author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WAITS.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1914.
    Rehearing Denied Feb. 19, 1914.)
    1. Railroads (§ 348) — Crossing Accidents —Actions—Sufficiency of Evidence.
    In an action for injuries sustained in a crossing accident, evidence held sufficient to support a jury finding that the use of the crossing was attended with such extraordinary hazards or peculiar dangers as required the company, in the exercise of ordinary care, to keep a watchman there.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.]
    2. Railroads (§ 307) — Highway Crossings —Flagman.
    That travelers on a highway, by using the greatest possible care at a railroad crossing, might effectually , escape danger, unless the company’s employés,' operating trains, were guilty of culpable negligence, was not conclusive that a watchman or flagman should not have been kept there, since travelers are only required to use ordinary care. '
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.]
    3. Railroads (§ 307) — Highway Crossings —Flagman.
    Whether it was the duty of a railroad company to keep a watchman or flagman at a crossing depended on whether the circumstances and conditions existing at and surrounding the crossing, and its use by the public, and the passing over the crossing of engines and cars rendered the crossing extraordinarily hazardous and peculiarly dangerous to the public using the crossing, and exercising ordinary care, whether the company knew of such circumstances, conditions, and danger, whether an ordinarily prudent person in the same or similar circumstances would have stationed a flagman at the crossing to warn travelers of the approach of engines or cars; and, if either of these questions should be answered in the negative, it was not its duty to maintain a flagman there, while, if all should be decided in the affirmative, such was its duty.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.]
    4. Railroads (§ 351) — Instructions—Confused or Misleading Instructions.
    In an action for injuries sustained in a crossing accident, the court charged that it was not the duty of the railroad company to keep a flagman at every crossing, that whether or not it was its duty to maintain a flagman at the crossing in question depended on whether the circumstances and conditions existing at or surrounding the crossing at and before the time of the accident, and the use of the crossing by the public, while exercising ordinary care for their safety, and the passing over the crossing of engines and cars, rendered it extraordinarily hazardous and peculiarly dangerous to the public using the crossing, and exercising ordinary care for their safety, whether the company knew of such circumstances, conditions, and danger at and before the time in question, and whether an ordinarily prudent person in the same or similar circumstances would have maintained a flagman there to warn persons using the crossing of the approach of engines or cars, that, if either of these questions should be answered in the negative, then it was not its duty to maintain a flagman there, and it would not be liable, but that, if all of such questions should be decided in the affirmative, then it was its duty to maintain a flagman there to give such warnings. Held, that the instruction was not unintelligible, - misleading, nor confusing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    5. Railroads (§ 351) — Crossing Accidents —Instructions.
    The use of the words "at and before” in such instruction was not erroneous, since it was necessary to look at the conditions existing, before the accident to determine whether the company should have anticipated such consequences as the probable result of its failure to place a watchman at that point, and could not have harmed the company, where there was no evidence that the conditions existing previous to the accident were materially different from what they were at the time of the accident, especially where the court further charged, at the company’s request, that, to find for plaintiff, the jury must believe from a preponderance of the evidence that the crossing was so peculiarly dangerous that an ordinarily prudent person could not use the street in safety in the absence of a flagman, that defendant knew, or in the exercise of ordinary care could have known, that the crossing was so peculiarly dangerous, that an ordinarily prudent person would have employed a watchman, and that, if the company had a watchman at the crossing, the injury would not have been sustained.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dee. Dig. § 351.]
    6. New Tbial (§ 44) — Misconduct of Juey —Viewing Scene of Accident.
    Where jurors who were kept together and in charge of an officer were not instructed not to visit the place of the crossing accident involved, and, in visiting such place in charge of such officer, did not intend to disobey any order of the court, or violate any rule of decorum, there was no occasion for setting aside their verdict merely as a rebuke to them, and for the purpose of enforcing discipline.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dec. Dig. § 44.]
    7. Appeal and Ebeob (§ 1069) — Harmless Ebeob — Misconduct op Juey.
    Where, in an action for injuries sustained in a crossing accident, there was apparently no conflict in the evidence as to the physical conditions at the crossing, defendant was not prejudiced by the act of the officer in charge of the jury in permitting them to visit the crossing, especially where defendant’s counsel, without knowledge of such visit, thereafter moved that the jury might be permitted to view the scene of the accident.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4136, 4138, 4139; Dec. Dig. § 1069.]
    8. Appeal and Ebkob (§ 977) — Review— Disceetionaey Mattebs.
    Under Rev. St. 1911, art. 2021, providing that, where the ground of a motion for new trial is misconduct of the jury or of the officer in charge thereof, or, because of a communication to the jury, or because they received other testimony, the court shall hear evidence thereof, and, if the misconduct, testimony, or communication be material, a new trial may, in the discretion of the court, he granted, the ruling on a motion for a new trial, because the jury visited the scene of the accident involved, would not be set aside, except for an abuse of discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.]
    9. Damages (§ 132) — Excessiveness — Peb-SONAL INJUBIES.
    A verdict for $35,000 for the loss of both legs by a young woman under 20 who had just been married was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by Joseph G. Waits, by next friend, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marsh & Mcllvaine, of Tyler, and Daniel Upthegrove and E. B. Perkins, both of Dallas, for appellant. Johnson & Edwards, of Tyler, for appellee.

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

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

   HODGES, J.

Joseph C. Waits, a minor, by his next friend, Thomas J. Malone, recovered in the court below a judgment for $35,000 for personal injuries sustained by Mrs. Cynthia Waits, the wife of the minor plaintiff.

The facts show that Mrs. Waits was injured ¿t a railway crossing in the city of Tyler on the morning of November 16, 1912, while she and others were attempting to cross the appellant’s track. About 11 o’clock on that morning Waits and his wife were leaving the city and were riding in a wagon with John Malone and his wife. They were going to the home of Malone in the country. ■ The team consisted of a horse and mule belonging to Malone, and he was doing the driving. Waits and Malone were sitting together on the seat in the front part of the wagon, and their wives were reclining on some bedding in the rear. There were two other individuals, Will Malone and Floyd Webb, in a wagon just ahead of that in which the appel-lee was riding. In leaving the town the parties traveled from the public square west on Ferguson street about 300 yards to 'its intersection with Border avenue, and then turned north on Border avenue, which crossed the appellant’s tracks on a grade, and about 500 feet north from Ferguson street. Border avenue was a much traveled thoroughfare, and the crossing was one used generally by the public. As the parties approached the crossing the wagon occupied by Will Malone and Webb passed over without accident or alarm about 40 feet ahead of the wagon in which the appellee, his wife, and their companions were riding. When the latter wagon approached to pass over the crossing it did not stop; but testimony indicates that Malone and the two women endeavored to ascertain by looking and listening whether or not a train was approaching, and that they did not see any, or hear any sound of a whistle or bell. The men both testified that as they approached the track they looked in both directions, and, not observing any train approaching them, drove on; that just after they passed the corner of a building on their left, and immediately south of the railway track, they discovered a train of cars coming from the west. This consisted of an engine and five box cars backing toward the east, and approaching the crossing. The leading ear at that time was very close to the crossing. The team, being in danger of being struck by this car, became uncontrollable, turned suddenly toward the east, and ran off along the tracks, pulling the wagon over the rails and ties. Both women were thrown from the wagon onto the track, where two of the cars passed over them. After the team turned east in its flight, the cars gained on the wagon'for some distance, and when the train was finally stopped the leading end of the car stood 103 feet east from the center of the Border street crossing. The wheels of the cars entirely severed one leg of Mrs. Waits a few inches above the ankle, and so injured the other leg that it had to be amputated a few inches below the knee. The only ground of negligence charged in plaintiff’s petition which was submitted by the court was the failure of the railway company to maintain a flagman at the crossing where the injury occurred for the purpose of notifying parties approaching the track of the approach of trains.

The first assigned error complains of the refusal of the court to grant a new trial because of the insufficiency of the evidence to support a finding by the jury that the use of the crossing where the injury occurred was attended with such extraordinary hazards or peculiar dangers as required the railway company, in the exercise of ordinary care, to keep a watchman at that place.

