author: KEY, C. J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. BISHOP.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 12, 1913.)
    1. CARRIERS (§ 271) — TRANSPORTATION OP Passengers — Contract—Breach — Alighting Before Reaching Destination.
    Where a carrier contracted to transport a passenger from one station to another, and notified him to alight before his destination was reached, and left him at a point short of such destination, there was a breach of contract for which the passenger was entitled to recover damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1067-1071; Dec. Dig. § 271.]
    2. Carriers (§ 262) — Transportation of Passengers — Nature of Liability.
    A carrier’s contract to transport a passenger from one station to another is absolute and unconditional, while the contract for safety only requires the exercise of a specified degree of care.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 262.]
    3. Carriers (§ 277) — Transportation of Passengers — Contract — Breach — Damages.
    Plaintiff boarded defendant’s train, and paid for transportation to a specified station, but was notified by the conductor to alight at night at a public road crossing some distance before the station was reached. Plaintiff had made an appointment with the hack driver to meet and carry him to his ultimate destination, and, not meeting this person, he walked over a heavy country road, carrying a heavy grip, through weeds and nettles, for more than a mile to a crossroad, where he met the hack-man. His limbs were tom by the nettles, and he was very much exhausted by reason of an existing physical defect in his hip, and was laid up for three or four days, but suffered no permanent injury. Held, that a verdict awarding him $500 was excessive, and should be reduced to $200.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.]
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    Action by P. H. Bishop against the Beaumont, Sour Lake & Western Railway Company. 'Judgment for plaintiff, and defendant appeals.
    Reversed on condition.
    Stevens & Stevens, of Liberty, and Andrews, Ball & Streetman and McDonald Meachum, all of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.

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

   KEY, C. J.

In this case the plaintiff recovered a verdict and judgment for $500 for injuries alleged to . have resulted from the action of a railroad conductor, which misled and caused the plaintiff to get off of a train upon which he was traveling about a mile before reaching his destination.

We have considered all the assignments presented in appellant’s brief, and conclude that no reversible error is shown except by the assignments which complain of the verdict as excessive. Appellee’s suit is predicated upon the proposition, which is sustained by' his own testimony, that for a consideration of 55 cents paid by him appellant contracted to transport him from one of its stations to another, and that it breached that contract. Hence we overrule the assignments which present the contention that the court should have submitted to the jury whether or not appellant was guilty of negligenc. The contract was not merely that appellant should use a certain amount of care and diligence to transport appellee to his destination; but the agreement was that appellant would transport him to that place, and it failed to do so, and, if not prevented by an act of God, or the public enemy, or appellee’s own conduct, then appellant breached the contract, and appellee was entitled to recover damages. The contract for carriage or transportation was absolute and unconditional, though the contract for appellee’s safety was not, and as to the latter appellant was only required to exercise a certain degree of care.

The verdict for $500 rests upon the testimony given by appellee, which we here copy from the statement of facts:

“P. H. Bishop, a witness for the plaintiff, having been duly sworn, testified: That his name was P. H. Bishop, and he was the plaintiff in this case. That he lived at Fouts, about 12 miles north of Liberty, in [Liberty county, Texas. That on about the 17th day of July, 1911, his home was at Dayton. That he was working for a publishing company, selling maps, and he was going from Hull to-' Martha on the Beaumont, Sour Lake & Western Railroad, which railroad runs through Liberty county. That this railroad has a station at Hull, and he thinks that Martha is a flag station. That witness took the train at Hull on or about the 17th day of July, 1911, late in the night; the train being 1 ½ hours late. It was a rainy day, and had rained all evening. He came from Batson on a hack, and ‘it rained hard on me all day. There was a ticket agent at Hull up to & o’clock. I had made arrangements with Mir. Iiunnicutt to meet me at Martha. I telephoned Mr. Hunnicutt to meet me at Martha. I got aboard of the train at Hull, and took a seat. I told the conductor I wanted to go-to Martha, and he said, “Fifty-five cents;” and I paid it, and he said, “There is no town, there.” I said, “I telephoned a man at Dayton to meet me there with a horse and buggy.” I told him I had never been at the-place. While I had never been there, I went through there one time. I do not know whether there is any depot at Martha. I. got on on the west end of the car, and took a seat on the left, on the north side going west. X got oft at a public road crossing, and about one mile this side, east, of Martha. They stopped there, and the conductor told me that was the place to get oft. After the train started, and left me, I looked around, and I couldn’t see any one, and I hollowed. No one didn’t answer me, and I thought at the time that Mr. Xlunnicutt had sent a negro after me, and he had turned and went hack on account of the train being late. I was never there before. I hollowed several times, and no one answered me, and I, of course, knew the direction of Dayton, where I wanted to go. It was in the edge of the timber, and I could see the bulk of the road, and I started out the road. I went down the road, I suppose, about a mile, and was carrying a grip and a coat. The road was in bad condition. It was muddy — black land, and was muddy. It had been raining for several days, and had rained that evening, that night, the early part of the night, and it was in bad condition. The bull nettles was up this high. I was crippled in one leg at the time, and am crippled yet. The grip weighed something like 25 pounds. I didn’t meet any one. Me and Mr. Hunnicutt come together. He was at Martha, he told me, when the train stopped there, and he had to come back going to Dayton, and the roads come together there like that, and we come together. He had to come to the road that went down to where they put me off, and I went with him to Dayton in his hack. When Mr. Hunnicutt met me, I was given out. I couldn’t have walked a hundred yards further at all. It done me up. I was sore all over, just sore and stiff, and my ankles were all torn up with bull nettles, and skinned, and torn. Tou know what bull nettles will do to you. I had on low quarter shoes. When I got to Daytofi, I went in the house, and told my wife I was all done up, and told her about the circumstances, and told her I would like to get some hot water, and bathe my legs, and she said she thought she could rub them with liniment, and make out till morning. I was in bed at least three days, three or four days. I told Mr. Hunnicutt I would be uptown in the morning, and pay him. I didn’t think about it making me so sore, and I would pay him. I didn’t go up there until three days, three or four days; then I paid him when I went up there. I was in bed laying on a bed and on a cot. It is my left leg which is crippled. I had hip disease, and it got stiff in the joint. It is weak, and I cannot walk without a stick to do any good, and I was in the same condition that night. (Witness here stood up, and jury looked at him.) I can walk just around in town a short distance, not carrying a grip. I was very much fatigued. I was in bed three or four days after that.’
“On cross-examination: T suggested it myself that I telephone Mr. Hunnicutt to meet me. I didn’t request the conductor to slow up at the crossing, and I did not know I was one mile east of Martha. I was never on that road crossing before. It is not easier to get to that crossing, much more easy, than to go to Martha, and it was not the place where lots of teams and buggies go to meet people. I had never been there before. It is black land, and it was muddy. I would judge my grip to weigh 25 pounds. I had stationery in it. It was about 2 feet long and 18 inches high. I had probably one-half dozen maps in it, maybe more. I had other stationery in there, cards and packages. I had no pen and ink, but had some envelopes; cannot tell how many. I hardly think they would have weighed 25 pounds. The bull nettles were growing right out in the middle of the road. It was what I call the bull nettle, with briars and stickers on them. I would come on them, and they would sting, and keep stinging. I account for them growing on that road because they changed the grade, and this road had not been traveled in probably a year, or something like that. I have brought suit for $995.’
“The witness was then asked the following question: ‘Would you walk over that same road again under the same conditions for $775, or for $500, of for $100? If a man offered you $100 in cold cash to go over the same road under the same circumstances, and the same old bull nettles, would you do it for $100? A. That was under different circumstances. The circumstances were different, because I was put off the train at night. I don’t know whether I would or not, for $100 in cold cash, go thropgh one mile under the conditions, same old bull nettles! I had never been there before, and they told me that wolves were over there. It was dark, and I didn’t have any gun, and they told me that there were lots of wolves over there. I was told this by Pruett’s cowmen. I don’t suppose Mr. I-Iunnicutt ever mentioned it to me in his life. I did not tell Mr. I-Iunnicutt I was glad to meet him on account of wolves. I worked for the railroad company, but was not fired, and I did not ask them to reinstate me. • I had no trouble with the railroad company about a job. I worked as yard foreman, quit of my own accord, and have a clearance from the company. It was very dark, and I didn’t see any wolves that night. I didn’t measure how deep I went into the mud, and cannot tell how many bull nettles I ran into, as I couldn’t see them. The mud went over my shoes. I had on low quarter shoes. It was cloudy. I didn’t see any moon. It rained a whole lot in July. I said this to the conductor when I got on the train: I told him I was going to Martha, and he said, “Fifty-five cents;” and I paid him, and he told me, “There is no town thereand I said, “That is all right; I telephoned.” I don’t know whether I told him I telephoned or not, but told him that a party was going to meet me from Dayton with a horse and buggy, and he said, “That is all right.” I believe he asked me if I had even been to the place, and I told him I had never been to the place. There was a gentleman sitting beside me, and he said, “That conductor charged you four cents a mileand I said, “I will speak to him.” I asked the conductor if he charged me four cents a mile, and he said, “No; it is 55 cents to Martha.” There was a couple of gentlemen and a lady there before I got on the train. I saw Mr. Rodrigo there. He is the man that sat beside me on the train. He took the right-hand side, and I took the left-hand side, and he got up, and came and sat beside me. I was sober, and did not drink a drop at the time. I had been on that train from Houston to Beaumont three years before. The conductor opened the door, and stepped in, or stuck his head inside, and said, “Here is your place to get off.” He didn’t say, “Marthahe said, “Here is your place to get offand I got up, and got my bundle, and got off. I made no effort to get off before that. It is not a fact that the train slowed down just before that, and I started to get off. He said, “Here is your place to get off.” If he called out, “Martha,” I did not hear him. I think I had walked about a mile when I met Mr. Hunnicutt The porter stepped off the train right ahead of me. There was no words or fuss between me and the trainmen. They were perfect gentlemen to me. I do not think it was cold that night. I think it was warm. I did not take pneumonia; I caught a cold. I know I was sore inside in my lungs, and sore outside, and sore all over. I first got sore on the lungs in the morning, and never noticed it that night. I noticed my ankles were all torn up; they were scratched and bleeding. They did not bleed very much, but were scratched. They bled through my socks. I discovered this after I took off my shoes. The bull nettles did that. I did not get a doctor, and was in bed three or four days; the fourth morning I went down town. I was laying down all the time, and sitting up in a rocking chair part of the time. It was the fore part of the night. It rained while I was coming from Batson to Hull very bad. I did not get wet; was in a hack, a covered hack. It must have rained half an hour, at least. I never got wet then in the hack. There was no cause for me to take cold then; no more than there would be with me sitting in my house while it was raining. It didn’t rain after I got off the train until after I met Mr. Hunnicutt. I cannot tell whether I walked on the side of the road or in the center of the road. I couldn’t tell whether the road had been cut up by heavy traffic. It was very dark. I was not accustomed to walking long distances. When I go round selling goods, I walk around in town. I do not remember whether I testified on the former trial of this case that at that time I was used to, and in the habit of, doing a great deal of walking. Just like I told you then, I was walking around on the streets; maybe meet a man here, and in ten feet further meet another man, and on like that. I generally had paved streets to walk on, and in daytime always. I do not suppose my general health has been damaged by reason of walking on that muddy road that night, after I got well. I received no permanent injury. I am positive I made no request of the conductor to put me off at that crossroad. I have told you the honest truth all the way through, and hope that I may die if I haven’t. I had to change my clothes. My pants were very muddy; the mud went over my shoes. I slipped in over my ankles several times. I didn’t think about anything only getting oüt of that place. I hollowed after the train left me; I suppose after the train got out of hearing. Every little piece I would go I would hollow, thinking a dog would bark. I heard something sliding through the water I thought was a wolf; but this is not a part of the damage, and the wolves have nothing to do with the case. I can’t remember which cowboy of Mr. Pru-ett’s told me about the wolves. I didn’t pay any attention to it at the time and didn’t write his name down in the book. I lived there, and heard several people speak about them being over there eating Pruett’s cattle and his young calves, but never heard of them eating a man. It was as safe for me to attempt to walk as it was for me to remain there after I got off the train. There is no fence there. There is no railroad fences there. There is no rock pile there. It must have been something like an hour after I got off the train before I got to Hunni-cutt’s hack. I do not know just exactly how long. I stopped several times, and blowed. I can’t walk very fast, even on good roads. I do not think it was over a mile that I had to go.’ Q. ‘A person can take cold from becoming very warm, and sweating, and cooling off?’ Answer of the witness: ‘Tes; that was the cause. I was sweating; was wet with sweat, and getting in the buggy, and riding, and cooled off. Of course I didn’t get cold, or anything like that.’
“On recross-examination: T had taken cold; my lungs were sore on the inside. I was not scared that I would take pneumonia. I told my wife just what had occurred. I wasn’t so sore and stiff until the next morning. Of course my ankles were sore; they were bad that night, just as bad as next morning. I first told Mr. Hunnicutt that I was put off at the wrong place. When he met me he told me that was Martha where he was at. That was the first I knew of it. He said he had been up there. I had not caught cold when I was with Mr. Hunnicutt. I did not tell him I was sick. I don’t remember when I decided to bring suit; but it was some time after that. I decided the railroad had done me wrong. I had paid my money to go to Martha, and they failed to carry me there. I was put off from Martha about one-half mile on the railroad track. If I had gone on the railroad track, I would have been in mighty bad shape, as I would not have struck Mr. Hunnicutt at all. I did not know when I started off on that, walk that I was going to meet Mr. Hunnicutt. I do not know whether there was a shed at Martha or not. I was put off about one mile from Martha. I thought I was at Martha when he put me off there, and that is the reason I did not go down that track. I did not have any business at Martha.’
“On redirect examination: ‘My business called me to Dayton that night, and when I got off at that place I thought I was at Martha. I had no reason to walk up the railroad track. I struck out in the direction of Dayton, and I was a stranger there besides.’ ”

The measure of the plaintiff’s damage is such sum of money as will actually and adequately compensate him for the injuries sustained, and opr conclusion is that the sum of $200 will be amply sufficient for that purpose, and therefore, if within 20 days from this date appellee files a remittitur for the sum of $300, the judgment will be reformed and affirmed for $200; otherwise the case will be reversed and remanded. Railway Co. v. Dennis, 4 Tex. Civ. App. 90; 23 S. W. 400; Railway Co. v. St. John, 13 Tex. Civ. App. 257, 35 S. W. 501; Railway Co. v. Berry, 84 S. W. 258; Railway Co. v. Russell, 38 Tex. Civ. App. 291, 85 S. W. 299; City of Austin v. Browning, 150 S. W. 961.

The cases cited by counsel for appellee are not analogous. In fact, some of them merely announce the general proposition of law that applies when a passenger is wrongfully expelled from a train, and these which discuss the question of excessive verdict are cases in which the injured parties were women who suffered great humiliation or fright, both of which elements are entirely absent from the case at bar.


source: Caselaw Access Project

license: Public Domain

text:
    HALL et al. v. TROTTER et al.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 12, 1913.)
    Schools and School Districts (§ 97) — Bonds — Election—Special Laws.
    Rev. St. 1911, art. 2856, part of Act Feb. 18, 1909 (Acts 31st Leg. c. 12, § 154a), provides that all school districts previously provided for by special act are placed under the general laws relating to incorporated school districts, and all provisions of any and all such special acts in conflict with the general laws are repealed, except in so far as those acts relate to boundaries established by the acts incorporating such districts, and that all incorporated districts having fewer than 150 scholastics shall be governed in the general administration Of their schools by the laws applicable to common school districts, etc. By Act March 16, 1909 (Sp. Laws 31st Leg. c. 62), passed at a later day of the same session, , the Water Valley independent school district was created, containing less than 150 scholastics, and this act provided that the board of trustees of the district should be authorized to order an election for the issuance of school bonds and, in pursuance of a favorable result, to levy and collect a special tax for school buildings, equipment, etc. Held, that the latter act was a special law controlling the district created, and hence that a bond election was properly ordered by the board of trustees of that district and held by a manager appointed by that board instead of by the county judge or superintendent of schools, as required by the general law.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 224-232; Dec. Dig. § 97.]
    . Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Suit by J. E. Hall and others against H. G. Trotter and others to contest a school district bond election. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Bell & Upton and Blanks, Collins & Jackson, all of San Angelo, for appellants. Thomas & McCarty, of San Angelo, for appellees.

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

   KEY, C. J.

April 29, 1913, a bond election was held in the Water Valley independent school district in Tom Green county and resulted in favor of the issuance of bonds for the purpose of building a schoolhouse in that district. Thereafter J. E. Hall and others instituted this proceeding contesting the election. The district court decided the contest in favor of the contestees and upheld the validity of the election, and the contestants have appealed.

But one question is presented for decision, and that is embraced in appellants’ contention that the election was illegal and void because it was ordered by the board of trustees of the school district referred to, and was held by a manager appointed by that board, and was not ordered by the county judge or superintendent of schools nor held by a manager appointed by him. In other words, the undisputed facts show that at the time of the creation of the Water Valley independent school district, and at the time of the election in question, there was less than 150 scholastics in that district; and therefore it is contended on behalf of appellants that on account of that fact, by the terms and force of article 2856 of the Revised Statutes of 1911, the school district in question was subject to and controlled by the provisions of the statute regulating and controlling common school districts, and therefore the county judge or county superintendent of education should have ordered the election and appointed the manager thereof, and the board of trustees had no authority to do either. The article referred to reads as follows: “All school districts, heretofore provided for by special act of the Legislature, are placed under the general laws relating to incorporated school districts, and all provisions of any and all such, special acts in conflict with the general laws are hereby specifically repealed, except in so far as those acts relate to the boundaries established by the acts incorporating such districts. All incorporated districts, having each fewer than one hundred and fifty scholastics according to the latest census, shall be governed in the general administration of their schools by the laws which apply to common school districts; and all funds of such districts shall be kept in the county depositories and paid out on order of the trustees approved by the county superintendent.” That article is part of section 154a of an act passed by the Thirty-First Legislature (chapter 12) for the purpose of putting into effect certain constitutional amendments relating to school districts and school funds; and it was approved by the Governor and went into effect on the 18th day of February, 1909. The special law creating the Water Valley independent school district was enacted by the same Legislature (Sp. Laws 31st Leg. c. 62) and was approved by the Governor on the 16th day of March, 1909. By the terms of sections 17 and 18 of the latter act, the boards of trustees of that district is specifically authorized and empowered to order an election and, in pursuance of a favorable result thereof, levy and collect a special tax for the purpose of purchasing or constructing public free school buildings and sites therefor within that district and for equipping and furnishing the same.

Counsel for appellants urge the contention that, inasmuch as the district contained less than 150 scholastics, that portion of that statute was repealed or held in abeyance by force of article 2856, which prescribes that “all incorporated districts having each fewer than 150 scholastics according to the latest census shall be governed in the general administration of their schools by the laws which apply to common school districts.” And the further contention is made that, as that statute and the one creating the school district in question and conferring power upon the trustees to order such an election were enacted at the same session of the Legislature, they should be construed together, and the provision just quoted should be held to constitute a limitation upon the the other act conferring powers upon the trustees of that particular district to order such elections, etc.

Counsel for appellees present two contentions, which are: First, that the language of article 2856, “shall be governed in the general administration of their schools by the laws which apply to common school districts,” was not intended to apply to and control in the matter of procuring funds for the purpose of building schoolhouses, etc.; and, second, that, if it was intended for that purpose, then inasmuch as the act creating the school district in question, and specifically conferring the power to order such elections upon the board of trustees, was a special law enacted at a later day, though at the same session, the latter, being in conflict with the former, should control. There is much plausibility in the first contention urged on behalf of appellees, because, if it be adopted, then both statutes can be harmonized and given effect, while on the other hand, if appellants’ contention be adopted, and the language, “shall be governed in the general administration of their schools,” be held to include the erection of school buildings, and such other steps as are necessary to provide means for that purpose, then it is in direct conflict with the provisions of the other act, which expressly authorize the board of trustees to regulate and control such matters. In other words, if the matter of holding the election and issuing the bonds in question is a special affair and no part of the general administration of the schools in that district, then there is no conflict between the two statutes, and article 2856 has no application. But, if that construction be unsound, we are of opinion that appellees’ other contention is correct, which is embraced in the general proposition of law that, where there is an irreconcilable conflict between the provisions of two acts passed at the same session of the Legislature, the latter enactment will, as a general rule, control. And also that when conflict exists between a special and general provision, whether found in the same statute or in different statutes enacted at the same session of the Legislature, the special provision will control. Sutherland, Stat. Const. (2d Ed.) pp. 513, 514, 526 to 530, and 535 to 538, inclusive; 36 Cyc. 1090 to 1093; Paul v. State, 48 Tex. Civ. App. 25, 106. S. W. 448; Andreas v. City of Beaumont, 113 S. W. 615; State v. Chariton Drainage Dist. (Mo.) 158 S. W. 638.

A standard authority gives the reason for the rule which holds that a special law will control a general law in the following language: “The reason that has been given for this rule is that in passing a special act the Legislature has its attention directed to the special case which the act was made to meet and considers and provides for all-the circumstances of that special case; and, having done so, it is not to be consideied that the Legislature by a subsequent general enactment intended to derogate from the special provision previously made, when it was not mentioned in such enactment.” 26 Am. & Eng. Ency. Law (2d Ed.) 739, note 3.

In Paul v. State, supra, it was held that, on account of the rule referred to, a special law was not repealed by the subsequent enactment of a general law relating to the same subject; and for a stronger reason, it seems.to us, it ought to be held that, when such special law is enacted subsequent to the enactment of the general law, the special law should control.

As shown by his findings of fact and conclusions of law, it was upon this basis and for this reason that the learned trial judge decided against the contestants and upheld the validity of the election in question; and we think his decision was eminently correct, and therefore the judgment appealed from is affirmed.

Affirmed.


author: HIGGINS, J.

text:
    INTERNATIONAL ORDER OF TWELVE KNIGHTS & DAUGHTERS OF TABOR v. DENMAN.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1913.
    On Rehearing, Nov. 13, 1913.)
    1. Total (§ 192) — Jury Questions.
    In an action on an insurance policy, where the actual issuance of a policy was not controverted, the court properly assumed it as a fact.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    2. Insurance (§ 668) — Jury Questions.
    In an action on a life policy, where it was a question of fact whether the policy in the record was the one issued, the question was properly submitted_ to the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1656, 1732-1770; Dec. Dig. § 668.]
    Appeal from.Harris County Court; Clark C. Wren, Judge.
    Action by A. L. Denman against the International Order of Twelve Knights and Daughters of Tabor. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded on rehearing.
    Fred R. Switzer, of Houston, for appellant. Jackson & Dickson, of Houston, for appellee.

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

   HIGGINS, J.

This is a suit by appellee upon an insurance policy issued by appellant upon the life of Pinkie Denman, deceased. It was alleged that the policy was payable to appellee and Milton Hollins. Upon trial, the court submitted to the jury for its determination the issue of whether or not ap-pellee was named as one of the beneficiaries in the policy and authorized a finding in his favor if the jury so believed. What purports to be the written policy issued appears in the record, and it does not appear therefrom that appellee was named as one of the beneficiaries; the policy, upon its face, showing that Jack Brandon, guardian of Milton Hollins, was the beneficiary. Whether or not the policy appearing in the record was the one actually issued by appellant is an issue of fact under the evidence presented upon the trial.

The first assignment complains of the submission by the court of the issue of whether or not a policy had been issued and delivered. That a policy was issued and delivered was not a controverted issue, and the court properly assumed that It had been issued and delivered as a proven fact. This question is an issue quite apart from that of whether or not appellee was named in the policy as a beneficiary.

The second assignment presents the same question, and further discussion thereof is pretermitted.

The evidence raises an issue of whether or not the policy appearing in the record' was the one actually issued, upon which the suit is based, and the third assignment is therefore overruled.

The fourth assignment is without merit and is overruled.

Upon general demurrer the petition is good against the objection urged in the fifth assignment, and it likewise is overruled.

We find a number of errors committed in the trial of this case, none, however, of a fundamental nature; and, since the errors assigned and here urged are without merit, the judgment is affirmed.

On Rehearing.

Upon consideration of the authorities cited in appellant’s motion for a rehearing, we have reached the conclusion that the petition of the appellee is subject to a general demurrer. Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, 4 Tex. 461; Parr v. Nolen, 28 Tex. 798; Gray v. Osborne, 24 Tex. 159, 76 Am. Dec. 99.

The motion for rehearing is therefore granted, and the cause reversed and remanded.


author: RAINEY, C. J.

text:
    DALLAS GAS CO. v. WHEAT.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.
    Rehearing Denied Nov. 29, 1913.)
    Municipal Corporations (§ 802*) — Injuries to Animals on Street — Ordinance.
    Where the city ordinance declared that the running at large of horses was a nuisance and prohibited, the owner of a horse which was killed by falling into a ditch in a street opened by a gas company cannot recover where it appeared that the animal was unattended, and had escaped from the owner’s inclosure at the time of the injury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1672-1683; Dec. Dig. § 802.*]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by C. Wheat against the Dallas Gas Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Smith, Robertson & Robertson, of Dallas, for appellant. Seay & Seay, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued to recover from appellant the value of a horse that was killed by falling into a ditch dug by appellant along a street in the corporate limits of the city of Dallas. On the trial of the cause a judgment was rendered for appellee for the sum of $250.

