text:
    HANRICK et al. v. HANRICK et al.
    (No. 2342.)
    (Supreme Court of Texas.
    Feb. 10, 1915.)
    Judgment <3=>713 — Res Judicata — -Questions Settled.
    Where, in partition, the judgment awarding to a party a third of the land and to a coparty a third, with the right to charge on the common land an amount found in his favor, was affirmed except as to the coparty’s claim for contribution, and on that issue reversed and remanded for a proper accounting on his claim, a judgment on retrial, which fixed the amount of the coparty’s claim, and which decreed that the amount thereof should first be set aside to him, and the remainder should be divided among all the parties entitled to participate therein as provided^ conclusively established the claim as a prior charge on all the interests in the land, and the party could not relitigate the question in order to ob-' tain his third interest, for the matter could have been ascertained in the litigation on the amount of the claim, and the judgment was also conclusive on the coparty.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. &wkey;713.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by Nicholas Hanrick and others against E. <3. Hanrick and others. There was a judgment of the Court of Civil Appeals (139 S. W. 721) affirming in part and reversing in part, with instructions, a judgment for partition, and defendants bring error.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
    Z. I. Harlan, of Marlin, O. D. Stribling, of Waco, Spivey, Bartlett & Carter, of Marlin, and Williams & Stedman, of Austin, for plaintiffs in error. Taylor & Gallagher and Sleeper, Boynton & Kendall, all of Waco, for defendants in error.
   PHILLIPS, J.

The present case constitutes another chapter in what may be properly termed the ancient and continuing controversy in the courts of this state over the lands belonging to the estate of Edward Iian-riek, since the original action was instituted in the year 1878, and, as is revealed by this record, some of the issues, of which it was the fruitful source, apparently still remain unquieted. It would seem that the able and exhaustive opinion rendered in the case by Mr. Justice Williams in the year 1900, and reported in 93 Tex. 458-482, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330, should have led to a speedy termination of the litigation, since it defined with clearness and precision the rights of the parties and remanded the case for the settlement of but one subordinate issue. But it appears that the determination of that issue has in itself afforded a new controversy of rival force and duration. If, as runs the maxim, time is the common arbitrator of all things, and in its fullness cures that which reason fails to heal, the final result of this suit ought to be approximately just.

As will be seen by reference to the opinion in Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330, above referred to, the district court judgment, from which that appeal was prosecuted, established, among other things: (1) The right of E. J. Gurley to one-third of the land in controversy. (2) The right of E. ,G. Flanriek to one-third of the remainder. (3) The right of E. G. Hanrick to charge upon the common lands involved the amount found in his favor for court costs and taxes expended by him.

Reforming the judgment of the district court in two particulars not material to a statement of the case as it now stands, it was by this court affirmed upon that hearing, except as to E. G. Planriek’s claim for contribution. Upon that issue alone the judgment was reversed and the cause remanded for the sole purpose of a proper account being taken upon that claim. Before this issue came on for retrial in the district court, E. G. Hanrick had died, and his heirs made themselves parties. Notwithstanding an effort to relitigate a number of the issues settled by the opinion of this court on the previous appeal, the district court properly confined the trial to the one issue for the determination of which the cause had been remanded; and on February 18, 1903, adjudged the just amount of the Hanrick claim to be $18,785.89. With the partition of the entire land between all the parties according to their respective rights, as determined by this court, remaining to be effected, this decree of the district court, after directing that the commissioners of partition should first set aside to the heirs of E. G. Hanrick land of the value of $18,785.89 in satisfaction of the claim allowed them in that amount, then proceeded to direct in what manner the remaining lands should be partitioned between the parties. Among other things, it adjudged that E. J. Gurley recover against all other parties an undivided Vo interest in all the lands in controversy; and that the estate of E. G. Hanrick recover likewise an undivided 2/o interest in the land in the La Serda grant and an undivided 1V54 interest in the land in the Zarza grant. In connection with the Gurley and E. G. Hanrick interests, it further decreed as follows:

“All the land in controversy not embraced in the boundaries of Exhibit F attached to plaintiff’s petition (a copy of which is later set forth in the decree) shall be set aside to R. A. Han-rick and Nannie Hanrick as legal representatives of the estate of E. G. Hanrick, and valued at zero. The lands described in said Exhibit F shall be valued by the commissioners and divided’ into two parts, one part to embrace in value four-ninths of the whole, less one-sixth of the value of the land in said Exhibit F on said Zarza grant; and the other part to embrace five-ninths in value of the- whole, plus one-sixth of the value of the land in said Exhibit G on said Zarza grant, the latter to be set aside to the estate of E. G. Hanrick and E. J. Gurley. And the court directs that the lands so set apart to the estate of E. G- Hanrick and E. J. Gurley shall include all tracts of land sold by them, or either of them, before the institution of this suit, and of said portion so allotted to the estate of said E. G. Hanrick and E. J. Gurley three-ninths in value of the same shall be set apart to E. J. Gurley, and the remainder shall be set apart to said legal representatives of the estate of E. G. Hanrick, the lands allotted to the said Gurley to include one-third in value of the tracts of land sold by E. G. Hanrick and E. J. Gurley or either of them before the institution of this suit, and also the 4,113-acre tract heretofore set aside to said Gurley by interlocutory decree at the instance of the interveners R. L. Brown and the American Freehold Land Mortgage Company, Limited of London; and the lands so allotted to the estate of E. G. Hanrick shall include two-thirds in value of the tracts of land so sold by either Hanrick or Gurley before the institution of this suit, and shall also include the lands improved by them so far as possible.”

It also contained this provision:

“In making partition of the lands embraced in said Exhibit E, said commissioners shall estimate the same according to its value at the present time as raw and unimproved land, without regard to improvements made thereon, taking into consideration the situation, quantity, and quality and advantage of each share; and, if in making said partition it should become necessary to allot to any of the parties to this suit any portion of the lands embracing improvements made thereon by E. G. Hanrick, then in such event the value of such improvements on the part so taken shall be considered and estimated against such party.”

The partition was not then proceeded with, however, as an appeal from that judgment was prosecuted by Gurley and the heirs of E. G. Hanrick. The result was the affirmance of the judgment by the Court of Civil Appeals (Hanrick v. Hanrick, 81 S. W. 795), and the refusal of a writ of error by this court (82 S. W. xv).

Following the settlement of this last appeal, the commissioners made the partition under the district court decree of February 18, 1903. Their report proved acceptable to all parties, except Gurley and the E. G. Han-rick heirs. There then developed a contest over the report of partition between the last-named parties, in the trial of which certain special issues of fact were submitted to a jury. The present appeal was taken by Gur-ley from the judgment of the district court as rendered upon the report of partition and the findings of the jury in that contest. The honorable Court of Civil Appeals reversed the judgment and remanded the issues between Gurley and the E. G. Hanrick heirs, which alone were involved in the appeal, for further trial. A writ of error was then allowed by this court upon the petition of the E. G. Hanrick heirs, upon the ground that the judgment of the Court of Civil Appeals practically settled the case.

In accordance with the decree of the district court of February 18, 1903, the commissioners of partition set apart to the E. G. Hanrick heirs a tract of 1,759 acres out of the Zarza grant, a part of the common lands in controversy, in satisfaction of the claim of $18,7S5.S9 established by the decree in their favor against the common estate, and interest thereon from the date of the decree, $5,541.83, termed in the proceedings as “the compensation tract.” Their right to this tract was later confirmed by the final judgment, though upon a different ground, which was that, under the findings of the jury upon the contest between them and Gurley, E. G. Hanrick was shown to have established, as against Gurley, a limitation title to the tract. The jury trying that contest found that the value of the 1,759-acre tract, in its raw state, was $18 per acre, according to which valuation the value of the tract set apart to the E. G. Hanrick heirs exceeded the amount of their claim, including the interest thereon allowed by the commissioners of partition, by $7,334.28.

The general question involved in the present controversy is the right of the E. G. Han-rick heirs to the award of this 1,759-acre tract. It appears to be an admitted fact that, when the partition of the entire land in controversy in the original action came to be made between all the parties, it developed that Gurley and E. G. Hanrick, in his lifetime, and the latter’s heirs after his death, had, aside from the 1,759 acres, sold such quantities of the common lands as to entirely exhaust the interests decreed to them respectively in the judgment of February 18, 1903, which defined the basis of the partition. That is to say, it was disclosed that, excluding the 1,759 acres, Gurley and E. G. Hanrick and his heirs had, by their several and joint sales, already appropriated thé full quantum of land to. which they were entitled under the judgment, producing the situation, therefore, that in no event was any of the land, other than the 1,759 acres, subject to allotment to either the Gurley or the E. G. Hanrick interest in its own right. Many of these sales, it appears, had been made jointly by Gurley and E. G. Hanrick, or by Gurley and Hanrick’s heirs, or their representatives; the proceeds being divided between them, and the transactions extending over a protracted period. Their respective contentions as to which interest was chargeable with some of the sales produced, in the main, the contest between them which constitutes the present controversy. The commissioners of partition, ■ for instance, found that a sale of a tract of 1,625 acres, known as the Goodrich & Clarkson tract, should be charged against the E. G. Hanrick interest. The E. G. Hanrick heirs contended that it should be charged to Gurley alone. The jur'y found in favor of their contention. A further contest of the report was made by Gurley in respect to his being charged, as between him and the E. G. Hanrick interest, with other tracts. In a word, aside from his contention that the commissioners of partition undervalued the tract of 1,759 acres awarded by them to the E. G. Hanrick heirs in satisfaction of their $18,785.89 claim, which, under the finding of the jury on the question, is apparent, the position of Gurley is that a true accounting of the sales of the lands made by E. G. Hanrick or his heirs, or with which that interest is properly chargeable, reveals the previous disposition by that interest of an excess over its share in the lands, which excess should bé offset against the $18,785.89 claim; that this would result in there being freed for partition between the E. G. Hanrick heirs and himself the 1,759-aere tract, in which, upon an adjustment of the equities between them, he is entitled to share in order to obtain his full one-third interest in the lands decreed him by the judgment.

