author: JENKINS, J.

text:
    STATE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
    (Court of Civil Appeals of Texas. Austin.
    May 21, 1913.
    On Motion for Rehearing, July 5, 1913.
    Writ of Error Dismissed by Supreme Court Dec. 10, 1913.)
    1. Railroads (§ 9) — Ordebs of Commission— Review — Appeal.
    Rev. Civ. St. 1911, art. 6658, placing on parties complaining of an order of the Railroad Commission, and bringing action in the district court to set it aside, the burden of showing “by clear and satisfactory evidence” that it is unreasonable and unjust to them, the presumption given a judgment of a trial court that it is justified by the facts must be accorded such order in the district court, and on appeal from the judgment of the district court bolding against the order, till the contrary is clearly and satisfactorily shown by the evidence adduced in the district court.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.]
    2. Railroads (§ 9) — Orders oe Commission— Proceeding to Set Aside — Pleadings.
    Even if the remedy given by Rev. Civ. St. 1911, art. 6657, to parties complaining of an order of Railroad Commission, by action in the district court, against the commission, to have the order set aside, in which, under article 6658, they have the burden of showing the order to be unjust and unreasonable to them, be exclusive, their answer, in a suit in such court, brought by the Attorney General, by order of the commission, against them for enforcement of such order, and for penalty for its disobedience, in which answer they allege the' order to be unjust and unreasonable as to them, by reason of facts set out, and pray that the order be declared void or. its equivalent, for judgment in their favor, amounts to a plea in reconvention or cross-bill, and a substantial invoking of their statutory remedy.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.]
    3. Judgment (§ 948) — Res Judicata — Pleading.
    Res judicata, to be available, must be pleaded.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1787-1793; Dec. Dig. § 948.]
    4. Constitutional Law (§ 62) — Delegation oe Power to Railroad Commission.
    ' While the power of the Legislature, under Const, art. 10, § 2, to correct abuses by railroads, may be delegated to the Railroad Commission, the declaration of what is an abuse must be by an act of the Legislature.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.]
    5. Railroads (§ 9) — Commission — Power— “Abuse.”
    An abuse by a railroad, which the Railroad Commission may correct, is declared by an act, not using the word “abuse,” but imposing a duty on the railroad; the disregarding of such duty by the railroad being the abuse. .
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.

    For other definitions, see Words and Phrases, vol. 1, pp. 48, 49.]
    6. Constitutional Law (§ 62) — Railroads (§ 58*) — Delegation oe Power to Railroad Commission — Union Deeots.
    Acts 31st Leg. (2d Ex. Sess.) c. 10, declaring that, where two or more railroads reach the same city or town, the Railroad Commission shall ascertain whether it is practicable and feasible for them to use a union depot, and if it finds it is practicable for them to join in the construction and use of a depot, it shall give notice to them, and, after investigation and public hearing, may require construction and maintenance of such depot by them, provided it shall appear to it that the construction and maintenance thereof is just and reasonable to the companies and demanded by the public interest, and it may specify the requirements of such depot as to kind and character, is, in effect, a declaration that railroads shall, under certain conditions, construct and maintain a union depot, leaving to the commission merely the determination, in the first instance, whether those conditions exist, which is not the delega-. tion of legislative power, and does not invalidate the law.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dee. Dig. § 62; Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.]
    7. Constitutional Law (§ 48) — Validity oe Laws.
    A law should not be held unconstitutional, unless clearly so.
    [Ed. Note. — For' other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.]
    8. Railroads (§ 58) — Commission—Powers— Site oe Union Depot.
    The grant, in terms, by Acts 31st Leg. (2d Ex. Sess.) c. 10, of power to' the Railroad Commission to require railroads to build union depots, carries by implication every power necessary to accomplishment of such object, including that to select the site; the companies failing or refusing to agree thereon.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.].
    9. Eminent Domain (§ 47) — Condemnation eor Union Depot — Land oe Railroad.
    Such interest in the land of one railroad company as is necessary for the depot purposes of two other companies, under the order of the Railroad Commission that the three construct a union depot on the depot site of the first com-gany, may be condemned by them, under Rev. !iv. St. 1911, 'art. 6504, authorizing a railroad, unable to agree with the owner for purchase of real estate required for its depots, to condemn it.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.]
    10.Eminent Domain (§ 47) — Condemnation —Property Subject to Mortgage.
    Land of a railroad, though subject, with the rest of its property, to the lien of all its mortgage bonds, may be condemned for a union depot; the bondholders being made a party to the proceedings.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.]
    11.Eminent Domain (§ 47) — Condemnation oe Property Condemned eor Special Purpose.
    A railroad’s depot site, though condemned by it for such purpose, may be condemned for a union depot, which it and another company are ordered by the Railroad Commission to construct thereon; the one from whom such company condemned it being made a party to the second proceedings, and therein allowed any extra damages to which it may be entitled.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.]
    12.Railroads (§ 254*) — Disobeying Orders oe Commission — Penalties.
    The penalties prescribed by Acts 31st Leg. (2d Ex. Sess.) c. 10, § 2, for failure of railroads to obey orders of the commission for construction of a union depot should not be imposed, they, in refusing to obey the orders, not acting willfully, in the sense of intentional wrongdoing, but standing on what they, under the advice of counsel, believed to be their legal rights.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 264.]
    On Motion for Rehearing.
    13.Railroads (§ 9) — Disposition oe Case on Appeal — Remand. ■
    While the judgment of the district court in favor of railroads, as against an order of the Railroad Commission, must be reversed, there being insufficient' evidence to show the order was unjust and unreasonable as to them, yet there being some evidence from which it might be inferred that the order was, in certain respects, unjust and unreasonable as to them, and it seeming that the case was not as fully developed thereon as it should have been, it will be remanded, that these issues may be again submitted and specifically passed on.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Suit by the State of Texas against the St. Louis Southwestern Railway Company of Texas and others. Judgment for defendants, and the State appeals.
    Reversed and remanded.
    B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. E. B. Perkins, of Dallas, N. H. Lassiter, of Ft. Worth, Sam R. Scott, of Waco, W. C. Morrow, of Hillsboro, and Hiram Glass, of Austin, for appellees.

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

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

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

   Findings of Fact.

JENKINS, J.

1. This suit was brought' by appellant, the state of Texas, against the appellees, the St. Louis Southwestern Railway Company of Texas, the Missouri, Kansas & Texas Railway Company of Texas, and the Trinity & Brazos Valley Railway Company, to recover of each of them penalties for the violation of the orders of the Railroad Commission of Texas, in reference to the construction of a union depot, as hereinafter fully set out, and "for a writ of mandamus and mandatory injunction to require the erection and maintenance of a union depot at Hillsboro, Tex., by appellees.

2. Each of appellees is a railway corporation, and each operates a railroad which reaches the city of Hillsboro, in Hill county, Tex.

3. Appellees have no union depot in said city of Hillsboro, but each owns and oper-. ates a separate depot in said city.

4. On January 17, 1911, the Railroad Commission of Texas entered the following order:

“Office of Railroad Commission of Texas. ■“Hearing No. 1108.
“Austin, Texas, January 17, 1911.
“Hillsboro Petition for Union Passenger Depot Building.
“Whereas, in pursuance to notice theretofore duly and legally issued, the Railroad Commission of Texas did, on March 22, 1910, duly issue and promulgate its order in hearing No. 1007, as follows, to wit:
“ ‘Office of Railroad Commission of Texas.
■“ ‘Hearing No. 1007.
“ ‘Austin, Texas, March 22, 1910.
“ ‘Hillsboro Petition for Union Passenger Depot Building.
“ ‘The above numbered and entitled cause, In pursuance of notice duly given, having been called for hearing by the Railroad Commission of Texas on Miarch 8, 1910, and the commission having heard the evidence offered and the facts presented pertaining to the matters covered by the petition and the notice herein, and having duly considered the same, and having also had, under its direction, the physical conditions with respect to the location of the depot building prayed for duly inspected and reported on by its engineer, is of opinion that the present passenger depot facilities of the railway lines entering thq city of Hillsboro, Tex., are inadequate and insufficient to the needs of the business of said station, and for the proper accommodation of the traveling public, and that the construction, operation, and maintenance of a union passenger depot in the city of Hillsboro jointly by all the railway companies hereinafter named and whose lines enter said city is both feasible and practicable, is just and reasonable to the railroad companies involved, is demanded by the public interest, and will be mutually beneficial to said railroad companies and to the traveling public.
“ ‘Therefore, by virtue of the authority conferred upon it by law, it is hereby ordered by the Railroad Commission that the Missouri, Kansas & Texas Railway Company of Texas, the St. Louis Southwestern Railway Company of Texas, and the Trinity & Brazos Valley Railway Company be and they are hereby ordered and required to construct, operate, and maintain a .union passenger depot building in the city of Hills-boro, Tex., said depot building to be located so as to best serve the purpose for which it is intended, and the expense of construction, maintenance, and operation of said depot to be. prorated between the said railway companies upon such basis as they may determine among themselves.
“ ‘It is further ordered that within sixty (60) days from this date plans and specifications for the depot building hereinbefore required to be constructed be prepared and submitted to this commission at its office in the capitol at Austin, in order that it may judge of the adequacy thereof and for its approval, and that said depot building be constructed and ready for occupancy on or before January 1, 1911.
“ ‘[Signed] O. B. Colquitt,
“ ‘William D. Williams,
“ ‘Commissioners.
“ ‘Attest: ’ E. R. McLean, Secretary.’
“And whereas, it appearing to the Railroad Commission of Texas that said railway companies and each and all of them wholly failed and refused to comply with or be governed by the terms of said order so entered under date of March 22, 1910, the Railroad Commission of Texas, acting under the authority conferred upon it by law, did, on October 31, 1910, issue to said railway com-pañíes and. each of them the notice as follows, to wit:
“ ‘Office of Railroad Commission of Texas.
“ ‘Austin, Texas, October 31, 1910.
“ ‘Special Notice.
“ ‘To the Missouri, Kansas & Texas Railway Company of Texas, the St Louis Southwestern Railway Company of Texas, and the Trinity & Brazos Valley Railway Company:
“ ‘Whereas, an order dated March 22, 1910, was entered in hearing No. 1007, whereby the above-named railroad companies were ordered and required by the Railroad Commission of Texas to jointly construct, operate, and maintain a union passenger depot building in the city of X-Iillsboro, Tex., said depot to be located so as to best serve the purposes for which it is intended, and the expense of construction, maintenance, and operation of same could be prorated on such basis as might be determined between themselves, said depot to be constructed in accordance with plans and specifications to be prepared; and
“ ‘Whereas, said order has not been obeyed by said railroad companies; and, whereas, said railroad companies have failed and refused to present to the Railroad Commission of Texas plans and specifications of a union passenger depot as required' by said order, and, whereas, said railroad companies are unable to agree upon plans and specifications for said depot:
“ ‘Now, therefore, notice is hereby given to the above-named railroad companies, and each of them, that the Railroad Commission of Texas will, on Friday, November 11, 1910. at its office in the capítol at Austin, consider the question of the adoption and promulgation of an order specifying the requirements as to kind and character of a union passenger depot to be jointly constructed by the above-named railroad companies in the city of Hillsboro, and, after due hearing and consideration of all plans and suggestions that may be presented and made by the above-named railroad companies, and each of them, as to the kind and character of such union passenger depot, will enter its order specifying the requirements of such union passenger depot as to kind and character thereof.
“ ‘The commission at said time will further consider the question of the apportionment of the cost of construction and maintaining said union passenger depot, and, if the above-named railroad companies cannot agree upon the cost of constructing and maintaining said union passenger depot, then the said Railroad Commission of Texas will itself apportion the cost of constructing and maintaining the same. The Railroad Commission of Texas will, at said hearing, in its order, limit the time within which said union passenger depot shall be constructed, and shall require the construction, of said depot to be begun on or before a certain date to be named in its said order.
“ ‘[Signed] Allison Mayfield,
“ ‘Chairman,
“ ‘O. B. Colquitt,
“ ‘William D. Williams,
“ ‘Commissioners.
“ ‘Attest: E. R. McLean, Secretary.’
“That thereafter, to wit, on November 11, 1910, a hearing was had in the office of the Railroad Commission of Texas at Austin, Tex., in pursuance of said notice of date October 31, 1910, and the commission, having heard the evidence offered and facts presented pertaining to the matters covered by said notice, as well as the question of the proper location of said depot building and the necessary tracks to serve the same, and having duly considered the same, and having also had under its direction the physical conditions with respect to the location of the depot building duly inspected and reported on by its engineer, is of the opinion and finds the fact to be that the present passenger depot facilities of said railway lines entering the city of Hillsboro, Tex., are inadequate and insufficient to the needs of the business of said station, and for the proper accommodation of the traveling public, and that the construction, operation, and maintenance of a union passenger depot in said city of Hills-boro jointly by all the railway companies hereinbefore named and whose lines enter said city is both feasible and practicable, is just and reasonable to the railroad companies involved, is demanded by the public interest, and will be mutually beneficial to said railroad companies, as well as the traveling public:
“Therefore, by virtue of the authority conferred upon it by law, it is hereby ordered by the Railroad Commission that the Missouri, Kansas & Texas Railway Company of Texas, the St. Louis Southwestern Railway Com; pany of Texas, and the Trinity & Brazos Valley Railway Company be and they are hereby ordered and required to construct operate and maintain a union passenger depot building in the city of Hillsboro, Tex., said depot building to include baggage and express rooms, and is to be constructed of brick and other material, as shown by and in accordance with the blueprint plans hereto attached, marked Exhibits A and B, respectively, and made parts hereof.
“It is further ordered, adjudged, and decreed by the Railroad Commission that said depot building, including said baggage and express rooms, are to be located in the city, of Hillsboro, Tex., on the site now occupied by the Missouri, Kansas & Texas Railway Company of Texas passenger station, as shown by the blueprint plans hereto attached marked Exhibit C, and made a part hereof.
“It is further ordered, adjudged, and decreed by the Railroad Commission that said railroad companies, and each of them, shall construct the necessary tracks to serve said union depot in accordance with and as per the blueprint plan hereto attached, marked Exhibit C, and made a part hereof.
“It further appears that the Missouri, Kansas & Texas Railway Company of Texas owns the site hereby selected for the location of said depot building, and that it would be just and equitable, both to the Missouri, Kansas & Texas Railway Company of Texas, as well as to the St. Louis Southwestern Railway Company of Texas and the Trinity & Brazos Yalley Railway Company, that said last two named companies compensate said drst named company to the extent of two-thirds of the value of said site.-
“It is therefore ordered, adjudged, and decreed by the Railroad Commission that the St. Louis Southwestern Railway Company of Texas and the Trinity & Brazos Yalley Railway Company each pay to said Missouri, Kansas & Texas Railway Company of Texas one-third of the reasonable and fair value for the real estate so used by said railroads in pursuance of this order for union depot purposes.
“It is further ordered, adjudged, and decreed by the Railroad Commission of Texas that the cost of the construction of said depot building be prorated between said railroad companies, and each of them, on a basis of one-third to each company; that is to say, it is ordered that the Missouri, Kansas & Texas Railway Company of Texas pay one-third of the cost of the construction of said depot building, the St. Louis Southwestern Railway Company of Texas shall pay one-third of the cost, and the Trinity & Brazos Valley Railway Company shall pay one-third of the cost of construction of said depot building.
“It is further ordered, adjudged, and decreed by the Railroad Commission of Texas that said railroads be and they are hereby given a period of three months from this date in which to begin the construction of said depot building and twelve months from this date in which to have said building, together with all necessary tracks leading thereto, completed and in operation.
“Allison Mayfield, “Chairman.
“O. B. Colquitt.
“William D. Williams, “Commissioners.
“Attest: E. R. McLean, Secretary.”

5. Said order was made and entered after a full hearing at which all of appellees were before said commission, and the previous notices were duly served on appellees, and the previous orders were made by said commission as recited in said order of January 17, 1911.

6. The present passenger facilities of each of appellees in Hillsboro, Tex., are inadequate and insufficient to the needs of the business of said station, and for the proper accommodation of the traveling public.

7. The construction, operation, and maintenance of a union passenger depot at said station jointly by appellees, as ordered by the Railroad Commission, is both feasible and practicable, is just and reasonable to appel-lees, and demanded by the public interest.

8. Appellees cannot agree among themselves as to the construction of said depot, either as to location of same or the cost or apportionment of costs of constructing or maintaining the same.

9. The site, plans, and specifications and prorating of the costs of erecting, operating, and maintaining a union depot at said station, as set out in said order of the commission of January 17, 1911, are not unjust or unreasonable to appellees or either of them.

10. Each of the appellees has disobeyed said order, and all previous orders of said commission in reference to said union depot.

11. This suit was brought by the Attorney General of Texas in obedience to an order of said commission, made and entered on January 22, 1912.

12. In the trial before the court, judgment was rendered for appellees.

Opinion.

The appellees will be referred to in this opinion as the Katy, the Cotton Belt, and the T. & B. V., as these are the names by which they are commonly known.

1. The findings of fact found by the trial court as to reasonableness and public necessity were the reverse of those found by us. Ordinarily we would feel bound by the findings of fact by the trial court, unless it clearly appeared that such findings were wrong. In this case, however, we regard the Railroad Commission as occupying the place ordinarily occupied by a trial court. The duty devolved upon it primarily to ascertain the facts. The suit before the district court upon appellees’ answer was in the nature of an appeal from the findings of the commission. The statute provides that in such suits the burden rests upon the party complaining of the orders of the commission to show, “by clear and satisfactory evidence,” that the orders complained of are unjust and unreasonable. Article 6658, R. S. 1911; Commission v. Chamber of Commerce, 105 Tex. 101, 145 S. W. 580; Ry. Co. v. Commission, 102 Tex. 353, 113 S. W. 741, 116 S. W. 795. The findings of fact by the commission upon which its orders are based are to be taken as prima facie correct. Revisory power is lodged in the court, but “it was not intended that we (nor the trial court) should substitute our judgment for that of the commission every time there is a dispute touching the particular place on the line of a railroad where it would be best for the public interest that a station or a depot should be placed.” Ry. Co. v. Ry. Com., 109 La. 247, 33 South. 214. In this case the evidence is conflicting; lienee our findings of fact are made in conformity with the facts found by the Railroad Commission.

2. Appellees, in their several answers, alleged the orders of the commission herein-sought to be enforced were unjust and unreasonable as to each of them. Appellant excepted to these answers, upon the ground that, inasmuch as the statute gave the appellees the .right to file suit in the district court of Travis county to have the orders of the commission set aside, as being unjust and unreasonable as to them, this remedy was exclusive, and that, as they had not availed themselves of this privilege, the matter of the reasonableness of said orders was res ad judicata. This exception was by the trial court overruled, and the issue thus raised is presented to us under proper assignments.

Appellant cites numerous authorities in support of its proposition that, where an exclusive remedy is given, none other will be allowed. We concede the correctness of appellant’s proposition, and also that the statute gave appellees a remedy, as alleged by appellants. But we hold that, under our system of pleading, appellees are substantially invoking their statutory remedy in this suit. Appellant alleged that the orders of the commission sought to be enforced herein were just and reasonable. Appellees not only plead a general denial, but also alleged that said orders were unjust and unreasonable as to them, by reason of certain alleged facts which they specifically set out, and which, if true, would entitle them to have had said orders set aside in a suit brought for that purpose. The Cotton Belt and the Katy specifically pray that said orders be declared void, and the T. & B. V. prays for judgment in its favor, which is equivalent to a prayer to set aside and annul said orders. These special answers are not styled pleas in reconvention, or cross-bills eo nom-ine, but they amount to such. It is well settled in this state that a party may obtain affirmative relief on a plea in reconvention or a cross-bill as to matters growing out of the same transaction between the same parties. Such pleas have all of the characteristics, as well as the force and effect, of an original suit, and, upon dismissal of plaintiff’s suit, the cause may proceed to judgment upon such answer.

Here the allegations upon which appellees seek relief are the identical allegations which it would have been necessary for them to have made in an original suit to set aside said orders; they are filed in the court in which it would have been necessary to have filed such suit, and are supported by the identical evidence that would have been relevant in such original suit. We think that it would be too narrow and technical a view of our system of pleading to say that appel-lees should not have been permitted, if they could do so, to prove in this proceeding that the orders of the commission were unreasonable and unjust as to them. Castro v. Gen-tiley, 11 Tex. 28, and authorities there cited; Cannon v. Hemphill, 7 Tex. 205; Cunningham v. Wheatly, 21 Tex. 184.

3. We might well have rested our conclusion, as set forth in the next preceding division of this opinion, upon the fact that appellant did not plead res adjudicata in this case, and urged no such objection to the testimony offered by appellees as to the unreasonableness of the orders of the commission, and no such issue was raised by appellant in its motion for a new trial. Houston v. Walsh, 27 Tex. Civ. App. 121, 66 S. W. 109; Bank v. Claxton, 77 S. W. 47.

4. The Cotton Belt and the T. & B. V. have filed a cross-assignment of error to the action of the court in overruling their general demurrer. Their contentions under the assignment are: (1) That the only authority upon which the Legislature could empower the Raili-oad -Commission to make such order is the constitutional provision to “correct abuses”; (2) that an “abuse,” as that term is used in the Constitution, must be defined by law; (3) that there is no law requiring railroads to build union depots. We concede the correctness of the first and second propositions above set out, but not the third.

5. The Constitution empowers the Legislature to correct abuses, and this power may be delegated to the Railroad Commission. Section 2, art. 10. But the commission is not authorized to enaet a law declaring what shd.ll constitute an abuse. This can be done only by the Legislature. In Railroad Commission v..Ry. Co., 90 Tex. 352, 38 S. W. 754, the court said: “What abuses can the Railroad Commission correct? We think that it must be some abuse that has been defined by the law, and that the commission would not by this power be authorized to enact a law defining what is an abuse or a disregard of duty on the part of a railroad corporation.” But “a disregard of a duty” imposed by legislative enactment is an abuse. This. is admitted by appellees, as will appear from the following excerpt from their brief: “It is clear that, if the Legislature should, by express enactment require a thing to be done, and then provide that a failure to do it should constitute an abuse, there could be no question of the sufficiency of the definition.” It is not necessary that the Legislature should use the word “abuse.” It is sufficient that it has by law imposed a certain duty on railroads, and provided a penalty for failing to discharge such duty.

6. The appellees assert that “the Legislature of Texas has never, by specific enactment or otherwise, made it the duty of two or more railroads reaching the same city or town to construct a union depot.”

The second called session of the Thirty-First Legislature (Gen. Laws 1909, p. 399) passed a law which reads as follows:

“An act to confer authority upon the Railroad 'Commission of Texas to require railroad companies reaching the same city or town in this state to construct and maintain joint or union passenger depots; providing penalties, and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. Where two or more railroad companies reach the same city or town in this state, it shall be the duty of the Railroad Commission of Texas to ascertain whether it is practicable and feasible for such railroad companies to use a joint or union passenger depot, and if the Railroad Commission finds upon investigation that it-is practicable for such railroad companies to join in the construction and- use of a passenger depot, then it shall give notice to said railroad companies, and, after investigation and public hearing, may require the construction and maintenance of such union passenger depot by the railroad companies entering any such city or town; provided that it shall appear to the Railroad Commission that the construction and maintenance of such joint or union passenger depot are just and reasonable to the railroad companies involved and demanded by the public interest. The Railroad Commission may specify the requirements of such union depot as to kind and character; and said Railroad Commission may apportion the cost of constructing and maintaining the same to each railroad company in cases where the interested railroad companies cannot themselves agree.
“See. 2. Failure upon the part of any railroad company to observe and obey the orders of the Railroad Commission, issued in compliance with section 1 of this act, shall subject such railroad company to the fines and penalties prescribed by law for failure to obey the lawful requirements, orders, judgments and decrees made by the Railroad Commission of Texas.
“Sec. 3. The fact that there is now no adequate law requiring two or more railroad companies entering the same city or town to construct and maintain union passenger depots, creates an emergency and an imperative public necessity requiring that this act be passed under the suspension of the constitutional rule requiring bills to be read on three several days, and the rule is therefore suspended and this act shall take effect and be in force from and after its passage, and it is so enacted.
“Approved May 10, 1909. Takes effect 90 days after adjournment.”

We think a reasonable paraphrase of this act is that, when two or more railroads reach the same town, they shall be required to construct and maintain a union depot of the kind and character suitable to the needs of the station and demanded by the public interest,. if the erection of such depot is practicable and feasible and just and reasonable to the railroads; and the existence or nonexistence of such facts shall be determined by the Railroad Commission. .It is not left to the commission to enact the law requiring railroads to build union depots, as appellees contend. The Legislature has done that. It is only left to the commission to ascertain the existence of the facts upon which said law becomes applicable. Had the Legislature enacted that union depots should be built wherever the facts above set out existed, without naming any tribunal to determine their existence, any one having the requisite interest in the subject-matter could, by suit in the district court, have compelled the erection of such depot upon proof of the existence of such facts. Is the law any less valid because it leaves the determination of these facts, in the first instance, to a commission of able and experienced men, rather than to a court? Is the Railroad Commission less capable of determining the existence or nonexistence of these facts than a judge or jury? Ought railroad companies be heard to complain that the ascertainment of these facts is referred in the first instance to such a commission, when they are given the right of appeal to a district court? We must answer these questions in the negative.

Our view of the law on this issue is ably presented in an opinion by the Supreme, Court of Pennsylvania in Lock’s Appeal, 72 Pa. 491, 13 Am. Rep. 716. The Legislature of Pennsylvania passed a local option law, forbidding the issuance of license in districts where a majority of the voters voted against such license. It was the contention of the appellant that this act attempted, in effect, to delegate to the people of the various districts the power to enact by their votes a law forbidding the licensing of saloons in such districts. ' We quote from said opinion as follows: .“The Legislature, in the act of 1871, have given to the people a law, not a mere invitation; needing no ratification, no popular breath to give it vitality. The law is simply ■ contingent upon the determination of the fact whether licenses are needed, or are desired, in this ward. And why shall not the Legislature take the sense of the people? Is it not right of the Legislature to seek information of the condition of a locality, or of the public sentiment there? The Constitution grants the power to legislate, but it does not confer knowledge. The very trust implies that the power should be exercised wisely and judiciously. Are not public sentiment and local circumstances just subjects of inquiry? A judicious exercise of power in one place may not be so in another. Public sentiment or local condition - may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere. Instead of being contrary to, it is consistent with, the genius of our free institutions -to take the public sense in many instances that the legislators may faithfully represent the people and promote their welfare. So long, therefore, as the Legislature only calls to its aid the means of ascertaining the utility or expediency of a measure, and does not delegate the power to make the law itself, it is acting within the sphere of its just powers. * * * To assert that a law is less than a law because it is made to depend on a future event or act is to rob the Legislature of the power to act wisely for the public welfare, whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to be fully known. * * * Then the true distinction, I conceive, is this: The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.”

The facts of the instant case make it much stronger for the application of the principle enunciated in Lock’s Appeal, supra, than did the facts in that case. There the fact, ascertained by the vote of the people of a particular district, was that the general conditions there existing rendered it desirable that the law forbidding the sale of intoxicating liquors should be applied to that district. Here the commission is required to ascertain, after full hearing, certain specific facts, in order to make the law requiring railroads t'O build union depots applicable to a particular place. The Railroad Commission did not enact a law requiring a union depot to be built at Hillsboro. It only ascertained the existence of the facts which made the law enacted by the Legislature requiring union depots to be built applicable to Hillsboro.

, In Moers v. City of Reading, 9 Harris (21 Pa.) 202, Mr. Chief Justice Black, speaking for the court, said: “Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such a discretion is the making of the law.”

As instances illustrative of the principle here under discussion, we cite the issuance of bonds by counties and incorporated cities, formerly upon the order of commissioners’ courts and city councils, and now upon referendum vote of the people. Neither the commissioners’ courts, the city councils, nor the people, in such cases, can be said to have enacted the law under which the bonds were issued, but only to have determined the circumstances under which the law enacted by the Legislature became applicable to their respective localities. In the well-considered case of Slack v. R. R. Co., 13 B. Mon. (Ky.) 25, the court said: “It is no objection to the constitutionality of such statutes that they depend, for their final effect, upon the discretionary acts of individuals or others.”

7. We have no doubt as to the constitutionality of the law requiring railroads to build union depots at such places and of such character as the Railroad Commission shall find necessary for the accommodation of the public, when it shall also have found the other facts required by the statute; but, if any doubt existed on this subject, it would be our duty to resolve it in favor of the statute. Courts should not hold laws unconstitutional, unless they are clearly so. Petterson v. Commissioners, 24 Tex. Civ. App. 42, 57 S. W. 1002. The power of the courts to nullify a law enacted by the lawmaking department of the government is one that should be exercised with great caution, especially so in. matters pertaining to governmental policies, the public health, and public utilities.

8. It is contended by appellees that the order of the commission that the union depot should be built upon the site of the present passenger depot of the Katy is void, for the reason that the law does not authorize the commission to select sites for such depots. The appellees might have selected such site, had they seen proper to do so, provided such site had been a reasonable one. But the clear import of the statute is to require the construction of such depots, notwithstanding the failure, or refusal of railroad companies to agree on such site. In such case, if the commissioners are not empowered to select the site, the railroad companies can nullify the statute by the simple expedient of refusing to agree on the site. The statute explicitly grants the commission the power to require railroads to build union depots, and this carries with it, by necessary implication, every power necessary to the accomplishment of such object. Courts ought not to resort to technicalities to override the clear import of a statute.

9. The appellees the Cotton Belt and the T. B. & Y. also insist that the order of the Railroad Commission requiring them to join in the construction of a union depot on the site of the present passenger depot of the Katy should not be enforced, for the reason that said site is owned by the Katy, and it refuses to sell any interest therein to said appellees. It is a fact that said site is owned by the appellee the Katy, and that it has refused to sell any interest therein to either of the other appellees. But this is immaterial, as said appellees have the right to acquire, by condemnation proceedings, such interest in said land as is necessary for their depot purposes under the order of the commission. Article 6504, R. S. 1911. This article does not specifically mention union depots, but its provisions apply to all depots permitted or required by law.

10. Appellees the Cotton Belt and the T. & B. Y. further insist that said order ought not to be enforced against them, for the reason that the Katy has outstanding •mortgage bonds, which are a lien on said depot site, as well as all of its other real estate, to amount of $34,000,000, and that its entire assets are only $36,000,000; that the holders of said bonds may foreclose on the same as they have a legal right to do in ease of default, in which ease said appellees would lose their investment in said union depot. The trial court found the facts as to the bonds and assets of the Katy to be as above stated, and the evidence sustains this finding. But this presents no obstacle to securing the necessary interest in said depot site free from such mortgage liens, as the bondholders could be made parties to such condemnation proceedings, and their equities fully protected. If railroad companies could not acquire lands for right of way or depot purposes, because such lands were mortgaged, this would mean an end to railroad building.

11. Appellees insist that the order of the commission should not be enforced, for the further reason that the Katy acquired said depot site by condemnation proceedings, and has no right to use, or permit the same to be used, for any purpose other than that for which it was condemned, viz., for a passenger depot for the said railway company. The original owner of said site could be made a party to a second condemnation proceeding, in which he would be allowed such additional damages, if any, as he could show himself entitled to by reason of the change of said site from a passenger depot for the Katy railroad to a union depot of all of the appellees.

12. As to the penalties sued for, it is well settled that statutes giving the right to recover penalties should be strictly construed in favor of those against whom penalties are sought to be enforced. It appears that the refusals of the appellees to obey the orders of the Railroad Commission in reference to a union depot at Hillsboro were intentional and persistent, but we are of the opinion that, in doing so, they were not acting willfully, in the sense of intentional wrongdoing, but that they were standing upon what they, under the advice of counsel, believed to be their legal rights. -Therefore we will deny the prayer of the appellant for the recovery of penalties, but will grant it the relief prayed for as to mandamus and mandatory injunction.

For the reasons above set out, the judgment of the trial court is affirmed, in so far as said judgment denies the right of appellant to recover the penalties sued for; but said judgment is here reversed and rendered in favor of appellant to the extent, of granting it a writ of mandamus or mandatory injunction, as prayed for in its petition herein.

Affirmed in part, and in part reversed and rendered.

On Motion for Rehearing.

In the first paragraph of our opinion herein, we said; “In this case, however, we regard the Railroad Commission as occupying the place ordinarily occupied by a trial court. The duty devolved upon it primarily to ascertain the facts. The suit before the district court, upon appellees’ answer, was in the nature of an appeal from the findings of the commission.” This language may admit of a construction that we did not intend. We did not mean to say that we were called upon to review the evidence adduced before the commission. We have no knowledge as to what such evidence was. The only testimony in the record is that given in the district court upon the trial of this case, and upon such trial it would not have been permissible to prove what was testified to before the Railroad Commission, except by way of impeaching a witness. What we meant by the language above quoted is that, inasmuch as the statute makes the orders of the commission binding, unless the party complaining of the same shall prove by clear and satisfactory evidence that they are unreasonable and unjust to him, an. appellate court must indulge in favor of such orders all the presumptions that are given by law to the judgment of a trial court. That is to say, it must be presumed that an order so made was justified .by the facts in the case, until the contrary is clearly and satisfactorily shown by the testimony adduced in the district court in a suit to set aside such order.

We have carefully re-examined the record in this case, and have concluded that we yvere in error in holding that the evidence justified us in finding that the orders of the Railroad Commission of Texas were not unjust and unreasonable to appellees the Cotton Belt and the T. & B. V. in so far as said orders required each of said roads to pay one-third of the value . of the ground upon which the union depot was ordered to be constructed, and one-third of the cost of erecting and maintaining said depot. There is evidence in the record from which it might be inferred that said orders were, in this respect, unjust and unreasonable as to said appellees; but the case does not seem to have been as fully developed on these points by either party as it should have been. We think this case ought to be remanded, in order that these issues of fact should be again submitted to and specifically passed upon by the trial court. See Miller v. Hobdy, 159 S. W. 96, recently decided by this court on motion for rehearing.

We adhere in all other respects to our opinion herein, but, for the reason above stated, we reverse and remand this cause to be tried in accordance with said opinion, and with this additional opinion on motion for rehearing. Accordingly the motion for rehearing is granted, and this cause is reversed and remanded.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. v. KIRKPATRICK.
    (Court of Civil Appeals of Texas. Dallas.
    March 28, 1914.)
    1. Carriers (§ 401) — Baggage—Personal Effects.
    Railroad companies are not insurers of baggage not checked but carried by and retained in the control of passengers upon the cars; the carrier being liable in such case only when the' loss is caused by its negligence.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1529; Dec. Dig. § 401.]
    2. Carriers (§ 408) — Baggage—Loss—Burden oe Proof.
    The burden is on a passenger to show that personal effects taken by him into the coach and not checked as baggage were lost by the carrier’s negligence.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    3. Carriers (§ 403) — Baggage—Loss—Contributory Negligence.
    A passenger who, on inquiry, was told by trainmen that the car in which lie left his baggage would go on through and not be switched off, was justified in relying upon the correctness of such information and in assuming that it would not be switched off so as to endanger losing his baggage in such car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1536, 1537; Dec. Dig. § 403.]
    4. Carriers (§ 397%) — Baggage—Negligence.
    Trainmen were negligent in -informing a passenger that a car attached to the train, in which the ^passenger’s baggage was, would go on through' with the train, when as a matter of fact the car was switched onto another line and the baggage was lost.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1519-1528; Dec. Dig. § 397%.]
    5. Carriers (§ 408) — Loss of Baggage-Value.
    In determining the value of a railroad passenger’s wearing apparel at the time of its loss, its cost and the extent of its use and its condition at the time of its loss may all be considered.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    6. Appeal and Error (§ 1171) — Harmless Error.
    The maxim, “De minimis non curat lex,” is applicable to the allowance of $2.50 excessive damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.' Dig. §§ 4546-4554; Dee. Dig. § 1171.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by A. L. Kirkpatrick against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Spell & Sanford, of Waco, for appellant. Morrow & Morrow, of Hillsboro, for appellee.

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

   RASBURY, J.

Appellee sued appellant, alleging that while a passenger upon appellant’s train en route from Hillsboro to Houston he lost and afterwards failed to recover certain personal effects and wearing apparel of the value of $300, for which he sought, judgment, as the result of the negligent misinformation of appellant’s servants in charge of the train. To the charge of negligence appellant tendered the general issue. There was trial before the judge, who assessed appellee’s damages at $207, followed by judgment therefor.

The essential facts developed on trial are, in substance, that appellee boarded appellant’s train at Hillsboro in the forenoon of the day on which his baggage was lost for the purpose of going to Houston, taking with him into the car three suit cases containing his baggage. 1-Ie entered a chair car, depositing his baggage therein. Before reaching Granger, a station on appellant’s railway, south of Hillsboro, appellee, in order tc> indulge in a cigar, left the chair ear, wherein smoking was not permitted, and entered the one ahead for that purpose, placing his baggage in the chair which he had occupied. About the time the train arrived at Gran-ger, where appellant’s railway branches, the train auditor passed through the coach occupied by appellee, took up appellee’s ticket or hat check, and announced the train would go through to Houston. Appellee repeated the statement to the auditor for confirmation of his understanding, when the auditor again repeated the announcement that the train would go through to Houston. Appellee remained in the smoking coach for a while, when he disembarked therefrom to the station, and when he did so observed that the chair car containing his baggage was not to be seen. Inquiry developed that it had been attached to another train made up at Gran-ger and had departed on its way to San Antonio via Austin. Sometimes, depending upon the amount of traffic, it was shown that the conductor of the Houston train, after arriving at Granger, is directed to carry the Houston chair car on to San Antonio, though the conductor says it was not done at the time stated by appellee. Appellee says, when he discovered the chair car containing his baggage was gone, he called on appellant’s telegraph operator at Granger at once and requested him to wire the situation to the train authorities, which he promised to do. The operator denies that appellee called upon him at all. Continuing his journey to Houston, appellee reported his loss the next morning to appellant’s servants, who promised to investigate the matter. This was done, but the baggage was never recovered. Appellee testified concerning the articles contained in Ms cases and their value, one branch of which will be referred to later.

It is urged by appellant that the testimony is insufficient to sustain the court’s finding that it was guilty of actionable negligence.

In determining that issue it is necessary to bear in mind that, as distinguished from cheeked baggage, railroads are not ordinarily in case of loss, insurers of baggage carried upon cars by passengers and wlio reserve the control and possession of same during their journey. Mr. Hutchinson states the general rule in the United States to'be that, if the passenger retain in his custody any part of his baggage to the esclusion of the carrier’s control over it, the latter can be held liable for its loss only when the loss of it has been due to its negligence. Hutch. Carriers (3d Ed.) vol. 3, § 1264, p. 1505. And the burden of proof is upon the passenger to show that the loss or damage was in fact the result of the carrier's negligence. By another safe authority it is said that passengers incidental to the right to transportation which they have purchased have the further right to carry with them a reasonable quantity of personal baggage appropriate to the journey; and that the carrier’s duty with reference to such effects, although retained in the passenger’s possession and control, is to exercise reasonable care to protect them from loss or injury. By such rule it is said carriers are not insurers of the safety of the baggage, but liable for loss or injury thereto resulting from the carrier’s negligence. 6 Cyc. 661. Such is the rule of decision in this state. In Pullman Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31, it is said: “If passengers by railway train retain the exclusive custody of their baggage, then the carrier is not responsible for its loss, unless this results from the carrier’s negligence, and the failure of a passenger to use reasonable care in reference to it will defeat his right to recover.” In Bonner et al. v. Grumbach, 2 Tex. Civ. App. 482, 21 S. W. 1010, it is said: “While a carrier of passengers is not liable as an insurer of money or other baggage retained in the possession and control of the passenger, and lost during the trip, he (it) is bound to use proper care to prevent loss of, or injury to, it, and if such property or money be lost, as the proximate consequence of negligence of the carrier, he (it) is responsible.”

The rule being as we have stated it, it only remains to determine whether any act of negligence was proven on trial, which will support the judge’s finding, for, if the evidence raised the question of negligence, it then became a question of fact for the determination of the trial judge. It is undisputed that appellee inquired of appellant’s servants, in effect, whether the car in which he had left his baggage would go through to Houston and was informed that it would. As matter of fact, it was detached and sent over its branch line to San Antonio. We think appellee was justified upon receipt of such information in relying upon its correctness, and had the right to assume that the ear containing his baggage would not be detached, but continue on to Houston, and that appellant was negligent in the exercise of reasonable care in misinforming appellee of the intention of appellant’s servants to detach the car containing his baggage. The misinfprmation, it seems to us, is sufficient to support the judgment, since same appears to have been the direct and proximate cause of the loss of appellee’s baggage.

It is also contended under appropriate assignments of error that the judgment is excessive,, for the reason that in order to allow appellee the amount the court did allow it was necessary for the court to value some of the wearing apparel and other effects of appellee, which had been worn and in use for some time, at their original purchase price or value. In submitting to juries the issue of the value of wearing apparel, etc., it has been repeatedly held that the measure of damages is the difference in the actual value thereof just prior to the loss or injury and the actual value thereof just subsequent thereto, and that the proper method of arriving at the value at the time of loss or injury by said rule is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, and their condition at the time, etc. M. K. & T. Ry. Co. of Tex. v. Hailey, 156 S. W. 1119, and cases cited.

Under the rule stated, the testimony supports the finding of the trial judge, except that, in fixing the value of one suit of clothes lost with his baggage, appellee stated its value on direct examination to be $25, while on cross-examination he stated it at $22.50; but we conclude nevertheless if the value stated on cross-examination is the one to be accepted as correct, and there are reasons why it should be, that to this discrepancy or contradiction there should be applied the maxim, “De minimus non curat lex.”

The judgment is affirmed.


text:
    SHAW et al. v. FAIRES.
    (Court of Civil Appeals of Texas. Dallas.
    March 28, 1914.)
    1. Brokers (§ 53) — Cause oe Sale.
    A broker is entitled to commissions if a purchaser is procured through his efforts.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. §.53.*]
    2. Brokers (§ 55) — Cause oe Sale.
    A broker is entitled to commissions if his efforts are the procuring cause of the sale, though it may be concluded through a second broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. § 55.]
    3. Appeal and Error (§§ 994, 1002) — Findings— Conclusiveness — Conelictin& Evidence.
    The finding of the jury on conflicts in the evidence and the credibility, of witnesses and the weight of their testimony is conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906, 3935-3937; Dee. Dig. §§ 994, 1002.]

      4. Biiokebs (§ 88) — Actions for Commissions — Jury Question.
    In a broker’s action for commissions for procuring the sale of realty, evidence held to make it a jury question whether the broker procured the purchaser.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    5. Set-Off and Counterclaim (§ 35) — “Un-liquidated Demand.”
    A counterclaim for commissions for procuring a sale of property was not an “unliqui-dated demand,” so as nojt to be a proper counterclaim, under Rev. Civ. St. 1911, art. 1329, though the parties did not agree' upon the. amount of commissions to be paid, since the law implies that the usual charge shall be paid.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. § 35.

    For other definitions, see Words and Phrases, vol. 8, p. 7195.]
    6. Set-Off and Counterclaim (§ 29) — Counterclaims Allowable — Matters Incident to Plaintiffs’ Action — “Incident to the Same Transaction.”
    Where defendant was employed to sell plaintiffs’ property, insure it, collect rents, etc., and in the performance of such contract earned commissions for selling the property, his claim for commissions was a proper counterclaim, in an action by plaintiffs for money collected by defendant as rents, etc., being incident to the same transaction, within Rev. Civ. St. 1911, art. 1330.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. § 29.]
    7. Limitation of Actions (§ 63) — Counterclaim.
    If, when plaintiff filed his suit, defendant owned a subsisting counterclaim, which was not barred by the two-year limitations (Rev. Civ. St. 1911, art. 5687, subd. 2), that the bar was completed before the counterclaim was pleaded would not prevent defendant from setting off the counterclaim at any time during the suit, though, if he did not assert it until after two years from the time of its accrual, he could not recover thereon for any excess over plaintiff’s demand.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 343; Dec. Dig. § 63.]
    8. Husband and Wife (§ 232) — Contracts by Wife — Consent of Husband — Evidence.
    In a counterclaim 'on a contract by a married woman, authorizing defendant to sell her property for commissions for making the sale, evidence held to show that plaintiff’s husband consented to the making of the contract with defendant.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. 844-848, 981; Dec. Dig. § 232.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by Florence F. Shaw and another against} Walter S. Faires, in which defendant filed a counterclaim. From a judgment for defendant on the counterclaim, plaintiffs appeal.
    Reformed and affirmed.
    J. H. Randell, of Denison, for appellants. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

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

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

   RASBURY, J.

Appellant Florence F. Shaw, joined pro forma by her husband, V. B. Shaw, sued appellee for a sum of money collected by him for appellant and alleged to have been by him wrongfully and fraudulently retained and converted to his own use.

Appellee, following certain preliminary matters which have no bearing upon the issues presented by this appeal, admitted the collection of the money and liability therefor, less certain amounts paid out on authority of appellant Florence F. Shaw and for her use and benefit. Appellee further asserted by way of counterclaim that appellants were due him certain money in excess of the amount due by him to appellants, for commissions earned by him in selling for appellant Florence Shaw certain real estate, and asked judgment against appellant Florence F. Shaw for the difference in the claims.

By supplemental petition appellants urged, omitting masters not material here, as special defensive matter against the counterclaim that the setoff and counterclaim was two years past due, and hence barred by limitations, and coverture.

There was a trial by jury; the verdict being: “We, the jury, find for the defendant on his cross-action in the sum of $431.25, and that said amount be credited with the funds now held by defendant belonging to the plaintiff.” Upon the verdict judgment was entered for appellee Faires for $431.25 against Florence F. Shaw and her husband, Y. B. Shaw, upon which a credit was directed of $3,374.42, being the amount agreed by all parties to be due by appellee to appellant - Florence F. Shaw. The judgment also directed that execution for the balance should issue and be levied upon the separate property of Florence F. Shaw. From such judgment this appeal is taken. .

It may be said that the following facts are undisputed: Appellant Florence F. Shaw and appellee many years prior to the transactions involved in this suit resided in Deni-son and were childhood friends. About 10 years before trial she left Denison with her parents, removing to Kansas City, Mo. There her mother died, and there she married and removed to Bellingham, Wash. At her mother’s death she became (by inheritance we pre-. sume) the owner of a three-fourths interest in a two-story hrick building, and the land on which it was situate, blocks 9 and 10 in Cyrine Park addition, 10 acres in Woodlawn boulevard, and nine vacant lots, all within or adjacent to the town of Denison. At this point sharp conflicts arise in the testimony. We only state those facts which were proven, though disputed, considered necessary to sustain the judgment, foregoing any attempt to reconcile same, since that duty is the peculiar function of the jury. About five years prior to the controversy involved in this appeal, Mrs. Shaw visited Denison and employed, ap-pellee, who was engaged in the insurance and real estate business, to sell her property, keep her storehouse insured, oversee repairs thereon, and inform her with reference to her taxes, and sometimes collect her rents, though not usually. The agreement was verbal, and the amount of commissions in ease of sale was not agreed upon. Subsequently, although the approximate date even is not given, appellee sold the two blocks of land in Cyrine Park addition, also two other blocks of land, as well as a 10 or 11 acre tract of land, in consideration of all of which Mrs. Shaw paid him a commission of 5 per cent. The customary and usual commission for such sales in Denison, in the absence of agreement, is 5 per cent, of the amount of the sale price and the amount allowed appellee by the jury. Mrs. Shaw sold the storehouse to M. D. Brazile about February, 1910, for $11,500. Prior to the sale to Brazile, and after the placing of the property with ap-pellee for sale by Mrs. Shaw, appellee negotiated with Brazile, who owned a building adjoining, for the purchase of Mrs. Shaw’s property, in fact negotiated with him for quite a long time. Brazile testified in the case and corroborated appellee’s claim that he negotiated with him, although Brazile fixes the period of last negotiation at two years prior to the time he finally bought it, and appellee, so far as the record discloses, did not attempt to fix the date of his last negotiation with 'Brazile. Brazile concluded no purchase through appellee, but after his negotiations with him, and just prior to his purchase of the property, he secured Mrs. Shaw’s address from her tenant and wrote her, making an offer for the property. The offer Mrs. Shaw referred to her father- at St. Louis, and wired appellee, asking business conditions at Denison, and whether he would or not recommend that she sell. At this time Mrs. Shaw had not withdrawn from appellee the right to sell her property. Appellee advised Mrs. Shaw in answer to her telegram not to sell, as he thought he could secure $11,-500 for the property. Mrs. Shaw’s father, after learning that appellee had advised Mrs. Shaw not to sell, wrote appellee that it was Brazile who was offering the $11,000, but that he would defer closing with him if appellee could get more from another. Ap-pellee did not reply to him. Negotiations between Mrs. Shaw’s father and Brazile were abandoned. for a while, but resumed later, when Brazile offered $11,500 for the property, and which was accepted.

We will not attempt to discuss the many assignments seriatim, but will discuss the issues raised thereby as such. We are of opinion that the evidence is sufficient to sustain the verdict and judgment.

Generally speaking, the law is that, if a purchaser is found by the broker’s efforts and through his instrumentality, he is entitled to compensation, since he is the procuring or efficient cause of the sale. Graves v. Bains, 78 Tex. 92, 14 8. W. 256; Bellis v. Hann & Kendall, 157 S. W. 427.

In like manner is the broker entitled to his compensation if his exertions be the efficient and procuring cause of the sale, notwithstanding the sale may be concluded through the medium of a second broker. Bellis v. Hann & Kendall, supra; Duval v. Moody, 24 Tex. Civ. App. 627, 60 S. W. 269; Wood v. Wells, 103 Mich. 320, 61 N. W. 503.

In the instant case the facts in our opinion raise the issue, the determination of which concludes our function in that respect, since it then becomes a question for the jury whose duty it is, as we have said, to reconcile .the conflicts and to pass upon the credibility of the witnesses and the weight to be given their testimony, and, if in that respect the jury concluded, as it probably did, that appellee procured Brazile as a purchaser, the fact that appellants concluded the transaction through Mrs. Shaw’s father would not alter the liability.

It is next urged that appellant’s cause of action by the provisions of article 1329, R. S. 1911, which regulates the character of counterclaim that may be set off against the plaintiff’s demand, is a certain or liquidated demand, and that appellee’s counterclaim is an uncertain and unliquidated demand, and for that reason may not be set off against appellant’s demand. We think the contention unsound. In Jones & Go. v. Hunt, 74 Tex. 657, 12 S. W. 832, it was held that a suit to recover money deposited with another under facts analogous with those in the instant case, and by him wrongfully converted, was a suit upon a certain demand. In the same ease it was also said that the test of whether the counterclaim was by the provisions of the statute unliquidated and uncertain depended upon whether the same sounded in tort. The commission. of a tort in the cases cited is said to be the infringement of a right created otherwise than by contract. Thus, by the rule stated, it is seen that the counterclaim asserted in the instant ease is not one sounding in tort, but in contract. The fact that in making the contract the parties failed to agree upon the commission to be paid is immaterial, and makes the claim none the less certain, since by operation of law the usual and customary charges for the performance of such services are read into the contract.

We are also of opinion that the counterclaim was a proper one, for the further reason that, by the succeeding article <1330) all counterclaims founded on a cause of action arising out of or incident to or connected with plaintiff’s cause of 'action.are excepted from the provisions of article 1329, and in our opinion includes within its provisions the counterclaim asserted by appellee. By appellee’s testimony and the finding of the jury he was employed by appellant Mrs. 8haw to sell her property, insure it, oversee repairs, report the taxes, and sometimes collect the rents. In the performance of this contract appellee collected the rents sued for by appellants and earned the commissions urged in Ms counterclaim, and hence both claims arose out of, were incident to, and connected with such contract, since arising is springing from, coming into being, beginning, originating, and incident, is appertaining to or following another thing, and connected, is related matters, etc.

It is also urged that the counterclaim for commissions accrued more than two years before it was asserted, and was hence barred by the provisions of subdivision 2 of article 5687, R. S. 1911, requiring suits for debt not evidenced by contract in writing to be commenced and prosecuted within two years after the cause of action shall have accrued.

Without attempting to discuss the fundamental reasons underlying the rule, it may be said to be settled that if, at the time the plaintiff files his suit, the defendant is the owner of a subsisting counterclaim, as contemplated by the statute, which at said time is not barred by the two years’ statute, the fact that the bar is completed before the counterclaim is urged in a proper pleading will not deprive defendant of the right to set off such counterclaim against plaintiff at any time during the progress of the suit. Such result is not true because of any suspension of limitation, but on the principle that such mutual accounts extinguish one the other pro tanto whenever plaintiff declares upon his demand. Crook et al. v. McGreal et al., 3 Tex. 487; Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex. Civ. App. 61, 52 S. W. 629. But, in the application of the -rule, it is also clear that, if the defendant did not assert his counterclaim until after the expiration of two years from the time of its accrual, he would not be entitled to recover thereon for any excess in his counterclaim over the plaintiff’s demand. In that respect we have labored under some difficulty in the instant case, due to the condition of the record. It is shown that appellants filed suit August 17, 1910. Appellee’s counterclaim accrued February 10, 1910. So that, when the suit was filed, the bar had not intervened, and the result was that by operation of law appellants’ claim was completely extinguished, and likewise appellee’s, except the excess of $93.83. In order to Have entitled appellee to a judgment 'for the difference between the claims, he must have filed his plea of counterclaim within two years after the accrual of his right to sue. The transcript of the pleading fails to show that he did so, since all it contains is an- amended answer filed May 23, 1912, asserting, so far as the record discloses, for the first time, the counterclaim. On that date, however, the counterclaim was barred so far as any right to affirmative relief for the excess is concerned. Consequently, the issue of limitation being raised and the record as stated, the judgment for apnellee for the excess in claim is not supported, and it was error to award the same.

- It is further asserted that the court erred in entering the judgment it did enter, because Mrs. Shaw was a married woman and not bound upon the contract, because not consented to by her husband, and not for the benefit of her separate estate. Conceding that the issue is properly raised by attack upon a charge correct as far as it goes, or is raised by attacking the court’s refusal to peremptorily direct verdict'for appellants, we nevertheless conclude that coverture under the evidence in the record offers no bar to appel-lee’s right to recover. The property was the separate property of Mrs. Shaw. It was sold for the best obtainable price, and Mrs. Shaw’s husband joined in the deed. The evidence shows that the sale was for the benefit of Mrs. Shaw’s separate estate, since she herself testifies that it was advanta-* geous for her to sell and invest and use the money at her place of residence. The circumstance that Mrs. Shaw’s husband was not present when the contract to pay commissions was made is insufficient to support the inference that he did not consent thereto. The fact that Mrs. Shaw made the contract and that her husband joined in the deed on the other hand supports the conclusion that it was with his consent and agreement that she journeyed to Denison and there made the contract with appellee.

It may be argued that the questions should have been submitted to the jury, but we think not, since, under the undisputed facts, no other ve'rdict on such issues could properly have been found.

There are other assignments of error, all of which we have carefully considered, and none of which, in our opinion, constitute reversible error. Some of them may show technical error, but the record discloses it to have been either harmless or cured by other proceedings.

In consonance with the views expressed, the judgment of the court below in favor of appellee for $93.83 is set aside and held for naught, but in all other respects the said judgment is affirmed. Costs of appeal are adjudged against appellee.

Reformed and affirmed.


author: PLEASANTS, C. J.

text:
    BLOCK v. FERTITTA et al.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 25, 1914.
    Rehearing Denied March 19, 1914.)
    1. Nuisance (§ 31).
    The petition, in an action by a lessee, to recover a part of the premises from another, also claiming as lessee under the original owner, sought to enjoin defendant from maintaining a shoe shining parlor on the premises, and alleged for that purpose that such use of the premises was detrimental to plaintiff’s interest in the rental of other property acquired by him under the lease, and that defendant’s employés were negro boys who were noisy and boisterous, and whose conduct disturbed the lessees of the property adjacent thereto in a business way, and that men generally, and ladies in particular, do not care, for the reasons indicated, to pass plaintiff’s premises. Held that, since shoe. shining was a legitimate business, the allegations did not authorize an injunction restraining defendant from conducting a shoe shining parlor on the premises on the ground that it constituted a nuisance; it being necessary that the injury or annoyance be of a substantial character so as to impair the ordinary use of the property, in order to authorize an injunction.
    [Ed. Note. — For other eases, see Nuisance, Cent. Dig. §§ 72-76; Dec. Dig. § 31.]
    2. Nuisance (§ 19) — Conduct of Business.
    A lawful business may be conducted so as to become a nuisance, in which case one injured thereby may enjoin the continuance of the business in such a way.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 55; Dee. Dig. § 19.]
    3. Injunction (§ 136) — Grounds—Failure to Pat Rent. .
    In a suit to recover property claimed by defendant under a lease, a temporary injunction will not issue enjoining defendant from conducting his business in the premises, because of his failure to pay rent to plaintiff, in absence of an allegation that defendant is insolvent, and cannot be made to respond to any judgment.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.]
    4. Injunction (§ 136) — Use of Property— TEMPORARY Injunction.
    • In an action to recover realty, a temporary injunction will not issue restraining its lawful use by defendant pending the. action, in absence of a showing that defendant’s possession was forcibly or fraudulently obtained, and that the injunction is necessary to preserve the status quo of plaintiff’s possession or to prevent irreparable injury to the property or to plaintiff by defendant’s use thereof. .
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Suit by I. Block against Sam Fertitta and others. From an order denying a temporary injunction, plaintiff appeals.
    Affirmed.
    Dougherty & Gordon and M. S. Duffie, all of Beaumont, for appellant. Hill & Cooper and Blain & Howth, all of Beaumont, for appellees.

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

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

   PLEASANTS, C. J.

This appeal is from an order of the district court of Jefferson county refusing to grant appellant a temporary injunction in a suit brought by him against the appellees to recover possession of property described in his petition as parts of lots 8 and 9, block 41, in the city of Beaumont.

The petition alleges ini substance that plaintiff was on October 1, 1913, lawfully seised and possessed of said property, holding the same under a lease contract executed by Has Landry and his wife, Cora Landry, who was the owner in fee of said property in her separate riglit,. and that defendants on said date unlawfully entered upon said premises and ejected plaintiff therefrom, to his damage in the sum of $5,000. The petition then sets out at great length the facts upon which plaintiff bases his claim to the right of possession of said premises and the right to dispossess defendants from that portion of the premises occupied by them. Succinctly stated, these facts are that on the 7th day of December, 1912, Cora Landry, the owner of said property, joined by her husband, Has Landry, executed and delivered to plaintiff a written lease conveying to plaintiff the right to use, occupy, and possess said premises for a term of 35 years in consideration of the payment by plaintiff to her of an annual rental of $9,000, payable in quarterly installments of $2,250 each, and the performance by him of other covenants and agreements stated in said lease, all of which said payments and covenants plaintiff had heretofore .made and performed in accordance with the terms of said lease, and will continue so to make and perform, and plaintiff .is entitled to all of the rights and privileges granted by said lease and entitled to possession of all of the property covered thereby; that, at the time of the execution of said lease, the defendants Sam Fertitta and John G. Carabin were in possession of a portion of said premises, holding the same under a lease executed by Has Landry to Sam Fertitta on February 24, 1912, which said lease plaintiff alleges was void because for a longer term than one year and not executed by Mrs. Landry, who owned said property in her own separate right. There are further allegations to the effect that, after the lease to plaintiff, Mrs. Landry signed and acknowledged the lease to Fertitta, and said instrument was interlined and' altered so as to recite that it was executed by Mrs. Landry and her husband, Ras Landry, and that such alteration of the lease, of which plaintiff had no notice, rendered said lease void and of no effect as against this plaintiff. It is further alleged that, by the terms of said lease to defendant Fertitta, said defendant obligated himself to use the property for a barber shop, and agreed that, .in case he made default on the payment of any rents that might accrue under said lease or in the performance of any of his covenants therein, the grantor should have the right to terminate said lease and enter upon and take possession of the premises. Said lease also contained the following provision: “Party of the second part is not to sublet said premises. * * * It is agreed and understood by and between the parties hereto that the property and premises hereinbefore described are let and leased to the party of the second part for the purpose of use as a barber shop and are not to be used for any other business or mercantile purposes without the written consent and permission of the party of the first part.” It is then alleged that, in violation of the terms of said lease, the said Fertitta, without having obtained the consent of Ras Landry, leased a portion of said premises to the defendant John G. Garabin, to be used for conducting therein a shoe shining parlor, and that, by reason of said violation of the terms of said lease, plaintiff, wlio lias acquired all of the rights of the said Ras and Cora Landry thereunder, has the right to cancel and terminate said lease, and here now declares same terminated and demands possession of said premises.

The allegations as to the injury sustained by plaintiff and the prayer for relief are. as follows: “Plaintiff would further show to the court that the defendant John G. Carabin is using a part of the premises for a shoe shining parlor; that the use of said premises for a shoe shining parlor is detrimental to the interest of plaintiff in the rental of the other property acquired by him under the terms of said lease; that the employes of the said Carabin are negro boys who are noisy and boisterous, and whose conduct is such as to disturb the lessees in the property adjacent thereto in a business way; and that men generally, and ladies in particular, do not care, for reasons indicated, to pass by the premises under lease to the plaintiff herein. * * * Plaintiff further alleges that, by defendants’ refusal to pay the reasonable rental value of said property, he is being irreparably injured in a property right, for which he has no adequate remedy at law, or such remedy as he has is burdensome, cumbersome, and ineffectual, and further that the said defendant Sam Fertitta has breached a covenant of said lease between the Lan-drys and himself, dated February 24, 1912, which of itself, and the other facts alleged in this petition, entitles plaintiff to an injunction under the principles of equity enjoining, restraining, and prohibiting the said defendants, or either of them, from further occupying or retaining possession of said premises for a shoe shining parlor. Wherefore, and by reason of the premises, plaintiff prays that defendants, and each of them, be cited to appear and answer this petition; that notice be given them to appear before your honor and show cause why a writ of injunction should not issue enjoining defendants, and each of them, from occupying a portion of the premises described above, as a shoe shining parlor; and that, upon a final hearing hereof, your honor declare said pretended leases between said Sam Fertitta and the Landrys null and void, and that plaintiff have judgment for the possession of the said above-described lands and premises of which defendants now are in possession, and that writ of restitution and possession issue, and for his rents, damages, and costs of suit, and for such other and further relief, both general and special, that he may be entitled in law or equity and as in duty bound will ever pray.” The petition was properly verified.

The defendants answered by general and special exceptions, and specially denied under oath each of the material allegations of the petition.

Upon the hearing of the application for temporary injunction, the testimony of several witnesses, among them the defendant Fertitta, was introduced and heard by the court, but we deem it unnecessary, in disposing of this appeal, to set out the facts disclosed by the evidence or to express any opinion upon the question of whether, under the facts shown, the plaintiff would, upon a final hearing, be entitled to recover from the defendants the possession of the property in controversy.

We think it clear that the petition does not present a case which would authorize the issuance of an injunction dispossessing defendants, or restraining them from carrying on a shoe shining business on said premises, pending a final hearing of the case. The allegations that the use of the “premises for a shoe shining parlor is detrimental to the interests of plaintiff in the rental of other property acquired by him under the terms of said lease,” and that “the employes of defendant Carabin are negro boys who are noisy and boisterous, and whose conduct ■ is such as to disturb the lessees in the property adjacent thereto in a business way, and that men generally, and ladies in particular, do not care, for reasons indicated, to pass by the premises under lease to plaintiff herein,” are not sufficient to authorize the issuance of an injunction restraining defendants from conducting a shoe shining parlor on the premises. Shoe shining is a legitimate and useful business, and, if defendants have a right to the possession of the premises, they cannot be restrained from conducting any lawful business therein that they may choose to engage in, if so conducted as not to materially injure adjacent property owners.

A lawful business may be conducted .in such manner as to become a nuisance, and in such case the parties so conducting it might, at the suit of one injured thereby, be restrained from continuing to conduct it in such manner, but they could not be denied the right to carry on the business in a proper manner. The allegation that “the use of the premises by the defendants for a shoe shining parlor is detrimental to the interest of plaintiff in the rental of other property acquired by him under the terms of said lease” is too general and indefinite to show any material or substantial injury to plaintiff. It is not alleged that plaintiff has lost or will lose any tenants because said shoe shining business is carried on by the defendants on the premises in controversy, or that he has thereby suffered any loss in the rental value of his property. The allegation that the negro boys employed by defendants in said shoe shining parlor are “noisy and boisterous and disturb the lessees in the property adjacent thereto in a business way” also fails to show any substantial injury or any real annoyance to said tenants. It certainly cannot be said that the fact “that men generally and ladies in particular do not care to pass by the premises” would justify the holding that the shoe shining parlor is a nuisance and authorize an injunction restraining defendants from carrying on said business on said premises. One who lives in a city must of necessity submit to annoyances incident to occupations carried on in bis immediate neighborhood which are useful to the public and which cannot be declared a nuisance without depriving the owner of the property, on which.such business is conducted, of its reasonable use and enjoyment; and the injury or annoyance which will authorize relief by injunction for the person suffering therefrom must be of a real and substantial character and such as impairs the ordinary use and enjoyment of his property. We think the petition in this case fails to show such injury to plaintiff.

The facts alleged in the petition in regard to the injury to plaintiff because of the failure of defendants to pay reasonable rents do not show that plaintiff will suffer irreparable ' injury if the injunction prayed for is not issued, but, on the contrary, it is clear from the allegations of the petition that plaintiff has a plain and fully adequate remedy at law for such injury. There is no allegation that the defendants are insolvent or that they cannot be made to respond to any judgment for rents or damages that plaintiff may recover against them. Lumber Co. v. Fall (Civ. App.) 157 S. W. 209.

It would be an abuse of the power of a court of equity to issue preliminary injunctions to grant such an injunction in a suit for the recovery of real property, and thus transfer the possession of the property from the defendant to the plaintiff or restrain its lawful use by the defendant pending a full adjudication of the right to such possession, when the petition for such injunction fails to show that possession has been forcibly or fraudulently obtained by the defendant, and such injunction is not sought to preserve the status quo of the possession thus wrongfully invaded or to prevent irreparable injury to the property or to plaintiff by the use made of the property by the defendant. Simms v. Reisner (Civ. App.) 134 S. W. 278.

We are of opinion that the trial court properly refused to grant the injunction, and the order appealed from is affirmed.

Affirmed.