The facts are that appellant excavated a ditch for laying its pipes along Worth street. The ditch was 400 or 500 feet in length, 43 inches in depth, and 40 inches in width. The ditch remained open and unguarded for 8 or 10 days, except at night, when red lights were placed along the side of the ditch to give warning. Plaintiff’s horse was found dead in the ditch one morning. It had evidently strayed there unattended, and fallen into the ditch. As to his knowledge of the mare being at large, plaintiff testified: “The night previous to the horse’s falling in the ditch I had taken her out of the buggy, and tied her up, and fed her between 7 and 8 o’clock, and that is the last time I saw the horse alive. The next time I saw her was the next morning between 5 and 6 o’clock, dead in the ditch. * * * The night before she had a chain around her neck, fastened with a snap, and the other end of the chain was fastened around a pole to another snap. * * * I have tied and hitched a good many horses in my life. The chain with which I fastened this horse was about a half inch chain. I had fastened her with a snap around the neck, making a loop, and the other end of the chain was snapped around a pole. There were no defects in the snappers as far as I know, and no defect in the chain that I saw. I fastened the horse as securely as I knew how in my back yard. The back yard is fenced. I don’t know how the horse came to get loose and get out. * * * The rear part of my premises was fenced off from the front part. I have several stables there, some of which are open, and some are closed. * * * The night before her death I had placed the mare [it was a mare that was killed] in the box stall. The box stall has no gate to it. * * * I had a well in the yard on the northeast side of the house. The neighbors next door were in the habit of using water from the well, which they had been doing for a good while,, and in order to get to the well they had to come through this gate, which was just a wire gate fastened with a string with a loop above. These neighbors had the city water, and they came to that well for drinking water; but I don’t know whether that was a daily occurrence or not. I do not recollect that this mare had ever gotten out before that. I had a colt that would get out once in a while; but I don’t know how often. * * * I do not remember how the colt got into the street; but it got loose occasionally, and got out. Of course it would have to get through that gate, because there was no other gate that it could get through.”

Article 239, City Ordinances, in force at the time, reads: “The running at large of horses, mules, jacks, jennets, cattle, sheep, goats, hogs or geese, within the city of Dallas, is hereby declared a nuisance, and positively prohibited, and it is hereby made unlawful for the owner or keeper of any such animals to permit the same to run at large within the corporate limits of said city.”

Article 248, City Ordinances, imposes a fine on the owner for permitting any animal to run at large in the city limits.

Article 189 of the City Code provides: “Whoever under lawful permission shall for any purpose dig or make any ditch, drain, excavation or hole in, across or under any street, alley, sidewalk, or other public place within this city, and shall not with all reasonable dispatch refill the same and fix such street, alley, sidewalk or place in as good condition as the same was found, shall be deemed guilty of a nuisance, and on conviction shall be fined not exceeding one hundred dollars.”

Article 199 makes it a penal offense for one to violate said ordinances.

Under the city ordinance relating to stock running at large, which provides: “The running at large of horses, mules, jacks, jennets, cattle, sheep, goats, hogs or geese, within the city of Dallas, is hereby declared a nuisance, and positively prohibited,” etc.— we are constrained to hold that, when plaintiff’s horse fell into the ditch, and was killed, it was running at large, and it is immaterial whether the plaintiff permitted it to run at large or not, or that he would not be liable criminally. The horse at the time running at large constituted a nuisance, and the liability of appellant will not be measured by the want of care used by it for the protection of such animal. It owed no duty to the said animal, and it cannot be said that it ought reasonably to have anticipated such an accident.

Whether the facts would make appellant liable, had injury resulted to a person or animal attended, we deem unnecessary to decide, and our holding that no liability rests upon appellant for the death of the horse is based on the fact that it was running at large, which constituted a nuisance, and appellant was under no obligation to use efforts to protect it. We cite the following authorities as applicable to the facts in this case: McCutchen v. Gorsline, 39 Tex. Civ. App. 146, 86 S. W. 1044; Galveston L. & I. Co. v. Pracker, 3 Tex. Civ. App. 261, 22 S. W. 830; City of Paris v. Hale, 13 Tex. Civ. App. 386, 35 S. W. 333.

Under our view of the evidence, the appel-lee showed no right of recovery, and, as the ease is fully developed, the judgment of the court below is reversed, and judgment here rendered for appellant.

Reversed and rendered.


author: TALBOT, J.

text:
    STATEN AUTO CO. v. HOGG.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Partnership (§ 213) — Actions Against Firm — Existence op Partnership — Burden op Proop.
    Where in a suit against a firm the partnership is denied under oath, the burden rests on plaintiff to prove the partnership, and if this is not done the party denying it is entitled to judgment.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 408, 409; Dec. Dig. § 213.]
    2. Appeal and Error (§ 1067) — Review-Prejudice.
    Where plaintiff’s horse was killed by defendants’ automobile '.and the court charged that to recover they must believe defendant was guilty of negligence substantially as alleged, and that it was negligence, as a matter of law, for plaintiff to permit the horse to run at large in the city where the accident occurred, and if he did so and such act proximately contributed to the injury, the jury should find for defendants, the court’s refusal to charge that unless defendants were guilty of the negligence charged,. and such negligence proximately caused the injury, the jury should find for defendants, and even though defendants were negligent as alleged, yet if they further believe plaintiff was negligent, and such negligence proximately contributed to the injury, plaintiff could not recover was properly refused.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    3. Trial (§ 252) — Instructions — Applicability to Evidence.
    Where plaintiff’s horse was killed in a collision with defendants’ automobile, and there was no evidence that the presence of certain vehicles of plaintiff in the street was the proximate cause of the accident, the court properly refused to charge that it was negligence, as a matter of law, for a person to permit any vehicle to which an animal was not attached to remain standing in a city street for more than an hour and if plaintiff’s act in permitting certain of his vehicles so to stand proximately contributed to the injury, he could not recover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Walter Hogg against Claude S. Staten and Edgar T. Staten, doing business as the Staten Auto Company. Judgment for plaintiff, and defendants appeal.
    Affirmed as to defendant Claude S. Staten and reversed as to defendant Edgar T. Staten.
    T. L. Camp and Walter M. Nold, both of Dallas, for appellants. Joe Utay, of Dallas, for appellee.

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

   TALBOT, J.

This action was originally brought in the justice’s court, precinct No. 1, Dallas county, Tex., by Walter Hogg, against Claude S. Staten and Edgar T. Staten, alleged to be a partnership doing business as the Staten Auto Company, seeking to recover $175 as damages for injuries to a mare belonging to plaintiff, alleged to have resulted from negligence of the defendants’ agent and employé in operating an automobile on and along Jackson street, in the city of Dallas, on October 22, 1909. The trial resulted in a judgment for plaintiff against both defendants for $175, and the case was properly brought before the county court of Dallas county at law, for trial de novo, and was tried in said court, on February 3, 1913, resulting in a verdict and judgment for plaintiff against both defendants, for $175, and 6 per cent, interest, from February 3, 1913, and all costs of suit. Defendants duly made a motion for new trial which was overruled, and they appealed and now ask this court to reverse and render the judgment of the court below .as to Edgar T. Staten, defendant, and reverse and remand the cause as to the defendant Claude S. Staten.

It is alleged that plaintiff’s mare was so seriously and permanently injured that it became necessary to kill her; that the market value of the mare was $175, and that defendants were guilty of negligence: (1) In propelling the automobile at an unlawful rate of speed; (2) in driving said automobile on the left side of the street in violation of custom; and (3) in giving no notice or warning of the approach of the automobile. Edgar T. Staten denied under oath the alleged partnership, and otherwise the answer of defendants consisted of a general denial, and special pleas to the effect that the driver thereof was not guilty of negligence as alleged by plaintiff, but that he was driving the automobile at a moderate and lawful rate of speed at the time of the accident, to wit, about nine miles an hour; that the injury to plaintiff’s mare was not caused by the negligence of defendants, but by the negligence of plaintiff’s servants and employés: (1) In permitting the mare to run at large, across the street; (2) in permitting vehicles owned by plaintiff to remain standing on the street near where the accident occurred, in violation of a city ordinance, blockading the street and obstructing the view of those driving along the street; (3) that if said mare was being led at the time the automobile struck her, plaintiff was guilty of negligence in leading said mare from behind said vehicles and obstructions immediately in front of defendants’ automobile.

The first assignment of error asserts that the court erred in refusing to give the special charge No. 4 requested, to the effect that, plaintiff having adduced no evidence tending to show that Edgar T. Staten was properly joined as a party defendant in the cause, they should return a verdict in favor of said defendant. This charge should have been given. The alleged partnership of Claude S. Staten and Edgar T. Staten, the defendants, was expressly denied under oath, and there was no evidence whatever adduced tending to prove the existence of such a partnership, or that Edgar T. Staten was otherwise properly joined as a party defendant. An answer setting up a denial of partnership; as alleged in the petition, must be verified by affidavit. If not so denied, proof of the partnership is not necessary. If such denial is made, then the burden rests upon the plaintiff to prove the partnership, and if this is not done, the party denying the partnership under oath is entitled to judgment. This view is supported, we think, by the following authorities: Hayden Saddlery Hardware Co. v. Ramsay, 14 Tex. Civ. App. 185, 36 S. W. 595; Robertson v. Dubose, 76 Tex. 1, 13 S. W. 300.

The second assignment of error complains of the court’s refusal to give appellants’ requested charge No. 5, to the effect that unless the jury believed defendants were guilty of negligence as charged in plaintiff’s petition, and that such negligence proximately caused the injury complained of, to find for defendants, and, further, that even though they should believe that defendants were guilty of negligence as alleged in plaintiff’s petition, yet if they further believed that plaintiff was guilty of negligence, as alleged in defendants’ answer, and such negligence of plaintiff proximately contributed to the injury complained of, their verdict should be for defendants. There was no material error committed in refusing this charge. . By the court’s general charge the jury were, in no event, authorized to return a verdict in favor of the plaintiff, unless they believed from the evidence that the defendants were guilty of negligence substantially as alleged by plaintiff, and upon the issue of contributory negligence they were instructed by special charge, requested by defendants, that it was negligence as a matter of law for the owner or keeper of a horse to permit the same to run at large within the corporate limits of the city of Dallas, and that if the jury should find the plaintiff, his agents or employes, permitted the mare in question to run at large within the corporate limits of the city of Dallas, and said act proximately caused or contributed to the injury complained of, to find for defendants. In this connection the jury were told that “being without restraint or confinement constitutes running at large.” The refusal of the charge under consideration, if error at all, was not such a denial of the rights of the appellants as was reasonably calculated to cause and did cause the rendition of an improper judgment in the case; and, this being true, we would not be warranted in reversing the case because of such refusal. Rule 62a (149 S. W. x). The special charge referred to, and which was given by the court at the instance of appellants upon the issue of contributory negligence, was all the instruction called for by the evidence on that issué.

By their third assignment of error appellants assert that the court erred in refusing the following special charge requested by them, namely: “You are instructed by the court that it is negligence, as a matter of law, for any person to permit any vehicle of any name or character owned by him or under his control, to which there is not attached a horse or other animal or animals, to remain standing or situated on any public street in the city of Dallas for a length of time exceeding one hour; and, if you find from the evidence in this case that the plaintiff, his agents, servants, or employes permitted any vehicle of any name or character owned by him or under his control, to which there was not attached a horse or other animal or animals, to remain standing or situated on Jackson street for a length of time exceeding one hour, and that said act proximately caused or contributed to the injury complained of, then your verdict must be for the defendants.” The court did not err in refusing this charge, for the reason, if no other, that it was not called for by the evidence, and probably would have been misleading. The undisputed testimony, the testimony of defendants’ own witness, shows that the mare came on the street from the north; that the automobile at the time and just before the collision was being driven as near the south side of the street, which was 40 or 50 feet wide, as possible; that when the driver of the automobile first saw the mare in the street she was 15 or 20 feet from him, and that at the rate of speed he was going the automobile could have been stopped by the exercise of ordinary care in time to have avoided the collision. In the state of the evidence it seems clear that if plaintiff left vehicles belonging to him standing on the street in violation of a city ordinance, and was thereby guilty of negligence, such negligence was not the proximate cause af the injury sustained by the mare. The theory of the defendants is that the automobile was not being driven at a greater rate of speed than 10 miles an hour at the time of the accident, and this theory is supported by the testimony introduced by them. Their witness Edward Wilson testified that he was driving eight miles an hour, that when he first saw the mare in the street she was about 15 or 20 feet from him, and that an automobile running eight miles per hour ought to be stopped in a distance of two or three feet by using the emergency brake; that the mare “came up on the left-hand side like she was going by, and then she turned and ran in front of me. There was more than enough room for her to pass.” It may be admitted that whether plaintiff left vehicles belonging to him standing on the street was a question of fact, and that if they were so left, the plaintiff violated a city ordinance and was thereby guilty of negligence, per se, yet if such negligence did not proximately contribute to bring about the collision and injury to appellee’s mare, the same furnished no defense to the action, and the special charge was properly refused. It is well settled that an act which is declared by statute to be negligence affords no cause of action or ground of defense unless the act is a proximate cause of the injury complained of. We believe the only ground upon which any claim of contributory negligence can be predicated under the testimony in this case is that the mare was running at large in violation of an ordinance. Upon this issue the evidence was conflicting, and the jury resolved it in favor of the plaintiff. According to the testimony of the witness Wilson, he saw the mare in the street before the collision; she came up, meeting him as though she was going to pass the automobile, but suddenly turned to cross the street in front of the car. Under these circumstances the leaving of the vehicles standing in the street could have had nothing to do with the collision. But it seems the charge was properly refused because there was no evidence showing that the vehicles had been standing on the street exceeding one hour when the accident occurred.

The judgment of the lower court as to Claude S. Staten is affirmed and as to Edgar T. Staten is reversed, and judgment here rendered for him.

Affirmed in part; reversed and rendered in part.


text:
    TRINITY & B. V. RY. CO. v. McDONALD.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Carriers (§ 320) — Injury to Passenger— Negligence — Question eor Jury.
    Where, in a passenger’s action for the loss of an eye due to a small piece of metal being blown through the opening of a toilet and becoming embedded in the ball of his eye, there was evidence that while open toilets are still in use, the majority of railroads used cars with closed toilets and an experienced car builder testified that cars with open toilets were built in a different way from the one in question, with steps so built as to protect passengers from particles of steel, the question whether the accident was one which defendant should have anticipated was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    2. Carriers (§ 318) — Injury to Passengers —Negative Evidence — Probative Effect.
    In a passenger’s action for the loss of an eye, due to a small particle of metal, coming through the opening of an open toilet, embedding itself in the eyeball, the testimony of railroad workmen that they had never heard of such an accident before did not show that the accident did not happen, or that it should not have been anticipated by defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § .318.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by John McDonald against the Trinity & Brazos Valley Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    N. H. Bassiter, and Robt. Harrison, both of Ft. Worth, and Morrow & Morrow, of Hills-boro, for appellant. Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellee.

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

   RAINEY, C. J.

Appellee sued the railway company to recover damages for personal injuries received by him while a passenger on, appellant’s train. Plaintiff, in substance, alleged that while traveling as a passenger on appellant’s train operated between Hillsboro and Osceola, Tex., he had occasion to go into one of the toilet rooms situated in said coach and maintained by appellant; when he raised up the top of said toilet the wind rushed up through the opening of said toilet with great force and a piece of steel, or particle of character of metal, struck him in the eye and imbedded itself in the ball of the-eye, which caused the loss of said eye. Negligence was alleged in having a toilet with an opening through it instead of one with, the opening closed in such manner as to prevent such substances being blown through, and in failing to equip said toilet room with modern and approved appliances for closing,, said opening, etc. Appellant answered by general denial. A trial resulted in a verdict and judgment for $2,000 from which this appeal is prosecuted.

The evidence shows that appellee was a passenger on one of appellant’s trains, and while such passenger he entered a toilet room in the coach in which he was riding, and when he raised the lid to the toilet the wind-blew up through the opening of the toilet a piece of steel, or some character of metal, which struck and imbedded itself in the ball of one of his eyes, which resulted in the loss thereof. There was an opening clear through the toilet, and was not one with the opening so fixed as to prevent substances of this character coming through from the bottom. It was shown that a majority of the railroads use cars with closed toilets, which are the safer, while some of the open toilets-are still in use. The evidence shows that the closed toilets are a better protection from, particles of steel, ground from the rails by the friction of the wheels while running, and that the railroad could have reasonably anticipated such an accident, though employés of the railway company said they never heard of such an accident before.

Appellant’s first assignment of error is: “The court erred in failing and refusing to-read to the jury the first special charge requested by the defendant, asking that the jury find a verdict for the defendant. Said charge should have been given because the-evidence wholly failed to show negligence. It is incumbent on a plaintiff to prove injury occasioned from a negligent act of the defendant, which is the proximate cause of the injury.” The contention is that “under the facts, neither the presence of the object which injured the appellee’s eye, nor the injury therefrom to his eye, could have been foreseen or anticipated by the very highest degree of care on the part of the appellant, and, it not being an insurer of the appellee, its liability was not established by the evidence, and the court should have so instructed the jury.” Whether or not the accident was one that ought to have been anticipated by the appellant was a question for the jury. The court submitted to the jury said issue by appropriate instruction, and, the jury having determined it in favor of appellee, we are not prepared to say their conclusion was wrong. We think the evidence justified the jury in determining that the appellant might have reasonably anticipated small particles of steel would fly up through an open toilet. E. H. Haver, witness for appellant, and an experienced car builder, testified in reference to the building of cars with a view of protection to passengers against particles of steel entering an open toilet, as follows: “That step, I think, would be the protection that would keep the small particles of steel thrown back here from going up that hole, and it helps a great deal. In the ears that I have helped to build the steps were built that way to protect the passengers from steel that might go up there, and I think it enters into it. I think that is one part of it.” Again, he said: “It was not then my opinion that the main reason that these steps were built in this manner was to protect this opening from those steel particles, only partly.” If the object in building the steps in the manner it was done was “only partly” for the purpose of preventing particles of steel from blowing through the opening, it shows that they knew of the liability of such particles of steel passing through the opening of the toilet, and surely anticipated some such result as happened in this case. That many other roads were equipped with closed toilets should have been a warning against the use of open toilets.

The second assignment complains of the court’s overruling its motion for new trial, and submits the following proposition: “It appearing from the evidence that the ap-pellee went into the closet in appellant’s, passenger train, and when he raised the lid something got in his eye, and that he after-wards had his eye removed, and there was found in it a particle of metal no larger than a pinhead, it not being shown that the metal came from the car, or the wheels or the rails, or was the same character of metal of any of them, and it appearing that no such accident had ever happened before in the experience of railroad men, and that it was practically impossible that any metal from the car wheels or rails could have been thrown up through the closet opening, it not being shown that said metal was of sufficient size to have been discovered by the appellant or its servants, nor that it remained at the place where the injury occurred for any length of time, or how it reached that point, and it appearing that the closet was used by passengers, and the object being so small that it might have been carried in the clothes of some passenger who used the closet, no negligence was shown and none could have been inferred from the accident, and the court erred in failing to sustain the appellant’s motion for a new trial.” We have just shown that the evidence warranted the jury in finding that the accident was one that appellant should have reasonably anticipated, and we think the jury had a right to reasonably conclude from the evidence that when the lid of the toilet was raised by appellee the fine particle of steel was projected through the opening by the wind rushing through. The testimony of railroad workmen that they never heard of such an accident before does not show that such an accident has never happened, or that it should not have been anticipated.

The court did not err in failing to give the requested charge of appellant to find for defendant, nor in failing to grant the motion, for a new trial.

The judgment is affirmed.


author: JENKINS, J.

text:
    GEO. M. DILLEY & SON v. WISE & HERVEY.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 12, 1913.)
    1. Damages (§ 85) — Breach of Contract— Liquidated Damages.
    Where a contract for the sale of gin machinery provided for a certain amount as liquidated damages should the purchaser breach the. contract, the seller, upon breach, could recover the amount stipulated.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 179-181, 183-187; Dee. Dig. ⅜ 85.]
    2. Damages (§ 80) — Liquidated Damages.
    In the absence of fraud, accident, or mistake¡ a contract for liquidated damages between parties capable of contracting will be enforced, even though the amount stipulated exceed the-actual damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 170-175; Dec. Dig. § 80.]
    Appeal from Anderson County Court; Adam Cone, Judge.
    Action by George M. Dilley & Son against Wise & Hervey. Judgment for defendants; plaintiffs appeal.
    Reversed and rendered.
    Campbell & Sewell, of Palestine, for appellants.

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

   JENKINS, J.

This suit was instituted by appellants against appellees to recover $575 as liquidated damages on a contract for the sale of gin macliinei'y, and in the alternative' for that amount as actual damages, by-reason of a breach of the contract on the part of appellees. The contract provided for the sale of certain gin machinery at a total price of $1,650, and, among other things, provided as follows: “Whereas, it is contemplated and recognized by all of the parties hereto that the said Geo. M. Dilley & Son will sustain damages by our failure to comply with the terms of this contract of purchase, and it is hereby specially agreed that in case we fail or refuse to receive said property or any part thereof on arrival, or if, after the execution of this order, at/any time decline to comply with the terms thereof, or in any manner breach, or fail or refuse to carry out the terms of this contract and order, we agree to pay Geo. M. Dilley & Son at Palestine, Texas, 25 per cent of the gross purchase price of the property as mentioned above in this contract, and ten per cent additional thereon as attorney’s fees, if placed in the hands of an attorney for collection, as stipulated, as liquidated damages, and not as a penalty, it being the express intention of the parties to this contract that said amount shall be the ascertained, stipulated and liquidated damages agreed upon for our said breach of this contract.” Said contract further provided for a cash payment of $300, to be satisfied by the delivery of certain secondhand machinery, and for the first note for $450, due December 1, 1912, to be secured. There was a judgment for appellees, defendants in the court below.

There is no statement of facts in the record. Appellants assign error upon the court’s conclusion of law from the facts found by the court. The facts as found show that appellees breached the contract by failing and refusing to deliver the secondhand machinery, and also by failing and refusing to execute the notes provided for in said contract. The court in its conclusion of law states that, as the appellees were unable to give the security required, therefore they are not liable. In other words, if a party makes a contract, and he is unable to comply with the same, he is not liable in damages. This is not the law. The contract plainly provides for liquidated damages in the amount ’sued for, and the court should have rendered judgment for that amount. Eakin v. Scott, 70 Tex. 445, 7 S. W. 777.

In Cowart v. Connally & Co., 108 S. W. 974, the Court of Appeals for the Sixth District, after citing the case of Eakin v. Scott, supra, makes the following statement: “But in Collier v. Betterton, 87 Tex. 442, 29 S. W. 467, the Supreme Court seems to recognize the doctrine, applied in many jurisdictions, that the intent of the parties will not always be permitted to control in the effect to be given to such contracts. The court says that, ‘although a sum be named as “liquidated damages,” the courts will not so treat it’ no matter what may be the intention of the parties; we understand the court to mean, ‘unless it bears such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimation by the parties of the compensation to be paid for the prospective loss. If the supposed stipulation greatly exceed the actual loss, if there be no approximation between them, and this be made to appear by the evidence, then it seems to us, and then only, should actual damages be the measure of recovery.’ This rule, it seems to us, is entirely inconsistent with the one applied in Eakin v. Scott, supra, where a judgment for $8,000 in favor of parties who had suffered no actual damages in consequence of the breach of the contract was affirmed. The rule announced in Collier v. Betterton, however, is a later expression of the views of the Supreme Court, and we think a better interpretation of the law.”

What was said by the Supreme Court in Collier v. Betterton, supra, is clearly dicta, inasmuch as it was held in that case that there was no evidence to show that the liquidated damages stipulated for were in excess of the actual damages. No reference is made in Collier v. Betterton to the case of Eakin v. Scott, and we do not think that the court meant to qualify the doctrine laid down in that case. If liquidated damages are recoverable only to the extent of actual damages, then there is no use for a provision in a contract for liquidated damages. Such stipulations are based, not only on the actual damages suffered, but upon such damages as the parties might reasonably contemplate would be suffered by breach of the contract.

“Stipulations for liquidated damages are generally for amounts in excess of the actual damages, and in such cases work a hardship upon the parties in default. In consequence the courts strongly incline to treat all agreements to pay a lump sum, in ease of failure to perform the terms of a contract, as a mere penalty, and in all doubtful instances to allow a recovery only for actual damages. * * * Still, it is generally admitted that a contract for liquidated damages in excess of actual damages is lawful, and that in the construction of these contracts, as in all others, the intention of the parties must govern.” Eakin v. Scott, supra.

“As a man binds himself, so shall he be bound;” and, in the absence of fraud, accident or mistake, a contract for liquidated damages between parties capable of contracting, where it clearly appears that such was the agreement of the parties, will be enforced.

We have thus expressed our views, because the case of Cowart v. Connally, supra, apparently overrules Eakin v. Scott. However, in the instant case the contract for stipulated damages would be enforced, even under the doctrine announced in Cowart v. Connally, for the reason that the proof shows that the actual damages were equal to, if not in excess of, the liquidated damages stipulated for in the contract.

For reasons above given, the judgment of the trial court is reversed, and judgment here rendered for appellants for the sum of $575, with interest from November 11, 1912, the date on which judgment below should have been rendered for appellants.

Reversed and rendered.


author: RASBURY, J.

text:
    CARTER v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.)
    1. Trial (§ 229) — Instructions—Weight of Evidence.
    Repeated references in an instruction as to the conditions upon which plaintiff may recover, or what defenses will defeat a recovery, is sometimes erroneous, but is not reversible error, if the repetitions are necessary to apply the rules of law to the various phases of the evidence, or are not calculated to mislead the jury to believe that the issues so referred to are controlling.
    [Ed. Note — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.]
    2. Trial (§ 229) — Instructions—Weight of Evidence — Unduly Emphasizing Defenses.
    The grouping of the facts of the particular case in an instruction, after generally defining and limiting the defense of assumed risk, and the application of the law thereto for plaintiff and defendant, was not- erroneous as being an undue repetition of the defense of assumed risk, since the court could have been required by either party to charge on the particular facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by Mack Carter against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. E. Cawthon, of Denison, and Jones & Hassell, of Sherman, for appellant. A. S. Coke, of Dallas, and Head, Smith, Hare, Maxey & Head, of Sherman, for appellee.

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

   RASBURY, J.

This case presents a preliminary question involving the constitutionality of the “special district court of Grayson county,” created by Acts 33d Leg. c. 182, which tried the case. At a former term of court, and because of the obvious importance of an early determination of the status of the act creating the court, we certified that question to the Supreme Court. That court sustained the constitutionality of the court in all respects. Mack Carter v. Missouri, Kansas & Texas Railway Co., 157 S. W. 1169. We hence come to a consideration of the appeal upon its merits.

Appellant sued appellee to recover damages for personal injuries alleged to have been sustained by him through the negligence of appellee. Appellee, for the purpose of this appeal, met the charge of negligence by the general denial and the plea of contributory negligence and assumed risk. Upon trial by jury there was a verdict for appellee, followed by judgment in accordance therewith, and from which this appeal is taken.

Briefly stated, the evidence shows, in substance, that appellant was a common laborer in the employ of the appellee in its car shops. At the time of the accident appellant was undertaking to lift a piece of ice weighing about 175 pounds out of an ice box into a wheelbarrow. He was instructed to do so by those thereunto authorized by appellee. He was furnished a pair of ordinary and usual ice tongs with which to lift the ice, a particular description of which is deemed unnecessary. The points of the tongs or ice hooks were blunt, and one of them was turned or nearly straightened, with the result that the points of the tongs when applied to the block of ice would not enter same, and when the block of ice was lifted would sometimes slip off. The tongs would also at times slip from the ice, because they were not tightly bradded together, thereby permitting the tongs to shake and not grasp the ice 'firmly. As appellant was in the act of lifting the block of ice from the ice box, and when he had lifted same nearly to the top thereof, the tongs or hooks, as a result of the condition in which they were, slipped on the ice, which unbalanced appellant, causing him to careen backwards, and “trip” over the handles of the wheelbarrow, throwing him with great force against a gate nearby, seriously injur-, ing him. Appellant, before the accident, notified those in authority of the condition of the tongs or hooks, and they promised to repair same, or replace them with new ones. Appellant believed and relied upon such promise.

The first assignment of error complains of the charge of the court below upon the defense of assumed risk. The charge is as follows: “ ‘Assumed risk,’ as the term is used in this charge, means the risk which is ordinarily incident to the service in which the employé is engaged, and for injury sustained by an employé from a risk ordinarily incident to his service the employer is not liable. By the expression ‘risk ordinarily incident to the service’ is not meant a risk which arises out of 'the negligence of the employer; such being expressly excluded. An employé is sometimes held to assume a risk which arises out of the negligence of the employer, as where the same is obvious to him, or would be known to him by the exercise of ordinary care in the discharge of his duties. However, an employe in the railway service is not held to assume the risk of the defect and danger arising out of the negligence of the railway company, though known to him, where such employé had an opportunity before being injured to inform the employer, or a superior intrusted by the employer with the authority to remedy or cause to he remedied the defect, and does notify, or cause to be notified, the employer, or superior thereof, within á reasonable time of such defect, or where a person of ordinary care would continue in the service with the knowledge of the defect and danger. Railway companies are not insurers of the safety of their employés, but are required by law to use ordinary care to furnish their employés with reasonably safe tools and appliances with which to work in the performance of the duties required of them under their employment, and, when a person enters the service of a railway company, he has a right to assume that it has performed its duty in this respect. However, if the tool or appliance with which an employe has to perform his work becomes defective and dangerous for him to perform his work therewith, and he knows of the defective and dangerous condition thereof, and continues in the service with such knowledge, he assumes the risk incident to performing his work with such tool or appliance in such defective and dangerous condition, unless he notifies or causes to be notified the employer, or superior thereof intrusted by the employer with the authority to remedy or cause "to be remedied the defect, if any, within a reasonable time, or unless a person of ordinary care would have continued in the service with the. knowledge of the defect and danger, if any.”

The criticism directed against the foregoing charge is that it repeatedly refers to the defense of assumed risk, whereby that defense was emphasized and given undue prominence, and is, as a consequence, a charge upon the weight of the evidence. It is, of course, accepted doctrine in this state that repeated reference to the conditions upon which the plaintiff in a given case may recover, or what defense by the defendant will defeat a recovery, is improper and sometimes erroneous. Powell v. Messer, 18 Tex. 406; De Perez v. Everett, 73 Tex. 431, 11 S. W. 389; Traylor v. Townsend, 61 Tex. 144; Hays v. Hays et al., 66 Tex. 606, 1 S. W. 896; Buchanan v. Railway, 48 Tex. Civ. App. 299, 107 S. W. 553; Insurance Co. v. Brannon, 101 S. W. 1020; Railway v. Terhune, 81 S. W. 71; Palfrey v. Railway, 31 Tex. Civ. App. 552, 73 S. W. 411; Moore v. Traction Co., 41 Tex. Civ. App. 583, 95 S. W. 652; Railway v. Dunbar, 49 Tex. Civ. App. 12, 108 S. W. 500; Irvine v. State, 20 Tex. App. 12; Bonner v. State, 29 Tex. App. 223, 15 S. W. 823; Perrin v. State, 45 Tex. Cr. R. 560, 78 S. W. 931. It is also accepted doctrine that such repetitions are not reversible error when the repetitions are necessary in order to apply any given rule of law to the various phases of the case raised by the evidence, or when such repetitions are not given such prominence as is calculated to mislead the jury into believing that the issue so referred to was the controlling one. Railway Co. v. Olmstead, 56 Tex. Civ. App. 596, 120 S. W. 596; Delancey v. Railway Co., 149 S. W. 259; Posener v. Harvey, 125 S. W. 356; Ratto v. Bluestein, 84 Tex. 59, 19 S. W. 338; Railway Co. v. Leak, 64 Tex. 657; Brady v. Insurance Co., 24 Tex. Civ. App. 464, 59 S. W. 915. In the ease under discussion the evidence raised nearly every issue which would vary the application of the general rule of assumed risk, and made occasional references to the defense necessary and proper in order to intelligently instruct the jury. The grouping of the facts, after the general portion of the charge defining and limiting the defense of assumed risk, and the application of the law thereto for both the appellant and appellee, cannot he said to be erroneous repetitions, since the court would have been compelled to do so upon proper request by either party. The assignment is overruled.

The second assignment complains of the charge just quoted on the ground that the evidence in the record discloses that appellee knew of the' defective condition of the tongs or hooks, and that appellant’s right to recover was not dependent upon the giving of notice by appellant of such defect, and that hence the court’s charge requiring such notice erroneously restricted appellant’s right to recover. The only evidence relied upon by appellant as establishing such knowledge on the part of appellee is the statement of the witness Eehr, who seems to be treated as a vice principal of appellee, that the appellee had hut one pair of tongs, and that they had been in use about 2½ years. This admission does not, it seems to us, in any fair sense support the claim that the tongs were defective, and appellee- knew as much. The presumption does not arise from their long use that they were in fact defective so as to charge appel-lee, through its vice principal, of the defective condition. Whether the tongs were defective is a fact to be proven as any other fact. We cannot presume them defective because they had been in actual use for 2½ years. Finally, it may be said it was appellant’s duty to request a special charge on the point if, in his judgment, the testimony raised the issue, and the court had failed to submit same by its general charge.

The third assignment, in our opinion, presents no reversible error, and is overruled.

The fourth assignment attacks the constitutionality. of the trial court, which has been passed upon by the Supreme Court.

