author: LANE, J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. DAWSON.
    (No. 6762.)
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1915.)
    1. Receivers <§=>174^-Liability — Touts Occurring BEFORE APPOINTMENT.
    One appointed receiver of a railroad by a federal court cannot be sued for past torts of the company unless the party suing first obtains permission from the court; but Act March 3, 1911, c. 231, § 66, 36 St. 1104 (U. S. Comp. St. 1913, § 1048), expressly allows suits against such receiver for his own wrongful acts, without previous leave of court.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. <§=>174.]
    2. Railroads <§=>452 — Killing Stock — Allowance fob Attorney’s Fees.
    Under Rev. St. 1911, art. 2178, authorizing a recovery of attorney’s fees in certain suits where the amount does not exceed $200, the allowance of a $20 attorney fee for collecting a $75 item included in claims for $215 for killing three head of stock was erroneous.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1653; Dec. Dig. <§=>452.]
    3. Appeal and Error <§=>499 — Assignments of Error.
    Where there is nothing in the record showing any objection to the charge before it was submitted to the jury, nor any exception reserved thereto, assignments complaining of the charge wiil not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    4. Railroads <§=>442 — Killing Stock — Ac-tio n — Evidence.
    Where the evidence in an action for killing stock was sufficient to permit a finding that the stock was killed at a point on defendant’s road where it was unfenced, or where the fence was insufficient to keep stock off the road, evidence that the mutilated bodies were found near the track, and circumstances tending to show that they were killed by passing trains, were admissible, without proof of negligence of those operating the trains.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dec. Dig. <§=>442.1
    5. Railroads <§=>441 — Action for Killing Stock — Burden of Proof.
    In view of Rev. St. 1911, art. 6603, making railroads liable for the value of stock killed or injured by their locomotives, etc., without requiring the owner to show negligence, except where their roads are fenced, proof that one or more of the animals were within the switch-yards or limits when killed required the road to show that it was not permitted^ by law to fence at such point, or that to do so'would endanger train operatives, or that public convenience prevented fencing.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig, <§=>441.]
    Appeal from Jackson County Court; J. W. Bagby, Judge.
    Action by K. J. Dawson against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver.
    Judgment for plaintiff, and defendants appeal Reformed and affirmed

      Claude Pollard and Robt. W. Stayton, both of Kingsville, and 'David M. Pieton, Jr., of Corpus Christi, for appellants. Rose & Sample, of Edna, for appellee.
   LANE, J.

Tbis suit was instituted by ap-pellee K. J. Dawson against tbe St. Louis, Brownsville & Mexico Railway Company and Prank Andrews, receiver of said railway company, to recover tbe value of three bead of cattle, two of which were killed in March, 1913, by tbe railway company before Prank Andrews was appointed receiver of said railway company, alleged to be of the value of $75 and $60, respectively, and one of which was killed on the 17th day of August, 1913, after said Andrews was appointed receiver of said railway company by the District Court of the United States for the Southern District of Texas, of the alleged value of $150,- all three of the aggregate value of $285. Appellee alleges in his petition that subsequent to the time of the killing of the first two of his cattle, and prior to the killing of the last one, Prank Andrews was appointed by the District Court of the United States as receiver of said railway company, and that he was at the time of filing of this suit such receiver, and had been such since his appointment. Appellee also alleges that about the 12th day of August, 1913, he presented his claim for $75 for the killing of the first of said cattle, and on the same day presented his claim for $60 for the killing of the second of said cattle, and that on the 4th day of September, 1913, he presented his claim for $150 for the killing of the last of said cattle to the proper agent of defendants for paj-ment; that all of said claims were presented for payment more than 30 days prior to the filing of this suit, and that he had employed his attorneys to bring suit for each of his said claims, and agreed to pay them a reasonable attorney’s fee for their services, and that $20 attorney’s fees on each claim sued for was reasonable, and that under the law he was entitled to recover from defendants $20 as attorney’s fees on each of said three claims sued upon. It is also alleged in said petition that the last animal killed was killed in the switchyards of said railway company at Vanderbilt in Jackson county, Tex. Appellants answered and denied all the allegations of appellee’s petition which charges that defendants, or either of them negligently killed either of the first two cattle alleged to have been killed; denied that said cattle were worth the value placed upon them by said petition, and that $20 was a reasonable attorney’s fee on each of said claims, and also denied that either of defendants are liable for said attorney’s fees. They also denied that said Andrews, receiver, is indebted to appellee for killing either of the first two cattle, because, as shown by appel-lee’s petition, both of said cattle were killed prior to his appointment as such receiver, or that the railway company is liable for the killing of the last of said cattle, which is shown by appellee’s petition to have been killed while the railroad was being operated by Frank Andrews as receiver. Appellants further answer as follows:

“Defendants further show the court (and this allegation is borne out by plaintiff’s petition, which also recites the fact) that the two Jersey heifers alleged to have been killed were killed, if killed at all, before the appointment of a receiver of the St. Louis, Brownsville & Mexico Railway Company, and the bull is alleged to have been killed after Frank Andrews had been appointed, on July 5, 1913, wherefore the St. Louis, Brownsville & Mexico Railway Company, if liable at all, on the face of plaintiff’s petition is not liable for the alleged killing of the bull; and likewise Frank Andrews, receiver, would not be liable for the killing of the two heifers; the petition on its face shows there are three causes of actions, and there are two different defendants, wherefore defendants pray judgment of the court, and that they go hence without day and at no cost.”

Tbe case was tried before a jury, which returned a verdict as follows:

“We, the jury, agree and find for plaintiff against defendants on the first count in plaintiff’s petition the sum of $75.00 damages and $20.00 for attorney’s fee. On the second count we find for plaintiff and against defendants $40.-00 damages. And on the third count we find for plaintiff and against defendants $100.00 damages.”

Whereupon the court rendered judgment in response to said verdict, and that execution issue for the collection of the same.

By appellants’ first assignment of error they insist that the court erred in rendering judgment against Frank Andrews, receiver, for the value of the two first cattle killed, and in rendering judgment against the railway company for the value of the last animal killed, because, as shown by appellee’s petition and the undisputed evidence, the two first cattle were killed before Frank Andrews was appointed receiver of said railway company, and that at the time the last animal was killed said railway company was in the hands of Frank Andrews as receiver, and the railroad was at that time being operated by such receiver.

One appointed receiver of a railway company by the federal court is not liable as such receiver for torts of the corporation occurring before his appointment, unless the party suing first obtains permission from the court in which the receivership is pending to bring such suit. See Andrews v. King, 170 S. W. 862; Andrews v. Jeter & Co., 171 S. W. 838, decided by the Court of Civil Appeals of the Fifth District December 9, 1914, not yet officially published; Freeman v. Barry, 133 S. W. 748; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672.

The contention of appellants in their first assignment is sustained: First, by the allegations of appellee’s petition; second, by the undisputed evidence; and, third, by the law. We, therefore, hold that the assignment presents fundamental error, and that so much of the decree of the lower court as orders judgment against Frank Andrews, receiver, for the value of the cattle killed before he became receiver, should be reformed and here rendered for said Andrews, and that so much of said decree as orders judgment against appellant railway company for the value of the last animal killed, after its properties had been placed in the hands of Frank Andrews, should be reformed and judgment here rendered for said railway company. We think the evidence sufficient to support a judgment against said railway company for the value of the two animals alleged to have been killed by it before its properties were placed in the hands of the receiver, .and we also think that since the amendment of the United States statutes of March 3, 1911, that a receiver, appointed by a federal court to take charge of railway properties, may be sued for wrongful acts or transactions of his in carrying on the business connected with the property, without previous leave of the court in which the receivership is pending, and as the trial jury has found from the evidence that the last animal killed was killed by the negligence of said receiver, Frank Andrews, while he was operating said railroad as such receiver, this court does not feel warranted in interfering with so much of the judgment of the trial court as orders recovery -against Frank Andrews, receiver, for the value of the last animal killed, after said Andrews was appointed receiver.

second assignment of error insists that the court erred in allowing ap-ap-to recover $20 as attorney’s fees, be-bethe amount sued for, consisting of three items, that is, for the value of three animals alleged to have been killed by ap-apwas for more than $200, and there-thereno recovery for such attorney’s fees can be had under the provisions of article 2178, ■ Revised Statutes of Texas of 1911, which authorizes the recovery of attorney’s fees in certain suits when the amount does not exceed $200. We think this contention should be sustained. Had appellee, Dawson, brought suit separately for the killing of each of his cattle in the justice court (which court only would have had jurisdiction) after he had properly presented the same for 30 days before suit, and after the railway company had refused to pay the same, he would have been entitled to recover reasonable attorney’s fees, if his recovery was for the full amount of the claim as presented to the railway company, but as appellee chose to accumulate several claims against said railway company, which aggregated more than $200, and then bring suit for the aggregate amount of said claims, to wit, $285, he cannot recover attorney’s fees under the provisions of article 2178, Rev. St. Tex. 1911. Had he brought suit on his $75 claim on which he recovered attorney’s fees in this case, in the justice court, it is hardly likely that a jury or court trying said cause would have found that $20 was a reasonable attorney’s fee in so small a suit.

In the case of M., K. & T. Ry. Co. v. Mahaf-Mahaf105 Tex. 394,150 S. W. 881, Chief Justice Brown of the Supreme Court says:

“There is a sound reason for allowing and limiting the amount of fee on small claims. If the claim be $200 or less, and suit must be instituted, which makes an attorney necessary, it is a heavy tax on the claimant.”

But it is held in that case that when a claim sued for exceeds $200 (as in this case) no attorney’s fee is recoverable under the provisions of article 2178, supra. It is shown by the petition that appellee’s suit was: First, -for an item of $75, value of one black heifer; second, for $20 attorney’s fees for collecting said item; third, for an item of $60, value of one red heifer; fourth, attorney’s fee of $20 for collecting said item; fifth, an item of $150, value of one bull; sixth, attorney’s fee for collecting said item; seventh, for the aggregate sum of $345. The verdict of the jury as set out in the judgment is for $215 damages to cattle and for $20 attorney’s fees for collecting the $75 item of appellee’s claim sued upon. We do not think that ap-pellee was entitled to recover any attorney’s fee in this suit.

Appellants’ third and sixth assignments of error complain of the court’s charge. There is nothing in the record showing that any objection was made to the court’s charge before the same was submitted to the jury, nor is there reserved any exception to the charge of the court, and therefore these assignments will not be considered.

There is no merit in appellants’ other assignments of error. The evidence was sufficient for the jury to find that the animals killed were killed at a point on the appellants’ railroad where it was unfenced, or where the fence of said railway company was wholly insufficient to prevent stock from going upon said railroad. M., K. & T. Ry. Co. v. Tolbert, 100 Tex. 483, 101 S. W. 206. This being true, the trial court properly permitted the jury, under proper instructions, to consider the testimony to the effect that the 'mutilated bodies of the dead animals were found near the railroad track, and other facts and circumstances tending to show that said animals were killed by passing trains, without proof of negligence on the part of those operating the train. G., H. & S. A. Ry. Co. v. Kropp, 91 S. W. 819; Ft. W. & R. G. Ry. Co. v. Swan, 97 Tex. 338, 78 S. W. 920.

It is provided by article 6603, Revised Statutes of Texas 1911, that each and every railroad company shall be liable to the owner for the value of stock killed or injured by their locomotives and cars running over said tracks, and that it is not required of the owner of such stock to show negligence on the part of said railroad companies as a pre-preto recover the value of stock killed, except where said companies have their roads fenced. When, as in this case, it is shown by the pleadings of the plaintiff and the evidence that one or more of the animals killed were within the switchyards, or switch limits, of said railway company at the time they were killed, it becomes the duty of the rail-, way company to show that said company was not permitted by law to fence its track at such point, or that by doing so it would endanger the lives of its train operatives, or at a place where the public convenience prevents its being fenced. In an action against a railway’ company for killing stock, when it contends that it was not required to fence its track at the place of killing, the burden to establish this defense is upon said railway company. Tex. Ry. Co. v. Oilmill Co., 126 S. W. 627; St. Louis So. Ry. Co. v. Seay, 127 S. W. 90S; T. & P. Ry. Co. v. Billingsly, 37 S. W. 27.

What has been said sufficiently disposes of all of appellants’ assignments of error, and for the errors pointed out, and the reasons given herein, the judgment of the lower court is reformed, and it is here ordered and adjudged: First, that the appellee, K. J. Dawson, do have and recover of and from the St. Louis, Brownsville & Mexico Bailway Company the sum of $115, the value of the first two animals killed, as found by the jury; second, that said K. J. Dawson do have and recover of and from Frank Andrews, as receiver of said railway company, $100, the value of the last animal killed, as found, by the jury; third, that K. J. Dawson take nothing by his suit for attorney’s fees; fourth, that K. J. Dawson pay all costs of this appeal; and, fifth, that appellants pay all costs of the court below.

No execution shall issue upon the judgment as here reformed, but appellee may present his claim as evidenced by the judgment as reformed to the court in which the receivership of said railway company is pending for approval and payment.

The judgment of the court below, as here reformed, is affirmed.

Reformed and affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    McCORMICK v. HOUSTON PRINTING CO.
    (No. 6743.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 2, 1915.
    Rehearing Denied March 4, 1915.)
    Libel and Slander <®=>82 — Pleading—Petition-Sufficiency.
    Where the petition in an action for libel set out that plaintiff conducted a rooming house in the neighborhood of a station, and further alleged an article published in defendant’s newspaper recommending that a car load of dynamite be placed under the bunch of disorderly houses around such station placarded as rooming houses, such petition was insufficient to state a cause of action, although plaintiff’s house was alleged to display a sign reading, “Furnished Rooms since there was nothing in the libel itself connecting plaintiff’s house with the houses referred to, while the allegation in the petition that his house was referred to was a mere allegation of an inference or conclusion of the pleader based upon the facts alleged and not admitted by demurrer.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 187-197; Dec. Dig. 82.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by Virgil McCormick against the Houston Printing Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    E. H. Vasmer, James Slyfield, and Wm. Glover, all of Houston, for plaintiff in error. Thomas H. Stone, of Houston, for defendant in error.
   McMEANS, J.

This was an action brought by Virgil McCormick against the Houston Printing Company to recover damages alleged by tlie plaintiff to have been sustained by him by the publication and circulation in defendant’s newspaper, the Houston Post, of an article alleged to be a libel of and concerning plaintiff. A general demurrer urged by defendant to plaintiff’s petition was sustained by the court, and, plaintiff declining to amend, the case was dismissed, and from the judgment sustaining the demurrer and dismissing the ease the plaintiff has appealed.

Plaintiff, in substance, alleged that on and for a long time prior to June 24, 1913, he ■ had under lease and had full control and management of a house ,and residence occupied by himself and his father and mother as’ a home, situated on the west side of Crawford street, in the city of Houston, and facing east on Crawford street; that the Union Station in said city is and was situated on the east side of Crawford street, facing west, and occupies an entire city block, and that plaintiff’s said residence is near and adjacent to said Union Station, being on the opposite side of Crawford street from said Union Station and about one-half block north thereof, and a distance of about Í75 feet therefrom; that such rooms in the house as were not occupied for family purposes by plaintiff and his father and mother were held out to the traveling public and the public in general for rent, and were on divers occasions rented to other persons; that said house was commonly known as a rooming house, was in fact a rooming house, and placarded as a rooming house, the placards designating it as such being as follows: A large sign in front of said house, lettered upon glass and illuminated by night with an electric light, reading, “Crawford House. Rooms 50‡, & $1.00 per Day;” a cardboard sign, tacked upon the railing of the gallery, reading, “Furnished Rooms;” and a cardboard sign, tacked upon the wall of the house, on the front gallery, also reading, “Furnished Rooms”— all of which were so placed for the purpose of informing the general public that the house was a rooming house. He further alleged his extreme care and caution in an effort to conduct an orderly house and to keep the same free from vice, and to exclude therefrom all persons of immoral character And lewd practices, and to deny the use of his premises to persons whom he had probable cause to believe were of bad character. He further alleged that on said 24th day of June, 1913, the defendant published, printed, and circulated in its newspaper, the Houston Post, which had a large and wide circulation, the following article, which he alleged was false, malicious, and a defamatory and wrongful statement of and concerning plaintiff and his said rooming house, viz.:

“The City’s Cow Lot.
“Is a Knock to the Pretentions of the City of Houston.
“To the Post:
“As long as Houston maintains a cow lot in the center of the town, such as may be found in the rear of the city jail, no one takes your statement seriously regarding ‘Cleaning up Houston.’ One may travel the world over and not find such a disreputable, disease-breeding, noisome place as this located in the midst of a city. It is scandalous and most damnable. Get rid of this stink hole, or cut out your mouthing about ‘Heavenly Houston.’ Further, set fire to the row of Daigo joints along Congress avenue, and use a car load of dynamite under the bunch of whorehouses around Union Station placarded as ‘Rooming Houses.’
“Among the people in the East with whom I have talked recently refer to Houston as a joke, referring to its claims as a city. The stinking bayou is bad enough, but think of this dirty cow lot at the city jail. I am ashamed to mention Houston among men who travel, for I am met with derision on account of this backwoods condition, and the scissor-bill politicians who manage the affairs.
“J. M. Birchfield.
“Houston, Texas.”

He then alleged that on said date and during bis entire life be bad lived a moral and upright life; that he is a man of good reputation, and had always borne the reputation of being a moral and law-abiding man among his friends and neighbors and acquaintances, and among all persons who had bad an opportunity to learn and know plaintiff’s true character and reputation. He also alleged the good reputation of his house. The seventeenth and eighteenth paragraphs of the petition consist of innuendo, and read as follows:

“XVII. Plaintiff represents to the court that the clause in the said libelous publication reading, ‘and use a car load of dynamite under the bunch of whorehouses around Union Station placarded as “Rooming Houses,” ’ meant and intended to mean, and charged and was intended to charge, plaintiff’s residence and place of business was a whorehouse, and it was so understood by all of plaintiff’s friends and acquaintances who read said publication and knew that plaintiff resided near the Union Station, and knew that he had bis house placarded as a rooming house; and said publication did thereby charge this plaintiff with running and conducting a whorehouse, that be kept and housed in his said residence and place of business common prostitutes, harlots, and strumpets, and that he kept and housed women of low, lewd, and debauched character who prostituted their bodies for hire and held unlawful commerce with men; and said publication thereby charged and intended to charge this plaintiff was a moral pervert, and was a low, degraded, and lascivious character, and that plaintiff procured money and a livelihood from the fruits and profit of running and conducting a whorehouse; all of which is wholly false and untrue, and is and constituted a libelous defamation of plaintiff.
“XVIII. Plaintiff represents that the defendant did, by the publication as aforesaid, and especially by the clause therein ‘and use a car load of dynamite under the bunch of whorehouses around Union Station placarded as “Rooming Plouses,” ’ charge this plaintiff with the crime of running a disorderly house in the city of Houston, Harris county, Tex., within the meaning of articles 359, 359a, 360, and 361 of the Penal Code of the state of Texas.”

The nineteenth paragraph of the petition alleges the damages sustained by plaintiff, and the twentieth contains a prayer for judgment for $30,000, for costs, and general relief.

After mature consideration, we have concluded that the general demurrer to the petition was properly sustained. In Harris v. Santa Fé Townsite Co., 125 S. W. 77, this court, in holding that the plaintiffs’ petition in that case failed to state a cause of action, said:

“While it was not necessary that the alleged libelous publications should have mentioned the name of the person intended to be libeled, and a cause of action in favor of the person injured by such publication is shown when the circumstances alleged point to him as the person concerning whom the libelous statements in the publication are made, the petition in such case must allege facts from which it can be reasonably inferred that plaintiff was the person intended to be libeled. The rule is thus stated in 25 Cyc. 449: ‘The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection upon any particular individual, no averment or innuendo can make them defamatory. An innuendo cannot make the person certain which was uncertain before.’ ‘An innuendo is not an averment of fact, but an inference of reasoning.’ 12 Ency. PI. & Pr. 49. The averment or innuendo that plaintiff was the person refei’red to will not make the petition sufficient, unless the facts and circumstances alleged are such that the truth of the innuendo can be reasonably inferred therefrom. The question is ‘whether the explanation given (by innuendo) is a legitimate conclusion from the premises stated,’ and to determine this question must be in all cases the exclusive province of the courts. * * * ”

The defamatory words published upon the face of the publication referred to “the bunch of whorehouses around Union Station, placarded as ‘Rooming Houses.’ ” No allegation by way of colloquium was made to show that plaintiff’s house was included in the class denominated “whorehouses.” It was not alleged that there was not a “bunch” of whorehouses around Union Station placarded “Rooming Houses,” nor, indeed, was it alleged that there was a bunch of rooming houses so situated to which the publication would apply or that plaintiff’s house was one of a bunch that would fall within that designation. So far as the allegations of the petition show, the only house in such proximity to the Union Station as to fall within the locality described — that is, “around the Union Station” — which was placarded at all, was plaintiffs house, and it was not placarded “Rooming House,” although the placards it bore perhaps conveyed the same meaning. The publication had reference to a “bunch of whorehouses” placarded “Rooming Houses,” and not , to a solitary rooming house located on the “opposite side of Crawford street from said Union Station, and being about one-half block north of said Union Station and a distance therefrom of about 175 feet,” as plaintiff alleged his house to be. It is true that the plaintiff endeavored by innuendo to so state his own conclusions from the article published charged him, as the proprietor of the Crawford House, with furnished rooms to rent, with being, in fact, a proprietor of a whorehouse. It may be conceded that a whorehouse may be so placarded as to appear to be a rooming house, but we cannot agree to the converse of the proposition which plaintiff seems to urge in his petition, without sufficient averments of fact to sustain his conclusion that a rooming house, or a house with furnished rooms for rent, and so placarded, may reasonably be considered to be a whorehouse by reason of its placards. Certainly such conclusions, so expressed by innuendo, do not follow from the charges contained in the publication, when, in the same pleading in which he urges such conclusion, he distinctly avers his good character and his reputation for good character in the neighborhood in which he lives, and also the good character of his house and its reputation for good character in the neighborhood in which it is situated. A general demurrer only admits the truth of the facts pleaded, and does not admit the truth of the inference or conclusion of the pleader based upon the facts alleged, unless the facts are sufficient to authorize such inference or conclusion. Allegation in the petition in this case that the publication complained of was made concerning plaintiff, being but a conclusion of the pleader from the facts alleged, and such facts being insufficient to sustain or justify such conclusion as a reasonable inference therefrom, the demurrer was properly sustained. Harris v. Townsite Co., supra; Witham v. Atlantic Journal, 124 Ga. 688, 53 S. E. 106, 4 L. R. A. (N. S.) 977.

The ease of Schulze v. Jalonick, 29 S. W. 193, relied upon by appellant, does not support his contention that the petition in this case is sufficient. In that case the petition charged libel upon a publication which stated that the plaintiff, Alvin Schulze, was the owner of a building in which an illegal business known as a “blind tiger” was conducted. The name of the plaintiff being thus connected with the unlawful business, the averment or innuendo that the defendant intended by the publication to charge plaintiff with being engaged in the conduct of such business was a reasonable inference from the facts stated in the publication, and therefore the facts alleged in the petition were sufficient to sustain the innuendo.

Having reached the conclusion that the general demurrer was properly sustained, it follows that the judgment of the court below should be affirmed; and it has been so ordered. '

Affirmed.
      <S=»For other same topic and KEY-NXJMBEB in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. et al. v. D. S. CAGE & CO.
    (No. 6766.)
    (Court of Civil Appeals of Texas. Galveston.
    March 10, 1915.)
    1. Carriers <©=>113 — Carriage oe Goods — Delivery to Carrier — Bill oe Lading.
    In accordance with custom, the I. railroad through its yard foreman, undertook to switch a car of rice from the spur track of the plaintiff to the tracks of the G. railroad connecting with it, over which such rice was to be shipped. Upon being notified by the plaintiff that it had notified the I. railroad to switch such car, the _G. railroad issued to the plaintiff its bill of lading- covering the shipment. The I. railroad neglected to switch the car, which was shortly destroyed by fire. Held, that under the general custom, the loading of the car and notice by the shipper to the I. railroad, made the I. railroad the agent of the G. railroad to receive the shipment, and that the issuance by the G. railroad of the bill of lading, with full knowledge of the facts, was equivalent to delivery of the shipment to the G. railroad and acceptance by it which gave rise to its liability, as insurer, although the shipment was destroyed before actually coming into its possession.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 100, 101, 608-620; Dec. Dig. <©= 113.]
    2. Indemnity <©=13 — Carriage oe Goods— Liability of Switching Carrier.
    In accordance with custom, the I. railroad, through its yard foreman, undertook to switch a car of rice from the spur track of- the plaintiff to the tracks of the G. railroad connecting with it, over which such rice was to be shipped. Upon being notified by the plaintiff that it had notified the I. railroad to switch such car, the G. railroad issued to the plaintiff its bill of lading covering the shipment. The I. railroad neglected to switch the car, which was shortly destroyed by fire. Held, that the I. railroad, under the general custom, was liable to respond to the G. railroad for a judgment against it in favor of the shipper, although the I.’s switching services, which were performed for a switching fee and not a freight charge, were not over its main line under contract of shipment, and were without knowledge on its part of the commodity loaded, consignor, consignee, or destination of the shipment.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. <©=>13.]
    3. Carriers <©=>129 — Carriage of Goods — Liability — Switching Carrier — Use oe Car Forbidden by Carriers’ Hule.
    Where a rule of a railroad that its service cars could not be loaded for shipments which it had no part in transporting, and in the division of freight charges for which it had no share was systematically disregarded by it, neglect of the rule in an individual case, when such a car was loaded for switching only to another road, could not serve it as a defense when sued for the loss of the shipment concerned.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 545-551; Dec. Dig. <©=>129.]

      4. Carriers <@=^>134 — Carriage of Goods — Delivery to and Accepted by Carrier— Sufficiency of Evidence.
    Evidence held sufficient to show, that a car loaded by shipper on its spur track was delivered to and accepted by defendant road for switching to a connecting road for transport.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 5S8-592, 607; Dec. Dig. <S=>134.]
    5. Carriers <®=3l34 — Carriage of Goods — Rule of Carrier — Nonenforoemeni^Suf-ficiency of Evidence.
    Evidence held sufficient to show that a railroad did not enforce its rule regarding the loading of shipments, for which it was to receive no part of the transportation, charge, into its serv,-ice cars.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. <8=>134.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by D. S. Cage & Co. against the Gulf, Colorado & Santa Eé Railway Company, the International & Great Northern Railway Company, and the Industrial Rice Milling Company. From a judgment for plaintiff against the Gulf, Colorado & Santa Fé Railway Company such defendant appeals, and from a- judgment -in favor of the Gulf, Colorado & Santa Fé Railway Company against the International & Great .Northern Railway Company, the latter appeals.
    Affirmed.
    Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant Gulf, CJ. & S. F. Ry. Co. Wilson, Dabney & King and Geo. A. 1-Iill, Jr., all of Houston, for appellant International & G. N. Ry. Co. L. B. Moody, of Houston, for appellee.
   McMEANS, J.

This is an action brought by D. S. Cage & Co., against the Gulf, Colorado & Santa Fé Railway Company, the International & Great Northern Railway Company, and the Industrial Rice Milling Company, to recover $438.55, with interest ■from February 29, 1912, the alleged value of a car load of rice and rice products, purchased by the plaintiff from defendant Industrial Rice Milling Company, and by said company delivered, on February 19, 1912, for shipment, to the defendant railway companies, under bill of lading issued by defendant, Gulf, Colorado & Santa Fé Railway Company, which said car load was never delivered. In three counts, pleaded alternatively, plaintiff seeks recovery against each defendant separately, that is, against the Gulf, Colorado & Santa Fé Railway Company, as having issued the bill of lading and breached its contract by nondelivery; against the International & Great Northern Railway Company by reason of failing to switch the car from the industrial track where loaded, after being notified by plaintiff’s agents, Industrial Rice Milling Company, to switch the car; and against the Industrial Rice Milling Company for failing to notify the International & Great Northern Railway Company to switch the car to the Gulf, Colorado & Santa Fé Railway Company’s tracks after the car was loaded. The Gulf, Colorado & Santa Fé Railway Company answered that it executed the bill of lading without receiving the car, which was located on the International & Great Northern Railway’s industrial switch track, and that under customs in vogue, the switching notice was to be given by the Industrial Rice Milling Company to the International & Great Northern Railway Company, and that the Gulf, Colorado & Santa Fé Railway Company did not give the notice to switch the car; that the rice products were destroyed by a fire of great range, while the ear was standing at the industrial track where loaded, which belonged to the International & Great Northern Railway Company; that the Industrial Rice Milling Company failed to give the switching notice, but that if any railway company was at fault, the International & Great Northern Railway Company was solely responsible, whereby it asked recovery over against said last-named company in the event of recovery by the plaintiff against it The'defendant International & Great Northern Railway Company answered that the loading of this particular car, while at its industrial track, for a shipment destined to a local point on the Gulf, Colorado & Santa Fé Railway was not only unknown to it, but was in violation of its rule prohibiting such use and loading, which was a reasonable rule, generally enforced, known to-all the parties to this litigation, and, further, that it did not accept the car for shipment as loaded, nor switch the same, but that the car and contents were destroyed while the car was standing at the industrial switch where loaded, by a fire through no fault on its part, and while the car was not in its possession; that there was no notice to switch given to it, and the car as loaded and billed was subject to the disposition of the Gulf, Colorado & Santa Fé Railway Company. The Industrial Rice Milling Company answered that it had duly notified the International & Great Northern Railway Company to switch the car, and performed all its duties in the premises both two days before the fire and during the fire, and that said last-named company was solely at fault. Trial before the court without a jury resulted in judgment in favor of the plaintiff for amount sued for against the Gulf, Colorado & Santa Fé Railway Company, and in favor of that company against the International & Great Northern Railway Company for the amount adjudged against it; and no recovery was had against the Industrial Rice Milling Company. From the judgment against the Gulf, Colorado & Santa Fé Railway Company in favor of plaintiff, said company has appealed, and the International & Great Northern Railway Company has appealed from tire judgment over against it in favor of the railway company first named.

We shall first dispose of the questions presented by the appeal of the Gulf, Colorado & Santa Fé Railway Company. Its first assignment of error is as follows:

“The court erred in not rendering judgment for, and in rendering judgment against, this defendant, because the undisputed evidence and findings of fact show that said car had never come into the actual or constructive possession of this defendant, but was at the time same was destroyed on the tracks and in the possession of the International & Great Northern Railway Company, at the mill of the Industrial Rice Milling Company, a distance of two miles from the line of this defendant, where it was to be delivered before this defendant could transport the same, and therefore, in contemplation of law, the bill of lading, which could only take effect from the time this defendant took charge of the car, was not in force and effect in so far as this defendant is- concerned.”

It contends by its propositions under the assignment: (1) That a railway company issuing its bill of lading to a shipper of goods, either under an agreement or a custom, known to both parties, that the same were to be subsequently delivered to such railroad by an independent agency, is not liable as a common carrier for loss of or damage to the goods before the same actually come into its possession; and (2) that where a railway company issues its bill of lading to a shipper, under a custom, known to both, that the same must .be delivered to the carrier by means of a switching movement of another railway company, which movement under said custom is to bo made upon the request of the shipper to the line of the carrier issuing the bill of lading, the latter is not liable as a common carrier for the loss of the goods where the same never came into its possession.

The court upon proper request reduced to writing and filed its findings of fact; and we here set out so much of the same as is pertinent to the questions raised by both appellants:

“(1) The defendant, Gulf, Colorado & Santa Fé Railway Company and International & Great Northern Railway Company are common carriers engaged in the transportation of passengers and freight for the general public for hire, and were so engaged on February 19, 1912, and ever since then.
“(2) On February 17, 1912, the Industrial Rice Milling Company, at the request of plaintiff, loaded 190 sacks of rice bran and polish belonging to the plaintiff into a certain Missouri Pacific car No. 35497, which was then standing upon the industrial track of the International & Great Northern Railway Company, at the warehouse of said milling company, and thereafter, on February 19, 1912, the Gulf, Colorado & Santa Fé Railway Company executed and delivered to plaintiff a bill of lading, whereby it agreed and promised to carry said car and the contents thereof to its usual place of delivery, at Alvin, Tex., and there deliver the same to whomsoever plaintiff might direct, for a compensation agreed upon of four cents per hundred pounds.”
“(4) The said Gulf, Colorado & Santa Fé Railway Company did not carry said car and its contents to its usual place of delivery at Alvin, Tex., and there deliver the same to whomsoever plaintiff might direct, but on February 21, 1913, the said car and its contents were totally destroyed while still standing at the place where it had been loaded.”
“(6) The Industrial Rice Mill was on the line of the International & Great Northern Railway Company; that is to say, industrial property. The Gulf, Colorado & Santa Fé Railway Company had no track, either main line or switch, running into said mill; the distance from the Gulf, Colorado & Santa Fé Railway Company’s track to the said mill via the International & Great Northern Railway was about two miles, all of which was known to plaintiff at the time the bill of lading covering the shipment was issued.
“(7) The International & Great Northern Railway Company had a rule in vogue at the time of the loading of said car that it would not receive orders to switch a car from an industry on its line from railroad which was to transport said shipment, but that it required said order to be given by the industry loading the shipment, and in this case it was to be given by the Industrial Rice Milling Company.
“(8) I find there was a universal custom in vogue in the city of Houston at the time this shipment was made and for a long time prior thereto, which custom was in the contemplation of plaintiff and the Gulf, Colorado & Santa Fé Railway Company at the time said bill of lading was signed, to the effect that where shipments are loaded at a rice industry on the line of one railroad, destined to a point on the line of another railroad, which latter railroad has no switch into said industry, it is the duty of the industry to notify the switching foreman of the railroad which has a switch running into such industry to switch a car when loaded to the railroad upon whose line of railway the shipment is to be transported. I find that under this custom the Industrial Rice Milling Company, who were the plaintiff’s agents for this purpose, notified the switching foreman of the International & Great Northern Railway Company concerning this shipment on February 19, 1912, and also a second time on February 20, 1912. I further find that it was a part of this custom for the railroad company upon whose line of railway said car was to be transported to sign a bill of lading for such car as soon as the shipment was loaded, and prior to the switching of the same to its line.
“(9) I further find that said car was never in the actual possession of the Gulf, Colorado & Santa Fé Railway Company, and that the notice required by the rules of the International & Great Northern Railway Company for it to switch the car from the line of the Industrial Rice Milling Company to the Gulf, Colorado & 'Santa Fé Railway Company was given in this case, and that the actual constructive possession of said car had passed in the International & Great Northern Railway Company.
“(10) The freight on this shipment, exclusive of switching charge, was $12.04. For switching the car from the Industrial Rice Milling Company to the Gulf, Colorado & Santa BY Railway Company the International & Great Northern Railway Company would have been entitled, under the rules of the Railroad Commission of Texas, to receive $2. The switching charge could have been paid by the plaintiff or carried as an advance charge, and could have been collected at destination by the Gulf, Colorado & Santa Fé Railway Company. In this particular instance such switching charge would have been collected by the Gulf, Colorado & Santa Fé Railway Company from the shipper or his assigns and paid over to the International & Great Northern Railway Company.”

From the foregoing fact findings of the court (to which appellant has not excepted), and from the evidence in the record, it appears that there was a general custom prevailing among railroad companies and shippers in the city of Houston substantially to this effect: That where a shipment was made by an industry located on an industrial track of one railroad to be transported over the line of another railroad to its destination, it was the duty of the shipper, after it had loaded the car at its plant on the industrial track, to notify the owner of 'such track to switch the car to the railroad over which it was to be transported; that when such notice had been given, it became the duty of the owner of the industrial track to so switch the cars, and the giving of such notice was, under the custom, the only action required by the shipper to secure the delivery of the car by the owner of the industrial track to the railroad over which the shipment was to be transported; that after this notice was so given to the owner of the industrial track, it was the custom of the shipper to notify the railroad company over whose line the shipment was to be transported that the car had been loaded, and that notice thereof, accompanied by a request to switch the car to the transporting line, had been given to the owner of the industrial track, whereupon the line over which the shipment was to be transported would issue its bill of lading therefor. It appears from the evidence and the court’s findings that everything necessary to be done by the shipper, under this custom, was done, and if the general rule had been followed in this instance by the owner of the industrial track, the shipment would have reached the line over which it was routed in a very short time thereafter. However this may be, the appellant Gulf, Colorado & Santa PS Railway Company, recognizing the custom above mentioned, and in pursuánce thereof, issued its bill of lading for the shipment after it knew that the shipper had performed everything necessary to deliver the shipment to it, and which, had the custom been followed in this instance, but which without any fault on the part of the shipper was not followed, would have resulted in the delivery of the shipment into its actual possession in a short time after the issuance of the bill of lading. We think that, under the custom, the loading of the car and notice of the owner of the industrial track to switch it to the line of the Gulf, Colorado & Santa Pé Railway Company constituted the former the agent of the latter, especially after it promised to switch the car, as the evidence shows it did, and thereafter the issuance by the Santa Pé of the bill of lading with full knowledge of the facts was tantamount to a delivery to and acceptance by the Santa Fé of the shipment, and it thereby became liable as an insurer, although the shipment was thereafter destroyed before coming into its actual possession. Revised Statutes 1911, art. 713; M. K. & T. Ry. v. Union Ins. Co., 39 S. W. 975; T. & P. Ry. v. Nicholson, 61 Tex. 495. Prom the case first cited we quote:

“It appears from the evidence that the custom and habit of dealing between the appellant and the compress company and the owners of the cotton that was delivered to the compress company for compression and shipment was that the .cotton for which bills of lading were issued by the appellant, and which was designated and identified as the cotton mentioned and described in the bills of lading, should be regarded as then under the dominion and control of the carrier, and that its liability as a carrier then attached, although there was no actual delivery to .the carrier on board its cars. By the custom of the parties the carrier received its cotton for transportation from the platform of the compress company, and bills of lading were issued by the carrier covering the cotton on the compress platform before the cotton ever came into the actual possession of the carrier; but when these bills were issued it was understood by all the parties that the cotton covered by the bills could be transported to its destination by the carrier, and the liability of the carrier was by the parties treated as commencing at the date of the issuance of these bills. The general rule of law upon this question is that the bills of lading issued by the carrier are not conclusive as between the parties, and are subject to explanation, to the extent that the carrier may show that in fact it has never received the property for transportation, and therefore its liability as a carrier never existed. And it is true the general rule is that there must be an actual delivery to the carrier, in order to create its common-law liability for carriage; but this does not mean, in all instances, an actual delivery. It may mean such a delivery as the parties among themselves may agree upon as sufficient, in placing the property under the control of the carrier, or the custom and habit of dealing in shipments of a particular character may establish the liability of the carrier, when in fact there has been no actual delivery.”

The assignment is overruled.

The other assignments presented by appellant Gulf, Colorado & Santa Pé Railway Company raise substantially the same points as that above discussed, and are overruled.

We will now dispose of the appeal of the International & Great Northern Railway Company, hereinafter called the International.

By its proposition under its first and second assignments of error, which sufficiently raises the points, appellant urges that, the shipper’s intended movement of the shipment by the International not being a transportation service over its main line, under contract of shipment, for which freight charges or a division thereof could be charged by said company, and being a mere switching service from an industry over its switch tracks to the Santa Pé; without knowledge by the International of the commodity loaded, consignor or consignee, or destination, performed for the benefit of the Santa Pé, which issued the bill of lading and solely contracted for the transportation service, the International’s rules governing such service, which were reasonable, were lawfully enforceable, and when not complied with by the shipper, it did not thereby hold itself out as a common carrier for the performance of such service, nor become liable as an insurer, and that the evidence being uncontradicted that the reasonable rule of the International, prohibiting the loading of its service cars, to which it had the first right of use, for shipments in which it did not participate in the transportation service or division of freight charges, had been violated in this instance, and that the car was not accepted for shipment, the International was not an insurer of the commodity shipped, nor liable for its destruction.

But for the custom existing among shippers and carriers, and as between the carriers themselves, to which we have heretofore referred, and had the undisputed proof shown the facts to be as contended in the proposition, the assignments would present a serious question. As to the contention that the rule of the International prohibiting the loading of its service cars for shipment in which it did not participate in the transportation service or division of freight charges had been violated in this instance, it is a sufficient answer that the trial court found as a fact that the International did not enforce such rule, and this finding is sustained by the testimony. It was shown that the ear was a Missouri Pacific car, and was therefore a foreign or service car in the possession of the International. Witness Hil-fueh testified:

“We frequently get bills of lading from shippers that are issued by industries located on the tracks of the International & Great Northern Railway Company, which shipments are to local points on the Santa Fé Railway Company’s line, and which shipments are loaded into the International & Great Northern Railway Company’s cars.”

Besides this, it was shown that after the car was loaded and the International, through its proper agent, was notified to switch the same to the Santa Fé, it made no objection to the use of the car, but promised to switch the same.

As to the contention that the car in question had not been accepted for shipment by the International after it was loaded, it is a sufficient answer that the court found as a fact that it had accepted it, and the evidence sustains the finding. The court found that under the existing custom the shipper had notified the International through its switching foreman concerning the shipment, and that the notice required by the rules of the International for it to switch the car from the industry where loaded to the Santa Fé was given and that the actual possession of the car had passed to the International. The witness Gaver, who was the shipping clerk of the Industrial Rice Milling Company, and under whose superintendency the car was loaded, testified that he notified the International’s switching foreman that the car was loaded, and ordered that it be' pulled out over the connecting line of the Santa Fé and that the foreman replied that they had other work to do down in the yards, and they would come back in the evening; that he again, on the next day, told the foreman to get the car out, and the latter said he would. It was also shown that in shipments of this character the International required such notice, to be given by the shipper, and that the shipper gave the notice in this instance. If, then, the rule of the International, prohibiting the loading of its service cars for shipments in which it did not participate in the transportation service or division of freight charges, was not enforced, it amounted to no rule which would be available to it as a defense in this case; and, as under the general custom, notice that the car was loaded was given to its proper agents, accompanied by a demand that the car be switched to the carrier over whose line the shipment was to be transported, and as such agent had agreed, without any objection to the use of the car by the shipper in the circumstances' detailed, to so move the same, we think that the car passed thereby into the possession of the International, and it thereafter held such possession as a common carrier, and was liable over to the Santa Fé for the value of the goods destroyed by fire while in its possession.

third assignment complains that the court erred in finding as a fact that the International did not enforce any rule to the effect that the cars in its service should not be loaded for shipment wholly to points on another railway. We have already shown, we think, that this finding was warranted by the testimony.

The fourth assignment is sufficiently answered by what we have said in disposing of the second and third assignments.

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

Affirmed.
      <J=>ITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gn^>For otter oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: ‘ BUCK, J.

text:
    FREEAR-BRIN FURNITURE CO. v. MERRITT.
    (No. 8092.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 13, 1915.)
    1. Trover and Conversion <§=>4 — Acts Constituting.
    Where plaintiff, who had purchased furniture on time, giving a chattel mortgage on it to the seller to secure the price, moved away after renting his house, containing such furniture, to a third person, and where the seller of the furniture entered into an agreement with the plaintiff’s tenant that by paying what was due on the furniture such tenant might have the use of it, but must surrender it to plaintiff -on his return, the goods actually being surrendered to the plaintiff on his return, the plaintiff had no right of action as for conversion against the seller of the furniture.
    [Ed. Note. — For other eases, see Trover and Conversion, Cent. Dig. §§ 25-37; Dee. Dig.
    2. Trover and Conversion <3^4 — Right oe Action — Damage.
    Where plaintiff bought furniture of defendant on time, giving a chattel mortgage on the goods to secure their price, and, having let the house containing such furniture to a third person, left the state, and where plaintiff’s tenant refused to pay rent as for a furnished house because defendant furniture company, after plaintiff’s departure, notified the tenant of the state of affairs and entered into an agreement with him that he might us.e the furniture by paying what was due on it, subject to the plaintiff’s ultimate right to reclaim, the damage suffered by the plaintiff through his tenant’s failure to pay rent as for a furnished house gave no foundation for a right of action by way of conversion against defendant.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 26-37; Dec. Dig. <@=34.]
    3. Damages <@=387 — Exemplary Damage — Trover.
    In an action of trover and conversion, the plaintiff could not recover exemplary damages, where he failed to establish his right to recover actual damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. <⅜^87.1
    4. Troveb and Conversion <@=340 — Damages —Sufficiency oe Evidence.
    Evidence held insufficient to show that plaintiff sustained actual pecuniary damage because of loss of rent as for a furnished house, refused to be paid by a tenant because the furniture therein had not been paid for by plaintiff.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. <§==>4o.]
    5. Apee ad and Eeeoe <@=31175 — Determination oe Cause — Reversad — Directing Judgment.
    Where it fully appears from the testimony developed below that the plaintiff has not made out a cause of action, the case will not be remanded, but judgment for the plaintiff will be reversed and rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. <@=3 1175.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Action by C. F. Merritt against the Freear-Brin Furniture Company. Judgment for plaintiff, and defendant appeals.
    Reversed in part, affirmed in part, and rendered in part
    W. Lindsay Bibb, of Wichita Falls, for appellant. John C. Kay, of Wichita Falls, for appellee.
   ‘ BUCK, J.

This suit was filed in the county court of Wichita county, and tried by the court without a jury, and from a judgment in favor of appellee for $6 actual damages and $100 exemplary damages, and in favor of appellant against appellee for $56.60 and foreclosure of the lien retained in the chattel mortgage executed by appellee, this appeal was taken.

Appellee, plaintiff in the court below, alleged in his petition that he was a married man, and had bought certain furniture from the defendant company, upon which he executed a chattel mortgage to secure the unpaid purchase money; that while he was away in Oklahoma defendant entered into possession of the furniture and sold it to one Whitener, making, as he alleges, a conversion thereof. He further alleges that there was some $38 worth of furniture sold to Whitener which was not covered by the mortgage, although bought from the defendant company and not paid for by plaintiff, and that these items were also sold by defendant, and that this was done without probable legal cause and with intent to harass and humiliate plaintiff, etc., that plaintiff ought to have had notice that his goods were thus sacrificed, and that he was caused humiliation and disgrace. He alleged actual damages in the sum of $479.50, consisting of a claim for $15 a day for 15 days’ absence from business while attending to the recovery of his furniture; for railroad fare from Oklahoma and return, $7; expenses, 7 days, $17.50; and a loss of $25 per month for 2 months on rental; and in his petition he alleged damages for “humiliation and mental anguish” in the sum of $300, and further claimed exemplary damages in the sum of $300.

The court, in his findings of fact, finds that appellee had bought articles of furniture from defendant company on May 9,1913, amounting to $125.60, and gave a chattel mortgage on same, and soon after purchased other articles of furniture on open account, amounting to $38.85, making a total purchase of $164.45; that appellee agreed to pay the first above mentioned amount in monthly installments of $25, and that at the time of the alleged conversion he had paid the defendant company the sum of $100, and subsequent thereto had paid $10 on said indebtedness; that said payments were not in accordance with the terms of said mortgage as to the amount of installments and the time of payments. Thus far, at least, we adopt the court’s findings.

It seems that on about November 12, 1913, appellant, having learned that appellee had left town and had rented out his house, in which was the furniture upon which it had retained a lien, sent to said house one of its employSs, who inquired of Mr. Whitener as to where Mr. Merritt had gone, etc., and that Mr. Whitener reported that he (Merritt) had left the state and that he (Whitener) did not know where he was, nor when he was coming back. Whereupon Mr. Freear, of the defendant company, prepared a memorandum list showing the articles that had been purchased by Mr. Merritt from the defendant company and the balance that was due for these articles, and gave the same to Mr. Whitener, with the understanding with Mr. Whitener that, if Mr. Merritt did. not pay the balance due the company, Mr. Whitener might retain possession of the articles in the house and pay the defendant company just what was due it from Mr. Merritt, but that, if Mr. Merritt came back and wanted his furniture, he (Whitener) would surrender it to him. It appears that no one else was present, during this conversation between Mr. Freear and Mr. Whitener, except the parties thereto, and they testify substantially the same as to said conversation and the terms of said agreement. Upon Mr. Merritt’s return from Oklahoma, Whitener surrendered the furniture, including the articles upon which there was no mortgage lien retained, and shortly thereafter moved out of the Merritt house. Whitener had never paid defendant company anything on the indebtedness owing, and made no claim, against Merritt as to the furniture.

Testimony as to what occurred between Freear, representing the defendant company, and Whitener, is uncontroverted, unless it he held that a letter written hy the defendant company to Mr. Merritt, which resulted in his return to Wichita Falls, to the effect that, the company having learned that he had left the town without informing it thereof and had subrented the house, or at least disposed of it in some way, it understood that he was gone for good’, and as the payments were behind, and it did not know what Merritt wanted done, it had taken possession of the goods and resold them, he deemed in conflict with the testimony of these two witnesses. But, be that as it may, ap-pellee would not be entitled to damages for an alleged conversion when he, upon his return to Wichita Falls, had demanded and received from Whitener the possession of the goods alleged to have been converted by the defendant company, and the reinstatement in possession of the goods by Merritt had been acquiesced in hy the defendant company, and a tentative agreement entered into between appellee and appellant for a discharge of the indebtedness due the latter by the former. Bank v. Jones & Nixon, 139 S. W. 671. In its judgment the court evidently did not allow a recovery for a loss of any goods. The evidence would not have supported such a judgment, and the amount of damages allowed excludes the idea that it was based upon any such theory. The only basis for the amount of $6 allowed as actual damages that we have been able to find in the record is the testimony of Mr. Whitener to the effect that he owed a balance on his rent of perhaps $6 for several days he occupied the premises after the expiration of the rental month, and he states that he did not decline to pay this amount because he claimed to own the furniture, or any part thereof, hut because Merritt had brought suit against him- for forcible entry and detainer and forced him out of the house.

Plaintiff pleaded that his tenant, Mr. Whitener, had rented his house furnished at the agreed price of $60 a month, but that he refused to pay him more than '$35 per month, on the ground that he, the tenant, having purchased the furniture, was relieved from the additional rental. Upon this point the plaintiff testified that said tenant had refused to pay the amount of rent which he had agreed to, upon the ground that, as he claimed, plaintiff did not own all the furniture, but that Whitener had bought the furniture from defendant, and therefore ought not to pay as much rent during the time he held possession of plaintiff’s house on account of Whitener’s claim of ownership to a part of .the furniture in the house, and that he lacked $50 of paying plaintiff the .amount of the rent which, under the alleged contract, he should have paid. The plaintiff could not recover of the defendant because of the failure of the former’s tenant to pay him any money due as rent undpr the contract between the two, and evidently the court did not predicate his judgment, allowing actual damages to plaintiff in the sum of $6, upon any such theory. In fact, we are unable to discover from the record any sufficient basis for this item of recovery, and we do not believe that the plaintiff in the trial court has established his right to recover any actual damages, in the absence of which he could not recover exemplary damages.

Therefore, without considering the assignments seriatim, we will sustain the fourth assignment, to the effect that there was no pleading or proof whatever to justify the finding of fact hy the court that plaintiff had ever sustained any actual damages in the sum of $6, or in any amount, because of the loss of rent; and the judgment of the trial court in favor of appellee and against appellant must be reversed, and since it appears that the testimony was fully, developed in the former trial, no good could be accomplished by remanding the cause for another trial. Therefore the judgment of the trial court, awarding damages, both actual and exemplary, in favor of appellee against appellant, is reversed and rendered, and that part of the judgment awarding appellant recovery in the sum of $66.60 and a foreclosure of his chattel mortgage lien is affirmed.

Reversed and rendered in part; affirmed in part.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: MeMEANS, J.

text:
    WILSON et al. v. HEBERT et al.
    (No. 6940.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 16, 1915.
    Rehearing Denied March 25, 1915.)
    Deains <§=>18 — Bonds—Contracts.
    Rev. St. 1911, art. 2600, prohibiting the sale of drainage district bonds for less than par and accrued interest, and providing that as the bonds are sold the moneys received shall be paid to the county treasurer to the credit of the drainage district, is mandatory, and contemplates that contracts for work for a drainage district shall be based on the expectation of payment in money, and where it was contemplated that the successful bidder should find a purchaser for the bonds, the market value of which was less than par and accrued interest, and that the successful bidder would pay the difference between the market value and par .value, the transaction was illegal, because compelling-taxpayers to pay the bonds in full while getting in work only the market value.
    [Ed. Note. — Eor other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <gcs>18.]
    Appeal from District Court, Jefferson Coun7 ty; W. H. Davidson, Judge.
    Action by J. M. Hebert and others against R. W. Wilson and others. Erom an order granting a temporary injunction, defendants appeal.
    Affirmed.
    Geo. D. Anderson and J. D. Wilkerson, both of Beaumont, for appellants. F. J. & C. T. Duff and Herbert W. Reed, all of Beaumont, for appellees.
   MeMEANS, J.

The appellees- instituted this suit against the appellant R. W. Wilson, county judge of Jefferson county, the drainage commissioners of Jefferson county, Drainage District No. 4, and the Lake Arthur Dredging Company, a corporation, to enjoin the county judge from disposing of bonds of said drainage district until he qualified himself to do so according to law, • and to enjoin the drainage commissioners from entering into a contract with the Lake Arthur Dredging Company for constructing the proposed drainage ditches. A hearing upon the application was had, at which the court heard testimony, and upon the conclusion of the hearing a temporary injunction was granted enjoining the execution of the contract between the commissioners and the dredging company. Prior to the hearing the county judge qualified himself to make sale of the bonds, and that feature of the case is eliminated. From the order granting the temporary injunction the drainage commissioners have appealed. No question is made as to the regularity of -the proceedings leading to the creation of the district or to the validity of its organization. The only question we feel called upon to consider is the right of the drainage commissioners to enter into the contract with the dredging company for the construction of drainage ditches under the peculiar facts of this case. The court did not hold that the law requires the bonds to be sold before the contract for doing the work could be 'made, and therefore this point, which is raised by appellants in their brief, need not be further considered.

Plaintiffs, after alleging the organization of the drainage district in the manner provided by law, further alleged that thereafter, upon proper petition, another election was ordered to determine whether the district as organized should be abolished; that pending such election the drainage commissioners advertised for sealed bids for excavating the drainage ditches, and the time fixed for receiving and opening the bids was a date anterior to the date of such election; that the plaintiffs sued out a temporary injunction restraining the opening of said bids and awarding the contract for doing the work before the result. of the election had determined whether the district should be abolished; that thereafter, and on the date when the bids advertised for were to be received and opened and the contract awarded, the defendants secured an order of the court so modifying the injunction theretofore granted as to permit the commissioners to open the bids and award the contract subject to the contingency that the election should result in a failure to abolish the district; that at this time the bonds had not been sold, and the bidders, and others who contemplated making bids for doing the work, were informed that the successful bidder would have to accept bonds in lieu of money in payment therefor; that because of this information several persons who otherwise would have made bids to do the work failed and refused to do so, and had they submitted bids would have bid less than 10 cents per cubic yard for each yard of earth to be removed in making excavations; that 8 cents per cubic yard was reasonable; that but two bids were submitted, one by the Lake Arthur Dredging Company, which bid 10 cents per, cubic yard, which was the lower of the two; that the election to determine whether the drainage district should be abolished thereafter resulted adversely to the movants, maintaining the district as originally organized; that thereafter the contract for doing the work was awarded to the Lake Arthur Dredging Company at 10 cents per cubic yard under a tentative agreement that the bidder was to take the bonds in lieu of cash, and that said dredging company “only agreed to purchase the bonds in consideration that the contract be let to it to do the work at 2 cents per cubic yard higher than they would charge were it being paid in cash, to wit, 10 cents per cubic yard”; that-the pre-‘ tended and tentative contract in truth and in fact amounts to selling the bonds of the drainage district at 80 cents on the dollar, less accrued interest; that no written and binding contract had been entered into between the dredging company and the drainage commissioners, but that unless restrained they would proceed to enter into the contract before stated. The sixteenth paragraph of the petition is as follows:

“Plaintiffs say they are informed, believe and so charge the facts to be that the contemplated contract with the Lake Arthur Dredging Company is not to buy the bonds and nay cash therefor, as provided by law, but they are to do the work at 10 cents per cubic yard and take the bonds in payment of said work,' the price for said work being fixed at such a price as to allow the bonds to be sold at 20 per cent, discount.”

Plaintiffs prayed that the drainage commissioners be enjoined from entering into said contract.

We have not attempted to state all the allegations of the petition, but only those upon which our decision is. rested, and in stating these we have given only the substance, ex-eept sucia portions as we have copied aboye; nor have we undertaken to follow the order in which the allegations are made in the petition.

The court in writing found the facts and thereon based conclusions of law, a portion of which we here give:

“First. At the time of the advertisement and receiving and acceptance of the bid, and at 'the time of the hearing, none of the bonds had been sold nor even offered for sale by the county judge in whom that power rests.
“Second. At none of said times was there any fund or money to the credit of this drainage district to induce bidders to bid for the work, or with which to pay therefor.
“Third. No other method existed to pay for the work as it was done except by the sale of the bonds.
“Fourth. At said time there was no market for said bonds at the price required by statute. “Fifth. All of the above facts were, at all times, known to the commissioners and the bidder.
“Sixth. All of the parties knew, or contemplated, in view of the above, that the contractor, in order to create this construction fund, would have to find a purchaser for the bonds, the price of which would be less than par and accrued interest, and that in order to satisfy the law and the county judge, as to the price to be paid for the bonds, the contractor would himself have to pay the difference between the statutory and market price. Whether they contemplated it or not, in this event the taxpayers of the district would lose this difference. The contractor, therefore, made his bid high enough to permit him to pay this difference and still allow it a profit, and made his bid considerably higher than would have been done had the proper construction fund existed, or the money been on hand with which to pay for this work. As an illustration of the idea these gentlemen had in trying to meet a law that they could not directly meet, the contractor actually offered this entire issue of $78,600 worth of bonds to W. P. H. McFaddin for 80 cents on the dollar, and had McFaddin bought the same, the contractor would have paid the additional 20 cents and the accrued interest on the entire issue, in which event the drainage district would have lost the 20 per cent, and in addition thereto the accrued interest at the time of the sale on the entire bond issue. The district would thus have received some $15,000 to $20,000 less work for this bond issue, yet would have to pay back in taxes the entire $78,500, with interest thereon each year. To meet this deficiency in the market price of the bonds, the bid made and accepted was for such an amount as would permit the contractor to protect himself on the contract and also to pay the deficiency. This, of course, is contrary to the statute and was never contemplated by law. As a further evidence of the fact that the bid was not made or received as upon a cash basis, no cash existed with which to pay for the work and no market existed by which the bonds could be sold for cash. This condition not only affected the question of a cash basis for the bid, but prevented that competition contemplated by law for the making of bids by others, and did not offer the means contemplated by law by which the work was to be p.aid for, and no fund existed by which bidders were induced to try for this contract; in fact, nothing existed at the time by which any bidder would be warranted in making any bid on a cash basis. There was not only a lack of cash, but a lack of the means by which to raise it, there being no market for the bond.”

The testimony in the record justifies the court’s fact findings.

Article 2600, Revised Statutes 1911, provides:

“When such bonds have been registered, * * * the county judge shall, with the additional assistance that the county commissioner’s’ court may direct and authorize, offer for sale and sell said bonds on the best terms and for the best price possible, but none of said bonds shall be sold for less than the face par value thereof and accrued interest thereon; and as fast as said bonds are sold, all moneys received therefor shall be paid by the county judge to the county treasurer, and shall by him ¡ be placed to the credit of such drainage district.”

The provision in the article which forbids sale of bonds at less than par and accrued in- ! terest is clear and mandatory. That it was ■ contemplated that the bids and contract for | doing the work should be based upon the | expectation of being paid for in money and ' not in bonds is manifest. If, then, a bidder, ; in view of the fact that the market value of the bonds is lower than the par value, places his bid at a sum higher than he would have done had the bonds been sold and the proceeds been placed in the county treasury, so as to permit him to pay the difference, the effect is the same as if the bonds had been sold below par. In other words, the sum of money paid by the bidder, if he becomes the contractor, added to the value at which the bonds are sold, bring their sale price to par. But the contractor, to recoup his loss for the sum thus contributed, places his bid at a figure so high that his profits will yield to him the sum so contributed and a reasonable profit beside. The result is that the taxpayer who must ultimately pay the bonds, instead of getting par value for the bonds in work, gets in work only the market value, which is less. This method is only the doing indirectly of that which the law positively forbids, and cannot be tolerated. The illustration given by the trial court, based on the facts proved at the trial, is to the effect that the dredging company, the successful bidder, offered the entire issue of $78,500 of bonds at 80 cents on the dollar, and had the offer been accepted, it would have paid the difference of 20 cents on the dollar in order to make the bonds bring their par value. While this would have had the appearance of a sale .at par, the persons for whose benefit the work was being done, and who in the end would have to pay the face value of the bonds and interest, would be getting only 80 cents worth of work for each dollar to be paid by them. This would be violative of both the letter and the spirit of the law. Again, the facts, as found by the court, that it was contemplated that the successful bidder would have to find a purchaser for the bonds, the market value of which was less than par and accrued interest, and that the contractor would himself have to pay the difference between the market and par values, would necessarily have the tendency, and it was in this case shown to have the effect, of preventing that fair competition in securing bids for the work that the law contemplated should be had, and no doubt would have been had, if those who made bids and those who intended to bid, but did not, had not been expected to sell the bonds and to make good the difference between the sum for which they were sold and the par value and accrued interest. It cannot be contended that if the advertisement for bids had contained such conditions, bids based thereon could have been properly accepted and a contract awarded thereon; and the facts show beyond question that all the bids made were based upas the conditions above stated.

We think there was no error in granting the temporary injunction, ánd the judgment of the court below is affirmed.

Affirmed.
      ifcojFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ifcjFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    PEERS v. WILLIAMS.
    (No. 8100.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 13. 1915.)
    Appeal and Eekob <®=»1071 — Failuke to File Conclusions of Fact and Law — Conflicting Evidence.
    Where the evidence in the statement of facts approved by the trial judge is conflicting, failure, on seasonable request of a party to file conclusions of fact and law as required by statute is ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234^4239; Dec. Dig. <S=> 1071.].
    Appeal from Cooke County Court, R. V. Bell, Judge.
    Action by F. W. Williams against-the Missouri, Kansas & Texas Railway Company of Texas, in which Val Peers was made a party. From a judgment for plaintiff against Val Peers, the latter appeals.
    Reversed and remanded.
    Stuart, Bell & Moore, of Gainesville, for appellant. Culp, Murphy & Culp, of Gaines-ville, for appellee.
   CONNER, C. J.

This suit was originally instituted in the justice court of precinct No. 1 of Cooke county by F. W. Williams against the Missouri, Kansas & Texas Railway Company of Texas for the sum of $108 alleged to be the value of 720 pounds of cotton at 15 cents per pound, which had" been burned through the negligence of the railway company after the cotton had been received by it for shipment. The railway company answered, to the effect that the cotton burned consisted of 120 bales that had been purchased by one Val Peers, who owned the same at the time of the fire, and to whom the full value thereof had been paid. The plaintiff thereupon prayed that Peers be made a party, and that in event it was determined that the railway company had paid Peers, then he, plaintiff, have a judgment against Peers for the value of the cotton for which he sued. Peers was duly made a party as. prayed for by the plaintiff, and the trial in the justice court resulted in a judgment in plaintiff’s favor against Val Peers for $75. The judgment was also in favor of the railway company, acquitting it of all liability. The appellant Val Peers appealed to the county court, where the railway company was dismissed altogether, it appearing that no appeal had been prosecuted from the judgment in its favor, and no assignment calls in question this action of the county court. The trial in the county court resulted in a judgment for the plaintiff, Williams, for $78, and Val Peers prosecutes an appeal.

The trial was before the court without a jury. The record contains a statement of facts, duly made up, agreed to by the parties, and approved by the court, but contains no conclusions of fact and law, as appellant Val Peers in writing seasonably requested, and the first assignment presented is to the action of the court in having failed to file such conclusions. As exhibited by the statement of facts, the evidence shows that some time during the fall of 1910, Williams sold to Val Peers 300 bales of cotton at from 12 to 15 cents per pound. It was agreed that Williams should have the cotton loaded upon the cars at Myra, Tex., billed to the cotton compress at Gainesville, and that Williams would forward the bills of lading with draft attached according to the gin weights of the cotton when shipped, that Peers would pay the draft on receipt of the bills of lading, and that when the cotton was reweighed at the compress, Peers would pay for any excess as shown by the compress weights, or that in event the cotton at Gainesville when weighed at the compress showed a less number of pounds than shown by the gin weights at Myra, then Williams was to refund the overpayment. In other words, if the cotton should gain in weight at the compress, Peers was to pay Williams for the gain over the gin or yard weights at Myra; if the cotton should lessen in weight at the compress over the gin or yard weights at Myra, Williams was to refund that amount to Peers. Under this agreement Williams first shipped 180 bales which was duly received by Peers at Gainesville, and which, upon its being weighed, was found to gain some 4 or 5 pounds of cotton to the bale. For all this cotton Peers duly paid. Some time later the last shipment of 120 bales— the shipment involved in this controversy— was also loaded by Williams on the cars at Myra. To the bill of lading Williams attached his draft, which on presentation to Peers at Gainesville was duly paid. While this shipment was in the yards at Myra, however, and in the possession of the railway company, it was burned, the evidence not showing the cause or causes of the fire. Thus far there is but little, if any, dispute in the testimony. At this point, however, the evidence diverges. Appellee testifies that after the cotton was burned, lie claimed that he owned of the burned cotton $108 worth, and this the claim agent of the railway company named agreed to pay, but that it was arranged that the amount should be paid to Yal Peers for the use of Williams. Appellee testified that Peers consented and agreed to this arrangement. Peers denies any such consent or agreement on his part, and denies that the railway company paid him any money for Williams. Peers also denies that there would have been any excess in weight had the cotton been weighed at the compress, giving as a reason that the last shipment consisted of an earlier picking, which contained more oil, and which consequently would depreciate rather than increase in weight. The only evidence, if any, contained in the statement of facts tending to show that there would.have been increase is that which shows that in the first shipment of 180 bales there was an increase of 4 or 5 pounds per bale.

We feel at a loss to determine the theory upon which the court rendered its judgment, or to account for the trial judge’s failure to file his conclusions as requested. The request was made by appellant in due form and in seasonable time, and the record presents no explanation of the court’s failure. The statute (Kev. St. 1911, art. 1989) in terms plainly imposes the duty. It reads:

“Upon a trial by the court, the judge shall, at the request of either of the parties, state in writing the conclusions of fact found by him, separately from the conclusions of law: which conclusions of fact and law shall be filed with the clerk and shall constitute a part of the record.”

Possibly the able judge who tried the case deemed it immaterial to so file his conclusions, in view of a line of decision of our courts holding that a failure to comply with the statute by filing conclusions when seasonably requested is not a sufficient ground to cause a reversal of a judgment on appeal where, as in this case, there is a statement of facts. See Jacobs v. Nussbaum, 133 S. W. 484; Sutherland v. Kirkland, 134 S. W. 851. But these cases proceed upon the assumption that the facts were substantially undisputed, and that therefrom it affirmatively appeared that the failure was without probable harm, the court in each instance practically applying the principle now embodied in rule 62a (149 S. W. x) which provides that:

“No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.”

None of these cases go so far as to hold that it is not error to fail to file conclusions when properly requested, and it will be found, we think, to be substantially the uniform rule to reverse the judgment in case of such failure where there is no statement of facts or where the evidence exhibited in the statement is conflicting. See Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Wood v. Smith, 141 S. W. 795; Shepherd & Davenport v. McEvoy, 144 S. W. 285; Kyle v. Blanchette, 158 S. W. 796.

In the case now before us the evidence indicates several possible theories for appel-lee’s recovery, none of which is free from difficulty. Eor instance, it may possibly be contended that the 120 bales of cotton burned in fact weighed more than is shown by the gin weights at Myra, for which excess appellant should account. under the terms of the original agreement between the parties, or it may he contended that regardless of the issue of an excess appellant should account to appellee for money had and received under the terms of the agreement, if any, with the railway company’s claim agent. But these are mere conjectures. It cannot be said to be clear that appellee was entitled to recover upon either theory suggested, and the very least that may be said of the testimony is that it is conflicting, and appellant under the law has a clear right to have the conflict determined in a court having original jurisdiction for the determination of conflicting evidence; this court having no such power.

In accordance with the authorities cited, it is ordered that the judgment be reversed and the cause be remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes