author: BROOKE, J.

text:
    GULF, C. & S. F. RY. CO. v. BESSER.
    (No. 4.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 28, 1915.
    Rehearing Denied Nov. 11, 1915.)
    1. Master and Servant <§=300 — 'Torts oe Servant — Injuries to Third Persons — Liability.
    A master is liable for the wrongful acts of his servant done in the course of employment.
    [Ed. Note. — For other cases, see' Master and Servant, Cent. Dig. § 1209; Dec. Dig. <¿=5300.]
    2. Master and Servant <§=302 — Torts oe Servant — Liability—Autii ority.
    Where a servant has authority to do a certain thing, and in doing it does a wrong, the master is liable therefor, but not if the servant does not act in the master’s interest or within the scope of his authority.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <§=302.]
    3. Master and Servant <§=¿306 — Injuries to Third Persons — Torts oe Servant.
    A master is not liable for injury due to wrongful or malicious acts of his servant not done in the course of his employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1230-1232; Dec. Dig. <§=306.]
    4. Master and Servant <§=308 — Torts oe Servant — Intent.
    An express willful intent to do an injury, resulting in damages, cannot be imputed to the master when injury is inflicted by the employé, and the wrongful act is neither authorized nor ratified.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1234; Dec. Dig. <@=308.]
    5. False Imprisonment <§=39 — Torts oe Servaniv-Liability — Question for Jury.
    Evidence held sufficient to carry a case to the jury on the question of the liability of a master for the act of his servant in the alleged wrongful arrest and detention of the plaintiff.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 116-118; Dec. Dig. > <§=39.]
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by Hamilton Besser, by his next friend, against the Gulf, Colorado & Santa Fé Bailway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. N. Poster, of Conroe, and P. J. & C. T. Duff, of Beaumont, for appellant. Dean, Humphrey & Powell, of Huntsville, for appel-lee.
   BROOKE, J.

This case was tried upon the first amended original petition filed by J. I. Besser, as next friend of Hamilton Besser. Clause No. 1 of the petition sets up the residence of the parties and occupation of the defendant, which is admitted in the answer. The second, third, and fourth clauses of the petition set out plaintiff’s cause of action, and. we set the same out in full:

Second. On or about the said December 19, 1912, at night, while plaintiff, with a number of his friends and companions of the Sweet Home Community, west of the town of Conroe, and in Montgomery county, Tex., were gathered at and near the Sweet Home Church in said community for the purposes of pleasure and amusement, and about 10 o’clock at night, one of the defendant’s passenger trains was going west, and was by the defendant, its agents and servants in charge thereof, brought to a stop at, over, or near a community dirt road that crossed the defendant’s track near Sweet Home Church, and the plaintiff and Ms companions were then near the right of way of defendant, conducting themselves in a lawful manner, when the defendant requested, induced, and procured one John McKinney, who was then and there armed with a pistol, to go out with the pistol in hand where the plaintiff and his companions were, on or near the right of way, and the said John McKinney, acting for and at the instance and as the agent and servant of the defendant, and acting by the procurement of the defendant as aforesaid, and the defendant acting by and through said McKinney, willfully, wickedly, oppressively, unlawfully, and without any probable cause assaulted and falsely arrested and took into custody this plaintiff, and caused and compelled this plaintiff and one of his companions to go to the train which had been stopped by the defendant, its agents and servants in charge thereof, and, when this plaintiff had been taken to the train which had been stopped as aforesaid, the defendant, acting by and through another agent and servant of the defendant, unlawfully, oppressively, and without any reasonable or probable cause whatever assaulted and took hold of the plaintiff and assisted the said John McKinney in putting plaintiff on the train, and the plaintiff was by the defendant, its agents and servants in charge of said train, forcibly compelled to enter a coach of defendant’s said train, and was carried thereon to Keenan, a distance of several miles, and subjected to an inquisition as to certain depredations which the defendant claimed had been committed on its property — all of which was done without the consent of plaintiff, and against his will.
Third. The defendant’s agents and servants aforesaid who arrested this plaintiff as aforesaid did so without any warrant of arrest, or other warrant or authority therefor, and without justification or lawful excuse, and the plaintiff at the time he was so arrested was conducting himself in a lawful manner.
Fourth. After the defendant, its agents and servants, had finished their inquiries of the plaintiff and their inquisitions upon him above mentioned, the defendant, its agents, and servants, released the plaintiff at said town of Keenan, where he had no friends or companions, and where he was several miles from his home, something like 10 o’clock at night. The plaintiff had left his hat in the' Sweet Home Church, and, when released at Keenan, he was turned loose hatless and without money, and had no place to spend the night, and had to walk to his home, a distance of about six miles, at night and in the cold.

Plaintiff prays for actual damages in the sum of $2,500, and for exemplary damages in the sum of $2,500, and for cost of suit.

The defendant answered by general demurrer, which was urged and overruled by the court. Defendant further answered by general denial, save and except as to the admissions contained thereafter in its answer, and specifically answered as follows:

Defendant says that it denies that the plaintiff, with a number of friends and companions, on the date alleged in the second paragraph of plaintiff’s petition, were gathered near Sweet Home Church for the purpose of pleasure and amusement, and defendant states that it is informed and believes, and so charges, that the plaintiff and his friends and companions were gathered near said Sweet Home Church and at the place where they were found for the unlawful purpose of stopping the passenger train of this defendant without any desire or intention of the plaintiff or any of his companions taking passage on said train, but for the malicious and mischievous purpose of rocking said train; that is, to throw rocks and other missiles against said train and through the windows thereof.
Defendant denies so much of paragraphs 2 and 3 as alleges that the agent and servants of this defendant willfully and falsely arrested and took into custody the plaintiff herein, or that the agents and servants of this defendant assaulted the plaintiff. In this connection this defendant upon information and belief alleges the facts to be as follows: The conductor of defendant’s train had been informed that the plaintiff and other boys his age had on several occasions at this point thrown rocks and other substances at defendant’s train while same were passing that point, and defendant’s conductor was advised that his train would be rocked by plaintiff and his friends on this particular occasion. That defendant’s conductor imparted this information to one John McKinney, who, defendant was informed, and believed at the time, was the sheriff of Grimes county. That, when defendant’s train approached the point, it was understood that plaintiff and three or four other companions, using a torch, flagged and stopped defendant’s passenger train, and, when they were approached by the said John McKinney, they ran and attempted to make their escape. The plaintiff and one of his companions were overtaken by John McKinney, and were carried by him on board of defendant’s train, and were taken to the station of Keenan. Defendant says it is true, as it is informed and believes, that the said John McKinney and others asked plaintiff and his companions about their reason for flagging the train and throwing rocks at same. The plaintiff was not subjected to any harsh treatment or to any abuses by the said John McKinney or any one else. That the plaintiff and his companion were put off of the train at Keenan, a few miles from the point where they were found, and were told by defendant's conductor to remain at Keenan until next morning, when they would be taken back to the place from which they came. That the plaintiff informed the conductor that he was nearer home at Keenan than he was at Leonidas, the place where he was taken on the train, and that he preferred walking home to waiting over.
Defendant denies that any of its agents or employes did any act that was reasonably calculated to put plaintiff in fear or cause him humiliation. Defendant denies that any of the acts committed by John McKinney or any em-ployé or agent of this defendant was done maliciously or through gross negligence.
Defendant says that it is informed, believes, and so charges that the arrest or taking in charge of plaintiff and his companions was done for the purpose of apprehending the parties, including the plaintiff, who were throwing rocks at the train, and who, on the occasion alleged in plaintiff’s petition, had unlawfully flagged and stopped the passenger train, and who were at the time prepared and ready to throw rocks into and against said train. That said arrest or apprehending of said parties, including plaintiff, was not by any agent of defendant or by defendant’s direction or -authority, nor were said acts ratified by defendant, nor were said acts within the scope of the employment of said agents and servants.

The case was tried before a Jury on the 15th day of October, 1914. Appellant filed his motion for a new trial seasonably, which was overruled by the court, filed his bills of exception, and his appeal bond within the time prescribed by law, and brings the case to this court upon alleged errors. Appellant ' assails the action of the lower court in his first assignment of error, in failing and refusing to give his special charge to the jury, as follows:

“Now comes the defendant company, before the court had read its main charge to the jury, and reguested the court to instruct the jury as follows: ‘You are instructed in this case to return a verdict in favor of the defendant.’ ”

We do not believe that the court was warranted in instructing the jury to return a verdict for appellant, and therefore we overrule this assignment of error. Error is also predicated upon the action of the court in failing in his general charge to the jury to instruct them under what conditions this defendant would be liable for the acts of its servants, and in refusing to modify his general charge to meet said objections. The charge of the court in this connection reads as follows:

“That plaintiff was arrested and taken into custody by the defendant, and was taken to defendant’s train, and that the agents and servants of defendants in charge of said train compelled the plaintiff to enter a coach of said train against his will and without his consent, and that the defendant, its agents and servants, carried the plaintiff on said train to Keenan, and there released the plaintiff and he had to walk home, etc., then you will find for the plaintiff.”

The charge was properly excepted to, and a proper charge requested.

It is well known that a corporation can only act through its officers, agents, servants, and employés, and that, in order to render the master liable for the acts of its servants, agents, and employes, the act must be within the scope of the authority of the agent by virtue of his employment and in the furtherance of the master’s business, or by virtue of express instructions to do the particular act or acts complained of. All the testimony submitted on the trial of this cause was that of the appellee himself, which was as follows:

“I live at Shiloh, in Montgomery county, Tex. Shiloh is west from Conroe. I do not know just how far it is, but think it is about eight or nine miles. I have lived in that community about four or five years. My father’s name is J. I. Besser. I was sixteen years of age last January. I was at Sweet Home Church on the night of December 19, 1912. I was there for the purpose of practicing some pieces for a concert. I do not know exactly what time I got to the church, but it was some time after dark. I lived about three miles from the church, and I walked to the church that night. I disremem-ber now whether any one went with me to the church or not. I was in the concert for which they were practicing, and I suppose there was some 50 or 75 in the concert. I saw the Santa Fé flyer as it went west that night. That was the train they taken me on. This was on the night of December 19, 1912. Just before the train reached th<? Sweet Home Community I was out across the railroad. I went out there to attend a call of nature. Claud Miller was with me. Jess© Johnson was also across the track. I crossed the track at the road crossing. This road loads to the Sweet Home Church, which is about fifty yards from the crossing in a northwest direction. I crossed over the track, and went on the south side of same. I was about twenty steps from the track on the south side when I saw the train coming. Claud Miller was with me. I had finished what I went there to do, and we were standing there talking, and were not paying any attention to the train, and when we started back to the track the train was so close that we did not want to cross ahead of it, and we waited for it to pass, and when it passed it stopped and picked us up. Q. Who picked you up? State the circumstances, all that happened. A. We were standing there, and Jesse Johnson was standing there, too. We were standing together, and the train stopped, and that fellow stepped off with the gun in his hand and asked what we were doing trying to rock the train, and Claud Miller told him, ‘Nothing,’ and he said, ‘Come on here,’ and Claud run, and Jesse Johnson started to run, and he grabbed him, and then he grabbed me, and then the conductor told him to put us on the train. Q. The man who took you in charge? A. Yes, sir. Q. What did he do with you? A. Taken us into the car and set us down and set in front of us and asked us our names and what the other boys’ names were. Q. Did you tell them? A. Yes, sir. Q. What else? A. They asked us what we were doing, and we told them why we cross the railroad, a call of nature, and they asked us wasn’t we trying to rock the train, and we said, ‘No,’ that we hadn’t thought nothing about it, and then they asked us about flagging it, and we told them we didn’t see nobody doing that. Q. Who was making the inquiries? A. The conductor. They took us to Keenan.”

Being asked what was done with them then, the witness answered:

“The best that I could understand, he asked us if we wanted to get off, and we told him we were going to get off, and we went on out. I didn’t hear him say anything- else, and he lifted us down the steps and turned us loose. I don’t know how far Keenan is from Sweet Home. It is about five or six miles. I had never been to Keenan before, and did not know the way back to Sweet Home. I went back on the railroad track. That was the only way I knew. I walked back down the railroad track. I did not have any money, and if he offered to take care of us. or to take us back, I did not hear him say anything about it. I walked back to Sweet Home Church, and Jesse went on to Johnson’s and I went on home, first going through the church and getting my hat, which I had left in the church when I went across the track. I got home that night about midnight. Q. Tell the jury what effect it had on you. A. Frightened us, of course; scared us. I didn’t know nothing about it, and hadri’t never been arrested before. Q. Did you feel ashamed or humiliated by being arrested? A. Yes, sir. This all happened on the 19th of December, 1912. It was a pretty dark night and cold. I lived about three miles from Sweet Home Church, and it was about six miles from Keenan to church.”

Being asked whether he walked, ran, or trotted from the church home, he answered that he ran part of the way.

“I did not flag the train that night or the night before. 1 did not see anybody flag the train for it to stop. I did not have any rocks or anything like tbat, nor did the other boys have any rocks in their hands that I saw. None of them said anything' to me about rocking the train. If they were aiming to do so, they would have said something to me, but they did not say anything to me about it. They did not say anything to me about it. I know Claud Miller did not. The concert was to be given Christmas night. On the night of the 18th I was at Shiloh, which is west from Sweet Home right up the graded road. They were having a road speaking at Shiloh that night. Mr. Potts spoke. I do not know where Jesse Johnson was on that night. So far as I know, he was not at Shiloh. I did not know any one at Kennan, and I had never been there before. I had no money with me. Jesse Johnson is also a boy.”

Cross-examination:

“It has been so long ago that I do not know whether I went to the church from my home that night by myself or not. I may have done so, but it has been so long ago I disremember. I got there some time after dark. I do not know what time it was. The train came along about ten minutes after I left the church that night. I did not see the other train — I believe tney call it the Boll Weevil — going towards Conroe, when it passed. Claud Miller and Jesse Johnson were all that were in the crowd with me when the train stopped — only three of us. I did not see any one striking matches and waving them in front of the train.”

Being asked who it was talking to him after he got on the train, he answered: “The conductor.” Being asked who it was that was first talking to him, and if he was sure it was the conductor, he answered he did not know who it was. “I had never been on a train; never rode on one before.” It was then suggested to him that the conductor had a cap, and he was then asked did he mean the conductor did the talking with him before some one else had, to which he answered :

“Not as I remember. I disremember, but I know he talked some to us. The young man with me answered as many questions as I did. I do not know the man who wrote down our answers to the questions asked. There was a man taking down our names. I don’t know whether he wrote down what we said or not. I did not tell Mr. Dunlap or Mr. McKinney anything about rocking the train. I gave them the names of Claud Miller, Jesse Johnson, and J. B. Besser, and my own name as parties who were there, and told them where these parties lived. Yes, sir; I gave them four names, but J. B. was not with us when we crossed the track. The reason I gave his name was because, when we was coming out to the track, we seen him about halfway from the crossing toward the track, and I gave in his name. I do not know anything about1 telling Mr. Dunlap that there were two boys they ought to have gotten. I do not remember telling him the names of two boys and telling him they were the main ones, and they should have' gotten them. I told him that I had not thrown any rocks. Q. Didn’t you tell him that he ought to have gotten the other two; ' that they were the main ones? A. I don’t know whether I did or not; I don’t remember; I don’t think I did. Q. You don’t know whether you did or not? A. Don’t think I did. I lived about six miles from Keenan, through the country. I do not know whether I have ever seen that gentleman [Mr. Dunlap, who was brought in and pointed out to witness] before or not; I do not know whether he was the man that was writing down my answers or not. I was scared. He sorter looks like the man. Q. Have you told all that was said and done to you there on that occasion? ' A. They asked us where we was at the night before, and we told them where we was at, and they said the train was rocked the night before, and we told them that we wasn’t the ones that rocked it; that we wasn’t there the night before. I did not tell them anything about who were the ones. I was on the north side of the track, and the church was on the south side of the track. AVhen the conductor told the man to put us on> the train, he was standing up in the end of the coach. I was not a passenger on the train that night, and did not intend to take passage on it. I was waiting for it to pass by.”

Direct examination:

“I was taken without my consent and against my will. Q. You say that the conductor was standing at the end of the train? A. In the coach up in the steps on the platform. Q. Tne party that arrested you asked ‘what to do with them,’ and he said, ‘Bring them on the train.’ A. Yes, sir; and he taken us one in each hand and marched us up, and the conductor taken us on the train. Q. Who did that. A. McKinney. After he marched us up, the conductor taken possession of us.”

Cross-examination: Upon being asked what he meant by “possession,” he answered:

“He taken us on into the train and set down in front of us; gave us a seat and set down in front of us.”

It has been said, and truly so:

“That a master is liable for the wrongful acts of the servant done in the course of employment.” Chandler v. Deaton, 1 White & W. Civ. Cas. Ct. App. § 488; Echols v. Dodd, 20 Tex. 190, 191.

Also that:

“When a servant has authority to do a certain thing, and in attempting to do it he does a wrong, the master is liable for the wrong'. If the servant is not acting within the scope of his authority, and not in the master’s interest, the master is not liable.” Houston, etc., Ry. Co. v. Bowen, 36 Tex. Civ. App. 165, 81 S. W. 80.

A master can only be held liable for the wrongs of his servant, when they are done in the master’s account, or for his purpose, and are within the general authority of the servant. St. Louis S. W. Ry. Co. v. Mayfield, 35 Tex. Civ. App. 82, 79 S. W. 365.

Ordinarily a master is not liable for an injury resulting from the willful and malicious acts of his agent not done in the course of his employment. Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Ingram v. Linn, 4 Tex. 266-269.

It has been said also that the test by which to determine the liability of the master in all cases (like the present) is, Was he (the servant) acting in the course of the service at the time he did the act? If so, the master is responsible, but, if he had stepped out of the course of the service, the master is not responsible. Texas, etc., Ry. Co. v. Wood-all, 2 Willson, Civ. Cas. Ct. App. §§ 471-475; Echols v. Dodd, 20 Tex. 190, 191.

“If the servant steps aside from his master’s business, for how a short time soever, to commit a wrong not connected with such business, the relation of master and servant will be deemed to have been for the time suspended; the act will be treated as the personal act of the servant, and he alone will be responsible for it.” New York, etc.. Ry. Co. v. Sutherland, 3 Willson, Civ. Cas. Ct. App. § 140.

Again, an express, willful intent to do an injury resulting in damages cannot be imputed to the principal, when the injury was’ inflicted by an employé, and when the wrongful act has neither been authorized or ratified. Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293.

Appellee has indeed filed an able and exhaustive brief, in addition to his oral presentation of the ease to this court. But we believe that the question of liability of the master in this case was a question for the jury to decide upon appropriate instructions by the court. Believing as we do, that this was not done, we sustain appellant’s second assignment, and the case is reversed and remanded for a new trial.

Reversed and remanded.
      <®=For other cases see same topic ana KEY-NUMBER in all Key-Numberea Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    AMERICAN CEMENT PLASTER CO. et al. v. ACME CEMENT PLASTER CO.
    (No. 793.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.
    On Motion for Rehearing, Jan. 5, 1916.)
    1. Teespass to Try Title <&wkey;32 — Pleading —Petition— Sumtcienoy.
    A petition alleging title in fee simple in the plaintiff, that plaintiff was lawfully seised and possessed of the lands, that the defendant erected without consent of the plaintiff a telephone line across plaintiff’s land and dug holes along and across the lands, wrongful possession of the lands by defendant, and that the defendant will continue to operate and construct the said telephone lines unless restrained, is, in spite of the prayer for equitable relief, a sufficient petition in trespass to try title, and an omission of the allegation of possession by defendant did not vitiate the petition, where it was alleged that the defendant claimed the right to the easement.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. <&wkey;> 32.]
    2. Easements <&wkey;7 — Prescription—Character oe Possession — Time.
    A prescriptive right to an easement is not acquired by possession and user for more than two years, since such right rests upon the same adverse, continuous, and uninterrupted use of land for ten years as would raise a presumption of a grant.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 16-19, 27, 33; Dec. Dig. &wkey;7.]
    3. Easements &wkey;38 — Prescription—Acquiescence.
    Although plaintiff alleged that the defendant’ had used a way for telephone lines across plaintiff’s land for more than two years, that is not a sufficient admission of plaintiff’s acquiescence to establish the prescriptive right, as mere pos-. session at certain times does not show an assertion and enjoyment of an easement.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 23, 24, 27-33; Dec. Dig. &wkey;>8.]
    4. Trespass to Try Title <&wkey;38 — Burden op Prooe — Prescription — Acquiescence op1 Owner.
    In an action in the nature of an action in trespass to try title, it being necessary for the plaintiff to allege possession by the defendant, the plaintiff could not thereafter be compelled to show, in opposition to defendant’s claim of prescription right to an easement, that he did not acquiesce in such possession.
    [Ed. Note. — For other cases, see Trespass to' Try Title, Cent. Dig. § 53; Dee. Dig. <@¿338.]
    5. Trespass to Try Title &wkey;>56 — Judgment —Improvements.
    Defendant for two years used a private telephone line over plaintiff’s right of way, and claimed an easement by prescription. At plaintiff’s suggestion defendant moved the poles to a public road which was also across their right of way. Held, that the court, in an action of trespass to try title to the land, properly decreed ownership of the poles in the plaintiff upon finding that the defendant had no right to use the lands; no equitable plea that defendant should have the improvements placed on the land in good faith being interposed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 87; Dec. Dig. &wkey;>56.]
    On Motion for Rehearing.
    6. Easements <&wkey;54 — Location—Change op Location.
    Where defendant maintained a private telephone line over plaintiff’s land for two years, he did not acquire such an easement as that, upon changing the location of the poles, he was entitled to a prescriptive right in the new way, nor,, if he had showed an easement in the old way, could he assert the same right in the new, since it was his right to retain the old; no positive act of obstruction being shown.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 120; Dec. Dig. <&wkey;>54.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed in part, and remanded.
    Huff, Martin & Buliington, of Wichita Falls, for appellants. D. E. Decker, of Quanah, for appellee.
   HENDRICKS, J.

The petition of the Acme Cement Plaster Company against the American Cement Plaster Company was originally presented to the district judge of Hardeman county, Tex., for the purpose of enjoining the last-named company and C. H. Newby from erecting, using, and maintaining a telephone line on and across sections Nos. 208 and 209, block H, W. & N. W. Ry. Co. surveys, situated in Hardeman county, Tex. Upon refusal by the district judge of the temporary writ, this court, in the case styled Acme Cement Plaster Co. v. American Cement Plaster Co., reported in 167 S. W. 183, in part reversed, and in part approved the action of the district judge. This particular trial was before the court without a jury, upon the merits, and judgment was rendered in favor of plaintiff, perpetuating the injunction, for part of the relief prayed for, and denying the same in part, also decreeing an easement in certain land to the American Company, and rendered judgment for the Acme Company for certain land, as hereinafter explained. The evidence showed that the Acme Cement Plaster Company, plaintiff, was the owner of the fee in all the above-described lands, and that the Acme Tap Railway Company owned an easement for the purpose of its railroad across said lands 100 feet wide, from the plant of the American Cement Plaster Company to an intersection of the Ft. Worth & Denver Railway Company. The telephone line of the defendant, the use of which is in litigation here, was erected upon the right of way of the Tap Railway Company, and a part of same was originally erected on the south side of the right of way of the Ft. Worth & Denver City Railway Company, and the Acme Company gave notice to the American Company to remove the latter line off of section 209. The American Company, in compliance with that request, after having procured permission from the county commissioners’ court of Harde-man county, Tex., placed the poles, theretofore situated on the Denver right of way, on the Childress & Quanah public road, north of said right of way; but, before the wires were attached to and placed upon all the poles completing the line, this injunction was sought. Though the easement for a public road, upon which the line was attempted to be reconstructed, was in Harde-man county, the fee in the land, however, being in the Acme Company, and the American Company not having been incorporated for the purpose of constructing and maintaining telephone lines, the right of eminent domain, or the right to construct and maintain telephone lines over the public highways, did not exist. Acme Co. v. American Co., supra. This court said that one having an easement could not farm the same out to private individuals for private purposes, and that, as to the line attempted to be reconstructed by the American Company, the latter was plainly a trespasser and that the injunction against placing the poles upon the public road, should have been granted. This court further said: ‘

“The petition is not sufficient in this case to warrant the restraint of the-use of the line already constructed on the right of way, since acquiescence in its use is not negatived” — referring to that part of the telephone line on the right of way of the Acme Tap Railway Company.

In considering this case it is to be borne in mind that the relief solicited from the trial judge, and the matter exclusively passed upon by this court on the appeal was purely one of injunction, addressed entirely to the allegations of the original petition. The question of title, of course, was not involved, except as prerequisite allegations of claim of ownership for the purpose of passing upon the equitable relief. In this trial, upon the merits, the trial court continued the injunction as to that part of the line attempted to be reconstructed on the public road, decreeing the property to plaintiff, however, rendering judgment in favor of the American Cement Plaster Company to the extent of decreeing an easement on the right of way of the Acme Tap Railway Company, and continued the temporary order denying the writ as to that part of the land.

Upon the question of title, and on account of the court refusing judgment in favor of the Acme Company, for the recovery of the possession of that part of the right of way of the Acme Tap Railway Company against the defendant American Company, the plaintiff by assignment seriously insists that error was committed. The position is that, preliminary to the injunction features of its petition, the petition is one in form of trespass to try title, and as it was conclusively shown that the title in fee existed in it, and that, as no sufficient reason is shown negativing this title, the judgment should have been in its favor. We think the petition, aside from the equitable relief set up, is in effect one in form of trespass to try title; the essential elements of that plea being embodied therein. The fee-simple title in fee was alleged in the plaintiff; that it was lawfully seised and possessed of the lands, with the exception of two of the easements above mentioned; that the defendants erected, without consent of plaintiff, a telephone line across plaintiff’s land so owned and held in fee simple and over and along the right of way of the Acme Tap Railway Company; also alleging the digging of holes along and across defendant’s lands; in effect alleging the wrongful possession by defendants of the land, and further averring “that defendant will continue to operate and construct said telephone lines unless restrained.” The argument in the case of Rains v. Wheeler, Executor, 76 Tex. 393, 13 S. W. 324, by Justice Gaines, though not necessary to the decision, is very persuasive of' the holding here. On the question of the lack of allegation of possession he said that the averments that a certain estate was the owner in fee simple of the land, and that defendant was setting up a pretended claim to the property, were sufficient to justify the reasonable intendment that the plaintiff was entitled to the possession of the premises, and that, while one of the requisite allegations of a petition is that a defendant has entered upon and dispossessed the plaintiff, it was evidently intended that it should be necessary to prove such allegation; and he further said that, because it is not necessary that a defendant should have possession of the disputed premises, it is sufficient that he claim title thereto, and asked the question:

“Why, then, under our liberal rules of pleading, * * * the allegation that defendant is claiming the premises, when such is the fact, be as effectual to maintain the action as the fiction that the defendant has taken possession and withholds the same from the plaintiff?”

The petition here in substance alleges a withholding of possession. See also Seay v. Fennell, 15 Tex. Civ. App. 261, 39 S. W. 181: Williamson v. Williamson, 53 Tex. Civ. App. 503, 116 S. W. 370.

Neither do the allegations for equitabie relief devitalize the nature of the plea.

“The petition, in addition to asserting title and seeking adjudication thereof and possession, may set up such facts as are necessary to such relief as could be given only by a court of equity, without in the least depriving the action of its character of an action to try title to land. Dangerfield v. Paschal, 20 Tex. 536; Magee v. Chadoin, 44 Tex. 488; Allen v. Stephanes, 18 Tex. 669; Grimes v. Hobson, 46 Tex. 419.” State of Texas v. Snyder, 66 Tex. 694, 18 S. W. 106.

The defendant pleaded:

“That each and all of the telegraph and telephone poles and wires now in use tjy these defendants, and situated upon lands owned by the plaintiff, have been so used for a long time, to wit, for a period of more than two years, and that the same have b.een used by the defendant with the knowledge of the plaintiff, and that therefore the defendant has acquired the right by prescription to use said poles upon the lands aforesaid, through and by virtue of limitation and long-continued acquiescence of the plaintiff,” etc.

Clearly this could not be the foundation of a plea of prescription for the purpose of basing a recovery for an easement in land thereupon. Prescription rests upon the same adverse, continuous, uninterrupted use of another’s land for the purpose of proving an easement as would raise a presumption of grant, which in Texas is ten years, the longest period of limitation. International & Great Northern Ry. Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 714. Writ of error was denied by the Supreme Court in the latter case, and the sole question of an easement by prescription was decided. It is further held in the case of Austin v. Hall, 93 Tex. 591, 57 S. W. 563, by the Supreme Court, that to sustain such claim it must appear that the use upon which the right is predicated has continued for the requisite time, during which the owner of the land was not under disability to resist such a claim. Of course the question of disability is not in this case.

While the trial court found that plaintiffs acquiesced in the use of their premises by the defendant and its predecessor for more than ten years, such a finding as a predicate for prescription is unwarranted. The pleading is not sufficient, and upon a careful examination of the statement of facts there is no showing of a continued, uninterrupted, adverse use, essential as constituent elements of proof of this character of pleading. It is true the plaintiff alleges that for about two years the American company used the line for the purpose of transmitting messages from their plant to the town of Quanah; but on the particular question under discussion such an admission, of course, is not sufficient. Mere possession of the land at certain times does not show an assertion and enjoyment of an easement. Texas Western Ry. Co. v. Wilson, 83 Tex. 153, 18 S. W. 325. The proof of user is no stronger, if as strong, in this ease as the proof in the case cited, for the purpose of proving an easement, and the Supreme Court held the same insufficient.

It is said, however, that acquiescence is shown which would deny a recovery. The American Company’s right to an easement, when the question of ownership is concerned, involves a continued and adverse user; and referable to this question of title, plaintiff would not have to prove the use to the land, and then prove he did not acquiesce. As to that question, if there is no user, there can be no acquiescence. Justice Roberts said, in Daingerfield v. Paschal, 20 Tex. 552:

If the title be established, “the plaintiffs would be entitled to a judgment to that effect, whether the additional facts alleged and proved entitle them to the additional relief or not” — referring to the equitable relief sought in the petition.

The American Company complains that, the evidence showing that the poles have been moved from one right of way to the other, though the fee in the land was owned by the Acme Company, the trial court should not have divested the title to the poles out of it into the Acme Company; that it had acquired by prescription the easement upon the Denver right of way, and hence owned the poles, and it would have been equitable to have restored the poles to it. There is no user, nor prescription, shown on this part of the land; the testimony shows that the Acme Company was protesting to the American Company against the use of the land, and requested them to move the poles from the land, which was done; then to have moved the poles onto another easement, the public road, upon the mistaken notion that Hardeman county could give it the right to use the public road, scarcely places that company in an attitude to claim the poles. The testimony shows that the Acme Company suggested to the American Company, while the latter was setting the poles upon the public road, that they probably would have to move them.

Howard v. Richeson, 13 Tex. 567, 568, cited by appellee, is rather against instead of in favor of that company’s contention. The judgment for the land would carry the title to the poles, unless for some equitable reason the same should be restored to the trespasser. Neither is there any suggestion, by an equitable plea, that it should have the improvements placed upon the land in good faith, which, of course, when the equities are sufficient, may be made independent of statute. Upon the whole, however, we think the judgment for the land would have carried the property, and the decree did no more than the law would effectuate. This judgment is severable to the extent tiiat the case may be affirmed in part and reversed in part, we do not feel that cause should be rendered in favor of the Acme Company. That part of the Judgment vesting possession an easement in the American. Company and C. H. Newby over the 100 feet of right of way of the Acme Tap Railway Company on section No. 208 is reversed and remanded for a retrial, and in the condition of the case we also set aside the order denying the injunction and remand the whole of that part of the case. The decree in favor .of the Acme Company is affirmed.

Affirmed in part, and reversed and remanded in part.

On Motion for Rehearing.

In appellant’s motion for rehearing, the complaint is seriously made that we failed to discuss the first assignment of error, but silently overruled the same. This assignment involves the proposition that, having acquired an easement by prescription on a part of the land of plaintiff, defendant would not lose the easement by pulling up its poles and placing them across the Et. Worth & Denver City Railroad track, on another portion of said land — that it was a mere deviation of the use ■of the land. The following authorities are cited, under the assignment, in support of the proposition: Farnum v. Platt, 25 Mass. (8 Pick.) 339, 19 Am. Dec. 330; Leonard v. Leonard, 84 Mass. (2 Allen) 543; Haley v. Colcord, 59 N. H. 7, 47 Am. Rep. 176; Jarstadt v. Smith, 51 Wis. 96, 8 N. W. 29; Wright v. Willis (Ky.) 63 S. W. 991; Durkee v. Jones, 27 Colo. 159, 60 Pac. 618.

We considered the assignment on the original hearing, but thought the authorities were so apparently inapplicable to the condition in this record we overruled the same, without discussion. The first case (Farnum v. Platt, 25 Mass. [8 Pick.] 339, 19 Am. Dec. 330, supra) decides that where one has a right of way over another’s land, and the owner of the land stops the way which is in use, the other party will be justified in going over another part of the land. The remaining authorities announce the same principle, based upon a similar condition, with a variation in the Kentucky and Colorado cases, above cited. Those two cases hold that where an easement is closed by an agreement with the •owner of the land, in consideration of which a new easement is opened, the closing of a new easement, as a right of way, would not be permitted without a reopening of the old.

First, defendant did not prove, nor plead an easement by prescription; second, if defendant had pleaded and proved an easement, but moved-off of that part of the land upon an improper demand to get off the land, his right was to retain the old easement, not to establish the same easement across the railroad track upon a different portion of said property. There was no agreement to open up a new easement; nor would the demand of the plaintiff to get off the land, which defendant would not have had to have done, be such an obstruction to the easement, as in the cases cited, which would create the same right in another part of plaintiff’s estate. The act of obstruction in those cases created the necessity for a different mode of travel. If defendant had an easement by prescription in this case, he moved in obedience to a demand he did not have to obey. Such a demand is not an obstruction physically, nor theoretically, creating a necessity for deviation.

The motion is overruled.
      <g^>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    HAMILTON v. EILAND.
    (No. 865.)

    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.
    On Motion for Rehearing, Jan. 5, 1916.)
    1. Appeal and Error <&wkey;542 — Record—Refusal to File Findings.
    Upon an assignment of error in the court’s refusal to file finding's of fact and conclusions of law, after due request to do so in the time and manner prescribed by law,- where there was no statement of facts in the record or any bill of exceptions showing such request and the court’s failure to file findings, an affidavit that after judgment defendant requested the judge to file findings which were not filed, that the trial judge had died within the time allowed for obtaining a bill of exceptions, and that the request for findings had not been noted on the docket, could not preserve the record of a request for findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2408, 2462; Dee. Dig. &wkey;> 542.]
    2. Appeal and Error c&wkey;>656 — Record —• Inquiry and Correction.
    A Court of Civil Appeals cannot correct the record of a case by hearing testimony, nor inquire into acts occurring subsequent to the judgment, and not made a part of the record, unless it is a matter affecting jurisdiction within Rev. St. art. 998.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2826-2828; Dec. Dig. <&wkey;>-656.]
    3. Appeal and Error <&wkey;905 — Record—Presumption — Rulings.
    A party seeking a reversal of a judgment must bring to the appellate court a record of the proceedings sufficiently full to clearly show the error of which he complains, and, whore his-record shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the case will not be reversed unless it appears that upon no possible state thereof could the ruling be upheld.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3672; Dec. Dig. &wkey;>905.]
    4. Appeal and Error &wkey;>907 — Record—Request por Ruling.
    In the absence of a bill of exceptions, it will be presumed that the trial judge knew nothing of any request to file findings of fact and conclusions of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2809, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907.]
    5. Courts <&wkey;116 — Records—Correction.
    A trial court has a continuing power, after adjournment for a term, to make its minutes and records speak the truth, which may be done by nunc pro tunc orders in some instances, though no written memorandum of the proceeding- can be found to support such order.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 369, 371-373; Dec. Dig. &wkey;116.]
    6. Courts <&wkey;116 — Correction oe Records— Application to Succeeding Judge.
    There is no objection to an application to a succeeding judge to make the record speak a fact actually existent in a judicial proceeding, and which in some manner should be a part of the record.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 369, 371-373; Dec. Dig. &wkey;116.]
    7. Evidence <&wkey;43 — Judicial Notice — Record.
    In an action on vendor’s lien notes, where the transcript showed defendant’s objection to any judgment upon an award of arbitrators and orders, overruling the objection reciting defendant’s objection against judgment “as per agreement on file,” and final judgment, reciting that the court read the agreement of counsel filed at a former term, and where a purported agreement and award were substituted on account of loss, but were not included in the transcript except as a part of a statement of facts, or in a bill of exceptions, the court could not judicially know that the judgment was rendered upon the agreement for arbitration and the award, and hence could not consider an assignment of error thereon.
    [Ed. Note. — Por other cases, see Evidence,' Cent. Dig. §§ 62-65; Dec. Dig. &wkey;343; Appeal and Error, Cent. Dig. §§ 2959, 2960.]
    8. Pleading &wkey;>387 — Prooe to Sustain.
    Proof of an essential fact not averred will not sustain a judgment.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 1300-1304; Dec. Dig. &wkey;387.]
    On Motion for Rehearing.
    9. Appeal and Error <&wkey;659 — Record—Making New Record.
    An assignment of error, in a motion for a rehearing upon the court’s overruling appellant's assignment of error, asking the privilege of going before the trial judge and having the deficiency of the record presented to him in accordance with the court’s opinion and obtaining his ap-px-oval of the bill of exceptions, having it filed nunc pro tune, and having the record completed on certiorari, would be overruled as a request for a writ to make a record and then bring it up.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2834-2843; Dec. Dig. <&wkey; 659.]
    10. Appeal and Error <&wkey;643‘ — Record— Amendment.
    Even where there is a record to correct, an application to amend it is too late after the judgment of the Court of Civil Appeals has been rendered in the cause.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <&wkey; 643.]
    Appeal from District Court, Hutchinson County; P. P. Greever, Judge.
    Action by Enoch Eiland against George P. Hamilton. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hoover & Dial, of Canadian, for appellant. Turner & Rollins, of Amarillo, and J. M. Elliott, of Memphis, for appellee.

      Application ior writ of error pending in Supreme Court.

   HENDRICKS, J.

The appellee, Eiland, sued the appellant, Hamilton, on four promissory vendor’s lien notes, for the establish-, ment of .a debt and to foreclose the lien, the. appellee being the original vendor and the appellant the original vendee. Among other defenses, the defendant specially pleaded that prior to the purchase of the land by him, the lines and boundaries of the land purchased were pointed out by the plaintiff and relied upon, and but for which he would not have purchased said land; that the boundaries so represented were not the real boundaries of the land purchased. Defendant also pleaded a breach of the warranty in the deed, as well as a breach of an oral guaranty alleged to have been made at the time the land was pointed out, and asked for damages for the loss of certain improvements placed upon a part of the lands leased to the defendant, and also for an' abatement of a part of the purchase price on account of the loss of a portion of the land. The court, without a jury, rendered judgment against the defendant for the debt and foreclosure.

Appellant’s first assignment is that the trial court erred—

“in failing and refusing to file findings of fact and conclusions of law after having been duly requested to do so by the defendant, and within the time and manner prescribed by law.”

There is no statement of facts in the record; and appellant’s lack of a bill of exceptions, exhibiting that he made a request to the trial court with the court’s failure to file the same, is attempted to be justified by affidavits presented to this court, declaring this condition:

“That after the court rendered judgment for the plaintiff they [counsel] requested him [the judge], within the time prescribed by law, and immediately, to file his findings of fact and conclusions of law in said cause. 9 * * That such findings and conclusions have never been filed, and that Hon. E. P. Greever, presiding judge of said court, and the identical person who tried said cause, is, at the time of making this affidavit, dead, having departed this life on April 2, 1915, and that for some reason unknown to the affiants, the request for findings and conclusions was not noted upon the docket.”

The transcript shows that the district court convened on the 8th day of March, 1915, and adjourned on the 15th of said month, the judgment in the cause having been rendered upon the prior date.

The appellant argues that the request to the trial court does not have to be in writing, citing particularly the case of Dennis v. Kendrick, 163 S. W. 693, decided by this court. The question, however, is more far-reaching than one of oral request, but is one whether according to this record, any request that we can judicially notice is shown. It is true that the trial judge, if a request has been made for findings of fact and conclusions of law, may prepare and file the same within 10 days after the adjournment of court, and if the affidavit in this case could be considered for any purpose, it would show that thé conclusions were not filed, and that the trial judge died before the expiration of the full time within which the defendant had the right to present and have approved a bill of exceptions, affording a basis for revising the error; appellant presenting the affidavit as a substitute for a bill of exceptions, presenting the above condition as an excuse therefor. It may be that the incomplete condition of this record is one of hardship, but:

“A court of civil appeals cannot correct the record of a case by hearing testimony, nor can it inquire into acts occurring subsequently to the rendition of the judgment and not made a part of the record.” Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946.

The exceptions are inquiries involving jurisdiction. Same case, supra. See Bath v. Houston & T. C. R. R. Co., 34 Tex. Civ. App. 234, 78 S. W. 994; Applebaum v. Bass, 113 S. W. 173. Also:

“It is the duty of a party who here seeks to secure a reversal of the judgment of a lower court to bring to this court a record of the proceedings sufficiently full to show clearly the error of which he complains. If he bring a record which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the case will not be reversed unless it appear that upon no possible state of the case could the ruling be upheld.” Torrey-Davidson & Grosscup v. Cameron & Co., 74 Tex. 190, 11 S. W. 1088.

In the absence of a bill of exceptions it has always been the rule that it will be presumed that the trial judge knew nothing about the request. Supreme Commandery Knights v. Rose, 62 Tex. 321. In that case there was a motion for conclusions, but nothing to show it had been called to the attention of the trial court.

The proper preservation and presentation in this record of a request to the court for the conclusions is the premise upon which appellant has to build, and the fact that the trial judge died prior to the expiration of the full time within which to obtain a bill of exceptions would not, we think, be a sufficient excuse to this court in the manner presented. The fact of the request, whether oral or written, is necessarily a part of the judicial proceeding, and must be incorporated into the record for our review in some appropriate manner to avail the defendant. This court, in its appellate jurisdiction, cannot now incorporate it because the judge died before the full time expired to obtain the bill of exceptions. Appellant made no application to the succeeding trial judge for the purpose of embodying that fact and that part of the proceeding in the record; and this is a fact of the record which could have been proven to belong to the record.

A trial court has the continuing power, after an adjournment for the term, to make its minutes and record speak the truth, but which has been in some manner omitted from its minutes; and this may be done nunc pro tunc in some instances, and even as to orders, though no written memorandum of the proceeding can be found to support a nunc pro tunc order. Ft. Worth & Denver City Ry. Co. v. Roberts, 98 Tex. 43, 81 S. W. 25. This is an inherent power, possessed by a court over its own records, enduring for the sake of verity. Coleman v. Zapp et al., 105 Tex. 494, 496, 151 S. W. 1040.

We see no obstacle in the way of an application to a succeeding judge for the purpose of making the record speak a fact actually existent in a judicial proceeding, and which, in some manner, should be a part of the record; but appellant did not see fit to take that course. The appellate court, in matters involving its jurisdiction, may, of course, ascertain certain facts, but this is not a question of jurisdiction — it is one to review an alleged error based upon an action represented to have been made in the trial court, and prayed to be taken as true, which action is connected with the rendition of the judgment, and a part of the proceeding before adjournment.

In the transcript there appears a written agreement for arbitration, also an award signed by two of the arbitrators with reference to differences between the parties as to damage due the appellant upon the issues in controversy. Appellant assigns that the court erred in rendering judgment upon the award of the arbitrators for the reasons: (1) That the same was not pleaded; and (2) that said award was not a binding obligation on the defendant because the same was signed by two instead of three of said arbitrators. The transcript shows that the defendant filed and presented objections to the trial court against the rendition of any judgment upon the agreement for arbitration and the award of the arbitrators. There appear two orders overruling the objections, and one of them recites that the defendant presented the objections against the action of plaintiff taking judgment “as per agreement on file.” The 'final judgment recites:

“ * * * The matters of fact, as well as of law, were submitted to the court, and the court, having heard the evidence, read the agreement of counsel filed in this cause, at a former term of this court, and, having fully considered the law and the evidence,” etc.,

—thereafter the court rendering judgment for the debt and the foreclosure. A purported agreement and the award of the arbitrators, along with the pleadings in the case, were substituted on account of their loss. However the agreement and the award find no proper place in the transcript, except as a part of a statement of facts or in a bill of exceptions. If we knew judicially that the agreement was made and could consider that this was the only agreement in this record, and was the one referred to and mentioned in the judgment, as well as in the order overruling the objections, a different question might be presented, for the reason that the agreement for the arbitration might be considered a part of the judgment, and such an agreement, in order to permit the trial court to properly refuse to defendant a trial upon the issues embodied in his answer, might have to be pleaded in replication in tbe nature of an estoppel; and a judgment entered upon sucb an agreement, without a pleading, might be an improper judgment, to say nothing of the other question of an award by two arbitrators instead of three. We cannot though judicially make or consider this agreement a part of the judgment, and are unable to say judicially that this judgment is based upon said agreement found in the transcript for arbitration; and, if we exclude from our minds the agreement and award we find in the transcript, this record does not exclude every theory upon any agreement that could be made as a foundation for the judgment, and which would have to be pleaded. The agreement mentioned in the final judgment is one between counsel, and not one between the parties. As early as 2 Texas, it is said:

“ * * * It devolves on the party seeking a reversal to show that there is error in the judgment, and that unless he presents the case in such a manner as to show the error, the presumption in favor of the correctness of the judgment must prevail.” (The underscoring is Justice Wheeler’s.) Chandler v. State, 2 Tex. p. 308.

It is true that proof of an essential fact not averred will not sustain a judgment, and this has been the rule since Able v. McMurray, 10 Tex. 350. But judicially we are unable to tell of what the agreement consists, and ordinarily it would not do to speculate that any agreement for a judgment as prayed for in the original petition would have to be pleaded, even if we could go to the extent of recognizing any portion of the objections, which the court overruled, as properly defining some portion of the agreement; but, at best, as a last analysis, we think, from this record, the only thing we can legitimately presume is that there was some agreement on file, which the court considered, along with some evidence as instigating the judgment. The presumption in favor of the proper action of the court, we think, must prevail over this conjectural condition. We feel impelled to affirm the judgment. Affirmed.

On Motion for Rehearing.

The first assignment in appellant’s motion for rehearing is:

“Because this honorable court erred in failing and refusing to consider appellant’s first assignment of error,” etc.

We assume that appellant intended to assign that this court erred in “overruling” appellant’s first assignment of error; we “considered” the assignment. Under this assignment—

“appellant asks that he have the privilege of going before the trial judge and having this matter [the deficiency of the record] presented to him in accordance with this court’s opinion, and having the trial judge to approve the bill of exception and have it filed nunc 'pro tunc, and having this record completed on certiorari.”

The apt reply of appellee, in regard to this matter, we quote:

“The appellant’s motion, as a matter of fact, is not that he be granted a writ to bring up any omitted portions of the record in the case, but that he be granted a writ in order that he may go out and make a record and then bring it up.”

Even where there is a record to correct, the general rule is that an application to amend it is too late after the judgment of the Court of Civil Appeals has been rendered in the cause.

Appellant, in addressing himself to the opinion of this court on the question of the judgment, and the agreement found in the transcript, rather suggests the proposition that the certificate of the district clerk to the transcript, and the judgment of the district court, which refers to an agreement upon file by the attorneys, is a showing, equivalent to a statement of facts, that this is the only agreement, and the only record, upon which the final judgment of the district court could have been based. It is not necessary to distinguish a transcript proper, differentiated from a statement of facts and its function; the statutes and the decisions are ample on the subject. The final judgment of the trial court is based upon “evidence,” a part of which is an agreement of counsel filed in the cause at a former term of the court. From Campbell v. Skidmore, 1 Tex. 475, it is continuously held that, where all the facts are not exhibited, the—

“judgment will be presumed to have been duly and rightly rendered, * * * unless the reverse is made to appear; and it is with the appellant to bring before the court such a case as shall counteract this presumption.”

The motion for rehearing is, in all things, overruled.
      <g=»For other cases see same topic and KKY-NUMBER in all Key-Numbered Digests and Indexes

      @cs>Eor other cases see same topic and-KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    WESTERN UNION TELEGRAPH CO. v. SCHOONMAKER.
    (No. 487.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 2, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Evidence &wkey;>80 — Presumption or Foreign Law.
    There is a presumption that the law of another state is the same as the state where the case is on trial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dee. Dig. <®==>80.]
    2. Telegraphs and Telephones <&wkey;69 — Delay IN DELIVERY OP MESSAGE — EXEMPLARY Damages.
    Where a telegraph company was not negligent in employing an operator, did not authorize him to misdirect a message, and did not ratify his act in so doing, it was not liable for exemplary damages for such operator’s gross negligence in so doing.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 71; Dec. Dig. c&wkey;> 69.]
    3. Pleading <&wkey;4S3 — Cure by Verdict.
    A verdict for exemplary damages, in an action against a telegraph company for negligently delaying delivery of a message, did not cure the defect of the petition, in that it did not allege that the act of the company’s agent in changing the name of the addressee was directed or ratified by the company, or that the latter was negligent in selecting the employs.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. &wkey;433.]
    4. Telegraphs and Telephones c&wkey;37 — Delivery op Telegraph Dispatch.
    Where a telegram addressed in care of a .third person had the addressee’s name changed beyond recognition by the negligence of the sending agent of the company, so that it reached such third person with the name of the addressee changed, the delivery to the third person did not constitute in law a delivery to the addressee, though delivery with the name unchanged would have been.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. @=37.]
    5. Telegraphs and Telephones <&wkey;37 — Delivery.
    Where the sending agent of a telegraph company negligently changed the name of the addressee of a message sent in care of a third person, the fact that the third person, on receipt of the message, thought it might be intended for the addressee did not render delivery to him a delivery to the addressee.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. @=37.]
    6. Telegraphs and Telephones &wkey;>67 — Delay in Delivering Message — Damages — Cost op Transportation.
    Where delay in delivering a telegram that the addressee’s son was dying caused the addressee to miss the train at a junction point on his journey to his son, the fact that the addressee was guilty of contributory negligence in not taking an automobile out of - such junction point for his destination before he did did not relieve the telegraph company of liability for the difference in the actual and necessary cost to the addressee of reaching his destination by train and by automobile.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. &wkey;>67.]
    7. Commerce <&wkey;8 — Regulation op Interstate Telegraphic Communication — Fed- ■ eral Jurisdiction.
    In determining the liability of a telegraph company for negligence in the transmission of an interstate dispatch, as affected by the contract limiting.its liability, federal law is controlling, since by Act of Cong. June 18, 1910, Congress has undertaken the regulation of interstate telegraphic communication,
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <&wkey;8.]
    8. Telegraphs and Telephones <&wkey;54 — Delay in Delivering a Message — Exemption prom Liability.
    Where an interstate telegraphic dispatch, delay in delivery of which was sued for, was accepted by the company subject to a provision of a written contract that the company should not be liable for mistakes or delays in the transmission or delivery of, or for nondelivery of, any unrepeated message beyond the amount received for sending the same, unless the message was specially 'valued, etc., such agreement was not effectual to preclude recovery by the addressee of more than the cost of sending the message, since a common carrier cannot exempt himself for liability for his own negligence, while Act Cong. June 18, 1910, c. 309, 36 Stat. 539_, renders a telegraph company a common carrier of interstate telegraphic message, the clause of the contract not even being an agreed valuation of the message, made to obtain the lower of two rates.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. <&wkey;>54.]
    9.Telegraphs and Telephones ©=54^-De-lay in Delivering a Message — Exemption prom Liability.
    Where a telegraph company was guilty of gross negligence in delaying delivery of an interstate dispatch, the clause of the contract, subject to which the message was accepted, that the company should not be liable beyond the cost of transmission for delay in transmitting an unrepeated message was not effectual to bar the addressee’s recovery, beyond such amount, for all damages sustained and recoverable under the rules of law.
    TEd. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. @=54.]
    Appeal from District Court, El Paso County; C. B. Hudspeth, Judge.
    Action by D. W. Schoonmaker against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Geo. I-I. Fearons, of New York City, and Beall, Kemp & Nagle, of El Paso, for appellant. M. W. Stanton and Jno. F. Weeks, both, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

This suit was brought by appellee, D. W. Schoonmaker, for damages, actual and exemplary, which he alleged he had suffered by reason of the alleged failure on the part of appellant, Western Union Telegraph Company, to promptly deliver the following telegram, sent by J. W. Fleming, acting for and in behalf of his son, James C. Schoonmaker, from Silver City, N. M., to El Paso, Tex., said telegram being designed as a day message, and being in words and figures, following;

“May 25, 1915. Mr. Schoonmaker, c/o Mayor Kelly, El Paso, Texas. Your son Jim is very ill. Not expected to recover. [Signed] J. W. Fleming.”

Appellee alleged that Fleming paid the agent 30 cents, the sum charged for sending said message; that appellant was charged with notice that appellee’s son, James C. Schoonmaker, was very ill and not expected to recover, and that the agent of appellant at Silver City, instead of sending the message as written, intentionally, negligently, and carelessly changed the name of “Schoon-maker” to “Schoemaker”; that the message so changed was promptly transmitted and delivered to Mayor Kelly, hut that by reason of the change in the name same was not promptly delivered by Mayor Kelly to appellee until tbe following morning, May 26th, at about 8 o’clock. Appellee alleged that after receiving the message he took the first train out of El Paso for Silver City, the train leaving El Paso at 4 p. m., of that day, and arrived at Deming, N. M., at about -6 o’clock p. m. of the same day; that appellee, on arriving at Deming, had his daughter telephone to Silver City, and was advised by bis son’s doctor that it would he safe for him to remain in Deming overnight and take the train for Silver City the following day and thereby arrive at Silver City before his son would die, and that by reason of said advice, he remained at Deming during the night of May 26th. Ap-pellee alleged that on the morning of May 27th, he received information by telephone from his son’s doctor to come at'once, and that he immediately obtained an automobile and made the distance of 63 miles from Deming to Silver City in 2 hours and 15 minutes, arriving in Silver City shortly after the death of his son. Appellee alleged that, had the said telegram been promptly delivered, he would have boarded one of the trains leaving El Paso at 10:05 p. m., on May 25th, or at 6:50 a. m., on May 26th, and would have connected with the train at Deming on the morning of May 26th, and would have arrived at Silver City at a cost of about $5 railroad fare and about 22 hours before his son’s death, but that by said negligence of appellant he was required to pay $1.50 hotel bill in Deming and $15 for an automobile from Deming to Silver City, when the railroad fare would have been $1.90, and that his actual damages in consequence thereof were $14.90; that he suffered mental anguish and distress to the sum of $2,326.75. Appellee alleged that appellant was guilty of gross negligence and reckless conduct in failing to deliver said telegram as written, and thereby did so with intent to injure, harass, and annoy ap-pellee, and that by reason thereof appellee suffered exemplary damages in the sum of $439.70, for all of which appellee sued and prayed judgment.

Appellant’s answer contained exceptions, and specially to the items aggregating $14.90 and to the portion seeking to recover exemplary damages, and a denial of any negligence on its part, but admitted that the name of Schoonmaker in the telegram was changed by its agent at Silver City to Sehoemaker, but denied that said change was made through negligence or any evil intent, and denied that it was guilty of any act of negligence, but alleged that appellee’s failure to reach his son before his death was not due to any negligence on its part, but was caused by appellee’s failure to proceed from Deming to Silver City on the afternoon or night of May 26th. Appellant further answered that under the laws of New Mexico, damages for mental anguish, unaccompanied by physical injury, are not recoverable, and were not recoverable at the time of sending said telegram, and that the contract under which said message was sent was governed by the laws of New Mexico. Other matters pleaded by defendant will be later set forth.

The court submitted the case to the jury upon special issues. The jury found:

“First. On May 25, 1913, J. W. Fleming delivered to the defendant company at Silver City, N. M., for transmission to the plaintiff at El Paso, Tex., the following telegram: ‘May 25th, 1913, Mr. Schoonmaker, care of Mayor Kelly, El Paso, Texas. Your son Jim is very low, not expected to recover. [Signed] J. W. Fleming.’
“Second. That defendant company, at said time accepted said telegram for transmission and delivery and accepted from J. W. Fleming 30 cents in payment for such transmission and delivery of said telegram.
“Third. That defendant company’s agent, who received said telegram at Silver City, changed the name of the addressee from ‘Mr. .Schoonmaker’ to ‘Mr. Sehoemaker.’
“Fourth. The defendant company’s said agent was guilty of negligence in so changing the name of the addressee.
“Fifth. There was undue delay in the delivery of said telegram to the plaintiff.
“Sixth. Such delay was proximately caused by the act of the defendant’s agent, at Silver City, in altering said telegram.
“Seventh. Plaintiff did not exercise such care and diligence as an ordinarily prudent man in a like situation would have exercised in going from El Paso to Silver City, after he had received the 'message advising him of the illness of his son.
“Eighth. To exercise such care and diligence as an ordinarily prudent man in a like situation would have exercised, plaintiff should have left by automobile same evening of arrival at Deming.
“Ninth. Plaintiff has suffered actual damages, and the items of damage and the amount of each such item are: automobile, $15, less train fare, $1.90, $13,10; hotel, $1.50; message, 30 cents, total $14.90.”
“Eleventh. We find for the plaintiff exemplary or punitive damages in the amount of $500.
“Twelfth. The law was not established in New Mexico, on the 25th, 26th, and 27th days of May, 1913, as to whether or not the plaintiff in this case could recover damages for mental anguish or suffering, when not accompanied by physical injury.
“Thirteenth. Under the laws of New Mexico, as they existed on the 25th, 26th, and 27th days of May, 1913, damages could not have been recovered for mental anguish unaccompanied by physical pain.”

On motion of appellee, the court entered judgment in favor of appellee for $14.99 actual damages, and $500 exemplary damages. Appellant, in due time, filed, a motion for a new trial. Appellee filed a remittitur of $1.50, the hotel bill item, of the actual damages and $61 of the exemplary damages awarded by the trial court. The motion for new trial was overruled, and appellant took its appeal and filed its supersedeas bond.

Appellant submits this case on 29 assignments of error. The first 9 assignments, in various ways, question appellee’s right to recover exemplary damages under the pleadings, evidence, and facts found by the jury. We deem it unnecessary to discuss each of the assignments separately. In our opinion, several of the grounds assigned by appellant against the judgment for exemplary damages are well taken. Appellee’s judgment for exemplary damages is based solely upon his allegation and proof that Fleming, acting for James C. Schoonmaker and his father, appellee, wrote and delivered to appellant’s agent at Silver City, N. M., the telegram above stated, paying 30 cents, the charges for its delivery, and that appellant’s agent changed the name of the addressee in the message from- “Schoonmaker” to “Schoe-maker,” thereby confusing the name of the addressee and proximately resulting in the delay of its delivery to appellee. There is no allegation in appellee’s pleading nor evidence in the record of any act of negligence committed by the defendant corporation, acting by or through any superior or managing officer of defendant company, or that the act of the company’s agent at Silver Oity in changing the name of the addressee in the message had been previously authorized, and no allegation in the pleading of any subsequent ratification of the act of said agent in changing the name with knowledge of the fact that the name had been changed. The allegation of negligence and the proof offered had reference only to the act of the agent at Silver Oity in making the change in the name of the addressee as above indicated. The court, in the general' charge to the jury, defined exemplary damages, and authorized the jury to award exemplary damages should the jury find from the evidence that appellant was grossly negligent in altering said telegram. In the seventh paragraph of the general charge, in submitting the issue of actual damage, the court uses this language:

“And for such further actual damages, if any, caused by mental anguish, if you find he suffered mental anguish, as will be reasonably commensurate with such suffering, if any, not to exceed in any event, as to any such item, the respective amounts prayed for by plaintiff in his petition.”

Under the eleventh special issue submitted by the court the jury found and awarded exemplary damages in the sum of $500, of which appellee remitted $61.

The appellant, in various ways, made due and timely objections to the different parts of the general charge of the court, submitting the issue of exemplary damages as a part of the actual damages appellee might recover, and to the verdict of the jury in awarding exemplary damages, and embraced said objections in its motion for a new trial, and now ask a reversal of the case on the errors assigned. The jury found, under the evidence, that damages could not be recovered in New Mexico for mental anguish unaccompanied by physical pain. There was no allegation, evidence, or finding as to whether in' New Mexico the defendant company could be held liable for exemplary damages for gross negligence of the agent of the company, where the act was not directed by the company or ratified or adopted as its own. In the absence of pleadings and findings on such facts, we must presume the law of New Mexico to be the same as our own. It has been the uniform holding in this state since the opinion of Judge Could, rendered in Hays v. Railroad Co., 46 Tex. 272, .that to make the master liable in any case of exemplary damages for the fraud, malice, gross negligence, or oppression of the servant, it should be alleged and proved that the acts of the servant which constitute the fraud, malice, gross negligence, or oppression were committed by direction of the master, or that the master has ratified and adopted such act as his own, or that the master has been guilty of negligence in the selection and employment of the servant whose act constitute the fraud, malice, gross negligence, or oppression complained .of. None of these facts are alleged. Western Union Tel. Co. v. Karr et al., 5 Tex. Civ. App. 60, 24 S. W. 302; Western Union Tel. Co. v. Landry, 108 S. W. 461; Tel. Co. v. Brown, 58 Tex. 170, 44 Am. Rep. 610; Railway Co. v. Cowser, 57 Tex. 306. The Supreme Court of this state in the last-named case said:

“Exemplary damages are allowed only for the willful act, omission, or gross negligence of the ‘defendant’ to the suit, if a corporation, for the willful act, omission, or gross negligence of one representing it in its corporate capacity, as a corporate officer, but not of a mere * * * servant or agent.”

Plaintiff’s pleading on the issue of exemplary damages for gross negligence in not alleging that the act of the agent of the company in changing the name of the addressee in the message was directed by the company or ratified or adopted by the company as its act was not sufficient, as against a general demurrer, to authorize the submission of the issue of exemplary damages; nor are the necessary facts supplied by the answer of the defendant; nor does the verdict have the effect to cure the pleading. A verdict cures defects of form, but not of substance, in pleadings. T. & P. Ry. Co. v. McCoy, 3 Tex. Civ. App. 276, 22 S. W. 926. Appellee’s counter propositions are not sustained. Appellee’s assignments of error, complaining of errors in submitting and awarding exemplary damages, must be sustained.

Appellant’s eleventh assignment claims error in the action of the court in overruling its motion for new trial because the undisputed evidence shows that the message was promptly delivered to Mayor Kelly, in whose care it was sent, and that Mayor Kelly, without contradiction, testified that upon receipt of the message he suspected or thought it was for plaintiff, and that the delivery to Mayor Kelly constituted in law a delivery to plaintiff himself. A delivery to Mayor Kelly of the message delivered for transmission would be a delivery of it to the plaintiff. But the message as delivered to the defendant’s agent at Silver City for transmission was never delivered to Mayor Kelly or to plaintiff. If the name of the addressee so delivered for transmission is so mutilated or changed that the party to whom it is addressed, or for whom it is intended, could not know for whom it was intended, because of the mutilation or change of name, we think there would be no delivery of the message.

The mere fact that Mayor Kelly thought or supposed that the message might be intended for the plaintiff would not, in our opinion, constitute a delivery of tlie message given the agent by Fleming. The jury found that change of the name of the plaintiff was negligence and the proximate cause of the delay in the delivery of the message to plaintiff, as transmitted, and we think the finding is amply sustained by the evidence. The eleventh assignment is overruled.

We do not think the finding of the jury that the plaintiff was guilty of contributory negligence in not taking an automobile out of Deming for Silver Oity sooner than he did would relieve the defendant company of liability for the difference in the actual and necessary cost to plaintiff of reaching Silver Oity by train and by automobile, where the delay in the delivery of the message to plaintiff caused plaintiff to miss the train at Deming, as complained of in the thirteenth assignment. The evidence does not show that appellee could have gone by train from Deming to Silver City after reaching Deming and before he went to Silver Oity by automobile. We think the defendant company should be taxed with the difference in cost of the two methods of travel between Deming and Silver Oity, unless the difference in cost is excluded by a construction of the limitation clause on the back of the message, as hereinafter discussed. The assignment is considered and will be passed upon in connection with the subsequent assignments.

Defendants specially pleaded: That the telegraphic message was delivered to • and accepted by it subject to the terms of a certain contract in writing, attached to its answer and marked “Exhibit A,” which contract provided as follows:

“To guard against mistakes or delays, the sender of a message should order it repeated, that is, telegraphed back to the originating office for comparison. Por this one-half the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed between the sender of the message and this company as follows:
“1. The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines; nor for errors in cipher or obscure messages.
“2. In any event, the company shall not he liable for damages for any mistakes or delay in the transmission1 or delivery, or for the nondelivery of this message, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this message is hereby valued, unless a greater value is stated in writing hereon at the time the message is offered to the company for transmission, and an additional sum paid or agreed to he paid based on such value equal to one tenth of one per cent, thereof.”

That it was a condition of the contract, as •shown by the paragraphs quoted, that the defendant would not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message beyond the amounts received for sending same. That said message was an unrepeated one and the sum of SO cents was paid defendant for its transmission and delivery. That it was an interstate message to be sent from a point in the state of New Mexico to a point in Texas and was interstate commerce; that by the defendant’s established rules, regulations, and tariffs, as same were in effect prior to June 18,1910, and are still maintained and established, messages are classified into “repeated” and “unrepeated,” a repeated message being a message which the defendant agreed that the office of destination shall transmit back to the point of origin, in order to avoid mistakes. That in the case of unrepeated' messages, deftendant assumes no liability beyond the amount received for'sending same, while in the ease of repeated messages, defendant does not undertake to limit its liability to the amount received for sending same, but assumes liability not to exceed fifty times the amount received for sending the message, except in so far as said liability may be further limited by other provisions of the contract, and that for the additional risk or liability assumed in the case of a repeated message, the defendant at all times mentioned has made, and still makes, an additional charge equal to one-half of the unrepeated message rate. That by an act of Congress, approved June 18, 1910 (36 Stat. L. 539) the Congress of the United States entered and assumed charge of regulating the field of interstate communications by telegraph, and thereby removed and exempted such interstate communication by telegraph from the field of state regulation or interference, and undertook and did confer upon the Interstate Commerce Commission full power over the rates, charges, facilities, classifications, and practices of telegraph companies engaged-in interstate commerce with reference to such interstate commerce, and in particular conferred on the Interstate Commerce Commission power to approve, alter, or acquiesce in existing rates and classifications, which power the Interstate Commerce Commission has ever since retained and still retains. That the said Interstate Commerce Commission, prior to the filing of the message sued on, and prior to the commencement of this action, had full knowledge of the rates, charges, and classifications, established by the defendant as above described, and, with such knowledge, acquiesced in and approved the same, and, did not, at any time, alter or seek to alter such rates, charges, classifications, or regulations, and thereby recognized the right of the defendant to charge a higher rate for a greater liability and a lower rate for a less liability, as above described. By reason of which, and of all the premises, the defendant says that the stipulation in the contract, subject to which this message was accepted, to 'the effect that the defendant’s liability should not, in any event, exceed the sum of 80 cents, was reasonable and valid and binding on the plaintiff herein, and free from any regulation or control on the part of the state of Texas, or any other state, so that the defendant ought not to be liable, in any event, in this action ■ beyond the sum of 30 cents, with interest from the date of said message.

Defendant further says that, as more fully appears by said Exhibit A, it was a term and condition of the said contract, subject to which, and subject to which only, the said message was accepted by the defendant that the defendant should not be liable for mistakes or delays in the transmission or delivery or for nondelivery of a message, whether caused by the negligence of its servants or otherwise, beyond the sum of $50, at which amount the said message was valued by the sender thereof. That by the defendant’s established rules, regulations and tariffs, as the same were in effect prior to June 18,1910, and are still maintained and established, messages are classified, among other classifications, into messages valued by the senders thereof at $50 and messages valued by the senders thereof at some specified sum in excess of $50. That all defendant’s ordinary rates and tariffs for the transmission and delivery of messages are based on the assumption that the message is valued at $50 or less, and that in the case of a message valued at a specified sum in excess of $50, it was, at all the times mentioned and still is, the rule, regulation, tariff, and practice of the defendant to charge and collect an additional sum to cover the increased risk of liability, which additional sum is based on the valuation and is equal to one-tenth of one per cent, thereof. Ry reason of which and of all the premises, defendant says that, if liable at all, it ought not to be liable to the plaintiff in this action, in any event, beyond the sum of $50, with interest from the date of said message. That the damages classified on account of mental anguish or suffering are not recoverable in this suit.

Plaintiff excepted to the foregoing portions of defendant’s answer, and the exceptions were sustained by the court, and the correctness, of its action in so doing is challenged by a number of assignments of error.

In view of the disposition made of the item of exemplary damages allowed in the judgment of the lower court and of the fact that the actual damages allowed amounts to only $14.90, it becomes unimportant to determine whether or not the second paragraph of the contract in question is valid or not. Such second paragraph limits the amount of recovery to the sum of $50, and the actual damage allowed is far less than that. So it remains only to be determined whether or not, under the first paragraph of the contract, liability of the company is limited to the sum of 30 cents, that being the price paid for its trans- ■ mission and delivery and the message being an unrepeated one. In support of its various assignments of error upon this phase of the case, appellant urges that 'by an act of Congress, approved June 18, 1910 (36 Stat. L. 539) the federal government has entered the field and taken control of interstate communications by telegraph, and in the transmission of interstate messages the telegraph company has the right, in consideration of sending a message at a reduced rate, to limit its liability even against its own negligence. In this view we do not concur, and since there was negligence upon the part of the company in the transmission of the message, the clause in question will not operate to limit its liability to the sum received for sending same.

Appellant, in support of its position refers us to the following authorities: M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; B. & M. R. R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; A., T. & S. F. Ry. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901; Act of Congress approved June 18, 1910 (36 Stat. L. 539); Western Union Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457; Western Union Tel. Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91; Western Union Tel. Co. v. Compton, 114 Ark. 193, 169 S. W. 946; Western Union Tel. Co. v. Johnson (Ark.) 171 S. W. 859. But we are of opinion it can be demonstrated that the authorities cited do not support the position taken.

It may be conceded, under the authority of Western Union Tel. Co. v. Brown and the Virginia and Arkansas cases cited above, that in determining the liability of the defendant for its negligence in the transmission of the message, we are controlled 'by federal law upon the subject. That is to say, by the act of Congress of June 18, 1910, Congress has undertaken the regulation of interstate telegraphic communication, and the validity of the limitation upon the defendant’s liability by the clause in the contract noted is a fed* eral question, to be determined under the general common law, as declared by the United States Supreme Court, and as such the question is withdrawn from the field of state law or legislation.

It is the well-settled rule that a common carrier cannot exempt himself from liability for his own negligence or that off his servants. Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and cases there cited. And by the act of June 18,1910, it is declared that the defendant shall be considered and held to be a common carrier. It follows therefore that it cannot exempt itself from liability for its own negligence or that of its servants. Tile cases of Railway Co. v. Harriman, Adams Exp. Co. v. Croninger, and Railway Co. v. Carl, supra, expressly repudiate tlie idea that a common carrier may exempt itself from such liability. They simply hold that such carrier may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges, proportioned to the amount of risk, and that such a limitation so made is not an exemption from liability for negligence.

Conceding for the sake of argument that a telegraphic message may properly be valued by the parties and the amount recoverable in ease of breach of the contract limited to such agreed value, in a case where such valuation was made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk, yet the clause considered can, in no sense, be regarded as an agreed valuation of the message. The second paragraph of the contract does undertake to make an agreed valuation, but the first does not. The first simply undertakes to limit the amount of recovery to the price paid for its transmission, and is in effect an exemption from the consequences of its negligence by releasing all damages incurred in excess of the price so paid. It may be conceded that the classification of the message affords a basis for a distinction in the rate, and that the limitation is thus supported by a consideration, and it may be further conceded that the clause does not undertake to wholly release the damages sustained, but:

“An agreement to release such a carrier for part of a loss due to negligence is no more valid than one whereby there is complete exemption. Neither is such a contract any more valid because it rests upon a consideration than if it was without consideration.” Railway Co. v. Carl, supra.

The verdict of the jury establishing negligence upon part of defendant, the first clause of the contract will not protect it from liability for the full amount of the damages properly allowable in such cases.

What has been said is from the viewpoint that ordinary negligence only is chargeable against the defendant. The fourth finding establishes such negligence. But there is another aspect of the case, which forecloses appellant’s contention that the clause in question limits its liability to the price paid for its transmission. The court, in its charge to the jury, defined the term “gross negligence,” and instructed the jury that they would not allow any exemplary damages unless the defendant was guilty of gross negligence in altering the message so filed or in not promptly delivering the same. In response to the eleventh issue, the jury allowed exemplary damages in sum of $500. This necessarily implies a finding of gross negligence upon the appellant’s part. In such a case the clause in question will not protect defendants from the full consequences of such negligence, and it is liable for all the damages sustained and recoverable under the rules of law; it is so held in the federal courts and other jurisdictions where the validity of such a clause has been upheld. Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Postal Tel. Co. v. Nichols, 159 Fed. 643, 89 C. C. A. 585, 16 L. R. A. (N. S.) 870, 14 Ann. Cas. 369; Weld v. Tel. Co., 199 N. Y. 88, 92 N. E. 415; s. c., 210 N. Y. 59, 103 N. E. 957; Wheelock v. Tel. Co., 197 Mass. 119, 83 N. E. 313, 14 Ann. Cas. 188; Tel. Co. v. Gildersleve, 29 Md. 232, 96 Am. Dec. 519; Halsted v. Tel. Co., 193 N. Y. 293, 85 N. E. 1078, 19 L. R. A. (N. S.) 1021, 127 Am. St. Rep. 952.

So, under any view of the case, it follows that the stipulation in question will not protect defendant. We express no opinion as to the validity of the second stipulation, which undertakes to value the message at $50 and limit liability to that amount.

The judgment of the trial court will be reversed, and here rendered in appellee’s favor for the sum of $14.90 actual damages, less the hotel bill of $1.50, which was remitted in the court below.

Reversed and rendered.
      d&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      .@=Eor other oases see aame.topic and.KEy-NUMBER in all Key-Numbered Digests and Indexes