could have done so. Railway Co. v. Adams, 182 S. W. 365; Turner v. Henderson, 183 S. W. 51; Kailway Co. v. Halsell, 36 Tex. Civ. App. 522, 81 S. W. 1243; Railway Co. v. Wright, 24 Tex. Civ. App. 291, 58 S. W. 846. The courts have, in certain cases, relieved the ignorant and those who could not know; but where they do know the contents of the written contract, or should have known by the use of reasonable diligence, we do not think they are relieved. Our Supreme Court said:

“If the Southern Pacific Company received the horses for shipment, furnishing the cars for that purpose, without demanding any written contract of the parties, and, after the horses were upon the cars and the train about to leave, the contracts were presented to the men in charge, or to the shipper, for signature, and if the shipper or the person who signed them did not know the contents of the contracts, and had no time for reading them, and signed them under these conditions in order to secure the passes to attend the horses, such contracts would not be the contracts of the shipper, and the limitation which restricted the liability of the railway company to damages accruing on its own line was not binding upon the shipper. Railway Co. v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; Railway Co. v. Withers, 16 Tex. Civ. App. 506, 40 S. W. 1073; Railway Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565.” Railway Co. v. Meadors, 104 Tex. 469, 140 S. W. 427.

This court, dn several cases, has recognized the above rule; but dn order to invoke the rule it must have been a contract for the transportation upon the oral agreement. It occurs to us there could have been no such contract in this case for the reason when the cattle were delivered appellee knew he would have to sign the written contract; ' that the appellant would require it; had always done so with him and he did sign exactly what he had expected to sign, and the cattle were transported on that contract. In this instance, whether he read or did not read it made no difference. He will not, on such negligence; be heard to dispute his engagement entered into in writing. Under the facts of this ease the trial court should have instructed a verdict for the appellants, as requested.

The contract as to the time in which the suit should be instituted is valid in interstate shipments under the law as it existed at the date of the shipment. Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, and the recent case of Northern P. R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905.

The judgment of the trial court will be reversed and here rendered that appellee White take nothing by reason of this suit, and that appellants recover their costs in this court and in the court below.

Reversed and rendered.

On Motion for Rehearing.

The appellee White has filed an earnest argument with his motion for rehearing, insisting that the facts in this case show an oral agreement to ship the cattle. We have again gone carefully over the testimony and feel assured that our conclusion in the original opinion is correct. The testimony of the original order for the cars, in the light of the Interstate Commerce Act, occurs to us does not amount to an agreement. White, in addition to his testimony set out in the opinion, testifies that he ordered the cars of Johnson, the agent of appellant for the shipment of the cattle, before delivering them. He thinks he ordered over the phone when he sold the cattle in the pasture.

“I told him that I had sold the cattle, to be weighed in Wichita, at a certain time, 10 o’clock Monday morning, and I wanted a special run. Then I went to town that evening. I believe the next morning, in company with A. J. Hill, I went to the depot to see Johnson. I met Mm on the platform. I stated the trade I had made with Frederick. Johnson told me he would do the best he could for me. I-Ie would get the best run he could for me. He called me up 3 or 4 days later, over the phone, and told me he could not get it for me. I would have to go on the regular pick-up. I told him I had sold about 400 head of steers to Frederick, to Wichita. I don’t believe I told him anything about the price. I told him I sold them to him to be delivered at Wichita, to be weighed at 10:30 Monday morning. I was to fill them,” etc.

The most that may be said of Hill’s testimony, on which appellee- so much relies, is that White told Johnson about his trade and what he wanted. Johnson “agreed that he would try to get a special run for the cattle.” White admits that Johnson afterwards told him he could not get' that run and that he would have to “go on the regular pick-up.” It occurs to us this does not meet the terms of an agreement for shipment. It was simply an order for cars. Johnson agreed to nothing, but that he would try to get a special run, which he afterwards notified appellant he could not get. The appellee, nevertheless, brought in his cattle for shipment. He did so knowing he would be required to. sign the contract he did sign. After 20 years’ experience as a cattle shipper and 13 years’ over this road, he must have known that the contract would answer the purpose of transportation for the caretaker, and also that it was a contract for the shipment. White’s testimony as to what was said and done before the shipment between him and the agent, shows no more than a request for cars, as provided for in the Interstate Commerce Act. Section 1, as amended by Act Cong. June 29, 1906, § 1 (U. S. Comp. St. 1913, § 8563, subd. 2), thereof provides:

“And it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor.”

The act defines “transportation” as including all cars, instrumentalities, and facilities of shipment in connection with the receipt and handling of property transported. When White ordered the cars for interstate shipment it was the duty of the railroad to furnish them under the federal act. Furnishing them did not make a contract, hut it was a duty imposed by the law. This testimony does not show the elements of a contract in our opinion, and especially when it was understood by White he would be required to enter into the contract. Congress has taken charge of interstate shipments from the time a request is made for the cars until final delivery under the contract of shipment.

Furnishing cars for the shipment of property is within the federal act, and the conditions in the contract of shipment as to liability is controlling. Railway Co. v. Prescott, 240 U. S. 6S2, 36 Sup. Ct. 469, 60 L. Ed. 836.

The motion for rehearing is overruled.
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