author: LANE, J.

text:
    TAYLOR v. IOWA PARK GIN CO. et al.
    (No. 7473.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1917.)
    1. Libel and Slander @=38(3) — “Privileged Publication” — Pleadings in Civil Actions.
    Pleadings in civil actions are “privileged publications” and.do not support action for libel.
    [Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Privileged Publication.]
    2. Statutes @=236 — Construction—Remedial Statutes.
    Remedial statutes will be liberally construed to accomplish the legislative purpose, especially as Rev. St. 1911, Final Title, § 3, expressly so provides.
    3. Libel and Slander @=38 (3) — Defense — Statutes — Revision.
    Although Acts 27th Leg. c. 26, defining “libel,” giving newspapers certain defenses, and preserving existing defenses, was incorporated in Rev. St. 1911 without the phrase about existing defenses, such revision did not destroy the previously existing defense that civil pleadings are privileged.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Eustace Taylor against the Iowa Park Gin Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Mart H. Royston, of Galveston, for appel: lant. Mar sene Johnson, of Galveston, and Carrigan, Montgomery & Britain and T. R. Boone, all of Wichita Falls, for appellees.
   LANE, J.

This suit was instituted by appellant, Eustace Taylor, against the Iowa Park Gin Company, a corporation, and H. B. Hines, C. H. Clark, and R. L. Fowlkes, to recover damages in the sum of $25,000 for libel, alleged to have been published by defendants of and concerning him.

Appellant, as plaintiff in the lower court, alleges in substance that defendants, and each of them, foo* the purpose and with the intent to injure him, did falsely, maliciously, wantonly, and recklessly publish and circulate in Galveston county, Tex., a malicious libel of and concerning him, in this, to wit, that in a certain civil suit pending in the district court of said Galveston county, wherein the Iowa Park Gin Company sued W. L. Moody & Co., a .firm composed of W. L. Moody, 'Sr., and W. L. Moody, Jr., for damages by reason of an alleged fraudulent sale of 1,603 bales of cotton shipped by the Iowa Park Gin Company to W. L. Moody & Co. for sale ■ for a commission, said Iowa Park Gin •Company filed its petition and therein, among other things, in substance alleged that the defendants Moody kept and retained the possession of said cotton for the Iowa Park Gin Company until the 7th day of August, 1913, at which time the Moodys, without any direction on authority from the Iowa Park Gin Company, and over its protest, sold or pretended to sell said cotton at and for the price of 11 ½ cents per pound, and over the protest of the Iowa, Park Gin Company delivered the same to the purchaser ; that 'the Iowa Park Gin, Company was informed and believes and alleges that said cotton was sold by said Moodys to one Eus-tace Taylor (plaintiff in the present suit) at and for 11 ½ cents per pound, and said sale was made on the 7th day of August, 1913; that on said day on which, the cotton was sold, and on. the day before said sale, middling cotton was quoted at Galveston, Tex., and was at that time reasonably worth on the market at Galveston, Tex., llis/ie cents per pound, and the cotton of the Iowa Park Gin Company was on the day the same was sold and on the day previous to said sale worth at least the sum of llis/i6 cents per pound; that prior to such sale the agent of the Iowa Park Gin, Company informed the said W. L. Moody & Co., the defendants in said suit, that there were several cotton buyers in Galveston, and among others Harris, Erbe & Co., Inmans-Nelms & Co., Robert M. Harris & Co., who had expressed a desire to bid upon said cotton and informed the defendants that he had promised them an opportunity to bid on said cotton when the same was offered for sale.

Notwithstanding the foregoing facts, said defendants on said 7th day of August, 1913, sold said cotton, as the said Iowa Park Gin Company is informed and believes, to one Eustace Taylor without giving any of the parties above named, or any other cotton buyers in Galveston, an opportunity to bid upon same, and sold said cotton, not upon its merits, but sold the same “hog round,” as above alleged, and without soliciting or attempting to secure bids or offers of said cotton from any other person except the said Eustace Taylor.

The Iowa Park Gin Company further alleged upon information and belief that said cotton was sold to Eustace Taylor pursuant to an agreement and conspiracy entered into between the said W. L. Moody & Co. and the-said Eustace Taylor for the fraudulent purpose of depriving the plaintiff Iowa Park Gin Company of the difference between the price for which said cotton was sold and the fair value thereof, and that in making said sale to Eustace Taylor the said defendants did not act in good faith and did not act for the best interest of the Iowa Park Gin Company, but acted in their own interest and in the interest of said Eustace Taylor.

In other words, the allegations made in the petition in said suit are made the basis for plaintiff’s! suit in this cause. It being further alleged by plaintiff that defendants H. B. Hines, C. H. Clark, and R. L. Fowlkes conspired and confederated with the Iowa Park Gin Company in its suit against the Moodys and procured and caused the allegations complained of to be made.

All the defendants specially excepted to plaintiff’s petition as follows:

“Said defendants specially except to plaintiff’s petition, and say the same is wholly insufficient because it appears from said petition that the alleged libel which is the basis of the plaintiff’s suit was contained in the petition filed by the Iowa Park Gin Company against W. L. Moody in cause No. 30487 in the district court of Galveston county, Tex., and therefore said matter complained of as libelous is absolutely privileged and cannot be the basis of an action for damages, and of this the defendants pray the judgment of the court.”

The court sustained said exception^ and upon the refusal of plaintiff to amend his pleadings the cause was by the court dismissed.

By the- first assignment it is insisted that the trial court erred in holding that the allegations of the petition made the basis of appellant’s cause of action were privileged and could not be the basis for a suit for libel, because the same was contained in a pleading filed in a civil suit pending in a court of competent jurisdiction, for the reason: (1) That appellant was not a party to the suit in which said petition was filed, and (2) because under the law of the state the pleadings in a cause pending in a court of competent jurisdiction are not privileged, and may constitute the basis for a suit for libel.

The contention of appellant is that prior to 1901 there was no statute in this state defining libel, and that prior to that time the common-law definition of “libel” and common-law defenses obtained. That the Twenty-Seventh Legislature of 1901 passed an act (Acts 27th Legislature, p. 30), which, after defining libel, among other things, provides for certain defenses as follows:

“Sec. 3. The publication of the following matters by any newspaper or periodical, as defined in section 1, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice: (1) A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so order's; or any other official proceedings authorized by law in the administration of the law. (2) A fair, true and impartial account of all executive and legislative proceedings that are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees. (3) A fair, true and impartial account of public meetings, organized and conducted for public purposes only. (4) A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.
“Sec. 4. Nothing in this act shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel, nor shall this act affect any suits now pending, or that may hereafter be brought upon a cause of action arising prior to the taking effect of this act.”

That this act remained in force from its passage in March, 1901, until the adoption of the Revised Statutes of 1911. That in that year the codifiers, in their work of revision, carried forward and made a part of the Revised Statutes of 1911 (article 5598), only so much of section 4 of said act which reads as follows:

“Nothing in this chapter shall be construed to amend or repeal any penal law on the subject of libel.”

That it was clearly the purpose and intention of the codifiers who arranged the Civil Code of 1911, and the Legislature of 1911 ■ which adopted the same, to omit and repeal so much of section 4 of the act of 1901, supra, as was not carried forward and embraced in the Revised Statutes, and that since the provisions of the Revised Statutes took effect in March, 1911, the only defenses which may he pleaded to an alleged libel are those provided by the Acts of the 27th Legislature of 1901, and which were carried into the Revised Statutes of 1911. It is his contention that while newspapers and periodicals are privileged to publish and circulate and send •broadcast, without malice, any fair and impartial account of proceedings in a court of justice, or any other official proceedings authorized by law in the administration of the law, etc., regardless of the effect such publication may have upon the character, feelings, or property of another, those who institute such proceedings in said courts of justice, or who institute any other official proceedings authorized by law in the administration of the lavt, are not privileged to allege in such proceedings matter which may injuriously affect the person or property of another, regardless of whether such allegations were pertinent and relative to the issues involved or not.

Such contention is wholly untenable. If such contention is the law, then one who files a civil suit in a court of justice against another to recover a wrong which he honestly believes he has suffered at the hand of the person sued does so at the risk of being sued for libel based upon tbe allegations of bis petition. Tbe law recognizes that tbe courts could not be freely resorted to if tbe allegations of a petition could be regarded as actionable. If it could be so, then in tbe end it would only be tbe powerful and influential, tbe popular and well beloved, wbo could resort to courts. There would be no cbance for tbe friendless one there. If be bad .property subject to execution, tbe effort to get one injury redressed by suit would simply result in bis suffering more in another action wherein be would be defendant. Such changes could take place in tbe situation of tbe parties as that suit after suit would alternate. It is folly to say to citizens: You are free to and must resort to the courts to settle your disputes, unless you can otherwise civilly settle same, but if we reach tbe conclusion, whether correctly so or not, that your suit was prosecuted with malice and without probable cause, woe unto you, for such would destroy tbe freedom of the citizen to a resort to tbe courts of bis country for redress of a real or fancied wrong.

“Every one is liable to be harassed and injured in his property and feelings by unfounded suits, but this is not an injury for which he can have legal redress.” Smith v. Adams, 27 Tex. 30; 26 Cyc. p. 15.

If this contention of appellant can be sustained, then what is to prevent tbe parties Hines, Clark, and Fowlkes, sued by Taylor in this cause, from instituting suit for libel against him, based upon bis allegation that they confederated with tbe Iowa Park Gin ■Company and caused it to make tbe allegations in its petition complained of? What is there to prevent one suit following the other interminably; each succeeding suit being based upon tbe allegations of tbe former or preceding suit?

If such contention can be sustained, every litigant in a case of fraud, either plaintiff ■or defendant, wbo in bis petition or answer charges the opposite party with a fraudulent •conspiracy or collusion, may be sued for libel based upon the petition or answer, or any litigant, wbo in a divorce suit charges that tbe other party to tbe suit was guilty of adultery with some person not a party to tbe .suit, may be sued not only by tbe opposite party, but a suit by tbe third party, not a piarty to tbe suit, may be maintained, regardless of whether tbe charge was pertinent and relevant or not.

In Ruling Case Law, vol. 17, p. 335, tbe rule is stated to be that statements made by .a party in his pleadings in judicial proceedings are absolutely privileged and can in no case give rise to an action for defamation; that tbe prevailing rule in tbe United States is that such statements are privileged when pertinent and relevant to the subject under inquiry; that tbe question of tbe relevancy or pertinency of matters contained in tbe pleadings, when in issue, is never left to tbe .jury, but is a question of law for the court. As to tbe degree of relevancy or pertinency necessary to make alleged defamatory matter privileged, the courts favor a liberal rule. The matter to which tbe privilege does not extend must be so palpably wanting in relation to tbe subject-matter of tbe controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not be in every case material to tbe issues presented by tbe pleadings. It must, however, be legitimately related thereto, or so pertinent to tbe subject of tbe controversy that it may become tbe subject of inquiry in tbe course of tbe trial. Tbe fact that tbe person alleged to have been defamed in the pleadings is not a party to the proceedings has been held not to detract from tbe privileged character of tbe publication. The theory of privilege in this connection bias been defended on tbe ground that the pleadings are addressed to tbe court alone and to no other readers.

To more clearly state the exact contention of appellant than we have done heretofore, we repeat bis contention, as follows: He contends that since the Act of the 27th Legislature of 1901 covered tbe entire subject of libel as applied to civil suits, regardless of what may have been tbe rules of tbe common law and decisions of tbe courts on th« subject prior to tbe adoption of tbe Revised Civil Statutes of 1911, it still covers tbe entire subject of libel in such suits, and, as by tbe adoption of said Civil Code that parr of said act of 1901 which provided that nothing in said act should be construed to take away defenses to civil actions for libel which existed theretofore was dropped from tbe law and thereby repealed, there are now no defenses to civil actions for libel, except those specially mentioned in subsections 1, 2, 3, and 4 of section 3 of said Act of 1911, and as a sequence tbe fact that tbe basis for plaintiff’s suit is tbe allegations in a petition filed in a civil suit pending in court, though pertinent and relevant to the matters in controversy, is no longer a privileged matter, and therefore tbe court erred in sustaining defendants’ special exceptions and in dismissing .the plaintiff’s suit.

We have already shown that unquestionably, prior to tbe adoption of tbe Revised Civil Statutes of 1911, from which a portion of section 4 of tbe Act of the 27th Legislature of 1901 was omitted, pleadings filed in civil suits were privileged and were not publications upon which an action for libel would lie.

It is apparent from what we have already said that we think appellant’s contention unsound.

Tbe Act of tbe 27th Legislature of 1901, supra, shows upon its face that it was en-, acted for the purpose of defining libel, and of remedying what tbe Legislature must have deemed an evil. It is a matter of common knowledge that for many years prior to the enactment of said law publishers of newspapers and periodicals were frequently made defendants in suits for libel for publishing accounts of matters thereafter by said, act declared to be privileged. It was that supposed evil that the legislation here under consideration was intended to remedy. It cannot reasonably be supposed that the legislators who adopted the Revised Civil Statutes of 1911 did, or intended to, so change the effect of the act of 1901 as that such law would result in such absurd consequences as has been hereinbefore pointed out; for the evil which would result from such change would be greater than that sought to be remedied by the passage of the original act.

The rule is universal that in construing a remedial statute courts will consider the evil intended to be remedied, and give to the language of the statute a liberal construction in order to accomplish the legislative purpose, and we think such liberal construction should extend to changes made in such remedial statutes, to the end that evils may be lessened rather than multiplied, as would be the result if the contention of appellant is sustained.

Another reason exists for a liberal construction of the statute as it now stands in the Revised Civil Statutes, and that is a legislative declaration contained in section 3 of the final title of the Revised Civil Statutes of 1911, to the effect that the provisions of said statutes shall be liberally construed with a view to effect their object and to promote justice.

We are of opinion that the omission of the codifiers to carry forward and embrace subsection 4 of section 3 of the Acts of 1910, supra, in the Revised Civil Statutes, does not signify that they intended to take away all defenses to civil actions for libel which existed under the common law or those existing under the act of 1901, except those specially-mentioned therein; but we think it obvious that their conclusion was that by the act of 1901 the Legislature passing such act only intended to define and make clear what matters could be published by newspapers -and periodicals without being liable in actions for libel, and, so concluding, neither they nor the Legislature which adopted the Revised Statutes of 1911 saw the necessity of carrying into the statute a declaration that nothing in that act should be construed to take away existing defenses to civil actions for libel.

It is true that in the case of Walker v. San Antonio Light Co., 30 Tex. Civ. App. 165, 70 S. W. 557, and other cases cited by appellant, the court held that it was the manifest purpose of the Legislature in passing the act of the 27th Legislature of 1901, now articles 5595 to 5598, inclusive, of the Revised Civil Statutes, to cover the entire subject of libel as applied to civil suits, regardless of what may have! been the rules of common law and the decisions of the courts on the subject, and it is not our purpose to take issue with such holding, as by section 4 of said act it is specially provided that nothing in that act shall be construed to take away defenses to a civil action for libel which existed prior to the taking effect of such act. But it by no means follows that the court’s rendering those decisions would hold, if the question was presented to them, that by the act of 1901 as it now stands in the Revised Civil Statutes of 1911, all defenses to civil actions for libel, which existed before the adoption of said-statute, are taken away, except those specially mentioned therein. The questions decided by the eases relate solely to what matter could be published by newspapers and periodicals- as privileged matter, and with this question alone before them they held, in substance, that the privileged matter set out in the statute was the only matter privileged to be published by such newspapers and periodicals.

It is apparent from what we have said that we have reached the conclusion that the trial court correctly sustained appellees’ special exception to appellant’s petition. Having reached such conclusion, the judgment of the trial court is affirmed.

Affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    SOUTHERN TRACTION CO. v. FEARS.
    (No. 7804.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1917.
    On Rehearing, Jan. 5, 1918.)
    1. Eminent Domain €=>293(1) — Action fob, Damages — Sufficiency of Petition.
    A petition alleging that plaintiff was the. owner of a lot abutting on a main city street and that defendant built along and over the-street a permanent viaduct in front of the lot at a height of about 25 feet, and which obstructed part of the street, so as to practically destroy the lot for residence or business purposes, without her consent or any compensation, and resulted in damage, stated a cause of action.
    2. Eminent Domain <©=>271 — Construction— Damage to Abutting Property.
    Every abutting owner has an interest in the full width of a street, and, if it is obstructed by a railway so as to damage the sale or rental value of the property, has a right of' action for damages.
    3. Eminent Domain €=>298 — Action for Damages — Evidence.
    In an abutting owner’s action for damages to his property by the construction of a street railroad viaduct occupying part of the street, evidence that it prevented the improvement on that side of the street, or any evidence of special damage to the lot, was admissible on the question of damages.
    4. Eminent Domain <⅞=303 — Measure of Damages.
    In such action, the measure of damages is determined by. the value of the lot immediately before, and its value immediately after, the construction of the railroad.

      On Rehearing and for Additional Conclusions of Fact.
    5. Eminent Domain <s=>300 — Action fob Damages — Instruction .
    In an abutting owner’s action for damages from the construction of a street railroad viaduct occupying part of the street, evidence held, to justify the conclusion of fact made by the Court of Civil Appeals that the structure prevented the building of residences or business houses on the opposite side of the street.
    <⅛ Eminent Domain <⅞=>303 — Injury to Abutting Property — Elements oe Damage.
    In such action, interference, with ingress and egress and with light and air are not the only elements of damages to private property from the structure.
    7. Eminent Domain cgxw69 — Occupation oe Street — Feanchise—Liability eor Damages.
    That a street railroad viaduct raised above ground was authorized by the city council did not absolve the street railroad company from damages resulting from its construction.
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by Mrs. M. E. Fears, prosecuted after her death by T. P. Whipple, executor, against the- Southern Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. D. Gammon, of Waxahachie, and Tem-pleton, Beall & Williams, of Dallas, for appellant. Tom P. Whipple and Supple & Harding, all of Waxahachie, for appellee.
   RAINEY, C. J.

Mrs. M. E. Fears brought this suit to recover damages against appellant for the construction of an interurban railroad track and viaduct in and along Washington street in the city of Waxahachie; she alleging that she owned a lot fronting 48 feet on said street; that said street was one of the most important and prominent business streets and thoroughfares in said city until the construction of said railway tracks thereon; “that the country south of Waxahachie and adjacent thereto is thickly settled country, whose prosperous inhabitants frequently attend said city and do their trading therein, and Washington street leads from the public square of said city and over and across creek in said city, which said creek was spanned by a bridge about 100 yards long, and was, prior to the construction of said railway over and along said Washington street, and over and along said bridge, generally and commonly used by the people living south of Waxahachie in coming to the said city, thereby making the said Washington street a much-used thoroughfare and thus contributing to the value of plaintiff’s property for a good business site, but that the effect of the building of the said railway and viaduct, as aforesaid, and- the operation of cars over the same, as aforesaid, has greatly lessened the travel over the said street, and has almost caused the abandonment thereof by persons coming from the said country south of Waxahachie into the said city, and has caused the abandonment of said street almost entirely by persons driving teams thereon; that prior to the construction of the said railway the east side of said Washington street immediately in front of or facing the said viaduct was valuable business property, and business interests and houses were being builded and extended along the west side of the said street, but that the building of said viaduct and operation of cars thereover, as aforesaid, has almost totally ruined the said east side of said street for business or other purposes especially the property of plaintiff as above described.”

Appellant answered, denying specifically each and every allegation of the petition, and answered specially that it had a franchise from the city council of Waxahachie to construct said railway and said - viaduct and operate same along said Washington street; that the width of said street from curb to curb is 40| feet; said viaduct is built along the east curb and occupies a space of 10½ feet, leaving unobstructed 29 ½ feet on the west side of’the same; that said viaduct just in front of appellee’s lot is about 20 feet high between the piers or columns upon which the viaduct rests and open in front of appellee’s lot and through which traffic can freely pass; that appellee’s lot is vacant and has always been, and is of greater value since the building of the said railway than just before; that the railway serves as a street railWay through the city of Waxahach-ie ; that its line from Dallas to Waco is operated as a through line by electricity for the purpose of transporting passengers, for carrying baggage, trunks, etc.," using attractive cars, known as express cars, running two to four cars a day, ajad with which express matter is carried; that said railway is not an additional servitude upon the street as a steam railroad; and that for this purpose it is necessary that the public square and Washington street be occupied, which is usual and customary throughout the country, and results in great benefit to the citizens of Waxahachie and vicinity in bringing people to Waxahachie, and adds greatly to the value and prosperity of the community and without any detriment to any one.

After bringing suit Mrs. Fears died testate, leaving T. P. Whipple independent executor, who duly qualified and prosecutes this suit by proper amendment. The case was tried and special issues were submitted to a jury, whose answers were returned, and the court rendered judgment for appellee.

The first assignment of error is:

“The court erred in rendering judgment upon the findings of the jury, because even with such findings, under the pleadings and the undisputed proof, plaintiff was not entitled to recover, and the verdict and judgment were contrary to the Law and evidence, and are not supported by the evidence.”

A charter was granted by the state of Texas in 1912 to construct an interurban railroad; from Dallas to Waco through the city of Waxahachie, which it so constructed. It procured a franchise from the council of said city to construct said road over and along Washington street, which runs practically north and south; also to construct a viaduct over certain steam railroad tracks and Waxahachie creek, which runs through said city across Washington street, said viaduct being for the purpose of operating the electric railway. Washington street was 40 feet wide from curb to curb, and: said road was built along the east side of said street near the curb, and occupying about 10½ feet of space, leaving 29½ feet on the west which was unobstructed and was paved even under the viaduct. The viaduct was built on piers about 20 feet high, and was open for a considerable distance, especially in front of plaintiff’s property, through which traffic could pass. Plaintiff owned a vacant lot fronting 48 feet on the west, side of said street, which was not suitable for residences and was suitable for business houses, such as warehouses, blacksmith shops, or like structures, wagon yards, etc. The structure prevented the building of residences or business houses on the east side of the street, and plaintiff had no interest on said east side. Traffic was diverted to some extent from said street by the building of the viaduct; to the street just west. Plaintiff’s lot was vacant, and had been a long time with no structure thereon. Said structure was properly built under the supervision of the city engineer and operated with only the necessary noise incident to such railroads.

On the question1 of damages the testimony of the witnesses was conflicting, but there was sufficient" to sustain the amount found by the jury. .

The proposition submitted by appellant under the fifst assignment of error is:

“.Where, under the material, undisputed, and controlling facts in the case, plaintiff has no cause of action, the court should render a-verdict .for the defendant, or instruct the jury to do so. This is essentially true where, as in this case, the only issue (so called) submitted to the jury was as to the measure of damages, the court reserving to itself the question of liability. Hence if upon consideration of the undisputed facts plaintiff does not show a right to recover, then the court necessarily erred in rendering judgment that plaintiff should recover.”

This proposition, in effect, presents for the first time a general demurrer to plaintiff’s petition. If such a demurrer had been presented below should it have been sustained? If so, the proposition is correct as a legal one, and the judgment should be reversed and the cause dismissed. We, however, do not believe that the petition fails to state a cause of action.

BThe appellee alleged, in substance:

“That appellee was the abutting owner of a lot on Washington street in Waxahachie, a city of 10,000 inhabitants; that said lot was on one of the most prominent streets in the city; that appellant, about September, 1913, built along and over said street a high bridge or viaduct, which was permanent, and extended several hundred yards along said street and in front of .the lot of appellee, at which point the viaduct was about 25 feet high and completely obstructed about one-half of the street, and operated cars over said viaduct every 30 minutes; that said viaduct was a nuisance in said street and practically destroyed the same and the lot of ap-pellee for either residence or business purposes ; that the construction of the said viaduct was without the consent of appellee, without compensation to her, and was wrongful and unlawful and her lot had been damaged thereby $3,-000; that prior to the construction of the said railway the east side of said Washington street immediately in front of or facing the said viaduct was valuable business property, and business interests and houses were being builded and extended along the west side of the said street, but that the building of said viaduct and operation of cars thereover, as aforesaid, has almost totally ruined the said east side of said street for business purposes, especially the property of plaintiff as above described.”

These allegations show that appellee had suffered damage from the building of the railway by lessening the value of the lot, and it was so found by the jury, which made the appellant liable and justified the court in so finding.

In Rowell v. Railway Co., 104 Tex. 219, 135 S. W. 1153, 46 L. R. A. (N. S.) 615, where a street was obstructed, the travel was diverted, and a merchant’s trade was lessened thereby, the court, speaking through Mr. Chief Justice Brown, citing article 1, § 17, of our Constitution, said:

“No person’s property shall be * * * damaged for * * * public use without adequate compensation being made, unless by the consept of such person”

—and quoting from Lewis on Eminent Domain, par. 354, page 646, as follows:

“The conclusions thus stated in the first edition have been verified by numerous decisions since rendered, and, we believe, without any material dissent, except in the case of Missouri, as shown below. If a street or public way communicating with plaintiff’s premises is obstructed elsewhere than in front of the plaintiff’s property, as by a viaduct or bridge, or approach thereto, or by a railroad crossing a street in a cut or on an embankment, or otherwise, and the result of such obstruction is to render such property less valuable either to sell or to use, then the property is damaged, and compensation may be recovered to the extent of the depreciation”

—and said:

“The ownership of the lot abutting upon the street carried with it as property the right of free and unimpaired access thereto and egress therefrom, and whatever impaired that right and" caused a depreciation of the value of the lot constituted damage to the lot within the meaning of the Constitution. O’Brien v. Central Iron Co., 158 Ind. 218 [63 N. E. 302, 57 L. R. A. 508], 92 Am. St. Rep. 305; Gulf, C. & S. E. R. R. Co. v. Fuller, 63 Tex. 467. It was not necessary that the obstruction should be in front of or near to plaintiff’s property, but the test of the right to recover in this action is: What effect did that crossing and the condition in which it was have upon the value of the plaintiff’s property and upon the exercise of his right of egress and ingress?”

Every property owner whose property abuts on a public street has an interest in the full width of such street; if such street is obstructed by a railway in such a manner as to damage the sale or rental value of such property, has his recourse for damages: Here, the railway and viaduct occupied a part of said street, which was an obstruction to that extent. It diverted to some extent travel from Washington street and prevented the east side of same, opposite appellee’s lot, from being built up and improved, which affected appellee’s lot, and the jury found that it was damaging to appellee’s lot.

The cases of City of Texarkana v. Lawson, 168 S. W. 867, and Railway Co. v. Hardin, 168 S. W. 1017, follow the rule announced in Powell v. Railway Co., supra, all of which sustain the doctrine that whether such structure in the street under the circumstances damages abutting lots is a question for the jury. In the case of Burton Lumber Co. v. City of Houston, 45 Tex. Civ. App. 863, 101 S. W. 823, the jury found, under the evidence, against the abutting owner, and the case was affirmed by the appellate court, but we apprehend had the jury found for the abutting owner a like result would have followed.

Complaint is made by appellant to the admission of the testimony of T. P. Whipple, and other parties,'for the reason that such evidence would not be considered as a basis for damages and submits the following proposition :

“The fact, or supposed fact, that the construction of the viaduct upon the east side of Washington street would prevent _ the erection of business houses on the east side of the street by the property owners thereof, and that by reason of such failure the value of plaintiff’s lot on the west side of.the street was decreased ⅛ value is not an element of damage to be considered by the jury in arriving at the damage to which plaintiff was entitled. Such testimony is purely speculative, vague, and remote and highly prejudicial, and the objection urged to the introduction thereof should have been sustained.”

The proposition submitted indicates the nature of the testimony, with the exception of Whipple, who further testified that the structure was unsightly. If the building of the viaduct had the effect of preventing the improvement of the east side of said street, as testified to, it would be proper for the jury to consider it in determining the damages resulting therefrom to appellee’s property. In Railway Co. v. Hardin, supra, the court said:

“It is immaterial how important to the public the building of this viaduct may have been; that fact is no defense against the claim for damages by a private individual who has sustained special injury by reason of its construction. Powell v. Ry. Co., 104 Tex. 219, 135 S. W. 1153, 46 L. R. A. (N. S.) 615.”

So whatever act in building the viaduct carried special damage to appellee’s lot is legitimate evidence, and we are of the opinion that there was no error in admitting said testimony.

Complaint is made of the court’s refusal to submit to the jury the following special charge, viz.:

“You are charged that if the jury believes from the evidence that plaintiff’s property, being said lot described in plaintiff’s petition, is worth as much now as it would be worth if the defendant’s railway was not built and operated on Washington street in the manner that it has been and is being done, you will answer special issue No. 3, submitted to you by the court, in the negative (that is, ‘No’).”

íhis instruction was asked in lieu of issues 1 and 2 submitted by the court, to which complaint is also made. Said issues, in effect, asked the jury what the value of the property was immediately before and immediately after the construction of the railway.

There was no error in refusing the special charge and in submitting issues 1 and 2, for the measure of damages is determined by the value of the lot immediately before and its value immediately after the construction of said railway. Burton Lumber Co. v. City of Houston, supra.

The verdict of $500 is attacked as excessive, but no passion or prejudice is shown in its rendition. It is much less than could have been assessed from the evidence. The evidence on the whole case supports the findings of the jury, and, as it is strictly a fact case and the jury having found in appellee’s favor, the judgment is affirmed.

Affirmed.

On Rehearing and for Additional Conclusions of Fact.

The appellant complains of the ovérruling of its first assignment of error, and says that in the opinion our statement of the charging part of the petition in question in the latter part of it (the last seven lines) failed to show whether or not it is a quotation from the petition, or whether it was a conclusion of the court. The part objected to is a quotation from plaintiff’s petition, and is not a conclusion of this court.

It is also objected that in our conclusion of fact we used this language:

“The structure prevented the building of residences or business houses on the east side of the street, and plaintiff bad no interest on said east side.”

In reference to this finding we think we were justified in so finding from the following testimony:

“T. P. Whipple testified that the viaduct began at Madison street in Washington street, on solid cement, and continued south 120 feet gradually rising on said cement till the iron structure began, and then for some distance there are iron girders, and right in front of this particular lot there were no girders from one post to the other; it is open; there are girders above that though, right straight through, running back so as to strengthen the structure; the crosspieces of iron and ties and rails are put on top of the structure. It is permanent. It is a very unsightly structure and immediately in front of the building, if you would put one up, you could not look out the front without seeing this unsightly structure. It has destroyed all possibility of any kind of business ever being done on the left hand side of the street, where the viaduct is. There are stringers along down the viaduct till it gets in front of the lot in controversy, then there is an open space at that point, a space in there right on the tracks of the Trinity & Brazos Yalley Ry. Now, this lot is right across thefo and there is no way to get into those houses (speaking of houses on the east side of the street) except to go right under the viaduct, and you could only go on foot; you could not drive in under there. It closes up the fronts of those houses. The overhead trains frighten teams. I have seen them frightened; I think the travel has been decreased. The retail department on 'that street is not accessible as it was before the construction of the interurban. Loading and unloading goods would be dangerous. Passenger cars, express and freight cars, and work trains are run over the appellant’s railway and over the viaduct. Appellant is a common carrier of passengers and freight for hire, using this viaduct for that purpose. I have shipped some little freight over the road. The lot in controversy is a business lot. Before the viaduct was constructed there was some business there. The travel on a street affects the rental value of property. The more travel there is the more desirable the property is. The travel on that street has decreased since the building of the viaduct sufficient to impair the value of ■ that lot.”

Will Hancock testified, as property owner on said street, and interested in its development:

“That the value of the lot in question was, before building of the viaduct, $10,000, and that its value depreciated about one-fourth after the building of the viaduct; that a man would not want to buy that property for an investment with that viaduct in front of it, for it affects the value of the property, and I would not want it. The 48 feet fronting on Washington street could not be used at all, other than as an approach to the part fronting on Rogers street. The viaduct narrows the street and that has a tendency to decrease the value of property facing it. No business houses have been built on the east of the street along the viaduct since it was built, and. the Earley blacksmith shop has been moved off — the viaduct is right up against the sidewalk, on the east side of the street. The traffic has been decreased on Washington street since the building of the viaduct; you seldom see teams on that street now. I think the town was building in a business way down that [Washington] street up to the time the viaduct was built.”

It is urged that the evidence fails to show that ingress and agress to and from the lot and the light and air is interfered with, and appellee is not entitled to recover damages. We are of the opinion that these are not the only elements necessary for a recovery, where damage is done to private property by the construction of a public utility. The appellant, in constructing this viaduct, appropriated 10½ feet on the street which, in effect, obstructed that much of it on the east side, rendering such part useless for service as a street for individuals and vehicles and from the character thereof, lessening the value of appellee’s lot and rendering it undesirable, as numerous witnesses testify. The viaduct was raised above ground and crossed two railroad tracks, and was authorized by the city council, but such permission of the council did not absolve the appellant from such damages it produced by the construction of the viaduct.

As before said, we think from the evidence produced and the circumstances shown the jury were justified in awarding a verdict for damages; therefore the motion for further findings of fact and for a rehearing is overruled.
      (£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    PEARLSTONE v. WESTERN UNION TELEGRAPH CO.
    (No. 764.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 13, 1917.)
    1. Appeal and Error <©=5725(2) — Assignments op Error — Sufficiency.
    An assignment that the trial court erred in its findings of fact presents nothing for review, where the case was dismissed upon demurrer.
    2. Appeal and Error <©=>719(4) — Necessity op Assignments — Fundamental Error.
    Sustaining a demurrer to a petition presents fundamental error authorizing review, without assignment of error, where the judgment recites the ruling, the exception thereto, and notice of appeal.
    3. Telegraphs and Telephones <S=>56(2)— Persons Entitled to Damages.
    A telegraph company is liable for erroneously duplicating a message to plaintiff sender’s agent, although there is no direct contractual relationship between the sender and the company as to the unauthorized message delivered."
    4. Telegraphs and Telephones <©=>56(2) — , Liability.
    Defendant telegraph company which erroneously duplicated plaintiff’s message to his brokers, causing them to use his standing deposit in closing his account, etc., cannot avoid liability upon ground that it is responsible only to the brokers.
    5. Telegraphs and Telephones <§=>65(2)— Messages — Petition.
    Allegations that defendant telegraph company erroneously duplicated a message to plaintiff’s brokers, causing them to close his account, and that plaintiff when notified of such action could not countermand it because of deranged wire service, etc., do not affirmatively show that plaintiff ratified the brokers’ action or failed to minimize his losses.
    Appeal from Leon County Court; C. D. Craig, Judge.
    Action by Barney Pearlstone against the Western Union Telegraph Company. From a judgment of dismissal, plaintiff appeals.
    Reversed and remanded,
    Atkinson, Graham & Atkinson, of Houston, and Wm. Watson and L. T. Dasliiell, both of Centerville, for appellant. Flippen, Gresham <& Freeman, N. L. Lindsley and Dave W. Hardy, all of Dallas, for appellee.
   HARPER, C. J.

Appellant instituted this suit against the Western Union Telegraph Company to recover damages for delivering an unauthorized telegram to the firm of Wilkins & Fenner, cotton commission merchants of New Orleans, La., and appealed from a judgment dismissing the cause to the Court of Civil Appeals, First District, and hy order of Supreme Court, transferred here.

The only question presented for review is, Did the trial court err in sustaining the exceptions to the petition and, upon failure to amend, entering its judgment dismissing the cause? The petition contains the following allegations:

“That on September 29, 1915, plaintiff delivered to defendant for transmission and delivery the following telegram: ‘39 Daru 16 Coll. Sept. 29, 1915. Wilkins & Fenner, New Orleans, Twelve Eighty five sell two dec. buy one dec. on market buy one dec. twenty. Barney Pearl-stone 944.’ Which said telegram was delivered by the defendant to said Wilkins & Fenner in the city of New Orleans, at 9:44 a. m., on the 28th day of September, A. D-. 1915, and instructed them to buy 100 bales of cotton for December delivery at market price and 100 bales of cotton for December delivery at 12.20 cents per pound, for plaintiff. That immediately upon receiving the above message, Charles E. Fenner, a member of the firm of Wilkins & Fenner, proceeded to execute said order by buying 100 bales of cotton at 12.35 cents per pound, and by 9:45 a. m., in confirmation thereof sent the following telegram by the Western Union Telegraph Company to said Barney Pearlstone: ‘B. Pearlstone, Sept. 29, 1915. Buffalo, Tex. Bot one Dec. 35. W. & F.’ And in further execution of said original telegram Chas. E. Fenner as a member of said firm of Wilkins & Fenner purchased 100 bales of cotton for December delivery at 12.20 cents per pound, and in confirmation of said purchase sent the following telegram to said Barney Pearlstone at 10:24 a. m.: ‘B. Pearlstone, Sept. 29, 1915. Buffalo, Tex. Bot One Dec. Twenty. W. & F.’ That at 11:40 a. m., Chas. A. Fen-ner, as a member of the firm of Wilkins & Fen-ner, received the following telegram by the Western Union Telegraph Company: ‘71 FX MQ 16 Collect. Buffalo, Tex. Sept. 29, 1915. Wilkins & Fenner, New Orleans, La. Twelve eighty five sell two deeembers by one december on market buy one december twenty. Barney Pearlstone, 11:40 a. m.’ That said firm of Wilkins & Fenner were struck 'by the similarity of the message received at 11:40 a. m., and that received at 9:44 a. m., which had already been executed and confirmed as above stated, the only difference being that in the message received at 11:40 a. m., the word ‘December’ or ‘Decembers’ was set forth in full, and in the message received at 9:44 a. m., the abbreviation ‘Dec.’ and ‘Decs.’ was used. That Chas. E. Fenner who received the telegram called this to the attention of said W. A. Wilkins. That said Chas. E. Fenner then proceeded to the execution of or following out the instructions received in said message received at 11:40 a. m., and purchased 100 bales of cotton for December delivery at 12.40 cents per pound. 'That said W. A. Wilkins in confirmation of said purchase and as a member of said firm of Wilkins & Fenner then filed with the Western Union Telegraph Company the following telegram at 11:46 a. m.: ‘Barney Pearlstone, September 29th, 1915. Buffalo, Tex. Bot one Dec. 40. W. & F.’ And at the time, to wit, 11:46 a. m., when said W. A. Wilkins placed the above telegram with said Western Union Telegraph Company for transmission to said Barney Pearl-stone, plaintiff, he inquired whether or not in their opinion the said telegram received at 11:40 a. m., was by any possibility a duplicate of the said telegram received at 9:44 a. m. That thereupon the said Western Union Telegraph Company through its officials stated to said W. A. Wilkins, as a member of the firm of Wilkins & Fenner, as aforesaid, that in so far as they were able to tell said telegram received at 11:40 a. m„ was not a duplicate of said telegram received at 9:44 a. m., firstly, because that neither of said telegrams bore the word-‘Duplicate,’ and, secondly, for the reason that the telegram received at 9:44 a. m., came ‘via Dallas,’ whereas the telegram received at 11:40 a. m., came ‘via New Sork,’ which facts are indicated by the letters ‘39 Daru’ on the message received at 11:40 a. m. That said Wil--kins then and there requested the said Western Union Telegraph Company to use its service immediately to ascertain whether by any possibility the said second telegram received at 11:40 a. m., was a duplicate of the message received at 9:44 a. m., and -that said Western Union Telegraph Company has not up to this day replied. That said Chas. E. Fenner at 1:05 p. m., on September 29, 1915, in further execution of said order, received at 11:40 a. m., bought, as a member of the firm of Wilkins & Fenner, 100 bales of cotton for December delivery at 12.20 cents per pound, and in confirmation thereof at 1:06 p. m., he filed with the Western Union Telegraph Company the following telegram:- ‘B. Pearlstone, Buffalo, Tex. Bot one dec. 20. W. & F.’ That after the execution of these orders and the buying of said cotton for account of said Barney Pearlstone, plaintiff, all telegraphic service out of the city of New Orleans was seriously affected by the storm which was then raging, and it became impossible to send any further message over said lines, and that the price of cotton of the New Orleans Cotton Exchange rapidly declined, and at 1:30 p. m., cotton for December delivery was selling at 11.82 cents per pound. That on September 25, 1915, said Wilkins & Fenner had, on instructions received from plaintiff, purchased for his account, the following : 200 B/C December delivery at 11.85⅜ per pound. And on September 29th, as above set forth, had purchased for his account: 100 B/C December delivery, at 12.35⅜ per pound, 100 B/C December delivery, 12.20⅜ per pound. 100 B/C December delivery, 12.40? per pound. 100 B/C December delivery, 12.20? per pound. And that they then held to his credit the sum of $1,082.10. That when' the price of cotton for December delivery declined to 11.82⅜ per pound, the contract loss on said 600 bales, based on the then existing quotations, amounted to about $1,000, including commissions as against a credit as above set forth of $1,082.10. That the said firm of Wilkins & Fenner not being able to communicate by telegram with plaintiff, Barney Pearlstone, in order to request from him a remittance to protect themselves against a further possible decline in the i>rico of cotton for December delivery, they availed themselves of their privilege reserved under contract with said Barney Pearlstone, and sold 600 B/C, December delivery as offsets against the contracts carried for his account, said sales and offsets being made as follows: As an offset against the purchase of 100 B/C December delivery at 11.82⅜ per lb. 9/25/15, sold 100 B/C December delivery at 11.84<⅜ per lb. As an offset against the purchase of 100 B/C December delivery at 12.35 of 9/29/15, sold 100 B/C December delivery at 11.84 per lb. As an offset against the purchase of 100 B/C December delivery at 12.20 of 9/29/15, sold 100 B/C December delivery at 11.84⅜ per lb. As an offset against the purchase of 100 B/C December delivery at 12.40 of 9/29/15, sold 100. B/O December delivery at 11.80 per lb. As an offset against the purchase of 100 B/C December delivery at 12.20 of 9/29/15. Plaintiff says that the loss sustained by him because of the purchase by the said Wilkins & Fenner of 100 B/O December delivery at 12.40⅜ per pound, and 100 B/O December delivery at 12.20? per pound, on instructions contained in the telegram received by the said Wilkins & Fenner .at 11:40 a. m., on September 29, 1915, and the subsequent sale by them as an offset of 100 B/C December delivery at 11.84⅜ per pound, and 100 B/C December delivery at 11.80(⅞ per pound, as above set forth, that the said Barney Pearlstone, plaintiff, suffered a loss of $511.19, including commission and revenue stamps. That if the telegram of September 29th, delivered to said Wilkins & Fenner at 11:40 a. m., on said date had not been so delivered, and consequently the said 200 bales of cotton had not been purchased at 12.40 cents per pound and at .12.20' cents per pound, respectively, the said plaintiff would have had a contract loss of only about $500 (as against a credit of $1,082.10) at the time that December delivery declined at 11.82 cents per pound on September 29, 1915, and that they, the said Wilkins & Fenner, would not then have desired to request a further remittance from the said Barney Pearlstone, and they would not have been compelled to sell for their protection 600 B/C December delivery as above set forth.
“(4) That the 200 bales of cotton plaintiff directed the said Wilkins & Fenner were purchased for Mm by said Wilkins & Fenner for delivery. That ail orders for the purchase or sales of cotton for future delivery were received by said Wilkins & Fenner and executed with the distinct understanding that actual delivery was intended and that the party giving the order so agreed and intended, and obligated himself to make actual delivery.
“(5) And plaintiff agreed and contracted with the said Wilkins & Fenner that all orders which they received for future delivery were accepted by them with the understanding that they may close the transaction without notice when margins deposited were nearly exhausted, the settling of contracts to be in accordance with customs and rules of the New Orleans Cotton Exchange. _ And acting under said contract the said Wilkins & Fenner were authorized and empowered under their contract with plaintiff to close said transaction, which they accordingly proceeded to execute. That within a few days after the said Wilkins & Fenner closed their said contracts with plaintiff by selling his cotton at reduced prices in order to protect themselves, cotton rapidly advanced in price, and by reason of plaintiff’s margin having been reduced and nearly exhausted on account of the losses sustained by him on the 200 bales purchased by the said Wilkins & Fenner, for him, under the above-described telegram, delivered at 11:40 a. m., on the said 29th day of September, 1915, plaintiff has been damaged in the sum of $485._ Because he says that at the time that Wilkins <& Fenner closed out said contract they had in their possession funds belonging to plaintiff in the sum of $570.91, which was more than sufficient to protect them from any loss that might have been sustained by them until such time as the prices of cotton actually did advance, and the said Wilkins & Fenner would have carried plaintiff’s 400 bales of cotton which he had on hand until the market advances to a sufficient price to protect and prevent defendant from any loss by reason of his said actual purchases.
“Wherefore plaintiff prays that defendant he cited to answer this petition, that he have judgment for his damage in the sum of $1,000, for his costs, and for such other and further relief as in law or in equity he may be entitled.”

To this petition defendant answered by general demurrer and many special exceptions.

The first assignment of error urged here is that the trial court erred in his finding of fact. There was no occasion for findings of fact and conclusions of law, for the case was not heard but dismissed upon demurrer. In such eases, the allegations in the petition are taken to be true; 'whilst the as-' signment presents no question for us to answer, we think the sustaining of the demur-, rer presents fundamental error where the judgment recites the ruling, the exception thereto, and the notice of appeal as in this case (Harbinson v. Cottle County, 147 S. W. 719), and the other assignments do not attack all of the exceptions to the petition, and for this reason appellee insists that the judgment should De affirmed. The answer is, if the petition states a cause of action appellant is entitled to have a trial of his case upon its merits, and this we are authorized to determine without assignments of error.

Appellee by exceptions attacked the sufficiency of the allegations of plaintiff’s petition to- be or constitute the basis for a cause of action: (1) Because there is no allegation of facts constituting a contract between plaintiff and defendant for the transmission of the message delivered at 11:40, September 29th, because the sender of the original message would not be liable to pay the losses of the sendee occasioned by the negligent delivery of a duplicate without his authority; that if he has any cause of action, it is against Wilkins & Fenner who without authority from him, closed out his holdings.

There is no question under the law and facts of this case that the sendees, Wilkins & Fenner, in case of personal loss had a cause of action against the appellee by reason of its negligence in sending the unauthorized duplicate message because of the purchases made at a loss induced by the message, but appellee says that, because of the fact that plaintiff did not authorize the duplicate message, there was no< contractual relationship between it and the now plaintiff, and therefore was no obligation to pay the losses sustained in the purchase and sale. To this we cannot give our assent, for the reason that the telegram fully discloses the relationship of principal and agent existing between the parties.

The rule in such cases is well established that it is not a question of mere privity of contract, but the telegraph company owes a public duty to any person beneficially interested in the message, whether the sender or his principal where he is agent, or the receiver or his principal where he is agent. Thompson’s Electricity, § 427; Wells v. Western Union Tel. Co., 144 Iowa, 605, 123 N. W. 371, 24 D. R. A. (N. S.) 1045, 138 Am. St. Repi 317, and Postal Tel. Co. v. Devy, 102 S. W. 134. The liability extends to all persons suffering injury by the erroneous transmission of a telegram, whether there is direct contractual relationship with the company or not, even though they be undisclosed.

Appellee urges the further proposition that plaintiff was not bound to pay the losses for an unauthorized purchase of cotton by his broker; this is a good proposition of law as between the parties, but here the facts alleged are that Pearlstone had a standing contract with Wilkins & Fenner as stockbrokers to use a deposit on hand with them for protection against loss, and to sell for protection, etc., and that by reason of this .erroneous message for which the telegraph company was negligently responsible, the brokers made purchases and sales. The sales were authorized without the first or second message, at a loss, and to cover the loss they expended the plaintiff’s money on deposit with them, but for the erroneous message would not have been done. The sales and the use of the money by the agents were therefore the same, in effect, as if plaintiff himself had done those things. The telegraph company, being the efficient moving cause of plaintiff’s losses, cannot be heard to now say that it is only responsible to the agents.

The further proposition is that because the petition shows that reply messages came from Wilkins & Fenner the same day notifying plaintiff of the purchases, and that he did not immediately repudiate, he thereby ratified the purchases. The petition contains the allegation that the wires were so deranged as that he could not so communicate with them. The fact, as urged by appellee, that the messages were received that day from New Orleans is not conclusive that a message could have been sent there from the point of their receipt; this is a question to be determined by the trial court or a jury.

It is true that appellant was required to minimize his losses by all reasonble means, but the petition does not affirmatively show that he has not done so.

For the reasons assigned, the trial court erred in sustaining the demurrers to the petition. The cause is therefore reversed and remanded for trial upon its merits.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    DICKINSON v. COMSTOCK et al.
    (No. 755.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Judgment <§=>429 — Setting Aside — Geounds.
    A judgment cannot be set aside on ground that judgment debtor had a good defense in the original action, unless an equitable excuse be shown for failure to assert such defense in the original action.
    2. Appeal and Ebboé <g~>1043(7) —• Haemless Eeeoe — Denying Continuance.
    In action to set aside a judgment, denying a continuance requested to secure evidence that plaintiff had a good defense in the original action, is not prejudicial, where no equitable reason for not presenting such defense in the original action was established.
    3. Appeal and Eeeoe <§=>1050(2) — Haemless Eeeoe — Admitting Evidence.
    Admitting evidence not pertinent to' any material issue does not constitute reversible error.
    4. Judgment <§=>429 — Setting Aside — Evidence.
    In action to set aside a judgment on a note, the judgment creditor’s ownership thereof cannot be. questioned without an adequate excuse for failure to raise the point in the original action.
    5. Judgment <§=>429 — Setting Aside — Geounds.
    Defenses which should have been presented in the original action present no ground for setting aside a judgment.
    6. Judgment <§=>419 — Setting Aside — Seev-ICE.
    Where a defendant appeared and answered, judgment against him will not be set aside because ho citation was served upon him.
    7. Exemptions <§=>116 — Levy—Cultivated Lands.
    Cultivated lands may be levied upon after the sheriff has exercised due diligence to have the judgment debtor point out uncultivated lands, -etc., from which to satisfy, the levy.
    8. Execution <§=172(4) — Sale — Injunction.
    An execution sale of cultivated lands will not be enjoined, unless the judgment debtor establishes that he owned personalty or uncultivated lands within - the county at date of application for the writ sufficient to satisfy the judgment.
    9. Execution <§=>171(2) — Sale — Injunction.
    An execution sale of land will not be enjoined because the value of the land grossly exceeds the judgment, since the judgment debt- or, under Rev. St. 1911, art. 3754, can protect himself by requiring sales in 50-acre lots.
    Appeal from District Court, Leon County; S. W. Dean, Judge.
    Action by A. D. Dickinson, Jr., against L. Comstock and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    A. C. Heath, of Ft. Worth, for appellant. W. H. Grove, of Ft. Worth, for appellees.
   HIGGINS, J.

In November, 1914, appel-lee Mrs. L. Comstock filed suit in the district court of Leon county against appellant Dickinson and T. J. Jarnagan, Mrs. V. F. Miller and her husband, C. O. Miller, to recover upon two promissory notes executed by Jarna-gan, payable to the order of V. W. Price, and for foreclosure of vendor’s lien securing the payment of said notes upon land in said county. This suit was numbered 3609. In August, 1915, judgment was rendered therein in favor of Mrs. Comstock against Jarnagan, Dickinson, and V. F. Miller for $S05.32, with foreclosure of lien. The land was sold for an amount insufficient to pay the judgment. Execution was issued for the balance due and placed in the hands of the sheriff of Tarrant county. The same was levied upon cultivated lands of Dickinson. This suit was then brought by Dickinson to enjoin the sale of the lands so levied upon, and to set aside the judgment rendered in cause No. 3609. The cause was tried without a jury, and judgment, rendered in favor of Mrs. Comstock.

Error is assigned to the overruling of a motion for continuance based upon the absence of Mrs. Comstock whom appellant desired to use as a witness. In substance, it is stated in the application that appellant expected to show a good defense to the suit in cause No. 3609 by proving by Mrs. Com-stock’s testimony that the notes sued upon in that ease were not valid demands: First, because they had been paid by one E. J. Smith; second, because said notes were not the property of Mrs. Comstock.

If it were true that the notes had been paid by B. J. Smith, or that Mrs. CC'mstock was not the owner thereof, the judgment in cause No. 3609 should not have been rendered. But it was a matter of defense which should have been made by Dickinson in that cause. A suit to set aside a judgment on the ground that the plaintiff had a good defense to the original action cannot be maintained, unless some reason be offered based upon equitable considerations to excuse the failure to present such defense in the original suit. See cases cited, 13 Michie Dig. pp. 489, 498, 604. The only equitable ground offered by appellant for his failure to present his defense of payment and nonownership by Mrs. Comstock of the notes sued upon in cause No. 3609 is the allegation that appellant’s attorney acted in collusion with Mrs. Comstock’s attorney; but this issue was resolved against him by the trial court, and the evidence abundantly supports the finding. The testimony of Mrs. Comstock was desired not for the purpose of establishing collusion, but simply to show the existence of the defenses. If it had been obtained it would have availed appellant nothing, unless coupled with some equitable consideration excusing the failure to present it in the original suit. Appellant having failed to establish the existence of any equity excusing the failure to offer his defenses in the original suit, the action of the court in overruling an application for a continuance to obtain evidence to show the existence of good defenses is not reversible error.

On May 29, 1912, Y. W. Price transferred in writing to E. J. Smith the two notes upon which Mrs. Comstock sued and recovered in the original suit of Comstock v. Dickinson. Upon trial of the instant case, testimony of two witnesses was admitted to the effect that the transfer in fact was made to J. N. Brooker. It is objected to this testimony that it varied and contradicted the terms of the written transfer. The testimony related to the issue of Mrs. Comstock’s ownership of the notes which was a question which might have been raised in the original suit, but which cannot be raised in this suit in the absence of a good excuse for not presenting the defense of nonownership in the original action. The evidence not being pertinent to any material issue in the present case, its admission does not present reversible error.

Under the sixth, eighth, tenth, eleventh' twelfth, and thirteenth assignments, various reasons are assigned why the judgment in the original action was improperly rendered. They all relate to defenses which should have been presented in that action, and present no ground for setting that judgment aside in this proceeding.

Under the seventh assignment,’it is asserted that the judgment rendered in the original action was void because rendered without service of citation upon Dickinson or appearance. The record shows that Dickinson did appear and file an answer in the cause for which reason this assignment is without merit.

Under the ninth and seventeenth assignments, it is asserted that the evidence discloses collusion between appellant’s attorney and the attorney for Mrs. Comstock in the original action, and by reason of this fraud upon his rights Dickinson was deprived of his opportunity to present his defenses in that case. This was an issue of fact which the court has found against appellant. The evidence supports the finding, and it cannot be set aside by this court.

Under the fourteenth and fifteenth assignments it is asserted that the sale of the lands levied upon should be enjoined for the reason that the sheriff of Tarrant county failed to call upon Dickinson to point .out property which might be levied upon, and the evidence discloses that Dickinson had personal property in Tarrant county sufficient to satisfy the execution and upon which the execution could have been levied, and also had uncultivated lands upon which the execution could have been levied. In reply to these assignments, it is sufficient to say that under the evidence the court was authorized to find that the sheriff exercised due diligence to find Dickinson and have him point out property upon which the execution should be levied, and having failed to locate him, he was authorized to make the levy upon the cultivated lands. We think further that in order to authorize enjoining the sale of the cultivated lands so levied upon, Dickinson in his petition and in his evidence should have pointed out personal property or uncultivated land then owned by him in Tarrant county which was subject to execution sufficient to satisfy the writ. The testimony simply shows that Dickinson owned uncultivated lands in other parts of Texas. Of course, the sheriff of Tarrant county could not levy an execution on lands in other counties, and as to the personal property, the testimony simply shows what personal property Dickinson had at the time the levy was made. It does not show what personal property he had at the time this suit was filed and the trial had. For the reasons indicated, these assignments present no error.

By the sixteenth assignment, it is asserted that the sale of the lands so levied upon should be enjoined because the levy was grossly excessive in that the lands levied upon were of value very greatly in excess of the judgment to be satisfied. By exercising the right granted by article 3764 of the Revised Statutes, Dickinson can protect himself from the consequences of an excessive levy by requiring sale of tbe lands to be made In lots of not less than 50 acres. Nor tbis reason, the excessive nature of the levy presents no ground for enjoining the sale.

Finding no reversible error, the judgment is affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. HUMPHREY et al.
    (No. 7474.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1917.)
    1. Appeal and Error <§=1062(2) — Harmless Ebrob — Refusal to Submit Issues.
    In an action on a fire insurance policy, the refusal to submit a special issue as to whether defendant or any of its authorized agents waived proofs of loss could not have materially affected its rights, where in its brief it repeatedly admitted that proofs of loss were furnished before suit was brought, and there was no complaint that the suit was prematurely brought, nor that the proof as furnished was defective.
    2. Trial 4⅞=350(4) — Special Issues — Action on Insurance Policy.
    In an action on a fire insurance policy, requiring insured to submit to examination under oath by a person named by the company, where the proof was conflicting as to whether opportunity for examination was ever actually afforded the insurance company, a requested issue on this point should have been submitted.
    3. Insurance <§=548 — Prooes op Loss — Examination op Insured.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4884, providing that no action taken by the state fire marshal shall affect the rights of any policy holder or insurer respecting a loss by reason of any fire so investigated, nor shall the result of any such investigation be given in evidence upon the trial of any civil action upon such policy, an examination of insured under oath before the state fire marshal did not satisfy a provision of the policy requiring her to submit to examination under dath by a person named by the insurance company.
    4. Insurance <§=548 — Proops op Loss — Examination op Insured.
    That insured furnished the insurance company with a sworn proof of loss and inventory to which the company made no objection, and in which it pointed out no defects, did not excuse insured’s failure to submit to examination as required by the policy, as doubtless one of the purposes of requiring such examination was to afford the insurer opportunity to contest the proofs of loss.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Julia C. Humphrey and husband against the National Fire Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Mart H. Royston, of Galveston, for appellant. Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellees.
   GRAVES, J.

This suit was instituted in the court below on January 28, 1916, by Julia C. Humphrey, joined pro forma by her husband, Harry Humphrey, appellees, against the National Fire Insurance Company of Hartford, Conn., appellant, on a certain fire insurance policy for $1,500 upon her separate personal property, which consisted of furniture, furnishings, wearing apparel, kitchen utensils, etc., located in her home in Galveston. It was alleged that on January 1, 1916, while the policy was still in force and effect, the dwelling occupied by her was practically destroyed and badly damaged by fire, and that all of her wearing apparel, household and kitchen goods, and other pieces of furniture covered by the policy were totally destroyed, save and except a few chairs and other pieces, which were so badly damaged as then to be worth only the reasonable market value of $35.

The cause was submitted to the jury by the court upon two special issues as follows:

“First. What was the total value of the property covered by this policy in the house at the time of the fire? Answer in dollars and cents.
“Second. What was the amount of loss and damages by fire of the property covered by the policy? Answer in dollars and cents.

The jury answered the first question by saying $3,000, and the second by saying $2,-500. Accordingly the court rendered judgment in favor of appellees against appellant for $1,250, one-half the amount of loss found by the jury, since the $1,500 policy sued upon was for only one-half the total insurance carried upon the property; there being a similar policy for a like amount in another company. From that judgment this appeal is prosecuted.

By the first assignment it is claimed the court committed reversible error in re- • fusing to submit to the jury appellant’s requested special issue as to whether it or any of its authorized agents waived the proof of loss, as required by the policy to be made by the insured; but elsewhere in its brief appellant repeatedly admits that proof of the loss was furnished it by appellees before the suit was brought, and, in fact, bases its third assignment of error upon certain questions as to the contents of and the affidavit attached to the proof of loss as so delivered to it. There is no complaint here that the suit was prematurely brought, nor any that the proof as furnished was defective.

In these circumstances, we cannot see how the failure to submit the question of whether it had waived what it expressly admits it received could have materially affected its rights.' The assignment is therefore overruled.

Under the second assignment complaint is made of the court’s refusal to submit to the jury appellant’s requested special issues as follows:

“(4) Did Julia C. Humphrey ever submit herself to the sworn examination by agents of the company as notified and requested to do?
“(5) If you have answered the foregoing question in the affirmative, then state when, giving the date, and to whom, giving the name of the person to whom she offered to submit herself for examination.”

We think these issues should have been submitted, and sustain this assignment.

In the contract of insurance the appellees had expressly agreed to submit to such an examination; the pertinent provisions in that respect being the following:

■ “The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examination under oath by any person named by this company, and subscribe the same, and, as often as required, shall produce for examination all books of account, bills, invoices and other vouchers or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representative and shall permit extracts and copies to be made thereof.”

And again:

“No suit or action on this policy fc¡r the recovery of any claim shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements, nor unless commenced within two years next after the fire.”

Without attempting to here rehearse it, it is sufficient to say the proof was conflicting as to whether such opportunity was ever actually afforded the insurance company, although it gave Mrs. Humphrey proper notice in advance of its desire to so examine her, and made provision to conduct the examination at the office of Mr. Neynaber in Galveston during the afternoon of January 3d, after the fire on January 1st. Mrs. Humphrey admitted receipt of the notice to appear at Mr. Neynaber’s office for this examination, but she seems not to have reached there, although contending that she went there, and the un-controverted proof showing that on January 5th she did appear before Mr. Pennington, the state fire marshal at Galveston, and was examined under oath by him. This, however, was not the examination! provided for and agreed to be given in the policy; neither did it affect the rights of, nor was it available for use by, either party thereto. Vernon’s Sayles’ Statutes, article 4884.

It thus seems that, whether by accident or design, the contract to afford the examination was not in fact carried out, and, if not, the provision being material, that appellant was thereby deprived of a, valuable right. Ruling Case Law, Insurance, vol. 14, par. 513, p. 1342; note to 52 L. R. A. 425, 426; note to 51 L. R. A. 706.

There is not pretense upon appellees’ part that appellant had waived its right to this examination, and it is no answer to reply, as they do, that they furnished appellant with a sworn proof of loss and inventory one day before filing their suit, and that it neither made objection, nor pointed out any defects therein, because doubtless one of the very purposes of the prior examination it had in vain sought was to afford the insurance company material and opportunity upon which to further contest that proof of loss; for while, as already stated, it had1 not complained of any defects or incompleteness therein, it did contest the truth of its statements, and charged misrepresentation as to the value of the property and the extent of the loss.

While we do not think the evidence was sufficient to require the submission of these last-mentioned issues, made the basis of the third and fourth assignments, since the valuation of household furniture and ladies’ wearing apparel is to a large extent a matter of opinion, the questions thereby presented are not apt to arise upon another trial, and do not reguire further discussion; but, because the court failed thus to submit what by both the pleadings and proof was made a very material issue ⅛ the case, that is, whether or not Mrs. Humphrey had ever submitted herself to sworn examination by the agents of appellant, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

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


text:
    PALO PINTO COUNTY v. BEENE.
    (No. 749.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.)
    1. Contracts <®^211 —Time as of Essence.
    Where plaintiff agreed to begin the work at once and complete the repair of the bridge within 100 days, time was of the essence of the contract, and there could be no recovery thereunder in the absence of pleading or proof showing that plaintiff had been released from its provisions.
    2. Work and Labor <®=>14(3) — Failure to Perform — Quantum Meruit. ■
    Where plaintiff did not repair bridge within time provided by contract, if he could recover at all for what he paid for materials, it would have to be upon a quantum meruit.
    3. Limitation of Actions <@=»49(5) — Money Paid.
    Where, under contract providing that plaintiff should purchase and defendant pay for the materials, plaintiff paid for the materials, the materials became his property, and a suit for money paid therefor was barred, where not brought within two years subsequent to the date of the purchase and appropriation by defendant.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Suit by S. J. Beene against Palo Piuto County. Judgment for plaintiff, and defendant- appeals.
    Reversed and rendered.
    Ritchie & Cousins, of Mineral Wells, and W. E. Smith and J. T. Ranspot, both of Palo Pinto, for appellant. Penix & Miller, of Mineral Wells, and J. L. McCall, of Weather-ford, for appellee.
   HARPER, C. J.

Beene brought this suit against Palo Pinto county for the sum of $2,000 damages for the breach of written contract to repair a bridge, and in the alternative upon quantum meruit for services and labor and material furnished under the allegation that he was discharged without cause. Tried with jury; submitted upon special issues ; and upon their verdict judgment was rendered for plaintiff for $327.60, from which the county has appealed.

The first assignment is:

“The court erred in refusing peremptory instruction for defendant.”

The propositions are that the contract having been breached by not complying with it in the time prescribed, and time being the essence of the contract, he was not entitled to recover upon the contract, and not entitled to recover upon quantum meruit, because he has not pleaded nor proved a good reason for not complying with the contract.

The contract reads:

“This contract and agreement made and entered into this 23d day of June, 1908, by and between S. J. Beene of Harris county, Tex., and hereinafter styled first party, and Palo Pinto county, acting through its commissioners’ court, hereinafter styled second party, witness-eth:
“First party hereby agrees to repair the Brazos River bridge located near the town of Brazos in said Palo Pinto county recently damaged by high water, by replacing the piers on the west side of same with new piers properly located and constructed, to go to a sufficient depth to get a rock or other solid foundation for same, and to construct same of the size and materials same as old piers; the old piers to be removed, and such of the old material therein to be used as may be available for the new work or so much of the old piers may be used in the new work as may be available to restore the bridge to its former proper level and position, and place same in good condition and to repair the trusses where broken or injured, and to place the said bridge in as good condition as previous to the injury. Said first party shall purchase at the cost of second party all materials to be used in said work, to employ all labor necessary in the prosecution of the work, and to do any and all things necessary in the superintendence of said work. He shall furnish his own tools and appliances, necessary for the doing of the work, the second party paying the freight thereon to and from the location of the work. Said work of repair shall be done in a skillful, workmanlike manner and with all reasonable dispatch.
“In consideration of the above, second party agrees to purchase all materials necessary in the construction and repair of said bridge, and to pay for all labor necessary to be employed in said work, and to pay to first party the sum of $5 per day while actually engaged in the work, and the further sum of 15 per cent, commissions on the total cost of the work, not including freight on the tools of the party of the first part, to cover the cost of the use of the tools furnished for the work by party of the first part and his supervision and superintendency of the work; said amounts to be paid during the progress of the work on estimates to be furnished by first party and approved by second party, or its duly authorized agent; except that the said 15 per cent, commission shall not be paid until the completion and acceptance of the work. Provided that the total cost of said work to second party shall not exceed the sum of $4,500.
' “Said first party agrees to begin the work at once and to complete same within the space of 100 days. He further agrees to deposit with second party $500 to secure the proper performance by him of the terms of this contract and his guarantee that said work shall not cost second party more than the sum of $4,500.
“In the event the first party shall do the work at a cost.of $3,500 to second party, then second party shall further pay to first party one-half of the amount saved under $3,500, in addition to. the amount hereinabove named.
“It is further understood that second party shall take the risk of said bridge being damaged or carried away during the progress of .the work by cyclone or an extraordinary rise in the river, or other act of God, the first party to assume risks from other causes. All unused materials or left-over materials after completion of the work shall belong to second party.
“Executed in duplicate this 23d day of June, 1908.”

The provisions of this contract make time the essence thereof, and there are no pleadings nor proof which would relieve the plaintiff from its provisions. Garrison v. Cooke, 96 Tex. 231, 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906. But he pleads that he purchased and paid for certain material which was converted to the use of the county, and that therefore he should be paid for it. The appellant says, by plea of statute of limitations, that, if plaintiff purchased and paid for such material, it was prior to two years before filing this suit; therefore he is barred from recovery.

The item upon which judgment was entered is that submitted by the court in its charge by special issue No. 2, which is, “What sum, if any, did the plaintiff incur and pay out for material, etc., which was necessary and proper in doing the work and repairs on the bridge which has not been paid or refunded to him by the defendant county?” Tire jury answered, “$289.65,” and for this amount the trial court entered its judgment. Without passing upon the question of whether he could properly recover these items upon his plea of quantum meruit, if he can recover the amount for which the verdict and judgment was rendered, at all, it must oe upon his plea of quantum meruit.

If he purchased the supplies and paid for them himself, it was without authority in the contract. The contract provides that he purchase and the county pay, so having purchased and paid for them of his own means, they became his property, and the suit having been brought more than two years subsequent to the date alleged for the purchase and appropriation by the county of any of the items, the statute applies and he is not entitled to recover. Aside from this, the record shows that the original petition was filed January 6, 1911; that it contained no count upon quantum meruit. The petition containing such count was filed March 20, 1916, more than four years after the cause of action accrued. In answer to the question, “Mr. Beene, tell us how much material you had bought that the county had not paid you for up to December, 1908?” he said, “I have nothing in the world to show.” The record, then, is that all the items were barred by the two-year statute, and we think show that there, is no positive evidence in the record to support a judgment for plaintiff in the sum assessed by the verdict and decree for the items named upon his plea of quantum meruit.

The evidence appearing to have been fully developed, the cause is reversed and rendered for appellant.
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes