text:
    MISSOURI, O. & G. RY. CO. OF TEXAS v. BROWNING et al.
    (No. 1289.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1914.)
    1. Depositions (§ 83) — Notice-Time of Filing.
    Defendant cannot object to depositions taken and used on behalf of plaintiff, on the ground' that defendant had not been legally served with. citation when the depositions were taken, in that it was served in the wrong corporate name.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.]
    2. Depositions (§ 83) — Time of Objections.
    Under Rev. St. 1911, art. 3676, providing that objections to the form or manner of taking depositions shall be made and determined at the first term of court after the deposition is filed, and not thereafter, a motion to suppress depositions on the ground that notice of the filing of interrogatories for the purpose of taking depositions was not served with citation could be denied, where not made until the second term after the depositions were filed.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.]
    3. Evidence (§ 471) — Conclusions op Witness.
    Evidence that a railroad engine was throwing more sparks at a particular time than was usually thrown by other engines passing in that direction was not objectionable as a conclusion, in absence of a showing that witness was not capable of telling, from observation, whether the engine threw more sparks than engines usually did in passing that point.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    Appeal from Grayson County Court; J. O. Adamson, Judge.
    Action by William Browning and others against the Missouri, Oklahoma & Gulf Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Jno. T. Suggs, of Denison, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellees.

      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

   HODGES, J.

On January 16, 1913, the appellees filed this suit against the appellant to recover damages for the destruction of a house by fire. It is alleged that the fire originated from sparks emitted by one of the appellant’s locomotives, and that the appellant was negligent in its equipment and operation. In a trial before a jury, a verdict and judgment were rendered in favor of the appellees for $250.

The first assignment of error is as follows: “The court erred in overruling and failing to sustain the motion of this defendant to quash and suppress the depositions of Maggie Robinson and Columbus Dibble, and in permitting the plaintiff to use and offer in evidence the deposition of said Maggie Robinson, for this: That, at the time the deposition of the said Maggie Robinson was taken, this defendant was not a party to this suit, and no citation commanding it to appear and answer had been served upon it as provided by law, and this defendant filed no cross-interrogatories to said witness, or otherwise in any manner entered its appearance herein, and said deposition was taken and returned at a time when this defendant was not a party thereto, and said deposition was not properly admissible in evidence against this defendant.” The proposition following this assignment is as follows: “A deposition taken by plaintiff is not admissible in evidence against a defendant in a suit when said defendant, at the time said deposition was taken, had not been made a party to such suit and had in no way waived its right to object to the admission of such deposition.”

It appears from the record before us that the corporate' name of the appellant is the Missouri, Oklahoma & Gulf Railway Company of Texas. The citation issued upon the filing of the plaintiffs’ original petition and served upon its agent in certain parts omitted the words “of Texas’* from the name of the defendant in the suit. The same words were also absent in the return of the sheriff. No question is made, however, about the service of the citation being upon the- duly authorized agent of the appellant and within proper time. At the next term of the court after the service of the citation, the appellant did not answer before the return day. No judgment was taken by default, but counsel for the appellees asked for and obtained permission of the court to have the citation amended by adding the words “of Texas” in the body of the citation and also in the ré-.turn of the sheriff. Those portions of the citation material to be considered in this connection are as follows: “You are hereby commanded to summon the Missouri, Oklahoma & Gulf Railway Company (of Texas), a corporation, by summoning G. H. Payne, its local agent,” etc., “then and there to answer the petition filed in said court on the 16th day of January, 1913, wherein William Browning is plaintiff, and the Missouri, Oklahoma & Gulf Railway Company (of Texas), a corporation, is defendant; the file number of said suit being 8676.” Then follow a statement of the nature of plaintiffs’ demand and the usual provisions commonly embodied in citations. After the amendment of the citation in the manner above referred to was permitted, the appellant filed an answer to the merits, and on its application the case was Continued for the term. At the next term thereafter appellant presented a motion to quash the depositions referred to in the assignment. The motion was based upon the assumption that the citation served upon appellant’s .agent was insufficient to require it to answer at the time the precept was issued to take the depositions of the witnesses mentioned.

In approving the bill of exceptions the court adds the following qualification: “Plaintiff, William Browning, sued the Missouri, Oklahoma & Gulf Railway Company of Texas. When citation was issued, the body of the citation stated the name of the defendant as the ‘Missouri, Oklahoma & Gulf Railway Company’; on the back of the citation the name of the defendant was properly stated, as alleged in plaintiffs’ petition (i. e., ‘Missouri, Oklahoma & Gulf Railway Company of Texas.’ The number in the body of the citation was 8676, and the number on the back of the citation was 8676. The Missouri, Oklahoma & Gulf Railway Company filed an answer in this case the Missouri, Oklahoma & Gulf Railway Company of Texas refused to answer. The plaintiff then filed a motion to permit the clerk to amend the citation by writing in the body of the citation the words ‘of Texas’ after the words ‘the Missouri, Oklahoma & Gulf Railway Company.’ Upon hearing of this motion it was shown that G. H. Payne was the agent and only agent of the Missouri, Oklahoma & Gulf Railway Company of Texas in Grayson county, Tex., and that service was had upon the said G. H. Payne. The motion to amend the citation was granted, and, when the same was amended, the Missouri, Oklahoma & Gulf Railway Company, of Texas filed answer, and at the same time filed a motion for a continuance, which said motion for continuance was granted. Two depositions were taken by the plaintiff, pending the proceedings above stated. The defendant refused to cross either set of interrogatories. The plaintiff had new sets of interrogatories issued to take the depositions of these same two witnesses. At the next term of court, the case was set down for trial, and, when same was reached for trial, defendant filed a motion to quash the depositions. Plaintiffs’ attorneys stated in open court that one of the depositions had been retaken and returnéd into court; that he was informed by the notary taking the •depositions that the other deposition had been taken; and that the same would be returned into court that day. The motion to .suppress the depositions was then overruled.

.The deposition of the witness Columbus Dibble being retaken, the same was read with-. out objection. The deposition of Maggie Robinson not being returned during the trial, the court permitted the original deposition to be read, over the objection of the defend- ' ant. The day .after the trial the other deposition of the witness Maggie Robinson was returned into court. When the defendant presented a motion for a new trial in this .case, I consulted the original deposition of the witness Maggie Robinson and her deposition as retaken, and saw that the same were identically the same, with the exception of her answers to three cross-interrogatóries. Without setting out her answers to these three cross-interrogatories, the same simply corroborate her direct testimony, and the motion for a new trial was overruled because .a reading of the original deposition was not-harmful to the defendant.”

In legal effect the contention here is that the appellant was not required to observe any notice with reference to the filing •of interrogatories for the purpose of taking a deposition until after it had been legally served with the citation. We do not understand that to be the correct rule of law. Kottwitz v. Bagby, 16 Tex. 656; Connor v. Mackey, 20 Tex. 748.

It appeared from the bill of exceptions in the first case referred to above that the plaintiff on the trial offered in evidence a deposition to which defendant objected upon the ground that, at the time of serving the notice upon him, he had no notice of any suit by the plaintiff against him. Judge Wheeler, in rendering the opinion of the court, said this was an objection which should have been presented by a motion to suppress on account of the manner and form of taking the deposition, and that the objection was properly overruled because not seasonably made in the manner required by law. He adds, however: “But, if it had been taken in time, the objection was not tenable. The interrogatories and notice served upon the defendant sufficiently apprised him that the depositions were intended to be used in the trial of a suit then instituted against him; and there was nothing to prevent his propounding cross-interrogatories to the witness, if he chose to do so, though the citation had not been served upon him.”

In the second case referred to the same judge used this language: “It is no objection to the taking of depositions, to be read upon the trial, that the defendant has not answered. He is allowed time to file his answer; but, as he may be required to proceed to trial immediately after having answered, it is proper, and may be necessary, that he take steps in advance to obtain his evidence. 1-Iis failure to do so, when h.e might have obtained it, would deprive him of the right to a continuance.”

It does not appear from the bill of exceptions or from the facts stated in the brief of the appellant that notice of the filing of the interrogatories had not been properly served upon it. It does appear, however,'that this objection was not urged until the second term of the court after the depositions had been filed. Article 3676 provides: “When a'-deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences: Provided, however, that such objections shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter.” The court had the authority to refuse to entertain this motion at the time it was presented, under the foregoing provisions of the statute.

