author: HUFF, C. J.

text:
    PANHANDLE & S. F. RY. CO. et al. v. MORRISON et al.
    (No. 1061.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1916.
    Rehearing Denied Jan. 3, 1917.)
    1. Trial @=233(2) — Instructions—Pleading and Issues.
    It is the better practice for the trial court to summarize the pleadings on the issues to be determined, but to tell the jury they would have the pleadings which they could look to for a statement of the pleadings, not leaving the issues to be ascertained by the jury, but telling them what issues they must find if supported by the evidence in order to find for the parties respectively, was a substantial compliance with the rule.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 628; Dec. Dig. @=233(2).]
    2. Trial @=255(2) — Instructions — Requests.
    A failure to summarize the pleadings on the issues to be determined is not reversible error, unless the complaining party requests an instruction covering the omission in the general charge; as it is merely an omission, and not an error of commission.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630; Dec. Dig. @=255(2).]
    3. Appeal and Error @=760(1) — Brief — Charge — Objection.
    A brief nowhere showing when objections to the charge and to a failure to charge were made, and not pointing out the page or paragraph in which the court might find the particular objection, leaving the court to go to the record and search a long bill of exceptions to find the objections made, did not comply with the rules so as to require consideration of the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. @=760(1).]
    4. Carriers @=229(2) — Live Stock — Action for Damages — Market Value.
    Where cattle were not shipped for immediate sale on the market, the measure of the shipper’s damage from injury and delay was the difference between the market price of the cattle in the condition in which they were delivered and what their market price would have been had they been properly cared for and handled during transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dec. Dig. @=229(2).]
    5. Trial @=194(20) — Instructions—Weight of Evidence.
    In an action for damages to a shipment of live stock from injuries 'and delay, a requested charge as to the manner in which the cattle recovered after the injury was a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 439; Dec. Dig. @=194(20).]
    6. Trial @=260(7) — Requested Instruction —Given Instruction.
    In an action for damages to a shipment of live stock where the court gave specially requested instructions covering the issues sought by another requested instruction, the refusal of the last instruction was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. @=260(7).]
    7. Carriers @=230(9) — Live Stock — Action for Damages — Instruction.
    In an action for damages to a shipment of live stock, the court did not err in refusing an instruction that the carriers were not insurers of the safe delivery of the live stock at any particular time, but were only bound to use ordinary care under’the circumstances of the shipment.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. @=230(9).]
    8. Carriers @=215(1) — Live Stock — Injury —Liability.
    If there was no unreasonable delay, no rough handling out of the ordinary or if the cattle were damaged owing to their nature or condition or other causes over which the carrier had no control, a carrier using ordinary care would not be liable. .
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. @=215(1).]
    9. Appeal and Error @=758(2) — Briefs — Sufficiency.
    Where the brief does not show that a charge was presented at the proper time and exceptions properly taken to its refusal, an assignment of error in its refusal will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. @=758(2).]
    10. Trial @=255(1) — Instructions — Request.
    If appellant desired that a certain numbered charge should be given instead of another numbered charge, it ought not to have requested the latter.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 627-629; Dec. Dig. &wkey;255(l).]
    11. Teiai, &wkey;244(4) — Instructions — Singling out Facts.
    In an action for damages to a shipment of live stock, a requested charge singling out certain facts which in part were claimed as an excuse for the delay was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 679;' Dec. Dig. &wkey;244(4).]
    12. Appeal and Error <§=>742(5) — Assignment op Error — Statement — Objections and Exceptions.
    Where the assignment itself was not a proposition, and the proposition thereunder was not relevant to the assignment, and the statement did not point to the paragraph where the objection to a charge could be found or state whether the objection was the one contained in the assignment or in the proposition, or whether the objections contained both, and did not state that the objection was made and presented to the trial court before or after the charge, the court would not search the bill of exceptions to ascertain what objections were made to the charge and whether made in proper time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. @=>742(5).]
    13. Appeal and Error <&wkey;731(l) — Assignments op Error — Verdict.
    An assignment of error complaining _ that the verdict is excessive, made for the bearing it would have upon the other assignments presented rather than with any expectation if it stood alone it would be sustained in the form presented, will be overruled for the reason -given therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3017; Dee. Dig. <&wkey;731(l).]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Suit by T. A. Morrison and T. J. Coggin, as partners, against the Panhandle & Sante Fé Railway Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Geo. Thompson, of Ft. Worth, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellants. Mathes & Williams, of Plainview, for appel-lees.
   HUFF, C. J.

We adopt the following statement from appellants’ brief, which we regard as sufficient statement of the case:

“T. A. Morrison and T. J. Coggin, as partners, sue the Texas & Pacific Railway Company and the Panhandle & Santa Fé Railway Company, as common carriers owning connecting lines of railroad, to recover about $2,197.50 as damages alleged to have been by them sustained as a result of injuries caused by the alleged careless and negligent handling and delays in transporting about 300 head of Mexico steers from El Paso to Plainview, Tex. A jury trial resulted in a verdict and judgment against the defendant Texas & Pacific Railway Company for $500 and against the defendant Panhandle & Santa Fé Railway Company for $1,000, from which both defendants appeal.”

The first assignment of error is briefed on the thirty-sixth and thirty-seventh grounds assigned in the motion for new trial. The proposition involved in the. assignments is that the trial court erred in failing to state to the jury what the issues were by the pleadings, and in stating the pleadings would be with the jury, to which they were referred for a statement of the pleadings. In paragraph 3 the trial court submitted the issues raised by the pleadings and evidence to be determined by the jury in order to find a verdict for the appellees, and as to the other issues for appellant specially requested instructions were given. There was no special requested instruction by the appellants calling on the court to give a proper summary of the issues pleaded. As we understand the holdings in this state, it is the better practice for the trial judge to summarize the pleadings on the issues to be determined; yet, if not done, it is not reversible error, unless the complaining party shall request an instruction covering the omission in the general charge. It is merely an omission, and not an error of commission. Traction Co. v. Bradshaw, 185 S. W. 952; Adams v. Southern Traction Co., 188 S. W. 275; Railway Co. v. Helm, 64 Tex. 147.

The trial court did not tell the jury to determine the issues from the pleadings which they would have before them, but only told the jury they would have before them the pleadings, which they could look to for a statement of the pleadings. He did not leave the issues to be ascertained by the jury, but told them what issues they must find if supported by the evidence in order to find for the parties respectively. It appears to be a sufficient compliance with the rule if the trial court submits to the jury the questions of fact raised by the pleadings and instructs them upon the law as to the issues so raised. Railway Co. v. Smith, 24 Tex. Civ. App. 127, 57 S. W. 999. The court substantially complied with this rule in this case. If there was any issue omitted, the appellant should have submitted a special requested instruction on that issue.

The second assignment assails the charge of the court on the ground that it did not instruct the jury to consider the subsequent recovery of the cattle in estimating the damages, and was erroneous in giving the abstract rule as to the measure of damages, that is, the difference between their value in the condition in which they arrived at destination and the condition in which they should have arrived, and also in refusing an instruction to the effect that the jury should take into consideration whether the injury was temporary or should have passed away within a reasonable time by the exercise of reasonable care upon the part of appellees. The charge of the court did not instruct upon this matter, as complained; and the trial court also refused the requested instruction to that effect. The brief does not show that the court’s charge was objected to on the grounds stated. The grounds of the motion for new trial which are purported to be copied as part of the assignment say as shown by bill of exception No. 1. The brief nowhere showed when the objection was made. We must go to the record to ascertain the necessary facts as to when it was made and what the objection really was. The brief in this particular does not comply with the rules. The pages apparently referred to for the bill of exception No. 1 in one place refer to the page where we find the appeal bond and the other referred to shows that it is part of the motion for new trial. The objections to the charge of the court as set up by bill No. 1 is composed of some 30 paragraphs covering 10 pages of the transcript. The appellant nowhere points out by its brief on what page or in which .paragraph we will be enabled to find the particular objection to the charge urged by this assignment. This court must, if we find the objection, search this long bill of exception, paragraph by paragraph, to find if the objections were really made before the main charge was read to the jury. The appellees herein strenuously object to the consideration of this assignment, on the grounds stated, because of this defective briefing. We believe the objection to the assignment on this ground well taken. Again, as to the refusal of the instruction reguested, the brief fails to show this instruction was requested after the main charge was drawn and handed to the appellants’ attorneys for examination, and before the case was submitted to the jury. The ground in the motion for new trial setting up this refusal of the instruction is copied in the assignment and therein simply refers to bill of exception No. 5, without stating what the bill shows with reference to this necessary precedent condition before error can be assigned to the action of the court. It was not error to refuse this instruction if it was not presented to the court at the proper time. The assignment or statement in the brief must show that the action of the court was erroneous, and the assignment and statement fall short of the rules and statutes in this particular. The appek-lees object to this assignment upon the grounds mentioned, as they have the right to do, and we feel that it will be our duty to sustain the objections to the assignment.

We may say with reference to the issues sought to be presented by this assignment, assuming the facts are sufficient to show the cattle were not shipped for. immediate sale on the market, that it appears to have been decided adversely to appellants’ contention. In Railway Co. v. Stanley, 89 Tex. 42, 33 S. W. 109, the Supreme Court says:

“It is insisted, however, that, since the testimony showed that the cattle were not' shipped for immediate sale, but were to be put upon phstures and fattened, and then sold, the court erred in charging the jury that the measure of the plaintiff’s 'damages was the difference. between the market price of the cattle in the condition in which they were delivered at El-gin and what their market price would have been at that place had they been carefully cared for during the trip, and that it also erred in refusing a charge to the effect that the plaintiff was entitled only to recover the amount of the additional expense to which he was subjected by reason of their injuries in preparing them for market. We think the court gave the correct measure of damages. That the rule laid down is the ordinary rule * * * in this state and in other jurisdictions. We see nothing in this case to take it out of the ordinax-y rule.”

After quoting from Railway Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444, 37 L. Ed. 292, and further discussing the rule, the Supreme Court further said:

“From a logical standpoint, the rule of the difference in market value is also the correct one. To make the plaintiff whole he should recover a sufficient sum to enable him to. sell the injured property and to replace it with that which is uninjured, without loss.”

The charge requested in this case would have given a different rule to the one established by the Supreme Court, which must be and is binding on this court and the trial court.

Whilst evidence of recovery and the manner in which the cattle thrived after the injury is proper, perhaps, to go before the jury for their consideration in determining the injury. actually received and the damages sustained thereby, it does not follow therefrom that 'the court should single out this evidence and tell the jury they should consider it. The Courts of Civil Appeals, in passing on requested instructions of this character, have held them to be charges on the weight of the evidence; and we believe properly so. Railway Co. v. Mulkey, 159 S. W. 111; Railway Co. v. Lindsey, 175 S. W. 708; Railway Co. v. Holmes, 177 S. W. 505; Railway Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Railway Co. v. Reed, 165 S. W. 4. This court has, on one or two occasions, held it proper to give such a requested charge, hut a more careful consideration leads us to the belief that the rule established by the Supreme Court will not sanction the practice, but that such a charge violates the statute which prohibits a charge on the weight of the evidence. Aside from the general rule, this particular charge, in our opinion, is especially objectionable as being on the weight of the evidence, and is also argumentative in its construction.

The third assignment is subjected to the same objections as the second assignment above considered. The trial court gave specially requested instructions asked by appellant, Nos. 9 and 11, which covered the issues sought by requested instruction No. 12, for the refusal of which the assignment herein is based. It would .have been improper to give requested charge No. 12 or to have repeated the same in the main charge, after having given the other two charges.

The fourth assignment is amenable to the same objection as to the second. However, the court did not err in refusing the third specially requested charge. This charge sought to have the court instruct the jury the appellants were not insurers of the safe delivery of live stock at any particular time, but only to use ordinary care under the circumstances of the shipment. The charge of the court only permitted a recovery upon proof of negligence, and also gave the sixth and eighth specially requested instructions. The sixth instruction was to the effect that, if the jury should find that appellants were negligent in handling the cattle, yet they would not consider any damages which resulted from the weak and poor condition or from the inherent nature, vices, or propensities. The eighth instruction defined rough handling and told the jury not to take into consideration any damages which were the result of usual or natural rough handling necessarily incident to handling cattle in freight trains, and that they would not find any damages for rough handling unless they believed appellants “failed to exercise ordinary care” in handling the cattle and cars in which the cattle were transported. Negligence was defined by the court in the main charge, and the jury were also told in order for the appellees to recover the jury were first required to find unreasonable delay, and that such unreasonable delay was negligence on the part of appellants. There was no recovery sought or submitted because the cattle were not delivered at any particular time. The charge of the court, together with the special instructions given, we think, submitted fully and fairly the law applicable to the case. Without setting out this requested charge,- we also agree with appellee that it was upon the weight of the evidence.

We may say, however, if there was no unreasonable delays, no rough handling out of the ordinary, or that the cattle were damaged owing to their nature or condition, or by causes over which the carrier had no control, and if the carrier used ordinary care, there could be no recovery. The trial court so told the jury in the charges given, and to have further charged the jury that the carriers were not insurers against those things would have added nothing to the strength -of the charge.

The fifth assignment of error is subject to the objections that the brief does not show that charge No. 10 was presented at the proper time and exceptions properly taken to its refusal. The objection of appel-lees will be sustained to this assignment. However, we do not believe there was any error in refusing the requested instruction, especially in view of the charges, both general and special, given on the entire case, and particularly requested instruction No. 9, on substantially the same issue sought to be submitted by charge No. 10. If the appellants desired that No. 10 should be given instead of No. 9, they ought not to have requested No. 9., It was unnecessary, we think, to give both.

The sixth assignment is not properly briefed for the reasons heretofore pointed out under the preceding assignments. We think that appellees’ objection to the statement under this assignment should be sustained. The charge requested is clearly on the weight of the evidence singling out certain facts which in part were claimed as an excuse for the delay. These acts so singled out were not all which it is claimed contributed to the delay, and to have designated such acts and then tell the jury if they found such acts not to consider such delay was error under the issues in this case.

The seventh assignment should not be considered, for the reasons pointed out by appellees in their objection. The assignment itself is not a proposition. It would authorize the presentation of the proposition that the charge authorized a double recovery of damages because there were several grounds of recovery stated in the charge, and that some of the elements are included in and are part of the other elements. In the motion for new trial, the basis of this assignment is grounds Nos. 50 and 51, both of which are involved' and prolix. There is but one proposition under this assignment; that is, that the charge by its enumeration of the various grounds of alleged negligence thereby “unduly emphasizing and placing before the jury the idea that the court thought there were undue delays and undue holdings of cars,” etc. The proposition is not relevant to the assignment and was not included therein. The statement under this assignment says the appellants objected to the court’s charge for these and other reasons, “as will appear from the list of such exceptions, being termed bill of exceptions No. 1, beginning on page 31, and extending to page 41, in the transcript.” This bill is composed of some 30 paragraphs. This statement does not even point us to the paragraph where the objection can be found, or state whether the objection was the one in the assignment or the one contained in the proposition, or whether the objections contained both. It does not even inform us that the objections were made and. presented to the trial court before or' after the charge was given to the jury. It will take no argument to show the brief as to this assignment neither complies with the rules nor the statute. We do not feel called upon to search this long bill of exceptions to ascertain what objections were made to the charge and whether made in proper time.

The eighth assignment complains the verdict is excessive. The appellants conclude their brief with an argument in which they say they are complaining of the excessiveness of the verdict for the bearing it will have upon the other assignments presented, “rather than with any expectation that if it stood alone it would be sustained in the form presented.” This assignment is overruled for the reasons given by appellants.

The case will be affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PANHANDLE & S. F. RY. CO. et al. v. VAUGHN.
    (No. 1059.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1916.
    On Motion for Rehearing, Jan. 3, 1917.)
    1. Trial <&wkey;194(20) — Instructions — Singling- Out Evidence.
    In an action for damages to a shipment of cattle, a requested charge that, if the cattle were damaged when unloaded as a result of failure to transport them with reasonable care and dispatch, but- the damages were temporary and such as should have been overcome within a reasonable time by the exercise of reasonable care on the shipper’s part, the jury in estimating the damages should consider their temporary nature and the decree to which the cattle would have recovered with proper care and handling by the shipper should be refused, because on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 439; Dec. Dig. &wkey;194(20).]
    2. Carriers &wkey;>228(3) — Live Stock — Damages — Evidence.
    ⅛ such action evidence as to temporary damages to the cattle and the degree to which they would have recovered with proper care and handling by the shipper was admissible upon the real injury and as affecting the question of damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dee. Dig. <⅞^>228(3).]
    3. Appeal and Error &wkey;>230 — Objections at Trial — Evidence—Timely Objection.
    ' In an action for damages to a shipment of live stock, where the shipper testified that his cows were worth $5 less in the condition they were on arrival than if they had arrived in reasonably good condition, an objection, after he had fully answered, without any request to have the testimony stricken from the record, was too late to afford a ground of exception.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;230; Trial, Cent. Dig. § 183.]
    4. Trial <&wkey;252(7) — Instruction—Applicability to Evidence.
    In such action a charge not to consider any application or order for cars made at one point to be furnished at another point as binding upon the defendant held properly refused as inapplicable to the evidence.
    [E'd. Note. — For other cases, see Trial, Cent. Dig. § 602; Dec. Dig. <&wkey;252(7).]
    5. Trial <&wkey;191(ll) — Instruction—Assumption of Fact — Negligence—Loading Live Stock Shipment.
    In an action for damages to a shipment of live stock from delay, etc., a requested charge that the jury should not consider damages to the cattle by reason of the cows and calves being loaded in the same car was properly refused, as it assumed that it would be negligence to load them together, and excluded the question of ordinary care in so loading them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 431; Dec. Dig. &wkey;191(ll).]
    6. Carriers &wkey;>230(12) — .Live Stock — Action for Damages.
    In such action the submission of the measure of damages based on their market value at a certain point held warranted by the evidence as to their market value at such point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. &wkey;230(12)J
    7. Carriers &wkey;>228(3) — Live Stock — Action por Damages — Evidence.
    In such action evidence as to the time in which a witness had made a shipment over the same roads as far as a certain point was admissible, where the testimony showed that the conditions connected with the shipments were similar.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <&wkey;>228(3).]
    8. Carriers <&wkey;218(8) — Live Stock — Action por Damages — diability.
    A carrier must use ordinary care to prevent injury to cattle while in the pens awaiting shipment, after acceptance for transportation if such care, feeding, etc., becomes necessary on account of a delay, notwithstanding the contract of shipment required the shipper to care for the cattle while in the pens awaiting shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 074-096, 927,928; Dec.Dig. &wkey;218(8).]
    9. Appeal and Error <&wkey;1067 — Harmless Error — Instructions—Refusal.
    In an action for damages to a shipment of live stock, the refusal of defendant’s charge that, if it had a train on which the shipment could have moved at a certain time, and that the movement of the cattle then would not have constituted an unreasonable delay, and that they would have been moved then if the shipper had not agreed that they might remain in the pens, a verdict should be found for defendant, in view of a similar general charge, and of the fact that some time intervened between the time the cattle were penned and the agent’s conversation with the owner, if erroneous, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dee. Dig. <&wkey;1067; Trial, Cent. Dig. § 475.]
    10. Appeal and Error &wkey;>1050(l) — Harmless Error — Admission op Evidence.
    In an action for damages to a shipment of live stock from delay in transportation, etc., error, if any, in permitting an experienced shipper to testify that the cattle were damaged by delay in the pens, in view of the verdict, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. @=>1050(1).]
    On Motion for Rehearing.
    11. Appeal and Error &wkey;>171(l) — Presentation op Question — Requested Charge — “Change op Theory.”
    Where appellant submitted specific grounds embodied in a peremptory charge why it should be submitted to the jury, he cannot on appeal sustain the charge upon another and different ground not presented in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1053; Dec. Dig. <&wkey;>171(l).]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Action by Tom Vaughn against the Panhandle & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.

      Terry, Cavin & Mills, of Galveston, Baker, Botts, Parker & Garwood, of Houston, H. S. Garrett, of San Angelo, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and C. E. Mays, Jr., of San Angelo, for appellants. Mathes & Williams, of Plainview, for appel-lee.
   HENDRICKS, J.

The appellee, Tom Vaughn, sued the Galveston, Harrisburg & San Antonio Railway Company, the Kansas City, Mexico & Orient Railway Company of Texas, and the Pecos & Northern Texas Railway Company to recover damages on account of a shipment of cattle from Marfa, Tex., to Plainview, Tex., alleging twenty-six hours’ delay at Marfa on the part of the Galveston, Harrisburg & San Antonio Railway Company, in loading out said cattle after receiving the same, and five hours’ delay on the line of the Pecos & Northern Texas Railway Company at Sweetwater, Tex., before unloading them at such point, and an additional delay by said company of five hours after the same had been reloaded before they were forwarded from Sweetwater. It is averred that 15 head of the cows died, of the value of $55 each, also 5 head of calves died, of the value of $10 each, and that the remainder of the shipment was injured to the extent that they were worth $5 less than they would have been if properly transported.

Upon the submission of a general charge the jury found against the defendant Galveston, Harrisburg & San Antonio Railway Company the sum of $286.25, and against the defendants Pecos & Northern Texas Railway Company and the Panhandle & Santa Fé Railway Company the sum of $795, and in favor of the defendant Kansas City, Mexico & Orient Railway Company, in accordance with a peremptory instruction of the court.

The Panhandle & Santa Fé Railway Company became a party defendant by an amendment, in which it is alleged that the Pecos & Northern Texas Railway Company had changed its name to that of Panhandle & Santa Fé Railway Company. •

The defendant seasonably requested the trial court to give the following special charge, No. 7, the refusal of which is complained of by the first assignment of error:

“Although you may believe from the evidence that plaintiff’s cattle were damaged when xm-loaded at Plainview, Tex., and further believe that such damages, or any portion thereof, resulted from the failure of defendants to transport said cattle with reasonable care and dispatch, yet 'if you further believe that'such damages were of a temporary nature and such.as should have passed away or been overcome within a reasonable time by the exercise .of reason- . able care on the part of the plaintiff for his cattle, then in estimating the damages to.plaintiff’s cattle which were not dead upon arrival at Plainview, if you find..that any of his cattle were damaged,, you shall take into consideration the' temporary nature of such’injuries and damages,- and the degree to which said cattle would haye recovered after .arrival at plainview, with the exercise of proper care and handling by the plaintiff.”

The above charge is in a different form from most of the charges of a similar character, and has embodied within it a different element (that of ordinary care on a collateral issue) than we are able to find passed upon by the higher courts. Ordinarily a charge of this nature, passed upon by the appellate courts, is one instructing the jury that they may take into consideration any subsequent recuperation or recovery of weight or shrinkage in estimating plaintiff’s damages.

The above question has been much mooted and considerably discussed in the appellate courts of this state, and we have concluded that the better rule is that such a charge should be refused because it is on the weight of the evidence in singling out a part of the same and giving undue prominence thereto. The testimony, of course, is admissible as relevant to the real injury to the cattle and as affecting the question of damages, measured by the difference in the market' value. This question was considered by this court in the case of Panhandle & Santa Fé Railway Co. v. E. H. Norton, Appellee, 188 S. W. 1011, decided October 18, 1916. The general charge of the court in that case was in effect that in arriving at the amount of the damages the jury could take into consideration the question of the recovery, and if they found and believed that the animals entirely recovered, and after such recovery were of the same or greater market value as they would have been if such injury had not occurred in the first instance, to find against the plaintiff and in favor of the defendant. The Panhandle & Santa Fé Railway Company complained of that charge, and, while the court held the charge erroneous, it was held that it was a charge benefiting the defendant, and not the plaintiff. The rejected special instruction herein is, in effect, that if the jury believed that the damages or injuries were of a temporary nature and such as should have passed away or been overcome within a reasonable time, by the exercise of ordinary care on the part, of the plaintiff in handling his cattle, they “shall take into, consideration the. temporary nature of such injuries and damages and the degree to which said cattle would have recovered after arrival at Plainview with the exercise of proper care and handling by. the plaintiff.” • The injected element of a recovery based upon the hypothetical exercise'óf proper care and handling by theplain-tiff,would have been wholly erroneous to háve submitted tp the. jury. The degree to which the cattle would have recovered, with the exercise of proper care and handling by, the owner, would have beep a collateral" issue, and the real merits of the cáse could' have been switched.to the extent as to wholly contuse the jury in arriving at a just verdict. A charge óf a similar, character is also discussed in the case of Panhandle & Santa Fé Railway Company et al. v. Morrison, 191 S. W. 138, decided this day, November 29, 1916, by this court, except that the question of ordinary care on the part of the owner, also injected into that charge, is not adverted to. Those two cases cite the numerous authorities on the general question.

The plaintiff, Tom Vaughn, was permitted to testify over the objection of defendants that his cows were worth $5 less in the condition they were in on arrival at Plainview than they would have been worth had they been in reasonably good condition when they arrived at destination. The trial court qualified the bill of exceptions, which qualification is not shown by appellant’s statement that:

“No objection was made ,to the testimony or answers until' witness had fully testified on the point interrogated about, and then no request to have said testimony stricken from the record was made.”

We have found many authorities discussing questions approximating the particular question, but very few that decide the exact point. The bill of exceptions does not show any reason why appellants’ attorneys waited until the answer had been fully made before the objection was expressed. The bill shows that the questions were explicitly framed, at least sufficiently so to apprise counsel of the nature of the answer attempted to be elicited. Justice Hurt said:

“But, concede their iricompetency, the questions to this witness were' not so framed as to preclude objections when the evidence was admitted by the defendant, and he will not be permitted to speculate on the answers.” Gonzales v. State, 30 Tex. App. 203, 16. S. W. 981.

Circuit Judge Adams, in the case of Railway Co. v. Duke, 192 Fed. 309, 112 C. C. A. 567, uses the following language:

“After the answer was, given, the defendant for the first time objected to the question and answer and on adverse ruling saved an exception. This practice of permitting a question’to be ans-wered without objection, and, if perchance the answer be unfavorable, to then object to.both question and answer, .is not proper or fair practice. It permits a party to speculate on the chances of a'favorable answer before committing himself against the question.”

See Jones on Evidence, Blue Book, vol. 5, § 893, p. 367.

The fourth assignment of error complains of the refusal by the trial court of the following requested charge:

“You are charged- not to consider any application or order for ears made át Alpine, Tex., by the plaintiff or his agent, to be furnished at Marfa, as.binding upon the defendants in this case.”

- The cattle were purchased by Vaughn from one Gist. Gist was po deliver the cattle in the pens at Marfa preparatory for shipment, and an order was made for cars at Alpine, another and different station, in some manner communicated to the agent of the Galveston, Harrisburg &' San Antonio Railway Company at Marfa. The trial court charged the .jury that," if the defendant Gálvéston, Harrisburg & San Antonio Railway Company, as alleged in the petition, received and accepted the cattle for transportation, and “after receiving and accepting said cattle for transportation” unreasonably delayed the loading or shipping of said cattle, etc., to find for the plaintiff. Gist -testified that he had a talk with the agent of the Galveston, Harrisburg & San Antonio Railway Company at Marfa, and' was told that the cars would be ready the next' morning, June 11th, at Marfa. He also testified that the agent told him to get the cattle and put them in the pens and that he would have a train there to take them out when they got them in the pens. Gist’s broker or agent at Alpine, it seems, had made the particular trade and sold the cattle to Vaughn. Gist also testified:

“We asked the agent about the cars, and I think, if I am not mistaken, he said the cars had been ordered by the agent who sold my cattle to Mr. Vaughn from Alpine.”

The agent, Hubbard, of the Galveston, Harrisburg & San Antonio Railway Company at Marfa, testified:

“The cattle were .placed in the pens at Marfa by the parties in charge before the bills of lading were issued. The cars for these cattle were oi’dered on the 9th of June. That was the first information I had. The order was placed at Alpine, and I was informed of it. * * * The shippers told me the cattle were on the road into Mar-fa on the 10th of June, and that they would be in Marfa the next day, and they told me on the 11th of June at 1:20 p. m., I believe it was, that they would be there in half an hour, and they got there, as they told me, at 3:20. I made a record of these things.”

It is shown without controversy that the agent was acting upon the application for the cars made at Alpine, and acquiesced in to that extent that the special charge mentioned above, if submitted to the jury, would have been inappropriate. The authorities cited by appellants do not apply to this character of case.

The appellants complain in their fifth assignment of error of the refusal of the trial court to submit a special charge to the jury that they should not consider any damages caused to the cattle “by reason of the cows and calves being loaded and mingled in the same car.” This charge assumes that it would be negligence to load cows and calves together, and does- not submit to the jury the propriety or question of ordinary care in loading cows and calves in the same cars.

The sixth assignment of error is overruled for the same reasons presented for overruling the fourth assignment.

The only proposition under the seventh assignment of error presents the following complaint:

“The court was not authorized to submit the measure of. damages contained in paragraphs 5 and 8 of the main -charge, because there' was no evidence as to the market value of such cattle at Plainview, Tex., at the time and in the condition that they actually arrived.”

-Paragraphs-6 and 8 of the court’s charge,, each addressed to the. measure of damages applicable to the Galveston, Harrisburg & San Antonio and the Panhandle & Santa Fé, were in form a correct charge on that subject. The appellants in their assignments assert that subdivision' “C” of paragraph 2 of their written objections and subdivision “C” of paragraph 4 of their written objections complain of the respective paragraphs of the court’s charge. The objection in each instance is “because there is no competent testimony to prove the measure of damages applicable to this case.” The point made in the proposition is that there was no evidence as to the market value of the cattle at Plain-view at the time and in the condition that they actually arrived. A general objection of the nature indicated would be of very little avail to a trial court for the purpose of correcting any supposed error, for the reason that in a record of this kind and a trial of this length a trial court could readily say that there was competent testimony tending to prove the measure of damages applicable to the case. The particular point in the proposition was not presented to the trial judge. However, the plaintiff, Vaughn, did testify:

“I was familiar with the value of such cows as these at Plainview at that time. Cattle were selling here then from $55 to $60. Cows such as these were worth $60 at that time.”

There was considerable testimony of injury to the cattle on account of their shrinkage resultant from the. delay. As shown, Vaughn testified they were worth $5 per head less than they would have been worth if they had arrived at Plainview in a reasonably good condition. The assignment is overruled.

The witness Gist, while testifying in behalf of the plaintiff, stated that in May, 1914, he made a shipment from Marfa, Tex., to Littlefield, Tex., over the same roads as plaintiff’s shipment, as far as Lubbock, Tex., and said that they made the shipment in less than 36 hours. This -testimony was objected to for the reason that one shipment made by the witness in May would not tend to fix a standard or prove whether defendants were negligent in handling plaintiff’s cattle, and because it was not shown that witness’ cattle were shipped under similar conditions, the same number of cars, in the same kind of train, and that said'witness was not qualified to say what would have been an ordinary run from Marfa to Plainview.

The only proposition, however, under the eighth assignment is that:

“It was error to permit said witness to testify as to the time made by another of defendant’s trains, in the absence of a showing that the conditions connected with said shipment and said train were similar.”

The trial court also qualified this bill by stating that the witness had testified that his shipment came over the same road from the initial point as far as Lubbock, and then gave the distance from Lubbock to Littlefield, the latter being the destination of witness’ shipment, and also the distance from Lubbock to Plainview,' and further testified that he was with the Vaughn shipment as far as Sweetwater, and that the trains carrying each of these shipments were the same. Appellants say:

“The qualification by the court is not supported by the record, in that the witness nowhere testified to the distance from Lubbock to_ Plainview, or that the trains carrying the shipments were the same.” ’

This witness testified as to the distance from Lubbock to Plainview in this manner:

“It is 39 miles from .Lubbock to Littlefield, and they call it 48 miles from Lubbock to Plain-view.”

He also said:

“The train on which Mr. Vaughn’s cattle were carried was about the same kind of train as the one on which my cattle were transported in May.” “My cattle were on a fruit ti-ain over the Orient, and Tom’s was too.”

The real question asked this particular witness to which objection was made was:

“Do you remember, or can you recollect, how long you were in shipping, how long these cattle were in being shipped from Marfa to Lubbock?”

The comparison really was as to the time taken in making the two runs over the same roads from Marfa to Lubbock. If the similarity of conditions is an ingredient to the materiality of this testimony, we think the same were sufficiently similar for that purpose, as shown by the testimony. The assignment is overruled.

The plaintiff requested special charge No. 1, which was given by the court to the jury as follows:

“You are charged that it was the duty of defendant the Galveston, Harrisburg & .Sun Antonio Kailway Company to use ordinary care to prevent injuries to plaintiff’s cattle while same were in the pens awaiting shipment after they had been received and accepted by said defendant for transportation, and if after said cattle were received by said defendant for transportation, it became necesfeary that said cattle Should be fed to prevent injury, and said defendant did not use ordinary care to feed said cattle, and such failure was negligence, and because of such failure, if any, plaintiff’s cattle were injured, then said defendant would be liable to plaintiff for all damages if any, caused said cattle by such failure, if any, of said defendant.”

It was objected that the charge was erroneous because the defendant was not charged with the legal duty to feed plaintiff’s cattle while in the pens awaiting transportation ; because by the terms of the written contract the plaintiff was expressly enjoined with the duty to take care of and feed his cattle while in the pens at Marfa awaiting transportation; because the special charge absolutely ignores the fact that it was the plaintiff’s duty to exercise ordinary care to feed his cattle while in the pens at Marfa, and ignored defendant’s defense of contributory negligence in this respect; because the charge ignores the issue as to whether or not the plaintiff agreed or acquiesced in the delay at Marfa, and places the duty upon the defendant, regardless of whether plaintiff consented to the delay at Marfa and undertook to care for the cattle himself. However, the only propositions under this assignment are as follows:

First. “It was error for the court to give such special charge because the same places upon the defendant Galveston, Harrisburg & San Antonio Railway Company the duty to care for and feed plaintiff’s cattle while in the pens, when the testimony is conflicting as to whether or not said defendant had received said cattle for transportation.” Second. “It was error * * * because, as a matter of law, it was plaintiff’s duty to feed and carevfor his cattle until they had been received by the Galveston, Harrisburg & San Antonio Railway Company for immediate transportation, and the testimony in this case shows that said cattle were not so received by defendant until the 12th of June, 1914.”

It is noted that the special charge did not devolve the duty upon the railway company to feed and care for the cattle, unless it became necessary to do so, and not until after they had been received and accepted by the defendant for transportation. These cattle were placed in the pens on the 11th at Marfa for shipment, and were not shipped until the 12th. The agent of Galveston, Harrisburg & San Antonio testified: that they were brought in and placed in the pens at 3:20 p. m., and that the shipper reported them ready for shipment at that time on the 11th. It is shown that the order for the cars received by him from Alpine on the 9th of June was really accepted by him for that purpose. He testified that the shippers told him that the cattle were on the road into Marfa on the 10th of June, and would be there the next day, and that he made a record of all these things. Gist, representing the plaintiff, testified that he had a talk with the agent at Marfa on the morning before the cattle were brought in (the 10th), and the agent told him the cars would be ready the next morning (the 11th) at Marfa; that the agént said to go ahead and get the cattle and that they would get out as soon as he got them in; that the agent told him to-go ahead and get the cattle and put them in the pens and that they would have a train there to- take them out when they got them ip the pens, and they remained in said pens thereafter for about 30 hours. There is not the slightest testimony in this record that the Galveston, Harrisburg & San Antonio Railway Company’s agent in any -manner refused to receive the cattle as a representative of the carrier at the time they were placed in the pens. It is clearly inferable that at first, as between the agent and the other parties, there was every expectation of an immediate shipment. It is true this agent testified:

“The cattle were in the pens and partly in the cars at Marfa when I first saw them.”

However, there was considerable done and said previous to that time with reference to the penning of the.cattle and the expectation of shipment. We do not think the testimony is conflicting as to whether the defendant received the cattle for transportation ; neither do we thihk that the testimony shows that the cattle were not received by the defendant’s agent until the 12th of June, 1914, as raised in the two propositions mentioned. The contract was not signed until the cattle were loaded.

“The duty of feeding and watering the cattle, if it became necessary on account of the delay, devolved upon defendants while the cattle were awaiting shipment in their pens, notwithstanding the fact that the contract of shipment containing the provisions set out above was offered in evidence. The company’s responsibility attaches as soon as the cattle are delivered to it in its pens, after which time a failure to exercise ordinary care on its part to prevent injury would render it liable in damages to the owner.” Railway Co. v. Crawford, 146 S. W. 330, and authorities therein cited.

The ninth assignment is overruled.

The tenth assignment of error is a complaint of the trial court’s refusal of defendant’s special charge No. 13, which was, in substance, that if the jury believed from the testimony that the Galveston, Harrisburg & San Antonio Railway Company had a train on which the shipment could have moved at about 4 o’clock In the afternoon of June 11, 1914, and that the movement of the cattle at the time would not have constituted an unreasonable delay on the part of the Galveston, Harrisburg & San Antonio Railway Company, and that said defendant would have moved plaintiff’s cattle on said train had it not been for the acquiescence on the part of plaintiff, Vaughn, that said cattle remain in the pens at Marfa until the next day, in order that they might be transported without unloading at Alpine, Tex., a verdict should be returned in favor of the Galveston, Harrisburg & San Antonio Railway Company.

The trial court in his general charge instructed the jury:

“But you are further charged that you cannot find against said defendant for any damages suffered by plaintiff’s cattle, if any, because of plaintiff’s agreeing to or acquiescing in the suggestion of the defendant’s agent that the cattle be hot shipped from Marfa to Alpine on the 11th day of June.”

The plaintiff, and .his witness Gist testified that these cattle were penned about noon; the agent testifying that they were penned about 3:20 p. m. on the 11th, according to the report made .to him by the shipper. As stated, the cattle did not leave Marfa until the next day' for alpine, at which point they were to be delivered to the Orient, a connecting carrier. The plaintiff further testified that the agent at Marfa informed him that there would be no need to make a shipment of cattle on the 11th, as he .would not make the connection at Alpine, and he was informed of this fact late in the evening after they had penned the cattle and failed to get ¿ train. If we interpret the statement of facts correctly, if plaintiff had shipped his cattle to Alpine on the 11th, there would have been no train at that place on the Orient fdr the purpose of forwarding the cattle; hence they would have had to' have been unloaded again and reloaded for the continued transportation. The primary cause of the delay, from plaintiff’s theory, was the failure to immediately ship the cattle by the Galveston, Harrisburg & San Antonio Railway Company when they were placed in the pens for that purpose. It is noted that there was about 30 hours’ delay at Marfa, and the jury only returned a verdict of $286.25 against the Galveston, Harrisburg & San Antonio, though returning a verdict of $795 against the Santa Fé. If the cattle would have had to have been unloaded at Alpine on the 11th, there would have been more injury on that account than to have stayed in the pens at Marfa. It is clear from the record that there was some period of time intervening between the time the cattle were penned and the conversation that occurred between the agent and the owner of the cattle on the afternoon or evening of that date. There is, of course, a technical difference between the two charges, the one requested by the defendant Galveston, Harrisburg & San Antonio Railway Company and the one given by the court, but it is unlikely that any injury accrued to the defendant on account of the refusal of its charge. The tenth assignment is overruled.

Reverting to the third assignment of error, it is complained that the trial court should not have permitted the witness Gist to testify, over the numerous objections of the defendant, “that by reason of the delay in the pens at Marfa he would consider that the plaintiff’s cattle were damaged about $2* or $3 per head.” The first proposition asserts that this was an opinion and conclusion of the witness and inadmissible on that account; the second, that the testimony was inadmissible because it is not a proper method of proving the measure of damages; the third, because from the witness’ own statement he was shown not to be qualified to give the testimony. This witness had more than 25 years’ experience in the cattle business. At the time of the trial he owned and conducted four ranches, had bought and sold a great many cattle, and had had considerable' experience in shipping cattle, and had made several shipments of cattle from the station at Marfa, two of which were in the section of country in which Plainview was situated. He testified: ’

That holding the cattle in the pens at Marfa affected t'heir flesh and strength and rendered them less fit to stand the shipment. “The holding of these cattle at Marfa in the pens injured them — holding them there and starving them for twenty-six hours. It was bound to weaken them. It decreased their flesh and weakened their condition, and that would certainly affect their market value. If these cattle had gone on to Plainview without suffering any injuries, except such as cattle necessarily suffer, they would have been worth less at Plainview than they would have been worth had they not been held in the pens at Marfa so long. From my experience as a Shipper, considering the distance these cattle were shipped and the condition they were in, these cattle could have been shipped from Marfa to Plainview, and should have arrived there in ordinarily good condition. I don’t see why they could not.”

While this witness’ testimony assigned as erroneous indicates that he hesitated considerably in delivering his opinion, and at one period in the examination stated that he could not give it because he had not seen the cattle at Plainview when they arrived there, it is, however, evident from the experience of this witness as a cattleman and as a shipper he-had a conception of what would constitute a usual run as to this particular shipment. He was with these cattle during the time of the delay at Marfa, and did not leave the train until they arrived at Sweetwater, where they were delivered to the Santa Fé for transportation to Plainview. The jury on account of the small verdict against the Galveston, Harrisburg & San Antonio evidently took into consideration the alleged acquiescence of Vaughn, the owner of the cattle, to the agent’s statement at Marfa in holding them from the 11th to the 12th for shipment. The shipper had already testified that the cattle were damaged some $5 per head, and the market value of the particular cattle at Plainview at the time of delivery was sufficiently shown. If the admission of this testimony could be held to be technically erroneous, which we seriously doubt, considering, however, the whole record, we likewise think with reference to this assignment that the testimony was wholly harmless.

It is unnecessary to discuss the eleventh assignment of error, which is practically a review of the whole case- and of the same matters raised in previous assignments.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Complaint is made in the motion for rehearing that we merely overruled the eleventh assignment of error, with the statement that said assignment raised questions disposed of and discussed under other assignments of error. It is said in addition to the questions raised by preceding assignments that the eleventh assignment raises the question of a release clause in the shipping contract pleaded by the appellant Galveston, Harrisburg & San Antonio Railway Company of all claims for damages occurring prior to the loading of the cattle.

The particular question we did not discuss, because it was 'not raised by the assignment. The third proposition under this assignment does assert that all damages arising prior to the signing of the written contract were released, for a consideration, in a particular provision of that contract. The assignment, however, is a complaint of the refusal of the trial court of a peremptory instruction requested by the Galveston, Harrisburg & San Antonio Railway Company. It is to be noted that the special charge had appended to it, as suggestions, and as advisory instructions to the trial judge, five distinct grounds why a peremptory verdict should be returned by the jury, and not one of them raises the question that the shipper, by a special contract, released all damages accruing prior to the time the written contract was signed and the cattle were loaded at Marfa. The peremptory instruction, with the fire grounds asserted therein for the peremptory verdict, with a motion in hsec verba for new trial based thereupon, and the assignment necessarily predicated literally upon the same, and not including the particular proposition, excludes the point.

The trial court in his general charge submitted only the liability of the defendants based upon their duty as a common carrier. Appellant’s brief in this court does not complain, one way or the other, as to any omission in not submitting a written contract to the jury. Plaintiffs pleaded an antecedent oral contract to the written contract with the usual allegations that the latter was signed after the cattle were loaded, and the court did not submit, so far as we are advised, the written contract. Whether the trial court regarded the oral contract as proven neither are we informed by the briefs, and there is no complaint in that respect of the general charge of the court.

In this condition for appellant to submit specific grounds embodied in a peremptory charge why the same should he submitted to the jury, and in this court to then assert a proposition to sustain the charge upon another and different ground never presented to the trial court, will not be considered, especially in view of the record.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    THOM v. FIRST NAT. BANK OF NEW BOSTON.
    (No. 1687.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1916.
    Rehearing Denied Jan. 4, 1917.)
    Usury <&wkey;141 — Penalty — Right to Recover.
    The maker of a note for the purchase price of land who paid no usurious interest, and no more than he agreed to pay for the land, cannot recover the penalty for usury from a bank to which the note was transferred in payment of a previous note of the payee which did include usury.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 427; Dec. Dig. &wkey;>141.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge."
    Action by the First National Bank of New Boston against J. A. Thom. Judgment for plaintiff on its action, and denying relief to defendant on his cross-action, and defendant appeals.
    Affirmed.
    J. B. Manning, of New Boston, for appellant. Johnson & Boswell, of New Boston, for appellee.
   LEVY, J.

Appellee sued J. A. Thom, as maker, and J. M. Smith, M. J. Smith, and Ann Smith, as indorsers, of two notes executed by J. A. Thom in part payment of the purchase price of 57 acres of land. One of the notes was.for $220, and the other for $70, each due and payable to the order of James M. Smith on November 1, 1914. James M. Smith, in the due course of trade and for a valuable consideration, transferred the notes by indorsement to the bank.

J. A. Thom by cross-action sought to recover of the bank the penalty for alleged usurious interest. The court sustained a demurrer to the cross-action. And the question for review on appeal is only as to the ruling of the court in sustaining the demurrer.

It is believed that there was no error in the ruling of the court. It does not appear from the allegations in the cross-action that appellant paid any usurious interest. When appellant executed and delivered to Smith, as part of the purchase price of the land, the note, such note became the absolute property of Smith. And when the bank accepted the note from Smith in payment of the alleged previously executed note charged to be usurious, then the bank received and collected from Smith, and not appellant, the alleged usurious interest. The effect would be to make Smith the person paying usurious interest, if the interest was usurious at all. Roberts v. Coffin, 22 Tex. Civ. App. 127, 53 S. W. 597; Taylor v. Sturgis, 29 Tex. Civ. App. 270, 68 S. W. 538; Taylor v. Shelton, 134 S. W. 302. And it does not appear that appellant was paying for the land a greater sum than he obligated himself to pay unto Smith, his vendor. Association v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580; Association v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825.

This judgment is affirmed.


author: RAINEY, C. J.

text:
    RICHARDSON et al. v. GENERAL ASSEMBLY OF THE CHURCH OF THE LIVING GOD et al.
    (No. 7649.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 6, 1917.)
    1. Religious Societies &wkey;>25 — Interference —Injunction.
    In suit by the General Assembly of a church to restrain former preachers of a congregation from interfering with the congregation’s use of its church property, evidence, although .somewhat conflicting, held to conclusively show that defendants were so acting as to disturb the congregation by interfering with the affairs of the church as to its control and peaceful management.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. §§ 154-167; Dec. Dig. <&wkey;25.]
    2. Religious Societies <&wkey;4 — Incorporation —Acquiescence.
    Where a church was operating under a charter adopted by a large majority of its members and for some time acquiesced in by defendants, it had a right to proceed without interference from defendants, whether or not the provisions of the charter were in accord with the ideas of defendants.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. §§ 3, 5-14; Dec. Dig. &wkey;’4.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Suit by the General Assembly of the Church of the Living God and another against W. H. Richardson and another. Prom judgment for plaintiffs, defendants appeal.
    Affirmed.
    W. R. Bishop and J. J. Paulk, both of Athens, for appellants. E. P. Miller, N. Prank Paulk, and W. L. Paulk, all of Athens, for appellees.
   RAINEY, C. J.

This is a suit by appellee the General Assembly of the Church of the Living-God and Charlie Chase against appellants W. H. Richardson and J. S. Pendle-ton, seeking to restrain “the defendants, or either of them, from further using or in any wise interfering with the plaintiffs’ use and enjoyment of said property and premises.” A writ of injunction was issued.

Appellants answered by general demurrer and various special exceptions, by general denial, and specially that appellant Richardson was a minister of the Church of the Living God; that he in 1905 organized and established a local church in Athens; that under his administration and work said church grew and rapidly increased in membership, so much so that they needed a place of worship, and in February, 1916, he and other members of said church bought the lot and built the house, and that the same was then and there dedicated exclusively for religious purposes; that the deed was made to Chas. Chase, Berry Miller, and Benny Boggfess, as trustees for such church, to be held by them and their successors in office; that Richardson and Pendleton were members of said church and have been ever since in good standing; that defendants have the right to hold said church for the purpose of worship, and that plaintiffs are attempting to change and pervert said property to other and different uses than that for which it was intended when bought and paid for; that the procuring of the charter by the General Assembly was a cunningly devised scheme to take said property, etc., and that it was done without the consent of the Church of the Living God. It was further pleaded that defendants and those with them had the right to take possession and control said premises, etc.

A trial was had on the merits, and judgment was rendered in favor of plaintiffs upon peremptory instructions given by the court; the injunction was perpetuated and defendants restrained from occupying or attempting to occupy said church building, or interfering with plaintiffs’ free use and enjoyment of the same in conducting the affairs of said church. Prom this judgment an appeal was taken.

Conclusions of Pact.

The Church of the Living God is a religious organization of the negro race. Its church government is composed of a General Assembly and local congregations. The General Assembly holds annual meetings and consists of delegates and preachers from all the local churches, and was organized over 20 years ago. Local congregations in church affairs act in accordance with the rules of the General Assembly, which is similar to the Methodist Conference, or the Presbyterian Church in General Assembly or Synod. It appoints preachers for the local churches, usually respecting the nomination made by the local church.

The local church of the Living God was established in Athens about 10 years ago by the General Assembly of said church. The organization has been continuously kept up ever since; preacher and deacons selected annually in accordance with the rules and regulations of the General Assembly. The Rev. L. G. Snell was the local preacher for and during the year 1914, and was returned by the General Assembly for the year 1915. Prom December 22 to 27, 1914, the General Assembly of said church was in session at Greenville, Tex.; while in session there the Revs. W. H. Richardson and J. S. Pendleton, the defendants in this suit, now appellants, were called on, as were all other preachers, to settle with the General Assembly for all collections made by them during the church year, and to pay all back indebtedness. A resolution was passed that all failing to do so should be silenced. On this resolution being passed the two defendants, the Revs. Richardson and Pendleton, tendered their resignations, which were accepted, and they immediately left the General Assembly before it adjourned. Defendant Richardson came immediately to Athens, stating he had been sent by the General Assembly to start a revival meeting at Athens, that many of the other preachers were coming right on from the Assembly to assist in it, and that the Rev. Pendleton would arrive on the next day. The day defendant Richardson arrived, he preached that night, .a collection was taken up for him ; he then and there obtained the consent of the congregation present and one of the deacons to carry on the revival until the preacher and delegates should return from the General Assembly, and announced that the Rev. J. S. Pendleton would preach there in the church the next night (Monday). During Monday defendant Richardson went around, saw several members, among others, Deacon Blanton, and invited them out to hear Rev. Pendleton preach, saying they were going to have a business meeting that night and elect new officers. Rev. Pendleton came, Richardson being present, and, as announced, Pendleton preached. After preaching defendant Pendleton asked all who were not members of the church to retire, saying that he was going to hold a business meeting and elect new officers, but Deacon Blanton protested, blew out the lights, and stopped the business meeting; the local preacher, Snell, some of the deacons and delegates to the General Assembly still being absent. On the next evening (Tuesday) the bell rang again, and the crowd turned out to the meeting. By this time the deacons and delegates had got back from the General Assembly, and Martin, the assistant local preacher for Athens, got up that night to preach, and defendant Richardson got up in the pulpit in front of him and said he (Richardson) was going to preach. The deacons tried to get Richardson to sit down; he would not, and they phoned for Sheriff Morrow, who went, found the congregation in an uproar, arrested Richardson standing in the pulpit in front of Preacher Martin. The sheriff said the crowd all seemed to be against Richardson. The assistant preacher (Martin) preached after Richardson was arrested and taken off. After preaching Martin announced he would preach there again the next night (Wednesday), and on Wednesday night both defendants, Richardson and Pendleton, were there sitting up in the pulpit. The meeting ran on all the week, Martin preaching, Richardson and Pendleton being there present. And every night after adjournment Richardson would announce that he would preach there the next-night. And one night in front of the church he halloed out loud that he was going to preach there the next night. One night during the meeting one of the deacons took a vote of the church on the question for all “who wanted to retain their preacher, Rev. Snell, and stand by the constitution of the church to stand up, and, after seating them, requested all that were opposed to stand up, and the vote stood 44 to 16 in favor of the church organization and retaining their preacher, Snell. The last night that Martin preached .Richardson still announced that he would preach there the next night and occupy the church, and they got the city marshal, Pinkerton, to keep order until they could get Judge Prince to grant an injunction. The night the city marshal was there is when they took the vote which stood 44 to 16. The deacons forbade Richardson and Pendleton preaching, and had to sue out an injunction to stop them. * * * On the 26th day of July, 1913, acting under appointment from the General Assembly, then being held in Marlin, Tex., several of the preachers, including the defendants, Richardson and Pendleton, drew up a charter incorporating the General Assembly; the purpose as set out in said charter was:

“For the protection of its property; organize and build church houses, chapels, auditoriums, and all other church edifices necessary for the dissemination and furtherance of the gospel truths and maintaining of orphanages and widows’ homes; purchase, own and hold all property bought, bequest or otherwise (under its corpo rate name) by any of its members or any person whomsoever; for maintenance of religious and charitable purposes; the said property shall forever be owned, controlled, and governed solely and exclusively for the purposes herein contained.”

This document was forwarded to the secretary of state for his action. He returned it, saying the purposes did not comply with the statute referring the committee to subject 2, art. 642, R. S. (now subject 2, art. 1121, R. S.), which he said would designate the corporation for which they were praying. Acting on this suggestion the subcommittee immediately went before Ben M. Richardson, an attorney at law at Athens and a notary public, and’ had him to draw the charter in accordance with the instructions from the honorable secretary of state. The purpose as made out by him under said section of the statute read as follows:

“The purpose for which it is formed the support of any benevolent, charitable, educational or missionary undertaking.”

This was immediately on the 15th day of August, 1913, filed in the office of the secretary of state. In this charter is included the names of the two defendants, Richardson and Pendleton, as trustees, and this is the charter the church has been acting under ever since it was filed in the office of the secretary of state, August 15,1913. The doctrines of the church were in no way changed, nor the church management, and the General Assembly went along meeting as it had before, each local church sending up its delegates and preachers as before, appointed to their respective charges. After the charter was issued in August, 1913, both defendants, Richardson and Pendleton, went right on and worked under it without complaint. After the charter was issued in August, 1913, a General Assembly was held right in Athens, a few months later in December, 1.913, at which said charter was voted on and adopted, both defendants, Richardson and Pendleton, were present at said December, 1913, General Assembly and continued working under this charter until December, 1914, at Greenville, when they resigned after being called upon to make settlement of funds in their hands. The books of the local secretary of the local church at Athens show that there are 106 members, and secretary testified that 88 of that 106 members were for retaining the church organization as it was then being carried on and their preacher, L. G. Snell, and only 18 in favor of defendants and Richardson.

Conclusions of Law.

(1) The first assignment of error complains of the court for giving a peremptory instruction to the jury to find for the plaintiffs, contending that the testimony was conflicting, and that the evidence fails to show the acts which authorized the writ of injunction. There is some conflict in the testimony of some of the witnesses on immaterial matters, but we are of the opinion that it conclusively shows that the defendants were so acting as to disturb the congregation by interfering with the affairs of the church as to its control and peaceful management. Plaintiffs had the right of possession of the property and a right to conduct their worship and control their affairs as they saw proper, without interference of defendants in any way. Richardson and Pendleton, although preachers, were not employed by the local congregation at Athens, nor were they acting under instructions of the General Assembly.

(2) Whether or not the provisions of the charter were in accord with the ideas of the defendants we think immaterial. The local congregation had the right to proceed under the charter without interference from defendants, which it had agreed to do by a large majority of its members.

(3) There are numerous assignments of error and propositions submitted by appellants, which we have considered, but are of the opinion that after all the evidence is considered, none warrant a reversal of the case, and that a proper verdict has been rendered.

The judgment is affirmed.
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author: LANE, J.

text:
    KRUEGER, County Judge, et al. v. GULF, C. & S. F. RY. CO.
    (No. 7763.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 8, 1916.
    Rehearing Denied Jan. 25, 1917.)
    1. Dedication ®=s37 — Street—Acceptance— Evidence.
    Where a recorded map of a town designated a street on each side of a railway reservation as if extending over and across it, and where the street, running through the center of the town, had been used as a thoroughfare for more than 30 years by travelers on foot and horseback, and by wagons, except heavy wagons, there was an acceptance of the part of the street which crossed the railroad track.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 73, 74; Dec. Dig. &wkey;37.]
    2. Dedication &wkey;>19(5) — Map or Plat — Streets — -Epee ct.
    The laying out of a town into blocks, lots, and streets and the making of a plat showing such streets, which plat was acknowledged and recorded, and the sale of lots by reference to it, was a dedication of such streets to those purchasing the lots, and to the public.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 46; Dec. Dig. &wkey;19(5).] •
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Suit for injunction by the Gulf, Colorado & Santa Fé Railway Company against C. G. Krueger, County Judge of Austin County, Tex., H. Waak and others, County Commissioners, and Theo. Brosig, Road Overseer of the Public Highways in the Town of Sealy. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment rendered for defendants.
    W. I. Glenn, of Bellville, W. I. Hill, of Sealy, and C. G. Krueger, of Bellville, for appellants. Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellee.
   LANE, J.

This is a suit brought by the Gulf, Colorado & Santa Fé Railway Company, appellee, against C. G. Krueger, county judge of Austin county, Tex., H. Waak, H. Peters, J. E. Schaffner, and Herman Schroeder, county commissioners of said county, and Theo. Brosig, road overseer of the public highways in the town of Sealy, in said county, to enjoin and restrain them, their successors in office, agents, and attorneys, from opening Third or Main street in said town over and across the right of way of said ap-pellee company.

Appellee alleged in its original petition that on January 23, 1880, Col. Walter Gresham and George Sealy platted and subdivided the land upon which the town of Sealy is located in blocks, lots, streets, and alleys, and reserved a strip of land 200 feet wide through said town for a right of way for a railroad; that they made a plat of said town site, acknowledged it, and had the- same duly recorded in the deed records of Austin county, Tex., on the 9th day of April, 1880, and that all sales of lots were made by said Gresham & Sealy with reference to said recorded plat or map; that among others of said streets so laid out and designated is one known as Third or Main street; that the property of the Gulf, Colorado & Santa Fé Railway Company was designated upon said plat or map, and said Third or Main street did not extend through'or across the reservation of said railway company; and that it was never intended by the then owners of said land prior to the dedication by them of said railway reservation, nor by said railway company, that said Third or Main street should extend through said reservation.

The defendants in their answer alleged that on January 23, 1880, the town of Sealy was laid out, platted, and a map thereof made, duly acknowledged in the manner and form required by law, and was recorded in the Deed Records of Austin County, Tex., in volume X on page 6; that at the time said town was laid out and platted the same was laid off in blocks, lots, streets, and alleys dedicated by the then owners of said land and. premises .upon which said town of Sealy is located; said streets and alleys were dedicated for public use and have been used by the public as streets and alley's for a great number of years; that said, town as laid out had streets dedicated between the blocks running from north to south and from West to east as shown by said plat of said town; that in the center of sgid town, as platted is a street 100 feet in width running from west to east across the right of way of plaintiff, which said street was designated and known as Third or Main street; that said street is the main thoroughfare of the town of Sealy, and has been the main thoroughfare of said town ever since the same was laid out, platted, and dedicated.

A jury was duly selected and sworn to try said cause, but after the pleadings of the respective parties were read, and all the evidence had been introduced, the trial judge, upon his own motion, withdrew the case from the jury and entered judgment perpetually enjoining and restraining appellants from opening or attempting to open a highway across appellee’s railroad opposite what is known on the map pleaded by both parties as Third or Main street of said town of Sealy. From this judgment all of the defendants have appealed.

By appellants’ first assignment of error it is insisted that in January, 1889, the then owners of the land upon which the town of Sealy is situated in Austin county, Tex., and before any town was located thereon, caused said land to be laid off into blocks, lots, streets, and alleys; and thereafter caused to be made a, map or plat of said land so laid off, showing the then contemplated town of Sealy; that said map or plat was duly acknowledged by said parties in manner and form as required by law, and in a few weeks thereafter they caused the same to be duly recorded in the deed records of said Austin county; that said map or plat so acknowledged and recorded shows blocks, lots, streets, and alleys of the town of Sealy as laid off by the owners of said land, as contended by appellants; that said lots were sold to various persons, describing the same with reference to the streets as shown by said map or plat; that there was also shown on said map or plat a railway reservation in anticipation that the track, switches, and depot of the Gulf, Colorado & Santa Fé Railway Company would thereafter be constructed thereon; that said platted reservation is not inconsistent with the uses of the streets so platted, but consistent therewith; that said map is a written instrument, and by its terms and on its face it unequivocally and irrevocably extends and dedicates Third or Main street, in said town of Sealy, over and across said railway right of way; that said map is unambiguous in its terms and on its face, and shows that said Third or Main street was extended and to be extended over and across said railway right of way; that therefore the trial court erred in permitting plaintiff’s witness Col. Walter Gresham to testify, over the objections of defendants, that it was not the intention of those who platted and laid out the town of Sealy, as shown by said map, to extend Third or Main street over and across said railway reservation, but that it was their intention that said Third street and all 'the other streets running from west to east through said town should be opened only to, and not across, said reservation, because the map or plat so executed and recorded shows said town as it was originally platted into blocks, lots, and streets, and shows on its face that Third or Main street was laid out to extend from the western boundary of said platted town 100 feet in width across said railway right of way to its eastern boundary, and the same cannot be varied by parol testimony showing a different intention from that shown by the map or instrument itself.

If the contention of appellants, as shown by their first assignment, is sustained, it settles the issues presented by this appeal and requires at'our hands a reversal of the judgment rendered in favor of appellee and of the rendition of a judgment in favor of appellants.

Both parties pleaded the original map or plat of the town of Sealy, which was thereafter introduced in evidence by appellants. By said map or plat it is shown that the town of Sealy is laid off with its streets running practically from north to south and from west to east; that from its south boundary line to its north boundary line there is a distance of 2,800 feet; that a railway reservation is shown thereon extending through said town from south to north 200 feet in width. The streets running from west to east shown by said map begin on the north and are numbered from north to south consecutively 1 to 7, and shown to be 80 feet wide on each side of said railway reservation; that the part of same on one side of said reservation corresponds with the same on the opposite side thereof in every particular, as if but an extension of the same street, except Third or Main street, which is shown to be 100 feet wide on both sides of said designated railway reservation and is designated on the map as “3rd or Main street.” The-words “3rd or,” as shown on the map, are on the west side of the said designated railway reservation, and the words “Main street” are on the east side thereof. All the other streets running from west to east are designated on the map as “1st,” “2nd,” etc.; these designating words or abbreviations appearing on the west side of said designated reservation only. On said- map there appears the following:

“This map of the plan of ‘Sealy’ is hereby adopted and all sales of lots therein made by us will be made with reference to it.
“Walter Gresham.
“George Sealy.”

We think the contention of appellants, should be sustained. The undisputed evidence shows that Third or Main street runs practically through the center of the town of Sealy, and has been used as its main thoroughfare for more than 30 years, and that during all these years people traveling Third or Main street on foot or horseback often cross over said railway where said street is. ’shown on said map to cross the same, and that wagons sometimes cross over the said railway at said point, but that on account of the failure and refusal of the railway Company to erect a proper crossing over its track heavy wagons cannot cross at said point. We cannot agree with the contention of appellee that, although the public has used Third or Main street on both sides of the railway track for 36 years as the principal thoroughfare of said town of Sealy, it has done nothing to show that it had accepted, if acceptance was necessary, that part of said street which crosses said railway track. Such long and continuous use was, in our opinion, an acceptance of the entire street from its western to its eastern terminals.

In Ruling Case Law, vol. 8, p. 894, § 18, it is said:

“A plat is analogous to dedication by deed, and sometimes merely a variant phrase thereof, and likewise, closely allied to the doctrine of incidents and appurtenances to grants by deed, and to certain doctrines referable to the subjects of easements, private ways, and vendor and purchaser, is the doctrine of dedication by plat, whereby the owner of a tract of land is held to dedicate such portions thereof as are designated for public use on a plat with reference to _ which he sells lots out of the tract. Dedication by plat is a common method of dedicating streets, public sidewalks, and public parks and squares.”

In Ruling Case Law, vol. 13, p. 25, in speaking of a dedication by plat, it is said:

“There is a complete dedication as against him, even though the street is not accepted by the public authorities, or is not opened and improved for public use, and such dedication is none the less serviceable on that account.”

The case of City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924, is a case where it is shown that Mrs. Johanna Zorn was the owner of ten acres of land within the limits of the city of Corsicana. This land was divided into blocks, lots, and streets. A map was made showing said platted land, which was designated on said map as block 373. This map was caused to be recorded by Mr. Zorn in Navarro county’s record of deeds, with the knowledge and consent of said Johanna Zorn. Thereafter lots were sold to various persons. The deeds by which said lots were conveyed called for, and said lots were described by reference to, said map. In that case our Supreme Court said:

“And the right thus passing to the purchasers is not the mere right that the purchaser may use these streets or other public places according to their appropriate purposes, but a right vests in the purchasers that all persons whatever, as their occasions may require or invite, may so use them. In other words, the sale and conveyance of lots in the town, and according to its plan, imply a grant or covenant to the purchasers that the streets and other public places, indicated as such upon the plan, shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use. * * *
“The effect of the deed, then, from Mrs. Zom and her husband to the different purchasers of lots in Zorn’s addition, was to convey to such purchasers the right that they and all persons should be permitted to use the streets and alleys for the purposes designated upon the said plat for all time, and this conveyance vested in the public and in the city of Corsicana, as the organized representative of the public, the right to take possession of and use said streets and alleys whenever the progress and development of the town should make it necessary so to do. Meier v. Portland [16 Or. 500] 19 Pac. 610, 1 L. R. A. 856; Elliott on Roads & Streets, § 118; Town of Derby v. Alling, 40 Conn. 410. It is objected on the part of Mrs. Zorn that there has been no acceptance by the city of the dedication. There was no necessity for such acceptance; for the right which vested in the purchasers of the different lots, and through them in the public, was irrevocable. It was not expected that the streets and alleys should all be opened at once, but, as is well known in the- history of such transactions, many years might elapse before the settlement of that part of the city would require the use of such streets. In the case of Meier v. Portland, before cited, the court said: ‘Nor does the proprietor or the purchasers anticipate that all the streets shown upon the plat will be immediately opened and used. It is generally known and understood that a large portion of them will not be required for use for many years after the town is laid out, that their necessity will depend upon its future development and growth, and that they will remain in abeyance until the public exigencies demand that they be opened and improved. Nor does the dedication impose any such burden upon the public as would imply that its acceptance might be refused.’ ”

See, also, Sanborn v. City of Amarillo, 42 Tex. Civ. App. 115, 93 S. W. 473; Meier v. Portland C. Co., 16 Or. 500, 19 Pac. 610, 1 L. R. A. 856.

It is clear from what has been said that we have reached the conclusion that the laying off of the town of Sealy into blocks, lots, and streets, and making a map showing thereon such blocks, lots, and streets, and thereafter acknowledging such map, and causing the same to be recorded in the records of deeds of Austin county, and thereafter selling lots by reference to said map, was a dedication of such streets to those purchasing said lots and to the public. We also think that the use made of Third or Main street, as shown by the undisputed evidence, in connection with the dedication and map, was ample acceptance of said dedication, if such acceptance by the public was necessary under such circumstances.

We have also reached the conclusion that the undisputed admissible evidence in the case demanded at the hands of the trial court a judgment in favor of appellants dissolving the injunction theretofore granted by which they were restrained from opening said Third or Main street.

Having so concluded, such judgment is reversed, and judgment is here rendered for appellants.

Beversed and rendered.
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