author: CONNER, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. LOFTIS et ux.
    (No. 8249.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 30, 1915.)
    1. Railroads <&wkey;398 — Injuey- to Person on Tbacks — Discovery otp Peril by Train Crew — Sufficiency of Evidence.
    In an action against a railroad for death of plaintiffs’ minor son, struck by defendant’s train while walking on the track, evidence held to authorize finding that defendant’s engine crew discovered the child on the track, unaware of the approaching train, in time to have avoided the death.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <&wkey;> 398.]
    3. Railroads <&wkey;390 — Injury to Person on Tracks — Contributory Negligence — Immateriality.
    Where defendant railroad’s engine crew was guilty of negligence, proximately resulting in the death of one walking along the track, after their discovery of the peril, it was immaterial that such person was guilty of contributory negligence in entering upon the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.]
    3. -Railroads <&wkey;400 — Injury to Person on Tracks — HiGn Rate oe Speed of Engine-^ Question for Jury.
    In an action against a railroad for the death of plaintiffs’ minor son, struck by locomotive while walking on defendant’s tracks, question whether defendant negligently operated its engine at a high rate of speed held for the jury under the evidence.
    [Ed. Note. — F'or other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by W. F. Loftis and wife against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    ■Lassiter, Harrison & Rowland, of Ft. Worth, and MeMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, and H. E. Lobdell, of Bridgeport, for appel-lees.
   CONNER, C. J.

This suit was instituted by W. F. Loftis and May Loftis to recover damages for the death of their minor son, Denny Loftis, who it was alleged had been run over and killed by one of appellant’s locomotive engines in August, 1912. On a former appeal judgment in appellees’ favor was reversed, on the ground that the evidence was insufficient to warrant the submission of the issues of negligence in operating the engine at an excessive speed and. without keeping a proper lookout. See C., R. I. & G. Ry. Co. v. Loftis, 168 S. W. 403. On the last trial the issue of a failure on the part of the operatives of the engine to keep a proper lookout was not submitted; the case being submitted on the issues of contributory negligence on the part of deceased, and of negligence on the part of appellants servants in operating the engihe at a dangerous rate of speed, and in failing to exercise due care to avoid injury after discovering that Denny Loftis was in a situation of peril. From a judgment on these issues in apellees’ favor, appellant has again appealed.

As submitted to us for revision, only three contentions are made. They are, first, that there was no evidence to warrant the submission to the jury of the issue that the defendant negligently operated the engine at a high rate of speed; second, that the deceased was guilty of contributory negligence; and, third, that there is no evidence to warrant the submission to the jury of the issue of the defendant’s negligence after the discovery of the peril of deceased. In the view we have taken of the case, the controlling question relates to the issue of discovered peril, and we will therefore address ourselves to it first.

In a general way the evidence shows that appellant’s line of railway extends in a southeasterly and northwesterly direction through the town of Bridgeport, in Wise county. Bridgeport is a town of some 2,500 inhabitants, living on either side of the railway, and divided, as designated in the testimony, into East and West Bridgeport. There is a passenger depot about midway of the town, with crossings substantially at right angles with the railway, both north and south of the passenger depot. South of the passenger depot, several hundred feet, is situated a freight depot. Erom a point a short distance north of the upper or northern crossing, one or more switch tracks leading to the right diverge from the main line. It appears that on the day of the injury the deceased, who was about 13 years old, approached the railway tracks from the east and along the crossing south of the passenger depot. When he arrived upon the main track, the more easterly one, he turned south and continued to walk between the rails until he was overtaken by the engine that ran over him. The operatives of the engine had been engaged in some switching north of the crossing on the north side of the passenger depot, and the engine had been attached to some five or six heavily loaded cars, and was backing south along the main track at a speed of some 10 or 12 miles per hour. The engineer was on the east or right-hand side of the engine, with his face to the north, looking for signals from the conductor, located at a switch stand beyond him. The fireman was on the west or left-hand side of the engine, with his face to the south, looking, as he testified, for objects that might he upon the track.

There was evidence tending to show that, when the backing train reached a point about opposite the northern end of the passenger depot, the fireman saw the deceased approaching the track south of the passenger depot, and when but a few steps from it, with his head down and without apparent knowledge of the train’s approach; that a moment later, as the deceased turned down the track, he called to the engineer to blow the whistle, as there was a man on the track; that the engineer, upon the first call, appeared not to understand what the fireman had said, but, on the call being repeated, the engineer immediately blew the whistle, this occurring at a point when the engine was about opposite the center of the passenger depot and from 130 to 200 feet from the point where the deceased was overtaken. The engineer and fireman both testified that immediately upon the blowing of the whistle the engineer reversed his engine and applied the air brakes thereon, with which alone the train was supplied, and did all that could be done in order to avoid the injury. There was other testimony, however, from witnesses at near-by points, who were alarmed at the situation of the deceased and in a situation to observe, and who testified that they did observe, that there was no diminution or slacking of the train’s speed until just before the tender of the engine struck the deceased. There was evidence further tending to show that the engine and train could have been stopped, at the rate of speed it was going, within a distance from 130 to 200 feet, but that it did not in fact stop until after it had gone about that distance after it struck the deceased.

From what the evidence shows that the fireman said and did, the outcries of alarm on the part of some sectionmen along the track just south of where the deceased was struck, and other circumstances, we think the jury were authorized to draw the conclusion that the operatives of appellant’s engine discovered that the deceased was on the track, in a perilous situation and without a consciousness of the approaching train, in time in all probability to have avoided the serious consequences which resulted, had they in fact exercised that high degree of care which the law required of them under the circumstances. Sanches v. Railway Co., 88 Tex. 117, 30 S. W. 431; T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410. The evidence tends to further show that, when first struck, the deceased was not immediately killed, but either he or some part of his clothing caught upon some of the rods or projections of the tender, and that he was dragged along the track for some time before he finally fell and was run over, and as it seems to us in the interest of the preservation of human life we may lawfully draw the inference, as the jury may have done that, had the operatives of the engine in fact done all that they could have done to have stopped the train immediately upon the discovery of the deceased’s peril, the final result would not have been the actual loss of life, though possibly it may have resulted in some injury. See N. T. Traction Co. v. Mullins, 44 Tex. Civ. App. 566, 99 S. W. 433, and cases there cited. On the whole, therefore, we are of the opinion that there was no error on the part of the court in submitting the issue of discovered peril, and that it cannot be said that the evidence is insufficient to sustain the verdict and judgment in ap-pellees’ favor on that issue. All assignments, therefore, presenting these ’ questions, are overruled.

The remaining questions, we think, may be briefly disposed of. If the operatives of appellant’s locomotive engine were guilty of negligence proximately resulting in the death of Denny Loftis after the discovery of his peril, it is wholly immaterial, as has been often determined, that Denny Loftis was guilty of contributory negligence in entering upon thé track. See Sanches v. S. A. & A. P. Ry. Co., 88 Tex. 117, 30 S. W. 431; M., K. & T. Ry. Co. v. Ferris, 23 Tex. Civ. App. 215, 55 S. W. 1119.

To tlie remaining contention, raised in several forms by the assignments of error, to wit, “that there was no evidence to warrant the submission to the jury of the issue that the defendant negligently operated the engine at a high rate of speed,” we cannot assent. In addition to what we have stated as to the situation of Bridgeport, the number of its inhabitants, the load of the train, the absence of brakes, except upon the engine, the backing of the engine with the tender forward, etc., it was further shown that inhabitants of the town of Bridgeport habitually and frequently walked on and along the track of the railway hereinbefore described, and that the engine at the time was being propelled along a downgrade. In the light of all of these circumstances, we feel unable to say that there was “no evidence to warrant the submission of the issue,” and this is the specific objection made.

All .assignments, therefore, raising, the question, are overruled, and the judgment'is affirmed.
      <@u=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    GONZALES v. GARCIA.
    (No. 5518.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.)
    Frauds, Statute or <&wkey;23 — Promise to Answer for Another’s Default — Original or Collateral Promise.
    Where a Mexican colonel, desiring the services as soldier of a person under indictment, induced plaintiff to sign such person’s hail bond as a surety, by promising to pay any sums for which plaintiff might become liable on account of the forfeiture of the bond, the contract was an original one, not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. <&wkey;23.]
    Appeal from District Court, Webb County j J. F. Mullally, Judge.
    Action by Pilar Garcia against Clemente G. Gonzales. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. Winslow, of Laredo, for appellant. Wilmer Threadgill, of Laredo, for appellee.
   FLY, C. J.

This is a suit, instituted by appellee against appellant, for the recovery of $278.40. The case was tried before the court without a jury, and judgment was rendered for appellee against appellant for the sum of $253.46.

The only point in the case is as to whether appellant is responsible to appellee on an oral promise made by him to appellee to reimburse him for any sums that hei might pay out on account of the forfeiture of a bail bond by Maximo Martinez, who was under indictment. Appellee was induced, by the promise of appellant to pay any sums for which he might become liable on account of the forfeiture of the bond, to sign the bond as a surety. The bond was forfeited, and ap-pellee was compelled to pay the amount of it.

Appellant pleaded, among other things, the statute of frauds, in that the promise made by him to appellee was not in writing. The contract was an original one between appellant and appellee; the consideration being that appellant, who was a colonel among the Mexicans, desired Martinez’s services in Mexico as a soldier. The contract did not come within the purview of the statute of frauds, and appellant, upon the forfeiture of the bond and the payment of the amount of it by appellee, was liable to him for that amount. Porter v. Norman, 136 S. W. 1173; Spencer v. Nalle, 143 S. W. 991; Ferrell v. Millican, 156 S. W. 230.

The judgment is affirmed.


author: WALTHALL, J.

text:
    McLAUGHLIN v. TERRELL BROS.
    (No. 474.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 28, 1915.
    Rehearing Denied Nov. 18, 1915.)
    1. Sales &wkey;>355 — Action for Price — 'Variance.
    Where, in an action to recover for wood sold, the petition alleged in the first paragraph that defendant agreed to purchase from plaintiffs certain cars of wood, and in the second paragraph alleged that, in pursuance of the contract, plaintiffs sold and delivered to defendant 10 cars of wood, aggregating 185 cords, evidence that plaintiffs had contracted with defendant to ship him 450 cords of wood was not at variance with the contract pleaded.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. &wkey;355J
    2. Sales <&wkey;181 — Action fob Price — -Evidence — Immateriality.
    In an action to recover for certain cars of wood contracted by plaintiffs to be sold defendant f. o. b. A., the exclusion from evidence of freight bills of the railroad company, offered to show the number of cords of wood contained in each of the 10 cars received by defendant at H., was proper, in the absence of a denial of the allegation of the petition that delivery was to be made f. o. b. cars at A., it being immaterial what number of cords of wood were in the cars on their arrival at H.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. &wkey;181.]
    3. Evidence <&wkey;318 — Materiality—Basis1 of Probative Force.
    In an action for wood sold f. o. b. cars at A., in the absence of evidence as to the correctness of the statement in freight bills of the railroad as to the number of cords of wood on arrival at H., the exclusion of such bills was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dee. Dig. <&wkey;>318.]
    4. Evidence ¡&wkey;158, 318 — Best Evidence — Hearsay — Book.
    In an action for the price of certain cords of wood sold f. o. b. cars at A., and transported to the buyer at H., who claimed to have received less than plaintiffs sued to recover for, a copy of the American- Railway Equipment Register, there being testimony that it was in general use among railways in the United States, as to the capacity of freight cars, supported by testimony of a witness of experience that he knew that the facts stated in the journal were correct, was admissible in evidence to show the capacity of the 10 cars containing the wood.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 472. 473, 474%-504, 506-526, 1193-1200; Dec. Dig. &wkey;15S, 318.]
    5. Evidence <§t=o318— Hearsay— Memoban-dtjm.
    In an action to recover for cords of wood sold f. o. b. cars A. and delivered to defendant at H., where the American Railway Equipment Register was admissible to show the dimensions of the ears which contained the shipment, a memorandum, excerpting from such register the dimensions of the particular cars carrying the shipment, testified to be a copy of their dimensions as given in the register, was admissible in evidence to conserve time and to avoid looking up in the register the statement as to the capacity of each individual car.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. &wkey;318.]
    6. Trial <&wkey;273 — Instructions—Objections.
    Under Rev. St. 1911, art. 1971, as amended by Act 33d Leg. c. 59, providing that the charge shall be in writing, signed by the judge, and submitted to the parties for inspection, that objections thereto shall be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered waived, an objection to a paragraph of the charge, not made and presented to the court before the charge was read to the jury, was waived.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 680-682; Dec. Dig. &wkey;273.]
    7. Sales <&wkey;181 — Delivery of Quantity Specified — Sufficiency of Evidence.
    In an action to recover for a shipment of wood sold f. o. b. cars at A. and delivered at H., defendant claiming the shipment contained 132 cords only, plaintiffs claiming it contained 185, evidence on the point held sufficient to support verdict for plaintiff.
    IEd. Note. — Eor other eases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. <@¿3181.]
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Action by Terrell Bros, against J. M. McLaughlin. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Geo. A. Byers and R. M. Love, both of Houston, for appellant. Hunt, Myer & Tea-gle and Rodman S. Cosby, all of Houston, 'for appellees.
   WALTHALL, J.

This is a suit brought by appellees, E. H. and A. P. Terrell, a copart-nership firm of Terrell Bros., of Navasota, Grimes county, against J. M. McLaughlin, doing business as Texas Wood Company, at Houston, Tex. Plaintiffs alleged that on or about November 13, 1913, plaintiffs and defendant entered into a contract, by virtue of which defendant agreed to purchase from plaintiffs certain cars of wood f. o. b. cars Allenfarm, Tex., at the agreed price of $2.75 per cord; that in pursuance of said contract, plaintiffs, within two or three weeks thereafter, sold and delivered to defendant 10 ears of wood, aggregating 185 cords at the agreed price per cord, amounting to $508.75, more fully shown and set forth in the attached account, itemized and verified and made an exhibit and part of the petition. Defendant answered by general and special demurrer, denied the correctness of each item of plaintiffs’ itemized account, as to the amount of wood contained in each car, and attached to his answer an itemized account, which he alleged contained a true and correct statement of the number of cords of wood contained in each car, and further answered that, on the date alleged, the contract between plaintiffs and defendant was that plaintiffs agreed to ship him about 150 cords of dry wood and 300 cords of green wood, all to be first-class Brazos river bottom wood, for which he agreed to pay $2.75 per cord. That the wood shipped by plaintiffs and received by him was not first-class, but instead was small, rotten, limby, trashy wood, and alleged the value of the wood shipped to him to be worth in the open market not more than $1 per cord, which amount defendant in his answer tendered and offered to pay. Defendant alleged that the quantity of wood shipped to him under said contract was not 185 cords as alleged, but was 132 cords. Defendant alleged that by reason of the failure of plaintiffs to ship the grade of wood contracted, he had sustained damages to the extent of $100, which he asked to be deducted from the amount admitted to be due for the wood received. Plaintiffs filed a supplemental petition containing a general and special demurrer to the answer, and specially denied the allegations contained in each paragraph of the answer. The court instructed the jury as follows:

“The plaintiffs are entitled to recover for so much wood as you may believe from a preponderance of the evidence was actually loaded into the 10 cars in controversy at Allenfarm, and delivered to the railroad for shipment to defendant at a price as follows;
“If you believe from a preponderance of the. evidence that said wood was of the kind and grade which plaintiffs agreed to furnish to defendant, then the price which plaintiffs are to recover is the contract price, to wit, $2.75 per cord.
“If you do not believe from a preponderance of the evidence that the wood was of the kind and grade which plaintiffs agreed to furnish to defendant, then the price which plaintiffs are to recover is the market value at Houston, Tex., .of wood of the kind and grade which plaintiffs furnished defendant in said 10 cars.”

The jury returned a general verdict in favor of the plaintiffs in the sum of $500.50j on which the court rendered judgment for plaintiffs for the sum of $500.50 and interest at the rate of 6 per cent per annum from the 30th day of July, 1913, and for costs of suit. Defendant filed a motion for a new trial, which the court overruled, and defendant gave notice and perfected his appeal.

Defendant’s first assignment of error is to the action of the court in overruling defendant’s motion to strike out and exclude from the consideration of the jury the evidence of A. P. Terrell, to the effect that plaintiffs had contracted with defendant to ship him 450 cords of first-class river bottom wood, on. the ground that said evidence was at variance with the contract pleaded by plaintiffs. An inspection of the record fails to show a variance. The allegation in the first paragraph of the petition, as stated above, is that “defendant agreed to purchase from 'plaintiffs certain cars of wood” at the price and place named. In the second paragraph of the petition, in stating the quantity of wood delivered and for which they sue, plaintiffs allege:

“That in pursuance of said contract, plaintiffs * * * sold and delivered to said defendant 10 cars of wood, aggregating 185 cords.”

The evidence offered and heard by the court on the part of plaintiff's as to the quantity of wood delivered would not be at variance with the contract pleaded. The assignment is overruled.

The proposition contained in the second assignment of error is that the court should have instructed a verdict for defendant on the ground that the plaintiffs pleaded a contract for the sale and purchase of 185 cords of wood at $2.75 per cord, f. o. b. Allenfarm, whereas the evidence discloses a different Contract. For the reasons stated-in disposing of the first assignment, this assignment is overruled.

The trial court refused to admit as evidence, over objection, the original freight bills of the railroad company to show the number of cords of wood contained in each of the 10 cars received by the defendant, and this action of the court is made the grounds of appellant’s third assignment of error. The court was not in error in excluding the freight bills as evidence of the number of cords of wood in the cars. It was immaterial what number of cords of wood were in the cars at Houston on a contract to deliver the wood at Allenfarm, in the absence of a denial of the allegation that the delivery was to be made f. o. b. cars at Allenfarm. Richard Coche & Co. v. Big Muddy Coal & Iron Co., 155 S. W. 1019. Again, we think there ■was no error in excluding the freight bills in the absence of evidence as to the correctness of the statement in the freight bills as to the number of cords of wood in the cars. A. B. Patterson & Co. v. Railway Co. et al., 126 S. W. 336. The assignment is overruled.

We think there was no reversible error in admitting in evidence, over the objection that it was not the best evidence, was irrelevant, immaterial, and hearsay, a copy of the American Railway Equipment Register, a journal purporting to be published by authority of the Interstate Commerce Commission, and especially after the evidence of the witness Shepherd as to its general use among railways in the United States, as to the length, dimensions, and cubic capacity of freight cars used to transport freight, and after the evidence of said witness that from his own personal knowledge the facts stated in said journal were correct and true. The measurement of the ears made by appellant show the capacity of the cars to be about of the same capacity as the register. The testimony amounts to no more than that the witness was testifying to things within his own knowledge. Smithers v. Lowrance, 35 Tex. Civ. App. 25, 79 S. W. 1088.

The fifth assignment is to the admission of a memorandum as to the dimensions of the cars reflected by the American Railway Equipment Register. The witness Terrell testified :

“Myself and Roland Smith cheeked these figures as shown there as to the dimensions of the cars reflected by the register. The dimensions as shown by that register and the dimensions as shown by this memorandum are the same, that is, with the exception of one car [giving the number] which is an old series. I wrote to Mr. - in regard to the dimensions of this car.”

The memorandum was identified by the witness and admitted in evidence. The contents of the memorandum was as to the initials on the 10 cars, their length, width, heighth, cubic capacity of the cars, as reflected by the register. If we are right in our conclusion that the contents of the register as to the capacity of the cars was admissible, we think that the admission as! evidence of a memorandum made and its correctness, testified to by the witness as to the markings of the 10 cars, would not be error. The memorandum, as testified to, contained the same data as the equipment register, and was evidently admitted to conserve time, and to avoid looking up in the register the statement as to each individual car. The cases to which we are referred by appellant as sustaining his position, holding that the memorandum made was hearsay, are where the witness had no personal knowledge of the correctness of the entries made. Here the witness himself checked and testified to the correctness of the figures as shown by the register. It was simply a short and concise method of getting before the jury the statement contained in the register. The assignment is overruled.

The court was not in error in refusing to peremptorily instruct a verdict for the defendant, as claimed in the sixth assignment. This assignment is based on the statement that the contract was for the sale and delivery of 450 cords of wood, f. o. b. ears at Al-lenfarm, while the contract pleaded was for 185 cords. We have heretofore expressed the construction we place on the contract made and pleaded, and we need not again restate it. The assignment is overruled.

Complaint is made in the seventh assignment to the third paragraph of the court’s charge, in which the court instructed the jury as follows:

“If you do not believe from a preponderance of the evidence that the wood was of the kind and grade which plaintiffs agreed to furnish to defendant, then the price which plaintiffs are to recover is the market value at Houston, Tex., of wood of the kind and grade which plaintiffs furnished in said 10 cars.”

The record does not show that objection was made and presented to the court, as required by article 1971, Rev. 'Stat. as amended by chapter 59, 83d Leg. p. 113. The assignment is overruled.

In the eighth assignment, the appellant contends that the verdict of the jury is against the preponderance of the evidence, in that the testimony of the witness Terrell shows that the method by which the amount of wood shipped to appellant was by calculating the capacity of the cars from the American Railway Equipment Register, and estimating the quantity of wood therein, while the direct and positive testimony of appellant who measured the wood in the cars was that they contained 132 cords, and not 185 cords. The statement in the assignment as to the method of estimating the quantity of wood in the ears at Allenfarm, that is, by cubic capacity of the cars from the Equipment Register, is borne out by the statement of facts. The measurement of the wood in the ears by appellant was made at Houston. The defendant’s answer nowhere denies that 185 cords of wood were placed in the cars at Allenfarm, nor that any measurement of the wood was made at Allenfarm, other than that estimated by the said register. The testimony of the witnesses who loaded the cars at Allenfarm is that the cars were loaded to their full capacity. We believe that the evidence is sufficient to establish the fact, at least prima facie, that 185 cords of wood were put in the cars at Allenfarm; and, conceding it to be a fact that only 132 cords were found in the cars at Houston would not be such preponderance of the evidence as should cause a reversal. The amount found by the jury does not show that their verdict was influenced by the remark of counsel, and we overrule the ninth assignment.

The error in the judgment as to interest was evidently clerical, and has been corrected and remittitur filed in the trial court, and requires no further mention.

Finding no reversible error, the judgment is affirmed.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. DALE BROS. LAND & CATTLE CO.
    (No. 8241.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 16, 1915.)
    1. Appeal and Error &wkey;>1050 — Harmless Error — Evidence—Admissibility.
    In an action for negligence in transporting live stock, the plaintiff’s witness was permitted to say that he had never heard anything about the fact that a certain train did not run on Sunday. The defendants objected on the ground that the answer was immaterial. Held, that admission of the testimony was not prejudicial error, even if immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;>1050.]
    2. Evidence <&wkey;3G6 — Government Reports —Live Stock — Table op Shrinkage — Authentication.
    In an action for damages for negligent transportation of stock, it is not error to exclude tables of the Department of Agriculture and by the Texas Cattle Raisers’ Association as to tests of shrinkage of stock in transportation, where there is nothing to show that they are accurate, authentic, or that the tests embraced therein were made under similar conditions.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. &wkey;366.]
    3. Evidence <&wkey;383 — Public Documents — Weight.
    A pamphlet or other document, purporting to have been used by the government or under the authority of some department of the government, has, prima facie, no more weight as evidence, nor greater authenticity or verity, than documents issued by other authority.
    [Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. &wkey;383.]
    4. Carriers <S=o228 — Carriage oe Live Stock — Evidence—Sufficiency.
    Evidence, in an action for damages for negligent delay in transportation of live stock, held sufficient to sustain a verdict for the plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;22S.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by the Dale Bros. Land & CM,tie Company against the Missouri, Kansas & Texas Railway Company of Texas and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    C. C. Allen and Arnold & Taylor, of Henrietta, for appellants. Wantland & Parrish, of Henrietta, for appellee.
   BUCK, J.

Appellees, Dale Bros. Land & Cattle Company, filed this suit in the county court of Clay county against the appellants, Missouri, Kansas & Texas Railway Company of Texas and the Missouri, Kansas & Texas Railway Company, alleging the shipment by the plaintiffs, over the defendant companies’ lines, of 105 steers from Henrietta, Tex., to the National Stockyards, Ill., said shipment leaving its point of origin July 5, 1914, and reaching its destination on the morning of July 9th. Plaintiffs alleged injuries resulting from delay, rough handling, and failure of the cattle to reach their destination in time for the market of July 8th, alleging that the market for such character of cattle had declined on the 9th. Plaintiff further alleged that said cattle were, by reason of said alleged rough handling and delay, depreciated in marketable appearance and actually sold for 10 cents per hundredweight less than they would have sold for on said market but for such delay and rough handling, and a loss in weight of at least 40 pounds per head by reason of said alleged 24 hours delay. The total damages claimed aggregated $457.67. The cause was submitted to the court without the aid of a jury, and judgment rendered ior $266, from which judgment the defendants appealed.

Appellants’ first assignment complains of the action of the court in permitting, over objection, one of the plaintiffs, J. E. Dale, to answer the following question propounded by his counsel, to wit:

“Mr. Dale, did you ever hear anything about this train, passing through Whitesboro at 12:10 a. m., not running o-n Sunday?”

To which the witness replied, “No, sir.” Appellants urge that the answer of the witness was immaterial and irrelevant. The evidence shows that the cattle were loaded on the 'cars of the Southwestern Railway Company at Scotland, some 20 miles from Henrietta, at about 3 or 3:30 p. m. Sunday, July 5th, and reached Henrietta about 1% hours later. They were there delivered to the defendant Missouri, Kansas & Texas Railway Company of Texas, about 15 or 20 minutes being required for the transfer. The train reached Whitesboro between 12:30 and 1 a. m. of the 6th. It appears there was a regular stock train from Ft. Worth through Whitesboro, with which this shipment would have made close connection had it run that night, but, as testified to by E. H. Smith, witness for the defendants:

“The regular stock train from Et. Worth did not run that night. It is very seldom we have any stock on Sunday, and for this reason this train runs very infrequent on Sunday. There being no regular through stock train on this night, we handled this shipment of stock on a second class fast merchandise train out of Dallas at 10 p. m., due at Whitesboro at 3 a. m., and passed through on this night at 3:20 a. m. That was the only train we had passing west for the north that night, and this train picked up these cattle and carried them on to Denison.”

Several witnesses for plaintiff, who had had experience in shipping cattle from Henrietta, Tex., to the National Stockyards, St. Louis, testified that, where such cattle were loaded on cars at Henrietta from 7 to 9 o’clock p. m., they would usually and customarily reach the stockyards early on the morning of the third day, and in time for the market of that day, and defendants introduced testimony as to the infrequent running of this Sunday night stock train from Et. Worth in order to show that they were not negligent by reason of the delay at Whites-boro. In rebuttal plaintiff Dale testified in the language complained of.

While in their statement under this assignment appellants have not complied strictly with the requirements of rule 31, governing Courts of Civil Appeals (142 S. W. xiii), which reads, in part, as follows:

“To each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record" (Emphasis ours}

■—and, perhaps, we would be justified in sustaining appellees’ objection to' the consideration of this assignment (see Laird v. Murray, 111 S. W. 782; Scanlon v. Railway Co., 45 Tex. Civ. App. 345, 100 S. W. 983; Conn v. Rosamond, 161 S. W. 73), yet out of an abundance of liberality we have given the assignment consideration.. We do not believe that there is any prejudicial error in the court’s permitting the answer complained of. At most, if it was immaterial, it does not appear to be injurious.

Appellants’ second assignment is directed to the action of the court in refusing to—

“permit the defendants to read in evidence the report made by the Agricultural Department of the United States government, showing various tests as to shrinkage of animals shipped from various points tó the different markets, also the tests made by the Texas Cattle Raisers’ Association showing the same facts, the same being objected to by counsel for plaintiffs as being irrelevant and immaterial.”

Appellants urge that this character of testimony was admissible in rebuttal of testimony offered by defendants as to the amount of shrinkage suffered by cattle while in shipment. Nothing is shown as to the contents of the bulletins offered as to whether the tests therein described were made under similar conditions to those existing in the shipment in question, and, moreover, appellants do not show in their bill of exceptions, or their statement under this assignment, or anywhere, that such bulletins were proved up, certified to, or in any legal way were such bulletins shown to contain a true record of the tests therein purported to be set out. We do not understand that a pamphlet or other document purporting to have been used by the government, or under the authority of some department of the government, has any more weight as evidence, or carries upon its face any stamp of greater authenticity or verity, than documents issued by any other authority. The case of Railway Co. v. Graham & Price, 174 S. W. 297, cited by appellants, by the Court of Civil Appeals for the Eighth District, does not, in our opinion, support the contention made, but is in opposition thereto. Judge Harper, in the opinion, speaks as follows:

“The third [assignment] charges error in refusing to allow the defendant to introduce in evidence United States government report of tests made of the shrinkage of other cattle under similar circumstances, issued in the form of a printed bulletin. The. principle, as gathered from the authorities, is that wherever documents of a public nature would themselves be evidence if produced, and which could not, without inconvenience to the public interest, be removed from their place of custody, certified copies or copies verified by some person who has seen the original are admissible, and in the absence of such proof of correct copies are not admissible.”

In the case of Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064, Chief Justice Gaines, in passing upon the admissibility of parol testimony to establish the authenticity of a pur-. ported copy of certain records in the office of the land commissioner, held that such examined copies were admissible when proved up by a witness, but quotes from 1 Green-leaf, Evidence, § 485, as follows:

“ ‘Where the proof is by copy, an examined copy, duly made and sworn to by any competent witness, is always admissible.’ Why not admissible? The evidence is as satisfactory certainly as a certified copy. In the latter case we depend upon the honor and integrity of an official, and in the former upon the oath of a competent witness. In either case, an error or a fraud is easily detectable. Probably, the reason why such a mode of proof has not been much known, if known at all, in our practice, is that it is cheaper and handier to produce copies, and if a witness comes instead, it is more satisfactory to have the officer who controls the records bring them into court.”

But no such proof is shown to have been made in this case and, therefore, and further because the conditions were not shown to have been similar, the assignment is overruled.

The third assignment alleges error in the judgment of the court as being contrary to the law and evidence. While it is true that defendants’ witnesses testified to facts tending to show prompt delivery of the shipment in question, yet there were a number of cattle shippers, the plaintiff and others, who testified that, with an ordinary rim and without unusual delays, the shipment in question should have reached its destination 24 hours earlier than it did, and such testimony is sufficient, in our opinion, to sustain the judgment. According to the testimony of the plaintiffs’ witness Keechleer, who was the salesman who sold the cattle, they weighed at St. Louis 120,670 pounds. He testified that by reason of the 24 hours’ delay in shipment the cattle would have lost at least 30 pounds per head, or 3,150 pounds, and if they had reached the market 24 hours earlier they would have sold for at least 10 cents per hundredweight more. This would make the loss sustained $375.82. The judgment is for $265, and we are unable to say that it is not sustained by the evidence.

The judgment is affirmed.
      ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, G. J.

text:
    COMAN et al. v. BAKER.
    (No. 473.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 4, 1915.
    Rehearing Denied Nov. 18, 1915.)
    1.Nuisance c&wkey;65 — Bawdyhouses—Injunction — RESTRICTED DISTRICTS.
    Under Rev. St. 1911, art. 4689, providing that the use of any premises for the purpose of keeping a bawdyhouse shall be enjoined at the suit of the state or .any citizen thereof, provided that the provisions of the statute shall not apply nor be construed so as to interfere with the control and regulation of bawds and bawdyhous-es by ordinances of incorporated towns and cities acting under special charters, and where the same are actually confined by ordinance of such city within a designated district of such city, plaintiff is not entitled to maintain his action to enjoin disorderly houses in the city of Houston where bawdyhouses are restricted by ordinance to a certain locality.
    [Ed. Note. — Eor other cases, see Nuisance. Cent. Dig. §§ 158-160, 170, 171; Dec. Dig. &wkey; 65.]
    2. Constitutional Law &wkey;>63 — Delegation oe Power — Regulation oe Bawdyhouses.
    Although the Legislature may exempt portions of the state from the operation of a civil or penal statute, it cannot delegate that authority to any other body, so that an ordinance of a city attempting to except bawdyhouses from the provision of a general statute is void, although the Legislature has attempted to delegate the power to make the exception.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. &wkey;?63.]
    3. Statutes <&wkey;6&wkey;CoNSTRUOTioN — Circumstances oe Passage.
    Where a statute regulating bawdyhouses and exempting those in certain districts thus contains two provisions, and one of them is void, the circumstances of the passing of the act must be looked to to discover whether the Legislature would have passed one provision without the other, and, if it would not have passed one without the other, the courts cannot hold one invalid and one valid, since this would make a law which the .Legislature did not make.
    [Ed. Note. — For other' cases, see Statutes, Cent. Dig. §§ 58-66,195; Dee. Dig. &wkey;64.]
    4. Nuisance <&wkey;72 -- Disorderly Houses — Right oe Action — Special Damage — Necessity — “Pee judicial. ’ ’
    Under Rev. St. 1911, art. 4643, authorizing an injunction where the applicant is entitled to the relief demanded, which requires the restraint of some act prejudicial to the applicant, “prejudicial” means harmful or injurious, and a private person cannot enjoin as a property holder the operation of disorderly houses in a nearby segregated district unless he shows special damage by decrease of value in his own property.
    [Ed. Note. — For other cases, see Nuisance. Cent. Dig. §§ 164 — 169; Dec. Dig. <§^>72.

    For other definitions, see Words and Phrases. Second Series, Prejudicial.]
    Appeal from District Court, Harris County ; J. A. Read, Judge.
    Action by J. W. Baker against Sadie Co-man and others. From a judgment and order that injunction issue against defendants, the defendants, except the Mayor and Aider-men of the City of Houston, appeal.
    Reversed, and injunction dissolved.
    S. B. Ehrenwerth, Campbell, Sewall & My-er, Hutcheson & Hutcheson, Hume & Hume, Kahn & Williams, Jno. M. Cobb, and I-Ieid-ingsfelders, all of Houston, and Smith, Crawford & Sonfield, of Beaumont, for appellants. Kittrell & Kittrell, of Houston, for appellee.
   HARPER, G. J.

This was an action brought by appellee as a private citizen, against appellants as owners, lessees, and tenants seeking an injunction suppressing bawdyhouses, situated in what is known as the “Reservation,” the district segregated by ordinance of the city of Houston, and against the mayor and aldermen of the city of Houston, seeking to enjoin the enforcement of the ordinance of segregation. Plaintiff pleaded section 16, art. 2, of the Charter of the City of Houston, providing, among other powers conferred, or attempted to be conferred, upon the city of Houston, “to prohibit and punish keepers and inmates of bawdyhouses and variety shows, prevent and suppress assignation houses and houses of ill fame, and to regulate, colonize and segregate the same, and to determine such inmates and keepers to be vagrants and provide for the punishment of such persons.” Appellee further alleged that, acting under and by virtue of the powers conferred, or assumed to be conferred, upon it by said section, the city council of the city of Houston enacted an ordinance colonizing and segregating houses of ill fame and assignation houses; said ordinance being set out in full by appellee. Appellee alleged special injury through the maintenance of the said houses and the enforcement of said ordinance, and that, if not specially damaged thereby, he was entitled to the relief sought under the act of April 18, 1907 (Acts 30th Leg. p. 216); that while the law contains a proviso that it shall not apply to cities with special charters authorizing the setting apart of a “Reservation,” yet, notwithstanding that provision, plaintiff has the right, as a citizen of Houston, to an injunction against the keeping of a bawdyhouse in said city. The mayor and aldermen of the city of Houston, and the appellants therein, admitted the passage of the ordinance, pleaded the actual segregation bj^ ordinance of the bawdyhouses in a designated part of the city of Houston, and denied any special injury or damage to the appellee by reason of the existence of said houses. The court, under proper instructions, submitted to the jury the question whether or not appellee suffered special damage or injury by reason of the existence and maintenance of said bawdy-houses, and the jury answered that appel-lee suffered no special damage or injury thereby. The court entered a decree in favor of appellee, plaintiff below, but denied the injunction against the mayor and aldermen of the city of Houston to restrain the enforcement of the segregation ordinance. Erom this decree all defendants appealed, except the mayor and aldermen.

The appellants’ assignments of error urge that the court erred in rendering judgment for plaintiff, granting an injunction, because plaintiff complaining of a public nuisance, and the jury having found that he suffered no special damage or injury by reason thereof, he was not entitled to the writ under the general principles of equity, and because the Legislature, by article 4689, R. S., exempted the' district in question from the operation of the statute, appellee has no statutory remedy. On the other hand, the ap-pellee contends .that he is entitled to the relief asked regardless of whether he suffered special injury or not, first, under article 4643, R. S. 1911, which provides that parties shall have the injunction where it shall appear that the party applying is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant; second, under article 4689, R. S. 1911, which provides for enjoining bawdy or disorderly houses as a nuisance.

Finding of Facts.

The city of Houston operates under special charter granted by the Legislature.

That section 16, art. 2, of said charter provides, among other powers conferred, that, “to prohibit and punish keepers and inmates of bawdyhouses * * * and to regulate, colonize and segregate same,” etc.

That the city council passed an ordinance confining bawds and bawdyhouses to a designated district in said city; that plaintiff owns approximately a hundred acres of land in the city of Houston; that the reservation as established is six blocks from plaintiff’s east line.

The only question or issue submitted by the court is:

“Has or has not the establishment and maintenance of the ‘Reservation,’ as located and situated under the city ordinance in question, resulted proximately in any special damage to plaintiff, by causing plaintiff’s property to be substantially less in market value than it would be but for the establishment and maintenance of said reservation? Answer: We find it has not.”

Under this statement of facts, is the decree to be upheld under the act of April 18, 1907, providing for the enjoining of the habitual, actual, threatened, or contemplated use of any premises for the purpose of keeping or being interested in, aiding, or abetting the keexoing of a bawdyhouse at the suit of either the state or auy citizen and without reference to special injury? This •act contains the following:

“ * * * Providing that the provisions of this and the succeeding article shall not apply to, nor be so construed as to interfere with the control and regulation of bawds and bawdyhouses by ordinance of incorporated towns and cities, acting under special charters, and where the same are actually confined by ordinance of such city within a designated district of such city.”

The pleadings and proof show Houston is a city acting under such special charter, and that all the bawds and bawdyhouses complained of, in plaintiffs’ petition, are located in a district theretofore designated by the city council of said city. It is clear that the appellees are not entitled to their injunction under this statute, because it does not apply to such segregated districts.

That the Legislature may exempt certain portions of the state from the operation of the provisions of either a civil or penal statute is not questioned. It is equally true that this authority of the Legislature of a state cannot be-delegated to any other body, but the act of the city council defining and designating the district is in no sense an attempt to exempt such territory of the state from the operation or enforcement of any statute. The Legislature has done this. It follows that the Legislature could not delegate the authority to a city council to exempt those coming within the meaning of bawds, or keepers of bawdy houses, from prosecution, and any ordinance passed to such, effect would be void. Brown v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504.

But if we concede that the Legislature, in limiting the operation of this statute to all portions of the state not designated by ordinance for bawdyhouses, acted without constitutional authority — in other words, if there exists no constitutional authority to exempt such segregated districts from the operation of the act — we have no means of knowing that the Legislature would have passed such an act and made it applicable to cities operating under special charter granted by it, so to strike out this portion which appellee contends is unconstitutional, and at the same time hold the balance of the act valid, would be to make, by judicial construction, a law which the Legislature did not make. A., T. & S. F. Ry. Co. v. Mills, 49 Tex. Civ. App. 349, 108 S. W. 480.

But, on the other hand, we think the history of the enactment of the act in question, as revealed by the Senate and House Journals, shows conclusively that it would not have been passed but for the proviso * exempting cities as it does.

There is another well-settled rule of law which interferes with appellee’s right to claim under this statute, because of any unconstitutional feature of it, he must show that some right which he has is being or is about to be invaded by its enforcement. 6 Rulin'g Case Law, §§ 87-90; Young v. City of Colorado, 174 S. W. 994.

The Legislature has not by this act given appellee the remedy of injunction to suppress the persons named from committing the crimes charged; therefore the decree finds no support under it.

This brings us to the real contention of the appellee that he is entitled to the relief asked, regardless of whether he had suffered special injury or not. If he has such remedy it is now by statute. The law in former times was that it was only where property or civil rights were involved and irreparable injury to such rights were threatened, or about to be committed, for which no adequate remedy existed at law, that the courts would interfere by injunction for the purpose of protecting such rights. But by article 4643, Rev. Civ. Stat. 1911, as construed by the courts, if a person shows himself entitled to the writ under the principles of equity, it will issue whether he have an adequate remedy or not. The portions of this act invoked by appellee are:

“That judges of the district courts shall either in term time or vacation, hear and determine all applications, and may grant writs of injunction, returnable to said courts in the following cases, where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.”

“Prejudicial,” in the sense used, means injury or harm. The appellee has based his prayer for the writ upon the charge alone that his property lying adjacent to the reservation is thereby decreased in value. This question was submitted to the jury by the court as above quoted, and the jury found that his property was not so decreased in value. Notwithstanding this finding by the jury, the court entered a judgment for ap-pellee, granting the writ of injunction. The view we take of the case is that, the appel-lee not having pleading and evidence to support the decree upon any other theory than that his property was injured in value, the court was not authorized to grant him the relief prayed for in the face of the verdict of the jury, but should have denied the writ.

Reversed and rendered, and the injunction dissolved.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: CARL, J.

text:
    CONTINENTAL TRUST CO. et al. v. BROWN et al.
    (Nos. 5553, 5586.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Receivers <&wkey;69 — 1Title to Property— Right Acquired by Receiver.
    Where a contract for the purchase of railroad stock is executory, and the purchaser merely has a right of completing his purchase by paying the price, a receiver appointed for the purchaser cannot obtain possession and title to the stock without first paying the purchase price, since a receiver takes no greater title to or right in property than the owner had prior to the receivership.
    [Ed. Note. — -For other cases, see Receivers, Cent. Dig. §§ 124, 125; Dec. Dig. <&wkey;69.]
    2. Corporations &wkey;>143 — Stock—Transfer-Effect.
    The transfer of the capital stock of a railroad does not operate ipso facto as a transfer of the physical properties thereof.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 529, 532, 534, 536; Dec. Dig. &wkey;
    3. Banks and Banking <&wkey;94 — Powers — Disposition of Corporate Stock.
    While a bank ordinarily may not own a railroad, it may sell and dispose of its capital stock held by it as executor.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 227; Dee. Dig. &wkey;>94.]
    4. Mines and Minerals <&wkey;105 — Mining Corporations — Powers — Operation of Railroads.
    Rev. St. 1911, tit. 25, c. 2, art. 1121, subd. 16, as amended by Acts 34th Leg. e. 144, giving private corporations power to contract for the lease and purchase of the right to prospect for, develop, and use gas, also erect, build, and own all necessary oil tanks, ears, and pipes necessary for the operation of the business of same, does not authorize a producing oil company organized under the laws of a foreign 'State to own and operate a railroad, although such railroad may be used in connection with its business.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 229, 229%; Dec. Dig. <&wkey;l05.]

      5. Receivers <&wkey;69 — Powers—Possession oe Property.
    A receiver for a corporation cannot compel a vendor under an executory contract with the corporation for the sale of lands to give title and possession thereof, without the prior payment of the purchase price, where the contract so provides, and where the company had no such right.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 124, 125; Dec. Dig. <&wkey;69.]
    6. Receivers <5&wkey;32 — Appointment—Grounds.
    A bill for the appointment of a receiver which alleges that the company is insolvent, but •can make payment if it is allowed time, states no ground for the appointment of a receiver, since to do so would be equivalent to declaring a moratorium by judicial decision.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 45-50, 64; Dec. Dig. <5&wkey;32.]
    7. Receivers <&wkey;3 — Appointment—Grounds.
    A bill which has for its sole object the appointment of a receiver will not be entertained; a receivership being ancillary to the main suit wherein a cause of action exists,. and which must be asserted independently of the right to a receivership.
    [Ed. Note.--For other cases, see Receivers, Cent. Dig. § 3; Dee. Dig. &wkey;>3.]
    8. Corporations <&wkey;553 — Appointment op Receiver — Grounds.
    The mere fact that a corporation is insolvent is not sufficient ground for the appointment of a receiver therefor, without a showing of some equity in favor of complainants.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. <5&wkey;553.]
    9. Corporations <&wkey;553 — Appointment oe Receiver — Grounds.
    The fact that the creditor of a corporation attempts to assert an unjust debt and to charge usury does not justify the appointment of a receiver, since ample protection may be afforded by injunction.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. <@¿o553.]
    Appeal from District Court, MeMullen County; F. G. Chambliss, Judge.
    Suit by Mrs. M. C. Brown and others against the Continental Trust Company and others. From two orders relating to the control of complainants’ property by a receiver, in two cases tried together, defendants1 appeal.
    Reversed, and orders appointing receiver vacated.
    McFarland ■& Lewright, of San Antonio, Beasley & Beasley and J. E. Daugherty, all of Beeville, and Lane, Wolters & Storey, and Paul Kayser, all of Plouston, for appellants. A. J. Bell, W. W. Walling, Cobbs, Eskridge & Cobbs, and H. C. King, Jr., all of San Antonio, for appellees.
   CARL, J.

Appellees, Mrs. M. C. Brown, S. A. Hopkins, and the Boston & Texas Corporation, a South Dakota corporation, brought this suit in the district court of Mc-Mullen county against the Continental Trust Company, J. F. Saddler, Lee C. Ayars, the Guarantee Life Insurance Company, R. H. Brown, West Texas Bank & Trust Company, executor of the estate of C. F. Simmons, deceased ; also against Kirby Lumber Company and one A. Van Dressar. The petition, among other things, prayed for an injunction to restrain a sale of certain real estate alleged to belong to the Boston & Texas Corporation, under an order of sale issued out of the district court of McMullen county on a certain foreclosure judgment in favor of R. H. Brown and to restrain Lee C. Ayars, trustee in a deed of trust for the benefit of the Continental Trust Company, from selling about 7,000 acres of land in McMullen county by virtue of the powers conferred upon him in said deed of trust, which was given to secure the payment of a series of notes, all of which will more fully appear in the further statement of this case.

It is alleged that the Boston & Texas Corporation owned 7,000 acres of land in Mc-Mullen county and an oil lease on about 1,100 acres of land adjoining the 7,000-acre tract, and that this corporation owned another tract of land adjoining the first two, of about 11,360 acres, which was purchased by S. A. Hopkins from R. H. Brown. The allegation is that Hopkins, while he took this conveyance in his own name, in fact, bought and held it for the Boston & Texas 'Corporation, and he asked that title thereto be decreed out of him and into said corporation, subject to the payment of the vendor’s lien notes upon which R. H. Brown foreclosed. It is further alleged that Hopkins has a contract to purchase the capital stock of the Artesian Belt Railroad, and that this contract is also for the use and benefit -of the Boston ■& Texas Corporation, and Hopkins also asks that his rights under this contract of purchase be decreed to be in the Boston & Texas Corporation.

The Artesian Belt Railroad matter came about in this manner: H. E. Hildebrand, who has intervened in this suit, made a contract with the West Texas Bank & Trust Company, executor of the estate of C. F. Simmons, deceased, under order and approval of the probate court of Bexar county, whereby he agreed to purchase the capital stock of the Artesian Belt Railroad for the sum of $200,000, the sum of $25,000 having been paid in cash, and the remainder was on deferred payments, the bank, as such executor, holding the stock to secure the balance of the purchase money, amounting to $175,000. This contract was sold by Hildebrand to I-Iopkins, as the latter and the Boston & Texas Corporation allege, for the use and benefit of this corporation; and Hopkins says1 he is willing that such purpose be made effective and consummated by the court decreeing his interest therein and thereunder to said corporation, subject to the payment of the balance of the purchase money.

The petition shows that the Boston & Texas Corporation is incorporated for $300,-000; that complainant M. C. Brown owns one share of the stock, and S. A. Hopkins owns $164,000; that in 1911, 1912, and 1913 the Boston & Texas' Corporation made, executed, and delivered to M. C. Brown, complainant, as trustee for the benefit of the King-Crowther Corporation, promissory notes aggregating $42,384.90, which notes were payable on demand to the said M. C. Brown, and, in addition, the Boston & Texas Corporation owes said M. C. Brown, as trustee for the King-Crowther ‘Corporation, on open account, the sum of $56,500, for money advanced during the years 1913 and 1914; that the King-Crowther Corporation was chartered under the laws of the state of Blaine; the notes bear 7 per cent, interest; that $25,000 of the money so borrowed by the Boston & Texas Corporation was used for the purchase of material, etc., that went into the construction of an extension of the Artesian Belt Railroad from the town of Christine, the terminus of the railroad, to Crowther, such money being so advanced upon the distinct understanding that the Artesian Belt Railroad was not to be responsible for any portion of said money so expended, and the King-Crowther Corporation expressly waived a lien on the railroad when the money was advanced. And it is claimed that said money is owing to the King-Crowther Corporation by the Boston & Texas Corporation.

The petition charges that the Boston & Texas Corporation was chartered for the purpose of owning and developing real estate for mineral purposes1 and for boring and drilling for oil, coal, kaolin, and other minerals, and for such other purposes as are germane and incident thereto; that on 1,100 acres leased the Boston & Texas Corporation has about 23 oil wells, all of which under proper care and attention would produce a large quantity of valuable lubricating oil; that on the 11,360 acre tract there is about 3,000 acres of proven oil land, the value of which, under proper development, would be materially increased; and that on the 7,000 acre tract there is about 4,000 acres of proven oil land. And it is alleged that the Boston & Texas Company has expended about $400,000 in developing said oil field. It is further contended that these fertile oil fields are so remotely situated from railroad facilities that it is necessary to a full enjoyment of their hidden treasures that the Artesian Belt Railroad be extended into them, or to the thriving city of Crowther, in the midst of them, but that about one year before the suit was filed the West Texas Bank & Trust Company took said railroad away from H. E. Hildebrand, since which time the bank has been operating same through a manager, when Hopkins and Hildebrand are entitled to enjoy the luxuries of running the same; and, further, unmindful of the fact that the West Texas Bank, as executor, had taken said railroad out of the hands of Hildebrand and Hopkins, and was so operating said road, this bank has sued Hildebrand and Hopkins and B. O. Burton, R. R. Russell, and Emma Smith as sureties on a certain bond, and to foreclose for about $225,000 on the stock of the artesian Belt Railroad.

The petition also sets out that about January 23, 1912, the Boston & Texas Corporation executed and delivered to Bee C. Ayars a deed) of trust on the 7,000 acres of land to secure the payment of thirty-four notes for the sum of $5,000 each, or a total of $170,000; twenty-six of which notes being payable to the order of the Continental Trust Company five years from their date, containing the customary default clauses in regard to the failure to pay interest, and the 10 per cent, attorney’s fee clause, all payable at Houston, Tex., and eight notes for $5,000 each, payable to the order of the maker, which said last notes were indorsed by said Boston Corporation, and delivered over to the Continental Trust Company. They were also indorsed in blank by S. A. Hopkins. These eight notes were payable three years from their date. These last notes, representing $40,000, it is charged, were given as a bonus for the $130,000, which the Boston & Texas Corporation really expected to obtain in said loan. But it is charged that only about $64,700 was actually furnished the Boston Company by the Continental Trust Company, and that, if the remaining $65,000 had been furnished as per agreement, the section of the road from Christine to Crowther could and would have been completed, thereby greatly enhancing the value of the oil land to such an extent that a large part of the land would have been worth $1,000 per acre, and the other lands would be worth from $25 to $70 per acre; and if these things had all happened, the Boston & Texas Corporation would have been able to pay out and then have money. But they charge that the Continental Trust Company refused to furnish any more money after it had furnished the $65,700. The 7,000 acres of land was the only land or property which the Boston & Texas Corporation had which was clear of liens, and, when it was mortgaged to secure the loan from the trust company, it could not get any more money with which to complete said railroad, and by the breach of its contract the trust company has prevented the completion of the railroad. The eight bonus notes above referred to are charged to be usury, and prayer is made that they be canceled.

The petition further states that, in addition to the $65,000 advanced, the Continental Trust Company guaranteed the payment of about $22,000 to the Kirby Lumber Company for ties and bridge material, but have refused to pay for same, and the lumber company has filed suit in the district court of Harris county against, the Boston & Texas Corporation and Hopkins, which suit has embarrassed the defendants therein in developing their plans and in procuring finan-eial aid. When Hopkins bought the 11,360 acres of land, he gave in part payment six notes for $13,000 each, and these are the notes R. H. Brown declared due and obtained judgment on, mentioned above in this opinion. In the suit filed in Houston on the notes given the Continental Trust Company the petition names the Guarantee Life Insurance Company and James E. Saddler, Jr., as plaintiffs, but it is alleged here that, if those parties bought said notes, they did so with full notice of all the vice contained in the whole transaction. Further, in reference to the stock purchase of the Artesian Belt Railroad, it is alleged that, if complainants had obtained the same, they could have secured $700,000'in bonds against said railroad, out of which they could have paid for the said stock, all of which was prevented by the failure of the trust company to furnish the balance of the money contracted to be furnished.

December 17, 1914, S. A. Hopkins gave a deed of trust on the Brown land to secure a large sum of money due the State Bank & Trust Company, and it is claimed that the bank or J. H. Haile was a necessary party to Brown’s foreclosure suit; and that bank has filed suit to set aside and reopen said suit in which Brown foreclosed his vendor’s lien and obtained a judgment for approximately $94,000 against Hopkins and the Boston & Texas Corporation.

The Boston & Texas Corporation owes about $650,000 including the claims set forth, but claims that it can pay out if it can get time to realize on its assets, which can be done by building said railroad, through loans it hopes to make, and if the Mexican and European wars do not last too long; but it says that it cannot pay said debts now on account of the financial stringency. Therefore it says it is insolvent and on account of the matters related its property and assets are in imminent peril of being dissipated. Therefore a receiver is prayed for to take charge of all the assets of the Boston & Texas Corporation, including the Artesian Belt Railroad, its stock and" physical properties, as well as the lands mentioned, and for injunction to restrain the sale of or interference with any of said property, except under order of the court after application is made therefor.

The Continental Trust Company denied all the material allegations, and especially that it was insolvent, and that the eight notes were an usurious charge against the Boston & Texas Corporation, and tendered same up to be canceled.

The court issued the temporary injunction prayed for, and set the hearing for receiver for May 28, 1915, at Floresville. The defendants answered, and all demurred generally to the sufficiency of the application, denied the ‘ material allegations, and made special pleas, the nature 'of which will appear in the further discussion of this case. At the hearing J. O. Terrell was appointed receiver — ■

“of all the properties, rights, and franchises of the Boston & Texas Corporation and of the properties held by S'. A. Hopkins as alleged in his petition for said company, including the tract of 11,360 acres described in the pleading and known as the Brown land, of every kind and character and description whatsoever and wheresoever situated, including the cars, locomotives, tools, machinery, movable effects, books, books of accounts, records, cash on hand and in banks, all rents, profits, issues, tolls, revenues, and income of the Artesian Belt Railroad, in equity, real or otherwise, wheresoever situated, whatsoever the said Boston & Texas Corporation, and to use the same and run and operate the same, and continue the operation and business thereof as a going concern, and to transact the business of said companies,” etc.

The ordinary powers of a receiver are conferred in said order, and all parties are restrained from taking any further action in regard to said properties, except through the court appointing the receiver. The receiver was placed under a $5,000 bond which he gave; but the order making such appointment contains this clause;

“It is further understood herein that the receiver at this time shall not take possession of or exercise control over the properties or capital stock of the Artesian Belt Railroad Company until further authorized by further order of this court.”

This order was excepted to, and notice of appeal given, and is the order from which this appeal is perfected; and on July 10, 1915, the court entered an order directing the receiver to take charge of all the properties, and this order was appealed from. So the two cases stand upon our docket as No. 5553 and No. 5586, and will be treated both together in this opinion.

Hildebrand and the State Bank & Trust Company and J. I-I. Haile, as interveners, joined in the prayer for a receiver. No one asked for the dissolution of the Boston & Texas Corporation and that its affairs be wound up.

The pleadings in this case embrace 232 pages of the transcript, and, if we have been too brief in our statement, it is because of our desire to condense as much as we could, and yet omit nothing material.

First, let us analyze the issues and see just what is presented from a legal standpoint. Assuming the facts as pleaded, we find that S. A. Hopkins had a contract to purchase, through transfer from Hildebrand, the capital stock of the Artesian Belt Railroad; that $175,000 of the purchase price had not been paid, and the West Texas Bank & Trust Company, as executor of the estate of C. F. Simmons, deceased, held that stock as security until that debt was paid. It is true that all of that stock except eight shares -was held by the San Antonio Loan & Trust Company to secure a debt C. F. Simmons owed his former wife, but that is a matter of no consequence, because it would not change- the legal title to the stock.

This contract for the railroad stock is executory, because tbe purchase price had not been paid, and the stock was not, and would not be, delivered until that sum was paid. Hopkins alleges that, while he made the contract of purchase for the stock in his own name, it was, in fact, made for the Boston & Texas Corporation. He claims no rights in it personally, and asks that same be decreed to the corporation. Since this stock contract is. executory, whether it be Hildebrand, Hopkins, or the Boston & Texas Corporation, they neither had the legal title to the property, but only the right to complete the purchase by paying the price and then obtain a title. It is not different from a 'man who buys land, and the vendor’s lien and superior title are reserved until the balance of the purchase money is paid. The title there remains in the seller; the purchaser only having the right to complete the purchase and obtain a title by paying the price. It would be a monstrous proposition of law if the purchaser of this stock could demand and receive the stock without first paying for same. And here payment of the $175,000 is not even tendered; but it is proposed to do, through a receiver, what no one would contend that Hopkins or Hildebrand would have the right to do as individuals, namely, get possession of the stock without first paying for it. A receiver takes no greater title to or right in property than the owner had prior to the receivership. The appointment of a receiver does not do away with rights fixed by contract, and the very same contract under which right to the stock is here asserted provides that the executor should hold same until the purchase money should be paid.

But it is asserted that under the contract of purchase of the railroad stock by Hildebrand, under order of the probate court of Bexar county, the physical properties of the railroad were to pass. To this we need only say that the probate court could only authorize the sale of the stock, because that is what O. F. Simmons owned. The fact that the stock represented practically the road— certainly the control—would not alter the situation. The road itself is controlled by a board of directors.

We are told that, if the West Texas Bank & Trust Company could operate a railroad, then there is no reason why the Boston & Texas Corporation could not do the same; if one corporation could do it, another could. The bank, under its rights to act in a trust capacity, was acting as executor, and naturally voted the stock in the selection of directors who operated the road. Ordinarily, a bank probably could not own a railroad, but the handling of the stock as executor is quite a different matter.

It is contended that the Boston & Texas Corporation could own the railroad, because, under an amendment, as passed by the Thirty-Fourth Legislature (General Laws, p. 225), it is provided:

“That article 1121, subdivision 16 of title 25, chapter II, of the Revised Statutes of the state of Texas, 1911, be amended so as to hereafter read as follows:

“ ‘For the establishment and maintenance of oil companies with the authority to contract for the lease and purchase of the right to prospect for, develop and use coal and other minerals, petroleum and gas; also’ the right to erect, build and own all necessary oil tanks, cars and pipes necessary for the operation of the business of same.’
“All private corporations heretofore created under the provisions of subdivision 16, article 1121, chapter II, title 25, Revised Statutes of Texas of 1911, shall, in addition to the powers therein enumerated, have the power to contract for the lease and purchase of the right to prospect for, develop and use gas; also erect, build and own all necessary oil tanks, cars and pipes necessary for the operation of the business of same.”

This contention is made because of the provision that, among other things, they may own tank cars, ships, etc. And it is a matter of common knowledge that oil companies do own and operate tank cars; but that is a very different matter from owning and operating a railroad. Nearly every circus owns its private cars, but we have never known of a circus owning a railroad, nor do we believe that the mere fact that they own cars would give them the right to own a railroad.

The Boston & Texas Corporation is a producing oil company, organized under the laws of a foreign state, and is not a pipe line company; so that, when it comes into this state to do business under a permit, it could have no greater powers than is permitted to similar corporations under subdivision 16 of article 1121 of the Revised Statutes of this state. And the most liberal construction of this statute would not give this oil company the right to own this railroad, even if its contention be granted that the contract intended to convey the physical properties of the Artesian Belt Railroad; and if the corporation could not own the road, it could not do through a receiver what it could not do acting for itself under its own board of directors. So the railroad matter furnishes no ground for a receiver.

And when we come to consider the 11,360 acres of land known as the Brown land, we find that this is also a purely execu-tory contract for the sale of the land, because the vendor’s lien and superior title were reserved until the notes, upon which foreclosure was obtained, should be paid. It has long been held in Texas that such a sale leaves the title in the vendor, and what the purchaser has in such case is the right to pay the debt and secure a title. Neither Hopkins nor the Boston & Texas Corporation had more than a right to pay for said land and thereby obtain a title. A receiver would have no greater' right, and we find that no- tender of the purchase money is made. On the contrary, that is precisely what they are seeking to avoid. This land was constructively in the hands of the sheriff, who had seized the same under an order of sale, based on the foreclosure judgment, and neither Hopkins nor his corporation could take it away from him without paying that debt, and they did not need a receiver to do this.

The fact of the 'business is this whole proceeding appears to be based upon the idea of gaining a little time until the hard times pass; for the applicants say in their bill:

“Complainants believe that this court should take judicial knowledge of the present financial condition now prevailing throughout this country on account of the Mexican war and great European war, that is now being felt in the whole financial world, and stay the hand that would take from the unfortunate debtor who is struggling to meet his obligations, as these complainants are, and even now at great sacrifice complainants are negotiating and have contracts which, if consummated, will enable them to pay all creditors who are pressing them. What these complainants most value, next to eternity, is a little time, and this they pray through the equity powers of this court. Poverty wants some things; luxury many; avarice all things. These complainants, though poor, want a little time; those creditors want all, that they may live in luxury; but this court has the equity power to stay their hands, and it is prayed.”

We cannot but commend the candor of this fervent prayer of the able counsel, but at the same time it reminds' us of that honest old lawyer who,' in having his client swear to an application for a continuance, said:

“This application is not made for delay, but to gain time.”

Hard times is not recognized in law as a ground for a receiver, nor had we ever supposed that a .receiver was a panacea for the ills of a time of financial stringency. Indeed, if we were so to treat the matter, it would be equivalent to declaring a moratorium by judicial decision — a thing the Legislature of this state expressly declined to do.

Hildebrand and Hopkins are not suing the Boston & Texas Corporation, except that they ask for a receiver. So, as to them, it is purely a suit for a receiver, and the courts of this state, as well as all other recognized authorities, have uniformly held that a bill which has for its sole object the appointment of a receiver will not be entertained. This court has only recently so held in an opinion written by its Chief Justice. Toomey v. First Mortgage Trust Co., 177 S. W. 539. A receivership is ancillary to the main suit where a cause of action exists and is asserted independent of such receivership, and the corporation, as such, has no right to ask for a receiver for itself.

If it be conceded that this corporation is insolvent, that is not sufficient ground for the appointment of a receiver, without a showing of some equity in favor of the plaintiffs. First lien creditors will not be hindered or delayed in the collection of their debts, except upon a clear showing of some threatened illegal waste or destruction of the property, and that protection may be obtained by an injunction. It is urged that the wars in Mexico and in Europe have made it difficult to finance this undertaking, and if the court will appoint a receiver and build the railroad into these oil fields, the corporation will be able to realize large sums for its lands, and can pay out. As to how long these wars will last is not stated in the bill, and as to developing an oil field, this court knows of no more uncertain or speculative proposition. The bill admits that the parties themselves have been unable to carry through their plans successfully, and it is not made to appear how the receiver could do that which they have failed to do, unless it be that he could get possession of the railroad stock and land without paying what is admitted to be the purchase price. But we have seen that the receiver would have no greater rights than the parties themselves would have.

As to the controversy with the Continental Trust Company, no ground for a receiver is there shown, because, if their debt is not just, and usury has been charged, the court could render ample protection against the sale by its injunction powers. The petition or bill shows that the trust company is a first lienholder on 7,000 acres of land owned by the Boston & Texas Corporation, but we are unable to see how the relief sought against the trust company demands the appointment of a receiver for the one seeking that relief.

We therefore conclude that the trial court was in error in appointing the receiver, and also in thereafter making an order placing him in charge of the properties.

So the judgments in causes No. 5553 and No. 5586 are reversed, and the orders appointing a receiver and placing him in charge are vacated, together with all other orders in connection with the receivership, and the receiver is discharged. The clerk of this court will accordingly so certify.
      <§=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLX, C. J.

text:
    ANDREWS et al. v. McGILL et al.
    (No. 5530.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10. 1915.)
    1.Carriers <©=215 — Carriage of Live Stock —Liability.
    A carrier receiving from another carrier cattle for shipment is liable for injuries to the cattle caused by placing them in pens without shelter and too small to accommodate them properly, and allowing- them to remain therein for a day in the sun without food or water, though it may not be liable for not holding a train for the cattle.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. ©=215.]
    2. Carriers <©=>219 — Carriage of Live Stock —Liability.
    A connecting carrier, guilty of negligently handling cattle received from the initial carrier, is liable for the injuries caused thereby, though the initial carrier was negligent in delaying the delivery of the cattle and prevented the connecting carrier in taking them out on its first train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. <©=>219.]
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action l>y H. F. & J. C. McGill against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, and another. From a judgment for plaintiffs, the Texas Mexican Railway Company appeals.
    Affirmed.
    Greer & Hamilton and Asher R. Smith, all of Laredo, for appellant. Perkins & Leslie, of Alice, for appellees.
   FLX, C. J.

This is a suit for damage to 79 steers shipped by appellees over the lines of the St. Louis, Brownsville & Mexico Railway Company, Frank Andrews being its receiver, and the Texas Mexican Railway Company, from Norias, a station on the first-named railroad, to Alice, a station on the last-named railway. The cause was submitted to a jury on special issues, and on the answers judgment was rendered in favor of appellees against the receiver for §332.50, and against the Texas Mexican Railway Company for $400. The latter alone has appealed.

The requested charge of appellant refusal of which is complained of in the first assignment of error was properly rejected by the court. The evidence showed that the negligence of appellant consisted in holding the cattle in pens, without shelter, in Robs-town, too small to accommodate them properly, and it would have been erroneous to have instructed a verdict for appellant in case the jury found that there was no damage to the cattle between Robstown and Alice. The evidence showed that the cattle were crowded, without food or water, into pens too small for their comfort, and allowed to remain therein for a day in the sun, causing great damage to them, and that the cattle had been delivered to appellant by its connecting carrier before they were placed in the pens. Most of the damage to the cattle occurred at Robstown after they had been delivered to appellant It may not have been liable for not holding its train for the cattle for a few minutes longer than it did, but it is liable for its treatment of the cattle in Robs-town.

The special charge the refusal of which is assailed in the second assignment of error was properly refused by the court. It was alleged and proved that a large part of the damages occurred through the negligence of appellant after the cattle were delivered to it in Robstown, and it would have been decidedly improper to have instructed the jury, in effect, that as the first carrier had delayed the cattle on its road, appellant would not be liable for its negligence while the cattle were in the pens at Robstown. The first carrier was doubtless negligent in not delivering the cattle with proper dispatch, so that they could have gone out on the morning train, but that negligence did not authorize or justify further negligence on the part of appellant. The law applicable to a delivery of the cattle by one carrier to another was correctly embodied in a special charge asked by tha receiver and given by the court.

The judgment is affirmed.