text:
    MISSOURI, O. & G. RY. CO. v. BORING.
    (No. 7110.)
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.
    Rehearing Denied April 25, 1914.)
    1. Trial (§ 139)—Causes of Action—Directed Verdict—When Authorized.
    Where there was evidence to establish, one ground of recovery alleged in the petition, a peremptory instruction requested by defendant was properly refused, though plaintiff could not recover on another ground alleged.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]

      2. Master and Servant (§ 278) — Injury to Servant — Negligence—Evidence.
    In an action for injuries to a section hand while attempting to remove a hand car from a track, evidence held to justify a finding that the accident was caused by the negligence of the foreman in causing the weight of the car to fall on the section band-.
    LEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    •3. Trial (§ 203) — Pleading — 'Issues — Instructions.
    Ordinarily, where plaintiff presents two causes of action, the court’s withdrawal of one of the causes from the jury eliminates that ground of recovery and the defense set up against it, and defendant may not complain that the defense was not presented in the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. Ü 477-479; Dec. Dig. § 203.]
    4. Trial (§ 145) — Withdrawal of Issues— Failure to Submit Issues.
    The failure of the court to submit an issue to the jury withdraws the issue from their consideration.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 328, 341; Dec. Dig. § 145.]
    5. Master and Servant (§ 287) — Injury to Servant — Evidence—Issues.
    Where, in an action for injuries to a section •hand while attempting to remove a hand ear from the track, the evidence showed that a car weighed about 300 pounds, and that one person could take a car off the track, and that three men were engaged in removing the car, the issue of the carrier’s negligent failure to furnish a sufficient number of men to handle the car with safety was not raised, and an instruction submitting that issue was properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.]
    6. Trial (§ 252) — Instructions — Applicability to Evidence.
    Where, in an action for injuries to a section hand while attempting to remove a hand car from a track, caused by the negligence of the foreman in permitting the car to fall on the section hand, thereby causing hernia, there was no evidence that plaintiff had suffered a rupture before the accident, and a physician testified that, if he had been diseased and weak at the time of the accident, that condition had nothing to do with the injury, the refusal to submit the issue of plaintiff’s weak or diseased condition as a cause of the accident was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    7. Evidence (§ 123) — Res Gestae — Statements Admissible as Part of the Res Gestas.
    A statement by one of the parties to an occurrence which resulted in injury, made at the time of the occurrence, with -reference to the cause of the injury or the conduct of the parties is admissible as a part of the res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.]
    8. Evidence (§ 123) — Res Gestas — Statements Admissible as Part of the Res Gestae.
    The statement of a section foreman, in the instant after the happening of an accident to a section hand under his control, as .to the cause of the accident was properly received as a part of the res gestos when material to the issues as then disclosed by the pleadings and the evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.]
    9. Evidence (§ 118) — Res Gestae —Statements Admissible as Part of the Res Gestae.
    A statement admissible as a part of the res gestoe_ is not rendered inadmissible because it contains a profane expression.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 297-302; Dec. Dig. § 118.]
    10. Trial (§ 89) — Evidence — Motion to Strike.
    Where evidence when received was admissible under the issues as then disclosed by the pleadings and the proof, but thereafter the evidence became immaterial because of the withdrawal of the issue under which it was admissible, the remedy was by motion to strike out the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 228-234; Dec. Dig. § 89.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by J. H. Boring against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John T. Suggs, of Denison, for appellant. J. E. Cawthon, of Denison, and Jones & Plassell, of Sherman, for appellee.

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

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

   TALBOT, J.

This is an action to recover damages for personal injuries sustained by the appellee through the negligence of appellant’s section foreman, Riddle, while appellee, employed as a section hand, and the said Riddle were attempting to remove from appellant’s railroad track a hand car used by them in connection with their work. Appellee alleged, as grounds of negligence: (1) That, in order to remove the hand car from the track, “the plaintiff, the said section foreman, and another laborer took hold thereof with'their hands, and, as they raised or lifted said car from the rails, said section foreman pushed and shoved said ear against and upon plaintiff in such a manner as to place the great weight of the car .upon him, and at the same time then and there dropped the end of the ear which he was then lifting, thereby causing the great weight of the car to fall upon and against plaintiff, dragging and pulling him down,” from which he received and suffered a serious inguinal hernia on both sides; (2) that, if mistaken in the aforesaid alleged cause of his injuries, then he says the defendant, its agents, servants, and employés neglected, failed, and refused to furnish a sufficient force of men to do the work which plaintiff was required to do when hurt; that, in order to perform said work with safety, not less than four men should have been employed, when in fact defendant had only three men; that defendant knew, or by the exercise of ordinary care could have known, that said force of three men was wholly inadequate and insufficient to perform said work with safety, notwithstanding which defendant employed and furnished said inadequate and insufficient force to do and perform said work. The defenses pleaded were a general denial, and that plaintiff’s injury resulted from his own negligence and unfitness for the work in which he was engaged, which unfitness was due to his weak, sick, and diseased condition prior to and at the time he claims to have been injured; that he was engaged in interstate commerce; and that his injury resulted from a risk incident to the business he was engaged in and was assumed by him. A trial of the case resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,500, and, the defendant’s motion for a new trial having been overruled, it appealed.

The first assignment of error complains of the trial court’s refusal to instruct the jury at defendant’s request to return a verdict in its favor. The proposition advanced under the assignment is: “Where the evidence is undisputed that the plaintiff at the time he received his injury was engaged in interstate commerce, as employs of a common carrier by railroad, that the force furnished to handle a hand car, in connection with the moving of which he was injured, was insufficient to his knowledges before the injury, that he continued in the movement notwithstanding such knowledge, and the evidence respecting the proximate cause of the injury, if not undisputed, was such that ordinary minds could only reach the conclusion that the attempt to move the car with an. insufficient force was the proximate cause of the ■injury, the defendant, having pleaded that the plaintiff was engaged in interstate commerce, and assumed the risk of injury therefrom, is entitled to a peremptory instruction to the jury to return a verdict in its favor.” As has been seen, the plaintiff based his right of recovery upon two separate and distinct grounds of negligence: First, the negligence of appellant’s section foreman, under whom he was working, in shoving against him the hand car they were attempting to remove from the railroad track, and then dropping the end of the car in such a manner as to place or throw the great weight of the ear upon plaintiff; second, .in negligently failing to furnish a sufficient number of jnen to handle the car with safety. There was ample evidence to establish the first ground of negligence alleged, and, this being true, the peremptory instruction requested by defendant was properly refused, even though plaintiff might have been precluded from a recovery upon the second ground of negligence alleged by-the doctrine of assumed risk.

The plaintiff testified: “I received directions from the foreman, Hr. Riddle, with reference to moving that hand car off of there. I undertook to remove the hand car. The foreman, Mr. Riddle, and my father assisted me. The- foreman and I picked up one end of the car, and my father swung onto the opposite end. There is something built upon the hand car that stands up from it. They are the levers. The levers are in the center of the hand car. My father had hold of thet lever, and had his foot on the end of the car. He just took hold of the ear and swung back, with his foot on the end of the hand car pulling back, this way. I was on the northeast corner of the hand car. The road runs north and south there, and the ear was setting up and down the track. Mr. Riddle was on the northwest corner. We picked up the opposite end from my father. We lifted it and carried the end of it off the track. That end of the car should have been carried around eight or ten feet in order to remove it from the track. It should have been carried just half way around. We did not carry it halfway around. The foreman swung his part of it -and turned it loose. The hand car has got handles to pick it up by. He turned loose of the handle. When he turned loose the weight of the car went on me and hurt me in my side in the lower part of my bowels. I cap describe the way it felt. It was just a tear. It appeared to be a tear and hard pain; just like I had a knife in me. I was pitched over on the car. My father pushed the car off then. The foreman-made a statement there with reference to turning it loose. He asked me if it hurt me when he dropped the hand car on me, and I told him it did.”

G. W. Boring testified: “At the time my son got hurt he and Mr. Riddle, the foreman, were carrying the hand car around. They were on the north end of the car. Mr. Riddle had hold of the northwest corner, and my son had hold the northeast corner. Mr. Riddle was west of my son. When they started around I was a step or two from them, and I just hurried up and put my left foot on the car and took hold of the lever with my left hand to help them, and just about the time I got that done Mr. Riddle just gave it a jerk and turned loose, without saying a word; without saying he was ready or anything else. My son just kind of fell over on the car. When he turned it loose the north end of the car was kind of angling with the track, or when he made his swing to turn it loose it was kind of angling. It wasn’t around as far as he wanted it, and he-just made a little swing and turned all holds loose. They did not lift the whole car as they undertook to go around with it. They lifted one end. I had hold of the lever. I was pulling back on it to kind of take the weight off of them. They were lifting up on the front end, and I was bearing down on the other end. When he turned that loose-there the end that they had hold of just fell right down on the ground. My son just stood there with his hands on the car, and Mi-. Riddle just walked right around the ear and stopped, and I pushed it out on off, and I just turned around to the water keg to get. me a drink, and as I turned around there to the keg Mr. Riddle says, ‘Did I hurt you when I dropped the car on you?’ and he [plaintiff] says, ‘Yes.’ Mr. Riddle said that right there in just an instant after it happened. He said it looked like the Goddamned railroad was too short to furnish enough men to handle the hand car.”

The cases cited by appellant do not control a decision of the question here presented. The principle enunciated in them would probably be applicable to the facts alleged in the second count 'of plaintiff’s petition as a basis of recovery; but that phase or branch of the ease was not submitted to the jury, and hence in effect withdrawn from their consideration.

Appellant’s second and third assignments of error are submitted together, and the third complains of the court’s refusal to give the following special charge, namely: “Even if you believe from the evidence that defendant failed to furnish a sufficient number of men to handle the hand car at the time and place plaintiff claims to have been injured, and that defendant was guilty of negligence in so failing, yet if you believe that such failure and negligence was the sole cause of plaintiff being injured, if he was injured, you cannot find in his favor, and must return a verdict for defendant.” The proposition here is: “Where the evidence is undisputed that the-plaintiff at the time he received his injury was engaged in interstate commerce, as employe of a common carrier by railroad, that the force furnished to handle a hand ear, in connection with the moving of which he was injured, was insufficient to his knowledge, before the injury, that he continued in the movement, notwithstanding such knowledge, and the evidence respecting .the proximate cause of his injury, if not undisputed, was ample to sustain a finding by the jury that the attempt to so move the car was the proximate cause of the alleged injury, defendant,' having pleaded that plaintiff was engaged in interstate commerce, and assumed the risk of injury from such handling of the car, is entitled to a charge affirmatively submitting the issue to the jury.”

Ordinarily, where the plaintiff by his pleadings presents two causes of action or grounds of recovery, the withdrawing by the court of one of the causes of action from the consideration of the jury eliminates that alleged ground of recoyery and the defense set up against it, and complaint cannot be made that such defense was not presented in the court’s charge; and that the failure of the court to submit an issue to the jury has the effect to withdraw it from their consideration is well settled. Railway Co. v. McCarty, 82 Tex. 608, 18 S. W. 716; Thompson v. Field, 164 S. W. 1115, recently decided by this court, and not yet officially reported.

But, regardless of whether or not the action of the court in failing to submit to the jury the alleged failure of defendant to furnish sufficient men to handle the car in question with safety as a basis of recovery by plaintiff, there was no error in refusing the special charge under consideration. The testimony pointed out in appellant’s brief does not sustain its assignment of error and proposition to the effect that the evidence was sufficient to justify a finding by the jury, as authorized by the refused special charge, that the failure of defendant to furnish a sufficient number of men to handle the hand car at the time and place plaintiff claims to have been injured was the sole cause of plaintiff being injured. The testimony quoted in support of the contention is that of the plaintiff, his father, G. W. Boring, and appellant’s witness Gleason. The only testimony of the plaintiff that remotely bears upon the question is the statement that “a fair estimate of the weight of a car would be between 700 and 1,000 pounds,” and that of his father is of but little more probative force. In this connection he simply said: “If the three of us had been at the end of the car, there would not have been plenty of us to lift it off. I have seen' a few hand cars handled with three men at one end.” While appellants’ witness Gleason testified: “I am familiar with the hand ear that they had in use between Denison and Red River. It is a Sheffield ear. I would judge the weight of one of these cars to be about 800 pounds. I can put one of these cars off and on the track by myself, one end at a time. I weigh about 160 pounds. In handling the ear I do not pick up the whole car; I pick up one end of it and walk around and let the other end drag, derailing it, or else will roll it. I won’t say as to the exact weight of the car. I said it weighed about 350 pounds.” Clearly this testimony did not raise as an issue of the proximate cause of plaintiff’s injury the failure of the defendant to furnish a sufficient number of men to handle the hand ear with safety, much less that it was the “sole cause of plaintiff being injured.” It does, however, make plain the correctness of the trial court’s action in declining to submit as ground of recovery the alleged failure of defendant to furnish a sufficient number of men to handle the car, and leaves the fact that the proximate cause of plaintiff’s injury was the negligence of appellant’s section foreman in dropping the weight of the car upon the plaintiff as established beyond question by the other evidence in the case. 'At all events the evidence as a whole shows that, if the turning loose of the hand car by the section foreman and dropping the weight of it on plaintiff was not the sole proximate cause of plaintiff’s injury, such action on the foreman’s part was a concurring proximate cause thereof.

The fourth and fifth assignments of error challenge the correctness of the court’s action in refusing special charges requested by the defendant submitting as an issue of the proximate cause of plaintiff’s injury his alleged weak, sick, or diseased condition. The evidence did not call for or authorize the giving of either of these charges. As stated above, the evidence shows that the plaintiff’s injury was caused by the conduct of appellant’s foreman in negligently turning loose his hold of the hand car and thereby throwing the weight of the same upon plaintiff, and the evidence is wholly insufficient to show that the physical condition of the plaintiff contributed in any manner to the injury he received, and the special charges should not have been given. There is no evidence that plaintiff had suffered a rupture before the accident in question occurred, and the undisputed testimony of appellant’s physician, Dr. Bolen, affirmatively shows that, if plaintiff was in fact weak and diseased at the time he was injured, such condition had nothing to do with bringing about the injury of which he complains. This witness testified: That, where a man is situated as the undisputed evidence shows that plaintiff was situated, .and had the weight of a car thrust upon him in the manner that the undisputed evidence showed that plaintiff did, but one of two things could have produced the rupture; it was either a completion of a partial rupture before, or he was ruptured at the time of the accident. That an intelligent physician making an examination under these circumstances could arrive at no other conclusion. He further testified: “A man who was in a weakened condition would not be any more liable to suffer that sort of an injury than a man of robust strength similarly situated and placed. It would not make any difference. Sometimes a man who is very muscular from the very fact that he is muscular, a sudden strain put on him will cause the tenseness of those muscles to tear.” There was no evidence whatever that plaintiff had been ruptured prior to the accident in question.

Nor do we think the court committed reversible error under the circumstances shown, if error at all, in allowing the witness G. W. Boring to state that at the time of the accident resulting in injury to the plaintiff appellant’s foreman, Riddle, said: “It looked like the God-damned railroad was too short to furnish enough men to handle the hand car.” As contended by counsel for appellee, “an exclamation or statement made by one of the parties to a transaction resulting in injury at the time of the happening of such transaction, and having reference to its cause or to the conduct of the parties, is res gestae.” This statement and the time and circumstances under which it was made are testified to by the witness G. W. Boring. He said: “Mr. Riddle just walked right around the car and stopped, and I pushed it out on off, and he just held there with the car and walked backwards, and I just turned around to the water keg to get me a drink, and as I turned around there to the keg Mr. Riddle said, ‘Did I hurt you when I dropped the car on you?’ and he says, ‘Yes.’ Mr. Riddle said that right there in just an instant after it happened. I don’t suppose it was over a minute after he dropped the end of the car before he made this talk; maybe not that long; just long enough for me to push the car back and turn around back to the water keg on the other side of the track. He said it looked like the God-damned railroad was too short to furnish enough men to handle the hand car.” Plaintiff’s petition presented two grounds of recovery, one based upon the negligence of the foreman in handling the car, and the other upon the negligence of the railway company in failing to provide a sufficient force to handle the car with safety. At the time this testimony was offered and admitted, it was pertinent to the issue tendered by plaintiff’s pleadings that the defendant was guilty of negligence proximately resulting in plaintiff’s injury in failing to furnish a sufficient number of men to handle the car with safety. Plaintiff’s petition presented no question of interstate commerce, and no evidence had then been introduced tending to show that the parties were engaged in interstate commerce, nor was it then known that the evidence would be insufficient to entitle plaintiff to go to the jury on the issue of insufficient force. These things being true, the statement of the foreman was admissible as a part of the transaction itself. The profane expression used, and the fact that it was made in reference to the foreman’s employer, would in no manner, we think, affect its admissibility. We are of opinion, however, that, had a motion been made when it became apparent that the plaintiff must fail on the issue tendered of the insufficient force to handle the car, or when it was made known that such issue would not be submitted to strike out the testimony, such motion should have been sustained. Such .course on the part of the defendant or a requested charge to the jury to disregard the testimony was, under the circumstances, we thiqk, necessary to enable defendant on appeal to avail itself of the error in the admission of the objectionable testimony, and, neither course having been resorted to, we think it is in no position now to complain. At least it furnishes no sufficient ground to warrant a reversal of the case.

The seventh and eighth assignments of error, which are grouped, have been examined, with the conclusion reached that they disclose no good reason for reversing the case, and will be overruled, without discussion.

The verdict is sustained by the evidence, and, no reversible error being found in the record, the judgment is affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. HOWELL.
    (No. 1283.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 1, 1914.
    Rehearing Denied April 16, 1914.)
    1. Appeal and Error (§ 699) — Questions Reviewable — Record.
    Where the record does not show any requested peremptory instructions for appellant, an assignment of error to the refusal of the court to give a requested peremptory instruction must be overruled.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dee. Dig. § 699.]
    2. Evidence (§ 429) — Parol Evidence — Varying Written Instruments — Admissibility.
    Where, through mistake, fraud, or negligence, a ticket agent failed, without the knowledge or consent of a passenger, to incorporate into a ticket the real agreement between the parties, parol evidence was admissible to show the true contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1969-1971, 1973, 1974; Dee.. Dig. § 429.]
    3. Caeeiebs (§ 258) — Passengees—Tickets— Conteacts.
    Where a passenger ticket purports to be a contract ticket offered for a consideration of a reduced rate, the passenger is bound by its lawful stipulations.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1035, 1036; Dec. Dig. § 258.]
    4. Carriers (§ 252) — Passengers—Tickets— Contracts.
    Where a carrier authorized its agent to place on sale two kinds of return trip tickets containing different date limits, and established rates for each class of tickets, the carrier could not discriminate against a passenger by refusing to sell him a ticket of either class as he might demand.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1009, 1010, 1015; Dec. Dig. § 252.]
    5. Carriers (§ 252) — Passengers—Tickets— Contracts.
    A ticket agent authorized to sell two kinds of return trip tickets, with different date limits for the return trip, must issue a ticket providing for the time limit demanded by a passenger, and, where the agent inserts, without the fault of the passenger, an erroneous date limit for return, the passenger may recover the damages sustained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1009, 1010, 1015; Dec. Dig. § 252.]
    6. Carriers (§ 277) — Passengers—Tickets— Contracts.
    Where a passenger who contracted for a return ticket, good until October 31st for the return trip, received, without his knowledge, a ticket fixing the limit as September 15th for the return trip, and, on attempting to make the return trip after September 15th and before October 31st, he was compelled to pay cash fare, he could recover the amount of the cash fare, less any sum which he failed to pay to obtain a ticket with October 31st as the limit for the return trip.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.]
    7. Appeal and Error (§ 719) — Assignment of Error — Fundamental Error.
    The error arising from an award of excessive damages based on a mathematical computa-turn is fundamental, and will be considered on appeal, though there is no assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by W. H. Howell against the Chicago, Rock Island & Gulf Railway Company, From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    This is an action brought by appellee against the railway company to recover damages for wrongful failure to furnish him with a round-trip ticket from Dallas, Tex., to Seattle, Wash., correctly stating the terms of the contract in respect to the date of the return limit. There was a trial to a jury, and the verdict was in favor of appellee for $104.
    The substantial facts established by the evidence are that appellee and his wife desired to visit relatives in Seattle, Wash. With this trip in view, the husband, on June 4, 1911, went to the ticket office of appellant and inquired of the ticket agent as to the designated routing and price and return date limit of a round-trip ticket to Seattle. The ticket agent of appellant informed the husband that the appellant company had on sale two kinds of tickets having the same designated route from Dallas to Seattle and return, and explained to him the routing, price, and return date limit. When filled out one of the coupon tickets would fix the return date limit to September 15th after the date of the ticket, and the other ticket would fix the return date limit at October 31st. The price of the first ticket was set by the company at $70 for the round trip, and the second was set at $81.25 for the round trip. The husband returned to the ticket office on June 5th and inquired further concerning the tickets, routing, and date limit, and was informed thereof, as before, by the agent. Appel-lee testified that again on June 6th he returned to the ticket office and stated to the ticket agent that he desired to and would purchase two round-trip tickets over the designated routing which would provide for and fix the return date limit of October 31st, and the agent agreed to make out and sell him two round-trip tickets over the routing stated fixing the return date limit at October 31st, and that after the terms of the agreement were thus reached between them the agent proceeded to draw up the tickets, and after he had finished he handed them to appellee, who signed his name on one and his wife’s name on the other. This, appellee said, was at about 3 o’clock, and he and his wife were to prepare to leave on the train leaving at 6 o’clock following. He further said he did not read over the tickets before signing, and that the contents were not explained to him by the agent, and that he relied on the tickets exhibiting the full terms of the agreements as to the fixed date limit of return being October 31st. The appellee and his wife went on the trip, and on October 3d, intending to return, presented the tickets at the validating office, and were there informed that the tickets had expired as read from the face of the tickets. Appel-lee had not read the tickets, and this was the first time that he had actual knowledge that the return date limit appeared in the tickets as September 15th. The tickets were not honored, and appellee had to pay $104 railway fare for himself and wife back to his home over the same route. There is a conflict, however, between the evidence of appel-lee and of the ticket agent in respect to the agreement of fixing the date limit of return. The agent testifies that appellee selected the date limit of return of September 15th and asked him to fix that date in the tickets, stating that it was cheaper, and that he agreed to do so and did do so in accordance with the agreement. And the agent further says that he explained to appellee, before signing, that that date was in the tickets. Appellee denies the statement of the agent. This conflict was settled by the jury in favor of ap-pellee, and accordingly we adopt the finding of the jury.
    We make the findings of fact, as supported by the record, that on June 6, 1911, the appellant’s ticket agent contracted with appellee to sell and deliver to him two round-trip tickets from Dallas, Tex., to Seattle, Wash., over the particular routing therein, with the fixed return date limit at October 31, 1911, and that the ticket agent negligently failed to insert in the face of the tickets the true agreed fixed date of October 31, 1911. The tickets agreed to be sold and purchased were tickets fixed and authorized by the appellant to be sold alike to the general public over the designated routing and at the reduced price established by appellant. Appellee suffered the damages allowed by the jury, and the evidence warrants the amount.
    Lassiter, Harrison & Rowland and Bennett Hill, all of Dallas, for appellant. Wood- & Wood, of Dallas, for appellee.

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

   LEVY, J.

(after stating the facts as above).

The first assignment predicates error upon the refusal to give a requested peremptory instruction to the jury to return a verdict for appellant. As the record here does not contain or show any requested peremptory instruction, we cannot assume that one was presented and refused by the court, and the assignment must be overruled.

The second and fourth assignments, here considered together, predicate error in allowing the appellee to testify with reference to negotiations and terms of agreement between himself and the agent of appellant concerning the purchase of the two tickets, because the tickets furnished appellee were in writing and constituted written contracts, and such testimony had the effect to vary and contradict the written terms. The petition of appellee alleged that, through mistake, fraud, and negligence on the part of the ticket agent of the appellant, occurring without the knowledge or consent of appellee, there was failure by the agent to incorporate into the tickets the true and real agreement fixing the return date limit as October 31st. To support the allegations supplementary evidence is competent to show what was the real contract indicated by the tickets. Railway Co. v. Kinnebrew, 7 Tex. Civ. App. 549, 27 S. W. 631; Railway Co. v. Halbrook, 12 Tex. Civ. App. 475, 33 S. W. 1028; Railway Co. v. Wynn, 44 Tex. Civ. App. 29, 97 S. W. 506. The assignments are overruled.

The third assignment predicates error in submitting to the jury the issue as to whether the agreement between appellant’s ticket agent and the appellee was that the return date limit extend to October 31st. This point is based on the contention that parol evidence was inadmissible to modify or change the stipulation of the return limit of September 15th expressed in the face of the ticket. Under the pleading and the evidence there was an issue for'the jury, and the assignment is overruled. When the ticket purports to be a contract ticket offered under the consideration of reduced rates, it is not doubted that the passenger would be bound by its lawful stipulations. Railway Co. v. Lee, 104 Tex. 82, 133 S. W. 868. In that case the question was not what was the true contract within the authority of the agent to make between the company and Lee,, as is here, but whether the stipulation in the ticket offered of“(2) It will not be accepted for passage unless this contract is signed in ink by the purchaser and also by the agent for the issuing company” — could be varied or waived by an issuing agent having no authority to do so. The question presented by the facts in the instant ease is entirely dissimilar. Here the railway company had authorized the ticket agent to place on sale-two kinds of tickets — one to have and contain a date limit for return of September 15th, and the other of October 31st. Having-established the rates and time limit within-which the tickets should be used, and offering such character of contract tickets to the public for choice, the company could not lawfully discriminate against appellee by refusing to sell him a ticket under either contract according to his choosing of return dates. And the ticket agent in the proper performance of his duties for the company was clothed with the authority to agree on the part of the company with appellee in respect to-the issuance of a ticket providing the particular time limit within which the ticket-should be used. And if appellee made selection of the time limit of October 31st, as authorized by the company, it was incumbent upon the ticket agent to issue the ticket pro-Tiding such time limit. Haying shown by the evidence on his part a breach of the real contract between the appellant and himself occurring through the fault of the appellant’s agent, appellee was entitled to have the issue of what was the real contract submitted to the jury. This exhausts the extent of the assignment.

While the matter of excessive damages is not made the basis of assignment, yet we believe it is a matter of fundamental error here. The fares paid back home amounted to $104. To entitle appellee to an October 31st limit he was owing and should pay $162.-50, which was $17.50 more than the proof shows he paid. This $17.50 should be deducted from the $104, making appellant owing $86.50., A carrier is not authorized to sell for less than the established rate to all, and the passenger is required to pay the same fare paid by all. It is not lawful to contract otherwise. The judgment is therefore here reformed so as to allow appellee a judgment for $86.50, with interest, and as so reformed will be affirmed; but appellant, by reason of the error, should recover the cost of this appeal, and it is so directed.


author: KEY, C. J.

text:
    STATE v. HOUSTON BELT & TERMINAL RY. CO.
    (No. 5333.)

    (Court of Civil Appeals of Texas. Austin.
    March 18, 1914.
    Rehearing Denied April 15, 1914.)
    1. Commerce (§ 27) — Power to Regulate— Interstate Commerce.
    A domestic corporation operating terminal facilities and depots within the state and controlling the operations of such facilities, whose service consisted entirely of switching and transferring cars between points in and near a city for other companies, in furnishing freight and passenger depots, and in loading and unloading ears for other railway companies, which, for an agreed toll or rental, used its terminal facilities, though it did not participate in the through rate, and was not a party to the bills of lading, and though its charges did not come from a shipper, and were made directly against the other railroad companies upon a wheelage basis, was engaged in interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.]
    2. Commerce (§ 69) — Power to Regulate— Interstate Commerce.
    Rev. St. 1911, art. 7384, providing that every individual or domestic or foreign corporation owning or controlling any terminal companies or railroads doing a terminal business within the state shall pay an occupation tax equal to 1 per cent, of its gross receipts from all sources whatever, is not invalid as imposing a burden upon interstate commerce, as applied to a terminal railway company engaged in domestic and interstate commerce, since it does not impose a direct tax upon the gross receipts, but an occupation tax, levied for the privilege of exercising a particular occupation, and such a tax is valid,, though its amount is determined from the gross receipts.
    >[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 100, 113-119; Dec. Dig. § 69.]
    3. Commerce (§ 69) — Power to Regulate— Interstate Commerce.
    _ The state has power to levy a valid occupation tax upon the domestic business of a company owning and operating a terminal railway within the state and transacting both interstate and domestic business.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113-119; Dec. Dig. § 69.]
    4. Statutes (§ 188) — Rules of Construction-Meaning of Language.
    It is a cardinal rule of construction, incorporated into the statute law in the state, that the language of a statute must be given its usual and ordinary import, unless other language used by the. same Legislature indicates that another and different meaning was intended.
    [Ed. Note. — For other cases, 'see Statutes, Cent. Dig. §§ 266, 267, 276; Dee. Dig. § 188.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Civil action by the State against the Houston Belt & Terminal Railway Company. From a judgment for defendant, the State appeals.
    Reversed and rendered.
    B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Andrews, Ball & Streetman, of Houston, for appellee.

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

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

The state of Texas brought this suit against the Houston Belt & Terminal Railway Company, seeking to recover certain taxes alleged to be due under article 7384 of the Revised Statutes of 1911, which article is a portion of an act of the Thirtieth Legislature providing for the levy and collection of occupation taxes upon certain classes of persons and corporations.

The answer of the defendant, among other things, assailed the constitutionality of the statute referred to, and charged that it violated several provisions of the federal Constitution and of the Constitution of this state. The defendant is a domestic corporation.

According to the undisputed facts, if the statute referred to is valid, the state is entitled to recover $27,656.49 as taxes, and the further sum of $4,315.35 as interest. The pleadings filed by each party were sworn to, and the facts therein stated were not denied under oath, and therefore the trial court correctly held that the facts were as stated in plaintiff’s petition, and in the defendant’s answer, and we adopt that court’s findings of fact. As conclusions of law, the learned trial judge held: (1) That the defendant was a common carrier engaged in the transportation of interstate and foreign commerce; and (2) that the article of the statute referred to, and the act of the Legislature under which the suit Was brought, attempt to reach and tax the gross receipts of the defendant, from whatever source derived, including those from interstate commerce, and is therefore in contravention of the provision of the federal Constitution relating to interstate and foreign commerce; and for that reason the statute was held to he void, and judgment was rendered for the defendant, and the state has appealed.

The first complaint in appellant’s brief embodies the contention that the trial court erred in holding that appellee is a common carrier engaged in interstate and foreign commerce, and in that brief the facts bearing upon that point are summarized as follows: “It was not alleged that appellee and any other railroad company was under a common management and control, but appellee alleged that it was a corporation organized under the laws of Texas and maintaining its principal office in Houston, Tex., and there operating terminal facilities and depots, and that appellee ‘controlled’ the operations, etc. of such facilities. It did not participate in the through rate, nor was it a party to the bills of lading, etc., nor did its charges come from the shipper, but were made directly against the other railroad companies upon a wheelage, etc., basis, so much per car switched, etc. Its service consisted entirely of switching and transferring cars between points in and near Houston for other railroad companies, in furnishing freight and passenger depots, and in loading and unloading cars for other railroad companies at that place, and such other railway companies, for an agreed toll or rental used appellee’s terminal facilities.”

Conceding the facts to be as stated, upon the authority of United States v. Union Stockyards, etc., Co., 226 U. S. 296, 33 Sup. Ct. 83, 57 L. Ed. 226, we overrule the contention urged in'behalf of the state, and uphold the decision of the trial court upon that point. The case cited is quite analogous, and the points urged and the argument made by the Attorney General’s department in this case were fully considered and decided otherwise in that case.

As to the second ruling, we. have reached a conclusion at variance with that reached by the trial court, and the reasons for that conclusion will now be stated. On account of-that provision of the federal Constitution which confers upon Congress exclusive power to regulate commerce between the several states and foreign countries,' the Supreme Court of the United States, in-a long line of decisions, has held that it is not within the power of a state to- levy any tax the direct effect of which is to impose a burden upon interstate or foreign commerce. Within that hla’ss of eases are several striking down and 'declaring void certain state enactments held-by the Supreme Court to constitute a direct tax upon the gross receipts of interstate carriers, among which may be mentioned G., H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. 638, 52 L. Ed. 1031, and Meyer v. Wells Fargo Express Co., 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. 445. On the other, hand, and parallel with that line of decisions,' is a class of cases decided by ,the.; same high authority, and holding that.it is np violation of any provision of the federal Constitution for a state to levy and collect an excise or occupation tax upon a carrier engaged in domestic commerce, even though the legislation fixing the tax prescribes that the amount thereof shall be equal to a given per centum of the gross receipts of the carrier, and notwithstanding the fact that a portion of such receipts may be derived from transportation which constitutes interstate commerce. The leading case in support of that doctrine is Maine v. Grand T. Ry. Co., 142 U. S. 217, 12 Sup. Ct. 121, 163, 35 L. Ed. 994; and in the more recent case of United States Express Co. v. Minnesota, 223 U. S. 355, 32 Sup. Ct. 215, 56 L. Ed. 459, the court said: “The right of the state to tax property, although it is used in interstate commerce, j.s thoroughly well settled. Postal Tel. Cable Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 268, 360, 39 L. Ed. 311, 5 Interst. Com. R. 1; Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613, 3 Interst. Com. R. 595; Ficklen v. Taxing District, 145 U. S. 1, 22, 12 Sup. Ct. 810, 36 L. Ed. 601, 606, 4 Interst. Com. R. 79. The difficulty has been, and is, to distinguish between legitimate attempts to exert the taxing power of the state and those laws which, though in the guise of taxation, impose real burdens upon interstate commerce as such.”

In Maine v. Grand T. Railway Co., supra, the state statute levied an excise tax for the privilege of exercising its franchise in the state upon every corporation, person, or association operating a railroad within that state (Maine), and prescribed that the amount of tax should be equal to a per centum of the gross receipts of the railroad. The gross receipts referred to were derived in part from interstate commerce, but, notwithstanding that fact, the Supreme Court held that the statute was, in effect, an occupation tax, and did not place a direct burden upon interstate commerce; and in the course of the opinion it was said: “The court below held that the imposition of the taxes was a regulation of commerce, interstate and foreign, and therefore in conflict with the exclusive power of Congress in that respect; and on that ground alone it ordered judgment for the defendant. This ruling was founded upon the assumption that a reference by the statute to the transportation receipts and to a certain percentage óf the same in determining the amount of -the excise tax was, in effect, the imposition of the tax upon such receipts, and therefore an interference with interstate and foreign commerce. But a resort to those receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amount of the excise .tax which should be levied; and we are unable to perceive in that resort any interference with transportation, domestic or foreign, over the road, of the railroad company, .or any regulation of commerce which consists in such transportation. If the amount ascertained were specifically imposed as the tax, no objection to its validity would be pretended. And, if the inquiry of the state as to the value of the privilege were limited to receipts of certain past years, instead of the year in which the tax is collected, it is conceded that the validity of the tax would not be affected, and, if not, we do not see how a reference to the results of any other year could affect its character. There is no levy by the statute on the receipts themselves, either in form or fact; they constitute, as said above, simply the means of ascertaining the value of the privilege conferred.”

With the foregoing statement of certain established rules and principles, and quotations from pertinent cases, let us examine the statute involved in this case. The Thirtieth Legislature passed a law entitled “An act providing for the levy and collection of an occupation tax upon individuals, companies, corporations and associations, pursuing any of the occupations, viz.: Express companies; telegraph and wireless telegraph; gas; electric light, electric power or waterworks or water and light plant business; * * * the business of street railway companies, the business of interurban, trolley, traction or electric street railway companies, * * * the business of owning, controlling, managing or operating any terminal railway company or terminal railway,” etc. Act 30th Leg. (1st Ex. Sess.) c. 18.

Sections 1 to 15 of that act, in express terms, levy occupation taxes upon all individuals, companies, corporations, or associations owning, controlling, operating or managing a large number of specified private or quasi public enterprises, and section 16 reads as follows: “Each and every individual, company, corporation or association, whether incorporated under the laws of this or any other state or territory or of the United States, or any foreign country, which owns, controls, manages or leases any terminal companies, or any railroad doing a terminal business within this state, shall, on or before the first day of April, 1907, and quarterly thereafter, make a report to the comptroller of public accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or association showing the total amount of its gross receipts from all sources whatever within this state during the quarter next preceding, and the average market value thereof during said quarter. Said individuals, companies, corporations and associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for Uie quarter beginning on said date equal to one per cent, of the total amount of its gross receipts from all sources whatever as shown by said report.”

A portion of section 25 of that act is also deemed pertinent, and which reads as follows: “All persons, associations of persons, firms, and corporations upon whose business an occupation tax is imposed under this act, shall, upon the taking .effect hereof, be ex-, empted and relieved from the operation of the act of the 29th Legislature, approved April 17, 1905, being chapter 146 thereof, providing for the taxation of the intangible assets of certain corporations, associations and individuals, and all sections of the act of the 29th Legislature, being chapter 148, thereof approved April 17, 1905, imposing on (an) occupation tax upon the occupations, herein taxed are hereby repealed.”

Unless it should be held that the Legislature did not intend to levy an occupation tax, and used language indicating that it did so intend as a subterfuge, in order to place a direct tax upon gross receipts, then it seems to us that it must be held that the statute constitutes a valid exercise of state authority, and is free from the objection urged; and we do not feel called upon to thus impugn the motives and purposes of the members who constituted the Legislature and the Governor who approved the act. The proof shows that appellee owns and operates a terminal railway within the city of Houston, and that it transacts both an interstate and domestic business. Now, it cannot successfully be denied that the state has the power to levy a valid occupation tax upon the domestic business referred to; and the Supreme Court of the United States has held, and, as we understand, still holds, that a statute may prescribe that the amount of such occupation tax may be fixed as a given per centum upon gross receipts, including those derived from interstate commerce. It is a cardinal rule of construction, incorporated into statute law in this state, that, in construing a statute, its language is to be given its usual and ordinary import, unless other language used by the same Legislature indicates that another and different meaning was intended. Applying that rule to this case, it seems to us that it must be held that the tax in question was not intended as a direct tax upon gross receipts, but as an occupation tax, or a tax levied for the privilege of exercising a particular occupation; and, if such was the legislative intent and purpose, then the statute does not violate any provision of the federal Constitution.

Learned counsel for appellee insist that no material difference exists between this statute and the Texas statute which was construed by the Supreme Court in Galveston, H. & S. A. Ry. Co. v. Texas, supra. We are unable to concur in that view. That statute was not any portion of a law purporting to levy occupation taxes, did not designate the tax as an occupation tax, and used interchangeably the terms a tax upon gross receipts and a tax equal to 1 per cent, of the gross receipts. The Supreme Court of the United States and this court construed that statute as levying a tax directly upon the gross receipts, though tile Supreme Court of this state and a large minority of the Supreme Court of the United States held otherwise. That ease comprised one of a series of eases in this court involving the same question, and the reasons which induced this court to reach the conclusion that the statute there under consideration was not an excise or occupation tax, but a tax upon gross receipts, will be found in the opinions filed in the ease of Galveston, H. & S. A. Ry. Co. v. Davidson, 93 S. W. 436; and one of the strongest reasons was that, as originally presented to the Legislature, that law was entitled “An act levying an occupation tax,” and in its body the tax was designated as an occupation tax, which provisions so designating the tax were stricken out before the bill passed the Legislature, thereby indicating that the Legislature did not intend to levy an occupation tax. The enactment now under consideration is designated in its caption, and in almost every section, as an occupation tax law, and we find no sufficient reason to give it any other construction. It would seem to be inconsistent, if not absurd, to say that a state may lawfully levy an occupation tax, the amount of which is to be determined by gross receipts from whatever source derived, and then to say that, because the state has so framed its law as to accomplish that result, it must be held that it did not intend to levy an occupation tax, but that its purpose was to levy a direct tax upon gross receipts.

We also deem it proper to say that, in our opinion, there is much force in the contention of appellant’s counsel that the statute under consideration, in effect, levies a commutation tax, which method of state taxation has been held not to contravene the federal Constitution. Ficklen v. Taxing Dist., 146 U. S. 1, 12 gup. Ct. 810, 36 L. Ed. 601; Postal Telegraph Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 268, 360, 39 L. Ed. 311; McHenry v. Alford, 168 U. S. 651, 18 Sup. Ct. 242, 42 L. Ed. 614. While it is true that by section 22 it is declared that, except as therein stated, all taxes levied by the act should be in addition to all other taxes levied by law, it is provided by section 25.that all who are required to pay an occupation tax by reason of that law are to be exempted and relieved from the operation of a former law providing for the taxation of intangible assets. But for that provision, appellee’s intangible assets would be subject to taxation under the former law referred to, and therefore it would seem that it was the purpose of the Legislature, in the enactment of section 16 of the law referred to, that the tax therein levied should be in lieu of and as a substitute for the taxes which might otherwise have been collected under the former law. And, if such was its purpose, and the amount of taxes so levied by section 16 is not shown to be unreasonably more burdensome than the taxes from which appellee is relieved, it would seem that it should be upheld as a commutation tax, even if it be construed as a tax upon gross receipts. G., H. & S. A. Ry. Co. v. Texas, supra.

We deem it unnecessary to discuss any other question, and content ourselves with the statement that, after due consideration of all the questions involved in the appeal, our conclusion is that the statute under consideration violates no provision of either federal or state Constitution, and therefore it becomes our duty to uphold and enforce it.

In closing this opinion, it is deemed proper to express our satisfaction with the assistance which has been rendered by able counsel of the respective litigants, consisting of well-prepared briefs, and of concise and pointed printed and oral arguments.

For the reasons stated, the judgment appealed from is reversed, and judgment here rendered for appellant for $31,971.84.

Reversed and rendered.


author: HARPER, C. J.

text:
    UNDERWOOD et al. v. MIDLAND FURNITURE & HARDWARE CO. et al.
    (No. 323.)
    (Court of Civil Appeals of Texas. El Paso.
    April 9, 1914.)
    Appeal and Error (§ 387) — Jurisdiction— Filing of Appeal Bond.
    Where the appeal bond was not filed within 20 days after the adjournment of the trial court, as required by Rev. St. 1911, art. 2084, the appellate court acquired no jurisdiction, and the appeal must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. § 387.]
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by the Midland Furniture & Hardware Company and another against J. A. Underwood and another. From a judgment for plaintiffs, defendants appeal.
    Dismissed.

      A. S. Rollins, of Amarillo, for appellants. Earl Anderson, of Midland, for appellees.

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

   HARPER, C. J.

The appellee, the Midland Hardware & Furniture Company, filed this suit in the justice court of precinct No. 1, Midland county, where, upon trial, it secured judgment against the appellants, and they appealed to county court and filed appeal bond. Appellees filed motion to dismiss this appeal because the appeal bond was not filed in the county court within the time prescribed by statute.

The transcript of the county court shows that the term of the court at which the judgment was rendered, from which this appeal was prosecuted, adjourned on the 26th day of July, 1913. The appeal bond was filed August 21,1913. The bond not having been filed within 20 days after the adjournment of the trial court, as required by the statute, this court has no jurisdiction to hear and determine the case, and the appeal must be dismissed. Article 2084, Rev. Civ. Stat. 1911; Nash v. Noble, 52 Tex. Civ. App. 425, 114 S. W. 848; Simpson v. Baker, 57 Tex. Civ. App. 460, 122 S. W. 959.

Dismissed.


author: SPEER, J.

text:
    EPPLER et al. v. HILLEY.
    (No. 7900.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 28, 1914.)
    1. Courts (§ 169) — County Court — Jurisdiction — Amount Involved.
    Where, a justice court judgment in a garnishment case, including costs and attorney’s fees, exceeded $200, and was less than $500, the county court had jurisdiction to determine its validity in a suit to enjoin its collection.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    2. Justices of the Peace (§ 87) — Enjoining Collection of Judgment.
    A party to a garnishment proceeding in justice court, who appeared and controverted the truth of the garnishee’s answer, was bound by the judgment, and could have errors reviewed only by appeal or writ of error, and not by a suit to enjoin collection of the judgment, where the judgment was not absolutely void.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 295-305; Dec. Dig. § 87.]
    3. Justices of the Peace (§ 87) — Enjoining Collection of Judgment.
    A justice court judgment in a garnishment case was not void because of an alleged defect in the service of the citation in the original suit, since the validity of the judgment iu that suit was in issue and determined in the garnishment case; and hence collection of the garnishment judgment could not be enjoined.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 295-305; Dec. Dig. § 87.]
    4. Courts (§ 120) — County Court — Jurisdiction — Amount Involved.
    The county court had no jurisdiction to determine the validity of a justice court judgment for less than $200 in a suit to enjoin its collection.
    LEd. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 120.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Action by S. E. Hilley against M. T. Eppler and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    S. W. Bishop, of Gorman, and J. R. Stubblefield, of Eastland, for appellants. W. E. Vaught and M. J. Smith, both of Gorman, for appellee.

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

   SPEER, J.

M. T. Eppler recovered a judgment against S. F. Hilley in the justice’s court of precinct No. 5, Eastland county, for the sum of $150 and costs of suit. A writ of garnishment was issued in this cause against the First State Bank of Rochester, and the bank answered, admitting that it owed the defendant Hilley. This answer was controverted by the defendant, and the garnishment proceeding was transferred to the justice court of precinct No. 5, Haskell county, where the same was regularly tried and a judgment rendered in favor of the plaintiff against the defendant and the garnishee for the sum of $199.50, and the costs of suit. The defendant, Hilley, instituted this suit in the county court of Eastland county against the plaintiff M. T. Eppler and the garnishee, First State Bank of Rochester, for an injunction restraining the collection and enforcement of said judgments. There was trial before the court without a jury, and a decree entered in favor of the plaintiff, perpetually enjoining the collection of said judgments, and the defendants have appealed.

The judgment in the garnishment case, including costs and attorney’s fees, being in excess of $200 and less than $500, the county court of Eastland county had jurisdiction to determine its validity. Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S. W. 389; Dean v. State, 88 Tex. 295, 30 S. W. 1047, 31 S. W. 185; Arnold v. McNinch, 56 Tex. Civ. App. 555, 121 S. W. 904; Lyons Bros. v. Corley (Tex. Civ. App.) 135 S. W. 603.

It is undisputed that appellee was a party to this garnishment proceeding, and appeared in the case controverting the truth of the garnishee’s answer. He is therefore bound by the judgment entered, and his only remedy for errors committed was by appeal or writ of error regularly prosecuted, neither of which remedies he has pursued. The remedy by injunction cannot be made to take the place of such appeal. Of course, if the judgment in the garnishment case were absolutely void, appellee might attack it in the proper court, or even ignore it altogether, but there is nothing in the case to suggest that such judgment is void, since its alleged invalidity rests upon the fact that the judgment in the case out of which the garnishment proceedings arose is alleged to be void because the citation served on appellee was directed to the sheriff, or any constable of Comanche county, Tex., but was served by a constable of Eastland county. Necessarily the validity of appellants’ judgment against appellee was an issue in the garnishment case, for without a judgment in the parent case appellant would not be entitled to recover as he did in the garnishment ease. The validity of the Eastland county judgment was therefore determined in the garnishment case.

The judgment of the county court is consequently reversed, and, the facts being undisputed, judgment is here rendered in favor of appellants, dismissing the appellee’s cause of action. This order is made, however, without prejudice to the respective rights of the parties as to the, validity of the Eastland county judgment, since the county court of Eastland county had no jurisdiction to determine that question. See the authorities aboye cited.

Reversed and rendered.

CONNER, C. J., not sitting.


author: RICE, J.

text:
    UNDERWOOD v. JORDAN.
    (No. 5328.)
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.)
    1. Appeal and Error (§§ 690, 757) — Record —Matters Presented for Review.
    Error could not be predicated upon the admission of the testimony of witnesses claimed to be inadmissible under the pleadings, where neither the brief nor the bill of exceptions showed what the witnesses testified.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908, 3092; Dec. Dig. §§ 690, 757.]
    2. Sales (§ 130) — Actions for Rescission—Petition — Reliance on Representations.
    In an action by a purchaser of mares to rescind for false representations, a petition alleging- the representations that they were false, and that the purchaser gave faith and credit to them, and on account thereof was induced to enter into the contract, sufficiently alleged the purchaser’s reliance on the representations, and that they were a material inducement, to admit evidence as to the making of the representations.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.],
    3. Trial (§ 260) — Instructions—Repetition.
    It was not error to refuse a special charge which, so far as applicable, was covered by the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Sales (§ 38) — Rescission—Grounds—Misrepresentations .
    A buyer of horses induced to make the contract by reason of false representations was entitled to recover, in an action for a rescission, irrespective of any effort on his part to ascertain the truth of the representations.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]
    5. Sales (§ 130) — Actions por Rescission-Instructions.
    An instruction that, if defendant sold plaintiff two horses, and, as an inducement for plaintiff to purchase them, made false and fraudulent representations as to their qualities, if such representations were material, if plaintiff believed them and did not know, and could not by the exercise of ordinary care have known, whether they were true or false, and if they were made for the purpose of inducing the purchase, to return a verdict for plaintiff for a rescission and the amount of the purchase price was not objectionable as failing to charge that plaintiff must have relied upon the representations and have been damaged thereby.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.]
    6. Trial (§ 235) — Instructions—Effect op Presumptions.
    In an action to rescind a contract for fraud, an instruction that contracts are presumed to be fair, and not unlawful or fraudulent, and that the party who attacks them as fraudulent had the burden of proving the fraud by ' positive or circumstantial evidence, was properly refused, as it is improper to charge as to the effect of such presumption.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 539-541, 543-548, 551; Dec. Dig. § 235.]
    7. Trial (§ 240) — Instructions — Argumentative Instructions.
    Such charge was properly refused as argumentative, where the court had properly charged on the burden of proof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    8. Principal and Agent (§ 136) — Fraudulent Representations — Personal Liability op Agent.
    A seller of horses was not absolved from liability for fraudulent representations made by him, though he was acting as agent for another party.
    [Ed. Note.- — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. § 136.]
    Appeal from Lampasas County Court; M. M. White, Judge.
    Action by Robert W. Jordan against Jack Underwood. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Word & Walker, of Lampasas, for appellant. H. F. Lewis and J. C. Abney, both of Lampasas, for appellee.

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

   RICE, J.

On the 28th of May, 1913, appellant sold two mares to appellee for the sum of $290 cash, and this suit was brought by appellee against appellant for cancellation and rescission of said sale, or in the alternative for damages, alleging that appellant falsely and fraudulently represented said mareg to be sound, safe, and true pullers, and that they were five and’ eight years of age, respectively, and, believing said representations to be true, he was induced to purchase same.- After general demurrer and general denial appellant specially answered, admitting that he sold the animals, as alleged, to appellee, hut did so as agent for Crouch, the owner thereof, and denied that he had made any misrepresentations with reference thereto, but, on the contrary, that he told appellee that he had never seen said horses worked, but that Crouch had worked them. In a supplemental petition appellee alleged that appellant represented that he had traded for said mares, and that they belonged to him, and that he had no notice whatever that the same belonged to Crouch or any other person. There was a jury trial, resulting in a verdict and judgment for appellee rescinding •the contract of sale, and awarding judgment in his favor for the sum of $290; judgment was rendered in favor of appellant, however, for the mares, from which this appeal is prosecuted.

By the first two assignments it is urged that the court erred in' permitting Hodges and appellee to testify over appellant’s objection as to the representations and statements made by the latter to appellee at the time of the trade, on the ground that there was no allegation in the pleadings that appellee relied upon such representations, and that the same were a material inducement thereto. Neither the brief nor the bill of exceptions contained any statement as to what these witnesses testified, for which reason no error is shown. We differ with appellant, however, in his statement that the allegations of the petition did not warrant the introduction of the testimony complained of. The petition contained averments setting out the representations, stating that they were false, and that plaintiff gave faith and credit to them, and on account thereof was induced to enter into the contract, etc. This, we think, was amply sufficient to warrant the introduction of the testimony, and we therefore overrule each of said assignments.

We overrule the third assignment, because special charge No. 3, the refusal of which is complained of therein, so far as applicable, was covered by the main charge; and further because it stated .an incorrect proposition of law, to the effect that plaintiff could not recover in the event he failed to exercise ordinary care to ascertain the falsity of the statements made, as he had the right to recover, if he was induced to make said trade by reason of such false statements, irrespective of any effort on his part to ascertain the truth thereof.

The fourth assignment complains that the court erred in failing to charge that plaintiff must have relied upon the statements and representations of defendant before he could recover, and the fifth urges that the court erred in failing to charge that the plaintiff must have been damaged by the statements and representations of defendant before he was entitled to recover. We think the main charge in this respect not subject to the objections urged. It was as follows: “Now, if you believe from a preponderance of the evidence that on or about May 28, 1913, the defendant, Jack Underwood, sold to plaintiff two certain horses in consideration of the sum of $290, as alleged in plaintiff’s petition, and if you further believe from the evidence that, as an inducement for plaintiff to purchase the horses, defendant made false and fraudulent representations to him as to the qualities of said horses, as alleged, and that if said representations were material, and plaintiff believed them to be true, and did not know, and could not by the exercise of ordinary care have known, whether said representations were true or false, and that Underwood made such representations, if any, to 'said Jordan for the purpose of inducing him to purchase the horses, then you will return a verdict for him for rescission and for the sum' of $290.” We therefore overrule said assignments.

The court did not err, in our opinion, in failing to give appellant’s special charge to the effect that contracts are presumed to be fair, and not unlawful or fraudulent, and that the party who attacks them as fraudulent had the burden of proving the fraud by positive or circumstantial evidence, because it is improper to charge as to the effect of such presumption; besides, the charge was argumentative, and the court had properly charged on the burden of proof, for which reasons the sixth assignment is overruled.

Under the evidence appellee was not required to make any inquiry of Crouch with reference to the horses, but had the right to rely upon the statements of appellant with reference thereto, for which reason special charge No. 10 was properly refused. We therefore overrule the seventh assignment.

It would have been improper to charge, as appellant contends, on the question of agency as pleaded, because the proof failed to show any such agency; but, even if it had, we do not think appellant would be absolved from liability for fraudulent representations, if any, made by him. The eighth assignment is therefore overruled.

We have carefully considered the remaining assignments, and regard them without merit, for which reason they are all overruled.

The evidence amply sustains the verdict, and, finding no error in the proceedings of the trial court, its judgment is affirmed.


author: RAINEY, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McNATT.
    (No. 7101.)
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.
    Rehearing Denied April 25, 1914.)
    1. Carriers (§ 320) — Injury to Passenger— Taking Question from Jury — Testimony Physically Impossible.
    In an action for injuries to plaintiff’s wife, where the allegations of the complaint were established by the wife’s testimony alone, her testimony that she received serious and permanent internal injuries, which caused a miscarriage, when another coach or train came into violent collision with the coach in which she was a passenger, thereby throwing her against the arm of a seat, was not physically impossible, so as to require its rejection by the court and a directed verdict for the defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    2. Trial (§ 252) — Requested Instructions— Applicability to Evidence.
    In an action for injuries to a passenger, where the defendant pleaded contributory negligence, but there was no evidence to support that defense, it was proper to refuse a special charge requested by the defendant on that issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    3. Appeal and Error (§ 1060) — Harmless Error — Argument oe Counsel.
    Remarks by plaintiff’s counsel in his argument to the jury which he withdrew upon objection, were not prejudicial, where the size of verdict did not indicate that they in any way affected the jury.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]

      4. CARRIERS (§ 321) — Carriage oe Passengers — Instructions—Warning to Passenger.
    In an action for injuries to plaintiff’s wife, caused by an unusual jar to the coach in which she was a passenger, where there was no evidence that she had warning that a coupling was about to be made between coaches, an instruction which predicated a verdict for the plaintiff upon a finding, among other things, that the collision was without notice or warning was not erroneous, since she was not bound to anticipate the rough handling of the train.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    5. Appeal and Error (§ 1064) — Harmless Error — Instructions—Trivial Dbeect.
    An instruction, allowing plaintiff to recover for damages “suffered” by himself and wife by reason of injuries to the wife, is not prejudicial because of the use of the word “suffered” instead of “sustained,” since it would not cause a larger verdict to be rendered than otherwise would have been.,
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221 — 4224; Dec. Dig. § 1064.]
    6. Damages (§ 132) — Excessive Damages— Personal Injuries.
    A verdict of $1,500 for internal injuries to plaintiff’s wife, which resulted in a permanent displacement of her internal _ organs, and in a miscarriage and permanent disability, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by W. J. McNatt against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Evans & Carpenter, of Greenville, for appellee.

      For other oases 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

   RAINEY, C. J.

We find the statement of the case in appellant’s brief correct, which is as follows: “Appellee, W. J. McNatt, brought this suit in the district court of Hunt county against appellant, the St. Louis Southwestern Railway Company of Texas, to recover damages on account of injuries alleged to have been received by his wife, Lura McNatt, on the 19th day of February, 1912, while a passenger on defendant’s train from Et. Worth to Greenville, Tex. It was averred in the petition “that at Noel Junction, which is a station on defendant’s said line of railway, while the said train was stationary, and while plaintiff’s said wife was seated therein, the agents and servants in charge of another train or engine, or of the engine or some of the cars composing the train on which she was a passenger, caused or permitted such engine and car or cars to run against and collide with the coach in which plaintiff’s wife was. riding with great, unusual and unnecessary force, and without notice or warning to plaintiff’s wife, causing her to be thrown against the arm or some other part of the seat or car, injuring her, as hereinafter alleged; that at said time plaintiff’s said wife was advanced several months in pregnancy; that the aforesaid sudden, violent, and unanticipated movement of the train strained plaintiff’s wife in the small of the back, injuring, lacerating, stretching the spinal cord muscles, ligaments and nerves thereof, and strained, lacerated, and otherwise injured her ovaries, and especially producing prolapsus of the right ovary, and straining, lacerating, and otherwise injuring the womb, and female and pelvic organs, producing inflammation of the womb and ovaries, shocking and lacerating and straining her nerves and nervous system, causing her to suffer great physical and mental pain, which she then suffered, and has continued to suffer, since said date and will reasonably so suffer in the future; and she was thereby further caused to suffer great physical and mental pain, and especially bearing down pains in the back and pelvic region, find was threatened with miscarriage, which resulted in premature birth of the child, resulting in its death, and she has been rendered wholly unable to do or perform any labor, and she has been confined to her bed, and is still so confined; that her said injuries are permanent.” “Appellant urged a general demurrer and a number of special exceptions to the petition, which were overruled. Appellant interposed the general issue, and the plea of contributory negligence and assumed risk. The case was tried before a jury, and there was a verdict and judgment for appellee for $1,500.”

We find that the material allegations of plaintiff’s petition were established alone by the testimony of Mrs. McNatt.

Appellant complains of the failure of the court to instruct a verdict for defendant, as the evidence was insufficient to support the verdict. The proposition is submitted that “the testimony of a witness, uncontradicted by the statement of any other witness, should be rejected, if known physical situations or matters of common knowledge show that the witness is mistaken, or that the testimony cannot be true; and, where the verdict and judgment rest solely upon such evidence, and the lower court has refused a peremptory instruction, the appellate court should reverse such judgment.” We agree with counsel that if the evidence shows that it is a physical impossibility for Mrs. McNatt to have been injured in the manner as testified to by her, then the jury should have returned a verdict against appellee, but we do not view the testimony in that light. We cannot say that it was an impossibility for her to have been injured in the manner she testified she was hurt, and, this being so, it was peculiarly a question for the jury to determine whether they would accept her evidence or reject it.

The claim that Mrs. McNatt was suffering with the same troubles before she came to Texas that she now complains of is not conclusively shown, and there was evidence that she had recovered from any troubles she may have had, if any, before coming to Texas, and the evidence was such as to warrant the jury in returning the verdict they did.

The second and third assignments of error raise practically the same question we have just considered, and we will not consider them further.

The fourth and fifth assignments complain of the court’s refusal of a special charge on contributory negligence. There is no evidence that raises the issue of contributory negligence in our opinion, therefore no error in the court’s not giving said charge.

The sixth assignment complains of the remarks of counsel in his argument to the jury. We are of the opinion no injury resulted to appellant from such remarks. Upon objection the remarks were withdrawn, and the size of the verdict does not indicate that the remarks in any way affected the jury.

The seventh assignment of error complains of the third paragraph of the court’s charge, which reads: “If you believe from the evidence that on or about February 19, 1912, plaintiff’s wife was a passenger on one of defendant’s trains, and that at Noel Junction defendant’s employés in charge of one of its trains negligently caused a collision to occur between the coach in which she was sitting and another car or train of cars, with unusual and unnecessary force, without notice or warning to plaintiff’s said wife, and that such collision, if any, caused her to be thrown against the arm of the seat in which she was sitting, and injured her in any or all of the ways alleged in plaintiff’s petition, and that such acts or omissions, if any, on the part of said employes was negligence, as that term is herein defined, which proximately caused such injuries and damages, if any, you will find for plaintiff, unless you find for defendant under other portions of this charge.” The criticism is to the language of the court, “without notice or warning” to plaintiff’s wife, etc. We see no error in this respect. There was no evidence tending to show that Mrs. McNatt was apprised that the coupling would be made with unusual or unnecessary force, nor was Mrs. McNatt called upon to anticipate such rough handling of the train, and there is no error in the court’s charge.

The eighth assignment complains of the court’s charge on the measure of damages, which is: “If you find for plaintiff you will allow him such sum as will fairly and reasonably compensate him for the damage, if any, suffered by himself and wife by reason of said injuries, if any; and, in this connection, you may take into consideration physical and mental pain suffered by Mrs. McNatt, if any, and that she will suffer, if you find from the evidence that she will continue to suffer, and diminished capacity, if any, of plaintiff’s wife to perform work and labor.”

If the court had used the word “sustained” in place of the word “suffered” in the third line of said charge, there could have been no room for criticism. He did sustain damages for the injuries his wife received, and could recover damages for his wife’s pain and suffering, both mental and physical; also for diminished capacity of his wife to perform work and labor. We are of the opinion that the charge as written did not cause a larger verdict to be rendered by the jury than would otherwise have been.

The ninth assignment complains of the verdict as excessive. If the testimony of Mrs. McNatt is true as to the injury and her suffering, the appellant is fortunate in getting off so light.

We think there is no merit in the tenth assignment of error, and it is overruled.

The judgment is affirmed.