author: RASBURY, J.

text:
    COPELAND v. PORTER et ux.
    (No. 7191.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Trover and Conversion (§ 66) — Acts Constituting “Conversion” — Question for Jury.
    Whether a landlord who removed from the leased building chattels of the tenant, who was absent and could not be found was guilty of converting the same held, under the evidence, for the jury; “conversion” being the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another to the exclusion of the exercise of the same rights by the owner, either permanently or for an indefinite time.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 288-294; Dec. Dig. § 66.

    For other definitions, see Words and Phrases, First and Second Series, Conversion.]
    2. Trover and Conversion (§ 1) — Acts Constituting Conversion — Question for Jury.
    Where a tenant absented herself from the leased building containing furniture conditionally sold to her, and could not be found, the act of the landlord in opening the door of the building at the request of the seller to enable the latter to remove the furniture was not conversion by the landlord of the property.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.]
    3. Appeal and Error (§ 1002) —Verdict — Conclusiveness.
    A verdict on conflicting, evidence, but not preponderating either way, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    4. Trover and Conversion (§ 3) — Acts Constituting Conversion — Evidence—Admissibility.
    A landlord, when sued by his tenant for the conversion of chattels of the tenant, may show that he removed articles from the leased building for safe-keeping and had held the same subject to the disposition of the tenant and had tendered the same to her, though a tender after conversion does not avoid liability, but the jury may consider the landlord’s claim in determining whether there was a taking by him, accompanied by dominion and control or assumption of dominion and control.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 21-24; Dec. Dig. § 3.]
    5. Appeal and Error (§ 547) — Questions Reviewable — Bill of Exceptions.
    Error assigned as to a question alleged to have been propounded by the jury to the court and by the court answered, not supported by bill of exceptions taken at the time in the manner provided by law, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    Error to Grayson County Court; J. Q. Adamson, Judge.
    Action by Pearl Copeland against D. W. Porter and wife. There was a judgment for defendants, and plaintiff brings error.
    Affirmed.
    J. P. Leslie, of Sherman, for plaintiff in error. Jones & Hassell, of Sherman, for defendants in error.

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

   RASBURY, J.

Plaintiff in error sued defendants in error for actual and exemplary damages arising from the alleged conversion by defendants in error of certain personal property or household goods of the plaintiff in error. There was a trial by jury, with verdict and judgment for defendants in error.

In deference to the verdict of the jury the. record will support the following conclusions of fact: About September 12, 1912, defendants in error rented plaintiff in error a residence in Sherman, Tex. Rent was paid to November 12, 1912. A few days subsequent to renting the residence plaintiff in error left Sherman with the avowed intention of going to Ladonia to secure employment picking cotton. When plaintiff in error left she locked the house containing her furniture and household goods, as well as some belonging to a local furniture dealer, which had been conditionally sold or leased to plaintiff in error under written agreement, by the terms of which it was agreed that the owners of the furniture might, in default of the conditions of the sale or lease, enter any premises containing same, during plaintiff in error’s absence, whether the house containing same was closed or opened, and take possession of the furniture and remove same. In December, after plaintiff in error left, the owners of the furniture sought permission of defendants in error to enter the premises in order to remove the furniture. At various times in January they became urgent for such admission, and defendants in error promised that February 1st following they would unlock the door and permit removal of the furniture. Defendants in error thereupon called upon plaintiff in error’s mother in an attempt to locate plaintiff in error, whom they were unable to locate. ’ At the request of her mother the matter was deferred until February 6th. Plaintiff in error’s mother being unable to locate her daughter, defendants in 'error opened the house February 6th, and permitted the removal of the furniture delivered to plaintiff in error under the written contract. What transpired after the removal of the leased furniture is conflicting. Defendants in error offered testimony tending to show that all the remaining furniture, ex■cept some articles hereafter referred to, were removed by the mother of plaintiff in error. Plaintiff in error offered testimony tending to show that all the balance of the furniture was appropriated by defendants in error or iby others as the result of defendants in error’s negligence in leaving the house in such condition that others could enter. Defendants in error admitted tailing a few articles left by plaintiff in error’s mother from the house for the purpose of earing foy them for plaintiff in error, and to whom the articles were tendered, but which she declined to receive. Defendants in error, in an attempt to locate plaintiff in error, wrote her at Dadonia, but got no reply.

The first point urged is that the verdict and judgment are erroneous because it appears from the evidence that defendants in error were in fact guilty of conversion, and plaintiff in error as a consequence entitled to a verdict for some amount of damages in any event. The broadest definition of conversion which we have found in the reported eases is that it is “the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner, either permanently or for an indefinite time, and may be effected by taking actual, corporeal possession and control over the property of another, so as to prevent the owner from the exercise of” such right. France v. Gibson, 101 S. W. 536. Under such definition it became, by the testimony, a question of fact for the jury to determine whether defendants in error, in taking those articles they conceded they removed from the house and those the testimony tended to show they removed, were guilty .of conversion thus defined. Having found they did not convert the property, and there being no complaint of the court’s charge in submitting such issue, the assignment is, in •our opinion, without merit. The mere opening of the door to the residence by defendants in error cannot be said to be a conversion, as argued by plaintiff in error, in view of the finding by the jury that there was no such taking of the property and consequent control and dominion over the same as pre■cluded plaintiff in error in the exercise of her right of control and dominion. The finding of the jury comprehends at least two things: That defendants in error did not take any of the property, except the articles conceded to have been taken, and that such articles were held for plaintiff in error without attempt at control or dominion. Nor can it be fairly said, as further urged by plaintiff in error, that such finding is against the great weight and preponderance of the credible testimony. There was no complaint in reference to the leased furniture being removed, and so far as the record discloses, the removal thereof is acquiesced in by plaintiff in error.

On the question of whether or not defendants in error converted the remaining portion of the furniture, of which the articles conceded to have been taken constituted but a small part, the evidence cannot be said to preponderate particularly either way, and hence it was peculiarly the function of the jury to settle that question, as well as the credibility of the witnesses, which issue itself may have been a' cogent point in determining the preponderating facts.

We think there was no error in permitting defendants in error to testify that the articles conceded to have been removed were removed for safe-keeping and had been held subject to the disposition of plaintiff in error and had been tendered to her several times and had been tendered to her at trial. While it is the settled rule that tender, after conversion, is ineffectual as a means of avoiding liability, at the same time such testimony was admissible and entitled to be considered by the jury in determining whether there was a taking, accompanied by dominion and control or assumption of dominion and control.

Error is assigned in reference to a question charged to have been propounded by the jury to the court and by the court answered, but since same is not supported by bill of exception taken at the time in the manner provided by law, we may not consider same.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MOORE.
    (No. 7190.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.
    Rehearing Denied Oct. 17, 1914.)
    Master and Servant (§ 88) — Existence oe Relation — Volunteer.
    That a railroad employé to repair cars and assist the depot agent in attending to baggage, but without authority to hire help, needed assistance to load a trunk into a -car of a passenger train was not such an emergency as authorized him to employ a third person to assist, and the third person rendering assistance at the request of the employé was but a volunteer, and could not recover from the railroad company for an injury sustained, where the employé could have secured the needed assistance by calling on other employes who at the particular moment were busy at other duties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by E. B. Moore against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    R. B. Howell, of Winnsboro, for appellant. W. W. Campbell, of Alba, for appellee.

