author: CONNER, O. J.

text:
    ABILENE & S. RY. CO. v. BURLESON.
    (No. 8049.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 28, 1914.
    Rehearing Denied Jan. 9, 1915.)
    1. CARBINES <&wkey;318 — PASSENGER’S ACTION fob Injuries — Sufficiency of Evidence.
    In a passenger’s action for injuries caused by the derailment of a car in which he was riding, evidence held sufficient to sustain a jury finding that plaintiff was injured in such derailment, notwithstanding the contention that his evidence as to the direction in which he was thrown was contrary to the laws of momentum.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1807-1314; Dec. Dig. &wkey; 318.]
    2. Damages <&wkey;130 — Excessiveness — Personal Injuries.
    Where, in an action for injuries to a passenger caused when the car in which he was riding was derailed, by lurches which threw him against another xiassenger and the window of the car, and then across the aisle against the arm of a seat, there was evidence that he received severe injuries, that he suffered much pain, and that he was required to expend considerable sums for medical attention, a verdict for $3,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]
    Appeal from District Court, Jones County ; John B. Thomas, Judge.
    Action by R. O. Burleson against the Abilene & Southern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, and Chapman & Coombes, of Anson, for appellant. Mahaffey & Fulwiler and W. J. Cunningham, all of Abilene, for appellee.
   CONNER, O. J.

Appellee recovered a judgment for $3,000 for personal injuries alleged to have been received in a derailment of one of appellant’s passenger cars in September, 1911, at Abilene, Tex. A more complete statement may be seen by a reference to our opinion on a former appeal. See Abilene & Southern Ry. Co. v. Burleson, 157 S. W. 1177.

But three questions are presented on this appeal. They are: Did the court err in excluding evidence of appellee’s indictment for theft and other misdemeanors? If not, then does the evidence support the conclusion that appellee was injured in the wreck at all? And, if so, whether the verdict is excessive?

The first question was determined by us adversely to appellant on the former appeal, and hence need not now be discussed. The second question depends upon the construction to be given to the evidence. There is evidence, briefly stated, tending to show that the train at the time was moving in a northerly direction and running at the rate of 10 to 15 miles an hour; that when the derailment occurred it left the track to the right, the left-hand wheels of the passenger coach running upon the ties inside of the western rail, while the right-hand wheels were upon the ground to the right; that there were three distinct “lurches” of considerable force; that after the first lurch the plaintiff became frightened and rose to his feet, the car at the time being careened to the right at an angle of about 45 degrees; that after rising to his feet the second lurch of the car occurred which threw him forward and to the right against the body of another person sitting in the same seat with him and against the window of the car; that after a brief interval the third lurch occurred, which appellee testified threw him in the opposite direction across the aisle and on to the arm of the seat just behind the one immediately opposite to which he had been sitting, and from which he suffered the injuries alleged. The contention is that it was impossible for plaintiff to have been so thrown, it being insisted that his projection backward and to the southwest, as testified to by appellee, is in opposition to the laws of momentum. After a consideration of the evidence, however, we feel unable to sustain this contention and disturb the finding that must be imputed to the jury’s verdict in appellee’s favor on the issue. There was other testimony corroborating plaintiff as to the number and violence of tlie lurcb.es, and the evidence fails to affirmatively show that the momentum of the car was impeded or impelled at the time of the last lurch in the same direction as the first. To illustrate: If, at the time of the derailment, the car was going at the rate of 15 miles an hour, and the train in front of the car upon which appellee was a passenger was suddenly checked, the law of momentum would throw plaintiff forward as he testified he was first thrown. It is not impossible that the third lurch was caused by some sudden Jerk of the forward part of the train, the natural tendency of which was to throw appellee backward, as he testified. At any rate, there is no affirmative proof necessarily in conflict with appellee’s statement on the point.

On the third and last question presented we feel impelled likewise to overrule appellant’s contention. While there was evidence tending to show that appellee received his injuries in some other way, and that they were not so great as he sought to show, yet his own and other testimony tended to show that his injuries were severe; that he suffered much pain; was required to expend considerable sums for medical attention, etc. So that, on the whole, we think the case fairly within that class of cases which support the amount of the recovery herein. See G., C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 325, 14 S. W. 703; Central Texas & N. W. Ry. Co. v. Luther, 32 Tex. Civ. App. 309, 74 S. W. 589; Atchison, etc., Ry. Co. v. Frier, 22 S. W. 6; Galveston, H. & S. A. Ry. Co. v. Cade, 93 S. W. 129; International, etc., Ry. Co. v. Elkins, 54 S. W. 931.

No other question having been presented by the assignments of error, it is ordered that the Judgment be affirmed.
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source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    WESTERN GROCERY CO. v. K. JATA & CO.
    (No. 398.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 11, 1915.)
    1. Partnership i&wkey;197 — Actions—Pasties.
    A partner-ship is not a distinct legal entity, and actions by or against a partnership must be conducted in the names of the partners.
    [Ed. Note. — If or other cases, see Partnership, Cent. Dig. § 300; Dee. Dig. <@¿5197.]
    2. PARTNERSHIP <&wkey;219 — ACTIONS—JUDGMENT —Validity.
    A judgment for two partners, one of whom was not a party to the action, is invalid.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. &wkey; 219.]
    3. Appeal and Error &wkey;>223 — Questions Reviewable — Fundamental Error — Abatement — Demurrer.
    Error in rendering judgment for two partners, one of whom was not. a party to the action, is fundamental, and objection may be made by plea in abatement, demurrer, or appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1338-1342, 1344, 1346-1350; Dec. Dig. &wkey;223.]
    Appeal from El. Paso County Court; J. M. Deaver, Special Judge.
    Action by K. Jata & Co. against the Western Grocery Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    McBroom & Scott, of El Paso, for appellant. T. C. Lea, Jr., and Frank Feuille, Jr., both of El Paso, for appellees.
   HARPER, C. J.

The trial petition in this case contains the following allegation as to parties:

“That K. Jata & Co. is a partnership consisting of K. Jata and * * * , with its main ofiice at Madera, Mexico.

The statement of facts show that the partnership was composed of IV Jata and K. Fujita, and the judgment was entered in favor of the two last named as plaintiffs against the Western Grocery Company, defendant, for the amount sued for, from which this appeal is taken.

The first assignment is that the verdict and judgment are void because the suit is brought in the name of a partnership, which has no such legal entity as to authorize it to sue as such.

“Partnerships are not recognized by law, either common or Texas statutory, as constituting separate and distinct legal entities, and therefore the right to sue or be sued in the partnership name is not conceded to them in our courts; and litigation by or against partnerships must be conducted in the names of the individual members of the firm, and not in the firm name.” Townes’ Texas Pleading, p. 251.

The statement of facts shows that there were two members of the firm, and the judgment entered is in favor of one of them, who was never a party to the suit. It therefore cannot stand. Speake v. Prewitt, 6 Tex. 252.

The error is fundamental, and objection may be made by plea in abatement (De la Vega v. League, 64 Tex. 205), or by general demurrer, or by suggestion of fundamental error on appeal (James P. Hanner and Wife v. Summerhill, 7 Tex. Civ. App. 235, 26 S. W. 906). See Townes’ Pleading, p. 288.

This conclusion will dispense with the necessity of considering the other questions presented.

Reversed and remanded.


author: HIGGINS, J. HIGGINS, J.

text:
    KEEVIL v. PONSFORD et al.
    (No. 396.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 4, 1915.
    On Rehearing, Feb. 25, 1915.)
    1. Municipal Corporations <&wkey;809 — Streets —Obstructions.
    To leave a wagon loaded with bricks in a public street by night, without placing red lights thereon, as required by city ordinance, was gross negligence on the part of the defendants.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1688-1694; Dec. Dig. &wkey;809.]
    2. Municipal Corporations @=705 — Streets —Speed Limit — Exceeding by Ofeicers as Negligence.
    Where a police officer, engaged in special duty of arresting- violators of the speed laws, traveled on his motorcycle at a speed in excess of such laws, and was injured while so doing by an obstruction in the street, it was contributory negligence on his part.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1516-1517; Dec. Dig. <&wkey;705.]
    3. Municipal Corporations @=705 — Contributory Negligence — Proximate Cause oe Injury.
    Where a police officer on duty arresting violators of the speed laws was injured while Eursuing an automobile at 50 or 60 miles an our by colliding with a wagon loaded with bricks left unlighted in the street at night by defendants, the negligence of the officer in running at such a speed will not preclude his recovery for defendants’ negligence unless his negligence concurred in proximately causing his injury, the rules regarding proximate cause being the same whether negligence is actual, or imputed through violation of a statute or ordinance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. <&wkey;705.]
    4. Municipal Corporations <&wkey;706 — Contributory Negligence — Proximate Cause oe Injury — Sueeiciency oe Evidence.
    Evidence held insufficient to show, as a matter of law, that plaintiff’s negligence proximately contributed to his injury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. <&wkey; 706.]
    5. Trial <&wkey;139 — Taking Case from Jury-Evidence to Justify.
    Where any other conclusion might be reached by reasonable minds on the evidence, the direction of a verdict is improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 33S-341, 365; Dec. Dig. &wkey; 139.]
    6.Trial @=339 — Taking Case from Jury-Setting Aside Verdict — Direction oe Verdict.
    Greater insufficiency of evidence sustaining plaintiff’s case is necessary to justify direction of a verdict against him than to authorize the court to set aside a verdict for him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.^ §§ 332, 333, 338-341, 365; Dec. Dig. @=
    7.Appeal and Error @=1177 — Reversai>-JUDGMENT OE APPELLATE COURT — EFFECT OF Kelations of Oodefendants Not Gone into at Trial.
    Where, a verdict was directed in favor of three codefendants in a suit for personal injuries on the ground of plaintiff’s contributory negligence, judgment will not be reversed as to some or one only, where the question of their respective liabilities had not been developed at the trial, but that question will be left to a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. @=1177.]
    8.Appeal and Error @=274 — Review—Sufficiency of Objection to Charge.
    Objections to the court’s charge, sufficient to direct the attention of the trial court to the point, will be sufficient to raise it on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605, 1606, 1607, 1624, 1631-1645; Dec. Dig. &wkey;274.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by J. E. Keevil against H. T. Pons-ford and another. Verdict directed for defendants, and plaintiff appeals.
    Reversed and remanded.
    Wallace & Gardner, of El Paso, for appellant. McBroom & Scott and J. F. Woodson, all of El Paso, for appellees.
   HIGGINS, J.

Keevil brought this suit against Ponsford, Pollock, and the Santa Fé Fuel Company to recover damages arising from personal injuries. Pollock was a contractor, building a house on north side of Montana street in city of El Paso. Pons-ford was a subcontractor doing the brickwork. Ponsford bought the brick used in the construction of the house from the Vinton Brick Company, to be delivered unloaded in the street. The Santa Fé Fuel Company was engaged in delivering the brick to Ponsford. The latter had nothing to do with the brick until they were delivered and unloaded.

On the night of November 28, 1912, there was a pile of brick belonging to Ponsford in Montana street, on the north side, in front of the house which he and Pollock were engaged in building. The Santa Fé Fuel Company had also left there a loaded wagon of brick for Ponsford. The wagon stood in the street in a slanting position, one of its rear wheels on the south extending 10 to 16 feet in the street from the curb on the north. An ordinance of the city required red lights to be placed during the night at both ends of every obstruction upon any street. Upon the night in question the wagon and pile of bricks were not protected by lights as the ordinance required. A building permit, which had been issued for the construction of the house, carried with it a license to the contractors to place building material in the street while construction was in progress.

Keevil was a policeman of El Paso; his special duty being to detect and arrest violators of the speed limit law. On the night mentioned, he discovered an automobile running at the rate of 60 miles an hour in a westerly direction on Montana street. He at once pursued the car, riding on a motorcycle, and while running 50 or 60 miles an hour collided with the rear wheel of the wagon aforesaid and sustained serious injuries. At the time of the accident he was traveling in a westerly direction and a few feet north of the center of the street Upon trial, a peremptory instruction was given in favor of the defendants. In accordance wherewith verdict was returned and judgment rendered.

It cannot be denied that it was negligence of the grossest character to obstruct the street in the manner indicated without complying with the ordinance relative to placing lights thereon. On the other hand, Keevil, too, was traveling at a rate of speed prohibited by law, and in so doing was guilty of negligence per se. Railway Co. v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146. Peace officers are not excepted from the operation of the laws limiting the speed of vehicles upon public highways. Certainly, an exception should be made in favor of those whose special duty it is to detect and arrest parties running in excess of the legal limit, while discharging such duty. The courts, however, cannot ingraft this exception. It must be done by the legislative body. But plaintiff’s negligence in this respect would not preclude recovery, unless it concurred with the negligence of defendants and proximately contributed to the injury. Martin v. Railway Co., 87 Tex. 117, 26 S. W. 1052; Railway Co. v. Parks, 40 Tex. Civ. App. 480, 90 S. W. 343; Campbell v. McCoy, 3 Tex. Civ. App. 298, 23 S. W. 34; Railway Co. v. Garcia, 75 Tex. 583, 13 S. W. 223; Railway Co. v. McClain, 80 Tex. 85, 15 S. W. 789. Whether an act be negligence per se, because violative of a duty imposed by statute or ordinance, or be negligence because in violation of some duty under general principles of law, the same rules must be applied in determining the question of proximate cause. Railway Co. v. Dobbins, 40 S. W. 861. Was the court below warranted in assuming as a matter of law that plaintiff’s negligence was a proximately contributing cause?

Undoubtedly the evidence strongly tends to establish this fact, but we are not prepared to say no other conclusion could be reached by reasonable minds. The evidence might be so unsatisfactory upon this issue that the court would have been warranted in setting aside a verdict in plaintiff’s favor, and yet not of that character which would authorize an adverse peremptory instruction. We are of opinion there is room for a difference of conclusion by reasonable minds upon the issue, and that the peremptory instruction was improperly given. In view of retrial, we refrain from discussion of the details and probative force of the evidence.

The Santa Fe Fuel Company insists that in any event the judgment as to it should be affirmed, since the undisputed evidence shows the duty of placing lights upon the obstruction did not rest upon it. On the other hand, Pollock and Ponsford contend that in any event the judgment should be affirmed as to them. The peremptory instruction, upon its face, shows it was given upon the theory that plaintiff’s recovery was barred by his own contributory negligence, and the defense seems to have proceeded mainly upon that theory. What the evidence upon retrial may develop as to liability of the respective defendants cannot be definitely foreseen. We do not think this a proper case to affirm as to certain of the defendants and reverse as to others, but the ends of justice require a general reversal and it will be so ordered.

Reversed and remanded.

WALTHALL, J., did not sit in this case.

On Rehearing.

HIGGINS, J.

Upon rehearing, it is urged that the objections to the court’s charge filed by appellant, as required by chapter 59, Acts of 1913, were insufficient to raise the point upon which the reversal herein is based. •

An examination of such objections discloses that they were sufficient to direct the attention of the trial court to the error indicated in original opinion. They may not have done so as clearly and definitely as is desirable, but we are unable to say they were wholly insufficient in that respect.
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author: MOTJRSUND, J.

text:
    SEELING v. ALAMO IRON WORKS et al.
    (No. 5388.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.
    Rehearing Denied Feb. 24, 1915.)
    1. Mechanics’ Liens @=> 115— Validity — Notice.
    Rev. St; art. 5623, provides that any person who may furnish material to a contractor to be used in the erection of a building, by giving notice to the owner or his agent of every item furnished, and by showing how much is unpaid, may have and secure a materialman’s lien. A materialman, upon furnishing various items, delivered accounts to the architect who was the owner’s agent, which by him were delivered to the owner at times when there was enough due under the contract to have paid the claims. Held, that the notices were sufficient under the statute.
    TEd. Note. — For other cases, see Mechanics’ Liens, Cent.Dig. §§ 150-159; Dec.Dig. <S=»115.J
    2. Mechanics’ Liens '@=5132 — Notice—Filing with Clerk.
    Under Rev. St. art. 5623, providing for the perfecting of a mechanic’s lien by filing notice with the owner or his agent, or with the county clerk within 90 days after the accrual of the indebtedness, a materialman who filed notices with the owner’s agent is entitled to his lien, though the notice to the clerk was not given within the specified period.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. @=>132.]
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Action by the Alamo Iron Works against Ed. Seeling and others, in which the Mackey Brick & Tile Company intervened. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    Arnold, Cozby & Peyton, of San An'tonio, for appellant. C. A. Keller and Kampmann & Burney, all of San Antonio, for appellees.
   MOTJRSUND, J.

Alamo Iron Worts sued Ed. Seeling, C. Battaglia, J. T. Wilson, and A. E. Richey, alleging that plaintiff sold certain goods, wares, and merchandise and building materials to C. Battaglia, then doing business under the name and style of San Antonio Construction Company, said material being furnished to said Battaglia for use in the construction and erection of a certain building on property belonging to defendant Seeling, and plaintiff alleged that, to secure said debt, it had filed an involuntary mechanic’s and materialman’s lien on said property. The said Wilson and Richey were made parties defendant as bondsmen on the bond given by Battaglia to Seeling. The Mackey Brick & Tile Company intervened, and alleged substantially the same facts as pleaded by the plaintiff, and sued for an indebtedness for building material which they alleged had been furnished by them to said Battaglia, and also claimed a materialman’s lien on said property to secure said debt. Judgment was rendered in favor of plaintiff, Alamo Iron Works, for $7S6.97, and in favor of the intervener for $682.07 against Seeling and Battaglia, and establishing and foreclosing the materialman’s liens on the said property of Seeling. Judgment was rendered in favor of Wilson and Richey. No findings of fact and conclusions of law were filed.

Findings of Fact.

1. Arthur J. Hermann, the architect employed by appellant in connection -with the erection of the building upon which the material was used which was bought from plaintiff and intervener by Battaglia, was authorized to receive and file accounts showing what material was being furnished to the contractor. His duty was to file such accounts or bills, which were issued in duplicate, one to him and one to the contractor, and to make estimates, either every week or every two weeks; the witnesses not being sure which it was. At the time of making such estimates upon which payments were made to the contractor, he showed appellant all bills accruing between the former estimate and the one then made.

2. The Alamo Iron Works furnished Her-mann with itemized bills of the material furnished, said bills being quite numerous, and the first being dated March 19, 1912, and the last dated September 9, 1912. It appears from the itemized account introduced in evidence that about June 14th said bills showed the contractor to be indebted to Alamo Iron Works in the sum of more than $1,500; that on June 27th the indebtedness was about $1,200. Appellant knew that the Alamo Iron Works was continually furnishing material, and was shown the bills every time Hermann made estimates for him, which was every week or two.

3. The Alamo Iron Works gave appellant a complete itemized account on September 20, 1912, and filed a copy thereof in the county clerk’s office on September 23, 1912. The last item on this account bears date September 9, .1912. It follows that said item amounting to $257.15 was furnished after Battaglia quit his contract, if appellant is correct as to the date when Battaglia quit, and, while doubtless contracted for by him, such material must have been used by appellant himself. H. D. ITolmgreen, who delivered the copy to appellant, testified that appellant said he would see that Alamo Iron Works would be protected.

4. The Mackey Brick & Tile Company delivered to Hermann three bills, one dated June 28, 1912, showing all items, and showing a balance due of $1,242.50, one dated July 26, 1912, showing a balance due of $607.25, and another on August 15, 1912, which was a statement of all items furnished and all credits, and showed a balance due of $607.25. The bills dated June 28th and August 15th complied with the requirements of article 5623, R. S. 1911. These bills were shown appellant by Hermann when the next | estimate was made after receiving them.

5. The Mackey Brick & Tile Company gave no other notice than the above, and did not file its sworn itemized account in the county clerk’s office until December 24, 1912.

6. Hermann testified, and in deference to the judgment we find, that on June 28, 1912, appellant paid Battaglia $2,508; that between said date and September 7, 1912, he paid him $8,258.04, and after August 15, ' 1912, up to September 7, 1912, paid $2,394.41. ' Seeling admitted that he paid the $2,508 on | June 28th, but testified he only paid $7,609.91 between June 2Sth and the time Battaglia ! quit the job, which he said occurred on September 7th, and that after Battaglia quit he I paid $358.39 on the contract. He testified | he paid extras to the amount of $800. At I the same time he admitted Hermann’s figures were correct, except a $400 item which bears date September 27th. We are unable to reconcile his figures with Hermann’s, nor to reconcile his own statements. He testifies PQSitively that on September 20th he only owed $10.52 on the contract, and when the amounts he testified to paying out on the contract are added the total is $99 less than the contract price.

7. SeeliDg contracted to pay Battaglia $24,-695 for the completion of the building, and the contract provided for his holding back 20 per cent, until it was completed, which fact was known to Alamo Iron Works when they agreed to furnish material to the contractor. Appellant failed to hold back said amount.

Opinion.

The assignments of error do not specifically complain of the judgment of the court, but simply assert that the evidence shows or fails to show certain facts, and we are left to infer that appellant believes the judgment is erroneous if such contentions are sustained. We do not believe that even under the amendment to article 1612, R. S. 1911, made by the last Legislature these assignments are sufficient, but, for fear that it might be held that they “direct our attention to the error complained of,” we will briefly consider the contentions made.

The first three assignments of error relate to that portion of the judgment establishing and foreclosing a lien in favor of Alam,o Iron Works. The propositions submitted are mere abstract propositions of law, but we gather from the assignments themselves that appellant contends no notice such as is required by article 5623, R. S. 1911, was served upon appellant until September 20, 1912, and that at said time he had paid out all of the contract price except about $10. This contention cannot be sustained, as is shown by our findings of fact above set out. Hermann was the agent of appellant in receiving notice of claims for material, and the itemized bills of this appellee, which complied with the requirements of said article 5623, were delivered to him and seen by appellant at various times when he had ample funds on hand unpaid upon the contract with which he could have paid such claim as well as that of the intervener herein. Through his agent he received notice every time a bill was made out, and he personally saw such bills every two weeks when estimates were furnished him.

The fourth, fifth, and sixth assignments relate to that portion of the judgment establishing and foreclosing a lien in favor of the intervener, Mackey Brick & Tile Company. The contentions are as follows: (1) That intervener did not give Seeling written no-' tice of its claim against the San Antonio Construction Company prior to December 23, 1912; (2) that the itemized sworn account filed by intervener with the county clerk of Bexar county was not filed for almost five months after the debt accrued, and therefore no lien was acquired by such filing; (3) that'there is no evidence to show that the architect, Hermann, was the agent of Seeling upon whom legal notice could be served, and therefore itemized statements of the claim of intervener delivered to said architect did not constitute notice to Seeling as required by article 5623, Revised Statutes of 1911. The first and third contentions are disposed of adversely to appellant by our findings of fact. The second contention is without merit. The indebtedness accrued more than 90 days before the filing of the account, but notice thereof was given to appellant through his agent, Hermann, by means of itemized statements which appellant saw, at a time when he had ample funds in his hands out of the contract price to pay this claim and that of Alamo Iron Works, and under the decisions of our courts said intervener has not lost its lien by reason of the late filing thereof in the clerk’s office; this not being a case involving the rights of subsequent purchasers. Beilharz v. Illingsworth, 132 S. W. 109 and cases therein cited. Texas Builders’ Supply Co. v. Beaumont Construction Co., 150 S. W. 770.

The judgment is afiirmed.

CARL, J., did not sit in this case.
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author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BRASSELL et ux.
    (No. 5399.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1915.
    Rehearing Denied Feb. 24, 1915.)
    1. Husband and Wife <@=221— Personal Injuries to Wife — Actions—Parties.
    The wife is not a necessary party to an action by her husband for injuries to her person.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, S02-808, 90S, 973, 976%; Dec. Dig. <@=221J
    2. Appeal and Error <@=187 — Harmless Ebror — Misjoinder of Parties.
    Where defendant, in an action by a husband and wife for personal injuries to- the wife, did not object to the improper joinder of the wife, and no injury resulted therefrom, he could not on appeal complain of the misjoinder.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1184-1189; Dec. Dig. <@= 187.]
    3. Carriers <@=344 — Injuries to Passengers — Contributory Negligence.
    The burden of proving contributory negligence of -a passenger, sustaining a personal injury while alighting, rests on the carrier, and never shifts to plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1399; Dec. Dig. <@=344.]
    4. Trial <@=315 — Misconduct of Jury — Quotient Verdict.
    A verdict, with a few dollars added to obtain a round sum, was the amount of a quotient verdict. Most of the jurors averred that they did not agree to abide by the result, but one juror, who favored a verdict for $2,000, agreed to the verdict for $6,000. Held, that the verdict was a quotient verdict and must be set aside.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. <@=315.]
    5. Trial <@=306 — Misconduct of Jurors.
    Jurors who, during the deliberations of the jury, in an action for personal injury causing injury to the sciatic nerve, narrated their personal experience with sciatica, and one of them exposed his leg to show the effects of the disease thereon, were guilty of misconduct, necessitating the setting aside of the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. <S=30G.]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Action by J. M. Brassell and wife against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Harwood & Miller, of Gonzales, for appellant. E. B. Cocke, of San Antonio, for appellees.
   FLY, C. J.

This is a suit for damages to Mrs. Maggie Brassell, instituted by her and her husband, J. M. Brassell, alleged to have accrued from personal injuries inflicted upon her by a fall from the steps of a car belonging to appellant. It was alleged that she was a passenger on the train of appellant, and that when she attempted to alight, at her destination, she fell and was injured by reason of the negligence of appellant in failing to provide a suitable place for passengers to leave the train, in not providing some one to assist passengers in alighting. The cause was tried by jury, and resulted in a verdict and judgment for appellees in the sum of ?6,000.

There is no necessity for joining the wife with the husband in cases of this character ; but as no objection was interposed to the joinder, and no injury probably resulted therefrom, it is permitted. Railway v. Baumgarten, 31 Tex. Civ. App. 253, 72 S. W. 78. We merely call attention to it in order that this case may not be taken as a precedent for joining the wife with the husband, to recover damages to her person.

The facts of this case show that on June 24, 1913, Mrs. Brassell, in getting oft a train at Sutherland Springs, fell to the ground. She got up, walked to the picnic grounds, and spent the day there, returning to her home at night. The next morning she arose and prepared breakfast, and' at noon prepared dinner. She had some bruised spots about her knee and some swelling from the knee down. She walked from the train to and from the picnic grounds without assistance. Mrs. Brassell, when she fell, stated that her “shin was skinned,” but spoke of no other injuries. When she reached home she got out of the coach “just like any other passenger and walked home,” a distance of 600 yards. She was hurt on Tuesday, and called in her family physician on Thursday. She went to church on the following Sunday night. She did not use crutches for a week or more after'the accident, and then not until advised to do so by the doctor. No bones were broken or fractured, and the skin was not broken in any place. Her doctor thought that the sciatic nerve was probably injured, but was not certain, and all his prognostications of trouble were based on the hypothesis that the nerve was injured. He testified that, if that nerve had been severely injured, it would have shown immediately, but that a slight injury “would take several days to develop.” He diagnosed the ease as “traumatic sciatica,” but stated that “it is very rare that sciatica is caused by a traumatic injury.” He said that' when he last examined Mrs. Brassell “her limb was absolutely normal.” She did not lose any weight. Two other physicians examined Mrs. Brassell about a year after she was hurt and found her limb normal. She complained of soreness in certain spots that were touched, but the examination was merely subjective, and depended oh her statements alone. There was nothing visible to show any injury whatever. Her physician stated that he thought “Mrs. Bras-sell, in course of time, would absolutely recover.” Some, at least, of the pains complained of, had no connection with her fall, aeording to the testimony of the physicians.

The burden of showing contributory negligence never shifts to the plaintiff, whatever may have been the ruling of the Supreme Court to the contrary formerly. Whenever the evidence offered by a plaintiff shows contributory negligence on his part, a verdict should be instructed for the defendant. The burden has not been shifted to him, but he has merely failed to make out his case. As long as there is a question of fact to be submitted to a jury, the burden of establishing negligence rests on him who alleged it. The court did not err in this case in placing the burden upon appellant of establishing contributory negligence. Railway v. Harris, 103 Tex. 422, 128 S. W. 897; Railway v. Pennington, 166 S. W. 464.

The affidavits of jurors show that the amount of damages allowed by the jury was arrived at by each juror placing the amount he thought should be allowed on a slip of paper, and then adding the amounts and dividing them by 12. Most of the jurors swore that they did not agree to abide by the result, and some well posted ones testified that they agreed that they would not abide by the result. The fact remains, however, that with a few dollars added to obtain a round sum, the result of the addition and division became the verdict of the jury. At least one of the jurors, Albert Long, swore in regard to the manner in which the verdict was obtained:

“We thought that was the best way to get at it, and it was my understanding that that would be the verdict when we arrived at it in that way.”

Not only was the verdict arrived at as herein indicated, but two of the jurors narrated their personal experiences with sciatica, and one of them uncovered his leg and made profert of the effects of the disease thereon. There were knots on the leg, which the juror stated were produced by sciatica. One of the sciatic jurors stated to the jury that the evidence showed Mrs. Brassell had sciatica, and that it was a very bad case. It had been testified by physicians that it was possible for sciatica to come from trauma-tism, but conveyed the impression that sciatica so caused was very rare. Howéver, on the jury were two men, one of whom stated that the disease had come to him by reason of a strain he received in lifting corn from the ground, and the other contracted it from unloading cotton at a gin. We are not left in doubt, if from the facts there could be a reasonable doubt, as to the object the jurors had in view in testifying as to their experience, for one of the jurors swore:

“X suppose they did it to aid the jury. They wanted to let the rest of us know how bad it was.”

One of the sciatic jurors voted for $8,000 damages, and the other for $8,500. There was one juror who voted for $2,000 damages; but, under the scheme adopted for ascertaining the damages, he cheerfully agreed to a verdict for $6,000. Adams, a juror, swore that he heard the testimony and experience about sciatica discussed before a vote as to damages was taken. That evidence was not contradicted; the other jurors who spoke of it being uncertain as to when the experiences were given. Even Warren, one of the experience men, would not be positive as to when the experiences were given. The evidence of the two jurors must undoubtedly have had its influence on the amounts placed on the slips of papier, some of which were as high as $10,000. It cannot be imagined that the two jurors who had sciatica would have been allowed to testify in the courtroom as to how it affected them and show the effects of it on their limbs, and yet that is what they did in the privacy of the jury room. There is a full discussion of the subject of the misconduct of jurors, and a review of Texas decisions on the subject, in the case of Traction Co. v. Cassanova, 154 S. W. 1190, in which the decision was made by this court. As said by this court in that case:

“Discussions and ex parte statements, such as those made in this case, have reached a limit of danger to the rights of parties, and they must be condemned and discountenanced by appellate courts. The trial courts have ample power to prevent a recurrence of such conduct upon the part of jurors by dealing out swift and rigorous punishment, and they should unhesitatingly do so. Appellate courts have no such power, but are coulined to reversals, which merely protect the interests of the injured party, and which must necessarily cause delay in redressing the wrongs a plaintiff may have had perpetrated on him.”

It cannot be said that the verdict of the jury was not affected by the manner of arriving at the verdict. The juror who favored the $2,000 had his verdict increased to $6,-000 because he considered himself bound by the agreement whether others did or not, for he swore:

“Einally each one put his amount on a piece of paper and put it in a hat, and added it up and divided it by 12, and fixed it up that way.”

As herein shown, another juror considered himself bound by the addition and division.

The judgment will be reversed, and the cause remanded.
      @^?For other cases see same topic and KEY-NUMBElt in ail Key-Numbered Digests and Indexes


author: WILUSON, C. J.

text:
    INGRAM v. BROWN & McFARLAND.
    (No. 1382.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 23, 1914.)
    Replevin <®=»135 — Bonds—Judgment.
    A judgment against the sureties on a re-plevy bond should, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7107, provide that a delivery to and acceptance by the sheriff of the property replevied should, as to them, operate as a satisfaction of the judgment.
    [Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 532-540; Dec. Dig. <S=^135.]
    Appeal from Smith County Court; Jesse F. Odon, Judge.
    Action by Brown & McFarland against J. D. Ingram. From judgment for plaintiffs, defendant appeals.
    Reformed and affirmed.
    W. R. Bishop, of Athens, for appellant. Price & Beaird, of Tyler, for appellees.
   WILUSON, C. J.

This was a suit by appel-lees against appellant, to recover a sum claimed to be due on promissory notes, and to foreclose mortgages on certain personal property, made to secure the payment of the notes. A writ of sequestration, issued at the instance of appellees, having been levied upon property covered by the mortgages, appellant replevied same, as authorized by the statute (article 7103, Vernon’s Sayles’ Statutes). The appeal is from a judgment in appellees’ favor against appellant for $214.30, interest and costs, apd foreclosing the lien of the mortgages on the property, and in appellees’ favor against appellant and the sureties on his replevy bond for a like sum, interest and costs.

It is not believed the judgment should be reversed and a new trial awarded for any of the reasons suggested in the assignments; but as the judgment is erroneous, in that it (1) awards a double recovery against appellant of the sum found by the court to be due by him to appellees, and (2) awards a recovery of the costs of the suit against the sureties on the replevy bond, and does not provide, as it should, that a delivery to and acceptance by the sheriff of the property replevied, as provided by law (Vernon’s Sayles’ Statutes, art. 7107), should operate as a satisfaction of the judgment so far as it is against the sureties on the replevy bond, it will be reformed in those respects; and, as so reformed, it' will be affirmed.
      cg^sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SAN ANTONIO INDEPENDENT SCHOOL DIST. et al. v. STATE ex rel. DECHMAN et al.
    (No. 5435.)

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1915.
    Rehearing Denied Feb. 19, 1915.)
    1. Statutes @=>194 — Construction — Ejus-deh Generis.
    General words following an enumeration of persons or things by words of a particular and specific meaning are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. § 272; Dec. Dig. @=>194.]
    2. Constitutional Law @=>13 — Construction oe Constitution — Intention.
    A state Constitution should not receive a technical construction like a statute, but a construction which carries out the apparent intention of the people who enacted it.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 9, 10; Dec. Dig. <§=> 13.]
    3. Constitutional Law <@=>16 — Construction oe Constitution — Prior State oe Law.
    Where ambiguity exists in the language of a constitutional provision, not removable by reference to the other provisions, the prior state of the law, the evil to be remedied, and the contemporaneous circumstances are to be resorted to to determine its meaning and import.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 12, 16; Dec. Dig. <§=> 16.]
    4. Schools and School Districts <@=>46— Term of Oeeicers — Constitutional Provisions — “State Board” — “State Officer.”
    Const, art. 16, § 30, provides that the duration of all offices not fixed by the Constitution. shall not exceed two years, and article 30a, added in 1912, provides “that the Legislature may provide by law that the members of the board of regents of the state university and the boards of trustees or managers of the educational, eleemosynary and penal institutions of the state and such boards as had been, or may hereafter be established by law, may hold their respective offices for the term of six years, one-third of the members of such boards to be elected or appointed every two years.” Act 1909 (Loc. & Sp. Acts 31st Leg. c. S4), creating the San Antonio independent school district to have the management of all tlie schools in the city, as amended by Act March 26, 1913 (Loc. & Sp. Acts 33d Leg. c. 93), §§ 2, 3, provides for the election in April, 1913, of nine trustees, three of them to hold office for six years, three for four years, and three for two years, with an election of three trustees every two years, and for notice, holding, and returns of elections. Held, the members were not “state officers” or members of a “state board,” and that, as the enumerated boards were all state boards or boards of the state, the rule of ejusdem generis rejected any boards except those of the same general class, and hence that the part of the act increasing the tenure of office to more than two years was unconstitutional.
    [Ed. Note. — For other cases, see Schools and School Districts, Gent. Dig. § 92; Dee. Dig. <@=>46.
    For other definitions; see Words and Phrases, First and Second Series, State Officer.]
    5.Statutes <@=>64 — Partial Invalidity — Effect.
    Such partial unconstitutionality did not render the whole act unconstitutional, since the act, consisting of 28 sections, provided by section 2 for the election of nine trustees in April, 1913; and for notices, holding, and returns of election, etc., so that the method of election was fully prescribed by other parts of the act, and the only effect of the partial unconstitutionality was to cause the election of a full board every two years instead of a part of the board each two years.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. <@=>64.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Quo warranto by the State of Texas, on relation of T. M. Dechman and others, against the San Antonio Independent School District and others. Judgment for relators, and defendants appeal.
    Affirmed.
    Denman, Franklin & McGown and Arnold, Cozby & Peyton, all of San Antonio, for appellants. W. C. Linden, Swearingen & Ward, and John H. Biehett, Jr., all of San Antonio, for appellees.

       Writ of error denied by Supreme Court.

   FLY, C. J.

This is a suit in the nature of a quo warranto brought by the state of Texas, upon the relation of T. M. Dechman, Charles Florian, and J. F. Fentiman, against Dr. F. Terrell, S. L. Harris, C. A. Goeth, S. G. Bechtel, W. D. Hood, Albin Seidel, Mrs. M. J. Bliem, Mrs. Rena Maverick Green, and Mrs. Eli Hertzberg, to oust them from the office of trustees of San Antonio independent school district. The information is quite voluminous, alleging, in substance, that by the act of the Legislature of 1909 (Loc. & Sp. Acts 31st Leg. e. 84) the San Antonio independent school district was created and given the management and control of all the schools within the corporate limits of the city of San Antonio ; that on March 26, 1913 (Loc. & Sp. Acts 33d Leg. c. 93), the act of 1909 was amended so as to have nine trustees instead of seven to compose the San Antonio .school board; that in said amendment it was provided that nine trustees should be elected in April, 1913, that three of the trustees should hold office for six years, three for four years, and three for two years, that they should determine by lot the terms of the members, and that every two years an election should be held for three trustees whose terms should be six years. It was alleged that the act was null and void because of the terms of the trustees being fixed at six years instead of two years, as provided in article 16, § 30, of the state Constitution, and that the same is unconstitutional because its caption is not such as is required by the Constitution ; that on April 8, 1913, an election was held for nine trustees as provided in said act, and F. Terrell, S. L. Harris, C. A. Goeth, S. H. Bechtel, E. G. Le Sturgeon, Albin Siedel, Mrs. Eli Hertzberg, Mrs. M. J. Bliem, and Mrs. Atlee B. Ayers were elected and ousted the relators from the office of trustees held by them under the old law and took possession of the public free schools of San Antonio ; that Le Sturgeon resigned and W. D. 1-Iood was chosen in his place, and Mrs. Ayers resigned and Mrs. Green was chosen in her place. The defendants demurred generally, and specially denied that they were-holding the office illegally, but by provision of a valid act passed by the Legislature and by virtue of their election to the same. The court rendered judgment to the effect that the act of 1913 is null and void in so far as it seeks to provide terms of six years for the trustees, but that the other portions of the statute are valid and binding, and that the nine trustees are entitled to hold their respective officers for two years from the second Tuesday in April, 1913, and that on the second Tuesday in April, 1915, an election should be held as provided for in the act of March 26, 1913, for the election of nine trustees, six men and three women.

The act referred to provides, in the first section for the creation of the San Antonio independent school district, and the first paragraph of the second section provides:

“Prom and after the passage of this act, said San Antonio independent school district shall be under the control of nine trustees, who shall be called the San Antonio school board. On the second Tuesday in April, 1913, an election shall be held by the qualified voters of said district for the purpose of electing nine trustees.”

In the second paragraph of the second section provision is made for three of the trustees to hold office for six years, three for four years and three for two years; the three for each term so fixed to be determined by lot. Provision is made for an election every two years, but for only three trustees. The third paragraph of the second section provides for notices of elections, and for the manner of holding the elections and making returns thereof. The third section of the act fixes the qualifications of trustees, and provides that not more than three women shall be eligible to election as members of the board, not more than one woman to be chosen at any election after first. It also provides that men living in the suburbs of San Antonio who are taxpayers therein shall be eligible as trustees, and also for the oath to be taken by trustees. The other portions of the act need not be considered, as all of the act that is attacked is contained in the second and third sections and relates to the terms of office prescribed for trustees.

Original section 30, art. 16, of the state Constitution, provides:

“The duration of all offices not fixed by this Constitution shall never exceed two years.”

In 1891 the section was amended so as to give six-year terms to railroad commissioners. In Í912, by a vote of the people of Texas, section 30a was added to the Constitution. That section provides:

“The Legislature may provide by law that the members of the board of regents of the state university and boards of trustees or manager’s of the educational, eleemosynary and penal institutions of the state, and such boards as have been, or may hereafter be established by law, may hold their respective offices for the term of six years, one-third of the members of such boards to be elected or appointed every two years in such manner as the Legislature may determine; vacancies in such offices to be filled as may be provided by law, and the Legislature shall enact suitable laws to give effect to this section.”

It is the contention of the school board of San Antonio that the language, “such boards as have been or May hereafter be established by law,” is broad enough to include any board, state, county, or municipal in the state, and, if that construction can be reasonably placed on the language, the school board of San Antonio is within its contemplation and purpose. However, there is a rule of construction as to constitutional and legislative provisions, known as the rule of ejusdem generis, which, we think, can with peculiar aptitude be applied to the section of the Constitution in question. The ejusdem generis rule is that, where general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of) the same kind or class as those specifically mentioned. Black’s Law Dic.; Cutshaw v. Denver, 19 Colo. App. 341, 75 Pac. 22; Spalding v. People, 172 Ill. 40, 49 N. E. 993. The boards enumerated in the Constitution are clearly all state boards, or boards of the state, which, we deem, for the purposes of a consideration of the question involved, are the same thing, and, if the rule of ejusdem generis is applied, it would reject any boards except those of the same general class, rank, or grade with those enumerated. As said in a quotation, made and approved by the Texas Supreme Court in National Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368:

“The words ‘other’ or ‘any other,’ following an enumeration of particular classes, are therefore to be read as ‘other such like,’ and to include only others of like kind or character.”

If the Legislature in preparing the constitutional amendment had intended all boards elected or appointed, whether state, county, or municipal, no mention would have been made of certain state boards; but the amendment would have been formulated so as to have included public boards of every description. But the amendment enumerates the board of regents of the state university and boards of trustees or managers of the educational, eleemosynary, and penal institutions of the state, and then includes all other such boards as have been or may be appointed or elected. If all the state boards had been enumerated or had been included among boards of the institutions named, then it must be argued with, some force tliat all public boards were included; but there are numbers of boards other than those connected with the educational, eleemosynary, and penal institutions of the state.

“It is a principal of statutory construction •everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class * * * particularly stated.” Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131.

We do not lose sight of the fact that we are construing a constitutional and not a legislative provision, and that a state Constitution should not receive a technical construction like a statute; but that rule of interpretation should be followed which carries out the apparent intention of the people who enacted it. But if an ambiguity exists in the language of a constitutional provision, which cannot be removed by consulting other parts of the Constitution, then the prior state of the law, the evil to be remedied, and the circumstances of contemporaneous history are to be resorted to to determine its meaning and- import. It is well known in this state that with each succeeding administration' in the state of Texas for the last 40 years, although each was of the same political faith as. the other, the doctrine that “to the victor belongs the spoils” has been rigidly applied, and, no matter how faithfully and ably the affairs of the different state institutions may have been conducted, by the different boards, the members of them went out with the retiring Governor and with them their appointees, and new men who merited reward for political service were rewarded. The result was that, just as boards had become acquainted with the duties of their positions and their appointees had been trained so as to give the proper service to the state, a new administration was ushered in with its raw appointees, and the educating and training was begun again. The state suffered from poor service, and, worse than all, the unfortunates in asylums and the inmates of reformatories and prisons bore the burdens of inefficiency and inexperience of the raw recruits who were -summoned to take charge of the institutions. No matter how competent, faithful, and efficient the boards and the - superintendents might be, vacancies must be made for henchmen, and the game of politics merrily go on. The people of Texas became tired of this condition, and sought to destroy it by having an amendment submitted by which .the boards would have a longer tenure of office than the Governor who might appoint them, so that they would continue their appointees in office. So the amendment of 1911 was submitted to the people and adopted by them in November, 1912. Whether the amendment will accomplish the desired ends, or not, is not the question; reformation in the institutions of the state was the reason for its submission by the Legislature and its adoption by the people. There were no such complaints as to boards of trustees of the free schools of the state. They were elected by the people and were dependent on no one but the voters of the country for their tenure of office. Th’e general policy is to elect officers for only two years, and, except in the case of judges, senators, university regents, and the railroad commission, that policy had not been disturbed until the amendment of 1911 was submitted to and adopted by the people. The policy was then disturbed only to destroy the spoils system in connection with the boards of our educational, eleemosynary, and penal institutions and the boards of other agencies of the state government. If the policy of two-year terms fixed by the Constitution is reasonable and proper, there could be no ground for extending the terms of office of school boards from two to six years. If other officers should be required every two years to give an account of their stewardship to the electorate of the state, the same strong reason would exist for school trustees, who have in their charge the future citizenship of the commonwealth, to render an account of their administration of the affairs of the schools every two years. If there was any demand as to a change in their tenure of office, no record of it appears in the recent history of our state.

But it is said that the Legislature of Texas placed its construction upon the amendment to the Constitution by providing that the members of the San Antonio school board should hold their offices for six years. If the same Legislature that prepared and submitted the amendment had construed it, there might be some force in the argument; but it was done by a different Legislature, the members of which were no better qualified to construe the Constitution than any other body of men selected at haphazard throughout the state. The act in question is a local law, doubtless prepared in the city of San Antonio, and passed, as most local laws are, at the request of local representatives, and without reference to the Constitution. The fact that provision is made in the act for persons living without the city to be, eligible to election as trustees bears internal evidence that it was prepared in San Antonio. But if the construction of the amendment by the Legislature of 1913 should be given weight, then we find that it passed a general law, which undoubtedly was given closer scrutiny and attention than a local law, in which provision was made for six-year terms for state boards only, without mention of county or city school boards.

We cannot agree to the proposition that the members of the San Antonio school board are state officers or members of a state board, and we conclude that section 30a has no application to any but state boards. To hold that school boards of a district or county are institutions of the state would be to break down any distinction between state and county or precinct officers, for all of them are in one sense officers of the state, because they live and hold their offices in the state. Every board and every officer, from a justice of the peace or constable to the Governor, is to some extent an agent of the state in enforcing its laws, and executing its purposes; but they are not all officers of the state. The words “institutions of the state” were doubtless used in their common acceptation, and that is the construction placed upon the words by the Legislature of 1913 when the general law was passed that put the amendment into effect. The circumstances indicate that the words “institutions of the state” were used as synonymous with “state institutions” and were not intended to embrace every board connected with education, charity, or punishment for crime in the state. The county judge, while acting in the capacity of county school superintendent, may be, as held in Webb County v. School Trustees, 95 Tex. 131, 65 S. W. 878, “in fact the officer and agent of the state” on the ground stated in the opinion that he is acting for the state and not the county in disbursing school funds; bfit that opinion cannot be authority for holding that the school board of a city, that is not acting as a disbursing agent for the state, but as the representatives of the people who elected them, is a state board. The San Antonio school board is given absolute control of the schools of the city and the disbursement of the school fund, a large portion of which does not come from the state, but is collected by taxation of the people of the city. The board is not an agent and officer of the state, but of the people who elected them. The state has no supervisory control over the San Antonio school board, but it is an independent agency of the people of San Antonio. It is a city school board pure and simple. No doubt, county schools “are institutions of the state established in the counties,” as held in Delta County v. Blackburn, 100 Tex. 57, 93 S. W. 419; but in the case of the chartered independent school district the state surrenders all control over the schools therein and the money belonging thereto, and the school board is responsible to the electors in such school district alone. It is not an institution of the state in the sense in which those descriptive words are used in the 1912 amendment to the Constitution.

It is argued that, if only state boards were meant, the Legislature would have used the words “such state boards”; but, on the other hand, it seems more reasonable to conclude, after specially mentioning certain state boards, that, if other boards than state boards were included, they should have been mentioned. That no other than state boards were intended, we think, appears from the journal of the State Senate of 1911. The amendment known as section 30a originated in the House, and was passed without discussion, and when it reached the Senate we find that on March 10,1911, the following proceedings were had:

“Senator Meachum offered the following-amendment: ‘Amend House Joint Resolution No. 9 by inserting after the words, “penal institutions of the state,” in section 1 of the printed resolution, the words: Boards of school trustees in counties, cities and in independent and common school districts, the members of boards of city commissioners, boards of aldermen and other governing boards of cities, which have been o-r may hereafter be established by law.’ On motion of Senator Watson the amendment was tabled.”

The Senate must have acted with the desire to refuse extension of the increased tenure of office to the boards named in the-amendment, and not on the hypothesis that the original resolution included those named in the amendment; for if the resolution of the House is so obscure and ambiguous as to cause a succeeding Legislature to pass the act of 1913 in regard to the school board in question, such obscurity would have been apparent to the Senate, and the effort to amend it would not have been so summarily disposed of. If the Senate of Texas had felt disposed to include all boards whether state or otherwise in the constitutional amendment it would never have permitted an opportunity to pass-to make the amendment so clear on that subject that judicial construction would never have been necessary.

There was nothing in the amendment to-the Constitution that could not be provided for by a general law, even though every board in the state had been included in the-amendment, and it was not necessary to place-the term of office of the school board of San Antonio in the act which constituted that, board. Even if the judgment of the Legislature was that the objects of the amendment could not be attained except by the passage of the local law and that judgment was conclusive on that point, as is held in Beyman v. Black, 47 Tex. 558, it is not conclusive on-what is included in the amendment, and in the final analysis the judgment of courts must be obtained.

The rules to be followed in the construction of a constitutional provision, collated by the San Antonio school board, are wise and salutary, and this court has endeavored to-follow each of them in construing the constitutional amendment in question. In other words, we have sought to construe it so as to give the act of the Legislature the benefit of any doubts; we have construed the amendment in view of the fact that voters are-usually unlearned in the law and have given-the words of the amendment their ordinary signification; we have sought, in the light of the evils to be removed and the good to be accomplished, to arrive at the intention of the-Legislature, and in the light of the construction placed upon the amendment by the Legislature in the passage of general laws, and we have also consulted the journals of the-Legislature to ascertain the mind and intent, of the Legislature at the time the joint resolution was passed. Applying all these rules, we are forced to the conclusion that the Constitution has not increased the tenure of office of school boards of independent school districts.

Holding that the part of the local act of 1913, constituting the school board of San Antonio, is unconstitutional in so far as it endeavors to increase the tenure of office to more than two years, does not necessarily carry with it the decision that the whole act is unconstitutional and void, for where part of a statute is unconstitutional and the remainder is constitutional, if the two parts can be possibly separated courts should do so, and not permit the invalid part to destroy the whole law. If, after the elimination of the invalid part of the law, there remains an intelligible and valid statute capable of being placed in execution and conforming to the general purpose and intent of the Legislature, the law will not be destroyed, but held to be valid and binding except as to the excised part. Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; Willcox v. Consolidated Gas Co., 212 U. S. 54, 29 Sup. Ct. 192, 53 L. Ed. 382, 48 L. R. A. (N. S.) 1134, 15 Ann. Cas. 1034. As said by Judge Cooley:

“Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, _ unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so" connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall.” Cooley Const. Lim. §§ 177, 178.

That doctrine is always recognized by all courts.

Let the rules be applied to this case: The act creating the San* Antonio independent school district consists of 27 sections, providing for the creation of a school board of nine trustees, six men and three women, and defining their powers, duties, liabilities, and responsibilities. The only portion of that lengthy act that is attacked for unconstitutionality is the second paragraph of section 2, relating to the tenure of office. Section 2 is as follows:

“Sec. 2. Prom and after the passage of this act, said San Antonio independent school district shall be under the management and control of nine trustees, who shall be called the San Antonio school board. On the second Tuesday in April, 1913, an election shall be held by the qualified voters of said district for the purpose of electing nine trustees. Three of said trustees elected in April, 1913, shall hold their terms of office for six years and until their successors are elected and qualified, and three of said trustees elected in April, 1913, shall hold their offices for the term of four years and three of said trustees elected in April, 1913, shall hold their offices for the term of two years. When elected, said nine trustees elected in April, 1913, shall determine by lot among themselves which three shall hold their terms of office for six years, and which three of them shall hold their terms of office for four years, and which three of them shall hold their offices for two years. Every two-years an election shall be held by the qualified voters in said independent school district for the purpose of electing three trustees and the terms of said trustees, when elected, shall be six years and until their successors shall have been elected and shall have qualified. Notice of all elections for the purpose of electing school trustees shall be given by the president of the San Antonio school board, and said notice shall be given by publishing the same once in two regularly published newspapers in the English language in said district; and said-notices shall be published not less than ten days nor more than thirty days before the date of said elections. All elections shall be held in accordance with the state law governing elections, except that said board shall fix one or more voting places in each ward in said city of San Antonio, and said board shall appoint a presiding officer to hold said election at each voting place, and said presiding officer shall select at least one judge and two clerks for -the respective voting places; and said presiding officer, judges and clerks shall act as managers of said election, and shall take the oath prescribed by law as in general elections under the state law, and make returns of said elections to said board, as required by law at gen-ex-al elections, and, within five days thereafter, said school board shall canvass such returns, declare the results thereof, and issue certificates of election to the persons shown by said returns to have been elected.”

It will be seen that paragraph 1 of the section makes full provision for the election of nine trustees on the second Tuesday of April, 1913, and the third paragraph provides for notices of election, the manner of holding and making returns of the same, the canvass of the returns, declaration of the results thereof, and the issue of certificates of election. The elimination of the invalid paragraph in no wise interferes with the orderly election of the nine trustees, and the administration of the affairs of the school district as set out in the act. It strikes down nothing but the tenure of office and relegates us to the Constitution to determine the tenure of office. We cannot presume that the Legislature would not have passed the act if the tenure of office of the trustees had not been extended to six years. On the other hand, it may be presumed that the extension of the privilege of being members of the board to the women of the city, as well as the increase in the membership thereof, would have been sufficient incentive for the passage. No other portion of the law is dependent on the second paragraph of section 2, and that paragraph can be removed without marring the perfection of the bill. The only effect of the removal is to cause the election of a full board every two years. The board was duly and constitutionally elected on the second Tuesday in April, 1913, as provided by law, and form the de jure San Antonio school board until the expiration of their constitutional term of two years, or when their successors are duly elected and qualified. The manner, means, and machinery of the election are fully prescribed in the valid parts of the act, and there is nothing to east a cloud upon the due and constitutional election of the trustees. The law is capable of being executed fully and satisfactorily to carry out the main legislative intent without the aid of the invalid paragraph.

The opinion in the case of Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120, holding that the act of 1899 (Acts 26th Leg. e. 51) was invalidated by the clause which increased the tenure of office of the trustees, is based upon the hypothesis that the Legislature would not have passed the law except to obtain an increase in the length of terms of school trustees. That supposition — for it can be nothing but a judicial hypothesis — is based, we suppose, upon the fact that the only material difference between the former act and that of 1899 was in regard to tenure of office. The opinion on the point declaring that the invalidity of one part of the act destroyed the whole is quite unsatisfactory, no reasons being given for the statement that the law would not have been passed without the increased tenure clause.

The opinion in the case of Rowan v. King (Sup.) 55 S. W. 123, was written by the same judge who wrote the opinion in the Kimbrough Case, and we can readily understand that the part of the law increasing the tenure of office beyond the constitutional limit would completely destroy an act which had no other purpose than to provide for the election of trustees. The court said:

“Without the void portion the act would have no value, and we conclude that the Legislature would not have so framed it.”

Of course, if the invalid part of the law destroys its value, the whole act fails. In the case under consideration, the usefulness of the act is not destroyed or impaired, and we have the right to indulge in the presumption that the act would have been passed although there had been no increased tenure of office. The last act was materially different from preceding acts, in that it provided that women should be members of the board, and that the board should be composed of nine members instead of seven, besides other changes. Knowing, as we do, of the agitation of the question of equal political rights of women with those of men, we could reasonably presume that this agitation was behind the proposition to have a new law, and that the main object of the law was to place three women upon the board. The power propelling the enactment of the law to place women on the board was sufficient to have procured the enactment of the law if tenure of office had not been mentioned in it. No reason can be offered why the Legislature would not have passed the local act without the obnoxious clause as to office tenure. The leading object was to place the management and control of the schools of San Antonio in the hands of nine trustees, three of whom should be women, and the tenure of office was a mere incident to the enactment of the law. Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874. If the law is to be destroyed, the schools of San Antonio demoralized, and inextricable confusion created, upon the mere theory that the Legislature would not have enacted the law without the tenure of office clause, some other governmental agency than this court must be called upon to do it. It has been doubted that courts have the power and authority to destroy a law enacted by qnother branch of the government; but, conceding that right to the courts, every reasonable doubt should be indulged in favor of the validity of a statute, and the whole should not be destroyed on merely a presumption that the law would not have been passed had the invalid part been left out. As said by the Supreme Court of the United States in the Presser Case, here-inbefore cited:

“It is a settled rule that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable.”

That is the reasonable rule in regard to the matter.

Suppose we eliminate the second paragraph of the local statute, we still have a valid law that can be executed; for, in the absence of the tenure of office being fixed, the Constitution would fix the term of office, and nothing would be absent that was essentially necessary. The law would then read:

“Sec. 2. From and after the passage of this act, said San Antonio independent school district shall be under the management and control of nine trustees who shall be called the San Antonio school board. On the second Tuesday in April, 1913, an election shall be held by the qualified voters of said district for the purpose of electing nine trustees. Notice of all elections for the purpose of electing school trustees shall be given by the president of the San Antonio school board,” etc.

The law would be perfectly intelligible and capable of execution.

In section 3 there is the provision that “no more than one woman to be chosen at any particular election after the first election herein provided for, when three may be elected,” and, it being to all intents and purposes a part of the tenure of office paragraph and inseparably connected with it, must fall with it. One of the chief objects of the act was to give a representation of three women on the board, and that object should not meet with interference.

In the act of 1909, a business agent was provided for at a fixed salary of $2,000. In the act of 1913, the board was authorized to appoint a business agent and fix his salary, and it is required that he be an expert accountant. In the act of 1913, the power of eminent domain, not granted before, was given to the board, and their qualifications were changed from freeholders to property taxpayers. The board, in the act of 1913, was given the additional authority to issue teachers’ certificates. All these changes were made in addition to increasing the number of trustees to nine and providing for three women to be members, and that persons living outside the city might be members of the board. These changes and additions indicate that the tenure of office of the members was not the controlling factor in the passage of the act, and that it would no doubt have been enacted if that feature had never been a part of it. The Legislature would undoubtedly have passed the law whether the parties who drew the charter in San Antonio would have presented it in that shape or not.

The judgment is affirmed.

CARL, J., entered his qualification to sit in this case.

       Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 94 Tex. 650.

      «g^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    TRINITY & B. V. RY. CO. v. ORENBAUM.
    (No. 7270.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 6, 1915.)
    1. Eminent Domain <&wkey;202 — Condemnation —Evidence.
    In an eminent domain proceeding, where the evidence as to the value of the entire parcel, only part of which was sought to be taken, conflicted, plaintiff valuing it at a larger sum than the other witnesses, evidence of the amount at which he listed the parcel for taxation is admissible as an admission.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 541; Dec. Dig. &wkey;>202.]
    2. Eminent Domain <&wkey;315 — Review—Harmless Ebror.
    In condemnation, where evidence as to the value of the land, part of which was taken, conflicted, and the jury awarded plaintiff only part of the damages claimed, that the award was less than the damages claimed did not render harmless the erroneous exclusion of evidence that plaintiff listed his property for taxation at a considerably less sum.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 829-833; Dec. Dig. <&wkey;>315.]
    Appeal -from District Court, Hill County; Horton B. Porter, Judge.
    Action by W. G. Orenbaum against the Trinity & Brazos Valley Railway Company, which filed a cross-action. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for ap-pellee.
   RASBURY, J.

Appellee sued appellant in the court below under the 'statutory form of trespass to try title to recover a lot or parcel of land situated in the town of Hillsboro, Tex., as well as for rents thereof and for damages thereto resulting from excavations made and railway tracks laid in proximity thereto by appellant. Appellant met the allegations of the petition by the general denial, and by cross-action sought to condemn for its use a strip of the land 7 feet in width and 100 feet in length, off the west side thereof. There was trial by jury, resulting in verdict for appellant for the strip of land sought to be condemned and for appellee for $400 damages, which, under the charge of the court, covered the value of the strip of land awarded appellant, as well as any damage resulting to the remainder of the lot, due to taking therefrom the said' strip; also, verdict for appellee for $125, rentals for the use and occupancy of the said strip of land before the condemnation proceedings. Judgment followed the verdict.

The first assignment of error complains of the refusal of the trial judge to permit appellant to prove by appellee on cross-examination that he had valued his lot for taxation at $400, and the second and third assignments complain of the refusal of the court to permit appellant to prove by the tax assessor of Hill county, and the tax assessor of Hillsboro, that appellee in rendering his said lot for taxation to them, respectively, for the year 1913, also valued his. land at $400. In connection with the issue thus raised, it appears from the evidence that Paschall street in Hillsboro runs east and west. Appellee, at the time of trial, was-the owner of a lot 100 feet square, which fronted north on Paschall street. Appellant, whose railway line is in proximity to appel-lee’s said lot, in constructing a switch or spur track in that vicinity, encroached upon the west side of appellee’s lot at least seven feet for the full length thereof, and at the time of the trial appellant had been in the-use and occupancy of said strip of land for approximately four years, according to the-testimony of appellee. Appellee, upon direct examination, testified that the value of the entire lot was $3,000, and that his damage, resulting from the act of appellant in appropriating the strip and the ensuing damage to the remainder of his lot, by reason of such taking, was $800; while his witnesses Thompson and Kirkpatrick placed such damage at $500. But appellant’s witness Sat-terfield valued the entire lot at $750, and placed the damage to appellee at $75,. thus-showing a conflict between all witnesses on the issue as to value; appellee placing a greater value on his land than any witness-who testified. Then it was that appellant offered to make the proof shown by the assignments, which was rejected by the court, but which we conclude should have been admitted. Boyer & Lucas v. St. Louis, S. F. & T. Ry. Co., 97 Tex. 107, 76 S. W. 441; G., C. & S. F. Ry. Co. v. Combes & Rector, 80 S. W. 1045; Burton Lumber Corporation v. City of Houston et al., 45 Tex. Civ. App. 363, 101 S. W. 827; Crystal City & N. R. Co. v. Isbell et al., 126 S. W. 47. Such facts were admissible in evidence as admissions only by appellee relating to the value of the land at the time the rendition was made, subject to such explanation as he cared to make, and to be given whatever force or effect they appeared to the jury to be entitled to.

But it is urged by counsel for appellee, in effect, that, since the testimony adduced by appellee would have supported a larger verdict, the error is harmless. We think not. While it is nearly impossible to approximate exactly what effect a given fact or circumstance may produce upon the minds of the jurors, we incline to the opinion that, since the jury did not adopt the value fixed by appellee and his witnesses, it could with equal force be argued that with appellee’s admission in evidence it would have tended to induce the jury to yet further disregard the evidence of appellee as to value. And if the admission sought to be proven would have had such tendency, such fact but serves to illustrate the error of the exclusion of the circumstance.

It is also urged that the verdict of the jury is excessive in both the amount of dam•ages and rents recovered. Since we conclude the cause should be reversed for the reason indicated, any comment upon, or discussion of, the amount of the recovery, would obviously be improper, and for that reason we do not consider such assignments.

The judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views here indicated.
      «gcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes