source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. PYSHER.
    (No. 691.)
    (Court of Civil Appeals of Texas. El Paso.
    April 26, 1917.
    Rehearing Denied June 7, 1917.)
    1. RailRoads <&wkey;282(l) — Injuries to Dicen sees — Pleading—General Denial — Ee-sect.
    Where plaintiff, in a personal injury suit, alleged that consignment was in defendant’s railroad car, and that it was negligent in failing to have the ear repaired, defendant’s general denial put in issue the ownership of the car, as well as the negligence charged.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 910.]
    2. Railroads <&wkey;262 — Injuries to Persons Unloading Cars —Hidden Defects — Inspection.
    The ultimate carrier of the car, although it made ho inspection, was not liable for injuries to consignee’s servant, who, while unloading a carload of automobiles, loaded by consignor in a foreign car, was injured by a loose casting falling from over the door on the inside of the ear; the defect being one not discoverable by inspection of the outside of the car.
    [Ed. Note — For other cases, see Railroads, Cent. Dig. §§ 831, 832.]
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Suit by A. W. Pysher against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    ID S. Garrett, of San Angelo, and Beall & Douthit, of Sweetwater, for appellant. Grisham & Grisham, of Sweetwater, for ap-pellee.
   WALTHALL, J.

Appellee, A. W. Pysher, brought this suit in the county court of Nolan county against the Kansas City,, Mexico & Orient Railway Company of Texas to recover damages for personal injuries alleged to have been sustained, alleging that on or about May 28, 1915, he had a consignment of automobiles in a certain car belonging to appellant, and that he was instructed by appellant’s agent to open the door of the car and receive the consignment; that upon opening the car door a loose piece of casting, which should have been securely fastened, fell upon his head, causing the injuries of which he complains. The particular negligence assigned is as follows:

“That it was the duty of the defendant to have its car repaired and to have-the piece of casting, which was loose and fell upon him and inflicted his injury, safely and securely fastened, but that defendant failed to do so, and that its failure is negligence, and that plaintiff has suffered the damages aforesaid because of said negligence.”

Appellant answered by general demurrer, general denial, and special denial of any negligence contributing to the injury, and alleged that the injury was caused by the negligence of appellee, in that he -Undertook: to go into said car and open the door and break the seals thereon, and that if there were any defects same were known, or in the exercise of ordinary care should have been known, to appellee, and that in failing to observe any such defects and guard against them appellee was guilty of negligence proximately causing his injury. By supplemental answer appellee denied that-he was guilty of negligence, admits that he was injured while undertaking to go into the car and while opening the car door after breaking the seals under the direction of appellant’s agent, the appellee having the said consignment therein, that he was not a car inspector, and could not by the exercise of ordinary care have known about the loose casting, and opened the car door in the usual and customary manner in which such doors are opened. The case was submitted to the ju,ry on a general charge, and the jury found in appellee’s favor and assessed damages. After the evidence was heard appellant submitted to and requested the court to give a peremptory charge in its favor, and the court’s refusal to give said charge is made the basis of its first assignment of error.

By the second assignment appellant insists that the evidence is insufficient to sustain the verdict and the judgment.

Appellant’s contention under these assignments is that the undisputed evidence showed that the defect in the car, the loose casting, causing the injury, was one in a foreign car loaded by the consignor at Detroit, Mich., under seals placed thereon by consignor, and consigned to appellee’s principal at Sweet-water, Tex., and that said car had been given the usual inspection when received by appellant at Altus, Okl., and was under the same seals, and that, in accordance with custom, the car was set to unloading platform to be unloaded by consignee under the same seals, that said seals were broken by consignee’s agent acting with appellee in unloading tije car, the delivery of the car being complete, and that the defect which caused the injury was a hidden defect concealed on the inside of the car, not discoverable by ordinary inspection for the running condition of the car, and, no fact or circumstances being shown imposing upon appellant any duty to inspect the inside of said car for such hidden defect as to appellee, there is no basis in the evidence for the submission of any issues of negligence upon the part of appellant.

In none' of the pleadings was it alleged that the car was a foreign car, and appel-lee’s counter proposition to this assignment and proposition thereunder is that appellant did not plead that the ear was a foreign one, nor that appellant did not know of the .defect in the car, and could not have -known by ordinary inspection; therefore there is no basis for the assignment.

Appellee, however; alleged that:

“Plaintiff had a consignment of automobiles in a certain car belonging to the defendant, and the negligence assigned'is its failure to have the car repaired and the loose casting, which was on the inside of the car, securely fastened.”

This allegation had reference to the car in question. Appellant’s general denial would b£ sufficient to put at issue the ownership of the car and a denial of the negligence assigned. If the car in question was owned by appellant and had been sent to the consignor to receive the consignment of automobiles, or if the appellant was instrumental in having the consignment loaded in the car, a different question would be presented, as in that case, where the defect was in the car itself, appellant might be charged with a knowledge of a defect in the car not observable from an ordinary inspection for transportation over its line of road. The undisputed evidence, however, shows that the car was a Missouri Pacific car, No. 80437, and was loaded out of Detroit, Mich., with Ford automobiles and sealed at Detroit, on both sides with the Ford Motor Company (the shipper’s) seals,. and consigned to the Adams Machine & Automobile Company, at Sweetwater, Tex., in whose employ appel-lee then was, and for whom he was working in opening and unloading the car at the time he was injured. While the record is not clear as to the initial railroad, we infer from the record that the shipment left Detroit over the Michigan Central Railroad, was later billed out of St. Louis, Mo., over the Missouri Pacific Railroad, and was received by appellant, as the ultimate carrier, at Al-tus, Okl., and by it transported to its destination at Sweetwater, and delivered to the consignee for unloading.

R. M. Adams, of the Adams Machine & Automobile Company, consignee, a witness for appellee, among other things, testified:

“I know the plaintiff. * * * He was working for me. * * * I was present when these cars were unloaded, and at that time I had paid the freight and all charges, and we had to open the car. We had no instruction from the agent or any one about opening the car. We had paid the bill of lading, and naturally I had permission to open the car. It was my custom after paying the freight charges to proceed to open the .car, and on this occasion we went to the place where the car was and proceeded to open it. * * * I was at the car when the injury occurred, but I did not actually see the accident. * * * I examined the car and the iron that was supposed to have hit him. We had opened one door to the car, and he was inside the car shoving the other door open, and this piece of casting which was the top of the door came down on him. * * * This casting wasn’t on the door exactly, it was at the top of the car where the door slides, and it should have been fastened by two bolts, two holes were there where the bolts had been, and they were missing, that is, one was gone. As well as I remember, the holes for the bolts were shattered, and so badly that one bolt couldn’t hold. The wood looked rotten and shattered and was inadequate to hold the bolt. * * * When the door started back this iron fell from the inside of the car and hit him on the head. * * * It was not a part of the door; it was a fastening for the door. The piece that fell came from the inside of the car, and I don’t think anybody could have seen it from the outside of the car.”

Witness Zack 0. Wilkinson, a witness for appellee, testified substantially as did Adams as to the opening of the car and the place from which the casting fell, and further said:

‘.‘That piece fell from the inside of the car; it fits on top of the door inside. I don’t remember whether you could see that piece from the outside or not, but don’t suppose you can_ because it fits up above the door on the inside; it fits up in a little crimp, I think, and when the doors are closed they are tight. I don’t know but you might be able to see the edge of that iron from the outside of the car; I can’t say about that.”

Appellee testified in part:

“I had occasion to assist in unloading cars off the Orient Railway Company. It was a carload of Fords. Zack Wilkinson was assisting me in this. * * * We were pushing the door open, and this piece of casting fell from the top and hit me on the head. * * * I examined the place where the fastening was after I 'recovered. I found the fastening was made in an angle shape and is supposed tó be fastened to the car by bolts. I made this examination after going to see the doctor on the same day of the accident. The wood part showed to have been broken for some time, seemed to be an old break, and thei’e wasn’t any bolts in one side; it was supposed to have two bolts, and wasn’t any bolt in one side of it at all. * * * Zack Wilkinson and I started to push the door open from the inside, and while we were pushing the door the casting fell down from the top of the door near the center. The average door on an automobile car is reasonably close fitting.”

C. W. Fooch, appellant’s car inspector at Sweetwater, testified in part as follows:

“I have nothing to do with inspecting the inside of cars that come under seal. * * * My inspection is for the running condition of the cars. * * * I am familiar with this casting and where it is located. It is not observable from the outside of the car.”

C. W. Sutton testified:

“I am car inspector. I live at Altus, Okl. * * * I held the position of car inspector for the Kansas City, Mexico & Orient Railway Company. On or about that time the Kansas City, Mexico & Orient Railway Company of Texas received a car marked M. P. 80437, or Missouri Pacific 80437. They received this car from the Kansas City, Mexico & Orient Railway Company at Altus, Okl. I inspected this car when it was received.”

The above is all the evidence on the question of the location of the unfastened casting, the place from which it fell, and the possibility of discovering its unfastened condition by an ordinary inspection from the outside of the car. It seems evident that the defect of the loose casting over the car door could not have been discovered by an inspection from the outside of the ear. The car was received by appellant for transportation at Altus, Okl., and was by it transported over its line of road to its destination at Sweetwater.

The question presented to this court is: Was it the duty of appellant, the ultimate carrier of the car in question, to the consignee or the employés of the consignee, to make an inspection on the inside of the car for the defect in the car on the inside, where the defect could not be discovered by such an inspection as it was appellant’s duty to make for the safety of its employés in transporting the car over its line of road, an'd where there was nothing observable from the outside to indicate the defect in the car on the inside? The judgment of the court in this case has no support except upon the failure of the appellant to perform the duty, if it was its duty, to examine into the inside condition of the car to ascertain whether the casting over the door of the car, and a part of the car itself, was in a reasonably safe condition for unloading the car when delivered to the consignee. A somewhat similar question was presented in Gulf, W. T. & P. Ry. Co. v. Wittnebert, 101 Tex. 368, 108 S. W. 150, 14 L. R. A. (N. S.) 1227, 130 Am. St. Rep. 858, 16 Ann. Cas. 1153, a case relied upon by appellant, where Runge & Co. ordered a tank of Beaumont oil from McManus, Houk & Co., of Beaumont, which was loaded into a tank car that belonged to the Texas & New Orleans Railway Company, and was by the latter company and an intermediate carrier transported to Victoria and there delivered to the Gulf, West Texas & Pacific Railway Company, by which it was hauled to its destination for unloading by the consignee. Wittnebert had charge of the Runge & Co. gin, and with an assistant, undertook to unload the oil tank. The method of unloading the tank was to connect a piece of hose with the pipe that was connected with the reservoir, then to fasten the hose upon the end of an escape pipe which extended beneath the bottom of the tank by which the oil would pass through the hose into the pipe loading to the reservoir. It was necessary, before connecting the hose with the pipe, to remove the tap from the end of the escape pipe through which the oil would pass. Wittnebert and his assistant went under the car, and Wittnebert removed the tap, whereupon the oil flowed down from the tank upon him, inflicting the injury complained of. In the construction of the tank there was a valve which, when properly set, closed the upper end of the escape pipe and would prevent the flow of the oil through the escape pipe. The proper method of unloading the tank was, after removing the top and attaching the hose, to go upon top of the tank and raise the valve by means of a monkey wrench. When the ear was placed upon the track for unloading the valve was not set, and when the tap was removed the oil flowed out upon Wittnebert. If the valve had been set as it should have been, this would not have happened. No one could tell whether the valve was set or not without going upon the car, removing the cap of the dome, and ascertaining the fact from the position of the rod. The car was inspected by the railroad company at Victoria, where the car was received by the last carrier, but the inspector did not go upon the top of the tank, nor remove the cap to ascertain whether or not the valve was set. The inspector could have ascertained the fact by removing the cap and examining the rod. The question presented was whether .it was the duty of the Gulf, West Texas & Pacific Railway Company, the ultimate carrier, to see that the valve was set and the tank in a safe condition to be unloaded when delivered to the consignee. The Supreme Court held that under the facts of that case the extent of the duty of the ultimate carrier upon receiving the tank car was to make a reasonable inspection of its condition with reference to its fitness for transportation. The court distinguished that case from Sykes v. St. Louis & S. F. Ry. Co., 178 Mo. 693, 77 S. W. 723, in which it was said that:

“When a car is loaded for a through shipment, and- must passi over one or more connecting roads before it finally comes into the possession of the ultimate carrier for delivery to the consignee, it is the duty of the ultimate carrier, before delivering it, to examine it and ascertain’ whether it is in such a state of repair that the servants of the consignee, while exercising reasonable care themselves, can enter upon it with reasonable safety for the purpose of unloading it; and, if it is not in such a condition, it is the duty of the railroad to make the necessary repairs, or to notify the consignee of the unsafe condition of the car, so that the consignee can warn his servants before they enter upon it.”

The question before the court in the case from which the quotation is made was the liability of an intermediate carrier and not that of the ultimate carrier. That court held that under the same state of facts the intermediate carrier was not liable, while the ultimate carrier would be. In discussing the Gulf, W. T. & P. Ry. Co., Wittnebert Case, our Supreme Cburt said that the statement of the Supreme Court of Missouri in the Sykes Case, above quoted, was dicta, but distinguished that case from the Wittnebert Case, as the Sykes Case occurred through a defect in the car itself, while the Wittnebert Case occurred through a defect in the loading of the car. We can see no real difference in the principle underlying the duties of an ultimate railroad carrier in delivering a car to the consignee where the defect that causes the injury to the consignee or its employe is not the car itself or in the manner of loading it. We cannot see why the ultimate carrier should owe the duty to a consignee to break the seals of the shipper of a car and go inside and make an inspection of the car, where there is nothing on the outside of the car to indicate a defect in the car itself on the inside, or the manner of its loading from an inspection of the car for transportation. Certainly, a railroad company cannot be held liable to consignees or tbeir servants except for its own negligence, or the negligence of preceding carriers of which it knows, or should know by ordinary inspection. We are of the impression that the good reasoning of the Missouri Supreme Court as to the extent of the duty of the intermediate carrier would apply alike to the ultimate carrier, and that the duty of Inspection of the inside of the sealed car rests with the consignee, as held by our Supreme Court in the Wittne-bert Case, where the defect was in the loading of the car. It was held by the court in the Wittnebert Case to be a general rule that, when the consignor loads freight upon a car or packs articles for shipment, the carrier which receives the car as loaded, or the package as prepared, is not liable for damages which arise from the defect in the loading or the packing.

Appellee refers us to Railway v. Chambers, 17 Tex. Civ. App. 487, 48 S. W. 1090, as sustaining his second proposition that it is the duty of a railway to inspect a foreign car with the same care with which it should inspect its own cars. In that case Chambers was a hrakeman'of the carrier, and in descending from the top of a foreign car on a ladder composed of rounds screwed at each end to the side of the car was injured when the round of the ladder gave way, caused by the lag screw pulling out and the round parting from the side.of the car, causing the brakeman to fall.

The car was sealed and was inspected by the appellant company, and the inspectors found nothing wrong with the car, but the inspectors did not climb its ladders, nor take hold of the rounds to see if they were loose. By climbing the ladders one could tell whether the ladders were loose when the defect would not appear to the sight. In that case the Court of Civil Appeals found from the undisputed evidence of appellant’s own witnesses that, while the evidence tended to show that the defect was discoverable from the inside of the car only, the car was not inspected on the outside in an ordinarily careful manner, and that, if it had been, the defective fastening of the round in the ladder would, in all reasonable probability, have been discovered. Basing its conclusion of law on that finding, the court held that it was then the duty of the inspectors to go inside the car, if necessary, and see and know that the handholds were reasonably safe for use before the car was allowed to depart in the train. There is no doubt but that, when cars come to a railway company which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars in its trains; so much, at least, is due to its employes. Railway v. Mackley, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. Ed. 624. In that case the defect was on the outside of the car, and the court was discussing the duty the railroad owed to one of its employ Ss then engaged in the movement of the car over its own line of road. But in this case appellee was not an employs of appellant, and the appellee’s witnesses, after the defect is discovered, and after a full opportunity is offered to examine the defect in the car, make the fact to appear that the defect causing the injury could not have been seen from the outside of the car by an ordinary inspection for running purposes. The case is not in point. Railway v. Harris, 45 Tex. Civ. App. 542, 101 S. W. 506, referred to by appellee, is similar in its facts to the Chambers Case. The rule has often been announced in this and other jurisdictions that a railroad company is under the same obligation to furnish safe appliances for the use of its employes, whether tb,e cars belong to it or to a connecting carrier, but that is not the question presented here, and we need not review the many cases referred to by appellee announcing that rule.

While the record shows that an inspection of the car was made at the point where appellant received the car, the evidence shows simply that an inspection was made, but the character or extent of the inspection made, or the result of the inspection as to whether the defect was discovered or discoverable, is not shown. However, in view of the rule announced in the Wittnebert Case that the duty of the appellant on receiving the car extended only to “a reasonable inspection of its condition with reference to its fitness for transportation,” and in view of the evidence offered showing that the defect was not observable from the outside of the car, and the fact that the defect did not in any way affect the movement of the car, we are of the opinion that the peremptory instruction requested should have been given. The simple fact that appellant failed to inspect the car would not make appellant liable-It is the failure to inspect where an inspection would or should discover the defect.

For reasons stated, the case is reversed, and here rendered that appellee take nothing by his suit.

Reversed and rendered.
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author: KEY, C. J.

text:
    WM. CAMERON CO., Inc., v. SANTIKOS.
    (No. 5803.)
    (Court of Civil Appeals of Texas. Austin.
    May 11, 1917.
    Rehearing Denied June 13, 1917.)
    1. Justices oe tiie Peace <&wkey;44(10) — “Liquidated Demand” — What Constitutes.
    Generally speaking, in order for a demand to be liquidated, one party must have obligated himself to pay the other a specific sum of money, either absolutely or upon the happening of a specified contingency.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. §§ 170, 171.]
    2. Justices oe the Peace &wkey;>44(10) — Un-liquidated Demand — What Constitutes.
    Where plaintiff agreed to furnish certain materials at a specified price, and later furnished a bill of extras without naming the price, the demand ’was unliquidated, and .it was within the power of plaintiff, when the account as originally made showed a balance in excess of jurisdiction of the justice court, to remit the excess so as to confer jurisdiction so long as he did not separate the account so as to attempt to. recover the whole amount in two or more separate actions.
    [Ed. Note — For other cases, see Justices of the Peace, Cent. Dig. §§ 170, 171.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by the Wm. Cameron Company, Incorporated, against L. Santikos. Judgment for defendant and order overruling motion for new trial, and plaintiff appeals.
    Reversed and remanded.
    Sleeper, Boynton & Kendall, of Waco, for appellant. G. W. Barcus, of Waco, for ap-pellee.
   KEY, C. J.

Wm. Cameron Company, as plaintiff, brought this suit against L. Santi-kos, as defendant, in a justice of the peace court. The suit was based upon a verified account for $199.95 for labor and material furnished by the plaintiff to the defendant in malting certain improvements and repairs upon a building. The plaintiff filed a written petition, in which it was alleged that the plaintiff and defendant entered into a contract by which the plaintiff was to fuirnish the labor and material to paper and decorate the interior of a certain theater building for the defendant at an agreed price of $350, and that the plaintiff had performed its part of that contract. The plaintiff also alleged that •during the time the building was being papered and decorated it was agreed between the parties that the plaintiff was to furnish material and perform certain other labor in reference to the building, an itemized statement of which was attached to the petition, and constitutes the verified account sued on. It was also 'alleged that such extra labor and material had been furnished, and that it was worth $149.95, the amount charged therefor in the account. It was further alleged that the defendant had paid to the plaintiff the sum of $300, which reduced his indebtedness to $199.95, the amount sued for. It was not alleged in the plaintiff’s petition that the parties had agreed upon the amount to be paid for the extra labor and materials.

The defendant filed a written answer, in which, 'among other things, it was alleged that, after deducting the $300 paid by the defendant to the plaintiff, the plaintiff’s books originally showed that the defendant owed the plaintiff $201.65, and that, in order to confer jurisdiction upon the justice court, the plaintiff, without any consideration, caused a credit to be entered upon its books, by which the balance due was made to appear as $199.95, by reason of which facts the defendant charged that the justice count was without jurisdiction. He interposed other pleas, one of which was that the original contract covered all that was done by the plaintiff, and that by the terms of that contract he was to pay to the plaintiff only the sum of $330, $300 of which had been paid. He also averred that, if there was no contract between him and plaintiff, the amount claimed by the plaintiff was exorbitant, and that the things furnished were not worth more than $300, and he filed a cross-action for damages for alleged defects in the work.

The justice court overruled the plea to its jurisdiction, -and upon a trial of the case rendered judgment for the plaintiff, and the defendant appealed the case to the county court. In the latter court there was a jury trial, in ■which the court instructed the jury to return a verdict for the defendant on his plea of jurisdiction, which was done, and upon which verdict judgment was rendered for the defendant, and another judgment rendered overruling the plaintiff’s motion for a new trial; and the latter has brought the case to this court for revision.

The assignments of error complain of the action of the court in directing the jury to find for the defendant on his plea, in abatement, and of rulings permitting the defendant to prove by the plaintiff’s general manager that he directed the plaintiff’s bookkeeeper to enter a small credit upon the defendant’s account, in order that the suit might he brought in a justice of the peace court.

'The witness referred to testified that the extras for labor and material consisted of 13 items, which as entered upon the plaintiff’s books aggregated $150.55, one item of which was “half gallon of varnish, $1.60.” The witness testified that he caused the bookkeeper to enter a credit on the account of 60 cents for overcharge on the varnish, which credit resulted in reducing the total amount for extras to $149.95, and that his reason for doing so was that he learned that the defendant had sold his picture show in Waco, and was about to leave town without paying the balance due upon the account, and he desired to bring suit against the defendant in the justice of the peace court. The plaintiff’s books showed that the half gallon of varnish was charged to the defendant on April 17,1914, and that the credit referred to was entered on February 11, 1915. The suit was commenced in the justice court November 20, 1914, and in the account upon which the suit was based the half gallon of varnish was charged at $1, and that account did not show any credit for overcharge. The total amount of the charges in that account. was $499.95, and the total amount of credits was $300, which left a balance of $199.95. The case was-tried in the justice court March 6, 1915, and in the county court May 19, 1916.

In the case of Fuller v. Sparks, 39 Tex. 137, the Supreme Court used this language:

“A merchant has no right, under any circumstances, to divide his book or store account into two parts, so as to bring either within the jurisdiction of a justice of the peace, and then bring a suit on each. This would be a fraud upon the jurisdiction of that court, which would not be tolerated. But a party who has an account against another, which exceeds the jurisdiction of a justice’s court, may receipt thai account, if he chooses, for all that exceeds that jurisdiction, and bring one suit, on the balance due; and this was, in effect, what was done in the case which was the origin of this suit.”

In Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91, the Court of Civil Appeals at Galveston held that, where the amount claimed to be due in a suit on a note with 10 per cent, attorney’s fee, as provided by the note, is beyond the jurisdiction of the court, the plaintiff cannot, while setting up a claim for attorney’s fee, reduce it in amount to bring the action within the jurisdiction of the court. That case is cited and relied upon by the attorneys on each side of this case. Counsel for appellee contends that it points out, which may be true, that the language quoted above and used by the Supreme Court in that case was obiter dictum, as the judgment in that case was being attacked collaterally. Counsel for appellant rely upon it as pointing out the distinction between suits where the amount recoverable is liquidated and where such amount is un-liquidated. In that case the suit was based upon a promissory note for a specified sum of money, and for 10 per cent, attorney’s fee, and the court treated both of those items as liquidated, and held that the plaintiff could not remit part of the attorney’s fee, though he could have remitted all of it, for the purpose of bringing the case within the jurisdiction of the court. Mr. Justice Williams, who wrote the opinion in that case, points out clearly the distinction between liquidated and unliquidated demands, as bearing upon the question of jurisdiction, and in the course of the opinion he used the following language:

“When unliquidated damages are sued fox*, there is no way in which the amount of the subject-matter in controversy is to be determined in advance of a trial, except by the allegations made by the plaintiff; and this, of necessity, puts it in his power to determine the question of jurisdiction. * * * But when the objection is made in the original suit, by the defendant, assei*ting his i*ight to have his cause heard in the proper forum, and when it appears that a cause of action for a fixed and liquidated sum has been reduced in order to confer jurisdiction, the right of the defendant to have his cause tried in the forum established by law should be respected.”

A standard authority treats the subject in. these words:

“As a general rule a plaintiff may, in order to bring his claim within the jurisdiction of a justice of the peace, remit or abandon a part thereof, or the intei-ost thereon, and where the sum demanded is within, it is immaterial that the evidence shows an indebtedness beyond, the jurisdiction. Where in replevin the propei*ty exceeds in value the jurisdiction of the justice, a pai’t thereof can be released from the levy and the jurisdiction of the justice sustained; but whero the property is indivisible and the value exceeds the jurisdiction, the want of jurisdiction cannot be cured by remitting any excess in value.” 24 Cyc. p. 474.

And the latest decisions of the Supreme Court of this state seem to be in accord with, the doctrine announced in the foregoing quotation. Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Railway Co. v. Mathews (Sup.) 191 S. W. 559.

In the case at bar the account as entered upon the plaintiff's books did not constitute a liquidated demand, and if the account sued upon was liquidated because of the fact that it was sworn to in such manner as to render it prima facie evidence, that fact does not aid the defendant, because that account shows a balance due of only $199.95, which was within the jurisdiction of the justice of the peace. Generally speaking, and with, but few exceptions, in order for a demand to be liquidated, it must appear that the defendant has obligated himself to pay to the plaintiff a specific sum of money, either absolutely or upon the happening of a specified contingency; and no such proof was made in this case. On the contrary, the undisputed proof was that there was no agreement whatever as to the amount to be paid for the different items of material and the labor not covered by the original contract, but embraced within the second contract for extra work and material. Therefore the en-tiles made by the plaintiff upon its books by which the defendant was charged in the aggregate with $150.55 for such extras did. not constitute a liquidated demand, and the plaintiff bad the right, if it saw proper to do so, to reduce the amount it had charged against the defendant for any item in that account, although such reduction may have been made for the express purpose of enabling the plain•tiff to sue the defendant in a justice of the peace court.