The second assignment of error complains of one of the answers given by the witness Maggie Robinson, upon the ground that it was the conclusion of the witness, and not a statement of a fact. The answer was as follows: “The engine was throwing more sparks than was usually thrown by other engines passing that point in that direction.” There is nothing in the statement in appellant’s brief accompanying this assignment which indicates that the witness was not fully capable of telling from her actual observation whether this engine threw more sparks than engines usually did in passing that point. The objection is untenable, and the assignment is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. PORTER et al.
    (No. 1282.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 1, 1914.
    Rehearing Denied April 16, 1914.)
    1. Railroads (§ 412) — Injuries to Animals —Fences.
    Though a railroad company had fenced its right of way sufficiently to prevent stock from getting upon the track, its duty to keep its right of way sufficiently inclosed was not thereafter discharged by the exercise of ordinary care to maintain the fence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1451-1458; Dec. Dig. § 412.]
    2. Railroads (§ 441) — Injuries to Live Stock.
    Where a horse was killed upon the right of way of the defendant railroad company, it is presumed that defendant’s train ran him down, and it has the burden of proving that the train was owned and operated by another company, though the petition alleged that the horse was run down by defendant’s train.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig: § 441.]
    3. Municipal Corporations (§ 753) — Liability por Acts of Agents.
    Where the servants of a municipality negligently made an opening in the fence of a railroad company, and a horse which strayed through the opening was killed on the tracks, the municipality is not liable to the railroad company, unless the making of the opening was within the scope of the authority of its agents.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1584, 1586; Dec. Dig. § 753.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by D. K. Porter against the Chicago, Rock Island & Gulf Railway Company, which impleaded the city of Dallas. From judgment for plaintiff, which denied the defendant relief against the impleaded city, defendant appeals.
    Affirmed.
    This was a suit by appellee Porter against appellant to recover the value of a horse killed by a train operated over its line of railway. It was alleged that the horse was killed “through the negligence and want of ordinary care of defendant’s agents and em-ployés operating its said cars, and through the failure of said defendant to protect the railroad by proper fencing at this point.” Appellant in its answer alleged that its line of railway was properly fenced at the place where the animal was killed, but that em-ployés of the city of Dallas, while laying water mains for that city, “broke down and removed the fence” which inclosed its right of way, “and left the same open, so that horses and other animals could get through the same and upon the defendant’s track,-• and defendant charges that the plaintiff’s horse, which is alleged to have been killed, and for which he sues, got through the opening left by the servants and the employés of the said city of Dallas and upon the track of defendant and was killed.” Appellant asked that the city of Dallas, the other appellee,-be made a party to the suit, and that, in the event appellee Porter recovered against it, it. have a recovery over against said city. The city of 'Dallas,' having been made a party, filed an answer. The verdict and judgment were in favor of appellee Porter against appellant for the sum of $250 as the value of the horse, and in favor of the city as to appellant’s suit against it.
    Lassiter, Harrison & Rowland and Bennett Hill, all of Dallas, for appellant W. J. Rutledge, Jr., O. F. O’Donnell, M. S. Church, and G. C. Adams, all of Dallas, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above).

The court instructed the jury, other conditions concurring, to find for appellee Porter if they believed from the evidence that appellant “failed to keep its track fenced with a fence sufficient to prevent stock of ordinary docility from getting through and upon the railroad track.” Having properly fenced its track, in the first instance, appellant insists that the duty it owed was only to use ordinary care to keep it so fenced, and cites Ry. Co. v. Reitz, 27 Tex. Civ. App. 411, 65 S. W. 1088, decided by the Court of Civil Appeals for the First District, as conclusive of its contention. In Ry. Co. v. Pruitt, 49 Tex. Civ. App. 370, 110 S. W. 966, this court held to the contrary, and the Supreme Court, in answering a question we then certified to it, settled the question against appellant’s contention, holding that “the condition upon which the immunity is allowed is that the road shall be fenced; that is, that it shall be sufficiently inclosed to prevent the passage of live stock, and not that it shall exercise ordinary care to see that it is maintained in that condition.”

It was shown that other railway companies also operated trains over appellant’s track at the point where the horse was killed, but the nature of the arrangement between appellant and said other companies under which they so used the track was not shown. Whether the horse was killed, by a train operated by appellant or by a train operated by one of said other railway companies did not appear from the testimony. Appellee Porter having alleged that his horse was killed by one of its trains, appellant insists he was bound to prove it, and, failing to do so, was not entitled to recover against it. But in such a state of the case we think a presumption should- be indulged that the horse was hilled by one of appellant’s trains. “It is a sound proposition, often applied,” said the Supreme Court in Ry. Co. v. Miller, 98 Tex. 273, 83 S. W. 183, “üiat a corporation, shown to be owner of a railroad in the operation of which a wrong has been done, is presumed to be in the possession and operation of its road. * * * The presumption to which we have referred puts upon the owner of a railway, on which an injury has been inflicted by moving cars, the burden of showing, at least, that such cars were not operated by it or under its control.”

What has been said disposes of the assignments, except one, which question the validity of the judgment in so far as it is in favor of appellee Porter against appellant. In the one excepted, appellant complains of the refusal of the court to peremptorily instruct the jury to find in its favor. On the issue between appellee Porter and appellant, we think the testimony would have more nearly justified a peremptory instruction to find in favor of the former.

The other assignments question the correctness of the action of the court in giving and refusing instructions with reference to appellant’s claim of a right to recover over against the city of Dallas in the event appellee Porter recovered against it.

Other conditions concurring, the court told the jury to find in appellant’s favor against said city, if they believed its employés “negligently made an opening or gap” in appellant’s fence. The contention is that, if the city’s employés made an opening in the fence through which the horse passed from the pasture in which it was confined to appellant’s track, their act constituted a willful trespass, for the consequences of which the-city was liable. If the instruction was erroneous, we think it was so because too favorable to appellant. Unless the act of the employés in making the opening in appellant’s fence was within the scope of their employment, the city was not liable, whether the act was willful or merely negligent. 3 Abbott’s Mun. Corp. § 973 et seq.; City of Galveston v. Brown, 28 Tex. Civ. App. 274, 67 S. W. 156. We have found nothing in the record showing that, if the employés of the city made the opening in the fence, they did so in the performance of a duty arising out of their employment. The evidence rather tends to show that, if they made the opening, it was for their own personal convenience merely in reaching a lake of water inside the pasture.

JTor the reason just suggested, we think the court did not err when he refused appellant’s request to instruct the jury to find for it as against the city in the event they found in favor of appellee Porter, if they believed employés of the city “cut down the fence or left down a gap in the fence, * * * and that plaintiff’s horse went through the opening in said fence and was killed.” If the employes, for purposes of their own, and acting without the scope of their employment, made the opening in the fence, the city was not liable for the consequences of their act.

The judgment is affirmed.


author: HODGES, J.

text:
    WILSON et al. v. SEARS.
    (Court of Civil Appeals of Texas. Texarkana.
    April 1, 1914.
    Rehearing Denied April 16, 1914.)
    Brokers (§ 40) — Compensation — Employment of Broker.

    Where the owner of land told a broker “to look around and find a purchaser,” she authorized him to perform a valuable service; and while it may have constituted merely an offer which might be withdrawn before a. purchaser was secured, where the offer was' not withdrawn, and the owner sold to a purchaser with whom she had been brought in touch through the broker, knowing that the broker had showed the land to such purchaser, the law will imply a promise to pay the broker’s commission.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 38-40; Dec. Dig. § 40.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by C. W. Sears against Laura C. Wilson and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Seth Shepard, Jr., of Dallas, for appellants. W. L. Mathis and Leake & Henry, all of Dallas, for appellee.

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

   HODGES, J.

This suit was instituted by the appellee against the appellants to recover the sum of $615 claimed as commissions on the sale of a tract of land situated in Dallas county. In a trial before the court without a jury a judgment was rendered in favor of the plaintiff below for the amount sued for.

The petition alleged, among other things, that: “On or about the 4th of October, 1910, the plaintiff was employed by the defendants and each of them, acting for themselves and acting through their agent with the knowledge and approval of the said defendants and each of them, to make a sale, on the usual commission, of a certain farm belonging to the defendants or one of them, situated near the town of Reinhart, Dallas county, Tex.; the said farm consisting of about 220 acres. That, for the said services to be rendered by the plaintiff in making sale of said farm, the defendants and each of them expressly and impliedly promised and agreed to pay to the plaintiff the usual’ brokerage commission, which said usual commission is and was 5 per cent, of the amount for which the property sells.” Then follow other allegations showing that the appellee performed the services contemplated by the parties, and that the sum sued for is the amount to which he was entitled as a commission of the purchase price of the property. The facts show that the land was the separate property of Mrs. Wilson.

The court found the following facts:

“(1) I find: That in the year 1910 Mrs. Laura C. Wilson, wife of Hunter L. Wilson, in her separate right, was the owner of the farm known as the ‘Old John Hughes Farm,’ located near Garland, Tex. That she bought the place about the summer of 1909, and sold it in the fall of 1910 to Luther Goforth. That some time during the summer of 1910 Mrs. Wilson, the defendant, had a conversation with the plaintiff, O. W. Sears, in relation to the sale of the said property for her. That this conversation occurred at the said farm, and Mrs. Wilson stated to the plaintiff, in answer to his inquiry if she wanted to sell her farm, that she would sell anything she had, provided she could make a profit on it, and asked the plaintiff to look around and see if he could get a purchaser, which he did. That plaintiff had received a commission from John Y. Hughes when he sold the same place to Mrs. Wilson for making the sale, which fact was known to Mrs. Wilson. That Mrs. Wilson also knew that Sears was accustomed to receive commissions on land sales made by him. There was no written contract, and nothing was said about commissions, but plaintiff understood that, if he secured a satisfactory sale, he would receive a commission, as also did Mrs. Wilson. In addition to the conversation between plaintiff and Mrs. Wilson, the plaintiff, some months later, had a talk with Mr. John V. Hughes, a relative of Mrs. Wilson; Mrs. Wilson at that time being absent in' New York, and Mr. Hughes attending to her business matters for her in her absence. That plaintiff asked Mr. Hughes if Mrs. Wilson still wished to sell her farm, and he said that she did, and plaintiff told him that, subsequent to his conversation with Mrs. Wilson, he had interested a couple of purchasers in the farm, and had him send her a telegram asking her what she would take for the place, and telling her what plaintiff could get for it. .The telegram to Mrs. Wilson mentioned the name of plaintiff and showed that he was engaged in the effort of selling the farm for her. The answer of Mrs. Wilson to Mr. Hughes gave a price of $14,000 on the farm, if sale should be made by a certain date. The contents of this telegram were communicated by Mr. Hughes to plaintiff. in the conversation between plaintiff and Hughes before the telegrams were sent, plaintiff asked to be assured of his commissions, and Hughes stated to plaintiff that Mrs. Wilson would have to pay him a commission if plaintiff sold the farm.
“(2) «Following his conversation with Mrs. Wilson, the plaintiff actively engaged himself in making a sale of the farm. He showed prospective purchasers over the place, including Luther Goforth, the man who later purchased the farm from Mrs. Wilson' herself, and .introduced Goforth and made him known to the tenant on Mrs. Wilson’s farm, which tenant later, at the instance or request of Mrs. Wilson, brought Goforth and another prospective purchaser to Mrs. Wilson; she being then aware of the fact that the plaintiff had shown Goforth the premises and that Goforth was a prospective purchaser introduced to her tenant by the plaintiff, she being otherwise unacquainted with the said Goforth.
“(3) After plaintiff had shown the premises to prospective buyers, and the telegrams above mentioned had passed between Mr. Hughes and Mrs. Wilson, Mrs. Wilson within a few days arrived at Dallas and registered at the Southland Hotel. That the tenant of defendant, who had been introduced to the prospective buyers by the plaintiff, brought two of said buyers in to see the defendant Mrs. Wilson, and, after she had discussed the sale of the farm with both of the two said buyers, she made a sale of the same to Luther Goforth for the sum of $12,-300, a less price than that for which she had authorized the plaintiff to make sale of the farm. The sale was made on the occasion of the first interview between Mrs. Wilson and Goforth, the purchaser. If Sears had offered the place to Goforth for $12,-300, Goforth would have made the purchase from him. Plaintiff first called the attention of Goforth, the purchaser, to the farm as being on the market for sale. At the time that Mrs. Wilson sold the land to Goforth, the plaintiff and Goforth were still engaged in negotiations over the purchase upon the basis of the price which had been given to plaintiff by Mrs. Wilson. That the object of Mrs. Wilson in dealing direct with Go-forth was to save the payment of a commission to plaintiff. That the usual broker's commission for the sale of farm land is 5 per cent, of the selling price.”

Upon these findings, the court concluded, that the appellee was entitled to recover, and awarded judgment accordingly:

It is insisted in this appeal that the facts do not justify the judgment rendered, because they do not show the existence of a contract by which Mrs. Wilson became bound to pay the commissions claimed. The appellee testified, among other things, as follows: “I talked to her (Mrs. Wilson) about selling it one day when she was at the farm. She came over and stayed all night, and I asked her if she wanted to sell the farm, and she said she would sell anything she ‘ had, provided she could make a profit on it, and asked me to look around and see if I could-get a purchaser, and I did so. The time I had this conversation with her was along several months before I sold the place.” The testimony in other respects supports the court’s' findings of fact, unless it be that portion where he finds that Mrs. Wilson received and replied to the telegram sent by Hughes. According to her testimony, at the time this, telegram was received in New York she was on her way to Texas and did not see it, and knew nothing o£ any reply having been sent; the telegram was received and answered by her husband in her name. She further testified that Mr. Hughes had no authority to represent her in her real estate transactions. Goforth testified that he desired to buy the property, and went to Sears, the appellee, for the purpose of ascertaining the name of the owner, and whether or not it was for sale. He corroborates Sears in the fact that the latter showed him over the premises and undertook to communicate with Mrs. Wilson through Mr, Hughes. He also testified that, at the time he and Mrs. Wilson concluded to trade, he told her that Sears had shown him over the property.

Counsel for appellants insist that, taking the language of the appellee as to what occurred between him and Mrs. Wilson in its most favorable light, it is not sufficient to support the conclusion that a binding contract was made between the parties. We do not think it is necessary to hold that a contract in its entirety was concluded between the appellee and Mrs. Wilson at the time referred to, in order to support the judgment. When Mrs. Wilson expressed a willingness to sell her land and told the appellee to find, a purchaser, she authorized him to perform for her a service which the law regards as valuable, and for which she might well expect to pay a consideration. It may be conceded that at that time, and for several months thereafter, this was but an offer which' she had a right to withdraw if she wished to do so; but this was not done. When the appellee performed the service contemplated, he had a right to expect and demand compensation, and the law will imply a promise to pay it.

Counsel for appellants refers to Dunn v. Price, 87 Tex. 318, 28 S. W. 681, as being decisive of this case. In that case the facts showed that Dunn was the owner of the Mansion Hotel in Et. Worth. In a conversation with Price, Dunn remarked that he wanted to sell this property and leave Et. Worth; that he would take $30,000 for it. After some further conversation as to what was included in that offer, Price asked Dunn if he was in earnest about taking $30,000. The latter replied that he was in earnest; that he meant business; and said that if he (Price) did not think he was, to bring him a purchaser and see how quick he would make a deed. Price inferred from that language that he was requested to find a purchaser for the property. He produced one who was ready and willing to take the property upon the terms proposed by Dunn, but the latter insisted on other terms, which prevented a consummation of the trade. In a suit by Price for commissions, the Supreme Court held that the language attributed to Dunn was not sufficient to support a conclusion that Price had been employed to find a purchaser for the property. We think the facts of that case are clearly distinguishable from those involved in this. It will be observed, by a careful reading of the opinion, that the Supreme Court held that Price had no authority to act for Dunn. The result would have been different, we think, had Dunn used language attributed to Mrs. Wilson in this instance, “Look around and find a purchaser.” The evidence shows that Mrs. Wilson knew that the service had been performed by appellee before she concluded her trade with Goforth.

The judgment of the district court is affirmed.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. BROWNE GRAIN CO.
    (No. 1285.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1914.)
    1. Pleading (§ 8) — Allegations—Conclusions.
    Where the petition in an action by a carrier for freight alleged that defendant bought corn of the consignor, f. o. b. cars, that the bills of lading stipulated that the owner or consignee should pay the freight, that defendant sold the corn, indorsed the bill.of lading, and delivered the same to the purchaser, to whom the carrier delivered the corn at the point of destination, an averment that defendant was the owner and the consignee named in the bill and an averment that defendant was the assignee of the shipper or person signing the bill were mere legal conclusions, and could not be considered in determining the sufficiency of the petition to state a cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. § 8.]
    2. Carriers (§ 194) — Carriage of Goods— Liability for Freight.
    One who is not the consignor or consignee of goods, and who does not receive the goods from the carrier at the point of destination, but who merely indorses the bill of lading, is not liable for the freight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.]
    3. Carriers (§ 194) — Carriage of Goods— Liability for Freight.
    Where a consignee in a bill of lading stipulating that the owner or consignee should pay the freight assigned the bill of lading before delivery, and the carrier made delivery to the as-signee, who purchased the goods from the consignee, the consignee was not liable for the freight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by the St. Louis Southwestern Railway Company against C. Y. Browne and another, doing business under the name of the Browne Grain Company. From a judgment of dismissal, plaintiff appeals.
    Affirmed.
    This suit was commenced in a justice court July 5, 1910. Appellant was the plaintiff. It sought a recovery of $44.38, which it alleged to be due it by appellees, C. V. and E. P. Browne, who did business under the name of “Browne Grain Company,” as freight on a shipment made November 18, 1907, and a shipment made December 28, 1907. April 4, 1911, appellant so amended its demand as to claim, in addition to said sum of $44.38, the sum of $125.75 as freight due it on a shipment made in February, 1908, and on a shipment made March 9, 1909. The judgment of the justice court was in appellees’ favor. Appellant prosecuted an appeal to the county court, where, on. June 6, 1913, it filed an amended petition, in which it alleged that it .was a railway corporation, and, as a common carrier, carried freight for hire, and then alleged that on December 27, 1907, appellees “had shipped from Chiekasha, I. T., to Stuttgart, Ark., a car of ear corn * * * over the line of this plaintiff, but not all of the distance on this plaintiff’s line. The lawful charges for freight on said shipment, as fixed by the tariffs regularly on file with and approved by the Interstate Commerce Commission and, in effect, at the time, was $120.62, but the plaintiff, through its agents, collected only the sum of $106.43, leaving a balance still due of $14.19. Said ear was delivered by this plaintiff’s agents at Stuttgart, Ark., and it was the duty of plaintiff and its agents to collect the full amount of the lawful freight charges.”
    After making similar allegations with reference to other interstate shipments, and claiming as unpaid of the freight charges thereon sums aggregating $155.21, appellant further alleged as follows:
    “(5) In each instance above stated defendants bought the contents of the car above stated, and a bill of lading was issued for each ear, and each bill of lading was signed by the agent of the railway company issuing the same, and by the shipper from whom the defendants bought the contents thereof, and in each instance the said bill of lading contained the following clause, to wit: ‘It.is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any of said property that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, and which are agreed to by the shipper and accepted for himself and assigns.’ Also the following clause: ‘The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.’
    “(6) The said shipments in each instance passed over a portion of various lines of railway, and, upon delivery of the said cars, it became the duty of the plaintiff to collect the total amount of freight charges due in each instance on each of said ears, and, if mistaken in this allegation, then it alleges that, by reason of the law applicable to the said shipments and the facts, the plaintiff has become and is the assignee of all parties interested in said shipments and over whose lines of railway the same moved, and is therefore entitled to prosecute this action.
    “(7) In each instance above stated the defendants bought the contents of each of the said cars f. o. b. the point of origin, and in each instance sold each of the said cars delivered at destination, and indorsed the bills of lading in each ease.
    “(8) By reason of the premises, the defendants in each instance became the owner and the consignee of each of the said shipments, and also became the assignee of the shipper or person who signed the said bills of lading.
    “(9) The words ‘lawful charges,’ as used in the preceding clauses hereof, is meant and intended to mean the lawful freight charges as fixed and determined by the tariffs lawfully issued, published, and filed with the Interstate Commerce Commission, in effect, at the several times of the shipments herein made and applying to the articles herein specified.
    “(10) By reason of the premises, the defendants have become bound and obligated to pay all the charges on said shipment, and this action is therefore founded upon and is in part evidenced by the said bills of lading, which constitute a written contract on the part of the defendants to pay the several amounts herein sued for.”
    An exception to the petition, on the ground that it appeared therefrom that the cause of action' asserted therein was barred by the statute of limitations of two years, was sustained, and, appellant declining to amend, the cause was dismissed.
    E. B. Perkins and D. Upthegrove, both of Dallas, and Garnett & Hughston, of McKinney, for appellant. Sam Neathery, of McKinney, for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). We are of the opinion the petition does not state a cause of action against appellees, and that the judgment therefore should be affirmed, without inquiry as to whether, if it did state a cause of action, the statute of limitations of two years would be applicable to it or not.

It appears from the allegations that appellees bought the corn of the. consignors thereof f. o. b. the cars at the points where the shipments originated. It further appears that bills of lading covering the shipments, containing a stipulation that “the owner or consignee should [shall] pay the freight and all other lawful charges on said property, and, if required, should [shall] pay the same before delivery,” were issued by appellant to the consignors. And it further appears that appellees, having sold the corn, indorsed the bills of lading and delivered same to the purchasers, to whom appellant delivered the corn at the points to which same was destined. It is not alleged, except as a eon-elusion of the pleader from facts alleged, that appellees were the consignees named in the hills; and from the same facts the pleader draws another conclusion, to wit, that ap-pellees were “the assignees of the shipper or person who signed the hills of lading.” If by the latter conclusion the pleader meant, as it seems he did, that the consignors were also the consignees, and, as such, had assigned the bills of lading to appellees, then it is not consistent with the other conclusion drawn from the same facts; and for that reason, and for the further reason that, like the other conclusion, it was not warranted by the facts stated, it should not, any more than the other conclusion, be given any effect in determining the sufficiency of the allegations to show a cause of action. Ewing v. Duncan, 81 Tex. 286, 16 S. W. 1000. In the case cited the court said: “Courts sit to try causes upon positive averments, and not to hear and determine issues presented by allegations which affirmatively show that the pleader is in doubt as to the truth of the matter alleged.”

But, if the conclusions of the pleader should be treated as allegations of fact, and not within the rule announced in the quotation just made from the Ewing Case, it would still appear that the petition did not state a cause of action against appellees; for, if they were neither the consignors nor consignees of the corn, nor the persons to whom same was delivered at its destination, but merely the assignees or indorsees of the bills of lading, they clearly were never liable to appellant for the freight And, if they were the consignees, the liability which prima facie would rest on them as such was shown not to exist by the allegation charging that appellees, before the corn was delivered, indorsed the bills of lading, and so assigned the property to other parties, to whom same was delivered by appellant. 4 Elliott on Railroads, § 1559; 2 Hutch, on Carriers, §§ 807, 808. In the work first cited it is said: “If the consignee assigns the- bill of lading before the goods are delivered to him, his indorsee, by accepting them, usually becomes liable, and the carrier, by delivering them to the latter, releases the consignee, unless the indorsee received them as the consignee’s agent.” The same rule is thus stated by Hutchinson: “If the consignee assigns the bill of lading before the goods are delivered to him, and thus enables his indorsee to receive them, he does not become liable for the freight, unless his indorsee received them as his agent. The ordinary contract of the carrier is to deliver the goods to the consignee or his assigns, ‘he or they paying freight,’ and whoever accepts them under such a contract becomes liable for the freight; and if the carrier delivers them to an assignee of thd contract, without relying upon his lien to secure its payment, he must.be understood as relying upon the personal liability of the assignee alone, if the assignee does not act as the agent of the assignor. A new contract arises, under such circumstances, between the assignee and the carrier.” It not only does not appear from the allegations that the parties to whom the corn was delivered were appellees’ agents, but, on the contrary, it appears therefrom that at the time the com was delivered to said parties they were not such agents, but were the owners of the corn by purchase from appellees. Treating .appellees, as the consignees named in the bills of lading, we do not think the stipulation therein that the “owner or consignee” should pay the freight affects the conclusion we have reached. That stipulation should, we think, be construed as meaning, not the owner or consignee of the corn at the time it was shipped, but the owner or consignee thereof at the time it was delivered by appellant.

The judgment is affirmed.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WADSACK.
    (Court of Civil Appeals of Texas. Texarkana.
    March 19, 1914.
    On Motion for Rehearing, April 9, 1914.)
    1. Appeal and Error (§ 499) — Bill of Exceptions — Necessity—Instructions.
    Rev. St. 1911 art. 1971, as amended by Acts 1913, p. 113, provides that the charge shall be in writing, signed by the judge, and, after the evidence has been concluded, shall be submitted to the respective parties or their attorneys for their inspection, and reasonable time given for presentation of objections, which shall in every instance be presented to the court before the charge is read to the jury, and all objections not so presented shall be considered waived. Article 2061, as amended by the same act, declares that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to as provided in the foregoing articles (articles 2058, 2059, 2600). Held that, under such provisions, the only ruling on instructions which is reviewable is the court’s ruling on objections to the charge at the time and in the manner specified, which objections cannot be reviewed, unless presented and brought into the record by a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Appeal and Error (§ 499) — -Request to Charge — Refusal-Review—Bill of Exceptions.
    Under Rev. St. 1911, art. 1973, as amended by Acts 1913, p. 113. declaring that, when the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he gives and which he refuses, and shall subscribe his name thereto, and such instructions shall be filed with the clerk, and shall constitute a part of the record of the cause, subject to revision for error, the amendment having stricken the further clause, “without the necessity of taking any bill of exceptions thereto,” the refusal- of a special charge cannot be considered on appeal, unless the complaining party shows by bill of exceptions that the particular charge was requested and refused, and that the court’s action in so doing was excepted to at the time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by John Wadsaek against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marsh & McIlwaine, of Tyler, for appellant. Johnson & Edwards, of Tyler, for appellee

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

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

   HODGES, J.

About the 4th of September, 1912, Mrs. Nancy Wadsack, the wife of the appellee in this appeal, took passage on a train of the International & Great Northern Railway Company at Arp, in Smith county, Tex., destined for Palestine, in Anderson county. At Jacksonville, a station between those points, the International & Great Northern Railway runs practically north and south. It is there crossed by the line of railway of the appellant, St. Louis Southwestern Railway Company of Texas. The crossing of the two railways is at a common grade between the depot of the International & Great Northern Railway Company and a water tank. The train in which Mrs. Wad-sack was riding stopped at the water tank for the purpose of taking water after leaving the depot at Jacksonville, and the coach which she occupied stood directly over the crossing of the two railroads. While in that position one of appellant’s freight trains approaching from the north ran against the coach occupied by Mrs. Wadsaek, and over1 turned it, inflicting upon her severe personal injuries. A trial before a jury resulted in a verdict in favor of the plaintiff below for the sum of $10,000. The suit was originally against both railway companies; but before trial the plaintiff dismissed as to the International & Great Northern Railway Company, and obtained a judgment against the appellant only.

Among the acts of negligence alleged was the failure of the appellant’s engineer in charge of the train which caused the injury to bring his engine to a stop before attempting to cross the track of the International •& Great Northern Railway Company, in accordance with article 6564 of the Revised Civil Statutes of 1911. There is practically no dispute in the evidence as to the facts immediately attending the collision of the two trains. The engineer in charge of appellant’s train testified that before he reached the crossing he knew of the presence of the train in which Mrs. Wadsaek was riding; that for some distance north of the crossing the track of the appellant is on a grade sloping to the south; that as he came down that grade he tested the condition of his air brakes several times, and found them to be working satisfactorily; that just before reaching the crossing he again applied the air, but the brakes failed to hold the train, and, notwithstanding he reversed his engine, he was unable to stop his engine until after it struck and overturned the coach occupied by Mrs. Wadsaek. He accounts for the failure of the brakes to work at that particular time by saying that he must have exhausted too much of the air prior to making the final application.

The first assignment of error complains of the following portion of the court’s main charge: “So, if you shall find that a locomotive engine being operated by the defendant, St. Louis Southwestern Railway Company of Texas, was not brought to a full stop by the employes of defendant railway company in charge thereof before reaching the crossing of the International & Great Northern Railway Company over the St. Louis Southwestern Railway Company, and if you shall find that, as the direct and proximate result of such neglect, if any, to so stop the locomotive engine, a coach of the International & Great Northern Railway Company, in which plaintiff’s wife was riding, was run into by such locomotive engine, and if you find that, as the direct and proximate result thereof, she was injured, it will be your duty to return a verdict for the plaintiff.” The objection to this charge is that it is more onerous than the law requires; that it makes the appellant liable absolutely for the injury, without reference to the care which the engineer may have exercised in his efforts to'stop the train. The seepnd assignment complains of the refusal of the court to give a special charge, which is as follows: “You are charged that, unless you believe from the evidence in this ease that the operatives of defendant’s train failed to exercise ordinary care and caution to prevent the locomotive colliding with the train of the International & Great Northern Railway Company, upon which plaintiff’s wife was a passenger, then it will be your duty to return a verdict for the defendant in this case.” Without reference to the merits of these assignments, we are of opinion that in the present state of the record neither of them can be considered.

The Thirty-Third Legislature adopted some radical amendments to our practice statutes. Article 1971 of the Revised Civil Statutes was amended so as to read as follows: “The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the eourt before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.” Acts 1913, p. 113.

The transcript contains the following as the objections made to the main charge of the court:

“Objections and Exceptions to Charge of the Court.
“John Wadsack v. St. Louis Southwestern Railway Company of Texas. No. 7164.
“In the district court of Smith county, Texas, September term, 1913, comes now the defendant, St. Louis Southwestern Railway Company of Texas, by its attorneys, and excepts to the charge of the court:
“(1) In so far as the jury is therein charged that, if the locomotive was not brought to a full stop by the employSs of defendant company in charge thereof before reaching the crossing, defendant would be liable to plaintiff for such damages as his wife sustained, for the reason that the charge is more onerous than the law requires, in that it makes defendant company liable absolutely for the injury, although the jury might otherwise believe from the evidence in the case that the employSs of said train exercised proper care to avoid inflicting injury upon plaintiff’s wife.
“(2) Because, the evidence showing that plaintiff’s wife was not a passenger on one of defendant’s trains, defendant was under the duty to exercise only ordinary care for her safety, and as to whether it did or did not exercise such care is under the evidence in this case an issue of fact to be passed upon by the jury.
“(3) Because the effect of the charge, the evidence showing that the train was not brought to a stand, is to tell the jury that the only issue before them is the amount of damages that was sustained by plaintiff’s wife.
“(4) Because the court should in his charge define negligence to the jury, and should charge them that, unless they believed from the evidence defendant to be negligent, it would be their duty to return a verdict for the defendant.”

Signed by the attorneys for defendant, St. Louis Southwestern Railway Company of Texas.

Indorsed: “File No. 7164. Jno. Wadsack v. St. Louis Southwestern Railway Company of Texas.”

The act above referred to also contains the following as an amendment to article 2061 of the Revised Civil Statutes of 1911: “The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles.” This article is a part of chapter 19, tit. 37. It evidently refers to the articles which precede it in that chapter — articles 2058, 2059, and 2060. Those articles are as follows:

“Art. 2058. Whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.
“Art. 2059. No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.
“Aft. 2060. Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions; but it shall be sufficient to refer to the same as it appears in the statement of facts.”

It was the manifest purpose of the Legislature, in adopting these different amendments, to so reform the practice in our judicial procedure as to reduce the number of reversals on appeal for purely technical errors. Heretofore the rulings of the court in giving and refusing charges was regarded as excepted to in every instance, without any express reservations by bill or otherwise. The effect of the amendment to article 2061 is to place the rulings of the court in giving or refusing charges in the same category with other rulings not appearing of record as to the formalities required for their consideration on appeal. Appellate courts can now no more review the action of the trial court in giving or refusing charges than they can the rulings admitting or excluding testimony, without proper bills of exception. It also follows that bills of exception relating to the giving or refusing of charges must conform to the requirements provided by statute for bills of exception generally.

Article 2064 is as follows: “It shall be the duty of the judge to submit such bill of exceptions to the adverse party or his counsel, if in attendance on the court, and if the same is found to be correct, it shall be signed by the judge without delay and filed with the clerk.”

That a bill of exceptions not signed by the trial judge cannot be considered on appeal is too well settled to require the citation of authorities. It seems to be the object of the amended law to restrict appellate courts to the consideration of the very objection which is presented in the trial court. We think the bill should also show on its face a compliance with article 1971 as amended; that is, that before the charge was read to the jury the objection urged on appeal had been called to the attention of the trial court. We must now look to the bills of exceptions in order to determine what the objections to the charge were, and whether or not they were seasonably made.

The instrument embodying the objections presented in this appeal is not signed by the trial judge, and is lacking in other essentials necessary to constitute a proper bill of exceptions, and to entitle it to consideration on aixpeal. There is a total absence of any bill of exceptions to the ruling of the court in refusing the special charge upon which the second assignment of error is based, For the reasons stated, neither the first nor the second assignment can be considered.

The remaining assignment complains of the verdict as being excessive. It is unnecessary to state in detail the extent of the injuries which the evidence shows Mrs. Wad-sack received. We have carefully considered the evidence upon this issue, and do not feel inclined to disturb the verdict of the jury. There is nothing in the record to indicate that the issue as to the character and extent of the injuries was not fairly presented and properly considered by the jury.

The judgment is accordingly affirmed.

On Motion for Rehearing.

Counsel for appellant have filed an able and elaborate argument in connection with the motion for a rehearing, in which it is insisted that the amendatory act discussed in the original opinion does not justify a refusal on the part of the court to consider the two assignments of error. In view of the fact that this decision involves an important rule of practice, we have again considered the questions presented, and shall undertake to state more comprehensively the reasons upon which our ruling is predicated.

We have here practically two questions: (1) Is it necessary, under the act of 1913, in order to have an objection to .the main charge of the court considered on appeal, for the complaining party to show by a bill of exception, or by some form of certificate signed by the trial judge, that the particular objection urged on appeal was presented in the court below before the charge was read to the jury? (2) Is it necessary, in order to have the refusal of a special charge considered on appeal, that the complaining party show by a bill of exception that the particular charge was requested and refused, and that this action of the court was excepted to at the time? We shall consider these questions in the order in which they are stated.

As is well known, before the adoption of this amendatory act of 1913 the trial judge was not required to submit his general charge to the parties or their attorneys for their inspection, nor was he required to read his charge to the jury till after the arguments were concluded. There was no necessity for the parties or their attorneys to except, either to the general charge or to the giving or refusing of special charges, in order to enable them to urge objections and exceptions on appeal. Neither was it required that the charges themselves be incorporated in bills of exception in order to become parts of the record on appeal and subject to review. The purpose of the amendatory act of 1913 was to change this practice in some important respects. For instance, it requires that the general charge, after being prepared, shall be submitted to the parties, or their attorneys, for inspection, and a reasonable time given them in which to examine it and present objections thereto. The objections must in every instance, however, be presented to the court before the charge is read to the jury, and all objections not so presented shall be considered as having been waived. The charge must then be read to the jury 'before the arguments are made. Under the old practice charges were considered as excepted to for all purposes, and might be reviewed with reference to any objection presented for the first time on appeal. It was evidently the purpose of this amendment to so modify that practice as to restrict the appellate courts to the consideration of the particular objections to the charge which had been called to the attention of the trial judge at a time when he had it in his power to correct mistakes, without the necessity of granting a new trial. Under the old practice he was not required to consider and rule on objections to the general charge before it was read to the jury. Such objections were called to his attention for the first time in the motion for a new trial. They might also be omitted from that motion, and still be available on appeal. Under the new statute, or the amendment to the old, when an objection to the charge is called to the attention of the trial judge before he delivers his instructions to the jury, he is required to make a ruling. He must either sustain the objection in whole or in part, and modify his charge accordingly, or he must overrule the objection, and read his charge to the jury as prepared, notwithstanding such objection. It is this ruling which the appellate court is to review, and which, like rulings on the admission and exclusion of testimony, must be considered with reference to the particular objections urged at the time. No other objection, however tenable, can be now considered, if the statute is obeyed. The question then is: Can this ruling be revised without a bill of exception or some certificate from the trial judge showing the nature of the objection, and that it was presented within the time required by the statute? Article 2058 says that “either party dissatisfied with any ruling, opinion, or other action of the court, must except thereto at the time same is made, or announced, and at his request time shall be given to embody such exception in a written bill.” When we consider in the same connection article 2061 as amended and appearing in the same chapter, there would be little room for the contention that a bill of exceptions in the ordinary form could be dispensed with. The uncertainty upon this question grows out of the language of article 1972, which is not amended by the new act. That article is as follows: “Such charge shall be filed by the clerk and shall constitute a part of the record in the cause, and shall be regarded as excepted to and subject to revision for errors therein without the necessity of taking any bill of exception thereto.” The legal effect of this language is to make the general charge a part of the record on appeal, without being incorporated in a bill of exception. To say that it thereby becomes subject to revision for any errors urged for the first time on appeal, or in the motion for a new trial, is to annul a material provision of the new act which says that all objection not presented to the trial judge before the charge is read to the jury shall be considered as waived. How, then, shall the appellate court be advised of the ruling on the objection presented, or that any such ruling was in fact made, if not by a bill of exception or some form of certificate by the trial judge? Such a ruling does not otherwise appear of record, and, unless presented in some authentic manner, cannot be considered. In the case, before us counsel for appellant, recognizing the necessity for showing that an objection was made to the charge, have incorporated in the transcript a statement' to that effect. This statement is not only without the signature of the trial judge, but fails to allege that the objection here urged was presented to the trial judge as required by the new act. The language of the statement may be literally true, and yet the objection might be one which the statute says shall be considered ds waived. But, even if the statement were as full and as specific as is necessary to show that the objection is one which should be considered on appeal, it would be anomalous to hold that such an instrument becomes an authentic record. There is as much reason for saying the same method would be sufficient in making up the record as to' rulings on the admission or the exclusion of testimony, or to show any other rulings not appearing of record, as to say it is all that is necessary in this instance. Whatever conflict there may be between the provisions of the new act and article 1972 must be settled by giving effect to the later statute. While repeals by implication are not favored, forbearance is not indulged when it becomes necessary to carry into effect the evident purpose of the Legislature as expressed in an act inconsistent with some previous law. When both cannot stand, courts do not differ as to which must yield.

Passing to the consideration of the second question, we think it clear that, in order to have the ruling of the court in refusing to give a special charge reviewed on appeal, an exception must be reserved by a bill in conformity with the provisions of chapter 19. It will be noticed that in amending article 1973 the Legislature simply dropped from the original article the words “without the necessity of taking ' any bill of exception thereto.” That portion of this article which is retained is as follows: “When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he gives and which he refuses, and shall subscribe his name thereto, and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause subject to revision for error.” The failure to retain the words “without the necessity of taking any bill of exception thereto” shows an evident purpose on the part of the Legislature to repeal that provision-That intention is made clearer still when we-consider article 2061 as amended.

Our conclusion is that we cannot consider either the objection to the main charge of the' court or his refusal to give the special charge referred to in the second assignment.

Counsel for appellee has intimated a willingness for us to waive any legal objection to the lack of formality in presenting the basis of the first assignment of error- — that relating to the main charge of the court. We do not now regard this as a matter resting in our discretion. Nowhere are we advised that this objection to the charge was presented as required by the statute, and it is distinctly enacted that all such objections not so presented shall be considered as waived. That, means they shall not be considered on appeal as grounds for reversing a judgment. This statute was enacted as a reform measure, designed to prevent unnecessary reversals. We feel it our duty to observe the spirit of the law and confine our deliberations to those errors which are. presented in accordance with its requirements..

Justice LEVY concurs in what is here said,, and withdraws his dissent.

The motion is overruled.


author: LEVY; J.

text:
    SUPREME LODGE OF FRATERNAL UNION OF AMERICA v. RAY et al.

    (No. 1257.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 17, 1914.
    Rehearing Denied April 9, 1914.)
    1. Equity (§ 3) — Jurisdiction—Grounds— Inadequacy of Legal Remedy.
    Equity will take jurisdiction, when necessary, to administer a preventive remedy, or when the ordinary courts are made instruments of injustice, or the legal remedy is inadequate to meet the demands of justice.
    [Ed. Note. — For other cases, see Equity, Cent.. Dig. §§7-12; Dec. Dig. § 3.]
    2. Equity (§ 46) — Jurisdiction—Adequacy-of Legal Remedy.
    A legal remedy is not adequate, so as to-prevent equity from taking jurisdiction, unless, it is as practical and efficient to secure the administration of justice as is the equitable remedy.
    [Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 151, 152, 157, 159-163; Dee. Dig. § 46.]
    3. Injunction (§ 26) — Grounds of Jurisdiction — Multiplicity of Suits.
    Equity will enjoin the prosecution of numerous suits at law where all of them arise from a common source, involve similar facts, and are governed by the same legal rules, so that the whole litigation may be settled in a single suit, and it appears that the maintenance of separate suits mil materially injure the parties.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    4. Injunction (§ 26) — Grounds os' Jurisdiction — Multiplicity op Suits.
    Where separate actions in justice’s court by 39 members of a fraternal benefit association were all brought solely to determine the right of the association to put in force an increased rate of assessment, equity will take jurisdiction to restrain the maintenance of the separate actions and to determine the whole matter in one suit.
    LEd. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    5. Injunction (§ 26) — Jurisdiction—Multiplicity of Suits — Conditions Precedent-Payment of Costs.
    One entitled to maintain a suit in equity to restrain the maintenance of 39 separate actions, brought against it in justice’s court, involving the same question, will be required, as a condition to the assumption of jurisdiction by equity, to pay all costs accrued in the justice’s court, but defendants may assert such right against complainant in their answer.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    6. Insurance (§ 719) — Mutual Benefit Insurance— Increase oe Assessment — Authority.
    Under the constitution of a fraternal benefit association, providing that if the assessment provided for is inadequate, then “further assessment” should be made as might be necessary to meet the benefits due and payable, the association may require payment of such increased rate of assessment, without restriction to any particular mode, as is necessary to fully meet the benefits due and payable, as by requiring an increased rate payable per month by each member.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.].
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Suit by the Supreme Lodge of the Fraternal Union of America against David R. Ray and others. From a decree dismissing the petition on demurrer, complainant appeals.
    Reversed and remanded.
    The Fraternal Union of America, incorporated under the laws of Colorado, is a fraternal benefit association, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and has a lodge system and a representative form of government, and makes provision by assessments on its members for the payment of disability and death benefits. Thirty-nine persons, each holding a certificate in the association, instituted separate suits against it in the justice court in Fannin county to recover all the assessments theretofore paid into the association, claiming that the increased rate of assessment on all its members put into force and effect by the association on April 1, 1913, constituted a breach of contract made with each of them in relation to the rate of assessment to be paid monthly by them. Upon the ground that the single question in controversy between the association and the plaintiffs in the numerous suits is that of the authority and power of the association under its constitution and by-laws to make the increased rate of assessment, the instant suit is brought by the Supreme Lodge of the association, having the object and purpose of the exercise of equitable jurisdiction by the district court to prevent the prosecution and defense of a multiplicity of suits by deciding the single and common question of fact and law between the association and all the defendants in a single suit. Attached to the complaint is an exhibit showing the names of the respective plaintiffs and the amount sued for in each suit, and the correctness of the amounts inferentially admitted. There has been no judgment of any kind upon any of the suits. A temporary injunction, restraining the defendants from further prosecuting the suits, as prayed for, was granted. At a regular term of the court a general demurrer was sustained to the petition ; and, plaintiff declining to amend, the cause was dismissed. The appeal is made to revise the ruling on the demurrer.
    According to the complaint the appellant association has a Supreme Lodge, with power to legislate for and on behalf of its members, consisting of Supreme Lodge officers and delegates elected in accordance with its constitution and by-laws by the subordinate lodges. It appeared that the payment of assessments charged to each beneficial member monthly, or at the rate originally adopted, was wholly insufficient and inadequate to fully meet the benefits accrued and payable from the union to the members and their beneficiaries. And in order and with -the view to meet and pay benefits due and payable and legally accruing, the Supreme Lodge, at regular meeting of March, 1913, determined to reasonably increase the rate of assessment, and adopted the rate of assessment based upon the National Fraternal Congress Table, effective on April 1, 1913. The original charter provision of the union confers the power to levy and collect assessments upon its members to raise sufficient funds to pay the benefits accruing to the various members and their beneficiaries, and the regularly adopted constitution of the association provided that certain rates of assessment should be charged to each beneficial member, according to age, payable monthly, and “also provided that in the event the same should be found insufficient or inadequate, then further assessment should be made as might be necessary.” The increased rate was no more than sufficient to adequately provide for the payment of the death and disability benefits accrued and payable and actually accruing for payment against the association. The application to become a member constitutes a part of the contract, and in the same the applicant agrees that any benefit certificate issued should be subject to all constitutional provisions and by-laws then and thereafter adopted by the organization, and the certificates provide upon their face for a full compliance with all of the provisions of the constitution and by-laws then and thereafter adopted. The question of law and of fact, it was averred, was common in all the cases in the justice court between the plaintiffs and the defendant. The prayer, upon final hearing, was that it be decreed that the association have full right and authority to' change and raise its rates of assessment, and that the plaintiffs have no cause of action against the association, and that the temporary injunction be made perpetual, and for other and proper equitable relief.
    Allen & Webster, of Denver, Colo., Mike E. Smith, L. M. Levy, and Theodore Mack, all of Ft. Worth, for appellant. Cunningham & McMahon, of Bonham, for appellees.

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

       Application for writ of error pending in Supreme Court.

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

   LEVY; J.

(after stating the facts as above). According to the allegations of the complaint, 39 persons are prosecuting separate actions in the justice court against appellant, all upon claims of a common origin, and predicated upon the single act of the association in putting into force and effect, on April 1, 1913, an increased rate of assessment, and depending upon the determination of the single question of the authority of the association to make the increased rate. If such suits are prosecuted further in the justice court, the peculiar situation is presented, differing from the ordinary cases, of requiring successive trial and retrial of the same question at the hands of the justice court, with the inconvenience, loss of time, and added expense that would follow. In view of the single issue, and as a means to afford relief against such loss, there is reasonably suggested, as being to the material interest of all the parties, the question of why one final decree between all the parties should not be had through a simplified procedure in consolidation of all the suits and issues into one suit between the parties. But the answer to the question must be, if the justice court retains the power to try the cases, that notwithstanding there is but a single and common issue between all the parties, yet administering relief against such irreparable loss that would probably follow many trials is legally impossible in such forum, because the law has circumscribed its power and does not warrant a consolidation of these suits or issues. It would seem to follow, therefore, that though the justice court has jurisdiction to try the subject-matter of - each separate suit, a proper relief in the particular situation here could not legally be afforded in that forum against such irreparable injury that would follow. But if, in view of the single question at issue between all the parties, consolidation of the suits into one suit for final decree be to the material interest of all parties, and the single defendant be entitled, as a clear and positive right, to have administered proper relief against irreparable injury from many successive trials of the same issue, and there is want of an adequate remedy or means for administering such relief in the jurisdiction of the justice court, there is manifestly, as a fundamental proposition, a weakened power in the courts to administer justice'if there is to be denied to such party aid from a competent court possessing adequate powers to meet the demands of justice. And it is not believed that, if there be a source or ground appearing of equitable jurisdiction, making a court of equity competent to assume or exercise jurisdiction, the denial of the proper exercise of equitable jurisdiction to such court would be warranted upon the sole fact that the justice court in the first instance is empowered to try each suit separately, without regard to the equitable remedy. There is no provision of law denying the exercise of the equitable jurisdiction when appearing and proper to exercise. And it is not the meaning of the terms of the law that the justice court should hold and retain jurisdiction as against the exercise of equitable jurisdiction in a given suit, where the exercise of equitable jurisdiction is properly demanded, and where the justice court does not possess the adequate powers to meet the demands of justice. It is the meaning of the terms of the law that where there is not the need or warrant for the exercise of equitable jurisdiction by a competent court possessing adequate powers to meet the demands of justice in the proper case, the justice court retains and holds exclusive jurisdiction to try its. proper cases.

As a fundamental principle equity takes jurisdiction where it is made necessary to administer a preventive remedy, or when the courts of ordinary jurisdiction are made instruments of injustice, or when the right of action is given by law, hut the remedy allowable by the court within its jurisdiction is inadequate to meet the demands of justice. Brown on Jurisdiction, § 196.

The constitution of the state (article 5, ,§ 8) gives the district court express jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or the constitution. And a remedy is not provided at law unless, as laid down in 1 High on Injunctions, § 30, “it is as practical and efficient to secure the ends of justice aud its proper and prompt administration as is the remedy in equity.” The several decided cases of this state granting injunctive relief against cases instituted in justice court when judgments had been entered have no relation to the precise question here, beyond showing that the exercise of equitable jurisdiction is warranted in the proper case by the district court possessing full powers to grant the proper relief. And the case of Ry. Co. v. Kuteman, 79 Tex. 465, 14 S. W. 693, was speaking particularly to the particular facts and situation there, and they are quite dis-similiar to the point here. The question of rightful jurisdiction in the district court to hear the complaint is therefore narrowed to the question of whether a court of equity may take jurisdiction to prevent multiplicity of suits, as here involved. We are mindful of the rule that each case should he made to depend upon its own peculiar facts, as carefully outlined in Hale v. Allison, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380, and Ry. Co. v. Woldert Gro. Co., 162 S. W. 1174. The equity suit here must result, in view of a single issue common to all the parties, in a consolidation of all the issues between the parties into one suit for final relief, with convenience and of material interest to all parties, and without injurious results to any of them.