This embodies three propositions: (1) A right in Gurley, notwithstanding the judgment of February 18, 1903, to which he was a party, to relitigate the E. G. Hanrick claim for expenditures made for the benefit of the common estate, as established by the judgment, and, on account of the alleged excess sales chargeable against the Hanrick interest, either to defeat the claim entirely or obtain its diminution. (2) A further • right, notwithstanding the original judgment as reformed and affirmed by this court in 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330, which established the respective interests of Gurley and E. G. Hanrick in the common lands, and the judgment of Febru-uary 18, 1903, which reaffirmed such interests and decreed the partition accordingly, to have a general readjustment of those interests as between each other so as to obtain an allowance of Gurley’s equities against the E. G. Hanrick interest. And (3) an additional right in Gurley to appropriate the land set aside for the settlement of the E. G. Hanrick claim, to the satisfaction of his interest as determined by an adjustment of his and the E: G. Hanrick interests between each other.

To allow this to be done involves, substantially, the reopening of the case as between these, now, two rival interests. It would amount, in effect, to a holding, either that the previous judgments rendered in this prolonged controversy settled nothing as between Gurley and E. G. Hanrick and the latter’s heirs and were conclusive only of their rights as against the other parties, or, if conclusive of these issues as between them, that the court was without jurisdiction to adjudicate them. The court very clearly, in our opinion, had the power to determine the rights of Gurley and E. G. Hanrick’s heirs in the land, not only as against the other parties to the suit, but as against each other; and did so in the judgment of Febru-uary 18, 1903. If the Hanrick'claim against all the other parties, including Gurley, for the expenditures made for the benefit of the common estate, was subject to be defeated or to diminution for any cause, the time and place to have made the issue was in the trial to which the cause was remanded by this court for the express ascertainment of the just amount of that claim. It was established upon that trial, to which Gurley was a party, as amounting to $18,785.89; and by the judgment then rendered it was decreed that “the commissioners should first set aside to the estate of E. G. Hanrick land of the value of $18,785.89, and the remainder of said land shall be divided among the respective parties entitled to participate in same as heretofore provided and in proportion to the interest held by them respectively as set forth in this decree.” That judgment was appealed from, was affirmed, and became final. It established the claim as a prior charge upon all the interests in the lands, as this court had held should be its rank, since its basis was an expenditure for the common benefit of all; and that it should be first satisfied by the allotment of land for its satisfaction, the remainder to constitute the lands subject to partition among the several parties. If Gurley, in order to bbtain his full one-third interest in such remainder, was entitled to have any part of or interest in the land otherwise subject to allotment to the E. G. Hanrick estate for the satisfaction of this claim decreed to him, or if to secure that result it was his right to have such provision made as against the E. G. Hanrick interest, full opportunity to obtain that relief was afforded him in the previous trial. To have obtained it, granting that it was necessary, it is apparent that the court would have been required in that proceeding either to reduce as against Gurley the general interest recoverable by the E. G. Hanrick heirs, or else provide that Gurley should share to the , extent of his deficit in any land appropriated to the satisfaction of the E. G. Hanrick claim. His contention here is, substantially, that, having failed to obtain a decree to the latter effect in any of the former proceedings in the.case, he is still entitled to raise the question and obtain it now through a readjustment of his rights against the E. G. Hanrick interest; no relief being sought against any other interest. In other words, it is that because he did not discover or realize, when the judgment of February 18, 1903, was rendered, that the sales properly chargeable against the E. G. Hanrick interest, made either severally or jointly with himself, would reveal, upon a true accounting between himself and the E. G. Han-rick heirs, the disposition of an excess of lands over the proper share of that interest, rendering it necessary, in order for him to-obtain his full interest, that he be allowed to share in the lands to which the Hanrick estate was entitled for the'satisfaction of its claim, he is entitled now, in the partition, though the judgment of February 18, 1903, does not so provide, but to the contrary excludes any such right, to have an interest to the extent of his deficit established in any land allotted for the satisfaction of the Hanrick claim, and to a partition of such land accordingly. We are of the opinion that he is clearly concluded by the judgment. According to it, Gurley has no interest in the Hanrick claim, nor in any land set aside • for its satisfaction. With his and the rights of the Hanrick heirs already fixed by the judgment, their revision so as, in effect, to • decree him an additional interest, effectuated by means of the partition, could not be had in a mere hearing upon the commissioners’ report of partition-. These questions should have found their settlement in the judgment of February 18, 1903, at the latest, and it. therefore concludes them.

With the full opportunity which Gurley has had to obtain their adjustment during all the years this litigation has been pending, he is not entitled to now reopen the controversy for that purpose.

The E. G. Hanrick heirs were alike concluded by the judgment, and could therefore assert no limitation title to the 1,759-acre tract in the contest arising upon the commissioners’ report; but, as under the judgment Gurley had no rights in it, the judgment of the district court, sustaining the award of the tract to them as made by the commissioners, was proper.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.
      <®=Airor other eases see same topi-: and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (g^Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BBOWN, C. J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. v. ROSENBLOOM et al.
    (No. 2364.)
    (Supreme Court of Texas.
    Feb. 10, 1915.)
    1. Master and Servant <&wkey;>248 — Injury to Servant — Contributory Negligence — Discovered Peril.
    The negligence of an employs is no defense to an action for his death based on discovered peril, and where a railroad engineer discovered the peril of an employs, but failed to avoid killing him, the railroad company is liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. <&wkey;> 248.]
    2. Master and Servant &wkey;?248 — Death oe Servant — Contributory Negligence — Statutory Provisions.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6649, providing that contributory negligence shall not bar a recovery, but the damages shall be diminished thereby, applies only to cases in which an employer may rely on contributory negligence, and does not apply where the law of discovered peril imposes a liability on an employer for the death of an employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. <&wkey; 248.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by Mrs. M. A. Bosenbloom and others against the Pecos & Northern Texas Bail-way Company. There was a judgment of the Court of Civil Appeals (141 S. W. 175) affirming a judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough, of Amarillo, for plaintiff in error. J. A. Stanford, of Waco, and I-I. H. Cooper, of Houston, for defendants in error.
   BBOWN, C. J.

Mrs. M. A. Bosenbloom, for herself and as next friend of her minor children, Milton and Matilda Bosenbloom, and also for the use and benefit of Minnie and Isaac Bosenbloom, instituted this suit in the district court of Potter county against the Pecos & Northern Texas Railway Company, to recover damages occasioned by the negligent killing of her husband, M. A. Bos-enbloom, who was father of her children and the son of Minnie and Isaac Bosenbloom.

We make the following condensed statement of the facts as found by the Court of Civil Appeals, to wit:

M. A. Bosenbloom was in the employ of the railway company as a clerk, and a part of his duty was to take the numbers and other necessary descriptive matter of cars going out in the trains that left Amarillo. There was a train of cars standing on the main track in the railway yard at Amarillo, on which M. A. Rosenbloom was engaged in his work of checking up the cars and getting the numbers for the purpose of making a proper report of same. There was a side track, which ran parallel to the main track on which the train stood, at which he was working, that lay very near to the main track; so near that, if a man were to stand between the cars on the main track as they were and the other cars passing by, he would be in danger of being knocked down by the passing cars. On the side track there was a locomotive and tender, which was, for some purpose not necessary to mention, passing on the side track so that it would pass by the cars on which Rosenbloom was at work. Discovering the engine coming when it was near him, Rosenbloom undertook to pass over in front of the approaching engine, in order to escape the danger of being struck at a place between the cars. The engineer on the locomotive which was approaching on the side track saw Rosenbloom on the track, but did not check the speed of his engine, and it caught Rosenbloom on the track and killed him. It does not appear in the statement of facts that any notice was given to Rosenbloom so that he might have escaped before the engine came so near to him.

There is no question in the case as to the relation of the plaintiffs to Rosenbloom. There is no evidence of negligence on his part, except the fact that under the conditions he attempted to make his escape on the side track in front of the approaching engine. The engineer, as we have stated, saw Rosenbloom as he started across the track, and testified that he made some attempt to stop the engine but failed to do so.

No question is made as to the amount of the verdict in this case, nor is it attempted to show that Rosenbloom was guilty of negligence except as stated above. The plaintiff in error submits to this court two propositions, as follows:

First. That the plaintiffs have no right to recover in the character in which they sue, because Rosenbloom was engaged in interstate commerce at the time he was killed, and therefore they must be governed by the federal Liability Act.

Second. That the court erred in refusing to give tlie jury the charge requested by the defendant on the subject of contributory negligence by Rosenbloom.

The Court of Civil Appeals found, and so state in the opinion, that there was no evidence before the court upon which they could say that Rosenbloom was engaged in interstate commerce at the time, even if it be held that the work he was doing would constitute interstate commerce, provided there were any cars in that train which were carrying interstate freights. It was not shown that there was any freight of such character, or any car destined to points beyond the state in the train on which Rosenbloom was engaged at the time. Since the question is not raised by the facts found by the court, it is unnecessary for us to discuss the question as to whether he would be so regarded if it were true that the cars were loaded with interstate freight. That question is very important and not free from difficulty, and therefore we refrain from expressing an opinion where it is not called for by the facts of the case.

The district court submitted but one issue to the jury; that is, the issue of discovered peril, whether the operative of the engine discovered Rosenbloom on the track when he was in danger in time to have prevented injuring him, and failed to use all necessary efforts to avoid killing him. It therefore follows that, unless the operatives of the engine were guilty of that negligence and of killing the man after they knew of the danger, no recovery could be had, and it is beyond all question the law that the negligence of the party killed will not excuse the act of killing him. If it did, there could be no such recovery in law as provided for under the rule. It matters not that a man may be negligent, in fact, that he may be wholly disregardful of Ms own safety, yet it is true that the law will not permit an operative on a train to run upon a negligent party and destroy his life because he is negligent. The negligence of the party killed is no defense to an action based on discovered. peril. Therefore the district court did not err in refusing to submit the charge to the jury as to his negligence.

The defendant’s claim for a reduction of damages on account of the negligence of the deceased is based upon the following provision of our statutes (article 6649, 'Vernon’s Sayles’ Statutes):

“Contributory Negligence, Rule as to. — In all actions hereafter brought against any such common carrier or railroad under or by virtue of any of the provisions of the foregoing article and the three succeeding articles to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such em-ployé. * * * ”

This statute applies only to cases in which the defendant might make his defense on account of the negligence of the party injured. It cannot apply to a case in which the negligence of the party deceased constitutes, no defense to the action, and, as we have shown in this case that the negligence of the deceased would constitute no defense to the action, therefore there could be no reduction of damages recovered by reason of the killing in a case where the law of discovered peril determines the rights of the parties. The court therefore properly refused to give the charge to the jury.

We find no reversible error in the proceedings of the court, and the judgments of the district court and the Court of Civil Appeals are therefore affirmed.

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


author: FLY, C. J.

text:
    MALLORY S. S. CO. v. RACHAL.
    (No. 5401.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    Shippino &wkey;>132 — Cakrieks op Goods — Negligence — Evidence.
    Evidence in an action against a carrier by water for injuries to property held insufficient to show negligence.
    [Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. <§=¿>132.]
    Appeal from District Court, Nueces County; W. H. Hopkins, Judge.
    Action by E. R. Radial against the Mallory Steamship Company and another. Judgment for plaintiff for $607.20, and defendant Steamship Company appeals.
    Reversed and rendered.
    G. R. Scott, Boone & Pope, of Corpus Christi, and Claude Lawrence, of Uvalde, for appellant. T. Wesley Hook, of Kingsville, and Pope & Sutherland, of Corpus Christi, for appellee.
   FLY, C. J.

This is a suit for damages to a car load of onions, shipped from Falfur-rias, Tex., to New York City, instituted by appellee against the San Antonio & Aransas Pass Railway Company and appellant. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellee as against appellant for the sum of $697.20, with interest at the rate of 6 per cent, per annum from May 27,1908. As to the railway company, the verdict and judgment were in its favor. This appeal was perfected by the steamship company; the railway company not being made a party to the appeal, neither defendant having sought a judgment against the other.

Under the Carmack amendment of June 29, 1906 (34 Stat. 5S4, c. 3591 [U. S. Comp. St. 1913, §§ 8563-8604]), the initial carrier was liable to appellee for any loss, damage, or injury to his property, no matter whether the loss occurred on the line of the initial carrier or that of any other; but every one seems satisfied to allow the railway company immunity from damages, and the courts will not concern themselves about it.

The ear load of onions was delivered, in good condition, to the initial carrier at Fal-furrias, on April 27, 1908, for transportation to New York. The onions were delivered to appellant at Galveston in apparently good condition, on April 30, 1908. No boat of appellant sailed for New York until May 2d, when the onions left on their Journey. They arrived at New York at 7:30 o’clock a. m., on May 9th, and the consignee was notified. The consignee, who was the agent of appellee, testified that he did not know when he received the notice 'of the arrival of the onions. The onions were placed in part of the boat indicated by the agent of appellee, and they were given proper stowage and ventilation. The boat made the trip to New York in the ordinary running time. There was no delay on the trip, nor in unloading. The onions were not wet when they reached New York, and they were receipted for as being in good order. The onions were not called for by the consignee until May 12th, at 4:30 p. m., more than three days after they arrived in New York.

There is no allegation of negligence in the amended petition on the part of appellant in failing to give the consignee prompt notice of the arrival of the onions. The negligence is alleged to have consisted in delay in transportation of the onions, in allowing them to get wet, and in not properly ventilating them. Want of notice is alleged in the supplemental petition. There was no evidence of delay upon the part of appellant in transporting the onions from Galveston to New York. Appellant cannot be held liable for the delay in Galveston, for that resulted in the failure to deliver the onions in time to be loaded on the boat that sailed on April 29th, having reached Galveston on April 30th. There was a regular schedule for the sailing of the steamships, and no boat was scheduled to leave until May 2d. The steamship Lampasas left Galveston on its schedule time, on May 2d, with the onions on board, and reached New York in the usual time. The delay at Galveston was caused by the failure to deliver the onions there on April 29th. There is no evidence whatever to show that the onions were damaged when they arrived in New York, and it was not proved that there was any delay in notifying the consignee of the arrival of the onions.

Appellant was not responsible on account of the onions arriving in New York on Saturday . and the following day being a holiday. The onions were conveyed with the usual dispatch made by appellant’s boats, and appellee was notified, before he shipped the onions, that it would take six or seven days to make the trip from Galveston to New York. Tadlock, the consignee, must have received notice of the arrival of the onions before May 11th, because he thought Nix, to whom he diverted the shipment, received them on May 11th. In fact, his books showed that Nix had the onions “turned over” to him on May 11th. He swore that he could not have handled the goods on Saturday or Sunday, May 9th and 10th, and he had notice before Monday, May 11th, the first day on which he could have done anything with the onions. The onions were unloaded on the morning of May 9th, and were ready at that time for delivery.

If, as the evidence shows, the onions could not have been sold until Monday, had they been delivered on Saturday, then want of notice before Monday could not have injured appellee. It is not pretended that good care was not taken of the onions by appellant after they arrived in New York, and want of notice on Saturday or Sunday could not have resulted in any damage to appellee. The notice was given of the arrival of the onions, and there is not a word of testimony tending to show that it was not received on Saturday or Sunday. On Monday the agent of appellee had the notice, but the onions were not taken away from the wharf until Tuesday, and were not sold until Wednesday.

The onions were delayed for several days by the railway companies in Texas, and although apparently in good condition when delivered to appellant, that delay probably caused the damage to the onions. At least there is no evidence of negligence upon the part of appellant. The only, persons who knew when notice of the arrival of the onions was given them failed to testify as to when it was given, but the circumstances tend to show that they were notified on May 9th or 10th.

There being no evidence of negligence on the part of appellant, the judgment as to it is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended.
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author: RAINEY, C. J.

text:
    TRINITY & B. V. RY. CO. et al. v. EMPIRE EXPRESS CO.
    (No. 7119.)

    (Court of Civil Appeals of Texas. Dallas.
    Dec. 12, 1914.
    Rehearing Denied Feb. 6, 1915.)
    1. Carriers <&wkey;2 — Constitutional Law <&wkey; , 297 — Regulation—Geantinq Facilities to Express Companies — “Public Highway” —“Common Carrier.”
    Rev. St. 1911, art. 6616, requiring every railroad company operating a railroad within the state to furnish reasonable and equal facilities and accommodations upon reasonable and equal rates to all corporations and persons engaged in the express business for the transportation of themselves, their agents, servants, merchandise, and other property, and for the use of cars, depots, buildings, and grounds, and for exchanges at points of junction with other roads, does not, as applied to a railroad company organized under the laws of this state, infringe any property rights, right to contract, privilege, or immunity of such company, and its enforcement constitutes due process of law, within Const. U. S. Amend. 14, and Const. Tex. art. 1, § 19, providing that no citizen shall be deprived of life, liberty, property, privileges, or immunities, except by the due course of the law of the land, since the state has the power to prescribe the duties and to regulate the conduct of railroad corporations created under its laws in the transaction of its business with the public, especially in view of Const. Tex. art. 10, § 2, declaring railroads to be “public highways” and railroad companies “common carriers,” and providing that the Legislature shall pass laws to regulate railroad freight and passenger tariffs, to correct abuses, and to prevent unjust discrimination, and extortion in passenger and freight rates, and enforce them by adequate penalties, and for the accomplishment of these objects and purposes may provide and establish all requisite means and agencies with such powers asi may be deemed adequate and advisable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>2; Constitutional Law, Cent. Dig. §§ 832-834; Dee. Dig. <S&wkey;297.
    For other definitions, see Words and Phrases, First and Second Series, Public Highway; Common Carrier.]
    2. Constitutional Law <&wkey;48 — Validity oit Statute — Peesumptions in Favor oe Validity.
    A statute will not be declared invalid unless its invalidity is beyond reasonable doubt.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. &wkey;>48.]
    3. Constitutional Law <&wkey;70 — -Invasion oe Legislative Power — Compelling Granting oe Equal Facilities to Express Companies.
    Under Rev. St. 1911, art. 6616, requiring railroad companies to furnish equal facilities and accommodations to all express companies, and article 6617, providing that any railroad company failing to comply therewith shall be subject to a writ of mandamus to compel compliance, where a railroad company had a contract with an express company under which they were operating, a judgment, commanding the railroad company to furnish to another express company all the facilities for the doing of a transportation business which it was then furnishing to the express company with which it had a contract on terms and conditions which were substantially those of such contract, was not erroneous, since, while the power to fix and regulate rates for the government of railroads rests with the Legislature, except in so far as it has been delegated to the Railroad Commission, the judgment did not prescribe a schedule of rates generally to govern between express companies and railroads, but only determined what was a fair and reasonable basis to govern in the particular case in conformity to the rule provided by the Legislature.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. <&wkey;70.]
    4. Commerce <&wkey;61 — Interstate Commerce-State Regulation oe Carriers.
    The absolute power of the federal government, under Const. U. S. art. 1, § 8, to control and regulate interstate commerce, is not interfered with, nor is a burden placed upon interstate commerce, by requiring a railroad company organized under the laws of this state to grant to an express company, also organized under such laws, the same facilities and accommodations on the same terms and conditions as are afforded another express company pursuant to Rev. St. 1911, art. 6616, as the state has power to fix such rates as are applicable through its territory, and common carriers owing their allegiance to the state are subject to such regulations and rates for intrastate traffic as may be provided by state law.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec. Dig. &wkey;>61.]
    5.Mandamus <&wkey;174 — Questions eor Jury— Questions oe Law.
    Where, in an action for a writ of mandamus to compel a railroad company to grant to an express company the same facilities and accommodations and on the same terms and conditions as were afforded another express company, exceptions were sustained to all of the defensive matter contained in the answer, there were no facts to be submitted to the jury, and it was not error to refuse to submit the case to a jury.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 386, 387; Dec. Dig. &wkey;174.]
    Appeal frofn District Court, Hill County;. Horton B. Porter, Judge.
    Action by the Empire Express Company against the Trinity & Brazos Valley Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    N. H. Lassiter, of Ft. Worth, Morrow & Morrow, of Hillsboro, Baker, Botts, Parker & Garwood, H. M. Garwood, Jesse Andrews, and Walter H. Walne, all of Houston, for appellants. J.- E. Gilbert, of Dallas, and Collins & Cummings, of Hillsboro, for appel-lee.

       writ of error pending in Supreme Court.

   RAINEY, C. J.

The statement of the case taken from appellants’ brief is as follows:

“This is a suit brought by the Empire Express Company, as plaintiff, against the Trinity & Brazos Valley Railway Company and the American Express Company, as defendants, in the district court of Hill county. The suit was filed on August 16, 1913. In its original petition, on which the suit was tried, the plaintiff, in the trial court, appellee here, alleged that it was a corporation chartered under the laws of the state of Texas as an express company, with its general offices in Dallas county, Tex.; that the defendant railway company was a corporation chartered under the laws of the state of Texas operating a line of railroad through various counties in the state of Texas; that the defendant American Express Company was an unincorporated association composed of various individuals, and engaged'in the business of a common carrier of express. It is further alleged in the plaintiff’s petition that the American Express Company, under a contract with the railway company which fully sets forth the conditions under which facilities therefor should be furnished by the railway company, and the terms of payment therefor by the American Express Company, was transacting an express business on the lines of the railway company; that some months previous to the filing of plaintiff’s petition plaintiff had tendered to the railway company a contract substantially the same as that in force between it and the American Express Company, with the request for its execution by the railway company for the purpose of enabling plaintiff to transact an express business on its line; that subsequently its proposed contract was amended by an offer to pay, in advance, $4,000 per month if it were permitted to transact an express business on the railway company’s lines without competition; and that, if it were permitted to transact an express business on the railway company’s lines jointly with some other express company, it would pay $2,000 per month, in advance, the conditions of the proposed contract otherwise to remain the same as that in force between the railway and the American Express Company. The advance payment of $2,000, or $4,000, as the case might be, was not offered as a guaranty of that amount, but, in the letter making the offer, it was stipulated that, if 50 per cent, of the gross earnings amount to more than the cash payment, the difference would be paid by the Empire Express Company, but, if 50 per cent, of the gross earnings amounted to less than the cash payment, the difference would be deducted. It was further alleged that the railway •company declined to enter into the proposed contract, or to make any other contract with the plaintiff for the transaction of an express business on its lines. The plaintiff’s prayer was for the issuance of ‘a writ of mandamus by the court commanding and compelling the Tailway company to furnish the plaintiff reasonable and equal facilities upon reasonable •and equal rates that it has been furnishing to the American Express Company within the •state of Texas.’ The plaintiff’-s suit was predicated on articles 6616 and 6617 of the Revised 'Statutes of 1911, which read as follows:
“ ‘Art. 6616 (4540). Equal Facilities to be Furnished. — -Every railroad company operating ■a railroad within this state shall furnish reasonable and equal facilities and accommodations, and upon reasonable and equal rates, to all corporations and persons engaged in the express business, for the transportation of themselves, agents, servants, merchandise and other properly, and for the use of their cars, depots, buildings and grounds and for exchanges at points of junction with other roads. (Acts 1887, p. 113.)
“ ‘Art. 6617 (4541). Damages for Failure to Comply, etc. — Any railroad company, which shall fail to comply with the provisions hereof, shall be liable to the aggrieved party, in an action on the case, for damages; and such railway company in addition to liability to said action for damages, shall be subject to a writ of mandamus, to be issued by any court of competent jurisdiction, to compel compliance with the provisions of the preceding article; and the said writ of mandamus shall issue at the instance of any party or corporation aggrieved by a violation hereof, and any violation of said writ shall be punishable as a contempt. (Id. § 2.)’ ”

Copies of the contract between the American Express Company and the railway company, and the proposed contract between the Empire Express Company and the railway company, and the correspondence which had passed between the Empire Express Company and the railway company, were attached to the plaintiff’s petition as exhibits.

In its answer the railway company presented demurrers, which, in substance, pointed out the following as the reasons why the plaintiff was not entitled to the relief sought: (1) The articles of the statute relied on, if construed as authorizing the court to issue a writ of mandamus to compel the railway company to enter into the contract tendered it by the Empire Express Company, were void, because, so construed, they would deprive the railway company of its property without due process of law. (2) That there had been no legislative determination or fixing of reasonable rates for the proposed service, that rate making was beyond the power of a court, and therefore the court was without authority to fix the terms upon which the proposed service should be rendered. (3) That the articles of the statute relied on had been repealed by the passage of the constitutional provisions and statutes in pursuance thereof providing for, and creating, a railroad commission. (4) That to require the railway company to furnish the facilities demanded of it by the Empire Express Company, upon the terms proposed, would amount to a confiscation of the property of the railway company and a taking of its property without due process of law. (5) That the granting of the mandamus, as prayed for by the plaintiff’s petition, would amount to an interference with interstate commerce. (6) That the act of 1887, being articles 6616 and 6617, was void as being in conflict with the Constitutions of the Dnited States and the state of Texas. (7) That the statute does not purport to require the railway company to furnish the facilities upon the terms of a contract, but upon reasonable “rates.”

In addition to the foregoing demurrers, the answer of the defendant tendered, among others, the following issues of fact: First. Whether or not the plaintiff was solvent and financially able to discharge the obligations which it proposed to assume, to the Trinity & Brazos Valley Railway Company. Second. Whether the compensation offered to be paid by the plaintiff for the service demanded was reasonable, and whether or not the cost of such facilities and service was not so grossly in excess of the compensation offered by plaintiff as to constitute a taking of the railway company’s property without due process of law. Third. Whether the plaintiff was prepared to do an interstate business on the railway company’s lines, and whether the relief prayed for would constitute an interference with and burden upon the interstate commerce of the defendant. E’ourth. Whether the railway company, without irreparable injury and loss to the American Express Company, and without interfering with its public business, could admit the plaintiff to do an express business on its lines in cars already set aside for the service of the American Express Company.

The American Express Company adopted the answer of its codefendant, the railway company.

The plaintiff filed a supplemental petition, containing a general demurrer and numerous special exceptions directed at the sufficiency of practically all of the defensive matter urged in the answer of the railway company, together with further plea on the merits.

The defendant, in a supplemental answer, excepted to the allegations in the supplemental petition, and denied the same.

On the 12th day of September, 1913, the court, after hearing, overruled all of the demurrers of title defendants, save one, and sustained all of the demurrers contained in the plaintiff’s supplemental petition, and thereafter, on the petition alone, without hearing any evidence, granted the writ of mandamus prayed for by the plaintiff. In the order made by the court, the existing contract between the American Express Company and the railway company is closely followed, and the railway company is thereby directed and commanded, within 20 days from the date of the order, to furnish to the Empire Express Company all of the facilities for the doing of a transportation business which it was then furnishing to the American Express Company, and the terms and conditions on which the service is to be furnished are substantially those set out in the contract referred to.

The first error assigned is:

“The court erred in overruling and not sustaining special exception found in paragraph 111, 2 in the original answer of defendant Trinity & Brazos Valley Railway Company, which is as follows: ‘The plaintiff’s petition filed herein is fatally defective, because it appears upon the face of the same that the act of the Legislature of the state of Texas,- by plaintiff relied upon, to wit, the act approved April 2, 1887, being articles 6616 and 6617 of the Revised Statutes of the State of Texas, 1911, entitled, “An act to compel all railroads operating in the state to furnish reasonable and equal facilities and conditions to all corporations and persons engaged in the express business for the transportation of themselves, agents, merchandise and other property,” is unconstitutional and void, for that said act, in so far as the same may be construed as compelling the Trinity & Brazos Valley Railway Company to enter into the contractual relations embodied in the form of contract submitted by the Empire Express Company as attached to and made a part of its petition herein, is violative of section 19 of article 1 of the Constitution of the state of Texas, which provides that no citizen shall be deprived of life, liberty, property, privileges, or immunities, except by due course of the law of the land.’ ”

The second assignment of error raises the same question as No. 1, with the addition that it is in violation of article 14 of the amendments to the Constitution of the United States.

The third assignment is that the judgment of the court deprives the Trinity & Brazos Valley Railway Company of its liberty to contract and of its property without due process of law, in contravention of section 1 of article 14 of the amendments of the Constitution of the United States.

The constitutionality of articles 6616-6617, Revised Statutes of 1911 (Acts of 1887), are attacked by appellants’ exceptions. In ruling on the exceptions the allegations of the petition are taken as true. It is alleged that the defendant Trinity & Brazos Valley Railway Company and the plaintiff, Empire Express Company, were organized under the laws of Texas. Damages were waived, and judgment was asked only for the right to do business on said railroad on equal terms with other express companies.

The state, through its Legislature, has the power to prescribe the duties and regulate the conduct of railroad corporations created under its laws in the transaction of its business with the public. Having this right, we are unable to see wherein the Constitution of this state or the Constitution of the United States has been violated by the passage of article 6616, R. S., by which it prescribed the duty-of railroad corporations to furnish equal facilities and accommodations to express companies desiring to do business with them. This is confirmed by article 10, § 2, of the Constitution of Texas, which reads:

“Railroads heretofore constructed, or which may hereafter be constructed, in this state are hereby declared public highways, and railroad companies common carriers. The Legislature shall pass laws to regulate railroad freight and passenger tariffs, to correct abuses, and prevent unjust discrimination and extortion in the rates of _ freight and passenger tariffs on the different railroads in this state, and enforce the same by adequate penalties; and, to the further accomplishment of these objects and purposes,' may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate' and advisable.”

The said article 6616, R. S., having been passed by Legislature, which was -in the bounds of its powers, it is valid. It does not illegally infringe appellants’ right to contract, or property, nor any privilege or immunity guaranteed by the Constitution, but is in strict accord with the laws of the land; hence its enforcement is “due process of law.”

Article 6616, R. S., was held valid by our Supreme Court in the case of State v. Railway Co., 99 Tex. 516, 91 S. W. 214, 5 L. R. A. (N. S.) 783, 13 Ann. Cas. 1072, where the Anti-Trust Law of Texas was involved. Mr. Justice Williams, speaking for the court, said:

“In 1885 it was decided by the Supreme Court of the United States that ‘railroad companies are not required by usage, or by the common law, to transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled,’ and that ‘railroad companies are not obliged, either by the common law or by usage, to do more as express carriers than to provide the public at large with reasonable express accommodations; and they need not, in the absence of a statute, furnish to all independent express companies equal facilities for doing an express business upon their passenger trains.’ Express Company Cases, 117 U. S. 1, 6 Sup. Ct. 542, 628, 29 L. Ed. 791. This may be regarded as the rule of law existing in this state until 1887, when was enacted a statute now forming article 4540 of the Revised Statutes of 1895 (now article 6616, R. S. 1911), which was evidently passed in order to remedy what the Legislature, agreeing with the views expressed by the judges who dissented in the Express Company Cases, regarded as a defect in the existing law. It reads as follows: ‘Art. 4540. Every railroad company operating a railroad within this state shall furnish reasonable and equal facilities and accommodations, and upon reasonable and equal rates, to all corporations and persons engaged in the express business, for the transportation of themselves, agents, servants, merchandise and other property, and for the use of their cars, depots, buildings and grounds, and for exchanges at points of junction with other roads.’ Unquestionably this authorized and permitted express companies to pursue their businesses on all the railways controlled by state legislation, with ‘equal and reasonable facilities and accommodations, and upon equal and reasbnable rates.’ Thus the scope of this business, as ‘authorized or permitted’ by law, is defined, and any combination of the kind denounced by the anti-trust statute, the carrying out of which would limit or narrow such scope, is necessarily one to create or carry out a restriction in the free pursuit of the business. This proposition cannot be made plainer by any amount of elaboration. F. W. & D. C. Ry. Co. v. State [99 Tex. 34], 87 S. W. 336 [70 L. R. A. 950]. * * * But it is said that this interpretation of the statute would render it unconstitutional as impairing' the obligation of a valid contract. The answer is that the state may, in the exercise of its police power, prohibit the continuance in the future of those things already in existence which are so injurious to the rights * * * of its citizens generally as to justify such an exercise of the power whether the continuance of the things is provided for by contract or not.”

In Express Company Cases, 117 U. S. 1, 6 Sup. Ct. 542, 628, 29 L. Ed. 791, it is held that states have the right to enact such a law as the one under discussion; but, as the state from which the case was appealed had no such law, the relief was denied. The court by a majority opinion said:

“In some of the states, statutes have been passed which, either in express terms or by judicial interpretation, require railroad companies to furnish equal facilities to all express companies' (citing Maine and New Hampshire statutes); but these are of comparative recent origin, and thus far seem not to have been generally adopted. * * * In this way these three or four important and influential companies were able substantially to control, from 1854, until about the time of bringing these suits, all the railway express business in the United States, except upon the Pacific roads and in certain comparatively limited localities. * * * The exact question, then, is whether these express companies can now demand as a right what they have heretofore had only as by permission. That depends, as is conceded, on whether all railroad companies are now by law charged with the duty of carrying all express companies in the way that express carriers when taken are usually carried, just as they are with the duty of carrying all passengers and freights when offered in the way that passengers and freights are carried. * * * The Constitutions and the laws of the states in which the roads are situated place the companies that own and operate them on the footing of common carriers; but there is nothing which in positive terms requires a railroad company to carry all express companies in the way that under some circumstances they may be able without inconvenience to carry one company.”

The court further said the railroad company could not be compelled to do so, “unless a statute or some special circumstance made it necessary or desirable.” McDuffee v. Railroad Co., 52 N. H. 430, 13 Am. Rep. 72; Express Co. v. Railway Co., 57 Me. 188, 2 Am. Rep. 31; Sandford v. Railway Co., 24 Pa. 378, 64 Am. Dec. 667; Kidder v. Railway Co., 165 Mass. 398, 43 N. E. 115; Express Co. v. Railway Co., 81 Me. 92, 16 Atl. 370; Coal Co. v. Railway Co., 15 R. I. 303, 4 Atl. 394.

It is settled law that a statute will not be invalid unless its invalidity is beyond reasonable doubt. Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 699; Railway Co. v. Hannay-Frericks Co., 104 Tex. 603, 142 S. W. 1166.

We therefore hold, in view of the decisions, that article 6616 is not unconstitutional.

The fourth, fifth, and sixth assignments of error raise the question as to the power of the court to fix the rates or prescribe the terms of the contract upon which the railroad is to do business with the express company. We understand that the power to fix and regulate rates for the government of railroads rests with the Legislature, except in so far as it has been delegated to the railroad commission, but we do not understand that the eourt has in this case undertaken to prescribe a schedule of rates generally to govern between express companies and railroads, but has only determined what was a fair and reasonable basis to govern the parties in this case in conformity to the rule provided by the Legislature in article 6616, R, S. The judgment of the court only prescribes the terms for such services to be rendered by the railroad to the Empire Express Company, as the railroad had contracted to render the American Express Company. The statutes require railroads to furnish equal facilities and accommodations to express companies in order to prevent discrimination and have uniform service. The statute has not fixed the rate, nor prescribed the mode and manner of doing business between railroads and express companies, but has left it to contracts between themselves, with this condition, that railroads must deal with all alike, and render facilities and accommodations; that is, that no discrimination is permitted. This being the object and purpose of the Legislature, and the appellant railroad having a contract with the American Express Company, under which they are operating, it is but right and legal that the railroad should afford the Empire Express Company the same terms and facilities for conducting business on its line.

The seventh, ninth, tenth, eleventh, thirteenth, and fourteenth assignments of error raise practically the same question which is stated tersely in the thirteenth assignment and proposition thereunder, which is as follows:

“The court erred in rendering and entering its judgment herein, for that said judgment constitutes an interference with and burden upon the interstate traffic and commerce of the Trinity & Brazos Yalley Railway Company, contrary to that clause of section 8 of article 1 of the Constitution of the United States, which provides that ‘Congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes.’ The Congress of the United States having assumed full control of the interstate and foreign commerce of appellants, Trinity & Brazos Valley Railway Company and the American Express Company, the judgment of the eourt, which compels the Trinity & Brazos Valley Railway Company to employ an additional agent to transact its interstate and foreign express business, fixes the rates and charges which shall be paid said Empire Express Company for such interstate and foreign service and prescribes the conditions upon which such interstate and foreign service shall be performed and the mutual obligations arising under the statutes fixed by the court compel the Trinity & Brazos Valley Railway Company to furnish instrumentalities to the Empire Express Company for such interstate and foreign express and passenger business of the Trinity & Brazos Valley Railway Company as well as the interstate and foreign express business of the American Express Company, and imposes heavy financial burdens upon the interstate and foreign express business, both of the Trinity & Brazos Valley Railway Company and the American Express Company, and constitutes an interference with and a burden upon interstate and foreign commerce forbidden by and in direct conflict with the commerce clause of the Constitution of the United States as contained in section 8 of article 1 of said Constitution.”

It is too well settled by the Constitution of the United States, as well as by a long line of decisions, that the federal government has absolute power to control and regulate interstate commerce. We also think it well settled that the state has the power to fix such rates as are applicable through its territory. The appellant railroad and the Empire Express Company are creatures of this state. They are common carriers owing their allegiance to the state, and. as such are subject to such regulations and rates as may be provided by state law for intrastate traffic. In the case of Simpson v. Shepard, 230 U. S. 428, 33 Sup. Ct. 750, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, it is said:

“The decisions of this court since the passage of the act to regulate commerce have uniformly recognized that it was competent for the state to fix such rates, applicable throughout its territory. If it be said that, in the contests that have been waged over state laws during the past 25 years, the question of interference with interstate commerce by the establishment of statewide rates for intrastate traffic has seldom been raised, this fact itself attests the common conception of the scope of state authority. And the decisions recognizing and defining the state power wholly refute the contention that the making of such rates either constitutes a direct burden upon the interstate commerce or is repugnant to the federal statute.”

As we understand the law, the judgment in this respect in no wise interferes with the right of the federal government in relation to interstate commerce, but the action of the court is strictly within the purview of the law.

The twelfth assignment of error complains of the action of the court in not submitting the case to the jury. The court having sustained the exceptions to the answer, there were no facts to submit to the jury, and consequently there was no error in so ruling.

Appellants have presented numerous assignments complaining of the court for sustaining exceptions to defendant’s answer. The various matters pleaded to defeat plaintiffs’ cause of action constituted no legal defense to plaintiffs’ right to a recovery, and there was no error in the court in so ruling.

The allegations of plaintiffs’ petition show that appellee applied to appellant railroad to do an express business on appellant’s road on the same terms as that being done on said road by the American Express Company. This was refused by the railroad company without any excuse being given. Appellee then brought suit under article 6616, R. S., a valid statute, to compel the railroad company to comply therewith. The petitions also set out the contract made between the appellant railroad and the American Express Company, the only express company doing business on said railroad company’s line, and asks that plaintiff: be granted the same facilities and accommodations accorded to the American Express Company by said contract.

The judgment of the court rendered substantially requires the railroad company to grant to appellee the same facilities and accommodations for transacting business with it as it gives to the American Express Coml pany as per said contract, and this relief, we think, is in accord with .the statute.

We find no error in the record, and the judgment is affirmed.
      <B=aFor other caaes see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      «gr^oFor other oases see same topic and KEY-NÜMBER in ail Key-Numbered Digests and Indexes


author: TADBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. EMPIRE EXPRESS CO.

    (No. 7166.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 19, 1914.
    Rehearing Denied Feb. 6, 1915.)
    1. CARRIERS <&wkey;15 — Regulation—Granting of Facilities to Express Companies. '
    Rev. St. 1911, art. 6616, requiring every railroad company operating a railroad within the state to furnish reasonable and equal facilities and accommodations and upon reasonable and equal rates to all corporations and persons engaged in the express business, is valid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 25-27; Dec. Dig. <&wkey;>15.]
    2. Carriers <&wkey; 19 — Actions for Reeusal to Grant Facilities to Express Companies— Conditions Precedent.
    Where an express company had demanded that a railroad company furnish it reasonable facilities for the doing of an express business over its lines equal to those furnished another express company, and this had been denied, and the railroad company had not at any time been willing to accept such express company’s business upon any rates, a formal tender of its business was not necessary to enable it to recover damages resulting from the railroad company’s failure to comply with Rev. St. 1911, art. 6616.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33 — 49; Dec. Dig. <&wkey;>19.]
    3. Appeal and Error &wkey;>1073 — Harmless Error — Judgment^-Amount of Damages— Distinguishing Between Actual and Exemplary Damages.
    Where, in an action by an express company for damages from a railroad company’s refusal to grant it reasonable facilities for doing business equal to those afforded another express company, the jury by their special findings found separately, and plaintiff’s motion for judgment thereon stated separately, the actual and exemplary damages and the judgment recited such motion and adjudged that it be sustained and that plaintiff recover from defendant an amount equal to the sum of the two items of damages, the failure of the judgment to state separately the amount of the actual and exemplary damages awarded was not reversible error, if error at all.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. &wkey;>1073.]
    4. Carriers &wkey;>19 — Denial of Facilities to Express Companies — Damages.
    Where a newly organized express company had not been engaged in the express business before seeking to do business over defendant’s lines of railroad, and defendant accepted from it trucks to be used in its business for free transportation and distribution, and such acts were reasonably calculated to cause an ordinarily prudent person under the same circumstances to believe that defendant intended to permit the express company to engage in the express business over its lines, expenses incurred in reliance upon such action and losses sustained in getting ready to do an express business over defendant’s lines before the express company became aware that defendant did not intend to permit it to do business consisting of expenses in caring for its horses and other property, the loss sustained by being deprived of the use of its property, the interest on money 'deposited with the clerk of the court in obedience to an order of the court as a means of securing the right to do business over defendant’s lines and the amount paid to clerks, messengers, and other agents while not permitted to do business, were proper elements of damages and recoverable from the railroad company.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 83-49; Dec. Dig. <@=>19J
    5. Carriers <&wkey;19 — Denial of Facilities to Express Companies — Damages.
    Where a railroad company acted maliciously in refusing to permit an express company to transact business over its line of railroad after it had done acts indicating that it intended to permit the express company to engage in business over its lines, exemplary damages were properly awarded by the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49; Dec. Dig. <&wkey;>19.]
    6. Appeal and Error <&wkey;1052 — Harmless Error — Cure by Judgment.
    The erroneous admission of evidence as to an item of damages not properly recoverable was harmless, where the judgment included no sum for such item.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <§=51052.]
    7. Carriers <&wkey;19 — Denial of Facilities to Express Companies — Evidence.
    In an action by an express company for damages from a railroad company’s refusal to grant it reasonable facilities for doing business equal to those afforded another express company, contracts with the railroad company, which the express company had offered to execute, covering the conduct of such business, were properly admitted to show what facilities and accommodations plaintiff had demanded and to show a willingness on plaintiff’s part to obligate itself to operate on the same terms and conditions as the other express company.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 33-49; Dec. Dig. <&wkey;>19.]
    8. Carriers <&wkey;15 — Express Companies — Right to do Business on Railway Company’s Dines.
    Under Rev. St. 1911, art. 6616, an express company was not entitled to facilities and accommodations for doing business over a railroad company’s lines equal to those afforded another express company, unless it was willing to obligate itself to perform the same services for the railroad company that such other express company performed under its contract with the railroad company.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 25-27; Dec. Dig. <¿=15.]
    9. Carriers <@=>19 — Denial of Facilities to Express Companies — Evidence.
    In an express company’s action for damages from the refusal of a railroad company to grant it reasonable facilities and accommodations for doing business equal to those afforded another company and to compel the furnishing of such facilities and accommodations, contracts between various railroad companies and express companies doing business over their lines, as filed with the Railroad Commission, were admissible to support the allegation of the petition that the usual and customary rate charged express companies by railroad companies was a percentage of the gross receipts derived from the express business.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §| 33-49; Dec. Dig. <¿=19.]
    10. Evidence <&wkey;341 — Documentary Evidence-Certified Copies of Records.
    Under Rev. St. 1911, art. 3694, providing that copies of the records of public officers certified to under the hand and seal of the lawful possessor of such records shall be admitted as evidence in all cases where the records themselves would be admissible, where contracts between railroad and express companies were competent evidence, certified copies thereof, as filed with the Railroad Commission pursuant to a rule requiring them to be filed, were admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292; Dec. Dig. <&wkey;341.]
    11. Appeal and Error <@=>1050 — Harmless Error^-Admission of Evidence.
    In an action for damages from a railroad company’s refusal to furnish an express company facilities and accommodations for doing business and to compel the furnishing of such facilities, the admission of evidence, that after the institution of the suit and during the trial thereof plaintiff tendered express matter to the railroad company which it declined to accept, if inadmissible, was harmless, where the same facts were testified to by other witnesses without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;1050.] ■
    12. Carriers <@=>14 — Facilities to Express Companies — Joint Use of Cars.
    An express company doing business over the lines of a railroad company had no exclusive right to the use of the cars set apart to it, where the exclusive use thereof was not essential to the conduct of its business; and hence where such cars were ample to accommodate both it and another express company seeking to do business over such liñes, and the use thereof by both companies was practicable and would not create confusion, the railroad company was properly commanded to permit the use of such cars by such other express company.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 29; Dec. Dig. <@=>14. ]
    13. Carriers <&wkey;18 — Facilities to Express Companies — Actions—Judgment.
    In an action by an express company against a railroad company, a judgment, requiring the railroad company, to permit the use by such express company jointly with another express company of cars previously in use by such other express company, was not broader than that prayed for in the petition, which prayed for a writ of mandamus commanding the railroad company to furnish to plaintiff reasonable and equal facilities and accommodations upon reasonable and equal rates that it was furnishing to the other express company and for such other and further relief, general and special, as plaintiff might be entitled to under the law and the facts.
    [Ed. Note. — -For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. <®=al8.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by the Empire Express Company against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Chas. C. Huff and A. H. McKnight, both of Dallas, Dinsmore, McMahan & Dinsmore, of Oreenville, and Baker, Botts, Parker & Garwood, of Houston, for appellants. J. E. Gilbert, of Dallas, and Clark & Leddy, of Greenville, for appellee.

       writ of error pending in Supreme Court.

   TADBOT, J.

The appellee brought this suit against the appellants, the Missouri, Kansas & Texas Railway Company of Texas, and the American Express Company, praying for a writ of mandamus requiring the said railway company to allow appellee to do an express business over its lines of railway in Texas, and to enjoin the American Express Company from interfering with appel-lee in conducting such business. The ap-pellee also' sought to recover damages, both actual and exemplary, from the appellant railway company. The suit is predicated upon articles 6616 and 6617 of the Revised Statutes of 1911, which read as follows:

“Art. 6616. Every railroad company operating a railroad within this state shall furnish reasonable and equal facilities and accommodations, and upon reasonable and equal rates, to all corporations and persons engaged in the express business, for the transportation of themselves, agents, servants, merchandise and other property, and for the use of their cars, depots, buildings and grounds and for exchanges at points of junction with other roads.
“Art. 6617. Any railroad company, which shall fail to comply with the provisions hereof, shall be liable to the aggrieved party, in an action on the case, for damages; and such railway company, in addition to liability to said action for damages, shall be subject to a writ of mandamus, to be issued by any court of competent jurisdiction, to compel, compliance with the provisions of the preceding article; and the said writ of mandamus shall issue at the instance of any party or corporation aggrieved by a violation hereof, and any violation of said writ shall be punishable as a contempt.”

'Among other things, the petition alleges: That appellee is a corporation created and existing under the laws of Texas for the purpose of doing an express business in the state of Texas. That it is customary for railway companies and express companies to do business under contracts which provide, among other things, that the express companies shall pay to the railway companies a certain per cent, of the gross earnings from the business for the facilities and accommodations furnished and services rendered by the railway company. That a contract of the kind exists between appellant and American Express Company. That appellant received for free distribution certain trucks to' be used by appellee in the conduct of its business and thereby induced appellee to believe that it (appellant) would permit appel-lee to go on its lines and conduct an express business thereover. That, relying on such action, appellee incurred expenses in the purchase of horses and equipment, the hiring of agents, renting of offices, etc. That, by reason of the refusal of appellant to permit it to go on appellant’s lines, it was deprived of profits which it could have earned in the sum of $10,000 per month for five months. That it was also deprived of the value of the use of certain horses and wagons; and, further, that a conspiracy to prevent its doing business existed between appellant and American Express Company, and that the conduct of appellant in keeping it off the line was willful and malicious. That on February 12, 1913, it tendered to the railway company a written contract which it offered to execute, said contract being attached to its petition, marked “Exhibit A,” and that said contract was declined by said railway company without any objection being made thereto or any offer to negotiate with appellee concerning the making of a contract between it and the railway company. That thereafter on or about the 26th day of May, 1913, it tendered two contracts to said railway company, the same being attached to its petition, marked Exhibits “B” and “C,” respectively; the last-named contract providing, as compensation to the railway company, 55 per cent, of the gross- receipts of the express business done by appel-lee over said railway company’s lines. That in said last-named contract it was stipulated that the railway company should furnish the appellee such reasonable and equal facilities and accommodations upon reasonable and equal rates that the defendant railway company was furnishing to the American Express Company. That by a supplemental petition filed on June 4, 1913, in addition to the three contracts above referred to which it had tendered and offered to execute, it then offered to enter into any reasonable contract with appellant and to execute either of the three contracts referred to or a new contract, each of which should run for a period of 10 years from date, or for any other reasonable term, or that it would enter upon and conduct its express business on the lines of said railway company -without any express contract in writing or other stipulation than the terms of the statute contained in article 6616 of the Revised Statutes of 1911. Appellee further alleged that:

“Said defendant railway company has continuously refused, and still refuses, to enter into either of said contracts, or any contract, upon any terms with this plaintiff whereby this plaintiff might conduct an express business over the lines of said defendant railway company, and has refused to grant it the same facilities and accommodations upon the same rates that it charges the American Express Company for like services, or upon any rates.”

The appellants answered by general and special exceptions and by special pleas questioning the validity of article 6616 of the statute quoted, and upon which appellee’s suit is based: (1) Upon the ground that said article of the statute conflicts with the commerce clause of, the federal Constitution; and (2) upon the ground that it violates article 1, § 19, of the Constitution of Texas, and section 1 of the fourteenth amendment to the Constitution of the United Státes.

Appellants also challenge appellee’s construction of said statute, contending by exceptions that the petition states no cause thereunder, that the power to make the rates upon which the express business shall be handled is vested either in the railway companies or in the Railroad Commission, and that the relief prayed for is largely legislative in character and cannot be granted by the court. By their answers appellants also denied many of the allegations made by ap-pellee and admitted others. Among those admitted by the railway company are the following:

“Defendant admits that * * * it has failed and refused to furnish plaintiff any facilities for handling the latter’s express business upon any terms submitted by plaintiff; * * * that it has not desired to do business with plaintiff as an express company, and does not now desire to do business with plaintiff as such upon any terms submitted by plaintiff.”

Upon the call of the case for trial, appellants presented their general and special demurrers. These demurrers were, by the court, overruled and appellants excepted. Evidence was then offered and heard in support of the allegations of appellee’s petition. The case was submitted to the jury on special issues, and upon their findings judgment was rendered in favor of appellee against the railway company for actual and exemplary damages in the sum of $45,892.46; the sum of $37,892.46 of said amount being for actual damages, and $8,000 for exemplary damages, as found by the jury. Judgment was also rendered in favor of the appellee awarding it the writ of mandamus against the railway company as prayed for, and the w.rit of injunction against the American Express Company enjoining its agents and employes from interfering in any material manner with appellant in allowing and furnishing appellee the facilities and accommodations mentioned in the judgment.

.The facts alleged and the principal questions arising on the appeal are practically, if not identically, the same as those presented and decided by this court in an opinion delivered by Chief Justice Rainey at our last sitting, in the case of Trinity & Brazos Valley Railway Co. v. Empire Express Co., 173 S. W. 217. In that case, after a careful consideration of the assignments, the validity of the statute in question there and here was upheld and appellee’s construction thereof sustained. A further discussion of the questions, or an attempt to add anything to what has been said in the opinion prepared by our Chief Justice, would be superfluous. For the reasons given in that opinion, we again hold that said statute is valid and that ap-pellee’s construction .of the same is, in the main, correct.

This brings us, to appellants’ forty-eighth assignment of error,, which complains of the court’s refusal to charge the jury to return a verdict in favor of the defendant railway company on the issue of damages. The proposition urged is that:

“Where an express company seeks the right to do an express business over the lines of a railway company under article 6616, Revised Statutes, but fails to bring itself within the terms of said statute—either because it seeks to do business not upon reasonable and equal rates but under a contract, or because it does not tender any business or any rates upon which to handle the same—no damages can be recovered by it from the railway company because of the refusal of the railway company to permit it to do such business.”

This assignment will not be sustained. The appellee simply sought to do business upon reasonable 'and equal rates, such as were accorded to the American Express Company, the only express company doing business over the railway company’s lines in Texas, and the railway company practically admitted in its answer that appellee had demanded that it furnish appellee reasonable and equal facilities to those being furnished said American Express Company for the conduct of its business, and that this had been denied. Besides, the jury found, in answer to an appropriate question propounded, that the railway company has not been willing at any time to accept appellee’s express business upon any rates. Under these circumstances, it was not necessary, it seems to us, for appellee to- prove a formal tender of its business to the railway company in order to recover such damages as resulted to it from the failure of the railway company to comply with article 6616 of the statute.

The next assignment is, in substance, that the trial court erred in that part of its judgment wherein it awards appellee damages in the sum of $45,892.46: (1) Because the judgment does not show what part of the amount is actual damages and what part, if any, is exemplary damages; and (2) bie-cause there is no evidence in the record sufficient to sustain a judgment for damages, actual or exemplary, in any sense whatsoever, since the evidence fails to show that appellee ever brought itself within the terms of the I statute upon which it relies, and fails to show any malice whatever in the railway company’s refusal to allow appellee to do business over its lines of road. This assignment will be overruled. The jury found that appel-lee was entitled to recover both actual and exemplary damages, and the amount of each kind, which they beiieved he was entitled to, is clearly stated in their answers to the questions submitted. Again, appellee’s amended motion, based upon the findings of the jury, states the amount of actual and exemplary damages awarded, separately, and that part of the judgment of the court sustaining said motion is as follows:

“And the court, having heard and considered same, is of the opinion that said amended motion filed by plaintiff is well taken and should be granted. * * * It is therefore ordered, adjudged, and decreed by the court that the said amended motion filed by the plaintiff be and the same is hereby sustained, and in accordance therewith judgment is herein entered upon the special verdict of the jury. * * * It is adjudged and decreed by the court that plaintiff, the Empire Express Company, do have and recover of and from the Missouri, Kansas & Texas Railway Company of Texas, a corporation, the sum of $45,892.46,” etc.

Doubtless, it would have been better had the judgment itself stated separately the amount of actual and exemplary damages awarded, but it is apparent from the record that the total amount of appellee’s recovery is made up of the items of $37,892.46 actual damages, and $8,000 exemplary damages, which the jury said appellee sustained, and the failure of the judgment to show the amount of each item is not reversible error, if error at all. The contention that the expenses incurred by appellee in eariug for its horses and other property, the loss sustained by reason of being deprived of the use of its property, the interest on the money deposited by appellee with the clerk of the court in obedience to an order of the trial court as a means of securing the right to do business over the railway company’s lines of railroad, and the amount paid by appellee to its clerks, messengers, and other agents, while not permitted to do business, as shown by the evidence, are not elements of damages that can be recovered in a suit of this character, is not, in our opinion, sound. We think the several items of damages considered by the jury and going to make up the aggregate amount of damages which they concluded ap-pellee had sustained were proper elements of its damages. Appellee had recently been organized and had not, before seeking to do business over appellant’s lines of railway, been engaged in the express business. There was evidence showing, and the jury so found, that the appellant railway company accepted from- appellee for transportation and distribution, free of charge, trucks to be used by appellee in its business to be transacted over said appellant’s railway lines, and that said acts were reasonably calculated to cause an ordinarily prudent person, situated as appel-lee was at the time, to believe that said appellant intended to permit appellee to engage in the express business over its lines, and that relying upon said action of the railway company, and before appellee became aware that said company did not intend to permit it to do business over its lines, said expenses were incurred and losses sustained in getting ready to do an express business over the railway company’s lines, as it had been led to believe it would be allowed to do. Under these circumstances, the expenses and losses allowed were proper elements of appellee’s damages. Touching the issue of exemplary damages, 'it is sufficient to say that the jury found, in answer to a question submitting the issue, that the railway company acted maliciously in refusing to permit the ap-pellee to transact an express business over its lines of railway and that there is evidence to sustain such finding. What we have here said disposes adversely to appellants of all of their assignments complaining of the court’s action in admitting evidence concerning the several items of expenses incurred by appellee, and the losses sustained by it, to which we have referred, on account of the railway company’s wrongful refusal to transport appellee’s express business.

If it be conceded that the depreciation in the value of appellee’s horses is not a proper element of appellee’s damages, the testimony admitted to show such depreciation becomes harmless and furnishes no ground for a reversal of the case, for the reason that the judgment rendered in favor of appellee does not, as we understand, include any sum for such depreciation.

Nor do we think the court erred in admitting in evidence the proposed contracts dated, respectively, February 15, May 21, and May 26, 1913, attached to appellee’s amended petition as Exhibits A, R, and O. These contracts were admissible, we think, for the reasons urged by appellee; that is, for the purpose of showing what facilities and accommodations appellee had demanded that the railway company furnish it in order to conduct its express business and to show a willingness to obligate itself to operate over the railway company’s lines upon the same terms and conditions as the American Express Company. It certainly devolved upon appellee to show a willingness to obligate itself to perform the same services for the railway company that the American Express Company performed under its contract, since such services were valuable to the railway company and necessarily entered into the reasonableness of the rate charged the American Express Company.

We are further of the opinion that there was no error in admitting in evidence the certified copies from the office of the Railroad Commission of Texas of the contracts between the American Express' Company and other express companies doing business in Texas, and the several railway companies doing business in said state. We agree with the views expressed by appellee’s counsel concerning the admission of this evidence. As said by them, appellee having pleaded that the usual and customary rate charged express companies by railway companies being a percentage of the gross receipts derived from the express business, they were properly permitted to introduce in evidence the various contracts in question for the purpose of establishing such usage and custom. Each of said contracts was certified to by the secretary of the Railroad Commission as being true copies of the original contracts on file with the commission, and each showed on its face that the services rendered by the railway companies thereunder were similar to the services demanded by the ap-pellee. It further appears that the Railroad Commission has established a rule requiring railway companies to file contracts made by them with express companies doing business over their lines of railway, and it would seem that such contracts are records of the commission’s office within the meaning of article 3691 of the statute, and, the materiality of the evidence being apparent, certified copies of said contracts were admissible. It may be added that, to the bill of exceptions reserved to the admission of these contracts, the court appended the statement that, while the entire contracts were formally offered in evidence, no part of them was read to the jury or referred to during the trial, except the paragraph of each showing the rate charged for the accommodations and facilities granted thereunder.

An examination of the judgment rendered discloses that the appellee by it is adjudged to pay the railway company, as compensation for the facilities it is required to furnish, 55 per cent, of the gross receipts derived from its express business, and such percentage is as large, according to the contracts in question, as that paid by any express company for like services. This being true, it is difficult to see how the admission of that portion of said contracts in evidence which show the percentage of the gross receipts paid to railway companies by other express companies could have injured appellants.

We are also inclined to think there was no error in admitting the testimony of the witness G. W. Davis, of which complaint is made in appellants’ fifty-seventh assignment of error, to the effect that, about four months after the institution of this suit and during the progress of the trial thereof, appellee tendered express matter to the railway company for transportation, and that said company declined to accept the same. This' testimony, it occurs to us, was admissible as tending to show that the railway company would not at any time have accepted the appellee’s business at the same rate charged the American Express Company, and probably not at any other rate. But, however this may be, it seems that the testimony was harmless, because practically the same facts were testified to by other witnesses without objection.

Appellants’ assignments of error from the fifty-ninth to the one hundred and seventh, inclusive, complain of the admission of certain testimony, certain portions of the court’s charge to the jury, the overruling of certain objections to the qualifications of certain special charges requested by appellants, and the submission of certain issues to the jury. The questions raised and presented by these assignments have been determined against appellants by what we said in the opinion of Chief Justice Rainey, delivered a few days ago in the case of Trinity & Brazos Valley Railway Co. v. Empire Express Co., referred to in the former part of this opinion, and in what we have said in discussing other assignments of error in this opinion, and they need not be discussed again in the form now presented. We have considered these several questions with that care their importance demands and believe they have been correctly decided.

The remaining assignments assert, respectively, that the court erred in rendering the judgment entered herein, because the same is indefinite and uncertain, in that it does not indicate whether the appellant railway company is compelled to permit the appellee to enter and use the cars which have been set aside for the use of the appellant American Express Company, or is required to furnish other cars of similar kind for appellee; that, if said judgment purports to require the appellant railway company to permit the appellee to occupy the cars now used by the American Express Oompany, it is not in accordance with the pleadings; and that, if the judgment rendered reflects a proper construction of the statute, the effect of it would be to take from the American Express Oompany cars which had already been set aside lawfully to its use. We do not believe the matters urged under these assignments afford any serious objection to the court’s judgment. We regard the objections more imaginary than real. The jury, upon evidence warranting it, found that the equipment now in use over the railway company’s. lines would be ámple to accommodate both express companies, and their operation in such cars was practicable and would not create confusion. We do not think the American Express Oompany has the exclusive right to the use of the cars set apart to it, regardless of whether or not said cars are essential to the conduct of its business. In reference to the charge that the pleadings are insufficient to authorize the judgment rendered, it will suffice to say that we do not concur in this contention. As contended by appellee, the relief granted by the judgment is no broader than that prayed for by appellee. Among other things, appellee prayed for:

“A writ of mandamus commanding and compelling the defendant railway company to furnish to this plaintiff reasonable and equal facilities and accommodations upon reasonable and equal rates that it has been and is now furnishing to the American Express Company. * * * And for such other and further relief, general and special, as plaintiff may be entitled to under the law and the facts.”

We have been unable to discover, in the whole record, what we believe to be reversible error. On the contrary, after a careful consideration of the entire record and the many questions presented, we conclude that the pleadings, evidence, and law authorized the judgment rendered, and it is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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