author: SPEER, J. SPEER, J.

text:
    WILLIAMS et al. v. ABILENE INDEPENDENT TELEPHONE & TELEGRAPH CO.
    (No. 7905.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 28, 1914.
    On Rehearing, May 23, 1914.)
    1. Judgment (§ 419) — Injunction—Parties.
    An employe of plaintiff herein, the “Abilene Independent Telephone & Telegraph Company,” filed a suit for injury against the “Abilene Independent Telephone Company,” and citation, duly issued on this petition, was served on plaintiff by delivering a true copy to its local manager. The employs intended to sue plaintiff, and plaintiff knew that service was intended for it, and though it suggested that the employs had not correctly stated its name and declined to answer, it made no timely objection, and a default judgment was entered against the “Abilene Independent Telephone Company.” Held, that plaintiff could not enjoin an enforcement of such judgment on the ground that it Was not a party thereto.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 794; Dec. Dig. § 419.]
    2. Judgment (§ 502) — 'Validity—Name of Party.
    A person erroneously sued by an improper name is bound by the judgment rendered until vacated or set aside by some legal method; the proper method being to raise the question by a plea in abatement.
    [Ed. Note — For other cases, see Judgment, Cent. Dig. § 942; Dec. Dig. § 502.]
    On Rehearing.
    3. Courts (§ 247) — Supreme Court — Jurisdiction — Certified Question.
    Under Rev. Civ. St. 1911, art. 1521, as amended by Acts 33d Leg. c. 55, to give the Supreme Court appellate, jurisdiction of questions of law arising in the Courts of Civil Appeals when brought to such courts from, final judgments of trial courts in cases involving certain specified matters, and article 1522, declaring that' all cases mentioned in article 1521 may be carried to the Supreme Court by writ of error or certificate of a Court of Civil Appeals, except matters covered by subdivision 6, which must be presented by writ of error, the Supreme Court’s jurisdiction by certified question is limited to matters embraced in article 1521, subds. 1-5, and a ease involving only substantive law cannot be certified.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Action for injunction by the Abilene Independent Telephone & Telegraph Company against John Williams and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered in favor of defendants.
    Scarborough & Hiclnnan, of Abilene, for appellants. Ben L. Cox, of Abilene, for ap-pellee.

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

   SPEER, J.

This proceeding was instituted by the Abilene Independent Telephone & Telegraph Company to enjoin the collection of a judgment in cause No. 3085 of the district court of Taylor county upon the ground that complainant was not a party to said judgment, and that the defendant Williams, who was plaintiff in the judgment sought to be enjoined, and the other defendant Weir, as sheriff of Taylor county, were nevertheless threatening to collect the same from the petitioner. The trial court gave a peremptory instruction to the jury to find for the plaintiff, and the defendants have appealed.

The undisputed facts show, so far as material, that appellant, John Williams, who will hereafter be referred to as appellant, received certain injuries while in the employ of appellee, for which he filed a suit No. 3085 in the district court of Taylor county, complaining of the Abilene Independent Telephone Company, and citation was duly issued on said petition, and duly served upon appellee by delivering a true copy thereof to Gus Klotz, its local manager. The case was returnable to the March term of said court, 1913, and appellee through its counsel suggested that appellant had failed correctly to state its name and declined to answer. Thereupon appellant took a judgment by default against the Abilene Independent Telephone Company. The appellee is a foreign corporation, but such fact was not alleged in appellant’s original petition in cause No. 3085, it being there alleged generally that the defendant was a corporation duly incorporated. The undisputed evidence in this case shows that appellant intended to sue appellee in cause No. 3085, and that the appellee knew that service was intended for it in said cause. Upon these facts we think the trial court should have instructed a verdict in favor of appellants. It is not a question of whether or not the judgment in cause No. 3085 is void, for there is nothing upon which to base such a contention. The judgment, which is a default judgment, recites service on the defendant, and the judgment, therefore, against the Abilene Independent Telephone Company is a perfectly valid one. The only question is, Was appellee a party to that suit, or, in other words, is “The Abilene Independent Telephone Company” merely an erroneous designation of “The Abilene Independent Telephone & Telegraph Company” 1

The authorities seem to be practically uniform to the effect that a person erroneously sued by an improper name is nevertheless effectually bound by the judgment rendered until vacated or set aside in some of the ways known to the law. The proper method seems to be to raise the question by a plea in abatement. Tryon v. Butler, 9 Tex. 553; McGhee v. Romatka, 92 Tex. 38, 45 S. W. 552; Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451.

Appellee relies much on the cases of So. Pac. Co. y. Block, 84 Tex. 21, 19 S. W. 300, and Bickford v. Refugio Land & Irr. Co. (Civ. App.) 143 S. W. 1188. But as we construe those cases and others following them, no question is made as to the identity of the complaining party with the party actually sued. In each case the names were different, thereby implying separate identities, and there was nothing in the facts to show otherwise. Here, as already stated, the facts are undisputed that appellant intended to sue appellee, actually served it through its local manager, and the appellee knew that fact, and was therefore not deceived. In such a case we think it would be a travesty on justice to hold that appellee was not in fact sued. There is no magic in a name, and while appellee would have the right no doubt by a timely objection to be sued in its right name, yet when actually sued in any other name and consciously given an opportunity to be heard, there is no just reason for saying it is not bound by the judgment rendered in such a proceeding. To hold otherwise would be to accept the shadow and reject the substance, and to heed the form rather than the essence of the law.

There is much evidence in the record tending to show that appellee was commonly known in the neighborhood under the name of “Abilene Independent Telephone Company,” but we have not based our decision upon this testimony further than to consider it in connection with the established fact that appellant intended to sue appellee and appellee so understood.

Reversed and rendered in favor of appellants.

CONNER, C. J., not sitting.

On Rehearing.

SPEER, J.

We have carefully considered appellee’s motion for a rehearing, and have concluded to overrule the same, adhering to the views expressed by us in the original opinion. In this connection, however, it is proper to say that appellee has filed in connection with its motion for a rehearing a certified copy of plaintiff’s first amended original petition in the case of Bickford v. Refugio Land & Irri. Co. (Civ. Ápp.) 143 S. W. 1188, cited by us in the original opinion, and by this certified copy it is made to appear that the plaintiff in that case did allege a mistake in the original petition, and that the defendant then sued was the defendant intended to be sued in the first place, so that the distinction attempted to be drawn by us with respect to the So. Pac. Ry. Co. v. Block and the Bickford v. Refugio Land & Irri. Company Cases does not obtain as to the latter case. We think, however, the decision in this case misconstrues the holding in the So. Pac. Ry. Co. v. Block Case, and that in that case no question of identity was made. We would gladly certify the question rather than consciously to conflict with another decision of a Court of Civil Appeals; but, under the interpretation given by our Supreme Court to the recent act of the Legislature affecting jurisdictions (First State Bank of Archer City v. F. M. Power, 163 S. W. 581), we are powerless to pursue this course.