The text-books recognize the general rule to the effect that equity will enjoin the prosecution of numerous suits at law where all arise from some common source, and are governed by the same legal rule and involve similar facts, and the whole matter might be settled in a single suit, and it is apparent that the maintenance of many separate suits will result in loss and be against the material interests of the parties. 1 Pomeroy, Eq. Jur. (3d Ed.) §§ 245-256; 2 Story, Eq. Jur., § S54, and others; 1 High on Injunctions, §§ 12, 62-65.

As said in 2 Story, Eq. Jur., supra, “One class of eases to which this remedial process is properly applied is where there is one general right to be established against a great numb.er of persons; and it may be resorted to either where one person claims or defends a right against many, or where many claim or defend a right against one. In such cases courts of equity interpose in order to prevent a multiplicity of suits; for if each separate party may sue or be sued in a separate action at law and each suit would only decide the particular right in question between the plaintiff and the defendant in that action, litigation might become interminable. Courts of equity, therefore, having a power to bring all the parties before them, will at once proceed to the ascertainment of the general right, and, if it be necessary, they will ascertain it by an action or issue at law, and then make a decree binding upon all parties.” And in Pomeroy, supra, sections 255, 269 and 274, it is stated that equitable jurisdiction is properly exercised where individual claims are legally separate, provided there is a community of interest among all the claimants in the question at issue and in the remedy.

In the case of Tribette v. Ry. Co., 70 Miss. 182, 12 South. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, the text mentioned in Pomeroy, supra, was discussed at length, and pronounced not sound as a fundamental proposition. But the same tribunal, in the later case of Crawford v. Ry. Co., 83 Miss. 708, 36 South, 82, 102 Am. St. Rep. 476, pronounces as follows: “We think the doctrine announced by Pomeroy is sound, and clearly established by the best considered modern cases.”

In the case of Guano Co. v. Saunders, 173 Ala. 347, 56 South. 198, 35 L. R. A. (N. S.) 491, the text is further discussed, and it is there pronounced that “unfortunately, however, the text announced by Mr. Pomeroy has been followed in a great number of adjudicated cases, and probably in the majority of the cases in which the exact proposition involved has been passed upon.” See So. Steel Co. v. Hopkins, 174 Ala. 465, 57 South. 11, 40 L. R. A. (N. S.) 464; Ins. Co. v. Distilling Co., 173 Fed. 888, 97 C. C. A. 400, 32 L. R. A. (N. S.) 940; Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. E. 53. The following cases, besides others, have followed and applied the rule: Kellogg v. Siple, 11 App. Div. 458, 42 N. Y. Supp. 379; Pfohl v. Simpson, 74 N. Y. 137; Bank v. Goddard, 131 N. X. 503, 30 N. E. 566.

In Hamner v. Garrett, 133 S. W. 1058, the Court of Appeals for the Second District said: “It is not to be doubted that in this state in a proper case the district court may issue an injunction to prevent a multiplicity of suits. See Ry. v. Dowe, 70 Tex. 5 [7 S. W. 368]; Realty Co. v. Haller [128 Mo. App. 66], 106 S. W. 589; Piano Co. v. MacMaster [51 Tex. Civ. App. 527], 113 S. W. 337. These' are all cases, however, in which the multiplied suits sought to be enjoined had been instituted or were threatened by persons claiming in a single right separate causes of action, arising from the same source.”

It is believed that this particular suit under the particular grounds alleged affords reasons for the exercise of equitable jurisdiction by the district court, and we so hold. A part of the equity devolving upon the complainant is, we think, the payment of all the costs accrued in the justice court, but we observe that the defendants herein can avail themselves of this right by claim therefor in the answer.

The next question is the sufficiency of the complaint, as against a demurrer, upon the subject-matter of the alleged power of assessment. The allegation in point is the authority of the association to raise the rate under the following clause of the constitution: “Provided in the event that the same .should be found insufficient or inadequate, then further assessment should be made ás might be necessary to fully meet the benefits due and payable.” Under the term “further assessment,” as alleged, there is power in the association, we think, to enforce such increased payment of money by its members, without restriction to any particular mode, as may be necessary to fully meet the benefits due and payable. And the authority is not wanting, in the term, to obtain the needed increase of payment through the means of increased rate payable per month, or, as provided by the laws, by each member. It is not believed that a further discussion is necessary.

We conclude the court erred in sustaining the general demurrer, and the judgment is reversed, and the cause remanded.


author: RICE, J.

text:
    PAGACH v. FIRST NAT. BANK OF ROSEBUD et al.
    (No. 5324.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.)
    Appeal, and Error (§ 773) — Dismissal-Grounds.
    Under Court of Civil Appeal rule 39 (142 S. W. xiii), authorizing the dismissal on motion of an appeal where appellant fails to file briefs, as prescribed by law and the rules, unless good cause be shown for the failure, where appellant failed altogether to file briefs in the trial court, as required by Rev. St. 1911, art. 2115, did not file his brief in the appellate court until two days before the day set for submission, and, having withdrawn the transcript soon after filing it, retained it over four months until the day set for submission, upon motion to dismiss, of which notice was duly given, but to which no reply was made, the appeal must be dismissed, as appellee had a right to have the case submitted on the day set, and also to a reasonable time to reply to appellant’s brief, and, not having been afforded sufficient time, was entitled to submit the case without brief, ask for a postponement, or move to dismiss the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from District Court, Falls County ; Prentice Oltorf, Special Judge.
    Action between J. H. Pagach and the First National Bank of Rosebud and others. From a judgment for the bank and its coparties, the said Pagach appeals. On motion to dismiss appeal.
    Appeal dismissed.
    Henderson, Kidd & Gillis, of Cameron, for the motion.

      For other oases see same .topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexei1

   RICE, J.

Appellee bank has filed a motion to dismiss this appeal, based on the alleged ground that appellant failed to file his brief in this court in time for it to have procured the record and filed a reply thereto. It appears from the record that the judgment in this case was rendered on the 23d of July, 1913, and the appeal was perfected on the 9th day of August next thereafter; and the transcript was filed in this court on the 5th day of November, 1913, and on the 10th of said month it was delivered to counsel for appellant, who kept the same continuously in their possession at Marlin until the 18th of March, 1914, the day upon which the case was set for submission by order of this court. 'No briefs were filed by appellant in the lower court, as required by article 2115 of the Revised Civil Statutes, and none were filed in this court until the 16th day of March, 1914, !on which day this motion to dismiss was filed by appellee ’bank. In their verified affidavit in support of this motion, it appears 'that counsel for appellee' on three several occasions called on the clerk of this court to ascertain whether or not appellant had filed his brief, and for the purpose of obtaining the record, and on each of said occasions were notified by the clerk that no brief had ‘been filed, and that the record had not been returned. On the 13th of March, appellant sent a copy of his brief to counsel for appel-lees, who received the same late on the afternoon of said day; whereupon they applied by phone to the clerk of this court to ascertain whether or not the record had been returned, for the purpose of preparing their brief, but were informed that counsel for appellant had not returned the same to this court.

Appellees were entitled to have the. case submitted upon the day set, and likewise to a reasonable time within which to reply to appellant’s brief, and these are substantial rights. See R. S. art. 2115; rule 39 (142 S. W. xiii); Krisch v. Richter, 125 S. W. 935; Longbotham v. Abercrombie, 52 Tex. Civ. App. 426, 114 S. W. 428; Harris et al. v. Bryson & Hartgrove, 31 Tex. Civ. App. 514, 73 S. W. 548; Elkins v. Kempner, 66 S. W. 576; Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462.

Under the circumstances disclosed by this record, we do not think that sufficient time was afforded appellee to file its brief. It was therefore compelled either to permit the ease to be submitted without a brief on its part, or ask for a postponement for the purpose of •replying, or resort to a motion to dismiss the appeal, which latter course it has seen proper to pursue. Appellant’s counsel, though served with notice of this motion to dismiss, .have failed to reply thereto; and, in the absence of any excuse or explanation showing why they failed to file their brief in time for appellee to have replied thereto, in accordance with the statute and rules of this court, it becomes our duty, we think, to grant the motion to dismiss the appeal, which is accordingly done, and the appeal dismissed.

Appeal dismissed.