text:
    CLAUNCH v. STATE.
    (No. 4640.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Intoxicatinu Liquors <@=>15 — Licenses— Statutory Provisions — Validity—“Malt Liquor.”
    Vernon’s Ann. Pen. Code 1916, art. 157, authorizing the levying and collection of state and county taxes aggregating $3,000 as a condition precedent to engaging in the business of selling nonintoxieating malt liquors, is a proper exercise of thg police power, the term “malt liquor,” being generally understood to denote a liquor containing alcohol or an alcoholic beverage produced by the fermentation of malt as opposed to those obtained by the distillation of malt (citing Words and Phrases, Second Series, Malt Liquors).

      2. Intoxicating Liquors <⅜=>15 — Regulation — Sale of Nonintoxicating Liquors.
    Vernon’s Ann. Pen. Code 1916, art. 157, authorizing the levying of a tax on persons engaged in the business of selling nonintoxicating liquors, even though intended to aid the enforcement of the laws prohibiting the sale of intoxicating liquors, does not violate Const, art. 16, § 20, requiring the Legislature to enact a law whereby the qualified voters of any county, etc., may determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.
    3. Intoxicating Liquors ⅞^>15 — Licenses— Statutory Provisions — Uniformity of Taxation.
    Vernon’s Ann. Pen. Code 1916, art. 157, is not void under Const, art. 8, § 2, requiring equal and uniform taxation, because Acts 31st Leg. (1st Called Sess.) c. 17, prescribes a different license tax for the pursuit of the business of selling intoxicating malt liquors in those portions of the state where the sale of such liquors is not prohibited.
    4. Statutes <⅜^225¼ — Construction with Reference to Other Statutes.
    Acts of the same Legislature are to be construed together.
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    ■ W. W. Claunch was convicted of an offense, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for the unlawful pursuit of the occupation of selling nonintoxicating malt liquors without the payment of tax.

The prosecution is for violation of article 157, Penal Code, Vernon’s Texas Crim. Stats. Vol. 1, p. 92. The same law is discussed by this court in Ex parte Townsend, 64 Tex. Cr. R. 350, 144 S. W. 628, Ann. Cas. 1914C, 814, and a statement of its details is not necessary. It is sufficient to say that it authorizes the levying and collection of a state and county tax aggregating the sum of $3,000 as a condition precedent to engaging in the business of selling nonintoxicating malt liquors.

It is claimed that the law is unconstitutional for various reasons. All may be summarized in the contention that it is an illegitimate use or an illegitimate exercise of the police power of the state. There is nothing original to be said concerning the scope of the police power, text-writers, and judges having exhausted the subject. A fair statement of it is made by Judge Williams, speaking for the Supreme court of Texas, in the ease of H. & T. C. Ry. Co. v. Dallas, 98 Tex. 415, 84 S. W. 653, 70 L. R. A. 850, wherein he uses the following language:

“The power is not an arbitrary one, but has its limitations. It is commensurate with, but does not exceed, the duty to provide for the real needs of the people' in their health, safety, comfort, and convenience, as consistently as may be with private property rights. As those needs are extensive, various, and indefinite, the power to deal with them is likewise broad, indefinite. and impracticable of precise definition or limitation.”

From Ruling Case Law, Vol. 6, p. 221, we take the following: . '

“When necessary, the Legislature may prohibit absolutely the maintenance of any particular business if the public safety or the public morals require its discontinuance; and the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. A calling may not be immoral in itself, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured -by the fundamental law.”
. “Since the limits of the police power of the state have' never been -defined with precision, and its boundary line cannot be determined by any general formula in advance, recourse has been had to the gradual process of judicial inclusion and exclusion. This gradual process of determining its -limitation is due to the fact that it is easier to perceive and realize the existence of the police power, and to determine whether a particular case comes within the scope of the power, than to give a definition that will be applicable to all cases. The courts have been unable or unwilling definitely to circumscribe it, but instead have determined as each ease is presented, whether it falls within or without the appropriate limits.” Id. p. 187.

Since there is no precise limit laid down-in advance, and each case must be determined upon its own merits, the precedents furnished by the decisions of the courts of Texas and other states, in passing upon the validity of a like or similar- law, would he the best guide to a correct conclusion.

Appellant’s (Contention that, if this law is intended to aid the enforcement of the laws of the state relating to the prohibition of the sale of intoxicating liquors, it is rendered void by section 20, art. 16, of the Constitution, is met by the decisions of this court in Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, and by that of the .Supreme Court of this state in Ex parte Dupree, 101 Tex. 150, 105 S. W. 493, in which the principle involved in this contention is rejected as unsound. Statutes and ordinances bringing the sale of nonintoxicating malt liquors within the control of the police power of the state have been ujiheld on numerous occasions. Commonwealth v. Henry, 110 Va. 879, 65 S. E. 570, 26 L. R. A. (N. S.) 883; Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Carswell v. Wright, 133 Ga. 714, 66 S. E. 905; Texarkana v. Hudgins Produce Co., 112 Ark. 17, 164 S. W. 736, 51 L. R. A. (N. S.) 1035; Campbell v. Thomasville, 6 Ga. App. 212, 64 S. E. 815; Bradford v. Jones, 142 Ky. 820, 135 S. W. 290; State v. Fargo Bottling Works, 19 N. D. 396, 124 N. W. 387, 26 L. R. A. (N. S.) 872.

In many instances laws prohibiting the pursuit of the business of selling nonintoxicating malt liquors have been upheld as a legitimate exercise of the police power, generally upon the principal that the.indiscriminate sale and use of the article dealt in was injurious to public health and morals, or that the occupation was. one, the pursuit of which necessarily tended toward pernicious practices affecting public health and morals. Instances of such holding are the following cases: Purity Ext. & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; State v. Fargo Bottling Works, 19 N. D. 396, 124 N. W. 387, 26 L. R. A. (N. S.) 872; Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1147, and notes; Fuller v. Jackson, 97 Miss. 237, 52 South. 873, 30 L. R. A. (N. S.) 1078.

The term “malt liquor” is generally understood to denote a liquor containing alcohol. The Century Dictionary defines it as follows:

“A general term for an alcoholic beverage produced merely by the fermentation of malt as opposed to those obtained by the distillation of malt.”

See Words and Phrases (2d Ser.) vol. 3, p. 245; 23 Cyc. 60; La Follette v. Murray, 81 Ohio St. 474, 91 N. E. 294; Marks v. State, 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20. In the light of these decisions and those referred to above, we would not be justified in holding the statute in question an unwarranted exercise of the police power of the state.

The contention that the act is void as conflicting with section 2, art. 8, of the Constitution, requiring equal and uniform taxation, based upon the proposition that Acts 31st Leg. (1st Called Sess.) p. 294, c. IT, prescribes a different license tax for the pursuit of the business of selling intoxicating malt liquors cannot be upheld. The original act upon which this prosecution is founded is chapter 19, p. 51, of the Acts of the 31st Legislature, and the amendment adding a second section to the .act is chapter 9, of the Acts of Second Called Session of the same Legislature. Acts of the same Legislature under well-established rules are to be construed together. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Snead v. State, 55 Tex. Cr. 591, 117 S. W. 983.

One of these acts deals with the subject of the sale of intoxicating malt liquors. It could operate only in those portions of the state in which the sale of such liquors was not prohibited by law. Numerous restrictions and regulations are prescribed touching the time and place that sales thereof may be made and persons to whom they may be made, which restrictions are not embodied in the law in question touching the sale of nonintoxicating malt liquors. Doubtless the Legislature found sound reasons for the difference in the amount of tax prescribed in the two classes. There are no restrictions as to the time nonintoxicating liquors may be sold, or the persons who may buy or drink it, and, except as it is involved in the amount of tax, none as to the place or the number of places at which the business may be conducted.

There are no bills of exception or statement of facts filed in time to authorize consideration. The only question presented is the validity of the law upon which the information is based.

Having, for the reasons stated, determined that question against appellant, the judgment of the lower court is affirmed.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: MORROW, J,

license: Public Domain

text:
    WELCH v. STATE.
    (No. 4748.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    Bail <§=>63-^Appeal — Misdemeanor—Necessity eor Recognizance.
    Where it does not appear affirmatively in the record that one convicted of a misdemeanor is in custody, an appeal bond is insufficient to give the appellate court jurisdiction in the absence of a recognizance as prescribed by Code Cr. Proc. 1911, art. 919, under article 920; relating thereto.
    Appeal from Titus County Court; J. W. Tabb, Judge.
    Jim Welch was convicted for unlawfully carrying a pistol, and he appeals. Motion by the State to dismiss the appeal.
    Granted.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J,

The conviction was for unlawfully carrying a pistol. The term of court expired the 9th day of December, 1916. There is no recognizance in the record, though ,an appeal bond, filed the 4th day of December, 1916, appears. The Assistant Attorney General, on behalf of the state, has filed a motion to dismiss the appeal because of the failure to enter into a recognizance. Article 918, C. C. P., is as follows;

“When the defendant appeals in any case of misdemeanor from the judgment of the district or county court, he shall, if he'be in custody, be committed to jail, unless he enter into recognizance to appear as hereinafter required; and, if he be not in custody, his notice of appeal shall have no effect whatever, until he enter into recognizance.”

At page 880, Vernon’s C. O. P., numerous cases are collated, requiring a dismissal in the absence of a recognizance, unless affirmative proof that the appellant is in jail is contained in the record. See Harris v. State, 2 Tex. App. 134; Brinson v. State, 68 Tex. Cr. R. 49, 150 S. W. 776. The form of recognizance is prescribed by article 919 of the Code of Criminal Procedure, and under that article in Vernon’s C. C. P. p. 882, are listed numerous cases holding that in the absence of such recognizance jurisdiction in this court does not attach. In fact, such is the statute. Article 920, O. 0. P. An appeal bond such as that contained hi the record in this case is held not a substantial compliance with the law requiring recognizance, and not available in lieu thereof. Palmer v. State, 63 Tex. Cr. R. 614, 141 S. W. 109; Bacon v. State, 10 Tex. 98; Herron v. State, 27 Tex. 337; Jones v. State, 1 Tex. App. 485; Arnold v. State, 3 Tex. App. 437; Cooke v. State, 8 Tex. App. 671; Hamilton v. State, 68 Tex. Cr. R. 47, 150 S. W. 775; Wells v. State, 68 Tex. Cr. R. 276, 150 S. W. 899; Saye v. State, 66 Tex. Cr. R. 257, 145 S. W. 1189; Johnson v. State, 65 Tex. Cr. R. 416, 143 S. W. 1165.

It is to be regretted that the Legislature has not seen fit to declare the appeal may be prosecuted from a conviction for misdemeanor on an appeal bond as it has declared with reference to felonies. In the absence of such declaration we'are constrained to grant the motion, and order the appeal dismissed.
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author: PRENDERGAST, J.

text:
    Ex parte WRIGHT.
    (No. 4664.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Municipal Corporations <©=>661(1) — Speed oe Motor Vehicles — Statutes.
    Acts 35th Leg. e. 207, regulating speed of motor vehicles, repeals Acts 30th Leg. c. 96 (Vernon’s Ann. Pen. Code 1916, art. 815), providing that municipalities could fix their own speed ordinances, although the word “repeal” is not expressly stated.
    2. Criminal Law <©=>15 — Repeal oe Statute-Pending- Prosecutions.
    One being prosecuted under a city ordinance for speeding at the time Acts 35th Leg. c. 207, relating to sped of automobiles, went into effect, should be discharged, because such act contains no saving clause as to pending actions, under Vernon’s Ann. Pen. Code 1916, art. 16, providing for discharges in such cases.
    Application by Thereon Wright for a writ of habeas corpus to be discharged from the custody of the sheriff of Coleman county.
    Relator discharged.
    J. K. Baker, of Coleman, for appellant. Garland Woodward, Co. Atty., and Critz & Woodward, all of Coleman, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The relator was convicted in the mayor’s court of Santa Anna, in Coleman county, for violating a speed ordinance of said town. He appealed to the county court, and was on July 3, 1917, again, convicted, and fined $5. He refused to pay the fine, and was then taken in charge by the sheriff of said county, holding him under said conviction until he paid the fine and costs. He thereupon applied to this court for a writ of habeas corpus, which was granted, and the cause regularly submitted in this court.

By Acts 1907, p. 193 (article 815, P. C.), it was made an offense for any one to drive or operate an automobile, on any public road, street, or driveway at a greater rate of speed than 18 miles an hour, or upon any such road, street, or driveway within the built-up portions of any city, town, or village, the limits of which shall be fixed by a municipal officer thereof, at a greater rate of speed than 8 miles an hour, except where such city or town may by an ordinance or by-law allow a greater rate of speed.

Before this prosecution began in the lower courts Santa Anna, which was a town of only about 2,000 inhabitants, had passed an ordinance making it unlawful and an offense for the owner, driver, or operator of any automobile, etc., to run, drive, or operate it along or over any of certain named streets at a greater rate of speed than 12 miles an hour. There are a large number of other provisions of said ordinance regulating the running of such machines, but it is unnecessary to state any of them. The said ordinance fixing the rate of speed at 12 miles an hour was doubtless under said article 815, P. G.; but whether it was or not does not affect the question to be decided herein.

As stated, said case against relator was tried in the county court of Coleman county on July 3, 1917. At that time Acts 1917, p. 474 et seq., regulating the operation of motor vehicles, had gone into effect, but evidently the lower court and the attorneys engaged in said trial were not aware of that fact, and were doubtless not aware of the provisions of said act, as that law had not then been published.

By said act (page 480, § 20) it is made an offense for any person to operate or drive a motor or other vehicle on any public highway where the territory contiguous thereto is closely built up at a greater rate of speed than 18 miles an hour, or in the business district of any town or incorporated city at a greater rate of speed than 15 miles an hour in cities of less than 40,000 population, or at a greater rate of speed than 10 miles an hour in the business district of cities of more than 40,000 population.

Section 23 of said act is:

“Limitations as to the rate of speed herein fixed by this act shall be exclusive of all other limitations fixed by any law of this state, or of any political subdivision thereof, and local authorities, cities and towns, shall have no power to pass, enforce or maintain any ordinances, rules or regulations in any way in conflict with or inconsistent with the provisions of this act, and no such ordinance, rules or regulations of such local authorities now in force, or hereafter enacted shall have any force. * ”

The remainder of that section makes certain exceptions. They in no way affect the question in this ease, and it is unnecessary to quote or state them.

It is evident and certain, from the provisions of said act that it was intended by the Legislature thereby to fix the rate of speed at which such automobiles might be run, applicable to the' whole state and to all towns and municipal corporations therein, and that it was intended and had the effect to do away with the rate of speed fixed by said article S15 P. C., and especially with reference to the rate of speed of all the incorporated cities and towns of the state. No other construction can legally be given to seation 23. It is true that the word “repeal” is not used, but much stronger language is used, from which no other construction, as stated, can be placed upon section 23, than the repeal absolutely of any and all ordinances of any and all municipal corporations of the state prescribing any rate of speed other than specified in section 23. Section 40 provides:

“The provisions of this act defining certain offenses and prescribing penalties therefor shall be cumulative of all existing laws now in force relative to the-subjects to which they relate.”

This section is not in conflict with section 23, noil with section 20, for what is made cumulative thereby is the offenses and penalties prescribed by said act of 1917, and not the rate of speed at which such vehicles can be run.

By said section 40 and no other provision in said act is there any saving clause of prosecutions then pending, but, on the contrary, said section 23 makes it clear that none such was intended to be saved.

Article 16, P. C., provides that :

“The repeal of a law, where the repealing statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealing [repealed] law, unless it be otherwise declared in the repealing statute.”

Under this article it has repeatedly and uniformly been held that, where prosecutions have been begun and even convictions secured, while the case is on appeal no' such repealed statute can bei enforced, and the result is that the conviction must be held invalid. See decisions noted in Vernon’s Or. Stats, p. 11. But in this instance the act of 1917 had gone into full force and effect before the conviction of the rplator in the county court. The result is that at the time of the relator’s conviction in the county court the law authorizing it had been expressly repealed by the Legislature, and he was therefore convicted upon a repealed statute or no statute existing at the time under which a prosecution could be maintained. There can therefore he no question but that relator is illegally restrained of his liberty and is entitled to be discharged therefrom.

Relator ordered discharged.
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author: MORROW, J.

text:
    HICKS v. STATE.
    (No. 4719.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    On Motion for Rehearing, Dec. 21, 1917.)
    1. Criminal Law <®=>1120(8) — Review — Objections — Necessity oe Verieioation.
    An objection to a question of a defendant on cross-examination as to whether he had not broken jail and run away that he was in jail for robbing a party other than the one he was being tried for robbing was a mere statement of the ground of objection and should have been verified.
    2. Criminal Law <§=>351(3) — Plight — Admissibility.
    Where one went to a picnic with several others, and several persons were robbed by members of the party at about the same time, and defendant was arrested for one of the robberies, and broke jail and fled, evidence of such flight was admissible on a prosecution for robbing one of the other persons, although no complaint had been made at that time charging him with robbing the particular person he was later being prosecuted for having robbed.
    Appeal from District Court, Kaufman County; IT. L. Hawkins, Judge.
    Lucky Hicks was convicted of robbery, and be appeals.
    Affirmed.
    Cbas. Asbwortb and Ross Huffmaster, both of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   MORROW, J.

Appellant’s conviction was for robbery, and bis punishment assessed at confinement in tbe penitentiary for five years.

The sufficiency of tbe evidence is not challenged, nor tbe charge of tbe court criticized. A bill of exceptions calls in question tbe correctness of the court’s ruling with reference to escape and flight by tbe appellant. Appellant, while testifying as a witness, was asked by state’s counsel if he bad not broken jail and run away. Tbe bill shows that objection was made on tbe ground that tbe escape and flight inquired about related to an occasion when appellant was in jail charged with robbing a person different from tbe one named in tbe indictment. These objections constitute a mere statement of tbe ground of objection and fail to incorporate sufficient evidence to verify their truth. Tbe facts on which the objection rests should be verified. Smith v. State, 4 Tex. App. 630, Mims v. State, 68 Tex. Cr. R. 432, 153 S. W. 321, and numerous cases cited in Branch’s Ann. P. O. p. 134, §209. In approving tbe bill tbe court makes a statement to tbe effect that appellant and tbe other parties were involved in tbe robbery of Watson Wade, tbe person named in tbe indictment, and Reagin Foote and others; that tbe robberies.were committed by tbe same parties at about tbe same time and all of tbe same transaction; that appellant was arrested on complaint charging him with tbe robbery of Reagin Foote, but was not charged by complaint with the robbery of the other parties; that he was denied bail in the case that was filed against him, and the grand jury subsequently indicted him in the several cases, including this case; that while he was in jail under these circumstances and before indictment the 'flight took place. The only facts verified being those contained in the court’s remarks, the admissibility of the testimony must be tested thereby. We have examined the statement of facts in connection with the matter, and it appears therefrom that there was testimony that appellant and three others went to a negro picnic in the nighttime in a hired automobile, and that while there and near there several persons were robbed by members of the party, firearms being used. The testimony of appellant, which was objected to, apparently was that he was arrested about 3 o’clock the next day after the robberies; that he broke jail and was out some three weeks, and with him were two of the parties who, the evidence discloses, were with him on the occasion of the robbery. Explaining the circumstance of his breaking jail, he said that it was because bail had been denied him; that he could have gone out of the state, but instead went among people in the state whom he knew; that he did not believe any indictment would be found against him, and he and'the others with him had agreed to return when the grand jury met, but was caught before that time.

Flight, concealment, escape and evasion of arrest when relevant are admissible. 12 Cyc. 395; Hardin v. State, 4 Tex. App. 355; Holt v. State, 39 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. W, 829; Branch’s Ann. P. C. 78, § 135, and cases cited; Wigmore on Ev. §§276 and 281. The relevancy of such evidence depends upon its relation to the particular offense or offenses involved in the trial, and it is not admissible to prove flight or escape as' a circumstance reflecting upon the accused when it relates to an entirely different and disconnected charge or offense. Damron v. State, 58 Tex. Cr. R. 255, 125 S. W. 396. To render evidence of flight, escape, or evasion of arrest admissible, it is not necessary that there be an indictment or charge filed against the accused. It is only required that flight or evasion be so connected with the offense on trial as to render it relevant as a circumstance bearing upon his guilt. On trial for rape evidence of flight was admitted, although at the time of the flight there was no charge of rape pending, but conrplaint had previously been filed for incest. The facts of the two offenses were so closely connected with each other as to render the inference of guilt inferable from flight applicable to either. Buchanan v. State, 41 Tex. Cr. R. 130, 52 S. W. 769.

The facts of this case as certified by the trial judge would seem to bring it within the same rule. The court says:

“The state did not at that time file a complaint against him for robbery of all of the parties who claimed to have been robbed upon these two occasions and only a few minutes apart, but the grand jury at the succeeding term of the court indicted him in all of these cases, and while it is true that there was no charge pending against him for the robbery of Watson Wade at the time he escaped from jail, yet they were practically one and the same transaction.”

Similar facts were involved in People v. Keep, decided by the Supreme Court of Michigan, 123 Mich. 231, 81 N. W. 1097, in a case where one was in jail convicted of a misdemeanor, and, while not charged with a robbery, was aware such a charge might be filed against him, and it was held that his escape from jail was admissible on his subsequent prosecution for robbery.

Our conclusion is- that, as presented, the record discloses no error, and the judgment of the lower court-is therefore affirmed.

On Motion for Rehearing.

Appellant in his motion assails the sufficiency of the evidence on the ground that the witnesses who identified appellant as' one of the party participating in the robbery were unreliable. Several witnesses testified that a party of four men committed the robbery on several persons; that they used firearms, and had their faces partly covered with a cloth or handkerchief in the way of disguise. Appellant was identified by positive testimony as one of the party, and as taking part in the robbery of the party named in the indictment. There is no question as to the sufficiency of the evidence if .the jury believed it to be true, and it was their province, and not that of this court, to pass upon the credibility of the witnesses and the weight to be given their testimony.

The motion is overruled.
      <S=>Eor other cases see same topic and KEY-NUMBER in all Key-Nnmhered Digests and Indexes


author: KING, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. CLAYBON.
    (No. 274.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 1, 1917.)
    1. Railroads <§=>440 — Injuries to Animals —Pleading—Allegations—Proof and Variance.
    Where plaintiff alleged that the horse was killed by the negligent operation of defendant’s train, he could not recover, in the absence of evidence showing such negligence.
    2. Railroads <®=»439 (1) — Injuries to Animals — Pleading—General Allegations— Facts Particularly Within Knowledge oe Adverse Party.
    Where plaintiff had to rely upon circumstantial evidence to establish the killing of the horse, and it would be impossible for Mm to allege the specific act done or omitted constituting negligence of defendant railway, he could rely upon a general allegation of negligence; it being the rule that, where acts are particularly within the knowledge of defendant and not within the knowledge of plaintiff,, plaintiff can rely upon a general allegation of negligence.
    3. Railroads <§=^452 —Killing or Stock — Attorney's Fees—Rroof or Value.
    In an action for the value of a horse killed by a locomotive or cars of defendant, plaintiff could not recover attorney’s fees, without evidence as to what would be a reasonable attorney’s fee under the statute.
    4. Damages «£^>174(2) — Pbooe — Market Value.
    In an action for the value of a horse killed by defendant’s locomotive or cars, proof as to the value of the horse should be confined to its market value. ,
    Appeal from Angelina County Court; B. B. Robb, Judge.
    Suit by Amos daybon against the St. Louis Southwestern Railway Company of Texas. ‘Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Denman & Thomas, of Lufkin,' and Marsh & Mcllwaine, of Tyler, for appellant. Sam R. Sayers, of Lufkin, for appellee.
   KING, J.

This appeal is from a judgment against appellant, rendered in the county court of Angelina county, in the sum of $165 ; $150 as damages for the value of a horse alleged to have been killed on the 2d of September, 1916, by the carelessness and negligence of appellant, through its agents and employés in the • operation of its trains, engines, and ears, and $15 as attorney’s fee for the prosecution of the suit. The suit originated in the justice court, and was tried de novo on appeal to the county court; ' the pleadings in both courts consisting of plaintiff’s demand, as follow's:

The Saint Louis Southwestern Railway Company of Texas in Account with Amos Clay-bon.
1916, Sept. 2. To one horse killed by the trains, engines, and cars said company and by the careless and negligent operation of said trains, engines, and cars by its agents and employés.$150.00
To attorney’s fee for filing this suit. ... 15.00
Total amount sued for. $165.00

■—with an additional oral plea- “that demand had been made of the defendant as required by law for attorney’s fees.” The charging xiart of the citation as to negligence corresponds to the allegations in plaintiff’s demand.

The ease must be reversed, because there is no testimony in the record showing the circumstances surrounding the killing.of the horse. No witness who testified claimed to know the manner of the horse’s death. The trial court did not require, in the issues submitted to the jury, that the jury find that the horse was killed by virtue of the negligence of the appellant, but submitted, for the .determination of the jury, the question only as to whether the horse was killed by the locomotives or cars of the defendant company while on the railroad track of the defendant company.

Proper assignments are presented, covering exceptions to the court’s charge, as well as the submission of special charges, which were overruled by the court. Appellee, predicating his suit on the ground of negligence of the appellant, cannot recover in the absence of proof showing such negligence.

With reference to appellant’s assignment complaining of the action of the trial co'urt in not sustaining its general demurrer, we perhaps would not be willing to reverse the .case upon that ground alone, inasmuch as the technical requirements of courts of record do not apply with the same strictness to pleadings in the justice court. We take the liberty, however, to suggest that plaintiff’s additional oral pleading, that demand had been made of defe'nftant as required by law for attorney’s, fees, could' be more specific, so as to show that demand had been .made upon the company as required by statute, so as to remove this difficulty on another trial.

With reference to the proposition that the pleading is insufficient, because it alleges a'meré abstract, proposition that defendant was guilty of negligence in the operation of its train, we think that, under the circumstances .of this case, the appellee having to rely, upon circumstantial evidence to establish the killing of the horse, it would be impossible for him to allege the specific act done or omitted constituting negligence; it .being the rule that, where acts are peculiarly within the knowledge of the defendant and not within the knowledge of the plaintiff, the plaintiff can rely upon a general allegation of negligence.

Appellant’s sixth assignment of error, setting up the fact that there was no testimony to .authorize the jury to answer the issue that was submitted to them as to what would be a reasonable attorney’s fee in the case, as there is no testimony in the record as to what was a reasonable attorney’s fee in this case, must be sustained. There must be evidence introduced upon the trial as to what would be a reasonable attorney’s fee under the statute. This statute, being a penalty, must be strictly construed.

There are other matters complained of by appellant, but the case has to be reversed for the reasons assigned. In case of another trial, the proof as to the value of the horse should be confined to its market value. The other matters complained of are not likely to occur on another trial.

The judgment of the lower court is reversed, and the cause remanded.
      <g=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    KEEFER et al. v. JAMISON et al.
    (No. 7419.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 26, 1917.
    On Motion for Rehearing, Nov. 9, 1917.
    Second Motion for Rehearing Denied Dec. 6, 1917.)
    Boundaries <®=>24 — Successive Deeds by Same, Grantor.
    There being no evidence that the stakes of the surveyor called for in a deed were located otherwise than as called for therein, the plain and unambiguous and nonconflicting call of the deed for a boundary from a certain point “north” a certain distance to the S. line cannot be considered north 20 degrees east, to correspond to the boundary of another tract, a corner of which was the starting point, where by such course the boundary would not reach the S. line in the distance called for, merely because subsequently the grantor made a deed to another conflicting with the first if said boundary ran north.
    Error from District Court, Harris County ; C. E. Ashe, Judge.
    Action by N. D. Jamison and others against J. B. Keefer and others. Judgment for plaintiffs, and certain defendants bring error.
    Reversed, rendered in part, and in part remanded.
    ' E. P. & Otis K. Hamblen, of Houston, for plaintiffs in error. Love & Pouts, of Houston, for defendants in error.
   GRAVES, J.

Defendant in error Jamison filed this suit against plaintiffs in error for a tract of land out of the John Austin two-league grant in Harris county, Tex., more particularly described as follows: Beginning on the northwest bank of Little White Oak bayou at the southwest corner of a tract of 20 acres occupied in 1853 by one Irving, and afterwards, on December 9, 1853, conveyed by J. T. Crawford to Deiderich Germer by deed recorded in Book P, page 374, of the deed records of Harris county; thence north-wardly with the west line of said Irving and Germer tracts, 1225 feet to the northwest corner on the north line of the Scott 500-acre tract, of which the land herein sued for is a part; thence west with Scott’s line 326 feet to the northeast corner of a 10-acre tract of land decreed to’ Frederick Lohff by the district court of Harris county in the case of Fredericka Lohff v. Deiderich Germer and Minna Samow on April 8, 1S74, recorded in Book P, page 578, of the minutes of the district court of Harris county, Tex.; thence southwardly with the east line of said 10-acre tract to Little White Oak bayou; then down Little White Oak bayou with its meanders to the place of beginning, containing 8.6 acres, referring to the chain of title under which he held.

The .petition was in the nature of a trespass to try title, and the plaintiff therein, defendant in error here, claimed the land as thus described by him, not only under his record title, but under the statutes of limitation of 5 and 10 years, and also asserted title acquired under an agreed boundary line, and by estoppel as against the defendants, plaintiffs in error here. In that connection he alleged that he acquired the property from and under Deiderich Germer, who acquired the title from John P. Crawford, and that the property in controversy and the tract of land immediately east of it, now owned by the plaintiffs in error, passed into and was owned by Wilhelmina Schroeder and her husband, under whom both litigants claimed title; that the plaintiffs in error and those under whom they claimed went into possession of the tract of land so acquired from the said Wilhemina Schroeder and located immediately easti of and adjoining the land in controversy, and that defendant in error and those under whom he claimed went into possession of the land in controversy, and the division line between these two tracts of land was fixed and established by the common grantors of such tracts and by their respective vendees thereof, and that the plaintiffs in error and those under whom they claimed made an agreement as to, and for many years maintained, a fence marking the division line between these respective tracts of land, which dimisión line corresponded with the east lime of the tract of land sued for, and was for many years recognized and acquiesced in as such; that the defendant in error and those under whom he held purchased the land in controversy and paid value therefor, relying upon the acts and conduct of plaintiffs in error, and those under whom they1 claimed, in so recognizing and maintaining such division line, and without any knowledge of any claim by them to any land west of such recognized division line, by reason of which they were at that late date precluded from disputing the location of defendant in error’s east line, or claiming the land in controversy, or any part thereof, as against him.

Plaintiffs in error answered by plea of not guilty, stating that Modra and wife were the owners of the land set out in their answer, and that Keefer was their tenant. They set out and described their land as: Beginning on White Oak bayou at the southwest corner of what was known as the Stern tract of land (formerly Blackwell tract of land); thence running north 80 rods to what is known as Scott’s north boundary line to a stake for corner; thence west along the north boundary line of the Scott tract 40 rods to a stake for corner (calling for bearing trees); thence south calling for bearing trees along its line 394.2 varas to a point in White Oak bayou (calling for bearing trees); thence down the center of White Oak bayou to the beginning, containing 20 acres of land more or less, it being the same tract of land conveyed by Henry Schroeder and wife to John Kuhnle on June 11, 1883. They disclaimed as to any land sued for by defendant in error not included in this description. Tbey also pleaded the statutes of limitation of 3, 5, and 10 years. They denied that they, or those under whom •they claimed, ever had any understanding or agreement with the defendant in error, or those under whom he claimed, as to the dividing line between the property as so described by them and the land west of that tract, or that they or those under whom they claimed ever constructed any fence or improvements upon what defendant in error claimed to be their west line, or that they ever recognized or acquiesced in his claim to any portion of this land described in the deed so made to them, or that he or those under whom he claimed ever used, occupied, or had possession of any of it.

The cause was submitted to a jury on special issues, and upon the return of a verdict thereon favorable to defendant in error Jami-son, judgment was entered in his favor for the land sued for against the plaintiffs in error, who, by writ of error duly sued out, have brought the case to this court for review.

As already indicated from the pleadings, both parties claimed the land from and under Wilhelmina Schroeder and husband, Henry Schroeder. The title of plaintiffs in error came out of Schroeder and wife by the above-mentioned deed they made to John Kuhnle on June 11, 1883, and thence on down into them by mesne conveyances under the same description contained in that deed and as given in their pleadings. While on the other hand, the title of defendant in error emanated from Schroeder and wife through a power of attorney given by them to H. B. Cline on September 6, 1893, and a deed executed by them and H. B. Cline together to the latter’s wife, Edna E. Cline, on April 12, 1894. The power of attorney authorized Cline “to recover that tract of land situated on little White Oak bayou in Harris county, Tex., being all that part of a tract of 12 acres more or less described in deed from Deiderick Germer to Minna Samow, now the wife of Henry Schroeder, made January 4, 1867, and recorded in Harris County Records of Deeds, vol. 4, p. 182, less 10 acres off of the west end or side decreed to Fred-ericlca Lohff on May 8, 1874.”

The deed to Mrs. Cline conveyed all “that certain 8.6 acres out of the north part of the Scott 500 acres, which is a part of the northeast quarter of two leagues originally granted to John Austin, situated on the north side of Tittle White Oak bayou about 2⅛ miles northwardly from the courthouse. For a more particular description the field notes of the survey made by J. J. Gillespie is hereto attached and made a part of this instrument. Reference is also made to volume 4, p. 182, and volume 70, pp. 41 and 42, of the Harris County Records.”

The field notes referred to as made by Gillespie carried practically the same description of the land as that set out at the beginning hereof from the petition in this suit, except that the 20 acres, along the western line of which it was called to run, was referred to in Gillespie’s notes as the Samow 20 acres, and the course of its western line was given as north 20° B., whereas in the petition this 20 acres was called “the Irving and Germer tracts,” and the cohrse of its western line stated simply as “north-wardly.” But whether called by the one or the other name, we think it sufficiently appears from the pleadings and chains of title of the parties that the Irving or the Germer, or the Samow 20 acres, was one and the same tract o'f land; that much being, as we think, conceded in the manner indicated by both parties, the whole case turned upon the proper location upon the ground of this 20 acres, particularly of its eastern and western ■boundary lines. As has been previously indicated in the italicized parts of the respective descriptions given by defendant in error of the land he sued for, and by plaintiffs in error of the specific tract they alone claimed, it is apparent that the former’s contention is that this 20-acre tract conformed to Blackwell’s west line, and that consequently its east and west lines had a variation of 20 degrees from the north and south, instead of running due north and south; while, upon the other hand, the latter’s position is that, since the deeds under which they held called for the 20 acres to begin at Blackwell’s southwest corner, a well ascertained and undisputed corner, and thence to run not with Blachmell’s loest line, but due north 80 rods to Scott’s north line, thence west with Scott’s line 40 rods, thence due south to the bayou, thence down and with the bayou to the beginning, and since this description was unambiguous and contained no calls from which the jury could find that the land was located in any other position than just as called for, it should be given that location, and its east and west lines allowed to run due north and south, especially when the evidence showed that, if applied to the ground, the location as claimed by them conformed to and exactly fit these calls and lines in their deeds. To state concretely the effect of these differing contentions as to the proper location of the 20 acres in question: If its east and west lines are given the 20 degrees variation, and its east line made to conform to and follow Blackwell’s west line, as contended for by defendant in error Jamison, a triangular piece of land constituting ■ that sued for by him would be left immediately adjoining it on the west and lying between it and the Lohff 10 acres; whereas, if its east and west lines are made to run with the compass due north and south, using only Blackwell’s southwest corner as the starting point, precisely as called for in plaintiffs in error’s deeds, only a smalL strip of about 2 acres inclosed within parallel. lines would be left on its West side between it and tbe Lohff 10 acres, while a triangular tract of some 7 acres would be left on its east side between it and Blackwell’s 20 acres.

In aid of a better understanding of these two contentions and of their effects applied to the ground, we append the following map presented with the record here, to wit:

Back of Wilhelmina and Henry Schroeder also there was a common claim of title by the litigants to the land sued for, both asserting that they acquired the property from and under Deiderich Germer, who in turn had acquired it from John E. Crawford.

It was admitted between them that, prior to 1852, John E. Crawford had title to all the land shown on the map lying between the east line of the Blackwell 20 acres, the north line of the Scott 500 acres, and White Oak bayou, comprising about 39 acres. It was then shown that he made three sales and conveyances out of the land thus inclosed, one to Blackwell, and two to Deiderich Ger-mer. In his sale to Blackwell, made in 1852, the west line of the Blackwell, by reversing the call, ran from White Oak bayou north 20 degrees east 85 rods to the north line of the Scott 500 acres. So far as the evidence shows that line was well recognized and corresponded with the call, both as to the location and distance.

On December 9, 1853, he sold and conveyed to Germer 20 acres, beginning at Blackwell’s southwest corner, running north SO rods to a stake in the north line of the Scott 500 acres; thence west 40 rods, etc. The evidence is undisputed that this course and distance fits upon the ground in accordance with the calls, and could not be located at any other place so as to give either the course or the distance. There was no evidence whatever, circumstantial or other■wise, tending to show where the stakes were located -other than as called for in the deed, nor was there, any allegation of a mistake in the calls in this or in any other deed under which plaintiffs in error claimed; furthermore, the description of the 20 acres, as given in this deed, is the same as in the deed from Henry Schroeder and wife to John ICuhnle, of June 11, 1883, under which ifiain-tiffs in error claimed, as already referred to, and in every other conveyance of it offered in behalf of either party. 1

On. December 28, 1853, Crawford made the second sale to Germer, conveying 12 acres, beginning on White Oak bayou where the north line of the Scott 500 acres intersected same; thence running east to the Irving tract'; thence south to the bayou. This made a total of 32 acres he sold to Germer. It thus clearly appears, we think, from Crawford’s deeds to Blackwell and to Germer, that Crawford had accurate knowledge of what, land he had in there, and that the course and distance called for in the respective deeds he made not only included the number of acres he intended to convey, but, ■when placed on the ground, would fit the calls, thus leaving the triangle between it and the Blackwell tract; Crawford’s heirs subsequent to his death conveyed this triangle, and it also- finally passed down into the plaintiffs in error.

At this point it must be recalled, however, as has been hereinbefore quoted from the power of attorney from the Schroeders to H. B. Cline, that Fredericka Lohff recovered from them, or their predecessor in title, 10 acres off of the west end of this last-mentioned 12 acres conveyed to Germer, her judgment describing it as:

“Beginning at the bank of Little White Oak bayou at the crossing of said Scott line; thence oast with Scott’s line, it being also the south line of Beutler, to a corner at such a distance from the beginning that a line thence south to the bayou and up the bayou to the beginning would inclose 10 acres.”

This left only about 2 acres out of that 12-acre Germer tract in the Schroeders, represented by the narrow strip shown on the map as lying between the Germer 20 acres on the east and the Lohff 10, acres on the west, and as to which alone the power of attorney they gave Cline could be effective. And Henry Schroeder testified upon the trial in the court below that he had so understood and intended in giving it, knowing as he then did that he only had about 2 acres of land left in there, and not 6 or more acres, as claimed and sued for by defendant in error. It is true, as already recited, that in the joint deed executed by Schroeder and wife and Cline to Cline’s wife, an additional description through Gillespie’s notes was given, calling for 8.6 acres, but as to that Schroeder further testified:

“I did not know anything about Cline’s putting in the deed that I and my wife and he made to his wife the field notes of Gillespie showing that there were 6 and some odd acres left in there. Cline called me up and got my wife to make the deed. I had to sign it; I did not know anything about having 6-odd acres before that; not that much, only 2 acres.”

Upon tlie case made, substantially at least, as has been above recited and outlined, and at the close of the evidence, plaintiffs in error filed in the trial court their motion for an-instructed verdict in substance as follows:

‘‘Now come tlie defendants and move the court to give a peremptory instruction.to the jury to find for the defendants, and say there is no ambiguity in the description contained in the deed from Schroeder and wife to John Kuhnle, or in any of the deeds thereunder of these defendants. The undisputed evidence shows that the Blackwell southwest corner on the bayou is well ascertained; that the call in the deed to Kuhnle is to run north 80 rods to the north line of the Scott 500 acres, thence west 40 rods, and thence south to the bayou and down the bayou to the place of beginning; that there are no marks or monuments called for in said deed other than those above stated. The undisputed evidence shows that running the line north from the Blackwell southwest corner 80 rods reached the north line of the Scott 500-acre tract and fully complies with the call in the deed, and that to run in any other course or distance would be both against its course and distance; in other words, that the land as claimed by the defendants fits the description exactly and no other location would fit the description, and there are n-c calls in the deed from which the jury could find that the land was located in any other position than that claimed by the defendants, and it is the duty of the court in the absence of any ambiguity to construe said deed and instruct a verdict for the defendants; that there is no evidence to support the plaintiff’s contention of estoppel on the part of defendants or those under whom they claim. The plaintiff in the case, as shown by liis own evidence, at the time of his purchase made no inquiries of the defendants or those under whom they claim or of any persons living in the neighborhood as to the true lino, but says that he presumed that the fence that he found was on the west line of the defendants’ land as he presumed the defendants had fenced their own land, and on such presumption he purchased without making any other investigation; that all of the land lying west of said fence was onen and unoccu"’','d, including not only the land that these defendants own, but what is known as the Lohff tract, and that there could be no estoppel under the plaintiff’s own evidence.”

And with this motion they duly presented such a charge to the court, which is as follows, omitting formal parts:

“You are charged that the record evidence in this case shows the title to the property involved in this suit in the defendant Katherine iviodra, and you will return your verdict for the defendants.”

The court refused this motion and its appended charge, and that action is, for the same reasons stated in the motion, made the ground of the first assignment of error presented in this court.

After a careful review of the record, finding as we have and do that the facts set out in the motion were fully established, we think the motion should have, been granted, and accordingly sustain tbe first assignment. We have deemed it unnecessary to detail in full the complete chains of title and other evidence presented by the parties, but only such of them as furnish an adequate basis for determination of the issues presented by this appeal.

• There was no mistake charged in any of the calls of the various deeds und'er which plaintiffs in error claimed their 20 acres even if that kind of an issue could have Been tried in this trespass to try title suit, nor was there any sort of ambiguity, conflict, or uncertainty in any of them; but upon the contrary, the evidence of Packard and Stimson, the two surveyors, was to the effect that if the calls in the deed from Schroeder to John Kuhnle were applied to the ground, it would give to the plaintiffs in error all of the land claimed by them. And such was likewise necessarily true as to the same calls in all the other deeds under which they held.' In these circumstances, then, after the Schroeders had in 1883, By such certain, unambiguous, and noneonflieting descriptive calls conveyed to Kuhnle all the land they owned lying next to Fredericka Lohff’s 10 acres, except about 2 acres, they could not in 1894, 11 years later, convey any part of the same land to Mrs. Oline, for the obvious reason that they had ip,ft no title to it; upon this ground alone, to say nothing of the other objections that were offered to the deed to Mrs. Oline, we think the trial court should have excluded it from the evidence.

To carry out’the contention of the defendant in error that the first call in the deed of the 20 acres to Germer, and likewise in the deeds under him, should run from White Oak bayou north 20 degrees east 85 rods to Scott’s line, would not only change the course of the line as called for in the deed, but would also change the distance, and would include land never intended to be conveyed according to the calls in the deeds; and that upon the, bare contention that the stakes called for in the held notes as- marking its corners in Scott’s north line, which plainly were the stakes set by the surveyor himself at the time of and in making the survey, were in themselves artificial • objects, and if they could not be found, and it could be directly or circumstantially shown' that they were, located otherwise than as called for (about neither of which suppositions, as has been elsewhere stated, was there a particle of evidence), then the course calls in the deed must yield to such actual location as the stakes were shown to have had; but, as just for the second time intimated, the, fatal vice in this contention, even if it does not involve a far-fetched and strained construction, is that there was no evidence, whatever as to what had or had not been the location of the stakes. We therefore think the plain, certain,* and unambiguous calls in these deeds leave no room for the ingrafting of changes therein, but speak for themselves and must control, and that the trial court should have so held under the following authorities: Davis v. George, 136 S. W. 505; Diffie v. White, 184 S. W. 1065; White v. Kingsbury, 77 Tex. 614, 14 S. W. 201; Watts v. Howard, 77 Tex. 72, 13 S. W. 966; Powers v. Minor, 87 Tex. 86, 26 S. W. 1071; Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931.

Since our conclusion that the court should have peremptorily instructed the jury to find for plaintiffs in error determines the merits of this appeal, it becomes unnecessary to pass upon questions presented in the. remaining assignments; the facts having been fully developed, and it having been shown that plaintiff in error Mrs. Katherine Modra was thq owner of the land claimed by herself and husband, and that J. B. Keefer was their tenant, the trial court’s judgment will be reversed and judgment here rendered in favor of Mrs. Modra for the land as described in her answer.

Reversed and rendered.

On Motion for Rehearing.

In a very earnest and able motion for rehearing filed by him, defendant in error Jamison contends that this court erred in its former opinion reversing and rendering the trial court’s judgment in this cause, and in holding that an instructed verdict for plaintiffs in error for the land claimed by them should have been there returned.. He specially insists that we further erred in finding that there was no evidence, circumstantial or otherwise, tending to show that the states called for in the deeds from Crawford and Germer conveying the 20 acres were located other than as called for in the deed. But after a most careful re-examination of the record, we are unconvinced that any error was committed in the respects complained of, and are accordingly impelled to adhere to our former conclusions.

In the sixth ground of the motion for rehearing, however, our attention is called to the fact that, as the judgment now stands, defendant in error Jamison has lost such of the land he sued for as is included in that recovered by plaintiffs in error, and at the' same time has be.en deprived of a recovery of the purchase money therefor against Richards and wife, his warrantors, who were duly impleaded by him in the court below upon thqir warranty. This part of our former judgment is error. We are unable to here render judgment for Jamison against Richards and wife upon this warranty, because there are not sufficient facts in the record from which it can be accurate,ly determined just how much of the land they so warranted to him has been lost, nor the amount paid therefor by plaintiff.

' The motion for rehearing is therefore granted, our former opinion reformed? and judgment of the court below reversed and rendered for plaintiff in error Katherine Modra for the land claimed by her, and that court’s judgment in favor, of Marie L. H. Richards and husband, G. I-I. Richards, is reversed and remanded, with instructions to the trial court to hear evidence, and enter its judgment in favor of defendant in error Jamison against Richards and wife for the amount found to be due, upon their warranty to him.

Granted in part, and judgment of the court below reversed and rendered in part, and in part remanded.
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. KUEHN.
    (No. 5832.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1917.)
    Railroads <£=v440 — Injury to Animals — Variance — Joint Ownership.
    Where plaintiff sued as sole owner of certain cows to recover for their death, and the proof was that he was not such owner, but was a joint owner, he could not recover; as one joint owner had no right to maintain an action and recover .the value of the cows.
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    Action by R. W. Kuehn against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant.
   KEY, C. J.

Appellee sued appellant and recovered a judgment for the value of two cows and $15 attorney’s fees.

The clear and undisputed proof shows that the cows in question belonged to a partnership, consisting of plaintiff, R. W. Kuehn, and two other men, and when that proof was developed the defendant filed a motion asking the court to abate the suit upon the ground that the other two partners were interested in the subject-matter of the litigation, and therefore should have been made parties plaintiff, which motion was overruled ; and that ruling is assigned as error.

We sustain that assignment, and also the contention that the proof failed to show that appellant was in any wise to blame for the death of one of the cows. Even if appellant wrongfully caused the death of the cows, one of the joint owners has no right to maintain an action and recover the value of the cows, when the judgment rendered would not protect, appellant against a suit by the other joint owners or by the partnership. Appellee sued as sole owner of the property, and the proof showed that he was not such owner.

Reversed and remanded.


author: JENKINS, J.

text:
    KIGGINS et al. v. HENNE & MEYER CO., Inc.
    (No. 5831.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 21, 1917.
    Rehearing Denied Dec. 12, 1917.)
    1. Exemptions @=>15 — Persons Entitled — “Family” Relation.
    Six unmarried brothers living in the same' house with their four unmarried sisters and with their aged, widowed father, who was un~ able to perform labor of any kind, constituted a “family” -within the exemption laws.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Family.]
    2. Exemptions <§=>137 — Reconvention— Conversion.
    In a suit on a note, wherein plaintiff sued out a writ of attachment and levied upon defendant’s joint property, the defendants, claiming an exemption, were entitled by plea in reconvention to ask judgment against plaintiff for the value of the property levied upon, treating it as a conversion.
    3. Exemptions <§=>144 — Oefsetting Judgments.
    In such ease, plaintiff, though entitled to a judgment on the note sued upon, was not entitled to have defendants’ judgment for the value of the exempt property converted by attachment and levy offset by the judgment on the note.
    4. Exemptions <§=>137 — Action fob Conversion ox Exempt Property — Title to Property — Expect.
    In such case, the defendants by their cross-action for conversion abandoned the property to the plaintiff, and it became his property.
    5. Parties <§=>25 — Misjoinder.
    In a suit on a joint and several note, with •attachment and levy on defendants’ joint property, an amended petition asking judgment on a note against one of such defendants purchased after the commencement of the suit was properly allowed, against the objection that there was a misjoinder of parties.
    6. Action <§=338f6) — Misjoinder.
    Such amendment was not objectionable as being a misjoinder of causes of action.
    7. Exemptions <§=>43 — Cattle—1“Yearling” —“Calx.”
    An animal sucking a cow that is being milked would be a “calf” within the exemption statute, which should be liberally construed to effect its intended purpose, and, if “bull yearlings” were over a year old and their mothers were dry or so near so that they were not useful for milk purposes, they were subject to forced sale, otherwise they were not; the word “yearling” meaning an animal over a year old.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Calf; Yearling.]
    Appeal from Milam County Court; John Watson, Judge.
    Suit by the Henne & Meyer Company, Incorporated, against Tom Kiggins and others, with a writ of attachment and a levy, and with a plea in reconvention asking judgment against the plaintiff for the value of the property levied upon as for a conversion. .Judgment for plaintiff foreclosing the attachment, and defendants appeal.
    Reversed, and ■cause remanded for a retrial.
    Lewis H. Jones, of Belton, for appellants. E. A. Wallace, of Cameron, for appellee.
   JENKINS, J.

This suit was instituted against appellants on their joint and several promissory note for $367.90. Appellee sued out a writ of attachment and caused it to be levied upon two head of horses, four milk ■cows, and three calves of said cows, all the joint property of appellants and their unmarried sisters. Appellants are six brothers, neither of whom has ever been married. They live in the same house together with their four sisters, neither of whom has ever been married, and with their widowed father, who is 100 years old and incapable of performing labor of any kind. The appellants are morally bound to support their sisters and father, and they do so; the sisters rendering such assistance as is usual with female members of a family. The oldest of appellants acts virtually as the head of the family. Besides the horses levied on, the appellants and their sisters own ten head of mules. They own no other cattle. Pri- or to and at the time of the levy of the writ of attachment, they claimed to the officer making such levy the property levied upon as being exempt to them as a family.

The trial court held that these facts did not constitute the appellants and their sisters and father a “family,” and entered judgment foreclosing the attachment. This was error. Drought & Co. v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 188, and authorities there cited; Wilson v. Cochran, 31 Tex. 680, 98 Am. Dec. 553.

The appellants by plea in reconvention asked judgment against appellee for the value of the property levied upon, treating such levy as a conversion. They were entitled to this, and, while appellee is entitled to a judgment on the note sued upon, it is not entitled to have appellants’ judgment for the value of the exempt property converted offset by its judgment on the note.

We cannot understand why appellee, under these circumstances, should ask to have its attachment foreclosed. As the appellants by their cross-action for conversion have abandoned said property to appellee, it has become appellee’s property, and to foreclose an attachment thereon would be to foreclose on its own property, and credit the proceeds thereof on its judgment on the note sued on.

Subsequent to the filing of this suit and the issuance of attachment thereon, ap-pellee purchased a note for $62.50 on Ed. Kiggins, one of the defendants, and a mortgage on one of the horses levied upon by the writ of attachment herein to secure said indebtedness, and in its amended petition asked judgment on said note and foreclosure of said mortgage. Appellants excepted to said amendment as being a misjoinder of parties and of causes of action, which exception was by the court overruled. We are not free from doubt on this issue, but as it is the policy of our law to avoid a multiplicity of suits, and as the question of misjoinder rests to' a very large extent in the discretion of the court, we overrule appellants’ assignment on the issue. Ed. Kiggins was already before the court. He was the several, as well as the joint, maker of the note originally sued on. The evidence indicates that he owned a one-tenth undivided interest in said horse, and, although it was exempt from attachment, he could give a valid mortgage on Same. Buckholts State Bank v. O. Thalmon et al., 196 S. W. 687, by this court, not yet officially reported. We see no reason why, under proper pleading, a judgment might not be rendered in this case foreclosing the mortgage on Ed. Riggins’ interest, ■ if any, in said horse. Of' course, no cost incurred in this branch of the case should be adjudged against the other appellants herein.

As to the animals described in the officer’s return on the writ of attachment as “two bull yearlings,” there is no evidence as to their age, nor as to whether or not they were sucking their mothers. Ordinarily, “yearling” means an animal over a year old. On the other hand, an animal that is sucking a cow that is being milked, would 'be a “calf” within the meaning of the.exemption statute, which should be liberally construed to effect the purposes for which it was intended. If the “bull yearlings” were over a year old, and their mothers were dry, or so near so that they 'were 'not useful for miiir purposes, such “yearlings” were subject to forced sale; otherwise, they were not.

For the reasons stated, the judgment herein is reversed, and this cause is remanded to be retried in accordance with this opinion.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    QUANAH, A. & P. RY. CO. v. NOVIT.
    (No. 1239.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Caebiees @=3135 — Injubies to Apples in Tkansit Measube op Damages.
    In an action for damage to a carload of apples in transit, the proper measure of damages, in the absence of pleading- or evidence authorizing the recovery of special damages, is the difference in .the market value of the apples in the condition in which they arrived, and their market value at the time and in the condition they would have arrived but for negligence in transportation, and if there was no market value, then the reasonable value of the apples would be the basis of estimating the damages.
    2. Judgment @=3256(2) — Confoemity to Special Issue.
    If what plaintiff would have realized from the sale of his apples damaged in transit was the proper measure of damages, no judgment could have been entered on the jury’s answer to an issue as to what plaintiff would have realized, because the expense which should have been deducted from the amount was unknown.
    3. Caebiees @=3135 — Injubies to Apples in Tbansit — Damages—Maeket Value at Retail.
    Where plaintiff did not receive a carload of apples in their damaged or worthless condition, so that the expense of retailing them was not incurred, the market value of the apples,' if sold at retail, was not the proper measure of recovery from the railroad fpr injuring the shipment.
    4. Caeeiees @=3122 — Duty op Consignee to Accept Injubed Shipment.
    If a Carload of apples were not rendered practically ■ worthless in transit, it was the consignee’s duty to have accepted them on arrival at destination, and if his refusal to accept them was wrongful, he should suffer the loss incident to the further holding of the apples until they could be legally disposed of by the railway, but the consignee could still recover as damages the difference in the value of the apples in the con-, dition in which they should have arrived, and’ their value in their condition at the time of arrival and tender by the road.
    5. Evidence @=391, 96 (1) — Bueden on Plain - tipp and Dependant.
    The burden was on plaintiff to establish the issues on which he relied for recovery, and on defendant to establish the affirmative defenses relied on to defeat recovery.
    6. Tbial @=3242 — Confusing Insteuction.
    In an action for damage to apples in transit, the instruction that the burden of proof was on plaintiff to prove his case by a preponderance of the evidence, and on defendants to prove their defense by the preponderance of the evidence,' was apt to confuse the jury, as it might deprive defendant of the benefit of its general and special denials, which did not constitute affirmative matters of defense as to which the burden of proof is on defendant, and might lead the jury to decide that the burden as to plaintiff’s right to recover would shift on his making a prima facie case by his own evidence.
    7. Gabeiebs @=>124½ — Oabkiage op Fbeight — Injuries in Tbansit — Offsetting FKEIGnT Chabges.
    In an action against a railroad for damages to a carload of apples in transit, the railway can recover its unpaid freight, and if plaintiff should recover damages, such recovery may be set off by the amount due as freight charges, with judgment against the party owing the other after such set-off-.
    Appeal from Cottle County Court; W. O. Jones, Judge. ’
    Suit by Sam Novit against the Quanah^ Acme & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    J. A. Clarke, D. E. Decker, and Jno. P. Marrs, all of Quanah, for appellant. James M. Whatley' of Paducah, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee to recover of appellant damages to a shipment of a car of apples. The apples were originally shipped from Wallace, Mo., and consigned to plaintiff at Yernon, Tex., but upon arrival at such place were reshipped to Paducah. It was alleged that the apples were in good condition when reshipped from Yernon, but on account of the negligence of the defendant they were worthless upon arrival at Paducah. The plaintiff pleaded that the market value of the apples at Paducah, if properly transported, would have been $1.25 per bushel, but that upon arrival they were worthless and, further, that he “would have realized, after deducting the freight and reasonable expense of handling same at Pa-ducah, Tex., the sum of $346.95, from the car of apples,” and prayed for judgment for said sum, for general relief, etc.

The case was submitted on special issues-, and the jury found that the ’defendant was negligent--in the transportation of the car of apples from Vernon to Paducah; that the market value of the ’apples in the condition in which they arrived at Paducah was $20. The seventh issue submitted was as follows:

“If in answer to issue 4 you have answered that the apples were in bad condition when they arrived, then what would have been their market value at Paducah, Tex., had they arrived in good condition by retail on the market at Paducah, Tex.?”

To which the jury answered:

“$667.50, at $1.25 per bushel.”

The eleventh issue .submitted was as follows :

“If you have answered the apples arrived in bad condition, then had the apples arrived in good condition what would the plaintiff have realized on them, after deducting the freight charges and the reasonable expense of handling the same at Paducah, Tex.?”

To which the jury answered:

“$304.96, less expenses unknown.”

The court entered judgment upon this verdict for the plaintiff for the sum of $304.95.

There was no pleading or evidence that would authorize the recovery by plaintiff of special damages, and the proper measure of damages in this case would be the difference in the market value of the appies in the condition in which they did arrive and their market value at Paducah at the time and in the condition they would have arrived but for the negligence in transportation. If there was no market value, then the reasonable value of the apples would be the basis' of estimating the damages. The defendant’s exception to plaintiff’s pleading, as above stated, of what he would have realized from the sale of said apples, should therefore have been sustained and such issue not have been submitted to the jury. Even if this was the proper measure of damages no judgment could have been entered on the answer of the jury to this issue because the expense which should have been deducted from the $304.95 was unknown.

But appellee takes the position in this court that the pleading and verdict are sufficient to support the judgment on application of the proper measure of damages as we have stated it, since a deduction of the balance of the freight charges, added to the $20 found by the jury to be the market value of the apples at Paducah in their damaged condition, from their market value in good condition, as found in the answer to the seventh issue, as above stated, leaves an amount largely in excess of the amount for which the judgment was entered. This would be correct if the' issue of the market value of the apples at Paducah had been properly submitted, so that we are brought to the consideration of appellant’s assignment to the effect that the value of tlie apples as they might be sold at retail does not furnish the correct basis for' determining the value of the car of apples. An employé of the plaintiff and one of his witnesses testified that $1.25 per bushel was the price at which they were peddling out such apples in good condition at Paducah.

It is not reasonable that the value of this quantity of apples could be fairly said to be the pricé at which they might be sold at retail in small quantities by the bushel, dozen, etc., for certainly there would be some expense, loss, or risk of loss, etc., in peddling out and disposing of a carload of apples in small quantities, and where, as in this instance, the plaintiff did not receive the goods in their damaged or worthless condition at all, so that the expensé of retailing them was no.t incurred, we think the market value of the apples, if sold at retail, would not be the proper measure of recovery. Tucker v. Hamlin, 60 Tex. 171; T. & P. By. Co. v. Payne, 15 Tex. Civ. App. 58, 38 S. W. 366; Schoolher v. Hutchins, 66 Tex. 324, 1 S. W. 269; Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S. W. 787; Virginia Eire Insurance Co. v. Cannon, 18 Tex. Civ. App. 588, 45 S. W. 948; Heidenheimer v. Schlett, 63 Tex. 394; Cincinnati Ry. Co. v. Hansford, 125 Ky. 37, 100 S. W. 251.

“The measure of damages in a case of this kind is the value of the goods in the exact condition they were in at the time of the conversion, with legal interest from the date of the conversion. The proper measure excludes ■ any estimate of profits to be realized from sales at retail, and in a condition different from that in which they were at the time of conversion. Tucker v. Hamlin, 60 Tex. 174. This measure does not exclude the enhanced value which may have attached to the goods at the place of conversion over what may have been their purchase price in the distant market in which they may have been bought, though this enhanced value may be properly described as profit; but the value recovered must be measured by the exact condition of the merchandise at the time and the place of conversion. Blum v. Merchant, 58 Tex. 404. The retail price, however, cannot properly measure the value. ‘Where a quantity of merchandise is sued for, the retail price would be unjust; for the merchant, in fixing that price, takes into consideration, not only the first cost of the goods, but store rent, clerk hire, insurance, and a probable amount of bad debts, and adds to all these a percentage of profit.’ 3 Suth. Dam. 1098, citing' Heidenheimer v. Schlett, 63 Tex. 394.”
“It is error to admit evidence of what might be realized from a sale of the goods at retail, or of the profit to be thus derived. Miller v. Jannett, 63 Tex. 87. It is also improper to admit evidence as to what the goods would have sold for in bulk at public auction, as, if thus sold, their true value might not be approximately realized. Schoolher v. Hutchins, 66 Tex. 332, 1 S. W. 266. In the case just cited, our Supreme Court approves a charge submitting, as a proper measure of damages, the reasonable value of the goods in cash at the time of their conversion, with legal interest, holding that such an instruction ‘excludes the idea that the jury were at liberty to estimate the value of the goods at such sum as they might subsequently have been sold for at retail, in the ordinary course' of a retail mercantile business.’ ” T. & P. Ry. Co. v. Payne, 15 Tex. Civ. App. 60, 38 S. W. 367.

We therefore conclude that the verdict of the jury furnished no basis on which a judgment could be entered .and the case must be reversed for this reason.

The apples were refused by the appellant upon arrival at Paducah, and the railway company, after the advertisement required by law, sold them at auction, for the sum of $20. Appellant contends that since it thus appears that the apples were not wholly worthless, plaintiff could not recover anything.

It is a correct proposition that if the apples were not practically worthless it was plaintiff’s duty to have accepted them upon arrival at Paducah, and if the refusal to accept the apples was wrongful, then the plaintiff should suffer the loss incident to the further holding of the apples until they could be legally disposed of by the railway company. St. L..& S. W. Ry. Co. v. Burras M. & E. Co., 168 S. W. 1028; St. L. & S. W. Ry. Co. v. Cates, 15 Tex. Civ. App. 135, 38 S. W. 648; Railway Co. v. Merc. Co., 104 S. W. 1072; Baumbach v. G., C. & S. F. Ry. Co., 4 Tex. Civ. App. 650. 23 S. W. 693; G., C. & S. F. Ry. Co. v. Pitts, 37 Tex. Civ. App. 212, 83 S. W. 727; Corpus Juris, vol. 10, pp. 309, 404. But it would not necessarily follow that plaintiff could, in such event, recover nothing, as the suit is not for conversion strictly, but on allegations of negligence in transportation resulting in damage which plaintiff alleged rendered the apples wholly worthless. Under such allegations, if the proof should show that the apples were not practically worthless, plaintiff could still recover as damages the difference in the value of the apples in the condition in which they should have arrived and in their condition at the time of their arrival and tender to the plaintiff.

The court instructed the jury that “the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence, and on the defendants to prove their defense by the preponderance of the evidence,” and appellant assigns error on this charge.

The burden is upon the plaintiff to establish the issues upon which he relies to entitle him to recover, and is upon the defendant to establish the affirmative defenses relied upon to defeat the recovery. Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593.

Such charge as given, however, would be apt to be confusing to the jury as it might deprive the defendant of the benefit of its general and special denials, which do not constitute affirmative matters of defense, and might lead the jury to conclude that the burden as to the plaintiff’s right to recover would shift upon his making a prima facie case by his own evidence, which would be an incorrect application of the law. Kirby Lumber Co. v. Stewart, 141 S. W. 295.

It was shown that after the application of the $20 realized by the railway company on the sale of the apples there was due a balance of $145.60 freight charges on the shipment, and the railway company, by a cross-action, prayed for judgment for this amount. Upon the trial, the railway company will be entitled to recover the unpaid freight. If plaintiff should recover damages, such recovery may be offset by the amount due as freight charges, with judgment against the party owing the other after offsetting the one item against the other.

It will not be necessary to consider other questions presented by other assignments as they are not likely to arise on another trial.

Reversed and remanded.
      ijfetFo’r o tiler eases see same topic and-KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    TEXAS & N. O. R. CO. v. LOVETT.
    (No. 270.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 12, 1917.
    On Motion for Rehearing Dec. 12,. 1917.)
    Railroads <⅜=>440 — Injuries to Animals— Pleading.
    Where a railroad has its right of way properly fenced, it is necessary, to admit proof that hogs were killed on the track, to allege' that the railroad was negligent.
    Appeal from Liberty County Court; C. W. Smith, Judge.
    Suit by J. A. Lovett against the Texas <& New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Orgain, Butler & Bolinger, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. C. H. -Cain, of Liberty, for appellee.
   BROOKE, J.

This suit was originally filed in the justice court at Liberty, Liberty county, Tex., and was a suit against defendant for damages for the alleged killing of certain hogs by the trains of defendant. In the justice .court judgment was rendered in favor of the plaintiff for $197. Defendant appealed to the county court of Liberty county, and upon a trial in the county court before a jury, on January 29, 1917, a verdict was rendered in favor of plaintiff for $185. On the verdict of the jury, judgment was entered in favor of plaintiff for $185 on January 29, 1917. Defendant filed motion for new trial, which was overruled, and filed its appeal bond in due time, and this cause is now before this court for adjudication.

In order that we may ascertain what the pleadings of the defendant were in the courts below, we insert the following, which is all the pleadings, both in the justice court and in the county court:

“J. A. Lovett v. Texas & New Orleans Railroad Company. No. 648.
“In the County Court of Liberty County, Texas.
“In view of the fact that the transcript from the justice court in the above cause has been lost, it is agreed that this action originated in justice court, precinct No. 1, Liberty county, Texas, and that the judgment therein was rendered in favor of the plaintiff against the dé-fenclant on the 20th day of September, A. D. 1916, in the sum of one hundred and ninety-seven dollars ($197.00), and that this agreement shall be filed among the papers of this cause as a part of the proceedings herein in order to show that the county court has jurisdiction of this cause upon appeal from justice court.
“Witness our hands this 28th day of January, A. I>. 1917. O. H. Cain, Attorney for Plaintiff. Stevens & Stevens, Attorney for Defendant.”

This is followed by the following:

“That the defendant, Texas & New Orleans Railway Company, on or about April 11, 191fc>, in the state of Texas, county of Liberty, and on various and different dates thereafter from said 11th day of April, up to and including the 19th day of August, 1915, killed certain hogs hereinafter enumerated, of the value as set forth. That said hogs were killed by being run over and struck by the engines, trains and cars operated upon the tracks of the defendant company, same being in charge and under control of its agents, servants and employés. That the market value of said hogs aggregated the amount of $197.00 (setting out the items).”

The above, as presented by the record in this cause, presents the entire pleadings in the justice court, and, so far as the record shows, is the entire pleading of the plaintiff in the county court. Bond was given and the cause removed to the county court, and so far as this record states, no pleading or notation, was made, either in the justice court or in the county court as to the pleadings further in either of said courts. The testimony shows that the defendant company had its right of way fenced at the place and time of the alleged killing of the hogs. Upon this statement, which is abundantly proved by the evidence in the cause, it was necessary, in order that the plaintiff should prove his cause, that he should allege, both in the justice court and in the county court, that the defendant company was negligent in the killing of said stock. Without such an allegation, proof should not have been heard as to said killing of said stock.

Of course, this court understands that the pleadings may be oral in the justice court, and in an appealed case from the justice court to the county court, that the pleadings may also be oral, but some notation should have been made on the docket of the justice court, or some notation should have been made in the agreement with reference to the absence of the justice docket, on account of being lost or mislaid, at least showing in some sort of way, affirmatively, what was pleaded in the county court with reference to said matter. This court cannot presume, in the absence of such notation or pleading, which is of record in some way, what the pleadings of the plaintiff were in the county court, and is not authorized, in the absence of some record of some kind pointing out that such pleadings were had in the county court, to presume what such pleadings were. It is to be regretted that in the agreement which has been heretofore set out that the parties did not in some way indicate whether or not the plaintiff in the justice court made pleadings with reference to alleged negligence on the part of the defendant company, and it is much more to be regretted that some instrument should not have been filed in the county court undertaking in some way to set out what the pleadings of the parties were in the county court. Therefore, in the absence of an affirmative statement in the record of this cause .that such pleading was had, this case, necessarily, will have to be reversed and remanded for a new trial.

While the writer of this opinion may feel sure in his own mind that learned counsel for plaintiff used the necessary diligence in his pleading in the justice court and in the county court, still this court, in the absence of affirmative showing that pleading was had in either court setting up negligence on the part of the company, cannot presume such things, but, as above stated, this court can only review causes upon the record as brought to this court.

In the brief of appellant, emphatic objection is made to the consideration of any portion of appellee’s brief, wherein appellee’s counsel states six grounds of negligence, which appellee’s counsel says were stated in open court before the cause' came to trial. In other words, appellee’s counsel sets out, either from memory or otherwise, what he» says were the oral pleadings upon which the case was tried. Appellant does not undertake to say, as a fact, that appellee’s counsel did not plead orally in the county court, but the writer of appellant’s brief states that he did not try the ease in either the justice or county court, and does not know what transpired in those respective tribunals.

As heretofore said, if any oral pleadings were had in the county court, the duty devolved on appellee’s counsel to see that a memorandum of such pleadings was noted on the docket, and that they were carried forward into the transcript on appeal, and this court, in the absence of any such showing, cannot consider what appellee’s counsel states in his brief was done and said orally in the justice and county court, and of which there is no record on this appeal. Appellant’s counsel very justly say that if the position were taken by appellee, even if it was agreed in open court between plaintiff and defendant, that the defendant was liable for killing the hogs, and that the only question in the case was the value of the animals, but that nowhere in the transcript was such an agreement reflected, that this court would be without power to consider such a statement, as much so as statements which were incorporated in the brief of ap-pellee.

As we have said before, however much we may regret these matters, the fact remains that there is no action left to this court, save and except that this cause be reversed and remanded to tlie lower court for a new trial.

HIGHTOWER, O. J., did not sit in this case.

On Motion for Rehearing.

ICING, J. I agree that this case should be reversed, but I do so solely because the evidence does not show negligence. It is shown by the record that appellant’s track was fenced against hogs. It therefore became necessary for appellee to prove negligence as to the killing of the hogs sued for. I have examined this record carefully, and am unable to find proof of any negligence upon the part of appellant. We are left in the realm of conjecture as to the manner of the death of the hogs. No witness testified that he saw how they were killed.

I am unwilling, however, to subscribe to that part of the opinion which holds that the record in an appeal to this court of a case originating in the justice court must show affirmatively what was pleaded in the justice as well as in the county court. In the absence of any pleadings upon the part of the plaintiff, where the facts proven would justify recovery, this court will presume that proper oral pleadings were had in the lower courts in a case originating in the justice court, and if written pleadings were had in the justice court and the facts proven would justify recovery, but the written pleadings do not state a cause of action, this court will presume that additional oral pleadings were had in the justice court to justify the introduction of the testimony, unless the record affirmatively shows that such oral pleadings were not had. Article 2326, Vernon’s Sayles’ Texas Civil Statutes; Bowman v. Southwestern Land Co., 107 S. W. 585; Loomis v. Broaddus & Leavell, 134 S. W. 743; Amarillo Com. Co. v. Railway Co., 140 S. W. 377; Railway Co. v. Gladish, 175 S. W. 863; Midkiff & Caudle v. Johnson Co. Savings Bank, 144 S. W. 705; Heidenheimer, Strassburger & Co. v. Railway Co., 197 S. W. 886.
      <Snr>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    STOCKING v. LAAS.
    (No. 5928.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.)
    Appeal and Errob <§=>773(2) — Eailube to File Bribes — Dismissal.
    Appellant failing to file brief, and appellee’s brief not complying with Courts of Civil Appeals rule 42 (142 S. W. xiv), there must be a dismissal of appeal, instead of affirmance.
    Appeal-- from Bee County Court; Chas. Troy, Judge.
    Action between A. L. Stocking and C. F. Laas. From the judgment, Stocking appeals.
    Appeal dismissed.
    L. D. Strou,d and Beaseley & Beaseley, all of Beeville, for appellee.
   FLY, C. J.

The appellant has not filed briefs in this court, and appellee has filed a brief which is not in compliance with rule 42 for the government of Courts of Civil Appeals (142 S. W. xiv), and the judgment cannot be affirmed, but the appeal will be dismissed. To have entitled appellee to an af-firmance of the judgment the case should have been briefed by appellee as provided in the rule cited. Suderman v. Dolson, 122 S. W, 401, and authorities therein cited; Southwestern Oil & Gas Co. v. Denny, 187 S. W. 973.

The appeal is dismissed. -


author: MOURSUND, J.

text:
    ARISPE et al. v. CLARK et al.
    (No. 5927.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.)
    Apeeal and Ebbob <§=>773 (2) — Failure to File Briefs — Dismissal.
    Appellant failing to file brief, and appellee’s brief not complying with Courts of Civil Appeals rule 42 (142 S. W. xiv) there must be a dismissal of appeal, instead of an affirmance.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Action between Celso Arispe and others and- Forrest Clark and others. From the judgment, Arispe and others appeal.'
    Appeal dismissed.
    T. Wesley Hook, of Kingsville, and L. Broeter, of Alice, for appellants. Dougherty & Dougherty, of Beeville, and W. R. Perkins, of Alice, for appellees.
   MOURSUND, J.

The appellants have not filed briefs in this court, and appellees 1\⅜>⅛ filed a brief which is not in compliance with rule 42 for the Courts of Civil Appeals (142 S. W. xiv). The judgment cannot be affirmed, but the appeal will be dismissed. In order for the appellees to have been entitled to an affirmance of the judgment, the case should have been briefed by them as provided in the rule cited. Suderman & Dolson v. Carson, 122 S. W. 401; Bowman v. Hoffman, 28 Tex. Civ. App. 311, 67 S. W. 152; American Warehouse Co. v. Hamblen, 146 S. W. 1006; S. W. Oil & Gas Co. v. Denny, 187 S. W. 973; Stocking v. Laas, 199 S. W. 500, this day decided by this court.

Appeal dismissed for want of prosecution.