The motion for rehearing is therefore overruled.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. LOFTIS et al.
    (No. 7899.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.)
    1. Raileoads (§ 400) — Actions for Injuries to Persons on Track — Questions for Jury.
    In an action for the death of a person struck by a railroad train while walking on the track, evidence that the train was running 8 or 10 miles an hour did not justify the submission of the alleged negligent dangerous rate of speed as a basis for recovery, where there was no ordinance limiting the speed of trains within the town, and though there was testimony that the track was commonly used by pedestrians, there was no evidence as to the population of the town or the frequency of such use.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.]
    2. Railroads (§ 400) — Actions for Injuries to Persons on Track — Questions for Jury.
    In an action for the death of a person struck by a train while walking on the track, evidence held insufficient to justify the submission of the train employés’ failure to keep a proper lookout as a ground of recovery.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.]
    3. Death (§ 95) — Measure of Damages.
    The measure of a father’s damages for the death of a minor son was the net value of the son’s services to the father during minority, less the expense of maintaining him during that period.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. § 95.]
    4. Death (§ 58) — Burden of Proof — Damages.
    A father could not recover for the death of a minor son without proving the probable expense of maintaining the son during minority, as the jury could not properly find such expense from their own experience and without evidence.
    TEd. Note. — For other cases, see Death, Cent. Dig. §§ 75-78; Dec. Dig. § 58.]
    5. Railroads (§ 397) — Actions for Injuries to Persons on Track — Evidence.
    In an action for the death of a person struck by a train while walking on the track, where there is evidence that the railroad company had requested the town officers to keep people off the track, plaintiff’s testimony that he had lived in such town for six months, and had never heard of any objections by the railroad company to people walking upon the track, should not be admitted because of its negative character, though possibly its admission would not be reversible error.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1344-1355; Dec. Dig. § 397.]

      6. TRIAL (§ 125) — ARGUMENT 0F COUNSEL— Xiiproper Remarks.
    In an action against a railroad company for death in which contributory negligence was strongly urged as a defense, the remarks of plaintiff’s counsel that he had heard of the plea of contributory negligence during his experience of 21 years as an attorney for and against railway companies was manifestly improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.] .
    Appeal from District Court, Wise County; E. O. McKinzie, Judge.
    Action by W. E. Loftis and others against the Chicago, Rock Island & Gulf Railway Company. Erom a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    McMurray & Gettys, of Decatur, and Lassiter & Harrison, of Ft. Worth, for appellant. R. E. Carswell, of Decatur, and H. E. Lobdell, of Bridgeport, for appellees.

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

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

   DUNKLIN, J.

Dennis Loftis, a boy 13

years of age, while walking on the track of the Chicago, Rock Island & Gulf Railway Company in the town of Bridgeport, was struck and killed by one of the trains of that company, and W. F. Loftis, father of the boy, instituted -this suit against the company to recover damages for the loss of the services of the son. Plaintiff’s wife and a brother and sister of the deceased, by their father as next friend, intervened and adopted plaintiff’s petition, and also prayed judgment for damages for the death of the boy. From a judgment in favor of the plaintiff and inter-veners for $1,000, the defendant has appealed.

Immediately prior to the accident the boy approached the railroad track upon a public street which crossed it, and after reaching the crossing turned south upon the track. He was struck approximately 150 feet south of the crossing by a train which was backing on a downgrade. The locomotive of the train was pulling a string of cars from the north and was backing with the tender ahead of the engine as it was moving south. The evidence showed without controversy that the train was moving at the rate of 8 or 10 miles ap, hour just before the accident. • The court instructed the jury, in effect, that if they believed that the train at that time was running at a dangerous rate of speed, and that the operatives thereof were guilty of negligence in so doing which was the proximate cause of the injury and death of the boy, and that plaintiff sustained damages thereby, then a verdict should be returned in favor of the plaintiff. According to the testimony introduced by plaintiff the railroad track where the accident occurred was commonly used by pedestrians living in that vicinity; some of the witnesses testifying that it was so used every day. • But there was no evidence to show the population of the town, and none to show the-frequency of such use of the track further than as stated above. Nor was it shown that the town had passed any ordinance limiting the speed of trains within its corporate limits. Under such circumstances, the testimony that the train in question was running 8 or 10 miles an hour was not sufficient to warrant the submission of the alleged negligent dangerous rate of speed of the train as a basis for recovery. Ft. Worth & Denver City Ry. Co. v. Harrison, 163 S. W. 332.

The fireman upon the locomotive testified without controversy that as the train approached the crossing he was keeping a lookout, and discovered the boy before he reached the railway track; that as soon as he discovered that he was about to turn down the track he called the attention of the engineer thereto; that when he first spoke to the engineer his remark was not heard, but that he spoke to him the second time, and then the engineer did everything possible to stop the train before it struck the boy. This testimony was corroborated by that of the engineer. In the charge the jury were instructed that if defendant’s employes in charge of the train failed to keep a proper lookout for persons on the track, and that .such failure was negligence, which was the proximate cause of the injury, and which resulted in damages to the plaintiff, a verdict should be returned in plaintiff’s favor. We are of the opinion that this instruction was erroneous for lack of evidence to show a failure to keep such lookout.

The correct rule for measuring plaintiff’s damages was given in the court’s charge, namely, the net’value of the boy’s services to his father from the date of his death until the date he would have attained the age of 21 years over and above what would have been the father’s expense in maintaining the boy during that period, but no testimony was offered to show the amount of the probable expense of such maintenance. To properly make out a case it was as necessary for plaintiff to make such proof as it was to make proof of the probable earnings of the boy, and the jury could not properly find either of those items from their own experience and without evidence. Sabine Improvement Co. v. Perry, 54 S. W. 327.

Both the constable and the town marshal of Bridgeport testified to requests made to those officers by the officials of the railway company to keep people off its track in the town of Bridgeport. The evidence further shows that there was a footpath alongside' the railway, and at a safe distance therefrom, which was also commonly used by the public. Over defendant’s objection plaintiff, who had lived in Bridgeport six months prior to the accident, was permitted to testify that he had never heard of any objections on the part of the defendant company to people walking upon the track at the place of the accident. Evidently this testimony was offered to show a license by the company to the public to use thfe track as a walkway. The admission of that testimony, perhaps, would not in any event be of such harmful nature as to require a reversal of the judgment, but it is of such a negative character we doubt that it should be admitted upon another trial.

Counsel for plaintiff in bis argument to the jury stated substantially that during his experience of 21 years as an attorney both for and against railway companies he had heard of the plea of contributory negligence, and error has been assigned to this argument, notwithstanding the fact that when it was objected to it was withdrawn by counsel who used the same and the court also instructed the jury to disregard it. The plea of contributory negligence was strongly urged by the defendant. A further discussion of the assignment complaining of this argument, which was manifestly improper, will be omitted, as it is not likely the same will be made upon another trial.

Error has been assigned to the submission of the issue of negligence on the part of the defendant’s employes in failing to stop the train in time to avoid injuring the boy after discovering his peril. Appellant insists that there was no evidence to authorize the submission of that issue, in view of the testimony of the engineer and fireman that everything possible was done to avoid the injury as soon as the boy’s peril was discovered. We will not discuss the force of this contention, as the evidence to support that issue may be strengthened upon another trial.

For the errors noted the judgment is reversed, and the cause remanded.


author: McMEANS, J.

text:
    STOCKWELL v. MELBERN.
    (No. 6750.)
    (Court of Civil Appeals of Texas. Galveston.
    May 26, 1914.
    On Motion for Rehearing, June 18, 1914.)
    Execution (§ 7) — -Final Judgment — Sufficiency — Issues—Determination.
    In a prior suit by complainant, defendant filed a cross-bill to recover $850 actual damages growing out of a contract to purchase certain land; to cancel a contract; and a duebill given by defendant, and to recover $10,000 exemplary damages, together with a vendee’s lien on the land as security for the $850, part of the price previously paid. Defendant recovered a judgment on his cross-action for the $850, canceling the contract and duebill, adjudging costs against complainant, and foreclosing a lien on the land and ordering it sold under execution. Held, that such judgment, though not expressly disposing of the issue of exemplary damages, did so impliedly against defendant, and that the judgment, though informal, was a final judgment, and sufficient to sustain an execution.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 7-15, 17-20; Dec. Dig. § 7.]
    Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge.
    Suit by Elmer P. Stockwell against Charles W. Melbern. From an order denying complainant’s application for a temporary injunction, he appeals. ■
    Affirmed.
    Elmer P. Stockwell, of Angleton, pro se. W. J. Johnson and Edward S. Boyles, both of Houston, for appellee.

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

   McMEANS, J.

This is an appeal from an order of Hon. Samuel J. Styles, judge of the district court of Brazoria county, refusing to grant a temporary injunction restraining the appellee, Charles W. Melbern, from enforcing a judgment theretofore rendered in his favor in said court against the appellant; Elmer P. Stockwell.

It appears that Stockwell, at a date not shown, had brought a suit in the district of Brazoria county against Charles W. Mel-bern and J. J. West, the character of which is not specifically stated. Melbern in that suit filed a cross-bill against both the plaintiff Stockwell and his eodefendant West, in which he sought to recover $850 actual damages, being the amount he had theretofore paid Stockwell on a contract of purchase of certain land which Stockwell claimed to own, and to cancel the contract of sale of said land theretofore entered into 'between Mel-bern and West of the one part and Stock-well of the other part, and to cancel a duebill for $150 given by Melbern and West to Stock-well in part payment for the land, and for $10,000 exemplary damages, and, claiming a vendee’s lien on the land as security for the $850 theretofore paid by him to Stockwell as purchase money, sought a foreclosure of the lien. The case was tried before a jury, and upon the coming in of the verdict judgment was duly rendered that Stockwell take nothing by his suit against ■ Melbern and West, and judgment was rendered in favor of Mel-bern on his cross-action against Stockwell and West: (1) For $850, with 6 per cent, per annum Interest from September 26, 1912; (2) canceling the contract between Stockwell and West and Melbern for the purchase of the lands; (3) canceling the duebill for $150 executed by Melbern and West to Stockwell; (4) adjudging all costs against Stockwell; and (5) foreclosing a lien in "favor of Melbern as against Stockwell on certain land, and ordering its sale as under execution.

The injunction was sought upon the theory and contention of appellant that the judgment was not final because it failed to dispose of that part of defendant Melbern’s cross-action which prayed for the recovery of exemplary damages against West, and would not therefore support execution. We are of the opinion that the judgment was a final judgment, and that the court did not err in refusing to grant the injunction. Whatever may have been the rule, as stated in the early decisions of our courts, the rule now enforced in this state seems to be that all the issues properly presented by the pleadings will be presumed to have been disposed of by the judgment unless it appears otherwise from the face of the judgment itself. Swan v. Price, 162 S. W. 994. The judgment rendered determined several matters put in issue by Melbern’s cross-bill in his favor, against both Stockwell and West, saying nothing about his claim for exemplary damages. This was necessarily an adjudication that that which was given was all that he had shown himself entitled to. The necessary legal effect of the failure to award exemplary damages, for which a claim was pending in the pleadings, was a denial of the right to them. Hermann v. Allen, 103 Tex. 385, 128 S. W. 115. As stated by our Supreme Court in Trammell v. Rosen, 157 S. W. 1161, quoting from Freeman on Judgments, § 279, and. note 1:

“There is no doubt that if a set-off is presented by defendant in his pleadings, and attempted to be supported by evidence to the jury, it will, whether allowed or disallowed, become res ad-judicata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there was an express finding against it.”
The judgment, although irregular and imperfect in form, is final and sufficient, we think, to support execution. The order and judgment refusing to grant the temporary injunction prayed for is therefore affirmed.

Affirmed.

On Motion for Rehearing.

In our opinion filed May 26, 1914, we say: “ * * * Judgment was rendered in favor of Melbern on his cross-action against Stockwell and West for $850. * * * ”

Appellant in his motion for a rehearing has called our attention to "the fact that judgment for said sum' was rendered against Stockwell alone, and we accordingly now so state. This, however, does not affect our conclusion as to the proper disposition of the appeal.

We have carefully examined appellant’s motion for a rehearing, and are of the opinion that it sould be overruled; and it has been so ordered.

Overruled.


author: CONNER, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. BAILEY.
    (No. 7987.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied June 20, 1914.)
    1. Railroads (§ 425) — Injuries to Animals —Proximate Cause.
    The negligence of a railroad company causing the wreck of a train was not the proximate cause of the death of cattle which escaped from their pasture in a district, where cattle were prohibited by law from running at large, crossed a public road into the pasture of E., and from there went upon the right of way, which was fenced, and drank cotton seed oil which had escaped from a tank car and which caused the death, where it did not appear that it was known that the cattle were at large, or that the insufficiency of the owner’s or E.’s fences were known, as to constitute a proximate cause of an injury, it must appear that a -reasonably prudent person would, under the -circumstances, have anticipated the result or some similar result.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. § 425.]
    2. Railroads (§ 405) — Injuries to Animals —Negligence.
    Where a train which contained a tank car was wrecked, if the act of the trainmen in constructing an embankment to confine the cotton seed oil escaping from such car constituted negligence, it was not actionable negligence making the company liable for the death of cattle which went upon the right of way and died from drinking such oil, where -it did not appear that it was known that cotton seed oil was poisonous or that the cattle if given an opportunity would drink it and die.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. § 405.]
    3. Railroads (§ 406) — Injuries to Animals —Liability—Statutory Provisions.
    Rev. St. 1911, art. 6603, making railroad companies liable for the value of stock killed or injured by locomotives and cars, and providing that such liability sháll also exist in counties adopting the stock law prohibiting the running at large of animals, but that in all cases if the railroad company fence its road it shall only be liable for injury resulting from a want of ordinary care, did not make a railway company liable, irrespective of negligence, for the death of cattle which went upon its fenced right of way and died from drinking cotton seed oil which had escaped from a tank ear in a wrecked train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1400, 1401; Dec. Dig. § 406.]
    Appeal from Tarrant County Court; Chas. T. Preioitt, Judge.
    Action by R. P. Bailey against the St. Louis Southwestern Railway Company. From a judgment for plaintiff,, defendant appeals.
    Reversed and rendered.
    Thompson & Barwise and A. C. Wood, all of Ft. Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

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

   CONNER, C. J.

Appellee sued to recover the sum of $235, the alleged value of certain cattle which it was charged were permitted to drink oil on appellant’s right of way to their damage and death. In a trial before a jury he was awarded a judgment in the sum of $100, from which judgment this appeal has been prosecuted.

As we view the case, the vital question is whether the evidence supports the verdict and judgment. In substance, as shown by the record, on or about December 22, 1911, a wreck of one of appellant’s freight trains occurred, and a car of cattle and a tank car containing cotton seed oil were thrown from the track; of the cattle some 19 were killed. The tank of oil burst, and the oil ran out; but around it the section hands made a ditch or embankment in an effort to confine the oU on the right of way. The right of way extended thr.ough an inclosed pasture of Jeff ■ Earl and was fenced on each, side with, a .good strong four-wire fence. The railroad at the point in question extended north and south, and the cattle which had escaped in the wreck were transferred from the right of way to that part of Mr. Earl’s pasture lying to the east. In making the transfer staples were pulled out of the right of way fence, the wires pulled apart, and the cattle driven through, after which the wires were made to assume their former position and fastened as before. Appellee occupied the farm and pasture east’ or northeast of Mr. Earl’s pasture, a public road extending between the two places. In some way not clearly shown in the evidence, some of the appellee’s cattle escaped from his place, probably through an open gate, crossed the public road mentioned, over or through the fence of Mr. Earl’s, in to Earl’s east pasture field, and on and across or over the right of way fence, where the evidence tends to show they drank some of the oil that had been spilled and had remained upon the right of way. The evidence does not definitely fix the exact time when appellee’s cattle thus entered the right of way and drank the oil; but appellee’s son testified that the fence was open at the time, and possibly the cattle entered while the right of way fence had been spread apart for the disposition of the wrecked cattle, as before stated. Mr. Earl, however, testified that the right of way fence was a good one and had been immediately repaired, and there is no evidence other than that of appellee’s son, just referred to, indicating that his pasture fence along the public road was out of order. The evidence, we think, authorizes the conclusion that appel-lee’s cattle drank the cotton seed oil, and that as a result thereof they sickened and died within a few days. The evidence, however, leaves the cause of the wreck wholly unexplained. And there is no evidence tending to show that cotton seed oil was or is known as a poisonous substance, nor does the evidence explain the purpose of the section hands in attempting to confine the oil to the right of way. It was further shown that the locality of the wreck was in a district within which cattle were prohibited by law from running at large.

[1 ] Pretermitting a discussion of any other question that may be suggested by the facts stated, we think the evidence fails to show actionable negligence on appellant’s part. If it be assumed that the wreck was the result of some negligent act or omission on appellant’s part, which possibly is indicated by evidence to the effect that after the wreck it was found that, the railway ties were rotten, it cannot, we think, be further said that such negligence was the proximate cause of the injury. To constitute a proximate cause of an injury, it must appear that a reasonably prudent person would, under the circumstances, have anticipated the result, or some like result, complained of. The result here complained of can certainly not be said to have been a consequence of the wreck within the contemplation of the appellant. The district was a prohibited one. No evidence tends to show that appellee’s cattle were known to be at large, 'or that the insufficiency, if any, of appellee’s gate or fence or that of Earl’s was known. Under such circumstances, how can it be justly said that appellant should have anticipated that appel-lee’s cattle or those of some other person would break out of their accustomed inclosure and into that of another, and from thence enter the right of way and become injured because of some result of the wreck?

Nor can we say that the acts of appellant’s employés in constructing an embankment to confine the oil to appellant’s right of way constituted negligence. Eor aught that we are able to comprehend, this may have been an act of prudence. As before stated, nothing in the evidence tends to show that cotton seed oil is known to be a poisonous substance, or that cattle if given an opportunity would drink it and die. That appellee’s cattle did so drink and die cannot be said to have been contemplated as a result of confining the oil. Unless it should have been so anticipated, the negligence, if any, is not actionable. See T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; F. W. & Rio Grande Ry. Co. v. Neely (Civ. App.) 60 S. W. 282; Neely v. F. W. & Rio Grande Ry. Co., 96 Tex. 274, 72 S. W. 159.

The appellee cites Revised Statutes, art. 6603, and the case of I. & G. N. Ry. Co. v. Seiders, 50 Tex. Civ. App. 568, 110 S. W. 997, and, inferentially at least, insists that the liability of the company arises from the mere fact that appellee’s cattle were shown' to have drunk the oil left upon appellant’s right of way. But the statute referred to makes the liability of a railroad company absolute, irrespective of any negligence on its part, only in cases where the right of way is unfenced, or insecurely fenced, and the stock shall have been killed or injured by the locomotive and ears of the company. The statute has’ no application to an injury, such as arose in the case now before us. See, M., K. & T. Ry. Co. v. Meyer (Civ. App.) 161 S. W. 12.

We conclude that appellee entirely failed to show a right of recovery, and that the judgment should, accordingly, be reversed and here rendered for appellant.


author: PLEASANTS, C. J.

text:
    WARD CATTLE & PASTURE CO. v. CARPENTER.
    (No. 6748.)
    (Court of Civil Appeals of Texas. Galveston.
    June 4, 1914.
    Rehearing Denied June 25, 1914.)
    Statutes (§ 120) — Title and Subject-Matter — Amendatory Statutes — Stock Law.
    While the title of an act amending the Revised Statutes sufficiently complies with Const. art. 3, § 35, relative to the title and subject-matter of statutes, if if refers to the number of the article to be amended, to allow any amendment germane to the subject treated in such article, the title of the act approved March 31, 1913 (Acts 33d Leg. e. 72), entitled “An act to amend article 7235, chapter 6, title 124, of the Revised Statutes of Texas, 1911, with reference to the mode of preventing * * * animals from running at large in counties named, so as to include” certain named counties, is insufficient to cover a provision excluding, from the operation of the stock law, Matagorda county, which was previously included ; a title which states the purpose of the amendment being insufficient to sustain a provision which accomplishes a purpose directly contrary to that expressed.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 168-172; Dec. Dig. § 120.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Injunction by the Ward Cattle & Pasture Company against William Carpenter. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Krause & Wilson, of Bay City, for appellant. Gaines & Corbett, of Bay City, for ap-pellee.

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

   PLEASANTS, C. J.

This is a suit for injunction brought by appellant against the ap-pellee to restrain Mm from impounding and selling, under the provisions of the stock law, cattle of appellant found running at large in a subdivision of Matagorda county in which it is claimed by appellee that the stock law is in force. An application for temporary injunction was heard by the trial court upon the petition and answer, and the injunction refused. This appeal is prosecuted from the order refusing to grant the temporary injunction.

The only question presented by the appeal is whether the stock law is in force in that portion of Matagorda county lying west of the Colorado river. The facts are as follows: On March 29, 1913, an election was held in said subdivision of Matagorda county, under the provisions of article 7235 of the Revised Statutes (1911), to determine whether or not stock should be permitted to run at large. The election resulted in favor of the stock law prohibiting the running at large of stock. The proclamation of the county judge declaring the result of the election was not issued until January 31, 1914; the delay in issuing such proclamation having been caused by injunction proceedings instituted by stockmen in said subdivision. At the time this election was held, Matagorda county was included in the list of the counties named in the article above cited which were authorized to hold such elections, and the validity of the election was upheld by this court on appeal in the injunction proceedings before mentioned. Holman v. Cowden & Sutherland, 158 S. W. 571. By an act of the Thirty-Third Legislature, which was approved March 31, 1913, and took effect June 30, 1913, article 7235 of the Revised Statutes was amended by including a number of counties not theretofore within the provisions of said article and excluding Matagorda county therefrom. Acts 33d Leg. c. 72. Appellee contends that this act is inoperative in so far as it excludes Matagorda county from the provisions of said article: First,’ because the caption of the act did not authorize such exclusion; and, second, because, the stock law having theretofore been adopted by a vote of the people in said subdivision of Matagorda county, it was not within the power of the Legislature to repeal said law in said subdivision. The caption of the act is as follows:

“An act to amend article 7235, chapter 6, title 124, of the Revised Statutes of Texas, 1911, with reference to the mode of preventing horses and certain other animals from running at large in counties named, so as to include Ochil-tree, Moore, Sherman, Hansford, Henderson, Cameron, Hartley, Dallam, Concho, Pecos, Reeves, Wharton, Gonzales, Kerr, Kendall, Has-kell, Young, Cottle, Hardeman and Hall counties, and declaring an emergency.”

The Thirty-First Legislature passed an act amending the stock law and including therein the county of Matagorda. This was the first time Matagorda county was included in the provisions of the general stock law. Acts of 1909, c. 69.

The Thirty-Second Legislature (Acts of 1911, c. 94, p. 172) passed an act amending the stock law, as amended by the act of the Thirty-First Legislature. The caption of this act, after designating the acts proposed to be amended, states that said acts are to be amended “so as to exclude Wharton and Fort Bend counties and to include” several named counties. In the case of Holman v. Cowden & Sutherland, 158 S. W. 571, this court held that the caption of the act last mentioned did not authorize the exclusion of Mat-agorda county by said act from the operations of the stock law, and that that portion of the act excluding said county was inoperative and void. A writ of error was denied by our Supreme Court in that case and that decision is conclusive of the question presented in this case, unless the provisions of section 35, art. 3, of our state Constitution, are inapplicable to legislative bills amending articles of the Revised Statutes. It seems to be settled by decisions of our Supreme Court that the title or caption of an act amending an article of the Revised Statutes is sufficient if it refers to the number of the article to be amended, to allow any amendment germane to the subject treated in the article referred to. This rule, which, seems to have been adopted by our Supreme Court in deference to legislative construction -of section 35, art. 3, of the Constitution of this state, and not because the court was of the opinion that such construction of the Constitution was sound, only goes to the extent of holding that a reference to the article of the Revised Statutes to -be amended is a sufficient statement of the purpose of the amendatory bill. Gunter v. Texas Land Mortgage Co., 82 Tex. 496, 17 S. W. 840; Mortgage Co. v. Hardy, 93 Tex. 298, 55 S. W. 169. There is no authority which holds that a misleading statement in the caption of the amendatory bill as to the object of the bill will not invalidate such bill if the caption refers to: the article of the Code or Revised Statutes to be amended. The caption of the act in question does more than refer to the article of the statute to be amended, and in addition to such reference states the object of the proposed amendment to be to add certain counties to those included in the article. Under this caption it seems clear to us the Legislature was not authorized to take counties from the article; in other words, to do the exact opposite of what the caption gave notice was intended to be accomplished by the amendment. One of the main purposes of the constitutional provision before referred to was to prevent surprise and fraud in legislation by requiring that the caption of every bill should reasonably apprise every legislator and others interested in ithe subject of the legislation of the purpose and object of the bill. There is just as much reason for the observance of these constitutional provisions in bills amendatory of articles of the Revised Statutes as in bills of other character, and, while our Supreme Court has held that the Constitution does not require more than a reference to the article to be amended, it has not held, and we do not believe will hold, that a caption like the one in question, which states the purpose of the amendment, will sustain provisions in the bill which accomplish a purpose directly contrary to that expressed in the caption.

We think the trial court correctly held that the bill in question was inoperative in so far as it excluded Matagorda county from fhe operation of the stock law. This conclusion renders a discussion of the other questions presented unnecessary.

We are, however, inclined to the opinion that as the stock law did not become operative in the territory in which the election was held until the issuance by the county judge of his proclamation declaring the result of the election, .if, prior to the issuance of the proclamation, the law authorizing Matagorda county to hold such election had been repealed by a valid act of the Legislature, no proclamation by the county judge could have been legally issued because of the repeal of the law authorizing its issuance, and therefore the stock law would never have been in force in the subdivision in which the election was held.

We are of opinion that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.


text:
    FAIRCHILD v. WILSON.
    (No. 6646.)
    (Court of Civil Appeals of Texas. Galveston.
    June 3, 1914.
    Rehearing Denied July 1, 1914.)
    1. Venue (§ 22) — Joint Trespass — Petition —Plea op Privilege.
    Where the petition alleged a joint trespass by two defendants on plaintiff’s land, and charged them jointly with wrongful occupancy and use thereof, and. the action was brought in the county where one defendant resided, the court properly directed a verdict against the other defendant’s plea 'of privilege to be sued in the county of his residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    2. Venue (§ 22) — Joint Trespass — Evidence.
    Where the evidence in an action for trespass showed that one defendant entered on the1 land without plaintiff’s consent and operated a sawmill thereon, and that he placed his code-fendant H. in possession of the mill under a contract by which H. operated the mill and received from him 50 cents per 1,000 feet for cutting his lumber, the trespass was joint, so that the action was maintainable against both defendants in the county where one of them resided.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    3. Trespass (§ 68) — Instructions—Damages Recoverable — Evidence.
    Where the undisputed evidence, in an action for trespass on a 60-acre tract of land showed that defendants occupied and used only 15 or 20 acres, and it did not appear that such use interfered with plaintiff’s possession and enjoyment of the remainder, it was error to refuse to instruct that plaintiff could not recover more than the reasonable rental value of that portion of the land occupied by defendants.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 151, 152; Dec. Dig. § 68.]
    4. Trial (§ 251) — Instructions—Conformity to Issues.
    Where, in an action for trespass on land by the operation of a sawmill thereon, no issue was raised as to the rental value of the sawmill, or the right to recover therefor, the court properly refused to instruct that in determining the rent of the land the jury should not consider the rental value of the sawmill.
    [Ed. Note. — For other cases, see Trial, Cent-Dig. §§ 587-595; Dec. Dig. § 251.]
    5. Trial (§ 343) — Verdict—Construction.
    In an action against two defendants for a joint trespass, a verdict, reading that, “We, the jury, find against the plea of privilege of the defendant F., and in favor of the plaintiff W., in the sum of $150.00,” was a finding against both defendants for $150, though the undisputed evidence showed that they were not liable for the same amount; the state of the evidence affecting only the correctness of the verdict and not its construction. .
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ ,809-812; Dee. Dig. § 343.]

      Appeal from Nacogdoches County Court; Geo. P. Ingraham, Judge.
    Action by W. T. Wilson against I. D. Fairchild and another. Prom judgment for plaintiff, the defendant named appeals.
    Reversed and remanded.
    Blount & Strong, of Nacogdoches, for appellant. June C. Harris and Audley Harris, both of Nacogdoches, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant and W. G. Harrington to recover damages for the alleged wrongful entry upon and occupancy and use by defendants of a tract of 60 acres of land owned by appellee and situate in Angelina county. After alleging that on April 3, 1910, plaintiff was the owner of said 60 acres of land, and fully describing same, the petition further alleges:

“That on said 3d day of April, A. D. 1910, defendants, without the knowledge or consent of plaintiff, and with force, entered upon said land and premises and took possession, and thereafter held and retained said land and premises against, plaintiff’s will and operated on said land- a sawmill for the purpose of manufacturing lumber, ties, railroad timbers, etc., and did manufacture lumber, ties, railroad timbers, etc., upon said land, and constructed thereon a large number of outhouses, lumber stacks, dollyways, excavations, embankments, lakes, and ponds, and used all and every portion of said land for the purposes above described and for the purpose of ingress and egress to other and adjacent lands and hauled and transported with teams and wagons over and across said land logs and timbers for said mill, and continually occupied and used said land and premises in the manner and for the purposes hereinbefore enumerated from said 3d day of' April, A. D. 1910, until the 1st day of May, A. D. 1913; that on or about said 1st day of May, A. D. 1913, defendants tore down and removed said mill, machinery, houses, stacks of lumber, and other improvements theretofore maintained thereon, and surrendered and delivered unto plaintiff the possession of his land and premises and abandoned every part -of said land and premises, and left plaintiff in the quiet and peaceable possession thereof. * * * Plaintiff says that said 60 acres of land is situated and lies along the track of the Texas & New Orleans Railroad, and is smooth and level land and well suited for the purposes for which defendants are using it, and is valuable agricultural land; that the reasonable rental value of said land and premises for the purposes used by defendants and for the period of its use and occupancy by the defendant, to wit, from the 3d day of April, 191Q, to the 1st day of May, 1913, is the sum of $1,000; that by the taking and occupancy of said land by the defendants in the manner and for the purpose and for the time hereinbefore stated defendants became liable and promised to pay plaintiff the reasonable rental value thereof, to wit, the sum of $1,000; that plaintiff has often requested defendants to pay him, but defendants refused and still refuse to pay plaintiff said sum, or any part thereof, to plaintiff’s damage in the sum of $1,000; that said debt is due, wherefore plaintiff prays the court, defendants having heretofore been cited to appear and answer plaintiff’s suit, that upon a hearing hereof plaintiff have judgment for his debt against both defendants, for costs of suit and for general relief, as in law and in equity he may be entitled to.”

To this petition appellant, Fairchild, filed a plea of personal privilege to be sued in the county of his residence. This plea, after stating the fact of appellant’s residence in Angelina county and denying any promise or agreement on his part to pq.y any amount that might be found due by him to appellee in Nacogdoches county, or in any county other than the county of his residence, contains the following allegations:

“This defendant says, further, that upon the face of plaintiff’s petition filed herein, plaintiff makes one W. G. Harrington of Nacog-doches county a party defendant in this cause, and this defendant alleges that in truth and in fact plaintiff has no cause of action against the said W. G. Harrington, but that he is made a party defendant by plaintiff for the sole purpose of undertaking to obtain jurisdiction over the person of this defendant. This defendant says that the said W. G. Harrington is not a proper or necessary party to this suit, in that there is no joint liability on the part of this defendant and said Harrington to this plaintiff, if there be liability at all, and this defendant says that plaintiff’s petition states no cause of action showing a joint liability on the part of this defendant and the said Harrington, and that said Harrington is made a party defendant in this cause by plaintiff for the sole purpose of giving this court jurisdiction of the person of this defendant, and with full knowledge on the part of plaintiff that he has no cause of action against the said Harrington, and that there is no joint liability on the part of this defendant and said Harrington to plaintiff, wherefore this defendant says that said Harrington was fraudulently made a party defendant by plaintiff for the sole purpose of obtaining jurisdiction over the person of this defendant in the county court of Nacogdoches county.”

Subject to his plea of privilege, appellant answered by special exceptions, general denial, and several special pleas, the nature of which it is unnecessary to state. The defendant Harrington answered by general demurrer and general denial. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for $150.

The trial court did not err in instructing the jury to return a verdict against appellant’s plea of privilege. The petition alleges a joint trespass by defendants upon plaintiff’s land, and charges them jointly with wrongful occupancy and use thereof.

The evidence shows that appellant entered upon the'land without appellee’s consent, and operated a sawmill thereon for about a year." In April, 1911, he placed Harrington in possession of the mill under a contract by which Harrington operated the mill and received from appellant 50 cents per 1,000 feet for cutting his lumber. These facts show a joint liability of the defendants for the damages claimed by plaintiff for the use of his land, and, defendant Harrington being a resident of Nacogdoches county, suit could be maintained against both defendants in that county.

The undisputed evidence shows that the defendant only occupied and used 15 or 20 acres of plaintiff’s land. As shown by the petition before set out, plaintiff sought to •recover the rental value of-the land. Plaintiff testified that the rental value of the land for the time it was occupied by the defendants was $1,000. Several other witnesses who testified upon this issue placed the rental value of the land at from 25 cents to $1 per acre per year. In this state of the pleadings and evidence, appellant asked the court to instruct the jury that they could only allow plaintiff the reasonable rental value of that portion of the land occupied by the defendants. We think this charge should have been given. Defendants should not be held liable for the rent of that portion of the tract not occupied or used by them. This occupancy and use of the 15 or 20 acres is not shown to have interfered in the least with plaintiff’s possession and enjoyment of the remainder of the tract. If plaintiff had owned a league of land, it certainly could not be contended that defendants’ occupancy and use of a small portion thereof would make them liable for the rental value of the whole league, and there can be no 'difference in principle between the supposed case and the case presented by this record, the difference is only in degree. The fact that possession of a portion of the tract would, if defendants had been claiming the whole under the statutes of limitation, have given them constructive possession of the whole does not affect the question of their liability for the rent of the whole tract. They were not claiming any part of the land, and were therefore not in constructive possession of that portion not occupied by them.

The plaintiff did not claim the sawmill situated on the land, and did not seek to recover its rental value, aqd no evidence was introduced as to such rental value. No issue as to the rental value of the sawmill being raised by either the pleadings or the evidence, the court did not err in refusing to instruct the jury that in determining the rental value of the land they should not take into consideration the rental value of the sawmill.

The verdict of the jury was as follows:

“We, the jury, find against the plea of privilege of the defendant I. D. Fairchild and in favor of the plaintiff W. T. Wilson in the sum of $150.00.”

The court properly construed this verdict as a finding against both defendants for the amount found in favor of plaintiff, and judgment was properly rendered thereon against both defendants. Under the evidence the defendants were not liable for the same amount, because the undisputed evidence shows that defendant Fairchild occupied plaintiff’s land for a year before defendant Harrington had any connection with its occupancy and use, and Harrington cannot be held liable for the rental value of the premises during said year. But this only affects the correctness of the verdict, and cannot determine its proper construction. There is no ambiguity in the finding in favor of plaintiff, and the suit being against both defendants for the full amount claimed by the plaintiff, the general finding in his favor should be construed as a finding in accordance with the prayer of the petition. Ry. Co. v. Gallaher, 79 Tex. 691, 15 S. W. 694. Harrington has not appealed, and the question of whether the evidence authorized a verdict against him for the amount found by the jury is not before us.

For the error in-refusing to instruct the jury that appellant could only be held liable for the rental value of the land occupied by him, the judgment of the court below is reversed and the cause remanded.

Reversed ánd remanded.


author: SPEER, J.

text:
    GULF, C. & S. F. RY. CO. v. JUSTIN MILL & ELEVATOR CO.
    (No. 7925.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.
    Rehearing Denied May 23, 1914.)
    1. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action against a railroad to recover for an alleged shortage in a shipment of wheat delivered by it, on the ground that it -did not weigh as much, as the invoice weights shown in the bills- of lading, an instruction that, if the cars on arrival contained the same number of bushels as shown by the bills of lading, the road would not be liable was not objectionable as authorizing the jury to find for defendant only if the cars contained the amount shown by the bills of lading, nor as taking from the jury the question whether the plaintiff’s scales weighed short, and the determination of what the shortage actually was.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439 — 441, 446-454, 456-466; Dee. Dig. § 194.]
    2. Trial (§ 260) — Requested Instructions— Given Instructions.
    Where the instructions given fairly submitted the case, a requested charge, which would have been but a repetition, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Appeal and Error (§ 216) — Objection Below — Requested Instruction.
    In an elevator company’s action against a carrier to recover an alleged shortage in a shipment of wheat, an instruction requiring plaintiff to show, by a preponderance of the evidence, that there was a shortage, if not sufficiently definite upon the burden of proof, was not ground for a reversal, where no special charge thereon was requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.]
    4. Evidence (§ 105) — Relevancy — Condition oe- Subject-Matter.
    In an elevator company’s action to recover for a shortage in wheat delivered by a carrier, where the testimony indicated that certain scales were often tested with plaintiff’s wagon scales, and that the two were always balanced, evidence that such wagon scales were correct in 1910 was admissible to show that the other scales were correct early in February, 1911.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 169-176; Dec. Dig. § 105.]

      Appeal from Denton County Court; S. H. Hoskins, Judge.
    Action by the Justin Mill & Elevator Company against the Gulf, Colorado & Santa Eé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Robert H. Hopkins, of Denton, for appellant. Zumwalt & Key, of Denton, for appellee.

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

   SPEER, J.

The Justin Mill &' Elevator Company sued the Gulf, Colorado & Santa Fé Railway Company to- recover the sum of $107.12 for an alleged shortage in five cars of wheat received by it over the defendant’s line of railway on February 4, 1911; the contention of plaintiff being that the grain, as received by it, did not weigh as much as the invoice weights shown in the bill of lading issued by the railway company.

The cause was thus submitted to the jury:

“If you find, from a preponderance of the evidence, that when the cars arrived at Justin, Tex., they contained a less number of bushels of wheat than shown 'by the bill of lading to have been received by the defendant for shipment, you will find for plaintiff the value of such shortage, if any, or what you find from the evidence to be the value per bushel thereof at Justin, Tex. If you find from the evidence that when the cars arrived at Justin, Tex., they contained the number of bushels of wheat shown by the bills of lading to have been received by defendant for shipment, you will find for the defendant railway company.”

There was a verdict and judgment for the plaintiff, and the defendant appeals.

It is complained that the second section of the charge is error in that the same authorized the jury to find for the appellant only in the event they found that said cars contained the number of bushels of wheat shown by the bills of lading, and that it did not permit the jury to consider whether or not the scales of appellee were out of plumb and weighed minus, nor did it permit thém to determine what the shortage actually was. We think these criticisms are without merit,, since the charge very pertinently submitted to the jury to find, under all the evidence, whether or not there was a shortgage in weights, as contended for by appellee.

The special charge made the basis of the second assignment of error was properly refused because, as above indicated, the main issue of the case was already fairly submitted, and this special charge would have been but a repetition of it in different phraseology.

The third assignment, complaining that the court erred in failing to charge on the burden of proof is overruled because in the charge given the appellee, in order to recover, was required to show, by a preponderance of the evidence, that there was a shortage in the weight, and, if this was not sufficiently definite upon the burden of proof, a special charge should have been requested, which was not done. The second special charge already referred to contained a charge which appears to be correct on thé burden of proof, but the special charge being submitted as a whole, and having been correctly refused for reasons already given, the cause cannot be reversed for the failure to give a more definite charge on the burden of proof.

The testimony of the witness Holloway as to the correctness of the wagon scales of appellee during the year 1910 was properly admitted, since it tended to show the correctness of the Hopper scales on which the wheat in controversy was weighed. The testimony indicated that the Hopper scales were often tested with the wagon scales, and the weights on the two scales would always balance. That the wagon scales were always found to be correct during the year 1910 was, under these circumstances, admissible to show that the Hopper scales were also correct early in February, 1911.

There is no error in the judgment, and it is affirmed.

CONNER, C. J., not sitting.


text:
    COOPER et al. v. AVERY.
    (No. 6770.)
    (Court of Civil Appeals of Texas. Galveston.
    June 6, 1914.
    Rehearing Denied June 25, 1914.)
    1. Schools and School Districts (§ 101)— Public Schools—Rate of Taxation.
    Acts 29th Leg. c. 124, provides for a complete system of public free schools. Section 149 authorizes towns and villages having over 200 inhabitants to incorporate for free school purposes. Sections 160 and 161 provide for the election of a board of trustees to manage incorporated, independent districts, and to collect taxes for the establishment of the schools. Section 165, providing for the collection of taxes, declares that, when a majority of the board of trustees of an independent district have the taxes assessed and collected by the county assessor and collector, they shall be assessed and collected and turned over to the treasurer of the district, but that, when so assessed, property shall not be assessed at a greater value than it is assessed for county and state purposes. Held, that the statute authorized independent school districts, assessing and collecting their own taxes, to assess property at a greater valuation than it was assessed for state and county purposes. 1
    [Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. §§ 236, 252; Dec. Dig. § 101.]
    2. Schools and School Districts- (§ 101)— Public Schools—Rate of Taxation.
    Acts 29th Leg. c. 124, § 57, which was under the subhead of “Levy of Special School Tax,” provided for the levy of a special tax by the commissioners’ court for the maintenance of free public schools, but that all property assessed for school purposes should be assessed at the same rate as for state and county purposes, provided that, in all assessments of property for taxing purposes under the act, all property shall be assessed at the valuation fixed for such property for state and county purposes. UeW, that the second proviso of section 57, which applied to all school districts, including independent school districts, having been repealed by Acts 31st Leg. 'c. 12, there was no restriction upon such districts preventing them from assessing property for school purposes at a valuation in excess of that fixed for state and county purposes.
    [Ed. Note. — Por other eases, see Schools and School Districts, Cent. Dig. §§ 236, 252; Dec. Dig. § 101.]
    Appeal from District Court, Waller County; Samuel J. Styles, Judge.
    Action by J. W. Avery against W. D. Cooper arid others, as assessor and trustees of the Brookshire Independent School District. Prom a decree granting plaintiff a temporary injunction, defendants appeal.
    Reversed and rendered.
    J. D. Harvey, of Hempstead, for appellants. Hannay & Hannay, of Hempstead, and J. V. Meek, of Houston, for appellee.

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

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

   McMEANS, J.

This is an appeal from an order of Hon. Samuel J. Styles, judge of the Twenty-Third judicial district, granting to J. W. Avery, the appellee, a temporary injunction restraining the trustees of the Brookshire Independent School District in Waller county, and W. D. Cooper, the assessor and collector of taxes of said district, from enforcing the collection of certain taxes levied and assessed by said trustees during the year 1913 upon the property of appellee, and the collection of which taxes the assessor and collector ie seeking to enforce. It was shown by the verified petition of plaintiff that his property was assessed by the school trustees at a higher valuation for school purposes than assessed for state and county purposes, and the only question presented by this appeal for our determination is this: Can the board of trustees of an independent school district, under the law as it now exists, assess, property within the district at a higher rate of value than the same property is assessed for state and county purposes? We are of the opinion that the question must be answered in the affirmative.

The act of the Twenty-Ninth Legislature (chapter 124) provides for a complete system of public free schools. Section 149 of the act authorizes towns and villages having 200 inhabitants or over to incorporate for free school purposes, and provides, among other things, that such school corporations “shall have the right to levy and collect taxes and issue bonds for school purposes, the same as school incorporations hereinbefore formed.” Section 160 provides, for the election of a board of trustees to act as a managing body for incorporated independent school districts; and section 161 reads as follows:

“The trustees elected in accordance with the preceding section shall be vested with the full management and control of the free schools of such incorporated town or village, and shall in general be vested with all the powers, rights and duties in regard to the establishment and maintaining of free schools, including the powers and manner of taxation for free school purposes, that are conferred by the laws of this state upon the councils or board of aldermen of incorporated cities and towns.”

Section 165 authorizes and directs trustees of independent school districts to choose a president, a secretary, a treasurer, and an assessor and collector of taxes and other necessary officers and committees. It is further provided in that section that the treasurer shall give bond; that, if the district is embraced in a city or town having an assessor and collector of taxes, that officer shall assess and collect the taxes for school purposes, and in such case the school taxes shall be based upon the same assessment of property upon which the leyy for other city purposes is based; and the, section referred to concludes as follows:

“Provided further, that when a majority of the board of trustees of an independent school district prefer to have the taxes of their district assessed and collected by the county assessor and collector, same shall be assessed and collected by said county officers, and turned over to the treasurer of the independent school district for which such taxes have been collected: Provided, that the property of such districts having their taxes assessed and collected by the county assessor and collector, shall not be assessed at a greater value than that assessed for county and state purposes.”

It does not appear from the plaintiff’s bill of injunction that the Brookshire independent district is embraced in a city or town having an assessor and collector of taxes, but the inference is clearly to the contrary.

In an opinion delivered January 31, 1912, the Austin Court of Civil Appeals in the case of Gulf, Colorado & Santa Fé Railway Co. v. Blum Independent Sphool District, 143 S. W. 353, held that:

“The foregoing sections of the statute quoted and' referred to render manifest the legislative purposes to authorize the levy, assessment and collection of school taxes by incorporated school districts, separate and apart and independent of any action of the county assessor or any other county officer.”

Continuing the court says:

“The above quotation from section 165 shows that it was the intention of the Legislature to leave it discretionary with the school trustees whether or not they, would have the assessment of property in the school district for school pux--poses made by the county assessor, and the tax collected by the county collector; and it is therein provided that, in the event that course is pursued, the property shall not be assessed at a greater value for school purposes than it is assessed for county purposes. But nowhere in the statute do we find any such limitation when the school trustees have not exercised that option, and have preferred to have the school tax levied, assessed, and collected independent of the county assessor and collector.”

This construction of the sections of the act referred to fully meets the approval of this court.

But section 57 of the act, which was not called to the attention of the court prior to the decision referred to, and only in the motion for a rehearing, and which comes in the act under the general head of “Common School Districts" and the subhead of “Levy of Special School Tax,” providing for the levy of a special tax by commissioners’ courts for the further maintenance of public free schools and the selection of school buildings, concludes with the following provisos:

“Provided that all property assessed for school purposes shall be assessed at the rate of value of property as said property is assessed for state and county purposes: Provided, that in all assessments of property for taxing purposes under this bill all property shall be assessed at the valuation fixed for said property for state and county purposes.”

On motion for rehearing, the court held, and properly so, we think, that; by the specific language of the second proviso, the trustees of an independent school district could not assess property for taxation at a higher value than assessed for state and county purposes. The question that arose in that case grew out of a tax levy and assessment for the years 1907 and 1908, and was properly determined under the. act of 1905, in which the sections referred to are found. But in 1909, Acts 31st Leg. p. 18, § 57, of the act of 1905, was amended so as to include therein the first proviso quoted and to omit therefrom the second, upon which alone the court reached the conclusion in the Blum Case that the trustees of an independent school district could not assess property at a higher value than assessed for state and county purposes.

Section 57 of the act of 1905, down to and including the first proviso, clearly relates to common school districts. The second proviso was inserted for the purpose of prohibiting the boards of trustees of independent school districts from assessing property in such districts at a higher value than the same property was assessed for state and couúty purposes. This is clearly shown by the opinion delivered in the Blum Case on the second motion for rehearing;- and the conclusions there reached in this regard are approved and adopted by us. It is there stated, in answer to the contention of the appellee that section 57 applies bnly to common school districts, that, “but for the second proviso in said section 57, we would agree with such contention.” The second proviso of section 57 of the act of 1905, having been repeated by the act of 1909, that section thus standing, applies only to common school districts, and the proviso “that all property assessed for school purposes shall be assessed at the rate of value of property as said property is assessed for state and county purposes” does not restrict independent school districts in the valuation they may place upon property in their district for taxing purposes.

It follows from our construction of sections 160, 161, and 165 of the act that, in the levy, assessment, and collection of school taxes by independent school districts, they are authorized to act independently and are not limited in fixing values upon property for taxing purposes at the same value as fixed for state and county purposes. We conclude, therefore, that the injunction was improperly granted, and therefore the judgment appealed from is reversed, and judgment is here rendered vacating the order granting the injunc-. tion.

Reversed and rendered.


text:
    TEXAS MOLINE PLOW CO. et al. v. HENDERSON.
    (No. 7934.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.
    Rehearing Denied May 23, 1914.)
    Homestead (§ 112) — Sale—Abandonment-Conveyance.
    There was no completed sale of a homestead prior to the delivery of a deed to the purchaser, so that if the homestead was abandoned prior to the delivery of such deed, it became subject to a judgment against the grantor.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 179-181, 186, 187, 190; 'Dec. Dig. § 112.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Suit by W. H. Henderson against the Texas Moline Plow Company and others. Judgment for complainant, and defendants appeal.
    Reversed and rendered.
    D. M. Oldham, Jr., of Abilene, and J. R. Stubblefield, of Eastland, for appellants. Scott & Brelsford, of Eastland, for appellee.

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

   SPEER, J.

W. H. Henderson filed this suit seeking an injunction to restrain the Texas Moline Plow Company from selling certain real estate situated in Eastland county, upon the allegation that such property was the residence homestead of one T. B. Roberds, at the time of the sale of said property by Roberds to one Gryder, from whom he, the plaintiff, had purchased ‘the same, and that the defendant who held a judgment against Roberds was claiming the right to sell the property by virtue of an execution issued thereon, and levied at a time when such property was the homestead of Rob-erds. The case was tried before a jury on special issues upon which judgment was entered in favor of the plaintiff, and the defendant has appealed.

In answer to special issues the jury found that the property in controversy was the homestead of T. B. Roberds and wife at the time of the sale of the same to W. D. Gry-der; that-T. B. Roberds abandoned the property in controversy as a homestead on or about November 12, 1912; that he formed the intention of taking up land and acquiring a homestead in Arizona on or about December 6, 1912; that.Roberds and wife made and delivered on or about January 31, 1913, a deed to the land in controversy to W. D. Gryder, and that Roberds made an application to have awarded to him 320 acres of land in Arizona as a homestead on or about December 7, 1912; and that the statements made in the said application were true at the time the application was made. During the deliberations of the jury they returned into court and propounded the following question:

“When does the law consider a sale of real estate made?”

To which the court answered in writing:

“So far as this case is concerned, when all of the essential elements of the deal have been agreed upon and the only thing left to be done is to pass the title papers, when they have been prepared according to such agreement.”

As interpreted in the light of this charge under the undisputed facts in evidence, the jury have found that the property in controversy was abandoned as a homestead prior to its sale to Gryder on January 3, 1913, and in this way the lien of appellant’s judgment, the same having been properly abstracted July 6, 1908, attached to the property, unless, as indicated in the court’s answer to the jury’s interrogatory, the sale of the Roberds’ property occurred when the terms of the deal had been agreed upon and the “title papers” had been prepared. We do not concur in this enunciation of the law. It is thoroughly well settled that an oral agreement, or even a written contract, to convey the homestead confers no right upon any one. Such agreements and contracts are unenforceable. Under our statute the wife may retract at any time prior to the actual execution of the deed. The Roberds’ homestead, therefore, was not sold until January 3,1913, and if, as found by the jury, it was abandoned before that time, appellant’s lien attached, and it is entitled to judgment. The judgment of the district court is therefore reversed, and judgment here rendered in favor of appellants.

Reversed and rendered.


text:
    JARVIS et al. v. TAYLOR COUNTY.
    (No. 7809.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 16, 1914.)
    On motion for rehearing.
    Overruled.
    For former opinion, see 163 S. W. 334.
   CONNER, C. J.

We seem to be in direct conflict with the case of Bautsch v. State, 27 Tex. App. 342, 11 S. W. 414, to which our attention has been called since the original opinion herein was handed down. But after a consideration of the case referred to, and after again reviewing the constitutional provision (not adverted to in the opinion of the Court of Criminal Appeals), and after reconsideration of the statutes relating to the subject which are referred to in our original opinion, we feel constrained to adhere to the conclusion heretofore announced. As was so well said by Chief Justice Gaines in a similar case of conflict:

“The opinion of this court upon questions coming before it in cases of which it has jurisdiction is the law of the case, and every party to the suit has the right to demand that we give it effect.”

See May v. Finley, 91 Tex. 352, 43 S. W. 257.

The motion for rehearing is, accordingly, overruled.