The judgment is affirmed.


author: HENDRICKS, J.

text:
    SWIFT et al. v. BEEMER.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.)
    1. Appeal and Error (§ 907) — Presumption —Evidence—Sustained Judgment.
    Where there is no statement of facts, every material allegation in the petition necessary to sustain the judgment is presumed to have been proven in -plaintiff’s favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, •3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    2. Judgment (§ 17) — Process.
    Where, in an action to foreclose vendor’s lien notes, there was an independent cross-action by one of the defendants against another defendant who was not summoned and did not appear, there could be no judgment in the cross-action against such defendant.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    ■3. Dismissal and Nonsuit (§ 60) — Grounds —Want op Prosecution.
    In an action to foreclose vendor’s lien notes, a plea in reconvention or cross-bill holds the same attitude as an independent suit, and, where no proof is offered therein, the proper practice is to dismiss it without prejudice for want of prosecution.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § ■60.]
    4. Appeal and Error (§ 1172) — Disposition —Reversal.
    An adjudication, in an action to foreclose ■a vendor’s lien notes, of matters between two •defendants against each other in their independent cross-actions is not a part of the main suit, but is severable from it and from the main judgment, so that a reversal as to one of the ■defendants or as to part of the judgment cannot open up the while judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. § 1172.]
    5. Costs (§ 240) — Appeal—Reversal.
    Plaintiff, in an action to foreclose vendor’s lien notes, who is not in any way responsible for an adjudication that two parties took nothing by their respective cross-actions against each other, should not on reversal of that part of the judgment be charged with the costs of ■defendant’s writ of error.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 922-926; Dec. Dig. § 240.]
    Error from District Court, Deaf Smith ■County; D. B. Hill, Judge.
    Action by M. F. Beemer against W. B. Swift and others, with cross-action against ■each other by defendants Swift and J. B. Sikes. Judgment for plaintiff, and against the defendants Swift and Sikes in their respective cross-actions, and Swift and •others bring error.
    Cross-actions dismissed, and judgment affirmed.
    Flournoy, Smith & Storer, of Ft. Worth, for plaintiffs in error. H. D. Payne and W. W. Wilkinson, both of Ft. Worth, and Carl ■Gilliland, of Hereford, for defendant in error.

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

   HENDRICKS, J.

A detailed statement of the history of this cause, discernible from the transcript, is unnecessary in explanation of the particular question involved; suffice to say that the defendant in error, M. F. Beemer, as plaintiff in the lower court, sued on a vendor’s lien note, and recovered judgment for the amount of the note, principal, interest, and attorney’s fees against J. H. Wilson, E. L. Myrick, and W. B. Swift, and the foreclosure of the vendor’s lien as against said parties, as well as against one J. B. Sikes, who was made a party defendant in the cause. The judgment recites that the defendants W. B. Swift and J. B.. Sikes were the present owners of the land, and the decree provided that, if the property sold for more than sufficient to satisfy the judgment, the proceeds should be divided equally between these parties.

The defendant J. B. Sikes filed an answer October 21, 1912, embodied in which was an independent cross-action, based upon certain matters not necessary to relate, against W. B. Swift. On October 25, 1912, the defendant Swift also filed an answer, and also embodied in it an independent cross-action against the defendant Sikes, predicated upon certain matters not necessary to set out, and the judgment of the court affirmatively shows that neither of these parties appeared in person or by attorney, and made no defense to the plaintiff’s cause of action, or that any evidence whatever was offered as to the independent cross-actions of Swift. and Sikes against each other. The court ordered “that the defendants W. B. Swift and J. B. Sikes take nothing by reason of their respective cross-actions filed herein,” hence adjudicating the matter to that extent with reference to the cross-complaints. The plaintiff in error W. B. Swift complains of this action of the court in “adjudicating * * * the rights of the defendants J. B. Sikes and W. B. Swift, because said parties did not appear any further than to file their answers in said cause, and no other appearance was made by them,” asking that the whole cause be reversed and remanded for a retrial upon the merits. In this matter the defendant Sikes, also the defendant E. L. Myrick, participate by adopting the brief and the authorities of the plaintiff in error Swift, with the same prayer for relief in the appellate court.

There is no statement of facts in this record; hence every material allegation in the petition of the defendant in error, Beemer (plaintiff in the court below), necessary to sustain the judgment is presumed to have been proven in his favor. The independent matters comprehended in the cross-action of Swift alleged against the defendant Sikes could not, of course, in the condition of this record, be adjudicated one way or the other in favor of or against Sikes, for the reason that the record affirmatively shows that Sikes neither appeared in person nor by attorney. We are not so sure that Swift, whose answer was filed subsequently to that of Sikes, might not have been bound by a judgment upon the cross-action of Sikes against Swift, although Swift did, not appear either individually or by representative; but as to the independent cross-action of Swift in liis answer filed subsequently and pleaded against Sikes, there having been no appearances or citation, the case of Harris v. Schlinke, 95 Tex. 91, 65 S. W. 172, decided by our Supreme Court, would control. That case further holds “that a plea in reconvention or cross-bill occupies the same attitude as an independent suit,” and we are inclined to think that the proper practice in this respect would have been for the trial court, where no proof is offered on these independent suits, to have dismissed each of the cross-actions leveled against the respective defendants without prejudice. The defendant in error, Beemer, could not have asked for such a judgment as this, as it had no relation whatever to his cause of action or his elements of recovery, and with reference to which he was not concerned. These cross-actions, being independent pleas in the nature of independent suits, we believe, would have the same status as any other suit, where no proof is offered, and the trial judge desires to dispose of the cause — in such a case the proper procedure is a dismissal of the case ordinarily for want of prosecution.

We' are unable to reverse and remand this cause as a whole, and the authorities of the plaintiff in error Swift, which are deemed by it as conclusive, touch this matter only on some points, but as applicable to this character of record, with reference to other points, are very remote. The matters attempted to be adjudicated by the two defendants against each other in their independent cross-actions are not a part of the main suit of, the defendant in error, Beemer, and this is not a cause where the judgment is entire, and where a reversal as to one of the defendants and as to a part of the judgment would open up the whole judgment, which is decided by the case of Willie v. Thomas, 22 Tex. 175, and other cases cited therein, but is one disassociated and severable from the main cause, and may be severed from the main judgment. We are unable to ascertain from this record that the defendant in error, Beemer, is in any manner responsible for the character of judgment adjudicating the cross-actions of these defendants entered by the trial court, and we do not think that said defendant in error should be charged with the costs of this writ of error.

We believe that the proper order in this respect is that the plaintiff in error Swift pay the costs of this writ of error, and that judgment be entered on his bond to that extent, and that the plaintiff in error Swift further recover of and from J. B. Sikes one-halt the costs of said writ of error, and that E. L. Myrick pay all costs accrued by him on account of the filing o'f his said brief; and it is further ordered that the judgment of the court below be reformed to the extent that the independent cross-actions of Sikes and Swift be dismissed without prejudice, and said judgment be affirmed in all other respects, and that the defendant in error, Beemer, be exonerated from all costs of this writ of error.


text:
    INTERNATIONAL & G. N. R. CO. v. HOLLEY.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 5, 1913.)
    1. Railroads (§ 443) — Injuries to Animals on Track — Sufficiency of Evidence.
    In an action against a railroad for killing two horses, evidence merely that the horses were found dead by the track was insufficient to show negligence of the railroad.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    2. Railroads (§ 414) — Injuries to Animals on Track — Proximate Cause.
    Where, in an action against a railroad for killing two horses, the evidence showed that they got upon the track and ran upon a trestle, and were killed by falling therefrom, plaintiff could not recover.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1474, 1475; Dec. Dig. § 414.]
    Appeal from Leon County Court; W. D. Lacey, Judge.
    Action by D. M. Holley against the International & Great Northern Railroad Company. Judgment for plaintiff; defendant appeals.
    Judgment reversed, and rendered for defendant.
    Wilson, Dabney & King and Geo. A. Hill, Jr., all of Houston, for appellant.

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

   JENKINS, J.

Appellee brought this suit to recover damages for the value of two horses alleged to have been killed by being run over by the cars of appellant. The evidence shows that the horses were killed within the switch limits of the town of Oakwood. Upon the part of appellee the evidence goes only to the extent of proving that the horses were found dead by the side of a trestle. Neither the appellee nor any of his witnesses saw the horses killed. This evidence is insufficient to show that the horses were killed by reason of the negligence of appellant. Railway Company v. Blankenbecker, 13 Tex. Civ. App. 249, 35 S. W. 333; Railway Co. v. Anson, 101 Tex. 198, 105 S. W. 990.

Appellant’s witnesses, the engineer and fireman, testified that the horses got upon the track and ran upon the trestle, one of them falling off and being killed by the fall, and the other one getting tangled in the trestlework, and that they got him out and that he was killed by the fall. According to their testimony, the engine did not strike one of the horses at all, and was stopped as it ran against the other, but did not run over him or seriously injure him. This testimony is un-contradicted, and under it the appellee was not entitled to recover. Padgitt v. Railway Co., 90 S. W. 67; Railway Co. v. Tamborello, 67 S. W. 926; Railway Co. v. Hughes, 68 Tex. 291, 4 S. W. 492.

The case seems to have been fully developed ; and, under the testimony, the court should have peremptorily instructed the jury, as it was requested to do, to return a verdict for the defendant.

For the reasons above stated, the judgment of the trial court is reversed, and here rendered for appellant.

Reversed and rendered.