author: HENDRICKS, J.

text:
    SECURITY TRUST & LIFE INS. CO. v. STUART.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1913.)
    1. Courts (§ 57) — Course and Conduct of Trial — Appointment op Stenographer— “Official Court Stenographer.”
    A stenographer sworn to take the testimony in a cause in the county court but not in the manner prescribed by statute for an official court stenographer, which is more enlarged and broader in scope than the oath administered, is not an official court stenographer within the statutes relating to official court stenographers.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 19S-200; Dec. Dig. § 57.

    For other definitions, see Words and Phrases, vol. 6, p. 4954.]
    2. Courts (§ 57) — Course and Conduct of Trial — Appointment of Stenographer.
    Under the statutes an official court stenographer is to be appointed by the judge of the county court upon demand of either party in a civil action and hence the appointment of an official stenographer is a judicial act, manifested by the judge before rendition of judgment.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 198-200; Dec. Dig. § 57.]
    3. Appeal and Error (§ 907) — Review—Presumptions— Facts Not Shown by Record.
    Where the record is silent as to the appointment of an official court stenographer, the presumption on appeal is that none was asked for or appointed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]

      4. Appeal and Error (§ 715) — Record— Questions Presented, eoe Review — Aeei-DAVITS.
    In passing upon matters antecedent to the judgment the Courts of Civil Appeals are confined to the record as made by the trial court, except as to matters affecting the jurisdiction of the Court of Civil Appeals, and, where the record is silent as to the appointment of an official court stenographer, the question cannot be raised by affidavits, as it does not affect the jurisdiction.
    ■ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2964, 2965, 3273; Dec. Dig. § 715.]
    5. Appeal and Error (§ 655) — Record-Statement oe Facts — Sueeiciency.
    Where no official court stenographer was appointed, the omission of the duties of the official stenographer with respect to the manner of transcribing the evidence, making and certifying to the transcript, and filing the transcript and statement of facts in the trial court, is not ground for striking from the record the statement of facts prepared by the litigants.
    [Ed. Note'. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § €55.]
    6. Appeal and Error (§ 572) — Record-Statement oe Facts — Filin q Duplicate in Trial Court.
    Where no official county court stenographer is appointed, and the statement of facts is prepared by the litigants, the statutes do not require that a duplicate copy thereof shall be filed in the office of the county clerk.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2554; Dec. Dig. § 572.]
    Appeal from Wilbarger County Court; J. B. ■Copeland, Judge.
    Action between, the Security Trust & Life Insurance Company and R. T. Stuart. From a judgment for the said Stuart, the said company appeals. On appellee’s motion to strike the appellant’s statement of facts from the record.
    Overruled.
    Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.

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

      For oilier oases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

Motion to strike statement of facts from the record. The appellee in this cause requests the suppression of the statement of facts in this cause, upon the following grounds: “(1) Because the law has not been complied with in the preparation and filing of said statement of facts, in that the stenographer who took the testimony on the trial of said case did not transcribe said testimony in the form of questions and answers, and made no transcript of such testimony certifying that it was true and correct, and did not file any such transcript in duplicate in said cause in the county court of Wilbarger county, Tex., in which court the ease was tried, as is required by article 1924 of the Revised Statutes of Texas of 1911. (2) Because the law has not been complied with in the preparation and filing of said statement of facts, in that the statement of facts was not máde or filed in duplicate in the trial court, as required by article 1924 of the Revised Statutes of 1911. (3) Because there is no duplicate of said statement of facts on file in said cause in said trial court, and the time for making and filing the same has passed.”

Accompanying appellee’s motion is the supporting affidavit of the clerk of the county court, that a stenographer was sworn to “take the testimony” in the cause, and the further statement that said stenographer did not transcribe the testimony in the form of questions and answers, and did not make a transcript of the same, nor file a duplicate in his office, and that a statement of facts in duplicate was never filed with the record in said cause, nor is there any statement of facts, original or duplicate, on file in his said office.

The appellant, in resisting this motion, offers the affidavit of the same clerk, which is to the effect that the person appointed as stenographer in said cause was only sworn to take the testimony correctly, and other controverting affidavits in the nature of conclusions that the stenographer who took the testimony in the trial of the case was not an official- stenographer under the law providing for the appointment of such officers. The act of 1911, with reference to the appointment of official court stenographers, and prescribing their qualifications and duties applicable to causes litigated in the county court, prescribes that, whenever either party in a civil case pending in the county court shall apply therefor, the judge of the court shall appoint a competent stenographer to report the oral testimony in such case, and who shall take the oath prescribed for the qualification of the official court stenographer appointed by the district court. The article of the law with reference to the appointment of court stenographers in the county court also recites that all provisions of law governing statements of facts and bills of exception to be filed in district courts, and the use of same on appeal, shall apply to civil cases tried in the county courts. In the examination of this question and the decision of same, if we deemed the ex parte affidavits, submitted by both parties, were appropriate for the cognizance of this court, for the disposition of the questions raised, we would be forced to conclude as a fact that the stenographer who performed the service of taking the testimony in the trial of this case was not an official court stenographer, for the reason that the oath administered was not the proper oath prescribed by that section of the statute providing for the appointment of county court stenographer; the oath required being the one prescribed for district court official stenographers, which is more enlarged and broader in its scope than the one which we would conclude from this record was administered to the stenographer in this cause.

On correct principles, we, however, conclude that the supporting and contravening affidavits, with reference to the propositions at issue, for the purpose of eliminating the statement of facts, should not be considered by this court, and the matter, especially referable to the first two grounds of ap-pellee, should be solved upon the principle of the presumption afforded by the record, when we consider the article relative to the appointment of stenographers for the county courts. The official stenographer of the county court, in a civil case pending in that tribunal, it is to be observed, is appointed by the judge of the court whenever either party shall apply therefor, administering the same oath prescribed by the act with reference to the district court stenographers, hence the appointment of a county court stenographer is a judicial act, manifested by the judge before the rendition of judgment, and we think that the fact of appointment or non-appointment of such an officer of the court, being an act manifested by the court, could only be called in question where the record itself exhibits the fact of appointment, and where the record is silent' as to the existence of an official stenographer in the case the presumption should prevail that none was applied for by either party to the suit, and that none was appointed by the court.

The Supreme Court, in the case of Ennis Mercantile Company v. Wathen, 93 Tex. 622, 57 S. W. 946, following the Constitution and statute with reference to the power of the Courts of Civil Appeals, in ascertaining matters of fact upon questions arising before that court, in substance held that the Courts of Civil Appeals, in passing upon matters antecedent to the rendition of judgment in the cause, are confined to the record as made by the trial court, and have not the power to inquire into matters occurring subsequently to the rendition of the judgment when not made a part of the record. In enunciating this doctrine, our Supreme Court stated that: “The failure of the judge in this case to approve the statement of facts presented to him or to make one in case of disagreement of the parties does not appear in the record in any manner specified by the statute, and was not a proper subject of assignment. Authority to inquire into the existence of facts not contained in the record is conferred upon the Courts of Civil Appeals by article 998, Rev. St. 1895, which reads as follows: ‘The said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.’ This article restricts the power of the Courts of Civil Appeals to inquire into matters of fact not appearing in the record to such as affect its jurisdiction. * * * The appellate jurisdiction of the Courts of Civil Appeals is directed to the correction of errors committed in the course of proceedings prior to and connected with the rendition of the judgment, and they are confined to the record as it is made hy the trial court. Willis v. Smith, 90 Tex. 635 [40 S. W. 401]; Bogges v. Harris, 90 Tex. 476 [39 S. W. 565]. A Court of Civil Appeals cannot correct the record of a case by hearing testimony, nor can it inquire into acts occurring suhsequently to the rendition of the judgment and not made a part of the record. Davis v. Thomas, 5 Tex. 389.” As a declaration of the same principle, see the case of Bath v. Houston 6 T. C. Ry. Co. et al., 34 Tex. Civ. App. 234, 78 S. W. 994, and Applebaum v. Bass, 113 S. W. 173.

As the appointment of the county court stenographer is contingent, the selection of one necessarily to be made before the rendition of the judgment in the cause, and the record not disclosing by the certificate of the clerk with reference to the statement of facts the matter of appointment, and, it not having been shown in any other way, the presumption exists that none was appointed, and, as the matter is one which does not affect the jurisdiction of this court, the premise upon which the appellee bases the first two grounds for the purpose of striking the statement of facts from this record is necessarily destroyed, and the omission of duty of a stenographer not shown to have been appointed, cannot be visited as a penalty upon the appellant.

The third ground for the suppression of the statement of facts, on account of the failure to file a duplicate statement in the office of the county clerk, we do not think maintainable. We presume that appellee is basing this contention upon the theory that the statute demands the filing of a duplicate of the statement of facts with the record of the cause, whether prepared by the stenographer or the litigants. If there is no court stenographer—and we are forced to that conclusion by the presumption of the record in this case—we are unable to ascertain from this statute, in cases where county court stenographers are not appointed, and where statement of facts is prepared by the litigants, that a duplicate copy shall be filed with the record of the cause, and we believe an exposition and scrutiny of the statutes upon that subject do not prescribe, under conditions of that kind, such a course of procedure, and the same cannot be extracted from the law.

Believing that the motion fails to present any proper legal grounds for the suppression of the statement of facts in this record, it is in all things overruled.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    OVERTON v. CHICAGO, R. I. & G. RY. CO. et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1913.)
    CARRIERS (§ 180) — Freight—Notice of Damage — Interstate Shipment.
    Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]), to the Hepburn Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3170]), providing that any common carrier of interstate shipments shall be liable to the holder of the bill of lading for any damage caused by it or any carrier over whose lines the property passes and no contract shall exempt such carrier from such liability, notice of damage may be given to a connecting carrier, though the shipment contract required a written notice of damages to be given to the initial carrier within 90 days.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by S. A. Overton against the Chicago, Rock Island & ‘ Gulf Railway Company and another. From a judgment for de-, fendants, plaintiff appeals.
    Reversed and remanded.
    Jas. C. Scott, of Ft Worth, for appellant. N. H. Lassiter, Robt. Harrison, and R. M. Rowland, all of Ft. Worth, for appellees.

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

   HALL, J.

The appellant, S. A. Overton, was the plaintiff in the lower court and sued the appellees, the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company, in the county court of Tarrant county for damages alleged to have accrued on account of the negligence of the appellees in the shipment of a car of horses and mules from Wellington, Kan., to Ft Worth, Tex. The trial court peremptorily instructed the jury to find in favor of the railway companies. The contract of shipment contained the following stipulation: “Sixth. That, as a condition precedent to the bringing of any suit for damages for any loss or injuries to the person or persons or property covered by this contract, the claimant shall give notice in writing of a claim for such damages to some general officer, claim agent, or station agent of the said first party, not later- than 90 days after the date of the loss or injury claimed, and a failure to strictly comply with this provision shall be a bar to a recovery of any and all damages occasioned to the person or persons or property embraced in this contract.”

The appellees insisted that, as no injury to the live stock was shown to have been caused by the Chicago- Rock Island & Gulf Railway Company, and the notice of the claim for damages not having been presented to the Initial carrier, the Chicago, Rock Island & Pacific Railway Company, a peremptory instruction in favor of the defendants was proper. The record discloses that a notice of claim for damages was presented to the Chicago, Rock Island & Gulf Railway Company as a claim “against the Chicago, Rock Island & Gulf Railway Company,” and the same was thereafter amended, but the amendment did not mention the Chicago, Rock Island & Pacific Railway Company.' Plaintiff’s bill of exceptions shows that the peremptory instruction was based upon the facts above stated, and, from a judgment in favor of defendants, plaintiff brings the case to this court for review.

The facts of this case bring the controversy within the pale of the Carmack Amendment to the Hepburn Act (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]). This court has heretofore held in C., R. I. & G. Ry. Co. v. Linger, 156 S. W. 298, that in such cases the stipulation requiring a notice in writing of the damages to be given to the initial carrier within 90 days is sufficiently complied with by giving notice to a connecting carrier, and the opinion there is adopted as announcing our views upon the same issue here. It has been frequently held under the Carmack Amendment that in interstate shipments each connecting carrier is an agent for the others, and of course notice to one is notice to all. A., T. & S. F. Ry. Co. v. Word, 159 S. W. 375; Pecos & Northern Texas Railway Company v. Meyer, 155 S. W. 309. What is here said disposes of all of appellant’s assignments.

Because of the error of the court in peremptorily instructing the jury to find for the defendants, the judgment is reversed, and the cause remanded.


author: KEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. GARRETT.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 15, 1913.)
    1. Railroads (§ 406* — Killing Animals— Right to Run at Large — Trespass.
    Where no stock law was in force in a district including that where plaintiff’s horse was killed by one of defendant’s trains, it was lawful for animals to run at large there, and the horse was therefore not a trespasser on defendant’s, right of way.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1400, 1401; Dec. Dig. § 406.*]
    2. Railroads (§ 446*) — Killing Animals— Negligence — Question for Jury.
    Where plaintiff’s horse was killed by defendant’s train within the limits of a small town where no stock law was in force, but where the train operatives knew that stock were accustomed to graze along the tracks at will, evidence that the train was operated through the town at a high rate of speed, that neither the engineer nor fireman were keeping a lookout, and that they failed to blow the whistle or ring the bell, was sufficient to carry the question of the railroad company’s negligence to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.*]

      Appeal from Waller County Court; J. D. I-Iarvey, Judge.
    Action by James Garrett against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    •Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. J. Y. Meek, of Houston, and Hannay & Hannay and R. E. Hannay, Jr., all of Hemp-stead, for appellee.
   KEY, C. J.

In this case the plaintiff sued for and recovered the value of a horse alleged to have been negligently killed by the defendant.- The plaintiff charged in his petition that his horse was killed by one of the defendant’s trains, which was running at the high rate of speed of 45 miles an hour; that the defendant negligently failed to ring the bell or blow the whistle as a warning to the horse, which was seen by the engineer,, who could have stopped the speed of the train and prevented injuring the horse. He also charged that, by the use of ordinary care, the engineer, or those in charge of the train, could have prevented the injury by ringing the bell, blowing the whistle, and stopping the speed of the train, and that they negligently failed so to do.

The defendant filed a general demurrer and one special exception to the petition; but they appear to have been abandoned, probably because the plaintiff filed a trial amendment, curing the supposed defect pointed out in the special exception. At any rate, it does not appear that the trial court was requested to rule upon the exceptions. Hence we hold that, as the matter stood at the time of the trial, the plaintiff had the right to prove that at the time in question, and prior thereto, live stock were in the habit of grazing upon appellant’s right of way, and that the engineer who was operating the train was aware of that fact. And, for the same reason, we hold that it was proper for the court to submit that phase of the case to the jury, leaving it to that body, as the court’s charge did, to determine whether or not, under the circumstances referred to, the defendant was guilty of negligence. Railway Co. v. Red Cross Stock Farm, 22 Tex. Civ. App. 114, 53 S. W. 834; Railway Co. v. Marchand, 24 Tex. Civ. App. 47, 57 S. W. 860.

Appellant assigns error upon the action of the court in refusing to instruct a verdict for it, and also in refusing to set aside the verdict, upon the theory that it was not supported by testimony. The proof shows that the accident occurred at night, while one of appellant’s passenger trains was passing through the town of Waller, where appellant was not required to fence its track. Waller is a small town, containing only a few hundred people. A dirt road crosses the railroad track near the station. The train in question was not scheduled to, and did not, stop at' that station. There is some conflict in the testimony as to the rate of the train’s speed; but the testimony justified the finding that it was as much as 45 miles an hour. The horse was not killed at the crossing, and there is some conflict in the testimony as to how far it was from the crossing and from the station to the point where the horse was found dead. We do not regard that fact as material. There was also conflict in the testimony as to whether the whistle was blown; but the evidence of the plaintiff would support a finding that such signal was not given as the train approached or passed the station. The engineer and the fireman in charge of the train both testified that, in so far as they knew, the train neither struck nor killed any horse at the time and place referred .to. There was no proof that either of them was keeping any lookout in front of the engine. No stock law was in force, and therefore it was lawful for animals to run at large, and the horse was not a trespasser.

The strongest eases cited in behalf of appellant are Railway Co. v. Anson, 101 Tex. 198, 105 S. W. 989, decided by the Supreme Court, and Railway Co. v. Matthews, 158 S. W. 1048, decided by this court. Following the Anson Case, this court held in the Matthews Case that, where a horse was killed by a passing train within the switch limits of a town, evidence that the train was running very fast, without blowing the whistle or sounding the bell, was not of itself sufficient to establish the railroad company’s negligence. Those cases, and others in which it has been said that the mere running a train at a high rate of speed or the mere failure to blow the whistle and ring the bell do not constitute negligence, cannot properly be construed as announcing the doctrine that, under no circumstances, would a jury be authorized to find that such facts constitute negligence. Such facts do not constitute negligence per se, or as a matter of law; but whether or not, in a particular case, they constitute negligence is to be determined by the surrounding circumstances. In the cases referred to circumstances were not shown that would justify a finding that the high rate of speed and the failure to give signals constituted negligence. On the other hand, in the Mar-chand Case, supra, and others to the same effect, -proof was submitted which justified findings that it was the duty of those operating the trains to slacken speed or take other precautions to prevent injury to persons or live stock upon or near the track. Whether or not, in the absence of a statute so requiring, it is the duty of those in charge of a railroad train traveling at a rapid rate of speed to reduce the speed or give the customary warning of the approach of the train is dependent upon whether or not the railroad company, or such employés, have reason to suppose that the lives of persons or animals may be endangered unless such precautions are taken, and that is the important distinction between this ease and the eases relied on by appellant.

The plaintiff testified: “Why, all kinds of stock were in the habit of grazing along there on those tracks — grazed there all the time. Yes, sir; they were there very frequently, grazing on that Bermuda grass.” The engineer who was operating the train in question said: “Yes; I have seen both horses, and cattle along the track there at Waller at different times. Yes; they graze along there on the tracks sometimes.” The fireman on the train testified: “Yes; I think when we went through Waller that morning we slowed down and rolled through there — as a general rule we do — I have no particular recollection about this particular morning; but, as a rule, we do.” He also said: “We had electric headlights on that train; you can see an object on the track for almost a mile with those headlights. Yes; our lights were burning bright that morning — in good shape. Those headlights light the track up ahead of the engine for a distance of about 100 feet. I couldn’t state how far they light the right of way on each side of the track — pretty good ways.”

The testimony above set out, together with the undisputed facts, raised the issue as to whether or not the employés operating the train were guilty of negligence in not checking its speed and blowing the whistle, in order to prevent injury to live stock which might be upon the track at the place where the horse was struck and killed. That question was one for the jury to decide, and, having decided it against appellant, we do not feel authorized to set aside that decision.

No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.


author: SPEER, J.

text:
    DENTON et al. v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 15, 1913.
    On Rehearing, Oct. 25, 1913.)
    Carriers (§ 14) — Passengers — Depot Grounds — Rights oe Transfer Companies.
    Where a railroad company had given a particular transfer company the exclusive right upon the railroad company’s trains and premises to solicit baggage, etc., defendant will be enjoined at the suit of the company from going upon its premises to solicit patronage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 29; Dec. Dig. § 14.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Suit by the Texas & Pacific Railway Company against George C. Denton and another. From decree for plaintiff, defendants appeal.
    Affirmed.
    McLean, Scott, McLean & Bradley, of Ft. Worth, for appellants. Thompson & Barwise and Bryan & Spoonts, all of Ft. Worth, for appellee.

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

   SPEER, J.

This is an appeal by George C. Denton and G. W. Suters from a judgment of the district court of Tarrant county, in favor of the Texas & Pacific Railway Company, wherein a “temporary writ” of injunction was awarded against appellants restraining them from soliciting business as transfer agents about the passenger station and trains of the complaining company. A decree appears to have been entered upon the regular call of the cause, at a regular term of the district court, and has the indicia of a final judgment. There are no briefs filed by the appellant, and we would therefore perhaps be justified in dismissing the appeal for the want of prosecution. But treating it as an appeal from an interlocutory order entered in term time (Revised Statutes 1911, arts. 4644 and 4645), we would be required to hear the case without such briefs; but at this point we are confronted' with another difficulty, and that is that no motion for a new trial was filed in the court below as required by rule 71a for the district and county courts (145 S. W. vii).

Moreover, no assignments of error were filed in the trial court and none is filed here, and we are completely at a loss to know upon what point or ground a revision of the judgment below is sought. Whether the ruling of the court upon demurrers, the admission or rejection of evidence (there being a statement of facts), or otherwise, is complained of, we cannot determine. The errors are such as may have been waived, and presumably they were. There is no fundamental error apparent, and the judgment is affirmed. Forty-Acre Spring Live Stock Co. v. West Texas Bank & Trust Co., 55 Tex. Civ. App. 116, 118 S. W. 790.

On Rehearing.

The motion for rehearing in this case has been withheld awaiting the decision of the Supreme Court on the question of practice certified in the ease of Ft. Worth Improvement District No. 1 v. City of Ft. Worth, 158 S. W. 164 (No. 7,715, not yet officially reported). In accordance with the answer returned to that certificate we have considered the appeal in the absence of a motion for new trial and assignments of error. Following is the restraining order from which the appeal is prosecuted: “It is therefore ordered, adjudged, and decreed by the court, upon the plaintiff filing a good and sufficient bond in the sum of $1,000 as required by law, that a temporary writ of injunction be issued against the defendants and each of them (naming them) restraining them, and each of them, their agents, servants, employés, and solicitors, from entering into the passenger station, baggagerooms, corridors, car sheds, and trains of the Texas & Pacific Railway Company for the purpose of soliciting, receiving, or accepting employment from the passengers or patrons of such passenger stations and depot, and from entering into and upon the above-mentioned premises except as patrons of such station or other lawful business therein, and restraining each of them while in- and upon said premises from soliciting or importuning employment for the transportation or transfer for hire of-passengers or baggage from the said above-mentioned premises to any other depot or place in the city of Efc Worth, Tex., or elsewhere; provided, however, that nothing in this writ of injunction shall interfere with the right of any of said defendants to enter into or upon said premises for the purpose of discharging baggage or passengers brought by them to said station or from going into or upon said premises for the purpose of receiving baggage or passengers therefrom when any person or persons have ordered or employed said defendants or any of them to transport themselves or their baggage from said station.”

This order is abundantly within the pleadings and' evidence, which show in brief that the appellee as a railway company had entered into a "contract whereby it gave to the Union Transfer Company the exclusive right upon the trains and premises of the company to do the things appellants were enjoined from doing, and that notwithstanding this the appellants persisted in going upon the premises of appellee and there soliciting and receiving the patronage of its passengers. The ease is ruled by the principles of law announced in Lewis v. Weatherford, etc., Ry. Co., 36 Tex. Civ. App. 48, 81 S. W. 111, and Ft. Worth & D. C. Ry. Co. v. White, 156 S. W. 241.

As pointed out in the original opinion affirming this case, no formal complaints are made of any ruling of the court below, and, since the judgment appears to be supported by the pleadings and evidence, the motion for rehearing is overruled.


author: CONNER, C. J.

text:
    SMITH v. TOWN OF ANSON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 18, 1913.)
    I. MUNICIPAL .CORPORATIONS (§ 1013)-Claims — Statement—Binding Effect.
    The adoption by a town council of a statement of account presented to it by the town attorney, showing a balance due to the attorney for services over and above collections made by him for the town, and the issuance of a warrant in his favor for such amount, had the same effect as an account stated struck between individuals.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2185; Dec. Dig. 1013.]
    2. Municipal Corporations (§ 1013) — Resolution op Council — Rescission.
    While ordinarily a town council may rescind its previous acts before the rights of third persons have vested, after a town council had adopted an account stated presented to it by the town attorney, showing a balance due him, and a warrant issued therefor was paid, its action could not be rescinded, in the absence of fraud, notwithstanding the claim by the aider-men that they understood their action to be a mere reception of the account.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2185; Dec. Dig. § 1013.]
    Appeal from Jones County Court; Joe C. Randel, Judge.
    Action by the Town of Anson against S. J. T. Smith. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    J. W. Boynton, of Anson, for appellant. Brooks & Brooks, of Anson, for appellee.

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

   CONNER, C. J.

The town of Anson, a municipal corporation, instituted this suit against the appellant, S. J. T. Smith, to recover .the sum of $513.05, alleged to have been collected by Smith as the town attorney and not accounted for. The items constituting the aggregate amount sued for were specified in a copy of a report to the town council, made by said Smith and attached to the town’s petition as an exhibit. The report specified the several amounts that had been collected during the years 1910, 1911, and 1912, and further specified certain services relating to the subject-matter and commissions charged for collections, etc., a balance being struck between the items debited and credited which showed a sum of $73.44 in Smith’s favor. The petition confessed liability in part only for the commissions and fees specified in the report. The defendant, among other things, pleaded that the matters at issue had been settled between the plaintiff and defendant and that his report or account already referred to embraced all of the transactions between the parties; that it had been duly accepted and adopted by the city council of the town of Anson, and the balance thereby shown in his favor duly paid. The trial was before a jury resulting in a verdict and judgment for the plaintiff in the sum of $441.80, and the defendant has appealed.

Numerous errors have been assigned, but our conclusion upon the vital question presented will sufficiently dispose of them all. It is undisputed that on September 6, 1912, the town council of Anson met in regular session with the mayor and all aldermen present, and that at this time the appellant Smith, as town attorney, submitted the report hereinbefore referred to, showing the amounts of money collected by him in behalf of the town in the way of certain taxes, debts due because of certain city improvements, interest on notes belonging to the city, etc., and also specifying as stated services performed and .charges made therefor by him in the way of procuring notes, instituting suits, collections made, etc., all relating to the same general subject-matter; that by this report it appeared that a balance of $73.44 was due appellant; that at the time stated, to wit, September 6th, the report was “received and adopted,” such action being duly entered upon the minutes, which were later signed and approved. It further appears that on the next day a draft in Smith’s favor for the balance stated upon the treasurer of the town was duly executed by the mayor and city secretary, which upon presentation was duly paid to appellant. It further appears, however, that the council again met on September 20, 1912, whereupon the following order was made: “By motion it was ordered to rescind the action of the preceding meeting of the council in approving a report from city attorney, S. J. T. Smith, in which were included items of service rendered the city in connection with the street improvements, notes and accounts due the city, and for commissions and fees for same.” fihe controlling question on this appeal is whether, after the action of the council on September 6th and the subsequent payment of the balance then found to be due Smith, the council could, as it attempted to do on September 20th, rescind its former action and maintain the present suit. If it could so rescind, then we find nothing in the present record which would authorize us to reverse the judgment below. If it could not, then we think the judgment must be reversed and here rendered in appellant’s favor.

In behalf of appellee it is not contended that appellant’s report submitted to the town council on September 6th was insufficient in form to constitute an account stated. See 1 Cyc. 372, par. C. Nor is it seriously contended that the action of the council at that time taken would not, in the absence of its cancellation, ordinarily have the legal effect of finally concluding the matters then involved. But the contention is: First, that the principles relating to a “stated account” have no application to a municipal corporation ; and, second, that if so, the town council had full authority to rescind its previous action. Towns and villages of the grade of appellee may become incorporated municipalities under the terms of our statute relating to the subject, and as such, as is expressly provided (Revised Statutes, art. 1042), are “invested with all the rights incident to such corporations * * * and shall have power to sue and be sued, plead and be im-pleaded, and to hold and dispose of real and personal property,” etc. Nothing that we find in the statutes so limits the powers of the mayor and board of aldermen in disposing of the fiscal affairs of the town as will relieve their good-faith acts in this respect from the ordinary legal consequences, or to require us to differentiate as to the subject now under consideration between an incorporated town and any other private corporation, and we find it stated in 1 Cyc. 385, that: “A debt may be converted into a stated account though one of the parties to the transaction is a corporation.’.’ It is further stated in a note on the same page, with citation of authorities to which we do not have access, that “public officers may bind a municipal corporation by way of an account stated.” See, also, the case of St. Louis Gas Co. v. City of St. Louis, 84 Mo. 203, where it is said (quoting from the reported syllabi): “A settlement made by the city auditor with the gas company is, in the absence of fraud or mistake, conclusive as to the amount due by the city at the date of the settlement.”

So that, as at present advised, we feel that we must attach to the action of the town council of Anson on September 6, 1912, the same legal consequences that should be attached to like action on the part of an individual, or any other species of corporation.

So concluding, we are of the further opinion that under the circumstances the further action of appellee’s town council in attempting to annul the settlement of September 6th was unauthorized. It is true that' ordinarily a town or city council may rescind its previous acts before the rights of third persons have vested. See Dillon on Municipal Corporations, vol. 1, § 290. But in the case before us the account under consideration was duly presented to the town council, was considered, and formally received and adopted and acted upon by the mayor and city secretary by formally issuing a warrant in appellant’s favor for the balance due him, as shown in the stated account, and this warrant was fully paid by the town treasurer before any attempted rescission took place. It is not alleged in appellee’s petition in this case that such consideration and adoption of appellant’s report was induced by any fraud, or that the result was brought about through inadvertence or mistake, nor can effect be given the oral testimony of one or more of the aldermen that they understood the action and order of September 6th as a mere reception of the account. See City of Dallas v. Beeman, 18 Tex. Civ. App. 335, 45 S. W. 626; 1 Dillon on Municipal Corporations, §§ 298, 299. The transaction, therefore, assumed the form of a completed settlement between the parties beyond their power of further control. Clearly appellant, after the settlement of September 6th, and after he had received payment of the city warrant issued in his behalf, could not thereafter, without an allegation of fraud, accident, or mistake, have instituted suit and recovered fees and commissions for the services specified in the account other or greater than then allowed him. The account, as we have more than once stated, seems then to have been duly rendered, acted upon, and finally settled, and the binding obligation of the settlement we think mutual, and precludes the appellee town from now claiming that appellant’s services were of less value than stated in his original account, or that it could against appellant’s consent rescind the settlement made. See Horan v. Long, 11 Tex. 230; Henry v. Chapman, 16 S. W. 543; Gillian v. Alford, 69 Tex. 267, 6 S. W. 757; H. & T. C. Ry. Co. v. McCarty, 94 Tex. 298, 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854; Brown v. Winterport, 79 Me. 305, 9 Atl. 844; 28 Cyc. 340, par. G; 1 Cyc. p. 443, par. 7, and authorities cited in notes.

There is a suggestion in behalf of the ap-pellee town that the payment made appellant was improperly made out of a special fund, and the payment was made without an express order of the council, as required by an ordinance of the town offered in evidence. But the formal action of September 6, 1912, seems to have been accepted by the mayor and city secretary and by the town treasurer as a sufficient order on the part of the council to authorize the payment made. It is not charged that these officers acted in bad faith', and nothing is shown in the record forbidding the payment out of the improvement fund. Moreover, the suggestions affect only the item of $73.44, and in no way affect the conclusive effect of the settlement of September 6, 1912. See City of Tyler v. Jester & Co., 97 Tex. 344, 78 S. W. 1058, 1059.

We conclude that the judgment should be reversed, and here rendered for appellant, that the town of Anson recover nothing herein, and that appellant go hence without day recovering his costs.


author: TALIAFERRO, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. WALLRAVEN.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.)
    1. Damages (§ 113) — Measure—Injuries to Personal Property.
    The measure of damages for injuries to secondhand household goods and wearing apparel is the difference in their actual value just prior to and just after the injury, and not the difference in the market value of similar goods at secondhand stores at or nearest their destination.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.]
    2. Damages (§ 174) — Injuries to Personal Property — Value.
    In an action for injuries to ‘secondhand personal property, evidence of the original cost of the property in the market, the manner, time, and place of its use, its appearance before and after the injury, and its relative usefulness and physical condition is competent.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. § 174.]
    3. Evidence (§ 142) — Injuries to Personal Property.
    In an action for damages to secondhand household goods and wearing apparel, evidence as to the difference in the market value of similar goods before and after the injury is inadmissible, unless it be shown that the difference in the market value and the difference in the actual value is the same.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    4. Damages (§ 113) — Measure—Injuries to Personal Property.
    Where secondhand household furniture and wearing apparel is wholly destroyed, a proper method of arriving at their value at the time of the loss is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, their condition at the time, etc., and from these and other pertinent facts to determine the present value.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. §, 113.]
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action by Willie Wallraven against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Wm. B. Lock-hart, both of Galveston, for appellant. Mar-sene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

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

   TALIAFERRO, J.

This was an action by Willie Wallraven, appellee, against the Galveston, Harrisburg & San Antonio Railway Company, appellant, to recover $530 damages to a shipment of secondhand household goods, furniture, and wearing apparel, shipped by appellee over the appellant’s line of railroad from San Leon to Galveston, in the county of Galveston, Tex. The case was tried in the county court without a jury, and resulted in a judgment for appellee for the sum of $430.

Appellant contends that under the pleadings of appellee the evidence was not sufficient to sustain the judgment, and this contention must be sustained. In her original petition, appellee alleged that at the time the goods were delivered to appellant, on February 9, 1912, they were in good condition, ready for shipment, but that appellant’s agent left the goods exposed upon the depot platform without covering, protection, or shelter for a period of more than three weeks before they were shipped, and that during that time they were rained upon, and were wet and damaged by such exposure, and that the goods were not received by her at Galveston until March 1, 1912. Appellant’s negligence was alleged to be its failure to promptly ship the goods, and its failure to properly cover and protect them prior to shipment. Although the court overruled all of the appellant’s exceptions to the petition, the court permitted appellee to file what was termed her first supplemental petition, in which the allegation that the goods were left upon the appellant’s platform exposed to the rain was abandoned, and she alleged that the goods were loaded by the station agent into an old, worn-out and discarded box car, which was being used by appellant at the station of San Leon as a warehouse; that the said box car was not properly pro-teeted, covered, or inclosed so as to prevent the rain from falling into and upon her goods and damaging them as described; that appellant allowed said goods to remain in the old box car for three weeks before forwarding them to Galveston, during which time they became mildewed, rotted, and damaged to the extent described. No allegation was made to show what damage, if any, would have been suffered by appellee from the mere delay of her goods if they had not been wet. The only allegation and proof of damages is based upon the injury resulting from the goods having been allowed to get wet. Appellant contends that the proof is not sufficient to show that the goods were exposed to the rain and weather by reason of its negligence. We have very carefully examined the record, and have reached the conclusion that appellant’s position upon this point is well taken. It is not denied that a part of the goods were exposed to a very hard rain while being hauled to the station in the care of appellee’s own agent, and that they became very wet. There is no evidence of the slightest probative force which goes to establish the fact that the goods were exposed to the rain while in appellant’s custody. On the contrary, the evidence contained in the record must necessarily lead the unbiased mind to the conclusion that no rain was permitted to fall upon them while they were in the box car warehouse. In view of the reversal of the ease, we will not discuss the evidence.

By its seventh assignment of error appellant contends that the judgment of the court is unsupported by the evidence, because the testimony was incompetent to establish the damages complained of by appel-lee. The rule is now well settled in Texas that the measure of damages for damage to secondhand household goods and wearing apparel is the difference in their actual value just prior to and just after the injury, and not the difference in the market value of similar goods at secondhand stores at or nearest their destination. And it seems that it is not necessary to allege or prove that such goods have no market value to predicate proof of actual value. Wells Fargo Express Co. v. Williams, 71 S. W. 314; Benedict v. C., R. I & P. Ry. Co., 91 S. W. 811; I. & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Railway Co. v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 895. In such a case all such pertinent facts and circumstances as will place before the jury material data which will enable them to reach a fair valuation or estimate of the plaintiff’s damage are admissible in evidence. The original cost in the market and the manner and time and place of its use, the appearance before and after the alleged injury, and the relative usefulness and physical condition may be offered in evidence to show the damage. It is obvious that the difference in the market'value before and after the injury may be also the difference in the actual value; but it is equally obvious that it is not necessarily so, and, to justify proof of the difference in the market value as the measure of damage in such a ease, the proof must also show that such was the difference in the actual value. Since this ease is to be reversed, and in view of a new trial, we will say that we think the difference was insufficient to establish the actual value. An effort was made to show yalue by testimony as to the market value of such goods. As has been stated, the damages to such goods cannot be established by that character of evidence. There is a decided difference between the proof of what the particular goods cost in the market and the value of similar goods in the open market.

In this case some of the goods were wholly lost or destroyed, and some were only damaged. The rule of the measure of damages is quite different in the two instances. The rule that governs when goods are only damaged has already been stated. Where the goods are wholly destroyed, “a proper method of arriving at their value at the time of the loss is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, their condition at the time,” etc., and from these facts and such other facts as were pertinent to determine the present value. Wells Fargo Express Co. v. Williams, supra, and cases there cited. Appellee’s testimony was not competent to establish the measure of damages under either of the above rules.

Appellant’s eighth and ninth assignments attack the judgment as excessive. Upon these assignments we think it improper to pass.

The twelfth, thirteenth, fourteenth, and fifteenth assignments assail the ruling of the court in admitting the evidence of certain witnesses upon value. In view of what has been said upon this subject, we think it is unnecessary to consider these assignments.

For the reasons above pointed out, the judgment is reversed, and the cause remanded.


author: KEY, O. J.

text:
    HIGGINBOTHAM BROS. & CO. v. BREED.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 22, 1913.)
    Vendor and Purchaser (§ 231) — Bona Fide Purchasers — Constructive Notice — Records.
    The record of a deed of trust purporting to cover 17 acres within the town of Z., described as having been deeded to the grantor by S. about two years prior thereto by a deed described as being of record, was not constructive notice to a subsequent purchaser of 12½ acres in a survey not mentioned in the deed of trust, lying outside the boundaries of the town of Z. and all additions thereto, which had been conveyed to the grantor by a deed from S. and his wife executed about six months prior to the execution of the deed of trust, and which had not been recorded at the date of the deed of trust, that the deed of trust covered such land if it in fact did.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.]
    Appeal from District Court, Brown County ; John W. Goodwin, Judge.
    Action by Higginbotham Bros. & Co. against Mrs. W. N. Breed and others. From a judgment in favor of the defendant hamed, plaintiff appeals.
    Affirmed.
    Goodson & Goodson, of Comanche, for appellant.

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

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

   KEY, O. J.

Appellant, a private corporation, brought this suit against Geo. W. Hill, seeking recovery upon a promissory note and the foreclosure of a deed of trust. Mrs. W. N. Breed was made a party defendant, the plaintiff alleging that she was asserting title to the land covered by the mortgage, and a foreclosure was sought as against both defendants. The defendant Hill filed no answer, but Mrs. Breed answered by a general denial and other pleas unnecessary to be stated. There was a nonjury trial, which resulted in a judgment for the plaintiff against the defendant Hill for the debt and foreclosure upon the property as described in the mortgage but awarding no relief as against Mrs. Breed, and the plaintiff has appealed.

The trial judge filed the following findings of fact and conclusions of law:

“Conclusions of Fact.
“(1) That Geo. W. Hill, defendant, is a nonresident of Texas, and the only character of service had upon him in this case was a notice, such as is provided for by the Revised Statute, art. 1869.
“(2) That defendant Geo. W. Hill did not appear or file answer herein but made default.
“(3) That Geo. W. Hill executed the note sued upon and described in plaintiff’s petition, and that the amount stated in this judgment is the balance due on said note, which note is payable to plaintiff herein, who is the owner and holder thereof.
“(4) That on the 30th day of January, A. D. 1908, Geo. W. Hill made, executed, and delivered to plaintiff in this cause a deed of trust, naming D. Charles 'Clark as trustee, conveying to said trustee, for the purpose of securing plaintiff in the payment of note referred to in third finding of fact, among other lands, a tract described in said deed of trust as follows: ‘17 acres of land in the eastern part of the town of Zepher, Brown county, Texas, deeded to me by W. R. Shelton about 2 years ago; the deeds (several tracts of land were conveyed in the deed of trust) to which are of record in Brown county, Texas, to which reference is made for description of same’ — which deed of trust was duly acknowledged and filed for record in Brown county, Tex., February 6, 1908, at 8 o’clock a. m., and duly recorded February 13, 1908, in volume L, pp. 327-329, Records of Brown county, Tex.
“(5) I find that on the 12th day of November, 1908, Geo. W. Hill, by his warranty deed of that date, sold and conveyid to Mrs. W. N. Breed, a feme sole, in consideration of ¡¡>1,550, $1,200 cash and two notes for $175 due one and two years after date, and dated November 12, 1908, a tract of land described in said deed as follows: ‘All that certain tract or parcel of land in Brown county, Texas, a part of the Felix Wardzis-ki survey, No. 324, abstract No. 962, more particularly described as follows: Beginning at the N. E. corner of the Ed Couch tract from which a P. O. vrs. N. 33 ½ W. 10½ vrs., a P. O. south 28 ¾ W. 1 ½ vrs.; thence Ñ. 255 vrs. to a stone set on the N. side of the Zephyr and Comanche road; thence W. with said road 169 vrs. to E. corner of the W. T. Scott tract from which a D. O. brs. S. 61 W. 26 vrs.; thence S. 57 W. 186 vrs. to a stake in N. W. side of said above-mentioned road; thence S. 33 E. 196.6 vrs. to a stake in N. line of Ed Couch tract made for A. A. Sheppard S. E, corner; thence with Ed Couch N. line 199½ vrs. to the beginning, containing 12½ acres. But it is expressly understood that the land herein conveyed does not include the 20-foot strip sold to A. A. Sheppard from the S. side of the above-described tract of land.’ This deed was duly acknowledged and filed for record December 2, 1908,- at 1 o’clock p, m., and recorded in Deed Records of Brown county, Tex., vol. 98, p. 392.
“(6) I find that on the 2d day of August, A. D. 1907, W. R. Shelton and wife, Nannie Shelton, by their deed of that date, sold and conveyed to Geo. W. Hill the tract of land described in the deed from Geo. W. Hill to Mrs. W. N. Breed, which deed was duly acknowledged and filed for record in the office of the county clerk of Brown county, Tex., November 6, 1908, and recorded November 12, 1908, in volume 98, p. 356, Deed Records of Brown county, Tex.
“(7) I find that, at the time Mrs. W. N. Breed purchased the laud described in the fifth finding of fact, she knew nothing of the existence of the deed of trust described in fourth finding of fact, and that she had no actual knowledge of the existence of said deed of trust when she paid for the land so conveyed to her, and that she paid $1,200 cash at time deed bears date, and later paid the two notes for $175 each, given for the balance of the purchase money, and that at the time she paid said notes she had no actual knowledge or notice of said deed of trust, and that she at all said times had no constructive notice of said deed of trust unless the recording thereof gave tier such notice.
“(S) I find there is not, and never has been of record in Deed Records of Brown county, Tex., any deed from W. R.' Shelton to Geo. W. Hill, but that, at the time Mrs. Breed purchased the aforesaid tract of land from Geo. W. Hill, there was of record the deed described in the sixth finding of fact, the same being from W. R. and Nannie Shelton to Geo. W. Hill, and filed for record November 6, A. D. 1908, at 11 o’clock a. m., and which described the land as set forth in the sixth finding of fact.
“(9) I find that when the deed of trust described in the fourth finding of fact was filed for record in Brown county, Tex., on February 6, 1908, there was no deed of record in Brown county, Tex., to Geo. W. Hill from either W. R. Shelton or from W. R. Shelton and wife, and that the deed from W. R. Shelton and wife to Geo. W. Hill was not filed for record until November 6, 1908.
“(10) I find that the land sold by Geo. W. Hill to Mrs. Breed is not situated within the limits of the town of Zephyr, as laid out by original plat and addition thereto, but lies beyond such limits some fourth of a mile from the limits of said town as laid out and used.
“(11) I find that the town of Zephyr' is unincorporated and is a village of some 500 or 600 people and has stores, churches, schoolhouses, residences, and has streets and alleys, and that several additions to said town have been made at different times, but that the land in question and claimed by Mrs. Breed lies without and beyond the original town and all additions thereto.
“(12) I find that the land described in the deed of trust is not, from the description given therein, the same land as that conveyed by Geo. W. Hill to Mrs. Breed, and that the description is not sufficient to give her record notice that said land was the same conveyed to her by Geo. W. Hill and not sufficient to put her upon inquiry.
“Conclusions of Daw.
“(1) That plaintiff is entitled to establish his debt against Geo. W. Hill and to a foreclosure of his deed of trust on the land described therein.
“(2) That the deed of trust does not cover the land of Bill's. Breed, and plaintiff is not therefore entitled to foreclosure of the deed of trust as to her or as to the land conveyed to her by Geo. W. Hill.
“(3) That Mrs. Breed is an innocent purchaser for value and without notice of plaintiff’s deed of trust, actual or constructive, and plaintiff is not therefore entitled to foreclosure of its deed of trust as to her on the land claimed by her.
“(4) Plaintiff is entitled to judgment establishing his debt as against Geo. W. Hill and for foreclosure of its deed of trust lien on the land described and as described in said deed of trust as against said Hill and said Hill only.
“(5) That plaintiff take nothing as against defendant Mrs. Breed, and that she go hence without day and recover her costs.”

In addition to the judge’s findings of fact it is proper to state that the undisputed proof showed that W. R. Shelton had never sold or conveyed to Geo. W. Hill any land other than that conveyed by the deed from W. R. Shelton and wife to Geo. W. Hill, dated August 2, 1907.

Opinion.

The trial judge’s seventh finding of fact, to the effect that up to the time that Blrs. Breed finished paying for the land she had no actual knowledge or notice of appellant’s deed of trust, is not challenged, and therefore we dispose of the case upon the assumption that the finding referred to is correct. Appellant’s contention is that the registration of the mortgage constituted constructive notice, and therefore Blrs. Breed was not entitled to protection as an innocent purchaser, as held by the trial court, but we are unable to concur in that contention. G. W. Hill sold and conveyed to Mrs. Breed a tract of land described as part of the Felix Ward-ziski survey, and further described by metes and bounds, and to contain 12½ acres, less a strip 20 feet in width off of the south side, which had formerly been sold to another party. The land so conveyed was not described as located within, and in fact was not and is not located within, the boundaries of the town of Zephyr, or of any addition thereto, as the same had been platted and recorded. Appellant’s mortgage does not refer to any land on the Wardziski survey, nor any land outside of the town of Zephyr, but purports to convey, not any portion of a 12½-acre tract, but 17 acres of land within the town of Zephyr, and further described as land deeded to Hill by W. R. Shelton about two years prior to the date of the mortgage, and the deed to which is described in the mortgage as of record in Brown county at that time. Now, the deed from W. R. Shelton and wife to Hill, under which Mrs. Breed claims, was executed only about six months prior to the execution of appellant’s mortgage and was not recorded at the time the mortgage was executed. Those facts would, it seems to us, justify a reasonably prudent person in reaching the conclusion that the mortgage was intended to convey a different tract of land from the one conveyed by Hill and wife to Blrs. Breed. Hence we conclude that the trial court was correct in holding that Mrs. Breed was entitled to protection as an innocent purchaser. We think this case is readily distinguishable from Wilkerson v. Ward, 137 S. W. 158, and other cases relied on by counsel for appellant.

As to whether the mortgage was valid as between appellant and Hill, it is unnecessary for us to decide, because the trial court rendered judgment by default for appellant as against Hill, with a foreclosure of the mortgage according to .the description given therein; and if, as between appellant and Hill, the former had the right to a foreclosure as against the land as described in the deed from Shelton and his wife to Hill and from Hill to Mrs. Breed, it is quite clear that such a judgment would be barren and of no benefit because of Mrs. Breed’s superior title to the land.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: MOURSUND, J.

text:
    HOUK et al. v. ROBINSON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.)
    1. Waters and Water Courses (§ 156) — Irrigation Ditches — Enjoining Interference.
    Where land was conveyed by a water company to the common grantor of plaintiffs and defendants by a deed which provided that water would be delivered by the company for irrigation purposes to a point on a lateral, at which point the company would put in a water gate, that the purchaser would construct and keep in repair the lead ditches and all distributing ditches, that, if it should be necessary or proper to use one lead ditch to furnish water to more than one person, all such water takers might take water through such ditch, but each should contribute equitably and justly to the expense thereof, that the company’s engineer should determine the necessity and propriety of such common ditch, and that rights of way on and across the land for the furnishing of water to other persons were retained by the company, defendants, who purchased their land after a ditch used to furnish water to plaintiffs and others, the necessity for which had been determined by the engineer, had been constructed thereover, held their title burdened with the rights retained by the company for itself and the other water users, and subject to the right of way reserved, and might be enjoined from interfering with plaintiffs’ right to have such ditch kept open.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 17A-183; Dec. Dig. § 156.]
    2. Waters and Water Courses (§ 156) — Irrigation — Rights of Wat.
    • Where land was conveyed by a water company by a deed which provided that the purchaser should construct and maintain the lead ditches for irrigation purposes, that, if it should be necessary or proper to use one lead ditch to furnish water to more than one person, all such water takers might take water through the ditch, but that each should contribute equitably and justly to the expense thereof, and that rights of way for ditches were retained by the company for itself and other water users, and the company’s engineer determined that it was necessary and proper to use one lead ditch for the service of several owners, which ditch was accordingly constructed, maintained, and used, one of sucl^ owners had a right to go upon the land of another owner, across which the ditch was constructed, for the purpose of maintaining and repairing it, and the owner of the land upon which was the ditch could therefore be enjoined from interfering with such repair.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dec. Dig. § 156.]
    3. Waters and Water Courses (§, 158½)— Irrigation Ditches — Enjoining Interference.
    In a suit to enjoin interference with an irrigation ditch across defendants’ lands and interference with plaintiffs’ right to maintain and repair such ditch, where thp ditch was already in existence and was sufficiently described in the petition and exhibits to enable the proper location thereof, it was not necessary to describe it by metes and bounds.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 189; Dec. Dig. § 158½.]
    4. Injunction (§ 143) — Preliminary Injunction-Notice of Application.
    Under Rev. Civ. St. 1911, art. 4651, providing that upon application for a writ of injunction, if it appear to the judge that delay will not _ prove injurious to either party and that justice may be subserved thereby, he may cause notice of such application to be served upon the opposite party and fix a time and place for the hearing of such application, the matter of notice is within the discretion of the district judge whether the application is for a mandatory or a prohibitory injunction, and hence it was not error to grant without notice an injunction restraining interference with an irrigation ditch or with the restoration thereof by plaintiffs, though the ditch was on defendants’ land, where the petition alleged that defendants were not financially responsible, that plaintiffs were preparing their lands for fall crops, that without water for irrigation they would be unable to grow any crops, that the ditch existed before defendants purchased their land and as located took as little of the land as was practical with good service and gave good and sufficient service with the least possible injury, that defendants had prevented plaintiffs from opening up the ditch, after it had been closed by them, by force, and it appeared that before the next term of court plaintiffs would in the natural course of events lose their crops, since the comxjarative hardship or convenience is to be considered in granting or refusing preliminary injunctions.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. § 143.]
    5. Waters and Water Courses (§ 158½)— Irrigation Ditches — Enjoining Interference.
    In a suit to enjoin interference with an irrigation ditch across defendants’ land, the water company from which plaintiffs obtained water by means of such ditch, and which, in its conveyance of defendants’ land, reserved the right to maintain such ditch, was not a necessary party; it being ready and willing to furnish water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 189; Dec. Dig. § 158½.]
    6. Waters and Water Courses (§ 158½)— Irrigation Ditches — Enjoining Interference.
    That a water company which, in conveying certain land, reserved the right to maintain ditches thereover for the benefit of the land owned by plaintiffs, and from which plaintiffs derived water for irrigation purposes, was in the hands of a receiver appointed by a federal court did not affect plaintiffs’ right to an injunction restraining interference with the ditch on the part of the owners of the land across which it was constructed.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 189; Dec. Dig. & 158 ½.]
    Appeal from District Court, Cameron County; Wm. Masterson, Judge.
    Action by F. M. Robinson and others against Clyde Houk and others. From a judgment granting a temporary injunction, defendants appeal.
    Affirmed.
    J. M. Mothershead, of San Benito, for appellants. Morrison & Robards, of San Benito, for appellees.

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

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

   MOURSUND, J.

Appellees, during the absence of Judge W. B. Hopkins, judge of the district court of Cameron county, applied to Judge Wm. Masterson, of the Fifty-Fifth district of Texas, for a temporary injunction to require appellants to desist and refrain from interfering with appellees’ use of and rights in a certain irrigation ditch in Cameron county, Tex., and from interfering with plaintiffs in exercising their right to conduct and convey water through the said ditch and to have water flow across, along, and over the right of way described in the petition and from interfering with plaintiffs’ rights to irrigate their certain lands, or with the irrigation of said lands, and with plaintiffs’ right to go on, upon, and along the said right of way, and further to desist and refrain from interfering with the rebuilding of the said ditch and with the maintenance thereof when rebuilt. The injunction was granted upon the petition, no evidence being heard, nor opportunity given for answer, whereupon appellees appealed.

By the first assignment of error it is contended that the petition for injunction is insufficient in that it fails to show that appellants are parties in privity with appellees’ water contract with the company. The proposition thereunder is as follows: “The right and duty to furnish appellees water as shown by the allegations in the petition and the water contract devolves upon the company, the water belonging to the sovereignty, and the privilege and duty of furnishing the same belongs to the company, and the appellants are not in privity with said contract, and therefore no right of action lies against these appellants by the appellees to compel appellants to perform the duty or furnish the means for conveying water to appellees.”

While it is clear from the petition that it is the right and duty of the company to furnish water, yet they could not get the water as long as appellants kept the ditch across their land closed, and the question for determination was whether the petition showed a right on the part of appellees to have such ditch kept open so that water could run through it, and, if so, whether appellants had invaded that right, and whether such damage was threatened as would entitle ap-pellees to relief by injunction. Considering the petition and plats attached, it is clear that both appellants and appellees deraign title under W. H. Stenger, who held under deeds from the company containing the following clauses: “The considerations for this deed are as follows: First. The payment by said W. H. Stenger for the amount of cash recited in said deeds respectively. Second. The execution by the grantee and delivery to the grantor of certain promissory notes of the grantee [and then follows a description of the purchase money notes forming a part of the consideration]. Third. The covenants, agreements, stipulations, and reservations with reference to said land and with reference to the furnishing of water for the irrigation of said land and payments for such service herein set forth, and the agreements, covenants, and stipulations here made by the grantee and the payments here provided for being parts of the purchase price for said land and running with the land and being binding upon said grantee and all persons claiming by, through, or under him. Among the covenants, stipulations, and reservations above referred to, the following were set out and contained in each of said deeds: ‘The water will be delivered by the company to a point on a lateral of the company to be determined by the engineer of the company. The company will put in the water gate at said lateral and the purchaser will construct, maintain, and keep in good repair the lead ditches, levees, and gates and all distributing ditches and other conduits for the proper distribution of water over said land, under the direction of the manager or engineer of the company who shall, as to such matters, be regarded as the agent of the grantor, exclusively. Any failure on the part of the grantee to build or repair any of his levees shall authorize the company to do so at his expense. If it should be necessary or proper to use one lead ditch to furnish water to more than one person, all such water takers may take water through such ditch, but each shall contribute equitably and justly to the expense of constructing and maintaining such ditch; the engineer of the company shall determine the necessity and propriety of having such common ditch and shall determine and adjust the expenses and charges to be respectively paid by the water takers. The water gate' shall be under exclusive control of. the company, and the grantee shall not open same without the consent of the engineer or manager of the company. Rights of way on and across the land hereby conveyed for necessary ditches and drains for the furnishing of water to other persons and the drainage of land by such persons are retained by the company for itself and such persons. It is understood and agreed that any failure upon the part of the parties hereto to carry out the terms of this contract shall-not be grounds for the rescission of same, but that the grantor shall have the rights here-inbefore set out for its protection. Wherever in this conveyance the word “grantor” or the word “company” is used, it means the San Benito Land & Water Company, its successors and assigns, and wherever the word “grantee” is used it means the purchaser, his heirs, executors, and assigns.’ ”

It being alleged that the ditch was upon appellants’ land at the time they bought same, and an essential link in their chain of title containing the above provisions, they took the land subject to the same conditions and burdened with the same easements as when Stenger owned it. It was further alleged that the ditch was necessary to furnish water to appellees and others (and that its necessity had been determined by the engineer of the company), so that the lands owned by appellees and others could be irrigated. We conclude that the title held by appellants, according to the allegations made, was burdened with certain rights retained by the company for itself and others who might take water from the company and with reservation of right of way for necessary ditches for the benefit of the company and the persons to whom it furnished water. The suit is not one to compel the company to deliver water but to require appellants not to interfere with appellees’ right to have a ditch kept open so the company can deliver the water; such right existing by reason of the conditions and reservations made in the deeds to Stenger, the common grantor of appellants and appel-lees. The first assignment is overruled.

By the second assignment of error it is contended that the petition fails to aver all the facts necessary to entitle appellees to relief because it fails to allege that appel-lees have any right to go upon appellants’ lands and construct said irrigation ditch, but alleges in paragraph 8 that the company has such right. It is alleged that the ditch in question is a lead ditch, determined upon by the engineer of the company, and established for the purpose of conducting water from a point on a sublateral of the company to irrigate the lands of appellants, appellees, and others, and that said ditch was constructed by the owners of said land and maintained and used by them and the company to convey water for the irrigation of said land. The deeds to Stenger provided that the purchaser was to construct, maintain, and keep in good repair the lead ditches,. and, if it should' be necessary or proper to use one lead ditch to furnish water to more than one person, all such water takers might take water through such ditch, but each should contribute equitably and justly to the expense of constructing and maintaining such ditch, and that rights of way for necessary ditches were retained by the company for itself and other persons to whom water was to be furnished. It was further alleged that it appeared necessary to the engineer of the company to use a lead ditch from the water gate “to water the lands in the two tracts first aforesaid” (evidently referring to the tracts respectively owned by appellants, they being first mentioned in stating the ownership of the various parcels into - which the Stenger lands were subdivided), and that the engineer thereupon determined that it was necessary and proper to use one lead ditch for the service of the several owners of said land (evidently th6 Stenger land), and that said lead ditch from said water box was constructed by the then owners of said land (again referring to the Stenger land) and has since been maintained by them and used by them and the company for the purpose of conveying water for the irrigation of the above-described land. We are of the opinion that the allegations show such an interest in the ditch right of way as to entitle any one of the persons whose duty it was to maintain the ditch to go upon and along it for that purpose. It does not appear that the company has any greater rights in this respect than the water takers, but the company is given the express power to go upon the owner’s land to build or repair levees if the owner fails to build or repair the same. The assignment is overruled.

There is no merit in the third assignment of error. The ditch to be opened was the one which had already been in existence, and the description in the petition and exhibits was sufficient to enable the proper location thereof. It was not necessary to describe the same by metes and bounds.

The fourth assignment reads: “The court below should not have granted the writ of injunction mandatory in effect upon the petition without evidence and notice to the appellants, because the same transfers the possession of the property of these appellants and in violation of article I, § 19, Constitution of Texas.” The proposition is as follows: “A writ of injunction mandatory in effect and transferring the possession of property should not be granted upon a petition without evidence or (of) notice to the defendants.”

Article 4651, Revised Statutes of 1911, reads as follows: “Upon application for any. writ of injunction, if it appear to the judge that delay will not prove injurious to either party, and that justice may be subserved thereby, he may cause notice of such application to be served upon the opposite party, his agent or attorney, in such manner as he may direct, and fix a time and place for the hearing of such application.” This statute leaves the matter of notice within the discretion of the district judge and makes" no distinction between mandatory and prohibitory injunctions. In view of the statute, we do not feel authorized to reverse this case upon the ground that notice was not given appellants and evidence heard, even though of the opinion that the trial judge might well have pursued such course before granting the injunction. So far as the injunction itself is concerned, it merely directed that appellants refrain from interfering with appellees in the restoration by the latter of the status of the ditch as it existed at the time appellants forcibly took possession thereof and deprived appellees of the rights they had theretofore enjoyed. It was alleged that appellants were not financially responsible; that appellees were preparing their lands for fall crops of truck and feed stuff; that such lands are situated in a se’ction requiring irrigation in order to make crops; that “without' water for irrigation they will be unable to grow any crops whatever on said land, and, unless said ditch is rebuilt, forthwith they will be unable to irrigate land and will suffer irreparable injury and great loss.”

The deeds to Stenger were made in 1907 and 1908, and, while the date when the ditch was first constructed is not stated, it is alleged that it existed before appellants purchased their lands; that the ditch as located took as little of appellants’ land as was practical with good service and gave appellants good and sufficient service with the least possible injury. It was further alleged that by force and arms appellants prevented ap-pellees from opening up the ditch after it had been closed by appellants. It is apparent from the allegations that before the case could be reached for trial, at the term of court beginning November 10, 1913, appel-lees would, in the natural course of events, lose their crops. On the other hand, the damages to appellants, by reason of having the ditch open until the case is tried, cannot be very great Joyce in his work on Injunctions, vol. 1, § 25, says: “Where the rights of the parties are at all doubtful, the court applied to for an injunction should look at the balance of co'nvenience and act upon the consideration of the comparative inconvenience which may arise from granting or withholding the injunction. In- this connection it is said in a recent case: ‘In a doubtful case, where the granting of the injunction would, on the assumption' that the defendant ultimately will prevail, cause greater detriment to him than would, on the contrary assumption, be suffered by the complainant, through its refusal, the injunction usually should be denied.’ But where, in a doubtful case, the denial of the injunction would, on the assumption that the complainant ultimately will prevail, result in greater detriment to him than would on the contrary assumption be sustained by the. defendant through its allowance, the injunction usually should be granted, The balance of convenience or hardship ordinarily is a factor of controlling importance in cases of substantial doubt existing at the time of granting or refusing the preliminary injunction. Such a doubt may relate either to the facts or to the law of the case, or to both.”

In the case of Jeff Chaison Townsite Co. v. McFaddin, Wiess & Kyle L. Co., 56 Tex. Civ. App. 611, 121 S. W. 719, the Court of Civil Appeals for the First District held, in a case very similar to this, that a mandatory temporary injunction was justified. The threatened damage in that ease was much greater in extent than in this case, but the right to maintain the ditch across the land appears to have rested upon a much weaker foundation than in this ease.

We conclude that the assignment of error is not well taken.

The fifth assignment is overruled. The company was not a necessary party. It was alleged that the company was ready and willing to furnish water, and this was not a suit to compel the delivery of water but to compel the reinstatement of a ditch in order that the water might be delivered through the same.

By the sixth assignment it is contended that it was error to grant the injunction because the petition shows that the San Benito Land & Water Company was in the hands of a receiver appointed by the federal court, and the ditch sought to be opened is designated on the plat attached to the petition as S. B. L. & W. Co. Irrigation Canal. The allegations are to the effect that the ditch is a lead ditch constructed by the water users, and the only right the water company claims is the right to conduct water through the same under the reservations contained in the deeds. No rights of the company are sought to be affected by this proceeding but merely the right of appellees, who are two of the water users holding title under Stenger and who alleged that they wanted the ditch kept open at the place designated by the engineer of the company. We do not think the fact that the company is in the hands of a receiver appointed by the federal court has any bearing upon the questions arising in this ease and therefore overrule the sixth assignment of error.

Judgment affirmed.


author: RICE, J.

text:
    COOK v. BEAUMONT, S. L. & W. RY. CO.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 15, 1913.)
    Carriers (§ 369)- — Injury to Passenger-Ejection — Damages—Proximate Cause.
    Plaintiff, a clergyman, having an engagement to preach on Sunday, took passage on a train that did not stop at his destination, and was required to alight at another station some distance short of that place. The conductor returned his ticket, and informed plaintiff that he could proceed to his destination on a later local train, which would have reached there in time for his engagement. Instead of waiting for this train, however, he started to walk the remaining distance, carrying a heavy suit case. The weather was cold and rainy and the road heavy, and before he reached his destination he suffered from fatigue, contracted a cold, and was rendered unable to fill his engagement. Held, that such damages were not the proximate result of defendant’s refusal to transport him to his destination on the first train, or ejecting him short of that place, and could not therefore be made the basis of an action for damages.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1483, 1485-1487; Dec. Dig. § 369.]
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    Action by H. G. Cook against the Beaumont, Sour Lake & Western Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellant. Andrews, Ball & Streetman, McDonald Meachum, and W. D. Stephens, all of Houston, for appellee.

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

      For other cases see same topic and section NÜMB12K in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

This suit was brought by appellant against appellee to recover damages alleged to have resulted on account of his expulsion from one of its passenger trains. Upon the conclusion of the evidence the trial court instructed a verdict in behalf of appellee, which is assigned as error. No question is raised upon the pleadings; hence there is no necessity for outlining same. On the evening of the 12th of January, 1912, appellant purchased a ticket from appellee’s station agent at Beaumont, entitling him to passage over said road to Hardin, a station thereon. Learning that the train was several hours late, he did not offer himself as a passenger over said road until next morning. Before undertaking to board its morning train, however, he inquired at defendant’s office at the Crosby Hotel, to ascertain if he could ride upon said ticket, whereupon he was informed by the party therein, supposed to be the agent of the company, that his ticket was good for 24 hours, which had not expired, and directed him to take passage on the next train, stating that it would stop at Hardin, after which appellant boarded said train, replying, in response to the brakeman’s inquiry when getting on, that he was going to Hardin. When the conductor came around for tickets he asked appellant if he had bought the ticket that morning, to which he replied that he had not. Whereupon the conductor stated to him that he could not get off at Hardin, because this was a through train, and. did not stop there, but that he could ride as far as Hull, the next station. Appellant told him what the agent had stated, and insisted upon being put off at Hardin. The conductor refused to do this, telling him that he must get off at Hull, returning him his ticket, but permitting him to ride to Hull thereon. Upon reaching Hull, appellant disembarked under protest. The latter was a small hamlet, containing a store and some other buildings, besides the station and residence of the station agent, with whom appellant was acquainted, having previously taken dinner with him. Appellant was informed by the conductor, as well as by the brakeman before he left the train, that a local would pass Hull on that afternoon about 7 o’clock going to Hardin, upon which he could take passage. It appears from the evidence that appellee operated two trains a day from Beaumont to Houston, passing Hardin station; one was known as the Gulf Coast Special, which was a through train only stopping at two places between Beaumont and Houston, to wit, Gray and Hull, and did not stop at Hardin; while the other was a local train that stopped at all the stations between Beaumont and Houston. After being thus ejected at Hull, appellant sought to obtain some conveyance to Hardin, but was unable to do so, and after spending three hours there, he concluded to walk to Hardin, arriving there that afternoon about. 5:30 o’clock, very much fatigued and wearied by his journey, having carried his suit ease with him. The weather was cold, and.it was drizzling rain and the road was muddy, and before reaching Hardin he was overtaken by a shower and got wet, from which he contracted a cold, lasting him several days. Appellant was a clergyman, and the purpose of his visit to Hardin was to fill his appointment on the next day, which was 'Sunday. He testified that as a result of his walk he became stiff and sore, and was unable to fill his appointment the next day and night, and on account of which he suffered damages, for which the suit was brought

Appellant urges that the court erred in instructing a verdict in behalf of appellee, insisting that the pleadings and evidence raised an issue which should have been submitted for the consideration of the jury, and that it was improper, where such is the case, for the court to usurp the province of the jury and instruct a verdict. Whereas, appellee contends that the instruction was correct because appellant was not entitled to recover under the facts in evidence, for the reason, first, that if it be conceded that there was an issue raised by the pleadings and evidence as to whether or not appellee’s agent directed him to take the morning train, with the statement that it would stop at Hardin, nevertheless, if this was a mistake, then the conductor was not bound thereby, but it was his duty to inform appellant of such mistake and give him an opportunity to get off at Hull, which it was appellant’s duty to do. Besides this, it is also contended on the part of appellee that no damage accrued to appellant for which appellee was liable, because the injuries complained of were not the proximate result of the negligence of appellee, if any.

It is held in I. & G. N. R. R. Co. v. Hassell, 62 Tex. 256, 50 Am. Rep. 525, that, notwithstanding the fact that the agent of the railroad company, through mistake, directed a traveler to board a through train that did not stop at a certain station, nevertheless, the conductor had the right to correct the mistake and require the passenger to alight at some intermediate station before reaching his destination; and, if he was put off in a proper manner, no action would lie in favor of the passenger therefor. See, also, for a similar holding, St. Louis S. W. Ry. Co. v. Wallace, 32 Tex. Civ. App. 312, 74 S. W. 581; St. Louis S. W. Ry. Co. v. Campbell, 30 Tex. Civ. App. 35, 69 S. W. 451; Cluck v. H. & T. C. R. R. Co., 46 Tex. Civ. App. 112, 101 S. W. 1021. But the contrary seems also to have been held in M., K. & T. Ry. Co. v. Carlisle, 145 S. W. 653; G., C. & S. F. Ry. Co. v. Mooreman, 46 S. W. 662; I. & G. N. R. R. Co. v. Kilgoe, 71 S. W. 556; G., C. & S. F. Ry. Co. v. Rather, 3 Tex. Civ. App. 72, 21 S. W. 951; and other cases cited in appellant’s brief. But, without undertaking to reconcile this apparent conflict, it is only necessary to say that we can and do rest our holding upon the last proposition asserted by appellee, to wit, that appellant is not entitled to recover for the reason that he has suffered no damage for which appellee is justly liable. It appears from the evidence that he was put off in the daytime; that there was no immediate and pressing necessity for his arrival at Hardin prior to the time that the local train would have reached there. It is true that he states that it was his custom to reach Hardin the day before his appointment, so that the members of his church might be apprised of the fact that he was in town, and was expecting to fill his appointment the next day; but if he had waited for the local, which he knew would likely pass Hull that afternoon, he would have reached his destination about 7:30 o’clock that evening. At any rate, it seems to us that it was not incumbent upon him to undertake this journey on foot, through inclement weather, carrying a heavy valise that he must have known would have produced the very condition of which he-complains. Even if the company were guilty of negligence in compelling him to disembark at Hull, which we are not-prepared to concede, still it cannot be insisted with any degree of plausibility that they could have anticipated that appellant, on failing to secure a conveyance, would walk to Hardin that evening, but it was more reasonable for it to suppose that he would wait for the local train.

The case at bar is somewhat analogous to that of I. & G. N. R. R. Co. v. Addison, 100 Tex. 241, 97 S. W. 1037, 8 L. R. A. (N. S.) 880. In that case Addison, who lived at New Waverly, was merchandising at Con-roe, where he intended to go the next morning for the purpose of opening up his store. He testified that he went to the station at New Waverly, some 300 or 400 yards from his residence, for the purpose of taking the train to Conroe. It was a flag station, and he gave the usual signal for the train to stop, which was answered, but the train failed to stop and he was left. He immediately procured a team and drove through the country to Conroe. The weather was very cold and disagreeable, and though well wrapped, he took neuralgia on account of the exposure, from which he suffered a great deal. Chief Justice Brown, then Associate Justice, in delivering the opinion, says: “The only reason Addison had for taking the trip from New Waverly to Conroe that night was to prevent the loss of a few dollars which might, perhaps, accrue because the doors of his storehouse would not be opened on Monday morning. It cannot be said upon the facts of this case that his choice to make that trip in the nighttime and through the storm was a necessary or usual consequence of the failure of the railroad company to take him on the train, nor can it be said that the railroad company ought to have anticipated that he would do so rash a thing, for, surely, it does not need argument to impress upon the mind of any man the conclusion that it was not the act of a reasonably prudent man who had a proper care for his own safety and comfort The evidence is undisputed. It is his own testimony, and it leaves no ground for a difference of opinion, that he deliberately chose to undergo the discomfort and take the chance of injury to his health and his own personal safety in making a trip of that kind in the storm in order to save himself from slight pecuniary damages. The law does not permit a man under such circumstances to take the risks that Addison took, and to hold the railroad company responsible for damages which accrued by reason of his own reckless and imprudent acts” (citing Railway Company v. Thomas, 27 S. W. 419; Railway Company v. Fleming, 14 Lea [Tenn.] 128; Railway Company v. Cole, 66 Tex. 562, 1 S. W. 629; I. B. & W. Ry. Co. v. Birney, 71 Ill. 391).

In Russell v. M., K. & T. Ry. Co., 12 Tex. Civ. App. 627, 35 S. W. 724, affirmed by the Supreme Court, 93 Tex. 737, 35 S. W. 724, footnote, among other things it is said: “When the carrier violates its duty, and breaches the contract of carriage, it becomes responsible for the proximate- results of such act, but not for consequences that could and should have been avoided by the passenger. The passenger must make the best of the situation, and refrain from unnecessarily bringing about an aggravated state of consequences.”

We think in the present case that the company should not be held responsible for the damages claimed, because they were not the proximate result of the negligence alleged; and therefore the trial court properly instructed a verdict in behalf of appellee.

Finding no error in the judgment of the court below, the same is in all things affirmed.