The testimony shows that at the time of this accident the city of Tyler contained about 11,000 inhabitants, and was surrounded by a considerable rural population. The crossing where the injury occurred is about 1,600 feet from the courthouse, which occupies a place on the public square of the city. The crossing is approached in the manner detailed in the preliminary statement. From this crossing to the city limits on the west and on the east, it is about one-half mile, and about one mile to the limits on the north. The railway passenger and freight depots and the principal yards are located east of this crossing. The yards of the Lufkin branch, the railway bridge and building yards, and the railway general office buildings are on the west. The principal cemetery of the city also lies west of this point, and in going to and from that place this crossing is much used. Border avenue is one of the principal highways of the city, is not only much used by the residents, but is the principal thoroughfare by which a large number of country people residing in the north and west portions of the county enter the city. The testimony shows that the first building on the west side of Border avenue and south of the railway track was a large box factory extending back west about 80 feet and south 48 feet, that immediately south of this building was an alley, and that from this alley on south to Ferguson street the buildings were close together, and it was impossible for one approaching the railway crossing from the south to see a train coming from the west till after passing the northeast corner of the box factory. That corner was shown to be 17 feet from a spur track used by the box factory, and 30 feet from the south rail of the main line. South of the railway track, and on the east of Border avenue, there was a small store building situated on the railway right of way, about 7 feet distant from the south rail of the spur track, and about 15 feet from the south rail of the main line. The distance from this store across the street to the box factory is 52 feet. There are buildings every 50 feet on south from this store. North of the tracks, and on the west side of Border avenue, there is a church and a number of residences. On the east side of Border avenue north of the railway tracks the buildings are not so thick. The tracks of the railway company extending west from the crossing are in a cut, and curve to the south. A person traveling north on Border avenue, after passing the corner of the box factory, could see a train about 100 feet distant; if driving a team, the forefeet of the latter would then be about on the spur track, and within 7 feet of the main line, according to the testimony. A person approaching this crossing from the north could not see a train either on the east or the west till he passed the houses on either side of the street lying next to the right of way. In addition to the extra trains and switch engines used by the railway company, there were eight regular passenger trains and six freight trains that daily passed over this crossing. It is undisputed that the railway company did not maintain a flagman regularly at this point, and did not have any watchman on this occasion. The testimony indicates that the employes in charge of the train that caused the accident used such precautions on this occasion in approaching the crossing as exonerated them from the charge of negligence in any respect. In view of this evidence we do not think it can be said that the finding of the jury upon this issue was unsupported. If the testimony of Malone and Waits and Mrs. Waits be accepted as true, they made an effort to ascertain if a train was approaching. While they did not stop the vehicle in which they were riding, they all looked and listened before going upon the track.

Malone testified as follows: “While we were approaching the railroad crossing on Border street houses all along on the west side of the street prevented our seeing a train coming from the west until we got where we could see around the corner of the box factory, and by that time the horses had reached the first track at the crossing; and houses all along on the east side of the street prevented our seeing a train coming from the east until we passed the corner of a store right by the side of the tracks, and by that time the horses were on the main track. Will Malone and Floyd Webb were driving in a wagon 40 or 50 feet ahead of us. I saw them when they approached and passed over the crossing; there didn’t anything happen. While I was driving toward the crossing I did not know that any train was coming. The horse and mule I was driving were a good pert-walking team. * * * I did not hear any whistle or bell while approaching the crossing. When I got to where I could look by the corner of the box factory I looked west for the train, but saw none, and then I turned to look toward the east, and when I got to where I could see good down that way I turned and looked west again and saw the train right close to us; I could not say how-close; and the horses just brote and ran right down the railroad.”

On cross-examination he said: “I did not stop before I went on the crossing; but I was listening and watching. If I had stopped before I reached the corner of the box factory, I could not have seen anything. I could hear without stopping, if there had been any sounds to hear. * * * I looked just as soon as I could. My team was going in a walk; they were not trotting. When I saw the train my team was on the main track, or between it and the sidetrack. The horses saw the train about the time I saw it, and they bolted down the track.”

Both Waits and his wife testified substantially in the samé manner as to the precautions taken in approaching the crossing. It was shown by the evidence that a flagman stationed at that point could easily ascertain the approach of a person when attempting to cross the tracks, and the approach of trains coming either from the east or west, in time to avoid a collision. If the witnesses in this case tell the truth, the instance before us is in itself an evidence of the danger which exists at such a crossing. Here we have.a finding supported by evidence, that neither the employés in charge of the train nor the occupants of the vehicle were guilty of negligence, yet an accident has occurred that has resulted in serious damage. Such an accident could have been avoided by a watchman in the proper discharge of his duties. The street, being a public one and much traveled, is presumably used by people of all classes, ages, and conditions, and in all of the modes and ways of travel customary in this country. The limited space in which the approach of a train could be discovered made it exceedingly probable that an injury of this character might reasonably be expected, even if all parties conducted themselves with ordinary prudence. It is true that one using the greatest possible care at such places might effectually escape danger at all times, unless the employés operating the trains were guilty of culpable negligence; but that degree of care does not furnish the test. The traveler on such occasions is only required to use ordinary care, and that degree of care may not be sufficient, as is shown by the facts of this case. M., K. & T. Ry. Co. v. Magee, 92 Tex. 616, 50 S. W. 1013; Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.

The following is a portion of the court’s main charge to the jury: “It was not the duty of the defendant to have or keep a watchman or flagman at every crossing of its tracks over a public street of a city or town to warn persons traveling in the street and using or about to use the crossing of the approach of trains to pass over the crossing at the same time; and whether or not it was the duty of the defendant to maintain a watchman or a flagman for‘this purpose, at the public crossing of its tracks over North Border avenue in the city of Tyler, at the time in question, depends on a proper decision of these questions, to wit: Whether the circumstances and conditions, if any in evidence, existing at and surrounding the crossing in question at and before said time, and the use of the crossing by the public traveling in the street, while exercising ordinary care for their safety in crossing the railway at said crossing, and the passing over the crossing of engines and cars moving on the defendant’s railway, rendered the said crossing extraordinarily hazardous and peculiarly dangerous to the public, who used the said crossing at the place in question,, and who used ordinary care for their safety in so doing; and whether the defendant knew of such circumstances, conditions, and danger, if any there were, at and before the-time in question; and whether an ordinarily prudent person, in the same or similar circumstances, would have stationed and maintained a watchman or flagman at said crossing to warn persons using or about to use the crossing of the approach of engines or cars on the railw.ay about to pass over the crossing at the same time. If either of these questions should be answered in the negative, then it was not the defendant’s duty to maintain a watchman or flagman at the said crossing, and the defendant would not be liable; but, if all of these said questions should be decided in the affirmative from the evidence, then it was the defendant’s duty to maintain a watchman or flagman at the said crossing to give the aforesaid warnings.” In a subsequent paragraph the court applied the rule announced in this charge to the facts of the case. Both of these paragraphs are objected to first, upon the ground that the court did not announce the correct rule of law applicable to such cases, second, that the charge is unintelligible, and for that reason misleading, and, third, that it requires the jury to take into consideration the conditions existing before the accident occurred. We do not think the charge is subject to the objections that it does not correctly state the law, or that it is unintelligible and misleading. While the rule announced might have been expressed in different language, and with less verbiage, it is neither misleading nor confusing. The use of the words “at” and “before” in connection with the reference to the hazards mentioned is not harmful to the appellant. Certainly the jury should have been told to consider the conditions existing “at” the time of the accident. For the court to require them to go further and also take into consideration conditions shown to have existed, “before” that time did not place any heavier burden on the railway company. It was necessary to look at the conditions existing before the accident in order to determine whether or not the appellant should have anticipated such consequences as the probable result of a failure to place a watchman at that point. Unless there were some hazards previously existing, it could not be said that the conditions were such as to notify the railway company of the probability of the dangers that arose upon this occasion. Moreover, there is no evidence that the conditions existing previous to the happening of this accident were materially different from what they were on the day the accident occurred. The only legitimate inference to be drawn from the evidence is that the precise conditions existing at that time had existed for a considerable time prior thereto.

At the request of appellant’s counsel, the court gave the following special charge: “You are charged that, plaintiff’s attorneys having stated to the court that plaintiff would not rely upon any of the grounds of negligence alleged in his petition other than the failure of defendant to keep a watchman at the crossing, you will therefore in your deliberations consider none of the other grounds of negligence set out in the petition. And in this connection you are charged that, before you can find for plaintiff on this issue, you must believe from a preponderance of the evidence that the crossing at which plaintiff’s wife was injured was so peculiarly dangerous that an ordinarily prudent person could not use the street in safety, in the absence of a flagman to signal the approach of the company’s trains; that defendant knew, or in the exercise of ordinary care could have known, that the crossing was so peculiarly dangerous that such a person could not use the street in safety unless a flagman was employed to signal the approach of trains, and that an ordinarily prudent person would have employed a watchman at said crossing to signal the approach of its trains; and that, if defendant had had a watchman at the crossing at the time of the accident, plaintiff’s wife would not have been injured.” That charge seems to have presented fully and concisely the very question to be determined by the jury in this case.

The principles announced in the special charges complained of in the seventh and eighth assignments of error are sufficiently covered by the general charge of the court, and by the special charge referred to above. The defense of contributory negligence was plainly and fully submitted to the jury, and there was no occasion for giving the special charge requested upon that issue.

It is also urged that the court should have granted a motion for a new trial on account of certain misconduct on the part of the jury, which occurred during the progress of the trial, but was not discovered till after the trial had ended. This misconduct was in visiting the scene of the accident, and there making personal observations of the surroundings. The bill of exceptions reserved to the action of the court in overruling the motion for a new trial contains the following statement of agreed facts: “(I) That the jury were kept together by the court, and not permitted to separate from the time it was impaneled until after it rendered a verdict; (2) that after defendant had concluded its testimony, and before plaintiff offered his testimony in rebuttal, counsel for defendant moved the court in open court that the jury be permitted to go in custody of an officer to the scene of the accident, so that they might view and inspect the surroundings for themselves, which request and motion was by the court denied and overruled; (3) that counsel for defendant at the time of making said motion did not know that the jury had previously to that time visited the scene of the accident, and did not learn that such was the case until after the jury had returned its verdict.” The bill of exceptions also contains the testimony adduced before the court detailing the action of the jurors in visiting the crossing. The substance of this testimony shows that after the conclusion of the proceedings on one particular evening the subject of visiting the crossing where the accident occurred was mentioned by some of the jurors, and the deputy in charge told them that after they had eaten supper he would take them around that way and let them see the place. He cautioned them, however, that they must not discuss what they saw. After supper, and after it had grown dark, the jurors passed along that way. They knew when they reached the place, and casually observed the surroundings; but they took no measurements, and did not make any specific observations. Some of them were already familiar with the place by reason of having passed it frequently before; others had never seen it before that time. The subject of what they had seen was not afterwards discussed by the jurors in their deliberations. Some of them said they found the conditions about the same as was shown by the diagram used upon the trial and as testified to by one of the witnesses. If there was anything irregular in this action of the jurors in visiting the scene of the accident, and in viewing the conditions there existing, it is because it enabled them to receive additional evidence as to what those physical conditions were. While the jurors were kept together and in charge of an officer, it does not appear that they had been instructed not to visit this place, and it is apparent that they did not intend to disobey any order of the court, or violate any rule of decorum. It is evident that in doing this they did not think they were committing any act of impropriety. Hence there was no occasion for the trial court to set aside their finding merely as a rebuke to the jurors, and for the purpose of enforcing needful judicial discipline. But, assuming that the jurors were, by reason of their visit and inspection of the surroundings, put in possession of additional evidence as to the physical conditions there existing, there is no reason for saying that this operated to the prejudice of the appellant. So far as the record in this appeal shows, there seems to have been no controversy as to what those physical conditions were. If there was any conflict in the evidence as to the width of the streets or crossing, or the relative location of the various buildings, no mention is made of that fact in the briefs. Those physical conditions were susceptible of accurate ascertainment and proof, and were facts about which there was no occasion for any conflict in the evidence. The manifest willingness of counsel for appellant for the jury to visit the crossing and make a critical examination of the conditions indicated that they did not apprehend any prejudice from such an inspection, and there is nothing now presented to show that they were mistaken in that assumption. Article 2021 of the Revised Civil Statutes of 1911 is as follows: “Where the ground of the motion (for a new trial) is misconduct of the jury or of the officer in charge of same, or because of any communication made to the jury, or because the jury received other testimony, the court shall hear evidence thereof; and it shall be competent to prove such facts by the jurors or others, by examination in open court; and, if the misconduct proven, or the testimony received, or the communication made, be material, a new trial may, in the discretion of the court, be granted.” It will thus be seen that, even if the additional evidence furnished the jury in this inspection be considered material, the granting or refusing of a motion for a .new trial upon that ground rests in the discretion of the trial court. It is only when it is made to appear that this discretion has been abused that this court should set aside his ruling. Under the facts as presented we do not think that was done, and the assignment will be overruled.

It is also urged that the verdict of the jury is excessive. The verdict is a large one. But Mrs. Waits was very young — not yet out of her teens — and had just entered upon the career of a married woman, prepared to enjoy whatever blessings, and to assume whatever burdens and duties, that relation might bring. Aside from the physical sufferings which she must have endured as the result of her injuries, to be thus deprived of both limbs at that time of life is a calami ity not easily measured in dollars and cents. The full possession and free use of the limbs with which Nature has endowed us is at all times a priceless boon; but to one so young and just entering upon life’s most alluring stage they must be more valuable still. To say that we apply the rule of compensation in allowing recoveries in such cases really falls far short of stating the truth. There can be no adequate compensation for the loss of such members. Arbitrary allowances have heretofore been made in similar cases, and these furnish the only standards by which we may now be governed. Testing the present verdict by others where similar injuries have been inflicted, we cannot say that it is excessive. Railway Co. v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 656; Railway Co. v. Matkin, 142 S. W. 609; Railway Co. v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; Oil Co. v. Snell, 47 Tex. Civ. App. 413, 108 S. W. 171.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    JOHNSON et al. v. FT. WORTH DRIVING CLUB.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 20, 1913.
    Rehearing Denied Feb. 14, 1914.)
    1. Landlord and Tenant (§ 134) — Lease — Covenants Running . with the Land — Gambling and Selling of Intoxicants.
    Covenants in a lease that no illegal gambling and no selling of intoxicating liquors should be permitted on the premises during the lease, and that upon breach thereof the lessor might forfeit the lease . and take possession, were covenants running with the land for breach of which the lessor’s assignee and grantee had the right to forfeit the lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 482-485; Dec. Dig. § 134.-']
    2. Landlord and Tenant (§ 134) — Covenant against Gambling and {Selling Intoxicating Liquors — Forfeiture fob Breach —Permit.
    Under a lease providing that no illegal gambling or any sale of intoxicating liquors should be permitted on the premises by the lessee or other persons during the lease, the lessee was not bound at all events, whether with or without knowledge, to prevent the sale of intoxicating liquors, under pain of forfeiture of the lease, but was only bound to exercise reasonable diligence to ascertain and prevent such sales, forfeitures not being favored by the law.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 482-485; Dec. Dig. § 134.]
    3. Cancellation of Instruments (§ 60) — Action to Forfeit Lease — Question for Jury — Care to Prevent Sale of Liquor.
    In an action to forfeit a lease for breach of a covenant against the sale of intoxicating liquors on the premises, held, on the evidence, that it was a question for the jury whether the lessee in good faith did all that was required by the exercise of reasonable care to prevent such sales.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent Dig. §§ 105, 106; Dec. Dig. § 50.]
    4. Landlord and Tenant (§ 45) — Covenants — Forfeiture for Breach — Statute.
    Rev. St. 1911, art. 5489, forbids a sublease without the knowledge or consent of the lessor. A sublease was made several months before plaintiff, as grantee and assignee of the lessor, acquired any interest in the premises, and thereafter neither he nor the original lessor made any complaint thereof until the expiration of the sublease, and it did not appear that the estate was in any way injured by the sublease. EM, that the statute would not be read into the original lease and a forfeiture declared for breach of such implied covenant not to sublease. ■
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 111; Dec. Dig. § 45.]

      6. Trial (§ 260) — Requested Instructions— Given Instructions.
    Requested instructions were properly refused, where the matters therein, so far as correct, were covered by the charges given.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by Robert Johnson and others against the Ft. Worth Driving Club. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    See, also, 144 S. W. 1041.
    Robert Johnson was the grantee of the original lessor, David Evans, and the as-signee of his rights under the lease.
    Thompson & Barwise, of Ft. Worth, for appellants. Q. T. Moreland, of Ft. Worth, for appellee.

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

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

   CONNER, C. J.

A detailed history of this case may be found in the proceedings of former appeals. See 56 Tex. Civ. App. 162, 121 S. W. 213, and 103 Tex. 24, 122 S. W. 254, Ann. Cas. 1912D, 67. Only such general statement, therefore, will now be made as is deemed necessary to the present disposition.

In 1905 David Evans was the owner of a tract of about 32 acres of land situated near the city of Ft. Worth. During that year the land was leased by David Evans to the Ft. Worth Driving Club for a period of some 15 years, for the purpose of establishing thereon a driving park, race track, barns, and other improvements such as are required to operate a driving club, county fair, or other legitimate business. Among other covenants in the lease to the Ft. Worth Driving Club it was provided that “no gambling such as prohibited by law is to be permitted on said premises by said lessee nor shall any intoxicating liquors of any sort ever be permitted to be sold on said premises by said lessee or other persons during the continuance of this lease.” And it was further provided that “upon failure to perform any covenants or agreements, lessor should have the right to re-enter and take possession and eject lessee, and lessee agrees to peaceably yield possession in event the lease is terminated before the expiration of the term.” Thereafter during the year 1906 the Ft. Worth Driving Club, with the consent of Evans, leased the premises in question to the Ft. Worth Fair Association. In this lease, which was in writing, there was no provision which forbade either gambling or the sale of liquors because of which omission the Fair Association claimed, and began to exercise, the right of selling intoxicating liquors on the premises in controversy. Thereupon the Ft. Worth Driving Club sought and obtained a temporary writ of injunction restraining its lessee, the Ft. Worth Fair Association, from the inhibited sale, which injunction was, on appeal to this court, dissolved May 22, 1909. See Ft. Worth Fair Association v. Ft. Worth Driving Club, 56 Tex. Civ. App. 162, 121 S. W. 213. A writ of error, however, was granted by our Supreme Court, which perpetuated the injunction on November 17, 1909. See 103 Tex. 24, 122 S. W. 254, Ann. Cas. 1912D, 67. Immediately after the rendition of the opinion of this court directing a dissolution of the writ of injunction the Fair Association again began the sale of intoxicating liquors, and appellant thereupon instituted his suit to forfeit the original lease from Evans, and an adverse judgment in his suit as then pending was reversed on appeal by this court, as will appear from our opinion published in 144 S. W. 1041. Appellant thereupon amended his petition, and a trial was again had, in which he suffered an adverse verdict and judgment from which he has again appealed, and we are now called upon to review the proceedings of the last trial.

It should be further stated that in November, 1908, some two months before the conveyance from Evans to appellant, the Ft. Worth Driving Club made a sublease for one year of the premises in controversy to one T. W. Patterson, who was given certain control of the premises not now necessary to specify. It appears that the Fair Association continued its exhibition in May, 1909, until the expiration of the two weeks authorized under its lease from the Driving Club, which was about the 22d day of May, 1909. The Fair Association, however, by the permission of T. W. Patterson, and with the knowledge of the Ft. Worth Driving Club, continued its exhibition from day to day until the 12th day of June, 1909, and it is admitted that during this period, to wit, from May 22, 1909, to June 12, 1909, the Fair Association from day to day continued the sale of intoxicating liquors. It is upon this later violation of the terms of the original lease from Evans, as well also as upon the sublease to Patterson, that appellant now bases his right to a forfeiture of the lease. It should be further stated that the sublease to Patterson was not set up by appellant as a ground of recovery until the filing of an amended petition in 1911, several years after the lease to Patterson had expired. It was also agreed upon the trial by counsel for both parties hereto that “there was whisky being sold there [on the premises in controversy] after the dismissal of the case by the Court of Appeals, but that defendant did not permit it.” The following further agreement appears in the statement of facts, viz.: “It is considered that it is part of the agreement, with reference to the sale of intoxicating liquors after the 22d of May, it is not contended by the plaintiff Johnson that whisky was sold by any consent or permission of the Driving Club but the contention of plaintiff on that point is that they failed to take any steps to prohibit it.”

It must be conceded that the covenants in the original lease from Evans are such as run with the land, and that Johnson, as the assignee of Evans by the terms of the lease, has a right to declare a forfeiture of the estate thereby granted to the Ft.- Worth Driving Club, upon sufficient proof of a violation of the covenants. On the issues presented the verdict was-in favor of the lessee, appellee herein, and whether or not this verdict and the judgment in appellee’s favor following it is to be approved depends, we think, under the admitted facts largely, if not altogether, upon the construction to be given the terms of the covenant alleged to have been broken. The language of the covenant under consideration is: “It is, however, understood that during the existence of this lease, no gambling such as is prohibited by law is to be permitted on said premises by said lessee, nor any intoxicating liquors of any sort be permitted to be sold on said premises by said lessee or other persons during the continuance of said lease.”

What is the proper construction to be given to the term “permit” used in the covenant? If it is to be given the meaning that the lessee was at all events, whether with or without knowledge, to prevent -the sale of intoxicating liquors upon the leased premises, then the verdict and judgment should have been for appellant, for it is admitted that intoxicating liquors were in fact sold upon the leased premises during the period covered by appellant’s allegations herein. While definitions and applications of the term “permit” may be found which will support such construction, we think that such construction should not be given the covenant. It is a well-established rule that forfeitures are not favored in the law, and it seems to us that it would be unreasonably harsh to say that appellee should forfeit all the rights acquired under its lease, which are conceded to be valuable, merely because some unauthorized person or persons may have sold intoxicating liquors upon the premises one or more times without either the knowledge or consent of appellee. In a suit on a liquor dealer’s bond for permitting another to give liquor to a minor in his place of business, our Supreme Court held that there was no breach' of the bond where it appeared that the seller in good faith believed the minor to be over age. See Holly v. Simmons, 99 Tex. 230, 89 S. W. 776. Some of the cases go yet farther, and hold that the term “permit” implies an affirmative assent. See State v. Abrahams, 6 Iowa, 117, 71 Am. Dec. 399; City of Chicago v. Stearns, 105 Ill. 554; Board of Education v. Board of Education, 3 Ohio S. & C. P. Dec. 70, 71; Aull v. Columbia Ry. Co., 42 S. C. 431, 20 S. E. 302-304; In re Thomas (D. C.) 103 Fed. 272.

But it is admitted, as before stated, that in the case before us appellee gave no such assent. The principal contention seems to be, however, that a forefeiture should be declared because of a failure on appellee’s part to take steps to prevent the inhibited sales. The court in its charge very plainly placed upon appellee the duty of exercising reasonable diligence to ascertain and prevent the sales complained of, and the jury evidently found that this duty had been discharged. The evidence is undisputed that in the lease to Patterson, who had immediate charge of the premises at the time herein under consideration, the appellee inserted an express provision inhibiting the sale of intoxicating liquors, and’ Patterson testified that in granting the Ft. Worth Fair Association permission to remain from day to day after May 22, 1909, the officials of the association were expressly told that no gambling or selling of liquors was permitted. Patterson testified that during that time he was engaged at or near the entrance to the grounds, and knew nothing of the sale of liquors as they occurred, and, in the absence of a knowledge of the sales, we cannot say that as a matter of law appellee under the circumstances was bound to anticipate that the Fair Association would engage in the prohibited traffic. It is to be borne in mind in this connection, also, that the judgment of this court had just been rendered, which was to the effect that the Driving Club was not entitled to enjoin the Fair Association from the sale of liquors, and this judgment had not been disturbed until long after June 12, 1909, when the Fair Association ceased entirely to occupy the premises. We think, under such circumstances, it was properly a question for the jury to determine whether appellee in good faith did all that was required by the exercise of reasonable care. We, accordingly, hold that the court committed no error in refusing to give appellant’s requested peremptory instruction, as complained of in the first assignment of error.

Appellant further urges in different forms that the lease under consideration became forfeited by reason of the sublease to T. W. Patterson. David Evans, the original lessor, testified that this lease to Patterson was made by the Ft. Worth Driving Club without his knowledge or consent, and our statute inhibits such a lease. See Revised Statutes 1911, art. 5489. But the article of the statute does not declare that a violation of its terms shall operate as a forfeiture of the rights of the original lessee. So that the only support for a forfeiture on this ground must be predicated upon the assumption that the statute- cited should be read into the original lease from David Evans, and the terms of the lease declaring a forfeiture for a violation of any of its covenants held to be operative. We are not, however, willing to apply this principle in aid of the forfeiture herein sought. It is to be borne in mind that the lease to Patterson, and hence the asserted breach of covenant thereby occasioned, occurred, as before stated, several months before appellant ever acquired any interest in the premises in controversy, yet thereafter neither Evans, nor appellant after his acquisition, is shown to have made any complaint until long after the expiration of Patterson’s term, nor has it been made to appear that appellant, or the estate which he has in reversion, has been in any manner injured. So that to now declare a forfeiture because of the lease to Patterson would be in effect but to inflict a punishment upon a technical wrongdoer rather than to afford equitable relief to appellant, who now complains. We accordingly overrule all assignments involving this question.

Complaints are also made of the court’s charge and errors also assigned to the refusal of certain special instructions, but we hardly think it necessary to discuss them. We think it will be sufficient to say, in addition to what we have already said, that the charge of the court seems unobjectionable and very liberal to appellant in its submission of the issues, and that it sufficiently embodied the questions presented in the special charges, in so far as they were correct.

We conclude that no reversible error has been shown, and that the judgment should be affirmed.


author: PLEASANTS, C. J.

text:
    BURR’S FERRY, B. & C. RY. CO. v. ALLEN.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1914.
    Rehearing Denied March 12, 1914.)
    1. Navigable Waters (§ 19) — Obstruction by Riparian Owners.
    While the beds of all streams not legally navigable belong to the riparian owners, if a stream in its ordinary condition or at the time of periodical floods can be used profitably for transporting timber, etc., the public has an easement therein for that purpose which cannot be unreasonably obstructed by riparian owners.
    [Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 59-63, 67-72; Dee. Dig. § 19.]
    2. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    In an action for damages for obstructing the channel of a river, navigable for floating timber, by a railroad bridge so as to cause plaintiff to lose logs which he was rafting, the court instructed that if the jury did not find that the stream was in fact navigable, as defined, but if defendant obstructed it by the maintenance of its bridge, and the stream was used for floating timber, which defendant knew, then each party had equal rights to its reasonable use, and, if the maintenance of the bridge was a reasonable use, the jury should find for defendant, but if the river was not navigable, but the bridge was an obstruction, and its maintenance was an unreasonable use in that it deprived plaintiff of the equal use of the stream, which could have been avoided by ordinary care by defendant in maintaining the bridge, and if defendant failed to use ordinary care in maintaining it with respect to plaintiff’s equal rights in the stream for floating logs, etc., plaintiff could recover. Held that, while the instruction did not accurately state the law as to whether the stream was a public highway, such defect was harmless to defendant, where the evidence showed that the stream was navigable so as to be a public highway.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    3. Navigable Waters (§ 39) — Obstruction op Channel.
    Under Sayles’ Ann. Civ. St. 1897, art. 4147, declaring all streams 30 feet wide to be navigable, riparian owners upon a stream 30 feet in width only acquire title to the margin of the stream, and .hence could not obstruct the channel to the injury of one using the stream for floating logs.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 21, 53, 82, 103, 112, 117, 127, 239-244; Dec. Dig. § 39.]
    4. Appeal and Error (§ 930) — Presumption.
    The appellate court cannot presume, in an action for damages by causing plaintiff’s rafted logs to be lost, that the verdict included damages for the loss of cypress logs, when the evidence did not show that any cypress logs were lost, where there is sufficient evidence to sustain a larger verdict than that rendered without including any cypress logs among those for which damages were awarded.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. § 930.]
    5. Evidence (§ 543) — Opinion Evidence-Market Value — Qualification op Witness.
    Since a knowledge of market value is usually based on hearsay, a witness may know the market value of an article at a certain time and place by hearing of sales there and the price received, or by seeing quotations sent out by persons who are buying and selling on such market, and hence the knowledge necessary to qualify one to testify as to market value need not be derived from his personal transactions on the market or from sales made in his presence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. § 543.]
    6. Damages (§ 188) — Evidence.
    The fact that the exact number of logs lost by plaintiff because of defendant’s unlawful obstruction of a stream cannot he definitely ascertained would not defeat plaintiff’s right to damages, where the evidence enabled the jury to estimate plaintiff’s loss with reasonable certainty.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.]
    Appeal from District Court, Tyler County ; E. A. Davis, Judge.
    Action by E. E. Allen against the Burr’s Ferry, Browndel & Chester Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 149 S. W. 358.
    Andrews, Ball & Streetman, of Houston, for appellant. J. A. Harper and Joe W. Thomas, both of Woodville, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover damages for the alleged wrongful obstruction by appellant of the channel of the Neches river in Tyler county, by reason of which it is alleged appellee lost a number of logs which he was rafting down said river to market, and was caused extra expense and loss of time in getting those of his said logs to market which were not lost because of the obstruction. The damages claimed in the aggregate amounted to the sum of $2,723.25.

The defendant answered by general demurrer and general denial and by several special pleas, the nature of which it is unnecessary to state because not material in the decision of any question presented in appellant’s brief. The trial in the court below with a jury resulted in a verdict and judgment in favor of appellee for the sum of $1,100.

This is the second appeal of the case. The opinion of this court on the former appeal is reported in 149 S. W. 358.

The first assignment of error complains of the following paragraph of the court’s charge to the jury: “If you do not find from a preponderance of the evidence that the said Neches river was in fact a navigable stream, as hereinbefore defined, but if you find that the defendant did obstruct said river by the maintenance of its bridge across and on said stream, and that said bridge was an obstruction, and you find that the river was used for floating logs and timber, which defendant knew, then you are instructed that each party had equal rights to the reasonable use and benefits of said stream; and, if you believe that the use being put by the defendant in the maintenance of its bridge was a reasonable one, you will find for the defendant; but if you find from the evidence that said' river was not a navigable stream, but that the defendant’s bridge was an obstruction, and that its maintenance and use was an unreasonable use of said river, in that the bridge deprived the plaintiff of equal rights and use of said river, which could have been avoided by the use of ordinary care on the part of the defendant in its use and the maintenance of said bridge, and that the defendant in the use and maintenance of said bridge failed to use the care that an ordinary prudent person would have used under the same or similar circumstances in respect to the equal rights of the plaintiff in the use of said stream for the floating of his logs to market, and thereby occasioned plaintiff’s loss or damage, if any, then you will find for the plaintiff.” The first proposition presented under this assignment is: “The general public have no rights whatsoever in streams which are non-navigable, and hence have no right to complain of obstructions therein or thereof.” This proposition is clearly sound if the term “nonnavigable stream” is not construed to include streams which, while not navigable for boats or general commercial purposes, are periodically capable of being used for rafting logs and continues so long enough at a time to make them susceptible of beneficial use by the public. In framing this charge the court doubtless had in mind the distinction made in some of the cases between what is a navigable stream, in the strict technical sense of that term, and a stream which is only useful for floating logs. Blackman v. Mauldin, 164 Ala. 337, 51 South. 23, 27 L. R. A. (N. S.) 670; Miller v. State, 124 Tenn. 293, 137 S. W. 762, 35 L. R. A. (N. S.) 407, Ann. Cas. 1912D, 1086.

In the Miller Case, supra, the court says: “While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains at certain periods of the year occurring with reasonable certainty, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors. * * * The common law, in its wonderful adaptation to the vicissitudes of human affairs, and to promote the comforts and conveniences of men, as unfolded in the progress of society, furnishes a solution of this difficulty by allowing the owner of the soil, over which a floatable stream, which is not technically navigable, passes, to build a dam across it, and erect a mill thereon, provided he furnishes a convenient and suitable sluice or passageway for the public by or through his erections. In this way both these rights may be exercised without substantial prejudice or inconvenience.”

The distinction. made in these cases between streams “strictly” or “technically” navigable and those only periodically capable of beneficial use for “floatage” does not affect the public’s right to the use of the stream as a highway, and this right of way of the public cannot be wrongfully obstructed in any stream in which such easement exists. The character and extent of the use of which the stream is capable, if sufficient to make it a public highway, is only further important in determining what use of the stream by one person would constitute an unreasonable or wrongful interference with or obstruction of its ase by another; the rights of both persons therein being equal.

The charge complained oiS does not present accurately or clearly the law applicable to the issue of whether the stream was a public highway, but the evidence was such that this error in the charge was harmless. The undisputed evidence shows that the Neches river at and above the place of the obstruction had been utilized for the purpose of rafting or floating logs to market for a great many years. It is not capable of such use at all times, but during the periodical rises in the river, which generally occurred twice each year, it was capable of such use and had been so used by the public for a long time. During very dry years these periodical rises did not occur, and this condition had existed for a year or more preceding the year in which plaintiff sustained the loss caused by the obstruction placed in the river by the defendant. Upon the former appeal of this case we held that these facts established the navigable character of the stream and converted it into a public highway. Railway Co. v. Allen, 149 S. W. 358; Orange Lumber Co. v. Thompson, 126 S. W. 604.

The undisputed evidence further shows that at the place where it is obstructed by the defendant’s bridge the stream is over 70 feet in width. Article 4147, Sayles’ Civil Statutes, declares that all streams in this state 30 feet in width are navigable streams, and provides that surveys of public lands shall not cross such streams. It has been held that under this article owners of land upon a stream 30 feet in width only acquire title to the margin of the stream; the title to the bed of the stream being reserved to the state. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563. This being the law, defendant, as riparian owner of the land, acquired no title to the bed of the stream, and, as stated in the charge, his right to the use of the bed or channel of the stream for any purpose could be no greater than the right of the plaintiff to such use. The assignment complaining of the charge cannot be sustained.

The evidence is sufficient to sustain the finding of the jury that the damages suffered by plaintiff by reason of the unlawful obstruction of the stream by the defendant aggregated the sum of $1,100; and the second, third, and fourth assignments of error, which complain of the verdict as excessive, cannot be sustained.

There is no merit in the fifth assignment of error which complains of the verdict on the ground that there was no basis in the evidence upon which the amount of damages could be definitely fixed, and the jury must have arrived at the verdict “by guesswork or some other improper method.” The basis of this contention is that the evidence shows that both pine and cypress logs were lost by the plaintiff, but fails to show what portion of the logs lost were pine and what cypress.

The evidence does not show that any cypress logs were lost. Plaintiff alleges in his petition that he had 16,491 feet of cypress timber at the time he Started his rafts to Beaumont. The cypress logs were only worth $1 per 1,000 feet more than the pine logs, and if we can presume that, in arriving at the number of logs lost by plaintiff, the jury, in the absence of any evidence on the subject, concluded that all of the cypress logs were lost, the verdict would only be $16.50 greater than if only pine logs of the number found by the jury were lost.

We cannot presume, however, that the jury, in the absence of evidence, charged the defendant with the loss of any cypress logs, when there is evidence sufficient to sustain a larger verdict than the one rendered without including any cypress logs in computing the value of logs lost by the plaintiff.

The sixth assignment of error complains of the ruling of the court in admitting the testimony of the plaintiff as to the market value of timber in Beaumont in June, 1909, over the defendant’s objection that “the witness has not shown that he is qualified to answer that question; that -he has no information except such as hearsay; and the testimony would necessarily be hearsay and secondary evidence, and he is not entitled to testify.”

The witness stated that he knew what the market value of timber at the time and place before stated was, and that pine timber was worth $7 and cypress timber $8 per 1,000 feet. On cross-examination counsel for defendant asked the witness if he sold any timber in Beaumont in June, 1909, and he replied that he did not. The witness then stated that he knew several persons who took timber to Beaumont in June, 1909, and sold it, and was told by such persons what price they received for their timber, and that his knowledge of th.e market price at the time and place in question was based on the statements of persons who had sold in said market at that time. Counsel for defendant then objected to the witness testifying as to the market value of the timber and moved to exclude his testimony on the grounds before stated. We think the evidence was admissible.

Knowledge of market value is generally based on hearsay. A witness may know what the market value of an article is at a certain time and place by hearing of sales at that time and the price for which the article sold, or by having seen quotations of the market price sent out by persons engaged in buying and selling on the market, and the knowledge which is necessary to qualify him to testify as to market value is not restricted to that derived from his personal transactions on the market, nor from sales made in his presence and hearing. Railway Co. v. Cocreham, 10 Tex. Civ. App. 166, 30 S. W. 1118; Railway Co. v. Fisher, 18 Tex. Civ. App. 78, 43 S. W. 584.

These conclusions also dispose of the question presented by the seventh assignment, which also is overruled.

There is no merit in either of the remaining assignments, and both are overruled. The plaintiff, Allen, showed sufficient knowledge of the number of logs involved in the jams of 1909 and 1910, respectively, to entitle him to give his estimate of the proportionate number of logs lost in each jam.

As said in our former opinion, the fact that the exact number of logs lost by plaintiff by reason of defendant’s unlawful obstruction of the stream cannot be definitely shown should not defeat his right of recovery. The evidence was sufficient to enable the jury to estimate his loss and damage with reasonable certainty, and this is all the law requires.

We are of opinion that the judgment should be affirmed, and it has been so ordered.

Affirmed.


author: WILLSON, C. J.

text:
    WELLS et al. v. MARGRAVES et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1914.
    On Appellees’ Motion for Rehearing, Feb. 12, 1914.)
    1. EXECUTORS AND ADMINISTRATORS (§ 438)— Actions — Parties.
    Where the entire estate had been converted into money as directed by the will, which was an “independent will,” and the determination of the amount to which each legatee was entitled was a mere matter of calculation, it was not necessary that all persons entitled to parts of the fund be made parties to an action for a legatee’s interest; Sayles’ Ann. Civ. St. 1897, art. 2154, requiring an application for partition and distribution to state the names and residences of all persons entitled to a share of the estate, if known, and whether they are adults or minors, not applying to an estate administered independent of the probate court.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1765-1785, 1790; Dec. Dig. § 438.]
    2. Death (§ 2) — Presumptions—Time.
    In view of Rev. St. 1911, art. 5707, providing that any person absenting himself for seven years successively shall be presumed to be dead, a showing in an action for distribution that a legatee left home with a circus when between 17 and 21 years of age, and had never been heard of by his relatives for 58 years, warranted a finding that he was dead at the expiration of the 7 years following his leaving home.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.]
    3. Evidence (§ 67) — Presumptions—Marriage.
    Under the rule that the continued existence of a status is presumed, it will be presumed that one who was unmarried when he left home when between 17 and 21 years of age, and who was not afterwards heard of, remained unmarried until he died.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 87, 88,103; Dec. Dig. § 67.]
    4. Death •(§ 4) — Actions—Sufficiency oe Evidence.
    In an action to recover an interest claimed under a will, evidence held to sustain a finding that one of the legatees was dead, ■
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.]
    5. Evidence (§ 314) — Hearsay.
    Evidence as to result of inquiries made by witness in the counties where a certain person once lived and was last heard of, with reference to whether he was dead, etc., was inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1274-1297; Dec. Dig. § 314.] '
    6. Death (§ 4) — Presumptions.
    Under the rule that one may be presumed to be dead if confronted by some specific peril when last heard of, it will be presumed that one is dead who, when last heard of, was shot and carried to a hospital.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 5, 6; Dee. Dig. § 4.]
    7. Executors and Administrators (§ 450)— Actions — Burden oe Prooe. .
    In an action for a legatee’s interest under a will, which gave the proceeds of the estate to certain persons and their children, and, if any of them died without issue, gave their interest to the living legatees, the burden was on plaintiff to prove a deceased legatee ■ died without children.
    ■ [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1858-1876 Dec. Dig. § 450.]
    8. Evidence (§ 314) — Hearsay.
    Evidence, in an action to recover a legatee’s interest in an estate, that a certain person who was not a witness had written letters inquiring about an alleged deceased legatee, and found no one who remembered that such legatee had ever lived in the place to which the letters were addressed, was incompetent.
    [Ed. Note. — For other cases, see Evidence, Cen.t. Dig. §§ 1274-1297; Dec. Dig. § 314.]
    9. Death (§ 4) — Death of Legatee — Sufficiency of Evidence.
    In an action to recover a legatee’s interest under a will, which gave the proceeds of the estate to certain persons and their children, and, if any of them died without children, gave their interest to the other legatees, evidence held not to show that the daughter of a certain legatee was dead or died without issue.
    ■ [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.]
    Appeal from District Court, Fannin County; Ben H. Benton, Judge.
    Action by W. H. Margraves and another against G. W. Wells and others, in which others intervened. From a judgment for plaintiffs and interveners, defendants appeal.
    Reformed and affirmed.
    At a time not shown by the record, James M. Braden died, leaving a will, which was duly probated, containing a clause as follows: “I direct that all my real and personal property of whatsoever kind shall be sold and converted into money either in' cash or upon a stipulated credit, as the interest of my estate may demand, and the money and the proceeds of the sale of such property shall be divided as follows: Giving one-half to my kin folks and one-half to my deceased wife S. R. Braden’s kin folks. My kin folks are named as follows; Mary Kirkland, née Braden; Elizabeth Tindal, née Braden'; Rich Braden, Obe Braden, John Braden; and if any of these parties be not living, to their children and their descendants; and if any of them should have no children their interest to be equally divided among the others who are living. That the other and 'remaining half I give and bequeath to my wife’s kin folks, named as follows: Chaney Hughes and her children and their descendants, except the children and their descendants of John Hughes, Sr., named as follows: James Hughes, Mary Hughes and J. P. Hughes; the children and their descendants of Mary Scruggs, deceased; the children and their descendants of Nancy Crow, deceased; the children and their descendants of Betsey Gunter, deceased; and the children and their descendants of Henry Hobbs; and' the children and their descendants of Nathan Hobbs, deceased; and the children and their descendants of John Hobbs, Sr., deceased; ex-eept John Hobbs, Jr., the son of said John Hobbs, Sr. Now if any of the above named persons are not living at the time of my decease, their interest and part shall be equally divided between those who are living.” The will was an “independent” one; that is, it contained a provision that no action should be had in the probate court in relation to the settlement of the testator’s estate other than the probating and recording of the will, and the returning of an inventory, ap-praisement, and list of the claims belonging to the estate. Appellant Wells, executor of the will, and the other appellants, sureties on his bond as such executor, were defendants in the court below. The plaintiffs were ap-pellees W. H. Margraves and J.'E. Hembree, who owned an interest in the estate by purchase from children and their descendants of Rich Braden, named in the will as one of the legatees, and appellee J. M. Tindal, son of Elizabeth Tindal, named in said will as one of the legatees. Appellant Wells having, as executor, as directed by the will, converted all the property of the estate into money, and having in his hands as such executor the sum of $21,083.54 to be distributed among the legatees, said appellees by their suit sought judgment against him and his said sureties for the parts of said sum they were respectively entitled to. Other persons, claiming as children or their descendants of others named as legatees in the will, among whom were Walter, Artie, Ethel, and Opal Bone, descendants of the testator’s wife, intervened in the suit, adopted as their own the allegations in the plaintiffs’ petition, and .prayed judgment against appellants for the parts of the fund belonging to them respectively. Still other persons, shown by the pleadings and testimony to be entitled to share in the distribution of the fund, were never made parties to the suit. Because they were not, it was contended in the court below, and is here, that the court was without power to grant the relief sought by the plaintiffs and' interveners. It will be noted that the testator directed that all the property belonging to his estate be converted into money, and bequeathed one-half the fund to be so created to his kinfolks, to wit, Mary Kirkland, Elizabeth Tindal, Rich Braden, Obe Braden, and John Braden, and their respective children or their descendants, and directed that, if either of the parties named should be dead and without a child or children surviving him or her, the interest he, or she, or they, would have taken under the will should be equally divided among the other parties named and their respective children or their descendants. It was contended, on behalf of the plaintiffs Margraves and Hembree, that both Obe Braden and Mary Kirkland died before the testator did, leaving no children or their descendants, and therefore that said plaintiffs, by their purchase of eight-tenths of the interest in the fund belonging to the children and their descendants of Rich Braden, owned and were entitled to demand and receive of the executor eight-tenths of one-third of one-half the fund, instead of the eight-tenths of one-fifth of one-half thereof, which they would have been entitled to had said Obe Braden and Mary Kirkland been living, or had they left children or their descendants surviving them. It was contended on behalf of the plaintiff J. M. Tindal, son of Elizabeth Tindal, and on behalf of interveners Myrtle Edwards, Clara Dillbeck, Hattie I. Tindal, Wm. E. Tin-dal, and R. E. Leei children and their descendants. of W. H. Tindal, deceased, another son of said Elizabeth Tindal, that, for the same reason, said Elizabeth Tindal became entitled to one-third, instead of one-fifth, of one-half of said fund; and it was further contended on behalf of said J. M. Tindal and said interveners that Eannie Key, another child of said W. H. Tindal, had died without issue, and therefore they were entitled to demand and receive of the executor the interest in said fund which otherwise should have been awarded to said Eannie Key or her descendants. The trial having been before the court without a jury, he found as facts; (1) That Obe Braden, named in the will as one of the legatees, died without issue before the testator died. (2) That Mary Braden, named as a legatee, who married one Kirkland, also died before the testator did, leaving three sons, each of whom died without issue before the testator died. (3) That Elizabeth Tindal, also named as a legatee, died, leaving a daughter named Eannie, who married one Key, a son named J. M. Tindal, who, as stated before, was one of the plaintiffs below, and three other children; that all of her said children, except said J. M. Tindal, were dead; and that said Fannie Key died without issue before the testator died. By assignments in the brief, the foregoing findings, in so far as they are that Obe Brad-en, Mary Kirkland, her children,- and Fannie Key, were dead, and that said Obe Brad-en and Fannie Key died without leaving issue, are attacked as not supported by the testimony. (4) That Rich Braden and John Braden, named in the will as legatees, each died before the testator did, and each left children or their descendants surviving him. On findings made by him, the court rendered judgment in favor of the plaintiffs and in-terveners, appellees here, for portions of the 'fund he found to be due them respectively. Their motion for a new trial having been overruled, appellants prosecuted this appeal.
    Gross & Leslie, of Bonham, and G. W. Wells, of Honey Grove, for appellants. Moore & Hardison and Moore & Park, all of Paris, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above). Appellants were of the opinion the court could not grant appellees the relief they sought, unless he had before him as parties to the suit all the persons entitled to share in a distribution of the fund in the hands of the executor, and complain of the action of the court, who was of a contrary opinion, in overruling their exceptions to appellees’ petition on the ground that it appeared therefrom that there were other persons than those thereby made parties who were entitled to parts of the fund. As supporting their contention, appellants refer to article 2154, Sayles’ Statutes, which requires an application for the partition and distribution of an estate to state “the names and residences of all persons entitled to a share of such estate, and whether such persons are adults or minors, and if these facts be unknown to the applicant, it shall be so stated in the application,” and to cases like Ship Channel Co. v. Bruly, 45 Tex. 6, which hold, that, in a suit for partition a petition showing other persons than those thereby made parties to be interested in the partition is so defective as to be subject to a general demurrer. But we think neither the statute nor the cases relied upon required the court to sustain the exceptions. The statute was intended to apply to estates being administered in the probate court, and not to estates being administered, as this one was, independent of that court. The reason for the rule which, in ordinary cases, requires all persons who own an interest in property to be made parties to a suit to partition it lies in the fact that the rights of all such parties will be affected by the partition. The reason does not apply here. All the property of the estate, in accordance with the direction in the will, had been converted into money, and, looking to the terms of the will, it was a mere matter of calculation to determine the part of the fund each legatee was entitled to. In awarding to one of the legatees judgment for the part he was entitled to, the rights of the other legatees could not be in any way affected. Therefore we think the court did not err when he overruled the exceptions. McNeill v. Masterson, 79 Tex. 670, 15 S. W. 673.

As before stated, the findings of the court that Obe Braden, Mary Kirkland, and Fannie Key died before the testator did, that said Obe Braden and Fannie Key died without issue, and that the three children of Mary Kirkland died without issue before the testator did, are attacked as without support in the testimony.

As to Obe Braden, it was shown that he left his home in Alabama when he was between 17 and 21 years of age, and went away with a circus traveling through the country. Between that time and the time the witnesses testified, a period of 58 years, he had never been seen nor heard of by any of his relatives. Clearly, on the showing made, the court was warranted in finding that Obe Braden died within, or at the expiration of, the 7 years following the date of his going away with the circus. Article 5707, Revised Statutes 1911; Primm v. Stewart, 7 Tex. 178; French v. McGinnis, 69 Tex. 19, 9 S. W. 323. While no witness testified directly to the fact, we think it was a fair inference from the testimony, that Obe Brad-en was unmarried at the time he left his home. If he was, then Shown v. McMackin, 9 Lea (Tenn.) 601, 42 Am. Rep. 680, is authority in point for saying that the court was authorized to indulge a presumption that he remained unmarried until he died. We think the ruling made in that ease was justified by the principle which requires a presumption to be indulged, in the absence of testimony to the contrary, in favor of the continued existence of a status established as once existing. Summerhill v. Darrow, 94 Tex. 71, 57 S. W. 942; and see Nehring v. McMurrian, 94 Tex. 45, 57 S. W. 943. We conclude that the testimony was sufficient to support the findings as to Obe Braden.

The witnesses A. L. Braden and X W. Braden testified that Mary Kirkland was dead. Therefore we overrrule the contention made that the testimony was not sufficient to support the finding of the court in this respect. But the testimony relied upon to show that her son, Jim Kirkland, was dead and that he died without issue was not so satisfactory. Excluding as inadmissible, because hearsay, as claimed by appellants, testimony of witnesses as to the result of inquiries about said Jim Kirkland made in Grimes county, where he once lived, and in McLennan county, where he was last heard of, by persons who did not testify, substantially all that was shown with reference to him was that in 1867 or 1868 he worked with the witness J. W. Braden in making a crop on a farm in Navarro county belonging to said J. W. Braden’s mother, and went from there, presumably in 1868 or 1869, to Waco, in McLennan county, where he was shot and afterwards carried to a hospital. So far as the witnesses knew to the contrary, nothing further was thereafterwards heard of him. On the principle that a presumption that a person is dead may be indulged on a showing that, when last heard from, he was faced with some specific peril (Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086), we are inclined to think the court was warranted in finding that Jim Kirkland died in McLennan county in 1868 or 1869 as a result of the wound he suffered there. But, as we understand the record, there was no testimony whatever on which to base a finding that he died without issue. It was not shown whether he had married and had children born to him or not at the time he helped make the crop in Navarro county, nor at the time he was shot in Waco. In the absence of testimony showing what his status in this respect was at the time or before the time the court was warranted in finding he died, we think it cannot be said the court was authorized to presume he died without issue. The burden was on appellees either to' prove that he did not leave a child or .children surviving him, or to show facts which the court was warranted in treating as a sufficient basis for a presumption that he did not.

The testimony' relied upon to prove that Fannie Key was dead and that she died without issue, we think, was entirely insufficient to support the finding of the court. It was shown that she, with her husband, moved from McLennan county, Tes., to Crystal City, Mo., in 1883; that during the two or three years immediately following such removal she corresponded with her brother W. I-I. Tindal, then in Tesas, and thereafter-wards was never again heard of by her relatives. She had no children when witnesses lhst saw her, and they never afterwards heard of her having any. One of the witnesses- had advertised, without result, for information regarding her in a paper published in St. Louis, Mo. This was all the testimony offered to show that she was dead and that She died without issue, except testimony showing that one Ferrell, who was not produced as a witness, had written letters to Crystal City inquiring about her, and found no one there who remembered that she had ever lived there. The testimony as to what Ferrell did, and the result thereof, was objected to as incompetent. It clearly was, we think; and we assume it was not considered by the court. - The other testimony referred to, we think, wholly failed to prove, either that Fannie Key was dead, or. that she died without issue.

It follows from what has been said that we are of the opinion that the judgment, in so far as it was based on findings that Jim Kirkland died without issue, and that Fannie Key was dead, and that she died without issue, is erroneous. Therefore it will be reversed in so far as it is in favor of appel-lees other than Walter Bone, Artie Bone, Ethel Bone, and Opal Bone, and the cause will be remanded for a new trial as between appellants and appellees, except the Bones, just mentioned. As stated above, the Bones claimed an interest in the fund as descendants of kin folks of the wife of the testator. Therefore the error pointed out in the judgment did not enter into or in any manner affect the recovery had by them, and, as to them, it will be affirmed. The costs incurred by them on this appeal will be taxed against appellants. The other costs of the ■appeal will be taxed ¿gainst the other ap-pellees.

On Appellees’ Motion for a Rehearing.

" In the motion attention is called to the fact that 'the witness J. W. Braden, on his redirect examination, stated that “none of the-three Kirkland boys were married.” The fact that we overlooked this testimony led to -the • erroneous statement in the opinion that there was nothing in the record on which to basé a finding that Jim Kirkland died - without- issue, and to the erroneous conclusion reached that the judgment was wrong, in so far as it was based on a finding to that effect. Giving effect to that finding, as we think we should, in view of the testimony overlooked as stated, it appears that the judgment rendered by the court below, so far as it was in favor of the appellees W. I-I. Margraves, J. F. Hembree, J. W. Braden, and Mrs. E. L. White, was not erroneous, and that, as to them, it should have been affirmed, as it was as to the appellees Walter Bone, Artie Bone, Ethel Bone, and Opal Bone.

In their motion appellees say they do not think it can be shown on another trial any more satisfactorily than it was on the trial had that Fannie Key died without issue, and they ask that, instead of reversing the judgment in so far as it was in favor of appel-lees J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal, and R. E. Lee, it be so reformed as to adjudge in favor of those parties respectively the sum it appeared they were respectively entitled to recover if said Fannie Key was living, and as so reformed affirmed. We think this should be done.

Therefore the judgment heretofore rendered by us, in so far as it reverses the judgment of the court below in favor of said ap-pellees W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal and R. E. Lee, will be set aside, and, in lieu thereof, judgment will be rendered affirming the judgment of the court below in so far as it was in favor of said W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, Walter Bone, Artie Bone, Ethel Bone, and Opal Bone, and so reforming it, so far as it is in favor of the other parties mentioned, as to adjudge a recovery in favor of J. M. Tindal of the sum of $280.91, instead of $456.61; in favor of Mrs. Myrtle Edwards and Mrs. Clara Dillbeck, each respectively, the sum of $56.20, instead of $91.34; and in favor of Hattie Inez Tindal, William Elmer Tindal and R. E. Lee, each respectively, the sum of $140.55, instead of $175.69. As so reformed, the judgment of the court below will be affirmed, but without prejudice to the right of Fannie Key, if living, or, if she is dead, to the right of her heirs or assigns, to maintain a suit against appellants for the part she or they may be entitled to of the fund in the hands of appellant G. W. Wells.

The costs incurred on this appeal by said appellees W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, Walter Bone, Artie Bone, Ethel Bone, and Opal Bone shall be paid by appellants. The .other costs of the appeal shall be paid by J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal, and R. E. Lee.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1913.
    On Motion for Rehearing Jan. 23, 1914.)
    1. Removal of Causes (§ 89) — Filing Petition and Bond — Effect.
    While a state court can retain no authority over a removable cause by refusing to grant an order removing it to the federal court after a proper petition, and bond are presented, the filing of the petition and bond does not oust the jurisdiction of the state court, if the cause is not removable.
    [Ed. Note. — For other cases, see Removal of Causes, Cent.- Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. § 89.].
    2. Removal of Causes (§ 11) — Right to Removal — Determination.
    For a cause to be removable to a federal court, it must appear from the record to be one of which a federal court can take cognizance when the transfer is made.
    [Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 29-31; Dec. Dig. § 11.]
    3. Removal of Causes (§ 74) — Cases Abusing Under Laws of United States — Amount Involved.
    An action for damages to an interstate shipment of cattle was not removable to a United States court, conceding that it arose under the laws of the United States, where the amount-involved'as shown by the petition was less than $2,000, since the federal court could not assume jurisdiction if removed.
    [Ed. Note. — For..other cases, see Removal of Causes, Cent. Dig. §§ 130, 131; Dec. Dig. § 74.]
    Appeal from Hopkins County Court; F. W. Patterson, Judge.
    Action by Edgar Smith against the Missouri, Kansas & Texas Railway Company of Texas. From-a judgment for plaintiff, defendant appeals.
    Reversed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, ■ and Alex. S. Coke, of Dallas, for appellant. R. R. Williams, of Cumby, and D. Thornton, of Sulphur Springs, for appellee.

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

   HODGES, J.

On September 30, 1912, the appellee, Edgar Smith, instituted this suit in the county court of Hopkins county against the appellant to recover the sum of $498 as damages to a shipment of cattle. The petition, in substance, states that the plaintiff resides in Hopkins county, Tex., and that the defendant, the Missouri, Kansas & Texas Railway Company of Texas, is a corporation existing under and by virtue of the laws of the state of Texas, and has a local agent residing in Hopkins county, Tex.; that it is a common carrier, and has a line of railroad running from Winnsboro, Wood county, Tex., to Denison, Grayson county, Tex.; that on or about the 26th day of March, 1912, plaintiff and defendant entered into a contract, by the terms of which the defendant and its connecting carrier agreed to transport the cattle before mentioned from Winnsboro and Cumby, in Texas, to the town of Beggs, in the state of Oklahoma, for which the plaintiff was to pay the regular-freight charges ; that, acting under the terms of that contract, plaintiff delivered some of the cattle to the defendant at Winnsboro, Tex., and the remainder at Cumby, Tex.; that the defendant received those cattle for transportation to Beggs, Okl., and at the time issued receipts and a bill of lading therefor; that the defendant aDd its connecting carrier did transport the cattle to their destination, partly over the defendant’s line, and the remainder of the way over the line of the St. Louis & San Francisco Railway Company. It is further alleged that the companies acted as partners or as agents of each other in -making said shipment. It is alleged that the cattle were injured by delays in transportation, and by rough handling- by both the defendant and its connecting carrier, for which the plaintiff claims damages in the sum of $483. He asked for the further sum of $15 as the expense of employés who accompanied the cattle, making an aggregate demand of $498. - ,

On October 15, 1912, the appellant, defendant in the court below, filed a petition -and bond for a removal of the cause to the Unit-, ed States Court for the Eastern District of Texas. The petition alleged, among other things, that the suit was one arising under the laws of the United States. It appears that this was the only ground upon which the application for a removal was based-. It further appears from the record before, us that the appellant- on -the same day filed in the trial court an answer to the merits of the case. Upon objection made by the plaintiff in the suit to the legal. sufficiency . of the petition for removal of the cause to. the federal court, the trial court refused the application, and called ■ the-, case . for trial. Counsel for appellant, however, either withdrew or for some cause failed to take any part in the proceedings. The court thereupon proceeded to hear testimony, after which he rendered a judgment in favor of the plaintiff for the sum of $498. The appellant has appealed from the judgment rendered, claiming that, after the filing of the petition and bond for removal of the cause to the federal court, the county court had no further jurisdiction, and had no power to render the judgment entered up in this ease. That is the only question presented on this appeal.

It is contended that, when the application for a removal was presented, together with a sufficient bond, the trial court had no further discretion as to proceeding with the cause, and was compelled to dismiss.it. While it is true a state court preserves no authority over a case by refusing to grant ah order removing a removable cause to the federal court after a proper petition and bond are presented, it is also true that it loses no power in such instances, where the case is not a removable one. “To make a case removable from a state court to a Circuit Court of tbe- United States under the present general statute on the ground that it arises under the Constitution, or laws, or treaty of the United States, it must appear from the plaintiff’s statement of his cause of action in his initial pleading — whether called a bill, complaint, declaration or petition — that it does so arise.” Moon on Removal of Causes, § 101. In order for a cause of action to be removable, it must appear from the record that the case is one of which a federal court can take cognizance when the transfer is made. The filing of the petition and bond ipso facto operates to oust the jurisdiction of the state court only when the case is one of which the federal court may acquire jurisdiction. In Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462, the court said: “It is well settled that, if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made.” See, also, Minnesota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870. Conceding that this suit is a case arising under the laws of the United States, it is shown by the plaintiff’s original petition that the amount in controversy is less than $2,000, and for that reason the federal court, to which it is sought to have the case transferred, could not assume jurisdiction. United States v. Sayward, 160 U. S. 493, 16 Sup. Ct. 371, 40 L. Ed. 509; Pitkin v. Bowen (C. C.) 91 Fed. 599. The county court committed no error in proceeding with the trial of the cause, and its judgment is therefore affirmed.

On Motion for Rehearing.

In disposing of this case in the original opinion, we overlooked the amendment of 1911 to the federal Judiciary Act (Act March 3, 1911, c. 231, 36 Stat. 1087 [U. S. Comp. St. Supp. 1911, p. 129]). Section 24 of the act of 1911, after setting out the different clauses of subject-matter of which the federal district courts have jurisdiction, contains this provision: “That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section.” The eighth paragraph, conferring jurisdiction, is as follows: “Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court.” That this suit relates to a subject-matter arising under a law regulating commerce there can hardly be any question; and it is also true that it belongs to a class “of which exclusive jurisdiction has not been conferred upon the commerce court.” That being true, the federal court has original jurisdiction, regardless of the amount in controversy. We therefore conclude that we were in error in affirming the judgment of the county court

The judgment of affirmance will therefore be set aside, and judgment here rendered reversing and remanding the cause.