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

   RAINEY, C. J.

Appellee’s cause of action as alleged by him, in substance, is, that, being at appellant’s depot in Alba, Tex., when appellant’s passenger train came and stopped, he was requested by the baggageman, an assistant to the depot agent, to assist him in loading a large drummer’s trunk that was then on the depot platform; that in trying to lift said truink into the car he had one finger mashed; that an emergency existed which authorized said assistant to employ him in such work, and he was therefore in appellant’s employ at the time. Appellant answered that appellee was a volunteer or trespasser in assisting to load the trunk; also pleaded contributory negligence and assumed risk. A trial resulted in a verdict and judgment for $100, from which this appeal is taken.

Conclusions of Fact.

Appellee was not employed by appellant, but, being at the depot when a passenger train came in, he was requested by W. I. Matthews, a car repairer, but when not repairing cars he assisted the depot agent around the depot, attending to baggage, etc., to load on the train a large drummer’s trunk which was then on the depot platform. In trying to lift the trunk into the car one of his fingers was badly hurt by being mashed with the trunk.

W. I. Matthews had no authority to hire help, and, help being needed, he could have secured it by calling on other employés of the appellant, but who at that particular moment were busy at other duties. Appellant’s trucks used around the depot for loading trunks and other freight were out of repair, and not being used on that day. Had such trucks been in use the accident probably would not have happened. The appellee was not under any obligation to assist in trying to load the trunk, and his acts in the premises were merely for accommodation.

Conclusions of Law.

W. I. Matthews had no authority from appellant to employ persons to assist him in his duties around the depot, and under the evidence there existed no such emergency, as under the law such authority was conferred upon him, as to make the appellant liable for his acts in employing appellee. Blalack v. Traction Co., 349 S. W. 1086; Marshall Railway Co. v. Sirman, 153 S. W. 401. The trunk being large, Matthews could not well load it by himself, and needed assistance to do so. Appellee was a man 48 years of age; he had had some experience in handling trunks; he knew it was large, and evidently knew it was heavy by trying to' lift it. He was not an employé of the appellant, and his services were rendered for accommodation, and hence a volunteer, which renders appellant not liable.

While ordinarily, whether or not an emergency exists is a question, for the ju)cy, we think the evidence is so lacking in probative force that we conclude the issue of an emergency was not raised, and, as it seems the case was fully developed, there is no. necessity for the case to be sent back for a new trial; the judgment is reversed, and a judgment here rendered for appellant.


author: CARL, J.

text:
    CITY OF SAN ANTONIO v. COULTRESS.
    (No. 5307.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 22, 1914.
    On Motion for Rehearing, Oct. 21, 1914.)
    1. Officers (§ 94) — Emoluments, Right to.
    Before the emoluments of an office can be recovered, the claimant must show that the office has been created, and that he is a legal incumbent.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. «§ 132, 133, 136-138, 140, 141; Dec. Dig. § 94.]
    2. Officers (§ 94) — Emoluments, Right to.
    To recover the emoluments of an office, the claimant must show that he is a de jure officer.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 132, 133, 136-138, 140, 141; Dee. Dig. § 94.]
    3. Municipal Corporations (§ 186) — Officers — Policemen—Nature of Office.
    The position of policeman or patrolman was unknown .to the common law, and, being a creation of municipal governments by ordinance, the establishment of such office in a valid manner must be shown to entitle a patrolman to recover against a city for the salary of the office.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 510-517; Dec. Dig. § 186.]
    4. Municipal Corporations (§ 180) — Officers— Policeman — Ordinance.
    Under San Antonio charter, providing that the city council shall have power, by ordinance, to establish a police force, and to create any office deemed necessary, the position of policeman must be created by ordinance, and neither a resolution approving the appointment of one as policeman, nor acquiescence by the city in his appointment and payment of his salary, will make him the legal occupant of that position.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 449-457, 466, 482; Dec. Dig. § 180.]
    5. Municipal Corporations (§ 180) — Officers — Policeman—Ordinance.
    Where the city council of San Antonio, which was authorized to provide for a police department by ordinance, adopted an ordinance declaring that the police force should consist of one chief marshal and such patrolmen as the mayor and city council might deem necessary, the council cannot, by resolution, create the office of patrolman; the ordinance not specifying the number and riot creating the office.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 449-467, 466, 482; Dec. Dig. § 180.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by James Coultress against the city of San Antonio. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Geo. R. Gillette and Robt. G. Harris, both of San Antonio, for appellant. T. E. Simmang and Joseph Ryan, both of San Antonio, for appellee.

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

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

   CARL, J.

James Coultress sued the city of San Antonio for the recovery of the salary incident to the alleged office of policeman or patrolman for the remainder of his term, because of an alleged illegal discharge therefrom. The amount of the judgment recovered is $682.26 salary and $46.35, the value of two uniforms to which the appellee, Coultress, was entitled by virtue of his position. The trial was before the court without a jury, and judgment for appellee was as indicated.

Conclusions of Fact.

It was admitted that James Coultress, appellee, had been appointed a patrolman by the mayor of the city of San Antonio, which appointment was confirmed by the city council on July 17, 1911, and a commission issued to him as such, signed by the mayor and attested by the city clerk under the corporate seal of the city of San Antonio. It is denied that he was appointed to an “office.” The said Coultress executed a bond as such patrolman on July 7, 1911, and the fact that the bond was dated July 7, and the commission dated July 17, 1911 was explained in this way: The mayor would make a lot of appointments, and those appointed would proceed to qualify and enter upon their duties. The written appointments were not prepared until later, and frequently would lay on the mayor’s desk several days awaiting his signature. When signed, the appointments, which usually were not dated, would bear date as of the same date signed, or the date would be left blank and the party receiving such appointment would fill it in. Sometimes this date was put the same as the actual appointment, and again it would be fixed as of the date signed by the mayor. The bond executed refers to the appointment as having been made on July 7, 1911, and the evidence is sufficient to show that it was in fact made on that date.

It was also admitted that the appropriations out of which appellee’s salary was paid were made monthly by the city council of said city, in a lump sum for the department pay roll upon which Coultress’ name appeared. And, further, that appropriations of funds to pay the police department were made for the period during which appellee was to serve. Appellee entered upon his duties July 8, 1911, and served until August 26, 1912. On the last-named date he was asked to resign and declined. The chief of police thereupon told him he was discharged. The assistant city marshal, or chief of police, called up all the old employés and the new ones named to succeed those discharged, some having been reappointed after they had resigned in compliance with his request, and said to them:

“ ‘The names that you will hear me call out now will report for duty promptly at 7 o’clock to-morrow morning, and the names of those that are not called out, you will tender all that belongs to the city, gun, whistle, badge, key, to the locker and so on.’ So he read the roll call out, and my name was not mentioned. * * * I was paid up to August 26, 1912.” He says he never repeived any salary after that. “I was first told to resign, and as I did not resign, I was asked why I didn’t resign, by Chief Lancaster. I told him I didn’t resign because I wanted to keep on the force; he said, if I would not resign, I was dismissed. ‘You are fired’ — those are the very words.” He says the mayor never discharged him. He did not know the mayor when he went in office, but Mr. Jones was mayor at the time.

Coultress was paid $70 per month, and was entitled to $22.50 for clothing, which he did not get. Appellee has never brought any suit to recover his alleged office of patrolman. The witness did not know who got his place, but saw another man on his beat. A patrolman is a policeman. The city council has never acted upon the discharge of appellee. It was shown that appropriations were made to cover the pay rolls for appellee’s alleged unexpired term, and his name was on such pay rolls at the rate of $70 pier month, but he was not paid for any of said time. There was due and unpaid to him the amount found by the trial court.

By reference to the charter of the city of San Antonio we find:

“Sec. 51. The city council * * * shall have power, by ordinance:”
“Sec. 65. To establish a police force and regulate the same. * * * ”

Section 56, as amended by act of 1907, Special Laws, p. 562, reads in part as follows:

“To regulate and prescribe the duties and powers and compensation of all appointed officers, agents and employés of the city, and to require bonds, etc.; to create any office or agent deemed necessary for the good government and interests of the city, and to change and prescribe additional duties of all officers and agents provided that the powers prescribed by this charter for elective officers shall not be diminished.”
“Sec. 20. The city council, or a majority thereof, may act by resolution in all cases except .where an ordinance is by this act required # * * ”

“The Revised Ordinances” of the city of San Antonio, chapter 58, rule 1, published by authority of the city council, contain this provision:

“The police force of the city of San Antonio will consist of the following grades: City marshal (ex officio chief of police), assistant marshal or marshals and patrolmen.”

By an ordinance passed by the city council March 2, 1903, it was ordained that:

“The police force of the city of San, Antonio shall consist of one chief marshal and two assistant marshals, one police matron, and such detectives and mounted and unmounted patrolmen as the mayor and city council may deem necessary.”

Conclusions of Law.

In the view we take of this case it narrows down to the proposition as to whether the city of San Antonio has legally created the office of policeman or patrolman and whether, if that be true, appellee has been legally appointed thereto. That the. mayor of San Antonio named him as such policeman, and that the city council confirmed same, may be taken as established. Before the emoluments of an office may be recovered, it is necessary that the claimant therefor should show: First, that the office has been created and is in existence; and, second, his legal right thereto. He must show that he is an officer de jure. The position of policeman or patrolman was unknown to the common law. It is a creation of municipal governments, by ordinance, derived from authority granted in charters of cities, or by statutory authority for the government of municipalities operating under the general law. The city of San Antonio operates under a charter which contains its authority for the establishment and maintenance of a police department.

Article II of the charter deals with the powers and duties of the city council, and the first section thereunder says, in part:

“Sec. 51. The city council * * * shall have power, by ordinance:”
“Sec. 65. To establish a police force and regulate the same. * * * ”
“Sec. 56. To create any office or agent deemed necessary for the good government and interest of the city. * * * ” •

It will be noticed that section 51, which says that the city council shall have power*' by ordinance to do certain things, following, closes with a colon, and then the various things it is empowered to do by ordinance are enumerated under different section heads down to and including “Sec. 65. To establish a police force and regulate the same.” Turn then back to section 20, and it reads:

“The city council, or a majority ■ thereof, may act by resolution in all cases except where an ordinance is by this act required.”

Section 65 would be meaningless standing alone and beginning as it does, “To establish a police force,” etc., unless it refers back to and is thereby connected with section 51, which says the council by ordinance shall have power, among other things, “to establish a police force.” The two sections must necessarily be read together. Now, the charter is stating what powers the council shall have and how those powers are to be exercised, and in doing so, it is clearly stated that the council shall have power by ordinance to establish its police force. That means, and can only mean, that the council has that power when exercised in the manner prescribed, which is by ordinance. Section 20, giving the council power to act by resolution in all cases not otherwise required to be done by ordinance, must mean that where an ordinance is required a resolution would be insufficient

■ The ordinance of the council of date March 2, 1903, wherein it was ordained that “the police force of the city of San Antonio shall consist of one chief marshal and two assistant marshals, one police matron, and such detectives and mounted and unmounted patrolmen as the mayor and city council may deem necessary,” did not create the office of patrolman or policeman. If it did, how-many such positions were created? It is true that section 65 gives the council the right to provide for that department, and by referring back to section 51, we see that it must be done by ordinance. If the ordinance quoted be relied upon to show the creation of the office, it will be noticed that no particular number is mentioned. The only limitation is such number as the mayor and city council “may deem proper.” The only logical result or inference from this is that the mayor may appoint, and the council, by a simple resolution ratifying the same, may confirm, as many patrolmen as may be desired; and this in the face of the charter provision that it shall be done by ordinance.

“But when the statute requires that an act of a municipality be done in the form of an ordinance, or if such requirement is implied by necessary or clear inference, the act can only be done in that form, or perhaps its legal equivalent, and a resolution, especially if not adopted with all the formalities of an ordinance, is not sufficient.” Dill. Mun. Corp. vol. 2, § 572 (5th Ed.); Noel v. San Antonio, 11 Tex. Civ. App. 580, 33 S. W. 263.

• The contention is made, as we understand it, that even if the office of patrolman had not been expressly created by ordinance, the pay rolls carried appellee’s name, and that an appropriation was regularly made by the council for the payment of his salary, and that by reason of that fact and the further fact that the council had approved his appointment, it would be construed as an appointment to the office. But the charter of the city, was granted for the public good, and the powers of the council are defined in and circumscribed by that document. The city can only act as it is permitted to act in that legislative grant. That instrument says that the council shall act by ordinance in matters of this kind, and this it has not done. The doctrine of estoppel and ratification cannot aid that which never had a legal existence. Mr. Justice Fly, in the Noel Case, supra, quoted with approval from the Supreme Court case of Thomas v. Railway, 101 U. S. 85, 25 L. Ed. 950, where it was said:

“To hold that this can be done is, in our opinion, to hold that any act done under a void contract makes all its parts valid, and that _the more j'ou do under a contract forbidden by law, the stronger the claim to its enforcement in the courts.”

The ordinance of March 2, 1903, does not specify the number of policemen or patrolmen, and does not create that office. It does not say that there shall be not more than a certain number. The powers of the city council granted it by the state in its charter cannot be delegated to the mayor or to the police committee, but can only be exercised as therein pointed out, viz., by ordinance. And this has not been done. It is no answer to say that occasions frequently arise when the force should be either larger or smaller, because the council could provide for such emergencies.

In Moon v. Mayor of Champaign, 214 Ill. 40, 73 N. E. 408, it is said:

“It does not appear from the petition that the office which the appellant claims the right to hold and exercise had or has legal existence. The office of policeman or police patrolman of which the petitioner claims he was the legal incumbent, if it existed at all, must have been created by an ordinance of the city of Cham-paign. * * * The petition set forth the adoption by the city council of the city of Cham-paign of an ordinance establishing a police department. Section 355 of this ordinance, which seems to be relied on by appellant as creating the office of policeman, is as follows: ‘The police department of the city of Champaign shall consist of the mayor, the aldermen' the police magistrate, who shall be ex officio members of ,the police department, and a chief of police, and as many policemen as the city council may from time to time provide for, and one keeper of the city prison, and such other officers as are given police power by ordinance of the city.’ This section * * * does no more than to create the police department of the city and to declare what officers of the city should compose the department. The provision that the police department should consist, in part, of ‘as many policemen as the city council may from time to time provide for’ cannot be construed to create any one or more offices of policemen of the city. Its true meaning is that the police force of the city shall comprise such policemen as shall be legally invested with that office. This section does not itself purport to 'create the office of policeman,- and it has no such legal effect. It does not appear from the petition that the city council had before that adopted an ordinance creating the offices of policeman of the city, or that such an ordinance has since then been adopted.”

And this decision further reads:

“Neither appointment by the mayor nor confirmation by the council, or both, can operate to create an office. Nor can an office be legally established by the appropriation of public money, by ordinance, to the payment of the salary or compensation of the person acting as an officer.”

And further reads: “The demurrer was properly sustained.”

In the case of Keegan v. City of Bayonne, 81 N. J. Law, 120, 78 Atl. 1053, Bergen, J., said:

“By the charter the power to establish, regulate, and control a police force in the city must be exercised by ordinance, but the ordinance under consideration confers upon the mayor and council the power to appoint not only two sergeants, but as many more as they may see fit; that is, it is attempted to empower them to appoint an indefinite number of police sergeants, who are to perform such duties as the mayor may prescribe, and the council approve, thereby establishing, regulating, and controlling the police force by a method other than by ordinance as required by the charter. The fixing of the number of officers and the prescription of their duties is an essential part of the establishment and regulation of a police department, and this the charter under consideration requires shall be by ordinance, and it is not a compliance with the charter to ordain that the mayor and council may appoint as many police sergeants as they may determine upon, with the power to prescribe all their duties, for that would delegate to the appointing power the determination of how many police sergeants there should be, and also what duties they should each perform. This would effect the establishment, regulation, and control of the police department, not by ordinance, but by appointment. If the words ‘or more’ be treated as surplusage and the ordinance held to provide for two such officers, they were both filled when this appointment was attempted, and there was no office provided by ordinance to which the respondents could assign the relator.”

See, also, Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614; Dolan v. City of Louisville, 142 Ky. 818, 135 S. W. 272; Kammerer v. City of Louisville, 142 Ky. 848, 135 S. W. 411; City of Bryan v. Poye, 51 Tex. 532, 32 Am. Rep. 637; City of San Antonio v. French, 80 Tex. 578, 16 S. W. 440, 26 Am. St. Rep. 763.

In the case of City of Waco v. Prather, 35 S. W. 962, Justice Collard said:

“Our opinion is that, inasmuch as the city council had power to pass ordinances by statute, it could proceed to contract for and to construct the improvement of the streets by ordinance only, and that the acts of the council, as shown by the minutes, were not alone sufficient to empower the city to do the work, and to create a debt against property owners that could only be paid by the levy of a tax. The fact that the tax was authorized by an ordinance which declared a lien for part of the cost of the work does not meet the objection made. The ordinance to tax was after the work was done and the debt created. It could not justify what had been previously illegally done. AU that was done to create the debt and fix the lien upon owners of property abutting on the improved street was illegal and void, and could not be cured by ordinance to levy a tax to pay the debt. * * *
“The Waco city council acted by ordinance in assessing and levying the taxes, but this was not sufficient. The ordinance was passed after the work was done, and no ordinance was passed as the foundation to improve the streets, incur the expense, make the contract creating the necessity for the tax, and fixing the lien upon property supposed to be benefited by the work. An ordinance was necessary as a foundation for all the subsequent proceedings, and its omission could not be supplied by ordinance after the debt was incurred authorizing the levy of a tax to pay the debt.”

So we have seen that the burden was on appellee to show that the office of patrolman which he held had been legally created, and that he had been legally placed therein. We have also seen that the city charter authorizes the city council by ordinance to provide for a police force, and that the council attempted to create such a department by the ordinance dated March 2, 1903. But the number was not fixed, and this court cannot say that the office appellee claims has ever been established by the council as provided by law. This holding is not in conflict with City of San Antonio v. Bodemann, 163 S. W. 1013, because in that case the petition alleged that Bodemann had been regularly appointed and had qualified as an officer, and the authority for such appointment and qualification was not an issue before the court. It was there held that as against a general demurrer which this court supplied, the petition did show a cause of action.

Thus it has been seen that a certain simple method of procedure has been provided by the charter for the establishment of a police department; but that method has not been followed. No ordinance is shown creating the office to which appellee was appointed and confirmed by the council; and no act by the mayor or resolution by the council, confirming an appointment to an office which has never been created, can establish such position. In short, the charter requires the position to be created by ordinance, and that is the only way it can be done; and to say that the failure to provide by ordinance the office could be remedied by a simple resolution confirming the patrolman’s appointment by the mayor would be to say that the provision of the charter could be rendered nugatory and of no effect. No amount of resolution of confirmation can make an office which never had an existence; for, being without power to create the department and office except in a certain way, and it has not been done that way, no confirmation can vitalize that which was never in legal existence.

To the argument that the department of police has been so maintained for many years, we answer: That does not make it any more legal. It may be that the reason the department was required to be established by ordinance was because the people could then know how many policemen they would have, and not leave such an important branch of the city government and the number thereof to the good judgment or caprice, as the ease might be, of those in authority at any particular time. The patrolman himself has a right to know when he has been appointed and qualified that it is for a definite period' of time, unless dismissed in a legal way for cause, and he should not be left to feel that he is a mere officer at pleasure or sufferance. For this reason, if for no other, the charter should be followed and the places created with all the formality set forth in sections 51 and 65. It is an easy matter to provide for emergencies and to make the system flexible. This can all be done by ordinance, but no part of it can be done by resolutions of confirmation.

We conclude that no cause of action was shown, that the general demurrer should have been sustained, and that the judgment should be reversed and rendered in favor of the city. This makes it unnecessary to deal with the other assignments of error.

Reversed and rendered.

On Motion for Rehearing.

The city of San Antonio has filed a motion to have corrected the findings of fact so as to show that the name of appellee, Coul-tress, was taken off the pay rolls as a policeman when he was discharged. This is correct, for it is alleged in plaintiff’s second amended original petition, which reads in part as follows:

“Sixth. * * * And continued to discharge them until on or about the 24th day of August A. D. 1912, when plaintiff was illegally discharged * * * and his name was taken oft the pay rolls of the city. * * * ”
.“Appellee charged and appellant admitted— besides it was proven and not denied — that his name was taken off the pay roll by the city authorities after his illegal discharge.”

This last is taken from the brief of appel-lee. What we should have said is that the usual appropriations were made in the budgets for the place Ooultress had held, but we do not find that such provisions were made for his salary, or for any particular place. His name was taken off the pay roll about August 24, 1912, and thereafter he was considered as discharged by the city authorities. This motion is granted and the original findings of fact modified as herein indicated.

Appellee, in his motion for a rehearing, insists that the laws of the state of Texas and the courts recognize a policeman as an officer. We do not deny this, but that is not the matter before us. The question here is as to whether that office has been legally created; for if it has, then certainly the law recognizes the office. But when our statutes and courts recognize such office, it presupposes a legal creation of the same. But the fact that the position is acknowledged by law to be an office does not lead to the conclusion that because tile law recognizes such office, the same need not be legally created. The office only comes into existence when created in a legal manner, and when that is done, of course the state law recognizes the office. The state law recognizes the position of county auditor, and yet some counties have them and others do not. It is only when the place is created in the manner provided by law that the same is entitled to recognition as an existing office.

It is contended that the two ordinances, one dated March 2, 1903, and the other contained in the revised ordinances in force August 1, 1899, and published by authority of the city council, as authorized by sections 219 and 220 of the 1870 charter, became effective before the present charter of 1903, and are therefore not founded upon it, because section 50 of the 1903 charter continues them in force. That section reads in part:

“And all ordinances of the city of San Antonio now in force not contrary to the provisions of this act and the laws of this state shall continue in force until repealed.”

But these ordinances would be in conflict with the charter of 1870, almost, if not entirely, as much as with the present charter or the charter of 1903. For when we examine the 1870 charter we find that section 42, in enumerating what powers the council has, says: “ * * * And shall have power by ordinance.” Then with various sections beginning with the phrases, “To borrow money,” “To appropriate money,” etc., on down to section 50, where we find: “Sec. 50. To establish, regulate and support night watch and police, and define the duties thereof.” This clearly refers back to the requirement that this be done by an ■ ordinance. So, whether we look at the proposition from the standpoint of the 1870 charter or the present one, there is practically no difference. The whole matter summed up is that the department must be established by an ordinance, and the office of policeman cannot be created by resolution. Appellee has not shown that the office he seeks to recover (or rather the salary thereof) has -ever. been legally established.

Appellee’s motion for a rehearing is overruled.


author: TALBOT, J.

text:
    MISSOURI, O. & G. RY. CO. OF TEXAS v. LOVE.
    (No. 7173.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.
    On Motions for Rehearing and to Correct Opinion, Oct. 17, 1914.)
    1. Trial (§ 253) — Instructions—Request to Charge.
    Where, in an action for injuries to a brakeman, plaintiff’s right to recover was predicated on defendant’s negligence in improperly constructing its track, and also in operating an engine at a high speed, and the evidence was sufficient to carry both questions to the jury, an instruction that the undisputed evidence showed that plaintiff knew that defendant’s roadbed and track were comparatively new, and that there were defective places therein, and that, having elected to work on the road with such knowledge, he assumed the risk and could not recover, was objectionable as eliminating the issue of negligent speed, and was therefore properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    2. Appeal and Error (§ 263) — Instructions —Exceptions—Necessity at Trial.
    Rev. St. 1911, art. 1974, as amended by Act 33d Leg. c. 59, provides that, when instructions are refused, the judge shall note those refused and subscribe his name thereto, when the instructions shall be filed and .shall constitute a part of the record and be subject to revision for error. Article 2061, as amended, declares that the ruling giving, refusing, or qualifying instructions shall be regarded as approved unless' excepted to as provided by the previous article. Held that, where the appellate record failed to show that the refusal of a request to charge was excepted to as provided by section 1974, as amended, it was not reviewable for error, though defendant’s motion for new trial specified error in such refusal, and the overruling of such motion was duly excepted to.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]
    3. Evidence (§ 271) — Declarations to Physician-Complaints op Pain.
    Evidence that plaintiff complained of suffering a good deal more when on his side was admissible as involuntary expressions of present pain or suffering, and not objectionable as hearsay and self-serving statements.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    4. Appeal and Error (§ 961) — Review — Matters op Discretion — Deposition—Motion to Suppress — Review.
    Denial of a motion to suppress a deposition, in the exercise of the trial court’s discretion, will not be reversed on appeal, in the absence of a showing of abuse.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3839, 3840; Dec. Dig. §
    5. Evidence (§ 155) — Relevancy—Evidence Admissible by Reason op the Admission op Other Evidence. .
    Where, in an action for injuries to a brakeman, defendant introduced evidence that plaintiff drank too much whisky and was discharged from the service of another railroad, prior to his employment by plaintiff, for being drunk while on duty, plaintiff was entitled to offer in evidence in rebuttal a service letter signed by the superintendent of such other railroad reciting that plaintiff resigned from the service and-that his services were generally satisfactory.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.]
    6. Evidence (§ 471) — Relevancy—Opinion or Fact.
    Where certain witness had testified for defendant that plaintiff had been discharged by his former employer for intoxication while on duty, evidence by plaintiff in rebuttal that there had been friction between himself and such witness was a statement of a fact and not objectionable as an expression of an opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    7. Appeal and Error (§ 1004) — Review — Verdict — Excessiveness.
    Where, in an action for injuries to a servant, the evidence was conflicting as to the seriousness of the injuries and whether they or some of them were permanent, but was amply sufficient to justify the conclusion that they were serious and permanent, a verdict for $5,-000 would not be set aside on appeal as excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by O. E. Love against the Missouri, Oklahoma & Gulf Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed. Rehearing denied.
    John T. Suggs, of Denison, and Head, Smith, Maxey & Head, of Sherman, for appellant. McReynolds & Hay, of Sherman, for appellee.

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

   TALBOT, J.

Appellee sued appellant to recover damages for personal injuries sustained by bim on or about October 10, 1912. He alleges that while employed as a brakeman by the defendant, and while he was riding, in 'the performance of his duties, on the tender of an engine which was being operated and run by defendant from Deni-son to Gover, Tex., the tender was derailed, causing him to be thrown violently to the ground and injured in the back and other portions of his body. The suit is predicated upon two grounds of negligence: (1) That the railroad track was Improperly constructed and in bad condition in that it had in it what is called high and low places, and in that the rails and cross-ties were loose; (2) that the engine was operated at a high and dangerous rate of speed. Defendant answered, denying the negligence charged and the gravity of the injuries, admitted that its track was not ballasted with rock or similar material, alleged that it was a new road constructed over a new roadbed; that plaintiff was engaged in interstate commerce; that he well knew the condition of the road; and that his injury resulted from a risk assumed by him, or his own negligence. Upon the trial of the case, the jury returned a verdict in favor of the plaintiff for $5,000, and, judgment having been entered therefor, the defendant appealed.

The first assignment of error complains of the court’s action in refusing to charge the jury at appellant’s request to return a verdict in its favor, and the second assignment is as follows:

“The court erred in refusing to give the second special instruction requested by the defendant as follows: ‘Gentlemen of the Jury: ' The undisputed evidence in this case shows that at the time of the derailment of. the tender, when plaintiff claims he was injured, plaintiff was engaged in interstate commerce. The undisputed evidence further shows that the plaintiff knew that defendant’s roadbed and track were comparatively new, and that there were holes, low joints, and defective places in its roadbed and track, and that such condition rendered the operation of engines thereon dangerous. You are therefore instructed that he assumed the risk of riding over said road and track on the tender, and you will return a verdict for the defendant.’ ”

We think the court did not err in refusing these charges. If it should be conceded that the facts enumerated in the charge, to which the second assignment of error relates, were established by the undisputed evidence, yet neither that charge nor the charge to which the first assignment of error relates should have been given. By the pleadings and evidence a distinct issue of whether or not the tender upon which plaintiff was riding was, at the time of the accident, being operated at an excessive and dangerous rate of speed, and was the proximate cause of plaintiff’s injuries, was raised for the determination of the jury, and by both the special charges under consideration this issue was eliminated and a verdict absolutely in favor of the defendant, upon the whole case, directed. The giving of these charges, therefore, would have_ been positive error against the plaintiff, even though the defendant was entitled to a verdict on the question of the condition of the railroad track. But we are inclined to think the evidence was sufficient to require the submission of both questions to the jury, as was done by the court, for their determination, and that for this further reason said charges were properly overruled. In other words, we are of opinion that whether or not the plaintiff assumed the risk of riding over defendant’s railroad track under the circumstances shown was an issue of fact for the jury.

Touching the measure of plaintiff’s damages, the defendant requested the court to charge the jury as follows:

“If you should find for the plaintiff, you are instructed that he can only recover for such injuries as the proof shows affirmatively he has sustained as a direct result of the negligence of the defendant, and, unless it is shown affirmatively by fair preponderance of evidence that the plaintiff’s injuries are of a permanent character, you will disallow his claim for injuries of that character, and, in arriving at the amount of your verdict, you will not allow anything for permanent injuries.”

This charge was refused, and its refusal complained of by appellant’s third assignment of error. A consideration of this assignment is' objected to by the appellee, and we believe the objection is well taken. Article 1974 of the Revised Statute of 1911, as amended by the act of the Thirty-Third Legislature (chapter 59), provides that:

“When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused,_ and shall subscribe his name thereto, and such instructions shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error.”

And article 2061 of said Revised statute, as amended by said act, provides:

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

The record sent to this court fails to show that the ruling' of the court in refusing to submit the special charge in question was excepted to by the defendant, and the ruling cannot be reviewed on this appeal. The fact that defendant’s motion for a new trial assigned error upon the action of the court in refusing the special charge, and the fact that the order of the' court overruling this motion was excepted to, will not suffice to bring the ruling of the court in review. This, under the articles of the statute referred to, could only be done by bill of exceptions taken and incorporated in the record sent to this court. This not having been done, this court must regard the refusal of the special charge as having been approved by the defendant. Mutual Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067; Roberts v. Laney, 165 S. W. 114; Railway Co. v. Galloway, 165 S. W. 546; Railway Company v. Crutchfield, 165 S. W. 551; Saunders v. Thut, 165 S. W. 553.

The next assignment of error asserts that the court erred in permitting, the witness Dr. A. Y. Rutledge to state, over the objections of the defendant, that the plaintiff “complained of suffering a good deal more when on his side.” The question eliciting this statement of the witness, as shown by the bill of exception, was: “What complaints of pain, if any, plaintiff made that he suffered in different positions.” The objections to the question were that it called “for hearsay, self-serving statements, and as being immaterial and irrelevant.” We think there was no error in the admission of this testimony. The witness was a physician, and the statement in question made to him during an examination of plaintiff with a view of ascertaining the nature and extent of Ms injuries, and the conclusion that his expressions were a narrative of a past occurrence, would not be warranted. The statement of facts shows that the testimony of the witness here complained of referred to an examination made of the plaintiff in October, 1912, shortly after he was hurt, and not “shortly before the trial” of the case, as contended by appellant. The witness said:

“When I first called on Mr. Love along in October, 1912, he was on his back in bed. He was lying on his back. Of course he wasn’t on his back all the time. Pie was complaining to me at that time as his physician. He complained of suffering- a good deal more when he was on his side than when he was on his back. Pie said he had to occupy the position on his back.”

These expressions fall within the rule that involuntary expressions of present pain or suffering, which exclude the idea of premeditation, are admissible in cases of this character.

The sixth assignment complains of the. court’s action in overruling the motion of appellant to quash the deposition of the witness Dr. I-Ienry Race. The grounds on which this motion’was based were that a cross-interrogatory propounded to the witness was by him answered in a manner not direct or responsive to said interrogatory, but evasive thereof, and defendant was entitled to have a full and fair answer to said question. The action of the court in this matter does not constitute reversible error, if error at all. It is the settled rule in this state that the suppression of a deposition is largely within the discretion of the trial court, and that his ruling will not be reversed on appeal, unless it is made to appear that this discretion has been abused. This has not been made to appear in this instance, and the assignment will be overruled.

Nor do we think the court erred in admitting in evidence the instrument referred to as a service letter, which is as follows:

“Certificate of Service.
“Houston, Texas, October 18, 1911.
“This is to certify .that Ora Elmer Love, description as filed with personal rgcord dated September 21, 1910; age, 36; height.; feet.; weight.; color of eyes, .; color of hair, .; complexion, .; mark or deformity, none—has been employed in the capacity of switchman at Houston, Texas, in the transportation department of the Texas & New Orleans R. R. Co. from September 21, 1910, to October 18, 1911. Services generally satisfactory. Date of leaving service and cause, October 18, 1911, resigned.
“X E. Taussig.
“Superintendent Houston Terminals.”

The execution of this letter by defendant was sufficiently proved, and it was admissible by rebuttal for the purpose of contradicting the testimony of defendant’s witnesses, Hochuli, Dundas, and Lallier, as to the cause-of the plaintiff leaving the service of the Texas & New Orleans Railway Company. Three witnesses introduced by the defendant testified in substance that plaintiff drank too much whisky and was discharged from the service of the Texas & New Orle'ans Railway Company for being drunk while on duty. In rebuttal of this testimony the plaintiff testified:

“I have heard the testimony of Dundas, Ho-chuli, Lallier, and others in regard to my being drunk down at Houston while working for the Texas & New Orleans. I worked for the Texas & New Orleans at Houston a little over one year. I think it was in October, 1911, that I left the service of that company. I resigned from the service. At the time I severed my connection with the company I got what is called a service letter (the letter in question). I got this letter from Mr. Taussig, superintendent of terminals. I was standing outside of the railing when he signed it. I could see him writing over there. I wasn’t right close to •him, and saw him put his signature. I wasn’t close enough to see what he was writing on. I am satisfied that is what he was doing; putting his signature to it.”

The service letter was then offered and admitted, and we think its admission proper.