In this case the plaintiff changed the amount originally charged against the defendant for a half gallon of varnish, but it did not split, divide, or change -the items charged in the account. So it will he seen that the judgment rendered in Hie case will constitute a bar and estop the plaintiff from maintaining another suit against the defendant for any part of the account.

In so far as jurisdiction is concerned, such unliquidated claims are analogous to a claim for damages resulting from a tort, in which the question of jurisdiction is to be determined by the amount of damages alleged and sought to be recovered by the plaintiff. Western Union Tel. Co. v. Durham, 17 Tex. Civ. App. 310, 42 S. W. 792; Ball v. Hines, 61 S. W. 332; Times Pub. Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806.

Hence we conclude that appellant’s assignments of error should be sustained, and the judgment of the trial court reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.

       Forother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MEYER-FORSTER REALTY CO. v. READ et al.
    (No. 5875.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 30, 1917.)
    1. Contracts <§=>327(1) — Agreement to Take up Notes — Conditions Precedent.
    Under contract whereby plaintiffs authorized defendants to sell land, $1,000 to be paid on approval of title by purchaser and execution of deed and placing of it in the C. Bank, balance of purchase money to be paid on or before January 1, 1915, with provision that vendor’s lien notes might be executed for balance, and, if executed, should bo taken up by defendants on or before such date, in which event plaintiffs should execute a transfer to them of the notes, plaintiffs, to recover on the agreement, need not have presented the notes to the purchasers, nor have delivered to them the deed placed with the bank; these being things for defendants to do.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1503-1570.]
    2. Trial <§=>141— Directing Verdict — Undisputed Facts.
    There being no disputed issue of fact for the jury, a Verdict may be directed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336.]
    3. Appeal and Error <§==>1064(3) — Harmless Error — Reducing Instruction to Writing.
    There is no injury not reducing to writing an instruction which is a mere direction of a verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4223.]
    4. Appeal and Error <§=>215(1) — Review — Objection Below — Fundamental Error-Reducing Instruction to Writing.
    Failure to reduce to writing an instruction directing verdict is not a fundamental error which can be reviewed in absence of objection in trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Trial, Cent. Dig. § 085.]
    Appeal from District Court, Jaelsson County; John M. Green, Judge.
    Action by L. M. Read and another against the Meyer-Forster Realty Company, a partnership. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    McCrory & Vance, of Edna, and H. H. Sagebiel, of George West, for appellants. Gaines & Corbett, of Bay City, for appellees.
   FLY, C. J.

This is a suit by L. M. Read and W. E. Read, his wife, to recover of appellants, a partnership, the sum of $5,174, alleged to be due on a certain contract. A verdict was instructed for appellees, and upon the verdict judgment was rendered for appellees in the sum of $5,007. .

The suit is founded on the following contract signed by appellants and appellees on April 28, 1914:

“The State of Texas, County of Jackson:
“This memorandum of agreement entered into by and between L. M. Read and wife, W. E. Read, and the Meyer-Forster Realty Company, all of the county of Jackson, witnesseth:
“That tho said L. M. Road and wife do hereby give the said Meyer-Forster Realty Company authority to sell the following desci'ibed tract or parcel of land, situate, lying, and being in Jackson county, Tex., the same being a part of the John Davis league survey, and containing about ninety eight (98) acres, and the same property now standing in the name of said L. M. Read and occupied by him and his family, for the sum of $63.00 per acre. Of the purchase price, the sum of $600.00 shall be paid in cash on tho approval of title by the purchaser and the execution of the deed conveying said property to said purchaser and the placing of tho same in the Citizens’ State Bank of Ganado, Tex., and at the same time $400.00 more of the purchase price shall be paid, less, however, interest on said $400.00 at the rate of 8 per cent, per an-num from such date to the 1st day of January, A. D. 1915, and the balance of the purchase-price shall he paid on or before tho 1st day of January, A. D. 1915, but for such balance, or any part thereof, vendor’s lien notes may be executed by the purchaser, and if such notes are executed the said Meyer-Forster Realty Company shall take up said notes on or before the 1st day of January, A. D. 1915, without cost or expense to tho said Read, but in that event the said Read agrees to execute a proper written transfer of said notes to either the Meyer-Forster Realty Company or such party as they may designate.
“And the said L. M. Read and wife agree to convey the above-described property to the said Meyor-Forster Realty Company or to such party as they may designate, and to furnish a complete abstract of title to said property; but tho Meyer-Forster Realty Company shall add their commission to the net consideration above mentioned,'the same to be due and payable upon the final closing of the deal.”

Appellants, acting under that 'contract, sold the land to Otto Steinke for $2,000 in cash and for eight promissory notes amounting in the aggregate to $5,007. A deed was executed by appellees to Otto Steinke and deposited with appellants and by them deposited in the Citizens Bank of Ganado with tho notes as provided in the contract. The notes were executed, which appellant agreed “to take up” on or before January 1, 1915. They were not paid for by appellants. Appellees were at all times ready to make a written transfer of the notes to appellants or any party designated by 'them, and on February 23, 1916, the transfer was executed by ap-pellees. Everything connected with the trade was controlled by appellants. About one thousand dollars of the cash payment was turned over to appellees. A transfer of the notes was tendered into court by appellees. All the facts were uncontroverted.

The case against appellants is clearly and succinctly stated in the petition, and it was not subject to general or special demurrer. The notes were executed and delivered in full compliance with the terms of the contract, and no more should be demanded. The notes were given to appellants, who made the trade and performed everything in connection with it. It was appellants’ business to deliver the notes to Steinke, and not that of appellees. The law as to the delivery of a deed cited by appellants has no reference to the facts of this case. The deed was delivered in strict compliance with thft terms of a contract which appellants seek to evade. Every condition precedent placed on appellees hy the contract was performed by them. Appellees did not promise to deliver the deed to the vendee, but to a designated bank, and they so delivered it, through appellants.

There was no disputed issue to be decided by a jury, and the court very properly instructed a verdict for.appellees. Appellants were not injured by that instruction not being reduced to writing. There were no intricate points of law in the instruction of the study of which they were deprived by the instruction not being written. No instructions were requested by appellants, nor reasonably could have been for there were no'issues to submit. There was no objection urged in the lower court to the failure of the court to put the instruction in writing, and there is nothing fundamental about it.

There is no merit in the appeal, and the judgment is affirmed.
      <gz^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    SMOOT v. PERKINS et al.
    (No. 1166.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1917.
    Rehearing Denied May 30, 1917.)
    1. Bankruptcy <§=>290 — Insolvency — Note for Issuance oe Stock.
    Even if stock were issued, for part cash and a note for balance in violation of the Constitution, this would not prevent the corporation’s trustee in bankruptcy recovering on the note.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 418-429, 451-455.]
    2. Corporations <§=>99(1)--Stock Subscriptions — Notes.
    Provision of Constitution for issuance of stock for money only is not violated, where there is no issuance of, but only a subscription for, stock, with part payment, and balance evidenced by note.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. '§ 444.]
    3. Bankruptcy <@=>290 — Insolvency—Corporation’s Fraud.
    A corporation’s fraud in inducing a subscription to stock, not being complained of till after its insolvency, will not avail as a defense in action by its trustee in bankruptcy on note given for subscription.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 418-429, 451-455.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by George A. Smoot, trustee, against D. M. Perkins and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Smoot & Smoot, of Wichita Falls, for appellant. J. M. Bonner and C. B. F.elder, both of Wichita Falls, for appellees.
   BOYCE, J.

D. M. Perkins and F. M. Kell, before the organization of the Northwestern Auto & Supply Company, agreed to take five shares of the capital stock of said corporation of the par value of $100 per share. They paid $250 in cash on this agreement and executed their note • for $250, payable to the corporation six months after date thereof. The stock was never issued to them. The corporation was afterwards adjudged a bankrupt, and Geo. A. Smoot appointed trustee in bankruptcy. Its assets are insufficient to the payment of the indebtedness of the corporation. The note above referred to was listed among the assets of the corporation, and the said Geo. A. Smoot, as trustee, brought this suit on said note against said Perkins and Kell, who defended on the following grounds: First, that the note was void because given for stock in violation of the Constitution and the laws of the state; second, that they had been induced to take said stock by the fraudulent and false representations of the president of the corporation, to- the effect that the affairs of the corporation were in good condition and'that the stock was worth par and that “the profits of the business would be sufficient to take care of the unpaid subscription made by the defendants,” etc. The court below held that the note was void' because given in violation of law in part payment for the capital stock of the corporation. No finding was made on the issue of fraud in procuring the subscription to the stock. The evidence shows, however, that the appellees had taken no steps to repudiate the subscription prior to the appointment of the trustee in bankruptcy ; there being no evidence of any claim of fraud being made until after the institution of the suit on the note.

Upon these facts, the court below should have entered judgment for the appellant. Even if the stock had been issued, the appellees could not defeat a recovery of the note upon suit by the representative of the creditors of the corporation after it became insolvent. McWhirter v. First State Bank, 182 S. W. 682, in which writ of error was denied hy the Supreme Court. But the stock was not in fact issued so as to bring the transaction within the condemnation of the law. The corporation was permitted to be organized when all of the stock had been subscribed and 50 per cent, paid up. Article 1126, R. C. S. The unpaid portions of the subscription were required to he paid within two years. Article 1141, R. C. S. And the directors might require payment of such subscription in installments in the manner provided by the by-laws. Article 1169. When appellees subscribed for five shares of the stock, paid one-half, and gave their note for the other one-half, without the actual issuance and delivery of the stock, the note was but another form of evidence of the agreement to pay the balance due on the subscription, and the corporation could itself have recovered on the note unless recovery could have been defeated on the plea of fraud in procuring the subscription. The fraud, if it existed, would not under the facts in this case be a 'defense; the corporation having become insolvent and the suit being by the representative of the creditors. Davis v. Burns, 173 S. W. 476, in which writ of error was denied by the Supreme Court; Commonwealth Bonding & Casualty Co. v. Hill, 184 S. W. 247; Cattlemen’s Trust Co. v. Turner, 182 S. W. 438; Horn Bros. v. Baker, 173 S. W. 474; Cope v. Pitzer, 166 S. W. 447; Farmers’ & Merchants’ Bank v. Falvey, 175 S. W. 833.

Reversed and rendered.
      <3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PETERS et al. v. CITY OF SAN ANTONIO et al.
    (No. 5915.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 23, 1917.)
    1. Injunction <©=3172 — 'Temporary Restraining Order — Dissolution—When Proper.
    Where the verified answer denied every material allegation in the petition and there was no evidence offered in support thereof nor agreement to submit the cause on the bill and answer, it was discretionary with the trial judge to dissolve his temporary restraining order and refuse a temporary injunction.
    [Ed. -Note. — For other cases, see Injunction, Cent. Dig. §§ 372-384.]
    2. Appeal and Error <§=>946 — Review—Discretion.
    A discretionary order or decree of the trial court will not be reversed on appeal unless it clearly appears from the record that there has been a disregard of the rights of a party.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3812.]
    3. Municipal Corporations <§=5661(1) — 'Use oe Streets — Regulation.
    A city given absolute control of its streets by the Legislature may wholly prohibit the use of its streets for prosecution of any private business or grant the use with such restrictions as it deems proper.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434.]
    4. Municipal Corporations <§=>661(1) — Use oe Streets — Jitney Business.
    A city given absolute control over its streets by the Legislature has power to prohibit the use of jitneys on any street or confine their use to certain streets.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434.]
    5. Constitutional Law <§=>101 — Jitney License-Vested Rights.
    Plaintiffs operating a jitney under a license issued by virtue of an ordinance providing that city council shall have the right to revoke, annul, and alter any license given to operate a jitney, and that the routes named in application or license may be altered by ordinance passed wholly upon the initiative of the city council, had no vested rights in the use of the streets, and an ordinance of city council prohibiting operation of jitneys upon certain streets and confining their use to certain others was valid.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 269-211.]
    6. Constitutional Law <§=>99, 101 — Vested Rights.
    A citizen has no vested rights in statutory privileges and exemptions.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 204, 205, 209-211.]
    7. Municipal Corporations <§=>601(2) — Constitutional Law — Equal Protection of Laws — Discrimination—J itneys.
    An ordinance prohibiting jitneys, other than those operating from A. to U., from using certain streets, is not an unwarranted discrimination rendering ordinance invalid.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1435.]
    8. Constitutional Law <§=>101 — Impairing Obligation oe Contracts.
    A revocable license to operate jitneys upon the streets of a city is not a contract which vests rights protected by the constitutional prohibition against impairment of contracts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 209-211.]
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by C. J. Peters and others against the City of San Antonio and others, in which J. G. Lentz and others filed a plea in intervention. From an order refusing a temporary writ of injunction, the plaintiffs appeal.
    Affirmed.
    Barrett & Barrett and J. Marshall Esk-ridge, all .of San Antonio, for appellants. Geo. R. Gillette, R. J. McMillan,' and D. A. McAskill, all of San Antonio, for appellees.
   FLY, C. J.

This is a suit instituted by 0.,, J. Peters, J. C. Nixon, T. A. Rieber, and V. S. Cardwell against the city of San Antonio, Clinton G. Brown, Robert F. Uhr, Ray Lambert, James Garland, and Clinton H. Kearney, the mayor and commissioners of the city of San Antonio, to restrain appel-lees from enforcing or attempting to enforce the provisions of a certain ordinance passed by Mayor Clinton G. Brown and the commissioners, in regard to the operation of certain motor busses, commonly known as jitneys, which prohibited the use of certain business streets for their business as common carriers and confined them to the use of certain other streets. J. G. Lentz, Nat Lewis, Edwin I-I. Witte, Paul Mueller, and A. K. Garretson filed a plea in intervention, setting up that the first three named were owners of real estate on Commerce street, and that the others, were owners of stocks of goods and lessees of property on that street, and seeking to have the ordinance perpetually enjoined. This plea was based on allegations that the exclusion of jitneys from Commerce street would injure business and affect property values at least on that part of Commerce-street between South Alamo street and Main Plaza. To the plea of intervention was appended a petition, numerously signed by citizens and business men on Commerce street, asking the mayor and commissioners of San Antonio that jitneys be permitted or directed to use Commerce street for their traffic. An answer verified by affidavit was filed by appellees. On April 6, 1917, a bearing on tbe pleadings was bad, no testimony being offered, and a temporary writ of injunction was refused, and from that interlocutory order tbis appeal was perfected by tbe plaintiffs.

The answer denied every material allegation in tbe petition, and no evidence was offered by appellants. There was no agreement to submit tbe cause on bill and answer. It was discretionary with tbe trial judge to dissolve bis temporary restraining order and refuse a temporary injunction. Frazier v. Coleman (Tex. Civ. App.) 111 S. W. 662; Dawson v. Baldridge, 55 Tex. Civ. App. 124, 118 S. W. 593.

In case of apparent abuse of tbe discretion, an appellate court might reverse tbe order or decree of tbe trial judge; but it should appear clearly from the record that there has been a disregard of tbe rights of a party before such action will be taken.

It has been held by this court, and approved by tbe Supreme Court, that complete control of the streets has been placed by tbe Legislature of Texas in tbe hands of tbe city government of tbe municipality of San Antonio. Greene v. City of San Antonio, 178 S. W. 6. In that case tbis court held:

“Appellant has no right or authority whatever to conduct his business on the streets of San Antonio and, in order to obtain permission to do so, must comply with the conditions prescribed by the municipality. Appellant desired to use the streets for private purposes of gain, and the city has the absolute right to prohibit the use of the streets for his private business, and in case it gave permission for such use had the right to compel the payment of a license fee.” »

Again tbis court said:

“So, in this case appellant has never had any vested right to use the streets of San Antonio to engage in the business of a common carrier of passengers for hire, and no right of his is infringed or invaded by the ordinance requiring certain things to be done in order to enter into business on the streets, which have, at the expenditure of large sums, been placed by the city in prime condition for automobile travel. The streets belong to the public, the city being a trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without tbe consent of the trustee and a compliance with the conditions upon which the permission to so use them is given.”

In tbe case of Le Blanc v. New Orleans, 138 La. 243, 70 South. 212, tbe Supreme Court of Louisiana cites with approval tbe opinion in tbe Greene Case and quotes largely from it. It is true that tbe case after-wards came before tbe Louisiana court, when Le Blanc was convicted for violating tbe jitney law, and that an opinion was written in conflict with tbe former; but on rehearing, after five different'opinions bad been rendered by as many judges, tbe cause was finally decided as in tbe former case. In tbe opinion Anally prevailing, the following language from tbe first Le Blanc Case was quoted with approval:

“The streets of the cities and towns in Louisiana being among the things that are ‘public’ and ‘for the common use,’ no individual can have a property right in such use for the purposes of his private business, unless, speaking generally, that business being in the nature of a public service or convenience, such as would authorize the grant, the right has been granted .by the state, which alone has the power to make or authorize it, or, by the particular city or town, acting under the authority of the state, and in such case the right can be exercised only in accordance with the conditions of the grant; that is to say, an individual seeking, but not possessing, a right of that kind, may accept the grant, with the conditions imposed by the offer, in which case he becomes bound by the conditions, or he may refuse to accept the conditions, in which case there is no grant, and without the grant so offered, or some other, from the authority competent to make’ it, he can never acquire the right to make use of a street as his place of business.”

That was tbe language of Chief Justice Monroe in an able and thorough opinion on tbe subject. City of New Orleans v. Le Blanc, 139 La. 113, 71 South. 248.

In tbe case of City of Memphis v. State, 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B, 1151, tbe Supreme Court held, in a “jitney” case:

“It is too clear for extended discussion that it was competent for the Legislature under the police power to regulate the use of the streets and public places by jitney operators, who, as common carriers, have no vested right to use the same without complying with a requirement as to obtaining a permit or license. The right to make such use is a franchise, to be withheld or granted as the Legislature may see fit” — citing a number of authorities; the Greene Case by this court being one of them.

In tbis connection, it may be well to say that:

“What the Legislature may do itself in the matter of regulation and control of streets in a municipality, it may delegate to a municipality to do itself.” Huston v. Des Moines (Iowa) 156 N. W. 883.

In another opinion by tbe Iowa court it was held:

“The state has, and has always assumed, control over all the public highways within its borders. Through its Legislature, it has authority to and has delegated to cities the control of public highways, streets, and alleys within the limits of the city.” Louden v. Starr, 171 Iowa, 528, 154 N. W. 331.

Tbe cases with unanimity decide that tbe Legislatures of states have full and complete control over tbe highways, streets, and alleys, and that such control may be delegated to municipalities, and it follows from such complete control that tbe use of tbe streets for tbe prosecution of any private business may be wholly denied, or granted with such provisions and regulations as may be deemed proper by the municipality. When a franchise is granted, during its existence unreasonable and oppressive regulations might form the ground of complaint; and, when a vested right is regulated, the reasonableness of-tbe regulation could undoubtedly be made the subject of judicial investigation. But, when a privilege to which a party has no right has been given and which is granted for an indefinite time and which can be terminated at any time by the granting power, we fail to .understand how the reasonableness of such regulations can be made the basis of an attack.

If the municipality has absolute control over the streets, as impliedly admitted by appellants and as decided by almost every court passing upon the question, and the owners of motor vehicles have no right to engage in the business of carriers for hire on the streets without permission from the municipality, it follows in the line of reason and logic that the city can refuse such permit, or can grant a license or franchise under such conditions and regulations as may be deemed fit and proper. If the city can ordain that no jitneys can be run for hire in San Antonio, as the authorities unite in saying it can, it certainly can grant the use of some streets, and refuse the use of 'others, for jitney purposes. The power to prohibit certainly carries with it the right to regulate as it may deem proper and reasonable. The owners of jitneys are permitted to conduct their business on the streets through the grace of the city, and because they have been permitted to use certain streets at one time does not give any vested right to use them forever. The power that gave the right can take it away when not invading some vested or contract right.

When the right to use the streets is given, the convenience of the city, or what is deemed best for the people, is t'o be consulted, and not the desires of those who desire to convert the streets into their places of business. If the people, the voters of San Antonio, do not approve of the manner of regulation of jitneys, they can elect officers and instruct them to carry out their desires. It is a political question to be determined by the ballots of the people and not by the judiciary.

If a franchise has been granted to a person to use the streets for his private business, and that franchise is hampered and impaired by unreasonable or oppressive regulation, the person aggrieved might appeal to the courts for redress; but such a state of affairs is not presented in this case. It is not claimed that appellants have been granted any franchise in this case which is being impaired or destroyed by the ordinance that is assailed; but it is merely alleged that they are operating under a license issued by virtue of an ordinance passed on March 8, 1915, and that they have expended money upon the faith of that ordinance. It is not alleged that they were ever given a franchise for a certain length of time, but they admit the license was issued on certain conditions. The whole theory upon which the application for an injunction is based is that appellants have a vested right in the streets of San Antonio, which has not been conceded by any court.

The ordinance of March 8, 1915, did not tend in any manner to lead appellants to the conclusion that they had a permanent and unassailable right or franchise in the streets of San Antonio, and, if they were absolutely denied the right to run their automobiles or jitney cars' on the streets of San Antonio, the obligation of no contract has been impaired. In the ordinance it is distinctly provided that the city council shall have the right to revoke, annul, and alter any license given to operate a jitney, and that the termini, schedules, or routes named in the application or license “may be altered by ordinance for the improvement of the service or better disposition of traffic, passed wholly upon the initiative of the city council.” Provision was made for the return of the unearned part of the license fee to the licensee. No fraud or deceit was practiced upon the appellants, but they and each 'of them was duly notified of the powers retained by the city. Under the terms of that ordinance, which entered into and became a part of the contract with the city, every dollar of the unearned license fee under the ordinance will be returned to appellants, and not one of them will be any worse off than he was before the ordinance was enacted. Not because any right of appellants has been invaded, for they have none in the premises, but because they are not pleased with the routes laid out for the use of jitueymen in San Antonio, they desire to enjoin the enforcement of the ordinance. When the city has returned any unearned license fees to which they may be entitled, they have received everything that is due them from the city, and, if they do not approve of the routes prescribed, they are under no obligations to remain in the jitney business.

If the city of San Antonio desired to drive the jitneymen out of business, it was not necessary to “so regulate them as to drive them out of business”; but it could have proceeded directly by repealing the ordinance of 1915 and revoking all licenses. As said by Judge Cooley, in his great work on Constitutional Limitations (pages 546 and 547):

“The citizen has no vested right in statutory privileges and exemptions. * * * A franchise granted by the state with a reservation of a right of repeal must be regarded as a mere privilege while it is suffered to continue; but the Legislature may take it away at any time, and the grantees must rely for the perpetuity and integrity of the franchises granted to them solely upon the faith of the sovereign grantor.”

In the ordinance itself the power was reserved to revoke licenses at any time, and this was agreed to by appellants.

The ease of Railway v. Brownsville, 45 Tex. 88, cited by appellants, has no perti-nency to the facts of this case. In that case permission to use the streets had been granted by the city, and the Supreme Court held that the right to use the streets had been •conferred on die railway company by tbe laws of Texas. Tbe court said: “Nor is tbe right to use tbe streets dependent upon the •consent and agreement of tbe city.” Of course, tbe city could not enjoin the use of tbe streets by tbe railway company. The •other cases cited by appellants are not applicable to this case. In tbe case of tbe laundrymen of San Francisco, it was held in Yick Wo v. Peter Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, that tbe city •could not arbitrarily prohibit laundries from being erected in a certain large district. Tbe •ordinance in that case was seeking to de■stroy tbe right of a man to conduct a lawful business in an arbitrary and unreasonable way, and tbe Supreme Court held that it •could .not be done. It was an attempt to invade and destroy a vested right, and that •could not be done in an unreasonable and oppressive way.

Appellants complain because jitneymen running from Alamo Plaza to Camp Wilson ■are permitted to operate “on Avenue D and Avenue E and on Houston street in front oE tbe post office solely for the purpose of passing from Avenue E to Avenue D,” and such vehicles are permitted to enter Houston ■street from Avenue E and depart by Avenue D. Tbe gist of tbe complaint is that no •other jitneys are allowed to run around tbe post office, and this “is an unwarranted dis•crimination and renders tbe ordinance invalid.” Where tbe discrimination enters is not apparent. Why any one on any other route would desire to' run around the post office cannot be ascertained. It is a matter with which others than those on that route have no concern. It takes away no privilege from them whatever, and they have no right to make complaints about it. No right of theirs has been invaded, and no one will prevent them from taking the Camp Wilson route. The whole trouble is that appellants are basing all their complaints on the invasion of vested rights, when they have none to be invaded by the ordinance. As said by the Supreme Court of West Virginia in Ex parte Dickey, 85 S. E. 781, L. R. A. 1915F, 840:

“The right of a citizen to travel upon a highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who maizes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all; while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities. A distinction must be made between the general use, which all of the public are permitted to make of the street for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackman, drivers of express wagons, omnibuses, etc.”

That language was used in a jitney case, in which rights in the use of the streets were being claimed. The court further held:

“Under the broad power given by this charter, to grant, refuse, and revoke licenses to hotel keepers and operators of vehicles kept for hire, and to regulate them for the interest and convenience of the inhabitants of the city, the commissioners may do anything respecting these subjects that the Legislature itself could do, and, as we have shown, that power is almost unlimited.”

Appellants have no contract rights that have been impaired, or vested rights that have been assailed. To use the language quoted and approved in Auto Transit Co. v. City of Ft. Worth, 182 S. W. 685:

“As a license authorizing a person to practice a profession, or to carry on a particular business, is not a contract which vests a right, but merely the grant of a privilege, such a license is not protected by the constitutional prohibition as to the impairment of the obligation of contracts.”

The judgment is affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes