author: WALTHALL, J.

text:
    ROWAN et al. v. STOWE.
    (No. 669.)
    (Court of Civil Appeals of Texas. El Paso.
    March 15, 1917.)
    1. Intoxicating Liquors c&wkey;264 — Illegal Sale — Injunction—Suit by Pkivate Citizen.
    Under Rev. St. 1911, art. 4674, declaring that a person, firm, or corporation selling intoxicating liquors at retail without procuring the required license or paying the required tax shall be regarded as the promoter of a public nuisance, and may be enjoined at the suit of any private citizen, a private citizen could maintain an action to enjoin the sale of intoxicating liquors to the public generally without a license by an incorporated athletic club which was not a bona fide club, but was incorporated as a sham to evade the law.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 403.]
    2. Intoxicating Liquors <&wkey;264 — Illegal Sale — Injunction.
    The fact that the Attorney General alone is empowered to bring a suit to forfeit the charter of a corporation and inquire into its charter rights does not affect the right given by Rev. St. 1911, art. 4674, to a private citizen to maintain a suit to enjoin an incorporated club from maintaining a nuisance- by selling intoxicating liquors without a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 403.]
    3. Corporations <&wkey;387(2) — Powers — Persons Entitled to Question — Special Exception.
    In a suit by a private citizen under authority of Rev. St. 1911, art. 4674, to enjoin an incorporated club from maintaining a nuisance by selling intoxicating liquors without a license, a special exception to paragraphs of the complaint constituting an inquiry into defendants’ charter rights and an effort to prevent them from exercising a power not authorized by law should have been sustained; as a suit for that purpose could be brought only by the Attorney General.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1549, 1550.]
    4. Appeal and Error &wkey;>1040(ll) — Review-Harmless Error.
    Efcror in overruling a special exception to paragraphs of the complaint constituting an inquiry into defendants’ charter rights and an effort to prevent it from exercising a power not authorized by law was harmless, since other allegations of the petition stated a cause of action under article 4674.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4099.]
    5. Parties <&wkey;94(2) — Misnomer—Objections —“Name.”
    If the defendant desired to avail itself of a misnomer in the petition, it should have pleaded it in abatement, and, having appeared and answered in its proper name, it is concluded from objecting to the misnomer, and the court properly entered judgment against it by its proper name, since a name is but a means of identity, and it is not the name that is sued, but the person or corporation to whom it is applied.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 156, 157, 159.
    For other definitions, see Words and Phrases, First and Second Series, Name.]
    6. Judgment <&wkey;248 — Matters Not in Pleading or Proof.
    Where the petition did not allege that the club was permitting or had permitted the playing of cards or games to be played with cards '■upon the premises occupied or controlled by the club, and the proof did not show such acts, that part of the decree enjoining defendant corporation from permitting the playing of cards, or games to be played with cards upon the premises or any part thereof, was error.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434.]
    Appeal from District Court, El Paso County ; W. D. Howe, Special Judge.
    Suit by J. E. Stowe against Sam 'Rowan and another. Judgment for plaintiff, and defendants appeal.
    Judgment corrected, and as corrected affirmed.
    Moore & Harris and T. A. Falvey, all of El Paso, for appellants. Eugene L. Harris and P. H. Marcum, both of El Paso, for appellee.
   WALTHALL, J.

J. E. Stowe, a resident of the city of El Paso, filed this suit against Sam Rowan and the West Texas. Club, which was alleged to be a private corporation, duly incorporated under the laws of Texas. The substance of the plaintiff’s allegations may be stated briefly as follows:

(1) That Rowan is in possession and in control of and is the lessee of certain premises in the basement of the McCoy Hotel in the city of El Paso, said premises being commonly known as the West Texas. Club, and being the place where the West Texas Club has its headquarters and place of business; that the said premises, in fact, are owned, operated, and controlled by Rowan, for his own private use, benefit, and profit, the said Rowan using the charter granted to said corporation as a sham and makeshift for the purpose of conducting in the name of said corporation a buffet and saloon at said place, and for the purpose and with the intent of evading and avoiding the liquor laws of the state and the payment of the taxes due the state as a retail liquor dealer, and that the said Rowan for a long time prior to the filing of the petition has been so engaged in the business of and occupation of a retail liquor dealer, and has been conducting said premises as a disorderly house, and threatens and contemplates to so continue to do; that the premises constitute a disorderly house in this, that therein spirituous, vinous, and malted liquors are sold in quantities of one gallon or less to be drunk on the premises, ánd have continuously been kept for sale without the defendant first having obtained a license under the laws of the state to engage in the business or occupation of a retail liquor dealer, and that no person or corporation has a license to re-retail liquors or to engage in the business or occupation of a retail liquor dealer at said premises.
(2) (There is no paragraph 2.)
(3) That Rowan threatens and contemplates to continue said premises as a disorderly house aforesaid.
(4) That if plaintiff is mistaken in the foregoing allegations, and that Rowan is not personally maintaining in the premises a disorderly house, and is not personally engaged in the business and occupation of a retail liquor dealer, and that, in truth and in fact, the West Texas Club has actual control of and is conducting and managing the said premises, and that the said Rowan is merely the manager, agent, or servant of the West Texas Club, then plaintiff complains of the West Texas Club, and avers that it is duly incorporated, but that it has been granted no authority to conduct a saloon or buffet upon said premises, nor to sell, give away, or dispense to its members intoxicating liquors; that since its organization it 'has conducted a buffet and saloon upon said premises, and is now so doing, and has engaged in the business or occupation of selling and dispensing to its members, their invited guests, and other persons, intoxicating liquors without first having obtained a state license therefor ; that the sale and dispensation of such intoxicating liquors is not necessary or essential to enjoy the purposes or to carry into effect the purposes of its incorporation, nor appropriate to the exercise of its corporate authority; that the sale and dispensation of said liquors has been the chief and main occupation of the corporation since its organization, and the purposes set forth in its charter have been subverted to the business and occupation 'of selling and dispensing intoxicating liquors; that the purpose for which it was incorporated is a mere incident to the conduct of its actual business and. occupation, and that its main and principal business and occupation is that of selling and dispensing intoxicating liquors, and it was incorporated as a sham or device to evade and elude the liquor laws of the state, and that the purposes of the corporation were a mere shield and subterfuge behind which the corporation concealed its main purpose and business, viz. selling and dispensing intoxicating liquors; that it is not and has not been necessary or proper under its express or implied corporate powers to conduct a bar or buffet upon the premises and to sell and dispense intoxicating liquors.
(5) That the corporation has been and is now employing and using its stock, means, assets, and property for purposes other than to accomplish the legitimate purpose of its creation, in this:
(a) That it has been and is now maintaining a buffet upon such premises selling and dispensing intoxicating liquors to its members and invited guests, and will continue to do so unless restrained.
(b) That the corporation has not taken out or paid any liquor dealer’s license, but has sold intoxicating liquors without such license and without having qualified as a retail liquor dealer; that it has sold and now sells and dispenses intoxicating liquors in quantities of one gallon or less to be drunk upon the premises.
(6) That in so doing the corporation is employing and using its stock, assets, means, and properties for purposes other than that for which the corporation was chartered, and that the same constitutes a misuse and abuse of its corporate franchises and privileges and authorizes and requires the court to enjoin the corporation from maintaining said buffet and selling and dispensing intoxicating liquors to its members and from using its rooms and premises for such purpose; that the sale and dispensation of intoxicating liquors without a state license is the usurpation of a franchise to which it is not entitled ; that it was not chartered for the purpose of or with authority to maintain a buffet or to purchase and sell intoxicating liquors, and in so doing it is violating its corporate powers and the laws of the state, entitling the state to an injunction restraining it from such abuse of its corporate powers and such use of its corporate properties and funds, and from violating the laws of the state.
(7) Prayed that Sam Rowan be enjoined from using said premises for the purpose of selling said liquors on said premises unless he should procure a license so to do and pay the tax required by law and that the corporation, its officers, agents, and employés, be enjoined from longer maintaining said buffet and using the stock, means, a'ssets, and property of the corporation in purchasing, selling, and dispensing intoxicating liquors to its members and other persons and for general relief.

1 The case was tried before a jury and submitted upon special issues. The following facts were found by the jury: That the premises had not been used by Rowan for his own private use as a place for the sale or dispensation of intoxicating liquors; that the West Texas Athletic Club, through its officers and agents, since its incorporation, had not conducted in good faith its business so as to carry into effect the purposes set forth in its charter, viz. the purposes of supporting and maintaining the innocent sports of boxing, wrestling, sparring, jumping, running, and gymnastics generally, such as those performed by the use of dumb-bells, Indian clubs, trapeze, and numerous other exercises designed and intended to develop the muscles of the body; that the main purpose and occupation of such club as it was and had been conducted since its incorporation to June 12, 1916, on which date the suit was filed, was the sale or dispensing of intoxicating liquors to its members and invited guests; that said club, through its officers and agents on the 12th day of June, 1916, and prior to that date, was using its charter ás a shield or makeshift for the purpose of selling intoxicating liquor to its members; that the. sale of intoxicating liquors to its members and invited guests was reasonably appropriate to carry into effect the purposes for which the West Texas Athletic Club was chartered as aforesaid. The correctness of the findings is not challenged by any assignment.

Upon these findings the court entered judgment enjoining Sam Rowan, as an officer of the West Texas Athletic Club, and the West Texas Athletic Club, its officers, agents, servants, and employés, from using the said premises for the purpose of selling, dispensing, or giving away spirituous, vinous, and malted liquors, and from keeping for sale and dispensation or for the purpose of giving away thereon such liquors, and defendants have prosecuted this appeal from that judgment.

Error is assigned to the action of the court in overruling demurrers to the petition. It is asserted in support of these assignments that the plaintiff was without authority to bring this suit. In this contention we do not concur. Article 4674, R. S., declares that any person, firm, or corporation who may engage in or pursue the business of selling intoxicating liquors without having first procured the necessary license and paid the tax required by law shall be regarded as the creator and promoter of a public nuisance and may be enjoined at the suit of any private citizen of the state.

The allegations of the petition show that the defendants are maintaining a saloon and buffet upon the premises and selling intoxicating liquors without having first procured the necessary license. The allegations show that the defendant corporation was incorporated as a mere sham and subterfuge to evade the laws of the state; that it was not a bona fide club, which, as an incident to its organization and without profit, furnished liquor to its members, and not to the public generally. Under these allegations it could not be regarded as a club which was exempt from the necessity of paying the taxes required by law of retail liquor dealers and which are not required to procure license under the decision in the case of State v. Duke, 104 Tex. 355, 137 S. W. 654, 138 S. W. 385. Under the statute indicated, the appellee, as a private citizen, had the right to maintain an action to enjoin the nuisance denounced by the statute.

It is next asserted in support of the assignment complaining of the overruling of the demurrers, that under the Constitution the Attorney General alone is empowered to bring a suit to forfeit the charter of a private corporation and to inquire into the charter rights of such corporation. This proposition of law is correct, but it has no application here. Appellants being the promoters and creators of a public nuisance, any private citizen of the state might bring an action to enjoin the nuisance. Article 4674, R. S.

The fifth and sixth paragraphs of the petition in this case, in effect, constitute an inquiry into the charter rights of the defendant corporation and constitute an effort to prevent the corporation from exercising a power not authorized by law, but the other allegations in the petition bring the case within - the statutory provision of the article stated above.

The -third special exception of the defendants to the fifth and sixth paragraphs of the petition should have been sustained, because a private citizen has no authority to inquire into the charter powers of a private corporation and prevent it from exercising a power not authorized by law. But the error in overruling this exception was harmless, since other allegations of the petition stated a cause of action under article 4674.

The next assignment is that judgment was erroneously entered against the West Texas Athletic Club, when the defendant corporation was sued as “the West Texas Club.” The defendant in the case answered in the name of “the West Texas Athletic Club.” Appellant, if it desired to avail itself of the misnomer in the petition, should have pleaded same in abatement Having appeared and, answered in its proper name, it is con-eluded from objecting to the misnomer, and tbe court was authorized to enter judgment against it by its proper name. A name is but a means of identity. Tbe application of a wrong name does not change the thing identified. It is not the name that is sued, but the person or corporation to whom it is applied. If he appears and fails to object that he is sued by a wrong name, and a judgment be rendered against him by such'name, he is as much bound by the judgment as if it had been rendered against him by his right name, and the sanie rule applies in the case of corporations. 1 Black on Judgments (1st Ed.) § 213; Anderson v. Zorn, 62 Tex. Civ. App. 547, 131 S. W. 835; Barry v. Woodson, 33 Mo. 347, 84 Am. Dec. 51; Hoffield v. Board of Education, 33 Kan. 644, 7 Pac. 216. For«the reason indicated, there was no error in rendering judgment against the defendant corporation by the name in which it answered.

The trial court also decreed that Sam Rowan, as an officer of the West Texas Athletic Club, and the West Texas Athletic .Club, its officers, agents, servants, and employes, “be, and the same are hereby, perpetually enjoined, restrained and prohibited from permitting the playing of cards or games to be played with cards upon the premises or any part thereof of the West Texas Athletic Club.” The petition does not allege that Rowan or the club was permitting or had permitted the playing of cards or games to be played with cards upon the premises occupied or controlled by the club, nor does the proof show such facts. This ■ part of the order of the court' was error. Under the evidence and findings of the jury, we think the judgment of the court, .except as above indicated, was properly entered.

The judgment is here corrected, as above indicated, and, as corrected, affirmed. The costs in this appeal will be taxed against the appellant.
      ©=3>For other oasea see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    MARTIN v. CLEMENTS.
    (No. 7759.)
    (Court of Civil Appeals of Texas. Dallas.
    March 17, 1917.)
    1. New Trial &wkey;>85 — Grounds — Misunderstanding with Counsel.
    Where defendant on account of a misunderstanding with his attorney and on account of absence owing to father’s fatal illness did not file answer and was regularly defaulted, a,‘new trial was properly refused; no fraud or undue advantage by the opposite party being shown.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 170-172.]
    2. New Trial &wkey;>140(l) — Trial of Issue.
    The allegations of a motion for new trial may be controverted and evidence heard as to their truth.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 284, 285, 289.]
    3. Appeal and Error &wkey;>933(5) — Review-Presumption — Overruling Motion por New Trial.
    Where record does not show what evidence was introduced, if any, upon hearing of a motion for new trial, it will be presumed that court’s discretion in overruling the motion was not abused.
    4. Judgment <&wkey;138(l) — Default—Vacation —Grounds.
    Where a court of competent jurisdiction has pronounced judgment by default it will not be disturbed unless clearly shown that a party has been prevented by fraud, accident, or the opposite party’s acts from making a valid defense, without his own fault or negligence, and it is not sufficient to merely show that injustice has been done.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 249-251.]
    5. New Trial <&wkey; 128(1) — Requisites of Application — Reliance on Attorney.
    Motion for new trial alleging defendant’s reliance on his attorney to‘ file answer, which was not done, was defective for not showing facts as to how the employment was effective, since, if the attorney legally employed was negligent, his client must suffer the consequences, and, if there was no employment, the party was responsible for his own default.
    [Ed. Note. — For other eases, see New Trial, Cent; Dig. § 257.]
    Appeal from District Court, Hill County; Norton B. Porter, Judge.
    Suit by Mrs. R. L. Clements against J. T. Martin. Defendant appeals from judgment for plaintiff and from order denying motion for new trial.
    Affirmed.
    J. E. Clarke, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.
   RAINEY, C. J.

Appellee sued appellant for the possession of a tract of land and caused a writ of sequestration to issue. The writ was executed February 5, 1916, and by the sheriff taken possession of, and on the same day citation was served on the appellant. On February 14, 1916, appellant executed a replevin, bond and retained possession of the land. Appellant failed to answer, and on March 7, 1916, said cause was regularly called for trial, and judgment by default was regularly entered for the appellee.

On April 13, 1916, appellant filed a motion for a new trial, alleging in substance that the time he was served with citation his father was very sick at Mineral Wells, and he immediately went to Hillsboro, 20 miles distant from his home, and consulted with an attorney and employed him to replevy said property, which was done; that on returning home he learned of the serious illness of his father, and he immediately went to Mineral Wells to visit him; that his father continued seriously ill, and he remained at his father’s bedside most of the time until about one week ago, when he died; “that at the time he employed said' attorney and said attorney prepared said replevin bond and during the time intervening up to the time of his father’s death he believed that his attendance upon court was not required, and the illness of his father was such as to prevent such attendance; his belief, however, was that his attorney would look after the case and would see that no disadvantage was suffered by him by reason of his absence and advise him when it was necessary that he should be present at court;” that at that time he advised said attorney of his defense, which was that as tenant he had a contract with plaintiff to occupy and cultivate said land for the year 1916, and he believed said defense would he presented by said attorney, and that he would be advised when it became necessary to produce his evidence in support of said defense; that, in consequence of the serious and fatal illness of his father and the belief that his attorney would attend to said cause he was not present at the trial, and did not learn of same until within the last week when he communicated with his said attorney with reference to the case; he then immediately went to Hillsboro, saw his attorney, and “learned from him that there was a misunderstanding between him and his said attorney, and said attorney understood that his employment only extended to authority to prepare said replevy bond and file same, and that he was expecting to have this defendant see him again with reference to employing him to defend the suit”; that, relying upon his rental contract, he expected to occupy and cultivate said land and live thereon with his family; that he had incurred expense in preparing for cultivation and in planting part of same in crops. The motion was sworn to.

The appellee contested said motion for new trial and filed general exception to same, a general denial, and specially answered that the appellant was regularly served; that he had employed counsel; that the cause had been regularly reached and regularly tried; that no answer had been filed by defendant; and that, in effect, said attorney lived in Hillsboro, knew of said cause, and failed to file an answer, etc. Said motion was regularly heard by the court and overruled.

We are of the opinion that there was no error in the trial court overruling the motion for a new trial. The record shows that the appellant was duly served in plenty time for him to consult an attorney and to have filed an answer, which was not done. Default was made, and a judgment was duly rendered against him. The motion for new trial was contested, and the same was heard and passed upon by the court, and it was overruled. The record does not show what evidence was introduced, if any. The allegations of the motion “are not * * * accepted as trae, but may be controverted, and evidence heard as to their truth” (Tinsley v. Corbett, 27 Tex. Civ. App. 633, 66 S. W. 910), and the presumption will obtain that the court did not abuse its discretion in overruling the motion.

There is no charge that the appellee «r his attorney did anything which misled or caused appellant not to make his appearance at the trial. Stringer v. Robertson (Tex. Civ. App.) 140 S. W. 502; Johnson v. Templeton, 60 Tex. 238. In the ease last cited the court said:

“Where the final judgment of a court of competent jurisdiction has been once solemnly pronounced, it ought not to be lightly disturbed. It is alike the interest of individual suitors and of the public at large that there should be at some. period an. end put to litigation. * * * It will not be sufficient to show that injustice has been done by the judgment sought to be enjoined. It must further distinctly and clearly appear that this result was not caused by any inattentmn or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case. * * * Relief will not be granted unless the party seeking it can show clearly to the satisfaction of the. chancellor that he has a good defense to the action, which he was prevented from making by fraud, accident, or the acts of the opposite party, wholly unmixed with any fault or negligence on his part.”

The allegation that appellant relied upon an attorney to file an answer is defective and not showing any fact as to how the employment was effective. If the employment' was made, and the attorney neglected to attend to the case, appellant must suffer the consequences of the attorney’s negligence, and, if there was no employment, then he is responsible for his own default.

In any event the court has passed upon the matter, and in support of his judgment the ease will be affirmed.

.Affirmed.
      <g=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PANHANDLE & S. F. RY. CO. et al. v. HARP.
    (No. 1122.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1917.
    Rehearing Denied March 28, 1917.)
    1. Carbiebs <@=^229(1) — Injury to Stock-Elements of Damage.
    In action against a carrier for injuri.es to stock shipped, shrinkage, depreciation in market value, and decline of market price during delay were all proper elements of damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963.]
    2. Carriers <&wkey;230(13) — Injury to Stock— Certainty of Yerdict.
    The fact that a finding of damages for depreciation in market value to cattle shipped over defendant railway did not state that delay caused cattle to become gaunt and jaded did not render verdict uncertain or show recovery was for an item of damages not alleged.
    3. Appeal and Error <§^930(1) — Review — Consideration of Evidence as a Whole.
    Upon appeal the evidence should be considered as a whole in determining whether a verdict was justified.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758.]
    4. Carriers &wkey;>230(13) — Injury to Stock-Elements of Damage.
    In action for damages to shipment of stock, a finding allowing recovery of feed bill incurred because of carrier’s delay was proper if sustained by pleadings and proof, although not covered by the charge.

      5. Cakeiers <&wkey;213 — Injury to Stock — Damages Resulting from Shipper’s Acts.
    Where cattle shipped to Kansas City with privilege of Wichita were'unloaded at Wichita, at shipper’s request, and after 24 hours were reshipped to Kansas City, no recovery against the carrier could be had for delay and shrinkage at Wichita.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 920-922.]
    6. Trial <&wkey;260(l) — Request Covered by General Charge.
    Where court’s general charge sufficiently covered matter of special requests, it was proper to refuse to give requests.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    7. Trial <&wkey; 141 — Question for Jury —Un-contradicted Evidence.
    In action for injury to shipment of stock, where uncontradicted evidence showed that there was no negligence during part of carriage, it was error to submit that question to the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 336.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by Ross Harp against the Panhandle & Santa Eé Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R, Pearson, of Plainview, for appellants. Graham & Graham, of Plain-view, and Kimbrough, Underwood ix Jackson, of Amarillo, for appellee.
   HALL, J.

This is a cattle shipping case. The plaintiff’s amended original petition alleged that on November 27, 1915, plaintiff delivered to the Panhandle & Santa Eé Railway Company, at Plainview, Tex., 174 head of cattle, to be transported, via that line and its connecting carrier, the Atchison, Topeka & Santa Eé Railway Company, to Kansas City, Mo., with privilege of the Wichita, Kansas market, being billed to Wichita, Kan., and there rebilled to Kansas City; that if the cattle had been transported within a reasonable time they would have arrived at Kansas City early Tuesday morning, November 30, 1915, in good condition and in time to be fed, watered, rested, and placed on the market of that date; that the cattle were not transported with ordinary care, but were negligently and carelessly cared for, roughly handled, and delayed so that they did not reach Kansas City until late in the day of November 30, 1915, and it became necessary to hold them over until the market of the following day, incurring extra feed bills in the sum of $35; that at Wichita the cattle were reloaded into ten cars, which caused them to jolt, become bruised, injuring them, and that the delay caused them to become jaded and gaunt so that on account of their gaunt condition they sold for 20 cents per hundredweight less than they would have sold for on the open market at Kansas City, to plaintiff’s damage in the sum of $337.98; that on account of the unreasonable delay they shrank 3,400 pounds more than they would have shrunk, to plaintiff’s further damage in the sum of $204; that on 54 head the market declined 25 cents per hundredweight, or 54,330 pounds, and 20 cents per hundredweight on 114,660 pounds for the remaining 116 head, to plaintiff’s damage in the sum of $365.07.

By their first amended original answer the defendant carriers, after general and special demurrers and general denial, answered that they fully performed their duty as carriers to transport said shipment with ordinary care and dispatch; that the shipment was in fact transported to Wichita, Kan., where it arrived at 4:35 p. m., November 28, 1915, where it was delivered to Healey Commission Company, to whom consigned, without exception; that plaintiff did not sell the cattle at Wichita, but ordered the shipment out on the evening of November 29th to Kansas City, and defendants exercised ordinary care to transport said shipment to Kansas City with reasonable diligence and dispatch, and delivered the same at the Kansas City Stockyards, on the morning of November 30, 1915, without damage other than that usual and ordinarily incident to their transportation by rail; that the failure of said shipment to reach Kansas City in time for the market of November 30, 1915, was not due to the fault of the carrier, but was due to the negligence of the plaintiff, who knew that to forward said shipment to Kansas City would shrink said cattle; that the shipment did in fact reach Kansas City November 30, 1915, in time for the market of that date and could have been sold but for plaintiff’s negligence in holding them over; and that plaintiff's negligence was the proximate cause of the shrinkage and other damages to said cattle.

In stating the issues made by the pleadings to the jury, the court used this language:

“A. In this case, the plaintiff sued the defendant railway companies for alleged damages occasioned by delay in reaching market, and shrinkage and depreciation in market value on account of damaged and gaunt condition of his cattle, also alleging that on account of delays the cattle were compelled to be held over for the market of the next day, which necessitated extra expense for feed, and that on said last-mentioned day the market was less.”

Of this statement, appellants in their first assignment of error, complain that the court should not have submitted to the jury the issue of damages for depreciation in value of said cattle, in that such issue is neither raised by the pleadings nor the evidence. No objection is made by appellants to this statement as being an incorrect presentation of the issues, nor do we think it is subject to such objection, since in a condensed form it informs the jury of the contents of plaintiff’s petition. The assignment is based upon the idea that it is a part of the instructions upon which the jury is authorized to return a verdict. The three grounds of damages claimed by plaintiff are: (a) Shrinkage ; (b) depreciation in market value on account of the damaged and gaunt condition of his cattle; and (c) that on account of delay in reaching market the price had declined. These are proper elements of damages. Paragraph 1 of the charge submits the issue of ordinary care and diligence in reaching the market in the usual and ordinary time for such shipments, and paragraph 2 is a general statement of the measure of damages where delay, shrinkage, and depreciation in market value because of delay and the appearance of the cattle is involved. The evidence of the witness Martin shows that the cattle were not badly skinned and bruised, but that their general appearance was jaded and gaunt, and that it affected their market value unfavorably, to the extent of 20 to 25 cents per hundredweight. This, in addition to 20 to 40 pounds shrinkage. That the cattle would have sold for 20 to 25 cents per hundred more on the market of November 30th than they did on the following day.

The verdict of the jury is:

“We, the jury, find for the plaintiff against the defendants, and assess his damages in the sum of $576.98. Items: $204.00 which is six cents on 3,400 pounds shrinkage; $337.98, depreciation in market value on account of delay: $35.00, feed bill; $576.98, total.”

We think the finding of $337.90 is for the damages alleged in section 13 of the petition, and because the jury did not add that the delay caused them to become jaded and gaunt does not render the verdict uncertain and show that the recovery is upon an item of damages not alleged. This objection, however, together with the complaint made of that portion of the charge wherein the court states the issues made by the pleadings, will probably not arise upon another trial.

In this connection, appellant contends that, since one witness testified that the cattle brought their market value, the finding on account of depreciation in market value is improper.. This evidence must be considered in connection with other evidence which as a whole shows that the cattle brought their market value in the condition in which they arrived at Kansas City. The charge of the court does not authorize a double recovery, and no such verdict was returned.

The charge does not submit to the jury the issue of the feed bill found against appellants ; but this finding, if supported by the evidence and authorized by the pleadings, should have been included in the verdict, though not mentioned in the charge. H. & T. C. Railway Company v. Finn, 107 S. W. 100; Texas Railway Co. v. Andrews, 28 Tex. Civ. 477, 67 S. W. 923. There is no evidence to show that the feed was necessary, or that the price sought to be recovered was reasonable. For this reason- the finding by the jury is unsupported by the evidence.

By their eighth assignment the appellants insist that the court should have charged the jury not to find for plaintiffs any damages on account of the delay and shrinkage resulting therefrom while the cattle were in the stockyards at Wichita, Kan., and in refusing appellants’ special charge to that effect. We think this assignment should be sustained. It appears that the cattle were shipped to Kansa City with the privilege of Wichita, Kan., market, and at the request of the shipper were unloaded into the pens of the stockyards company at Wichita, where -they remained for something near 24 hours. The evidence indicates that while at Wichita the cattle were under the control of a commission company, to which they had been consigned by appellee, and that they were actually handled and reloaded by the stockyards company at that place. If any damages resulted by reason of the 24 hours there and any loss in weight can be attributed to such delay, clearly the carriers should not be charged with the damages incident thereto. So far as the record shows, the verdict of the jury includes all such damages.

The ninth, tenth, and twelfth assignments are based upon the refusal of the trial court to give certain special charges requested by appellants, the effect of which is to place the burden of proving negligence upon appellee. These assignments must be overruled. The court’s general charge sufficiently presented the matters embodied in the special charges.

By the eleventh assignment, appellant insists that the undisputed evidence being that there was no negligent handling of said shipment from Wichita, Kan., to Kansas City, Mo., it was error for the court to submit such issue to the jury. Of course, if there was no negligent handling between these points and the undisputed evidence established that fact, the court should not have submitted that matter to the jury, and this assignment is sustained.

Such of the remaining assignments as have not been disposed of by what is said above are all overruled.

For the errors pointed out, the judgment is reversed, and the cause remanded.
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text:
    AMERICAN DISINFECTING CO. v. FREESTONE COUNTY.
    (No. 7749.)
    (Court of Civil Appeals of Texas. Dallas.
    March 17, 1917.)
    1. Counties <&wkey;114r-CoionssiONEKs’ Court —POWERS—CONTRACTS.
    The commissioners’ court alone has authority to make contracts binding upon the county.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 175.]

      2. Counties <&wkey; 114 — Unauthorized Act of AsENT — COMMISSIONERS’ COURT — RATIÍTCATION.
    A county is not bound to pay for disinfectants purchased and used by sheriff in discharging his duties, where the commissioners’ court, the only agency by which it can act, did not authorize or ratify the purchase or use.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 175.]
    3. Courts <&wkey;169(l) — County Court —Jurisdiction — Amount.
    A suit for a balance of $60 due is below jurisdiction of the county court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 414.]
    4. Appear and Error <&wkey;>20 — Court op Civil Appeals — Jurisdiction op Lower Court.
    The Court of Civil Appeals has no jurisdiction in an appeal from the county court, where the amount involved is $60; such amount being below jurisdiction of county court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87.]
    Appeal from Freestone County Court; W. E. Doyle, Special Judge.
    Suit by the American Disinfecting Company against Freestone County. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Anderson & Moses, of Fairfield, for appellant. Lex Smith and Williford & Macintosh, all of Fairfield, for appellee.
   RAINEY, C. J.

This suit was brought by appellant against appellee to recover the sum of $260 for “Obugo,” a disinfectant alleged to have been sold to said county. A general demurrer to the petition was sustained, and judgment rendered for the appellee, from which this appeal is taken.

The only question presented is: Was there error in sustaining the general demurrer to the petition? The petition, in substance, alleges that appellant was the manufacturer of Obugo a sanitary and disinfecting product; on December 19, 1911, sold and delivered to defendant 50 gallons of said product of the value of $100, and on October 7, 1912, 100 gallons of the value of $200; that said goods so sold and delivered to defendant were sold on the written orders of W. J. Lott, the sheriff of said county, whose duty it was to keep the courthouse and jail in a proper and healthful sanitary condition, and in the discharge of his duty in the manner stated he ordered and bought said goods from plaintiff, and the same were used by defendant county for the purposes for which the same were obtained ; that on September 4, 1912, defendant paid on the first-mentioned bill, $40, leaving a balance of $260, for which a bill was presented to the commissioners’ court on September 14, 1914, and rejected without giving any reason therefor; that at the time said goods were ordered smallpox and meningitis were prevalent in parts Of Freestone county, and the county health officer, Dr. W. N. Sneed, Jr., had instructed and directed that all premises should be kept thoroughly clean and disinfected; that said goods were ordered by defendant and used by it for the purpose of disinfecting and keeping in a healthful and sanitary condition the courthouse and the offices of the officials therein, and the county jail and jail premises; that at the termination of the sheriff’s term of office he was in possession of about 25 or 30 gallons of said Obugo, which was left in the possession of his successor as the property of defendant —and closing with a. prayer for judgment.

The petition in this respect fails to show any liability of Freestone county. It is not alleged that the commissioners’ court, acting as such, passed any order authorizing the purchase of the said Obugo by the sheriff, or any one else. The sheriff of said county is not endowed by law, by virtue of Ms office, to bind the county in making such purchases. That authority is vested alone in the commissioners’ court and in creating debts against the county said court must act as such in creating such an indebtedness. Mfg. Co. v. Coleman Co., 184 S. W. 1063. The allegation that the Obugo was used by the county, is not sufficient to fix liability on it, because from the whole petition the inference arises that the sheriff himself used said Obugo in discharging his duties, and there is no act of the commissioners’ court showing that it authorized such use. There is no allegation as to the ratification by the commissioners’ court of the sheriff’s conduct in its purchase or use further than that $40 was paid by said court on the first purchase made, and what actuated them in so doing is not stated, but it is shown that they refused to pay the balance. This, if at all, could only bind them on the first bill, which was only $100, and, having paid $40 would leave $60 due, which is below the jurisdiction of the county court, and of which tMs court has no jurisdiction.

The case of Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 244, 2 Am. St. Rep. 467, cited by appellant to support -his contention, is one where the commissioners’ court contracted with Campbell to erect a courthouse. The work was completed and the commissioners took possession. Blinds were placed in the courthouse, and remained there and were not rejected by any formal order of the commissioners’ court until some time afterward. A controversy arose as to the blinds being completed according to contract. The testimony conflicted on the question of completion and the acceptance by the commissioners’ court. Justice Gaines held: .

“But it is assigned, in substance, that the court erred in charging the jury that if it found that Campbell had done the work for the county, and the county had accepted the work, or gone into possession and had used the blinds, then they should find for the plaintiff for the reasonable value of the blinds. The charge, aostractly considered, . is certainly correct, and we think is warranted by the evidence. The 'blinds remained in the courthouse, and were used, and not rejected by any formal order of the commissioners’ court until June, 1885. We think the evidence amply warranted the charge.”

The facts in the Campbell Case are different from those alleged here. There, á. contract was made with the commissioners’ court, and they had accepted the work and by their acts they had bound themselves, but in this case the allegations do not show such a condition.

The judgment is affirmed.
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