We are further of the opinion that the court did not err in permitting the plaintiff to testify, over the objection of the defendant, that it was a conclusion and opinion of the witness “that there had been friction between himself and the witnesses Dundas and Lallier.” It is clear that the statement objected to was not the expression of the opinion of the witness, but the statement of a fact.

It is assigned that the verdict is excessive, for that the great preponderance of the evidence shows that plaintiff’s injuries were of a trifling and temporary character, and that in all reasonable probability he would speedily recover therefrom. The testimony was conflicting as to the seriousness of plaintiff’s injuries and as to whether or not they, or some of them, were permanent or only temporary, but it was amply sufficient to justify the conclusion that they were serious and permanent. In this state of the evidence we would not be justified in disturbing the verdict of the jury.

The evidence is sufficient to establish the material allegations of the plaintiff’s petition and to warrant the jury’s finding that the plaintiff did not assume the risk of being injured, and the judgment is affirmed.

On Motions for Rehearing and to Correct Opinion.

The motions of the appellant, Missouri, Oklahoma & Gulf Railway Company of Texas, and United States Fidelity & Guaranty Company, for rehearing, have been carefully considered, and, because we are of opinion that all questions presented by them have been correctly disposed of, they are overruled. In disposing of the railway company’s seventh assignment, however, relating to the admission of an instrument termed a “service letter,” we incorrectly stated that “the execution of this letter by defendant was sufficiently proved,” and the railway company has filed a motion asking that the opinion of the court in this respect be amended and corrected. This motion will be granted. It does not appear that the letter referred to was executed by the defendant railway company, appellant here, but the proof is sufficient to show that it was executed by the Texas & New Orleans Railway Company, or by its authority ; and, this being true, it was properly admitted in evidence, for the reason stated in our original opinion.

The motions for rehearing are overruled. The motion to amend is granted.


text:
    TEXAS MIDLAND R. R. v. HARGROVE.
    (No. 7181.)
    (Court of Civil Appeals of Texas. Dallas.
    July 4, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Carriers (§ 68) — Custody and Control of Goods — Rights of Consignor — Change of Destination.
    A consignor of goods which had been loaded, and for which a bill of lading had been issued to his agent as consignee, before any new interest had intervened, and subject to the carrier’s claim for full freight, had the right to cancel the contract of shipment, and to require a redelivery at the point of shipment, or at any reasonable point short of the original destination, if it could be made without too great expense or inconvenience to the carrier.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 148, 194, 207-209, 216; Dec. Dig. § 68.]
    2. Carriers (§ 94) — Refusal to Redeliver Goods — Consignor—Action for Damages.
    A consignor whose goods had been loaded and for which a bill of lading had been issued to his agent as consignee, on the carrier’s refusal to redeliver them at the place of shipment where train on which they were loaded was just about to leave, was entitled to recover the difference, if any, between their market value there and when they were delivered at destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    3. Carriers (§ 94) — Refusal to Redeliver— Action for Damages — Tender of Bill of Lading.
    Petition, alleging the ownership of goods shipped and loaded, that demand was made upon the carrier for a cancellation of the shipping directions, and for a redelivery before they left the point of shipment, without alleging that when such demand was made the consignor tendered the bill of lading and offered to pay the freight, stated a good cause of action for damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    4. Carriers (§ 94) — Refusal to Redeliver —Action for Damages — Tender of Bill of Lading.
    Where a carrier’s agent, when requested by the shipper of goods, to whose agent it had issued a bill of lading, to redeliver them to the consignor, said he could not do so because the train had left, when in fact it was in the yards, as he knew, and that a certain station was the only place at which they could be put out, if at all, and that he did not believe they could be put out there, and did not demand the bill of lading nor deny the consignor’s ownership, the failure to tender the bill of lading was immaterial to the consignor’s right of action for.damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    5. Appeal and Error (§ 1071) — Harmless Error — Immaterial Finding.
    In an action for damages for a refusal to redeliver a shipment of goods, where the bill of lading was in the possession of the shipper’s agent, and it was not shown what would have been done had the shipment been halted, a finding that he would have surrendered the bill of lading, even if based only on presumption and not supported by the evidence, was harmless error, where the offer to surrender the bill of lading was immaterial to the right to recover.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234 — 4239; Dec. Dig. § 1071.]
    Appeal from District Court, Delta County; Wi. Pierson, Judge.
    Action by J. W. Hargrove, Jr., against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Henry C. Coke and S. W. Marshall, both of Dallas, and Dashiell & Coon, of Terrell, for appellant. Newman Phillips, and Bennett & Lane, all of Cooper, for appellee.

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

   RASBURY, J.

Appellee sued appellant for $1,016.06, alleged to be the difference in the market value at Cooper, Tex., on March 25, 1913, of a shipment of 118 bales of cotton consigned by appellee to W. D. Cleveland & Son at Houston, and delivered to appellant for transportation, and its market value at Houston, a month later, when delivered there by appellant. The right to recover the difference in market value was based upon the refusal of appellant, after the cotton was loaded upon its cars attached to a train at Cooper, Tex., and but a few minutes before its departure, to agree to stop the shipment that it might be unloaded and delivered to a local purchaser who had bought same, if that arrangement could be made. Trial was without jury, and judgment was for the ap-pellee, from which this appeal is prosecuted. The trial judge, on request of appellant, prepared and filed the following conclusions of fact, which we adopt except as hereinafter stated:

“I find: That on March 24, 1913, the plaintiff was the owner of 118 bales of cotton, and that on that date he delivered the same to the Texas Midland Railroad at Cooper, Tex., for shipment to Houston, Tex. That on said date the Texas Midland Railroad issued to the plaintiff a bill of lading covering the 118 bales of cotton, showing the destination of the cotton to be Houston, Tex. That at the direction of the plaintiff the said cotton was consigned to the order of the First National Bank of Cooper, Tex., and the bill of lading so provided, and that this was done for the convenience of the plaintiff and the bank’s connection with the cotton was for and as agent for the plaintiff. The bill of lading mentioned above was by the plaintiff, immediately after its issuance, delivered • to the . First National Bank of Cooper. That the 118 bales of cotton was not shipped from Cooper until two or three days after the issuance of the bill of lading mentioned above and at the time it was shipped from Cooper it had a market value at Cooper of $7,836.80.
“I find that two or three days after the cotton was delivered to the Texas Midland Railroad, the said railroad shipped the cotton from Cooper and started it on its journey to Houston, Tex., and that after some days it reached Houston, Tex., and at plaintiff’s direction was sold by W. D. Cleveland & Sons. That when the cotton reached Houston, Tex., it had a market value in Houston of $6,954.51.
“I find that on the day that the Texas Midland Railroad shipped the cotton from Cooper, and before it left Cooper, the plaintiff sold the cotton to J. T. Rountree for $7,836.80, on condition that the cotton could be delivered to Rountree at Cooper by the plaintiff on that day.
“I find that after the sale had been agreed to with Rounti-ee, and for the purpose of having the cotton left at Cooper, R. M. Walker, cashier of the First National Bank of Cooper, who had the bill of lading and, acting for plaintiff, called the agent of the Texas Midland Railroad at Cooper by telephone and told the agent that the cotton was sold, provided it could be left at Cooper, and requested the agent not to ship it out in case it had not already gone, and that the said agent informed Walker that the cotton had already gone, and was at the time of the conversation several miles out of Cooper.
“I find that in fact that at the time Walker had the conversation with the agent of the railroad mentioned above that the cotton had not been shipped from Cooper,"but was at that time loaded, and the train which later carried the cotton was, at time of said conversation, standing on the tracks within a few feet of the railroad’s office in Cooper, Tex., and that this fact was known to defendant’s agent at that time or by the use of ordinary care said agent could have known said fact.
“I find that if the agent of the railroad at Cooper had used ordinary care to have the cotton left at Cooper, after he received the communication from Walker, that he could have had the cotton left at Cooper, but I also find that the agent used no care whatever to have the cotton left at Cooper, and that a few minutes after the conversation with Walker the train containing "the cotton left Cooper, and the cotton was carried to Houston.
“I find that the difference between what plaintiff would have received from Rountree had the cotton not been shipped from Cooper and what he did receive for the cotton after it was sent to Houston and sold there to be $SS2.20.
“I find that when R. M. Walker had the conversation with the agent of the railroad at Cooper about not shipping the cotton that the agent did not request the bill of lading to be returned to the railroad, but that Walker had the bill of lading, and would have returned it to the railroad had the cotton been left at Cooper.”

The controlling question raised by appellant is the right of appellee as consignor of the cotton to countermand or cancel the contract of shipment after issuance of bill of lading and after the cotton was loaded on cars attached to a train about to move on its journey, or, in short, in the custody of appellant en route to destination, and we shall discuss that issue first in order that all other issues may be discussed in the light of our conclusions in that respect. An eminent and accepted authority says:

“So long as the goods remain the property of the bailor he may countermand any directions he may have given as to their consignment, and may, at any time during the transit, require of the carrier their redelivery to himself; and if such redelivery can be made without too much inconvenience or expense to the carrier, he will be bound to make it.” Hutchinson, Carriers, § 660.

In support of the text the author cites Scothorn v. South Staffordshire Railroad Co., 8 Exch. 341, and quotes approvingly from that case that:

“A carrier is employed as bailee of a person’s goods for the purpose of obeying his directions respecting them, and the owner is entitled to receive them back at any period of the journey when they can be got at. To say that a carrier is bound to deliver goods according to the owner’s first directions is a proposition wholly unsupported either by law or common sense. I can well understand the case of goods being placed in such a condition that they cannot easily' be got at, though it is usually otherwise.”

Continuing, the author says:

“So, clearly, the owner would have the right, while no new interests have intervened, and subject to the carrier’s claim for full freight, to intercept the goods upon their journey, and demand their delivery at any reasonable point upon the carrier’s line short of the original destination.” Hutchinson, Carriers, § 661.

This doctrine is recognized by a number of adjudicated cases, and is both fair and equitable, since it contemplates the payment of full freight when the contract of shipment is prevented by the direction of the consignor owner. San Antonio & A. P. Ry. Co. v. Barnett, 27 S. W. 676; Mich. South. & North Ind. R. R. Co. v. Justin Day, 20 Ill. 375, 71 Am. Dec. 278; Sharp et al. v. Clark et al., 13 Utah, 510, 45 Pac. 566; Ryan v. Great Northern Ry. Co., 90 Minn. 12, 95 N. W. 758.

In the instant case it appears from the findings of fact by the trial judge, and supported by appellee’s witnesses, and not substantially disputed by any witness for appellant, that the cotton was loaded on cars standing on appellant’s track in close proximity to the office of appellant’s agent when he-was requested to cancel the contract of shipment and redeliver the cotton to appellee at. Cooper, where it was loaded, but that the agent, when requested to halt the shipment, in effect advised appellee that the train had departed and the cotton at that time was between two stations south of Cooper, and which statement, according to the agent’s admission, was incorrect, and in legal contemplation a refusal to redeliver, and entitled ap-pellee to recover the difference, if any, between the market value of the cotton in Cooper at that time and its market value in Houston, when delivered there by appellant.

But it is here urged by appellant that the court below should have sustained its general demurrer to appellee’s petition because same failed to show that at the time the request was made to halt the shipment appellee tendered to appellant the bill of lading and offered to pay the freight, etc. In respect to such matters the rule is, as we have said, that full freight may be demanded, and we think that the bill of lading must, as matter of course, be returned before redelivery, if the carrier demands it; but we also think it equally clear that an allegation of ownership, coupled with the further allegation that demand was made upon appellant for cancellation of the directions to ship or a redelivery, is sufficient against a general demurrer, since such facts, under the circumstances, state a good cause of action. The petition alleged ownership of the cotton, possession by appellant, and a demand for its redelivery, while yet in appellant’s custody in its yards, and a refusal by appellant. It is conceivable that a failure to produce bill of lading would not, in every ease, justify the carrier, if other proper assurances and evidence of title are furnished, in refusing to halt the movement of the freight, and as relates to the payment of freight, it occurs to us that failure to tender same will not preclude the right to recover in such eases, since the carrier can at all times protect itself by refusing actual delivery of the goods until payment thereof, whether at point of destination provided for by the bill of lading or at point where the shipment was arrested. Such facts are matters of defense rather than conditions controlling a plaintiff’s right of recovery in such cases.

Assignments 3, 4, 5, 6, 7, 8, and 9 attack either the findings of fact by the trial judge, or the sufficiency of the evidence to support the judgment We have carefully examined the entire record of the evidence, and have concluded that same fairly and sufficiently supports the judgment and all the findings of the court brought into review by the assignments of error, save the facts covered by assignments 4 and 9.

By the fourth assignment it is urged that the judgment is improper because no tender in fact of the bill of lading was made. It is a fact that no tender of the bill of lading was made, but under the facts found by the judge and supported by the evidence, that fact was immaterial. As we have said, when first requested to halt the shipment the agent adyised appellee that he could not do so for the reason that the train had departed and was at that time probably between two stations south of Cooper. As a matter of fact it was actually in the yards when the request was made, and it is fairly deducible from the evidence that the agent knew it. Subsequently, and but a short while after the train actually departed, another request was made that the cotton be set out at either Klondyke or Commerce, stations south of Cooper, but the agent replied that Ennis was the only place it could be set out, if it could be set out at all, and that he did not believe it could. Such attitude, it occurs to us, constituted a refusal by the agent to halt the shipment and in the absence of any demand for the bill of lading, or any denial of appellee’s ownership of the cotton, the failure to present the bill of lading became an immaterial matter.

The ninth assignment asserts that the finding of the court that appellee would have surrendered the bill of lading had the shipment been halted is not supported by the evidence. The facts show that the bill of lading was in the possession of appellee’s agent, but it does not show what would have been done had the shipment been halted, and hence it may be said the court’s finding was based upon presumption. Conceding, however, all that is claimed, such finding does not constitute reversible error, since the actual tender of the bill under the recited facts was, as we have said, immaterial to appellee’s right to recover.

The judgment is affirmed.