author: PLY, O. J.

text:
    KOEHLER v. DUBOSE et al.
    (No. 5937.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1918.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Libel and Slander &wkey;>34 — Defenses — Privilege.
    Act 27th Leg. c. 24, relative to libel, defines libel, authorizes' the proof of certain matters in mitigation, and provides that the truth shall be a defense, that the publication of a fair, true,, and impartial account of proceedings in a court of justice, etc., shall be deemed privileged, and not made the basis of any action for libel without proof of actual malice, and that nothing therein shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel. Held, that the statute preserves all existing defenses except in so far as they may be affected by the definition of libel, including the defense of privilege, and does not limit the defense of privilege to newspaper and periodical publishers.

      2. Statutes <&wkey;>220 — Construction—Legislative Construction.
    Rev. St. art. 5598, as amended by Acts 85th Leg. c. 206, providing that nothing in that title shall he construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel at common law or otherwise, but that all such defenses are thereby expressly preserved, is not a legislative construction that the prior law deprived , defendants of common-law defenses, but was apparently enacted to cure the failure of the codifiers to include a part of the prior law in the Revised Statutes.
    3. Libel and Slander <&wkey;19 — Construction of Language Used — “Erequent.”
    Where a petition remonstrating against the granting of a new liquor license to a saloon keeper stated that minors frequented the place, and seemed to experience no difficulty in finding some one who would buy liquor for them, the innuendo that this conveyed the idea that the saloon keeper had been guilty of selling liquor to minors pertinently and reasonably arose from the language of the charge, since to “frequent” a place means to visit often, to resort to often or habitually, and to frequent a saloon might mean that the minors entered it and remained in it at pleasure, and not merely that they assembled in the vicinity and sent messengers for liquor, especially as the selling habitually to an agent would convey the idea that the liquor was knowingly sold to be used by minors.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series,. Frequent.]
    4. Libel and Slander &wkey;>15 — Actionable W obds — Statutes—‘ ‘Libel. ”
    A petition open to the construction that it charge a saloon keeper with selling liquor to minors or knowingly to their agents, exposed him to public hatred, contempt, ridicule, or financial injury, within Act 27th Leg. c. 24, § 1, defining “libel” as a defamation tending to injure the reputation of a person, and thereby expose him to public hatred, contempt, ridicule, or financial injury, etc.
    [Ed. .Note. — For other definitions; see Words and Phrases, First and Second Series, Libel.]
    5. Libel and Slander Construction of Language Used.
    Where a petition remonstrating against the granting of a liquor license to a saloon keeper stated that minor boys were tempted to drink, an innuendo that this meant a violation of law in allowing them to purchase intoxicating liq-. uors was a fair one.
    6. Libel and Slander &wkey;>19 — Construction of Language Used.
    The statements in a petition remonstrating against the granting of a liquor license that minors were able to obtain liquor, and • were tempted to drink, being open to the construction that defendant sold them liquor, or knowingly sold it to their agents, the persons making the charges could not escape the effects of their language by also stating therein that they believed the saloon keeper tried to run the -place according to law, and that they laid no special blame upon him; it being impossible to conceive that liquor should be habitually obtained by minors without the seller discovering the fraud-
    7. Libel and Slander <&wkey;51(l) — Absolute Privilege — Effect of Malice.
    Absolute privilege is a defense, regardless of malice, since in the cases so privileged- it is-considered in the interest of public welfare that all persons should be permitted to utter their sentiments and speak their thoughts freely and fearlessly.
    ■ 8. Libel and Slander <&wkey;36 — Absolute Privilege — Matters Privileged.
    Absolute privilege against liability for libel extends only to proceedings of legislative bodies, judicial proceedings, and military and naval officers.
    9. Libel and Slander &wkey;>41 — Qualified Privilege — Privileged Matters.
    Qualified privilege extends to all communications upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty, and embraces cases where the duty is not a legal one, but one of a moral character or an imperfect obligation.
    10. Libel and Slander <&wkey;100(7) — Privilege-Necessity of Alleging and Proving Malice.
    Where a communication is qualifiedly privileged, the inference of malice is rebutted prima facie, and it devolves upon the party complaining to allege and prove malice.
    11. Libel and Slander <&wkey;38(l) — Privilege —Judicial Proceedings.
    Under Rev. ,St. arts. 7435, 7436, requiring applicants for liquor licenses to apply to the comptroller of public accounts for a permit, and authorizing him to issue a permit which is then filed -with the county judge, and authorizing the comptroller under certain circumstances to revoke licenses, a petition filed with the comptroller protesting against any new license being issued to a saloon keeper is not privileged as a communication made in a judicial proceeding, and the publishers of the statements therein are guilty of libel if the accusations are made in bad faith and with malice.
    12. Libel and Slander <&wkey;36r — Privileged Communications — Petitions to the Government.
    Such a petition is not absolutely privileged because of the right under the federal and state Constitutions to petition the government for a redress of grievances; there being no grievances against the government sought to be corrected by the communication.
    13. Libel and Slander <&wkey;36, 41 — Privileged Communications — Petitions to the Government.
    Under Rev. St. art. 7435, requiring applicants for liquor licenses to apply to the comptroller of public accounts for a permit, and to file an affidavit showing that the applicant has not violated any of the laws in regard to selling to students or minors, etc., and providing for the issuance of a permit which shall be filed with the county judge, article 7446, requiring the county judge to set the application for hearing and give notice of the petition, and authorizing certain property owners to contest the granting of the license, and article 7436, authorizing the comptroller to revoke licenses, there is no statutory justification or authority for circulating a petition to the comptroller protesting against the granting of a new license to a saloon keeper months before the expiration of his license, and at a time when no application for a new license is pending, and charges therein against the saloon keeper are neither absolutely nor qualifiedly privileged, especially as in cases justifying communications between parties interested in a subject-matter, the privilege apparently does not apply when the communications are published and others not interested allowed to become acquainted with'their contents, as is done by circulating a petition and obtaining signatures from any persons desiring to sign it.
    Appeal from District Court, Medina County; R, H. Burney, Judge.
    Action by Walter Koehler against W. L. Dubose and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Davis & Long and Ward & Biclsett, all of San Antonio, and V. H. Blocker, of Hondo, for appellant. Hertzberg & Kercheville and O. O. Harris, all of San Antonio, Mack Kercheville, of Devine, De Montel & Ply, of Hondo, and John T. Briscoe and R. L. Marshall, both of Devine, for appellees.
   PLY, O. J.

This is a suit for damages instituted by appellant against W. L. Dubose and 66 others. It was alleged that the damages arose from the publication and circulation of two written instruments. A general demurrer and special exception were sustained to the petition.

The first instrument was signed by appel-lees, and the other was not signed. The signed document is as follows:

“To the Hon. H. B. Terrell, State Comptroller, Austin, Texas:
“We, the undersigned, citizens, taxpayers and heads of families, including business men, doctors, ministers, lawyers, and school-teachers, residents of Devine, Medina county, Texas, want to file their remonstration against the granting of a new license to one Walter Koehler, who operates a county line saloon on Bexar and Atascosa county lines, just inside of Bexar county.
“We submit that the place is within eleven miles of our town, and that there is no police protection at or near the place where the saloon is operated; that minors frequent the place from over a great section of this county and seem to experience no difficulty in finding some one who will buy the liquor for them.
“We are having trouble in our school on account of the temptation to boys that are in school, among whom are young men who are sent here from distance to our school.
“We further aver the fact to be that there are fights and brawls, constantly happening in and near the saloon, the same being on highway over which hundreds of people have to pass en route to ,San Antonio, and occasionally there are murders committed by drunken men; that only recently a boy from this town was cut and slashed by drunken Mexicans there, from which wounds he is not expected to live; that lives of women and children who must of necessity pass there are in danger.
“Wherefore we remonstrate against a new license being issued at the expiration of the present one.
“Dated at Devine this the 16th day of October, A. D. 1916.
“Respectfully submitted.”
Signed by W. L. Dubose and 66 other defendants.

The unsigned instrument is as follows:

“To the Honorable H. B. Terrell, State Comptroller, Austin, Texas:
“We, the undersigned citizens, taxpayers and heads of families, including business men, doctors, ministers, lawyers and school-teachers, residents of Lytlq, Atascosa county, Texas, take leave to file this our remonstration against the granting of a new license to one Walter Koehler who operates a county line saloon on the Bexar and Atascosa county lines just inside the Bexar county line on the Laredo-San Antonio road.
“We submit that the place is within a mile and a half of our little town, and the place has no police protection whatever; that our minor boys have no trouble in finding some one who will buy liquor for them and that the place is operated to ruin and debauch the young men of this section, while they are yet of tender age and unable to withstand the temptation to drink on account of their minority.
“We pride ourselves in maintaining an extra good school, but we aver the fact to be that the saloon in a large measure counteracts our efforts in the direction of education and undoes the work of our school.
“We lay no special blame upon the man who operates the place, for we believe he tries to run the same according to law, but owing to the fact that there are no officers present to assist him, it is common practice for certain unscrupulous persons to buy for and deliver to minors all the liquor they want and that owing to the inherent hell in the commodity sold young men whom proud mothers had hoped to proffer their state and nation as good citizens, are in a fortnight converted into drunken wretches and laid at their feet.
“Wherefore we remonstrate against a new license being issued at the expiration of the present one.
“Witness our hands at Lytle, Texas, this the 16th day of October, A. D. 1916.”

The two instruments were copied into the petition, and libel was declared upon them. If the instruments, or either of them, contain libelous matter, the general demurrer should not have been sustained, for the petition contains every allegation necessary to establish the cause of action, employing some pertinent innuendoes stated as arising from the publications of the papers.

In 1901 the Twenty-Seventh Legislature passed the first civil libel law ever enacted in Texas; prior to that time the common law being the only guide in libel cases, except in so far as certain publications had been penalized by the Legislature, such as the imputation of a want of chastity to a female. Hatcher v. Range, 98 Tex. 85, 81 S. W. 289; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167. It has been held, and we think properly so, that the law of 1901 was enacted to comprehend and embrace the entire subject of libel in civil causes, without reference to rules or precedents in this or other states. Not only does the statute cover all actionable cases of libel in this state, but it has given rights to those who are the subjects of libel, not accorded to them under the common law. The law, as enacted in 1901 (Acts 27th Leg. e. 26), is as follows, omitting the emergency clause r

“Section 1. A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one, or to publish the natural defects of any one, and thereby expose such person to public hatred, ridicule or financial injury.
“Sec. 2. In any action for libel the defendant may give in evidence, if specially pleaded, in mitigation of exemplary or punitive damages, the circumstances and intentions under which the libelous publication was made, and any public apology, correction or retraction made and published by him of the libel complained of. The truth of the statement or statements in such publication shall be a defense to such action.
“See. 3. The publication of the following matters by any newspaper or periodical, as defined in section 1, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice.
“L A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so orders; or any other official proceedings authorized by law in the administration of the law.
“2. A fair, true and impartial account of all executive and legislative proceedings that ■ are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees.
“3. A fair, true and impartial account of public meetings, organized and conducted for public purposes only.
“4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.
“,Sec. 4. Nothing in this act shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel, nor shall this act affect any suits now pending, or that may hereafter be brought upon a cause of action arising prior to the taking effect of this act.”

In section 4 of that law, it is distinctly and clearly provided that certain existing matters and things shall not be affected by the act, each matter being specified. The first is penal laws as to libel, the second, defenses to civil actions for libel, and the third, as to cases arising before the law was enacted. If the provision is clear as to penal statutes, it is equally clear as to defenses in civil cases. No one has ever questioned the fact that the law did not affect penal laws, and there can be no doubt that defenses existing theretofore in civil actions for libel are no more affected than are the penal laws of Texas. It would seem that no other reasonable construction could be placed upon the statute of 1901, and while setting aside all other definitions of libel, the Legislature retained the common-law defenses as well for all citizens as for the publishers of newspapers or periodicals. We cannot imagine that the right of pleading and proving that an alleged libel is a privileged matter has been taken away from all citizens except newspaper and periodical publishers, and no authority has been produced which holds that such is the case. Such an authority would be directly in the face of the statute. It is clear that no such holding was made either in Walker v. Light Pub. Co., 30 Tex. Civ. App. 165, 70 S. W. 555, or in Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167. In each of those cases the courts were considering the question from the standpoint of the plaintiff, and not from that of the defendant. They were defining the rights of plaintiffs under the law and not the defenses guaranteed by the law. In the Walker Case the court was passing upon the propriety of the action of the trial court in sustaining a general demurrer to the petition, and .it was held that the statute gave the only definition of libel that could be used in this state, fully covering the subject. The matter of defenses was not considered. The sufficiency of the petition was the only question before the Supreme Court in the Guisti Case, and that part of the statute as to the preservation of common-law defenses was not adverted to or discussed. We hold that the language, “Nothing in this act shall be construed * * * to take away any existing defense to a civil action,” preserved and secured to defendants all defenses as they existed at common law, except in so far as they may be affected by the definition of libel in the first section of the act. To hold that no one can have the benefit of the defense of a privileged communication except publishers would cause the man who advises his neighbor as to the character and ability of a doctor, lawyer, merchant, workman, or servant, or the witness who testifies as to matters affecting the character of another, or the judge who renders an opinion, to be without defenses against a suit for libel. It cannot be assumed that the Legislature intended to create any such condition, and the plain language of the statute evidences a desire to provide against any such condition of affairs. In the case of the opinions of judges rendered since the law of 1901 was enacted, and under facts occurring since that time, and in regard to questions asked of a witness by an attorney, it has been held that they were privileged communications. Allen v. Earnest, 145 S. W. 1101; Kruegel v. Cockrell, 151 S. W. 352. These decisions would have no foundation upon which to rest if the common law as to privileged communications had been destroyed by the statute.

In 1917 the Legislature enacted an amendment to thfe law of 1901, which is article 5598 of the Revised Civil Statutes of 1911, as follows:

“Art. 5598. Nothing in this title shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any now or * * * heretofore existing defense to a civil action for libel, either at common law or otherwise, but all such defenses are hereby expressly preserved.”

The effect of that amendment was to more explicitly reserve common-law defenses, and the enactment of it cannot be deemed to> be a legislative construction that the law of 1901 had deprived defendants of common-law defenses. It may be that the amendment was enacted to meet the fact that the part of the act of 1901 as to defenses was not inserted by the codifiers in the Revised Statutes of 1911. The fact that the part of the act in question was omitted from the statutes by the codifiers might create confusion and lead to the belief that a portion of the law had been repealed, and the Legislature deemed it essential or expedient to remove all doubts in connection with the matter. We hold that at no time since the enactment of the law of 1901 has any one, under proper circumstances, been deprived of common-law defenses against libel. Berry v. State, 69 Tex. Cr. R. 602, 156 S. W. 626.

In the first documents herein copied it was stated that:

“Minors frequent the place from over a great section of this county and seem to experience no difficulty in finding some one who will buy the liquor for them.”

The innuendo that this charge conveyed the idea that appellant had been guilty of selling liquor to minors pertinently and reasonably arises from the language of the charge. To frequent a place means “to visit often; to resort to often or habitually.” Black’s Raw Diet. p. 525, and authorities cited. To frequent the saloon as charged in the instrument might mean that the minors entered it and remained in it at pleasure, and not merely that they assembled in the vicinity and sent messengers for liquor. The innuendo in the petition to that effect was fairly drawn from the language, and also the selling to an agent habitually would convey the idea that the liquor was knowingly sold to be used by the minors. The charge tended to injure the reputation o'f appellant and “expose him to public hatred, contempt, or ridicule, or financial injury.” The innuendo is also a fair one that the charge that the boys of the schools were being tempted meant a violation of law in allowing them to purchase intoxicating liquors. There are other innuendoes set forth in the petition fairly deducible from the language of the paper, which as a whole conveyed the impression that the saloon was the rallying place for boys in the surrounding country, and that they were being debauched by the use of liquor obtained from the saloon, and also that murder, assaults, and other crimes were committed with impunity in the saloon. •

The second instrument copied herein attempts to palliate and excuse the charges against appellant, hut we do not think that persons making the charges contained in the paper can escape the effects of their language by stating that although liquor is sold to minors the saloon keeper is endeavoring to run the saloon according to law. It is impossible of conception that liquor should be habitually obtained by minors, through indirect methods, without the seller discovering the fraud. The charge against a person of crime cannot be robbed of its sting by constantly reiterating that, “He is an honorable man,” as was attempted by the Roman orator at Csesar’s funeral.

The petition can be attacked upon only one other ground, which was set up by special exception, although the general demurrer raised it as it goes to the very life of the pleading, and that is that the two instruments were addressed by citizens on a public matter, to the comptroller oí public accounts, who has the power and authority to grant, revoke, or refuse licenses to sell intoxicating liquors in Texas.

There are two classes of privileged occasions or communications, the first absolute privilege, and the second qualified privilege. In the former class it is considered in the interest of the public welfare that all persons should be permitted to utter their sentiments and speak their thoughts freely and fearlessly upon all questions and subjects, and no action for words so spoken or written can be sustained, although falsely made with express malice. This class of privileged matter is founded absolutely on public policy, and the question of malice cuts no figure in connection with it. Cases of absolute privilege are divided into three classes, and they are not extended by courts. They are:

“Proceedings of legislative bodies, judicial proceedings, and military and naval officers.” Newell, Slander & Libel, § 505 et seq.

The instruments declared on in this case could by no manner of construction come within the purview of either of the cases named unless they be classed as judicial proceedings.

It is held that great latitude of speech is allowed to all persons in the conduct and management of all proceedings having for their end the administration of justice. In a free government it is essentially necessary in the preservation of rights that great freedom be allowed in the making of complaints and accusations with the end in view of having an investigation, the execution of the laws and the punishment of offenders, and in numerous instances it has been held that the privilege extends not only to regular courts of justice, but to all inquiries before magistrates, referees, municipal, military, and ecclesiastical bodies. Newell, Sian. & Libel, § 516, and list of authorities in note.

The American rule as to absolute privilege in judicial proceedings is not so broad, it would seem, as is the English, which absolutely exempts from liability in an action for libel or slander, judges, parties, counsel, and witnesses for language used in the course of judicial proceedings;, but while the rule as to judges is the same as in England, the rule in this country is qualified to the extent that the defamatory words must be applicable, pertinent, or relevant, to the matter in hand. Hoar v. Wood, 44 Mass. (3 Metc.) 193; McLaughlin v. Cowley, 127 Mass. 316.

It *has been stated that the American rule is that "false accusations contained in affidavits or other judicial proceedings by which prosecutions for supposed crimes are commenced, or in any other papers in the course of judicial proceedings, are not absolutely protected, and the party making them is liable to an action if actual malice be averred and proved. Such affidavits cannot be made a cloak for private malice, but must be made in good faith to tribunals having jurisdiction of the matter. Newell, Slander & Libel, § 550, and cases reviewed. Even. i£ the comptroller of public accounts be an administrative officer with quasi judicial powers, under which he could pursue an investigation as to a seller of intoxicating liquors, or has the power to grant or withhold a license for the sale of liquor, under the authority mentioned the party seeking such revocation or refusal to grant a license might be held for libel if he is actuated by malice in the charges he may make to gain such revocation or refusal of license.

Qualified privilege extends to all communications upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty, made in good faith, and the privilege embraces cases where the duty is not a legal one, but where it is of a moral character of imperfect obligation. The occasion on which the communication was' made would rebut the inference of malice prima facie, and it would devolve upon the party complaining to allege and prove malice. Ashcroft v. Hammond, 197 N. T. 488, 90 N. E. 1117; Flanagan v. McLane, 87 Conn. 220, 87 Atl. 727, 88 Atl. 96; Ott v. Murphy, 160 Iowa, 730, 141 N. W. 463.

It cannot consistently be contended that a communication addressed to the comptroller is a paper filed in a judicial proceeding. That officer is placed by the Constitution in the executive department of the state, and he has no constitutional authority to perform any judicial act. Under the statute the comptroller, upon receiving an application to sell intoxicating liquors at retail, is authorized to issue a permit to the applicant, if satisfied that he is entitled to the same, and then the county judge is authorized to issue the license. Either the county judge or comptroller may, under certain circumstances, revoke the license to sell liquors. Articles 7435, 7436, Rev. Stats. It has been held that the enumerated powers given the comptroller are ministerial, and not judicial, and that if an attempt was made to confer judicial powers upon the comptroller, such attempt would be unconstitutional and void. Railway v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681; Baldacchi v. Goodlet (Tex. Civ. App.) 145 S. W. 325.

The highest dignity that could possibly be conferred upon the acts of the comptroller in this connection would be to class them as quasi judicial, and we doubt that the communication could be even classed as proceedings in a quasi judicial proceeding, which 4s one resembling a judicial proceeding, the two being separated by intrinsic’differences, however. The only ground, then, upon which the communications can be classed as privileged, is that they were drawn and addressed by parties prompted by a duty owed either to the public or to a third party,' or that the parties have an interest in the subject-matter which is communicated to another having a corresponding interest, the parties making the communication in good faith and without actual malice.

To sum up the matter, we conclude that the communications were not made in a judicial proceeding, and that the publishers of the statements will be guilty of libel if it be shown that the accusations were made in bad faith and with malice towards appellant.

It is contended that under the right of petition given by the state Constitution the communications addressed by appellees to a state officer are privileged. The right of petition has always been an Anglo-Saxon demand, and one of the grievances set forth in the Declaration of Independence against the English king was that he had answered their repeated petitions for redress “only by repeated injury.” The first amendment to-the federal Constitution reserves the right of “the people to peaceably assemble and to petition the government for a redress of grievances.” It is clear that by the two documents mentioned the right to petition-the government for governmental redress of. injuries inflicted by governmental agencies was kept in view and sought to be preserved and protected. Upon those declarations, the declaration in the Bill of Rights of the-Constitution of Texas is founded (article 1, § 27), which recites:

“The citizens shall have the right, in a peaceable manner, to assemble together for their common good, and apply to those invested with the powers of government for redress of grievances, or other purposes, by petition, address, or-remonstrance.”

The right of petition, guarded and protected by the Constitution, was not given to protect citizens who might attack the character or malign the acts of the individual citizen, although addressed to an officer of the state, but in every instance in which the-right of petition has been sustained it has-been when the object was to obtain some redress as to governmental acts or the exercise of some governmental agency general in its character. The right was not given to-shield attacks upon private reputations 01-assaults upon private characters. No casé-is cited that will sustain the contention that citizens have the absolute privilege to attack the motives and assail the acts of a private citizen of libel no matter howi much malice may have actuated those publishing, the petition. The Constitution seeks to secure liberty and not licentiousness. In the-case of Connellee v. Blanton, 163 S. W. 404, the petition was drawn for the pardon of a. convict, was addressed to the Governor, and the alleged libel of which complaint was-made was a criticism of the district judge who tried the cause. The communication-was held to be for a redress of grievances against the government by the citizens, and was also a part of the judicial proceedings in the case. The court said:

“If the judicial proceedings which culminated in the conviction were absolutely privileged, why should not the same immunity be extended * * * to a higher power to annul that judgment in part?”

The criticism in the application was one of a branch of the government, and redress was being sought from another branch. Ap-pellees ask:

“If you could not libel a district judge in a petition to the Governor, how could you libel a saloon man in a petition to the comptroller?”

The two are totally different, because one petition is for redress of a grievance against a branch of the government, and the other against an individual. We think the difference is apparent. None of the decisions cited by appellees sustain their contention. We think the case of Belo v. Wren, 63 Tex. Y22, correctly decides the law applicable to this case, and we hold that petitions of the character of those circulated by appellees are not absolutely privileged.

There being no grievance against the government sought to be corrected by the communication to the comptroller, there being no complaint against his act or that of any other branch of the state government, the right given by federal and state Constitutions to petition does not authorize or justify the communication addressed to the comptroller, and it is pertinent to consult the statutes in regard to granting and revoking licenses to sell intoxicating liquors to ascertain if there is any authority given that would justify the circulation of a paper for signers in which a citizen is attacked and his character traduced. The two papers were evidently circulated promiscuously in the community, and it is presumable that many saw it who refused to sign either of them, for one intended for a certain locality failed to obtain any signatures whatever.

It is provided in article 7435, Rev. Statutes, that any person desiring to obtain a retail liquor dealer’s license shall, before filing his petition for such license, make apIilication under oath to the comptroller of public accounts of this state for a permit to apply for the license. In that affidavit the person is required to swear that he has not violated any of the laws in regard to liquor selling, such as selling to students or minors, or permitting the latter to enter and remain in the place of business; as to the hours of closing the saloon, and others. Upon receiving the affidavit, which is set out in full in the, statute, the comptroller after filing it and being satisfied shall, upon payment of $2, issue the permit, which, together with a copy of the application, shall be filed with the county judge. Upon such filing the person desiring the license shall file a petition as: required by article 7435, and shall make certain required statements as to himself, and when the petition with the permit and affidavit from comptroller is filed the the county judge shall set the same for hearing at a time not less than 10 nor more than 20 days from the filing of the same, and it is required that notice of the petition being filed shall be given, with the substance thereof, by posting on the courthouse door, and the petition shall be open for inspection to any one, and certain property owners may contest the granting of the license. That is the only method provided in the statute for contesting the issuance of a license to sell liquor. Article 7446, Rev. Stats.

There is nothing in the statute to indicate that it was ever contemplated that persons residing in the country surrounding the location of a saloon would be justified and authorized to circulate a communication to a state officer, months before the time for the expiration of a liquor license which is fixed by law, and with the knowledge of which time of expiration the parties are charged, in which communication the motives, the manner of conducting the business, and the dire results to the community are set forth and the request made that no other license shall be granted the, liquor dealer when his license expires. No present action was requested in this instance of the comptroller but months afterwards when the license shall expire he is asked to take such action. The signers or publishers of the communication had no right or authority to presume that more than a half year afterwards appellant would swear to falsehoods in endeavoring to obtain a permit from the comptroller, or even that he would desire to continue the business in which he was engaged. No revocation of the license was sought or desired, no present relief was requested, but anticipating that months in the future a false and perjured application for a new license would be filed in the office of the' comptroller, instruments filled with grave charges against the dealer were circulated in two counties, and months afterward sent to the comptroller.

By article 7436 the comptroller is given the authority to revoke liquor licenses, and it is indicated that information leading to such revocation may be obtained through secret information from any one; provision being made to prevent the disclosure of the informer. There is nothing in that statute, if a revocation had been sought, which would justify the circulation of defamatory matter addressed to the comptroller. There is nothing in the statutes of Texas authorizing or justifying the signing and publication of such publications as are declared on by appellant.

In cases justifying communications between parties both of whom are interested in the subject-matter, it does not seem to be contemplated that the communication should be made to any but the interested party, and when such communications are published and others not interested allowed to become acquainted with their contents the character of privilege is removed and the status of libel fixed. Newell, Sian. & Libel, § 566.

The statute provides for the comptroller being satisfied before he grants a permit, and no doubt a citizen might agree with others to draw up a petition which each would sign, and present to the comptroller in order to prevent the issue of a permit to a man applj'ing for the same and the communication would he privileged, but that would be a different proceeding from one in which a petition is circulated in a community and signatures obtained from any persons desiring to sign it, assailing the character and actions of a citizen who has not applied for a license and- who might never apply. Privileged communications cannot be extended to that dangerous extent. Suppose appellant had not applied for another license; the injury to him would have been inflicte'd on an imaginary state of facts having no foundation whatever. It would be a singular rule that would say to him, that as he might apply for a license he could he libeled with impunity.

The method of communication may strip a privilege of its character and transform it into a libel. Publicity, unnecessary and uncalled for by the circumstances, may destroy-a privilege and lay the publisher open'to an action for libel. Thus in an English case it was held that a speech made by a member of Parliament was absolutely privileged, but if the speech was printed and circulated it would he libelous. Newell on Slander & Libel, § 428, subd. 10. It is stated to bo the rule that, while a petition to the Legislature relevant to proceedings that are pertinent is absolutely privileged, a publication of such petition to others, not members of the Legislature, is not privileged. Newell, Slander & Libel, § 510. It would seem, therefore, that if the petition to the comptroller, properly handled, would have been privileged, it lost its privileged character by being published throughout the community.

The truth of the matter alleged in the documents circulated by appellees would be a complete defense to the action for libel. Rev. Stats, art. 559-6; San Antonio Light Pub. Co. v. Lewy, 52 Tex. Civ. App. 22, 113 S. W. 574; Wheless v. Davis (Tex. Civ. App.) 122 S. W. 929. Of course the burden of alleging and proving the truth of the statements in the two instruments would rest upon ap-pellees.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The defamatory statements made in the petitions circulated by appellees were not published to prevent the granting of a liquor license, or for the purpose of revoking one. Had the petitions been circulated and then placed before the comptroller at a time when a request for a liquor license was pending before that officer, or if they had been made and presented to procure a revocation, a different case would have been presented. A revocation of appellant's liquor license was not sought, and he had made no application for a license to sell liquor. The petitions would have been just as pertinent, and the petitioners would have had the same right to plead privilege, if appellant had been running a grocery store instead of a saloon, and appellees had conceived the idea that he might at some time in the future desire a liquor license. This answers the excerpt from 25 Cyc. 389, and the other authorities are not in point that are cited in the motion. All of them are in regard to petitions or reports on matters pending before lawfully constituted authorities.

In order to remove any doubt as to some language used in our former opinion, we hold that the communications circulated by appellees' were not absolutely or qualifiedly privileged, and that the only defense to any defamatory matter that may he contained in them is the truth of such matter, i

The motion for rehearing is overruled.
      For other cases see same topic and KEy -NUMBER in all Key-Numbered Digests and Indexes

      <8nroFor oiher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    WESTERN INDEMNITY CO. et al. v. BERRY.
    (No. 5946.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1918.)
    Municipal Corporations <&wkey;705(12) — Jitney Busses — Liability of Owner and Surety for Injuries.
    Where a city ordinance, in effect, provided that if a jitney bus owner’s servant put another man in his place without authority from the owner, the owner should suffer for such substitute’s negligence, rather than the passengers and public, and required the owner to give bond, the owner of a jitney and the surety on his bond were liable for injuries to a pedestrian on a sidewalk, injured by the defective condition of the bus when operated by the driver for one who operated the car for the owner on a percentage basis, with a guarantee of $2.50 a day, the ordinance requiring the operation of the bus on certain schedules under penalty of forfeiture of license, so that the operator on a percentage basis had to secure some one to relieve him at meal times.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by T. C. Berry against the Western Indemnity Company, M. Canet, and another. Erom a judgment for plaintiff, the defendant company and Canet appeal.
    Affirmed.
    Terrell & Terrell and Jno. W. Turner, all of San Antonio, for appellants. Perry J. Lewis, H. C. Carter, Champe G-. Carter, and Randolph L. Carter, all of San Antonio, for appellee.
   MOURSUND, J.

T. C. Berry sued M. Canet, Chas. Russell, Jr., and the Western Indemnity Company for damage on account of injuries sustained'by him while a passenger on an, automobile owned by M. Canet and alleged to have been operated by Chas. Russell as agent of said M. Canet in the jitney service as a common carrier.

Plaintiff alleged that the automobile was suddenly turned into the curb and overturned, throwing plaintiff to the ground. The specific acts of negligence alleged were: (1) That the car was being operated at a negligent and dangerous speed, contrary to the criminal ordinances of the city of San Antonio ; (2) that the automobile was in a defective and dangerous condition, with a serious defect in the steering gear, it being alleged that both defendants knew of such defect or by the exercise of ordinary care could have known of it, and nevertheless negligently operated the automobile and failed to repair the defect; (3) that Russell turned into the curb and failed to turn off the power and apply the brakes; (4) that Canet was negligent in permitting Russell to operate the automobile as Russell was a reckless and incompetent driver, and at the time was not 18 years of age as required by ordinance of the city. Plaintiff alleged that “in operating said automobile as aforesaid, Charles Russell, Jr., was acting in the course of his employment as an agent of M. Canet.”

The Wester/n Indemnity Company; was made a party defendant by reason of the execution by it of a bond payable to persons injured in said automobile, while negligently operated as a jitney. Said bond was attached to the petition, and was for the sum of $5,000.

Defendant M. Canet and Western Indemnity Company answered separately by general demurrer, general denial, and specially denied that the defendant Russell was the agent of M. Canet, and further denied any negligence by Canet as to the defects alleged and as to the hiring of Russell. It was further alleged that contrary to plaintiff’s complaint, defendant Canet had discontinued the operation of said car as a jitney a short while before the accident and had leased same to one E. J. Euessell at a flat rental of $2.50 per day; that Russell was an employs of Fuessell’s and Canet did not even know him. The Western Indemnity Company adopted Canet’s answer and pleaded that as it was liable under its bond for such damages only as might be occasioned by the negligent adts of the principal, Mr. Canet, his agent, or employ®, and as it appeared that the defendant Russell was not such agent or employe, no liability existed against it as surety. It further pleaded that the leasing of the jitney by Canet to Euessell without its knowledge or consent operated as a release of its liability on said bond.

By supplemental petition, plaintiff denied the lease to Euessell, and alleged that Russell and Fuessell were both agents and employes of Canet. That liability could not be avoided by the supposed lease because it was void and contrary to the jitney ordinance.

The case was submitted on special issues, and the jury found: (1) That the car in which plaintiff was a passenger was operated negligently as alleged in plaintiff’s petition; (2) that such negligence directly caused the accident and the injuries to plaintiff alleged in plaintiff’s petition; (3) that the car and its steering gear was in a defective condition as alleged in plaintiff’s petition; (4) that it was negligence on the part of Canet “to have and permit said car to be in such defective condition”; (5) that this negligence directly caused the accident and injuries to plaintiff alleged in his petition; (6) that H. J. Fuessell was operating the car for Canet on a percentage basis, with a guaranty of $2.50 per ddy; (7) that there was no agreement between Canet and Eues-sell that Euessell was to secure some one to relieve Fuessell at meal times; (8) that the amount of damages which would compensate plaintiff was $5,000.

Upon such verdict judgment was entered in favor of plaintiff against ail the defendants for $5,000, and the Western Indemnity Company was given judgment over against Canet for said sum. This appeal is by Canet and the Western Indemnity Company.

Appellants contend: (1) That the court erred in overruling their motion to enter judgment in their favor on the findings of the jury; (2) that the judgment is contrary to the evidence and the findings of the jury. Both contentions are based on the theory that as the jury found there was no agreement between Canet and Fuessell that the latter was to secure some one to relieve him at meal times, the ear at the time of the accident was being operated by one not the agent or employ® of Canet, and therefore neither Canet nor the Indemnity Company would be responsible for plaintiff’s injuz-ies.

We deem it unnecessary to consider many of the questions presented and discussed in the briefs. The amount of the judgment does not exceed the bond sued upon, and we believe that both of the appellants are liable to the extent of the bond by virtue of the provisions thereof, regardless of whether Russell’s employment by Fuessell was authorized. Canet procured license and was granted a franchise to operate his automobile in the business of a common carrier on the streets of the city of San Antonio. The franchise was granted to him upon certain conditions, compliance with which was required by ordinance. He was required to give a good and sufficient assurance in writing, “undertaking and guaranteeing that such vehicle or vehicles shall he operated with due care for public safety.” The ordinance provided further:

“Each such bond or policy of insurance to be conditioned that the holder of such license shall and will well and truly pay to the mayor of said city, and to his successors in office, for the benefit of each such person injured by reason of ¿he negligent operation of such vehicle, or on account of any injury which any person may, while employed on such vehicle by the licensee, do or negligently allow to be done to any passenger, or pay directly to any passenger so injured, any amount or amounts which may be awarded by final judgment of any court of competent jurisdiction on account of any such injury against any person owning or operating any such vehicle.”

Pursuant to such ordinance he gave the bond sued on which contained the following provision:

“The condition of this obligation, howévez’,_is such that whereas it is possible that injuries to persons may occur by reason of the negligent operation of said vehicles for the purposes of such business, that other injuries may be wrongfully done or negligently allowed to be done to passengers by persons employed by said principal on such vehicles, now, if the said principal shall well and truly pay the mayor of said city, or to his successors in office, for the benefit of each person so injured, or pay directly to such person, all damages on account of any such injury, which such person may suffer, or which may be awarded to such person by any court of competent jurisdiction, then and thereupon this obligation shall, in so far as concerns such claims and damages so paid, be and become satisfied and of no effect, but in all other respects shall continue in full force and effect.”

The language, “injuries to persons may occur by reason of the negligent operation of said vehicles for the purposes of such business,” provides for all injuries caused by the negligent operation of the vehicle, whether to passengers or others, while the vehicle is being operated for the purposes of such business. By the use of the words, “injuries to persons,” instead of “passengers and others,” the writer of the bond was consistently-following up what he had said in the preceding paragraph, wherein it is stated that the obligation is “for the benefit of any person or persons injured,” and the further statement is made that by referring to persons injured is meant not only passengers but also others using the streets and public places. The language, “that other injuries may be wrongfully done or negligently allowed to be done to passengers by persons employed by said principal on said vehicles,” makes provision for a different class of injuries than those resulting from negligent operation. It relates to injuries wrongfully done to passengers by employes and injuries negligently allowed by employes to be done to passengers, and was evidently designed to protect passengers from insults and assaults by employes or by other passengers. In subdivisions 17 and 18 of section 12 of the ordinance, it is provided that the driver shall maintain good order, and shall forbid and caution against the use of improper language and violent or indecent conduct on the part of passengers, and it is also made an offense for passengers to engage in such improper conduct. In subdivision 21 the driver is prohibited from addressing any remarks to passengers further than necessary to collect fares and receive and discharge passengers. These provisions are referred to for the purpose of showing that the writer of the ordinance had in mind the injuries to which we think that portion of the bond relates, in which employés are mentioned.

By the plain language of the bond there is created a broader liability for the first class of injuries than for the second, which may or may not be justified, but we are not concerned with the motives impelling the writer of the ordinance to make the distinction. It may be argued that, if the driver is placed in charge without authority, the vehicle is not being operated for the purposes of such business, but it appears to us that when the vehicle is being used, as this one was, to fulfill the requirements of the ordinance requiring its operation upon cfertain schedules under penalty of forfeitures of license, the plain provision of the bond is being complied with. As the business is a hazardous one, and the right to engage in it a franchise, the owner of the car can be required to give assurances for the safety of the public, and it is neither unjust nor unlawful to make him responsible for injuries occurring while his- franchise obligations are being complied with, regardless of whether his servant or agent had authority to delegate the duty to the one who undertakes its performance.

The ordinance, in effect, provides that, if the owner’s servant puts another man in his place without authority from the owner, the owner shall suffer for such substitute’s negligence rather than the passengers and public, who have a right to assume that the car would not be intrusted to any one to carry on the business unless he was the employé of the owner.

There is no merit in the third assignment.

The judgment is affirmed.
      <g=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    FOWLER et al. v. WOODS et al.
    (No. 291.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 21, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Adverse Possession <&wkey;68 — Requisites— Claim of Title.
    Claim of right is unnecessary to constitute adverse possession under ten-year statute.
    2. Infants &wkey;>2iL-ADVERSE Possession — Effect of Minority.
    Adverse possession under the ten-year statute is unaffected by the minority during part of such period of a woman claiming title through marriage to a deceased record owner’s husband after the limitation period .had expired.

      Appeal from District Court, Hardin County ; Hon. D. B. Hightower, Sr., Judge.
    Trespass to try title by Ella Woods and others against Emma Fowler and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    B. L. Aycoek and A. M. Hill, both of Kountze, for appellants. W. W. Cruse, of Beaumont, for appellees.
   BROOKE, J.

This is a suit filed by ap-pellees in the district court of Hardin county, Tex., October 17, 1916, against appellants, in trespass to try title, claiming 80 acres of land, being the west half of tract of 160 acres in the Elijah Hunter league, known as the old Fairchild homestead, fully described by field notes. The facts show that in 1872, Mrs. S. W. Fairchild settled on the place with her five orphan children, and lived there coji-tinuously until the year 1884; that Mrs. Pair-child married one John Fowler in 1S84, and was absent from the place about nine years, during which time, however, she occupied the place with her tenants; that she returned there, after being absent about nine years, and lived there continuously until 1908, when Mrs. Fairchild, who had married Fowler, died. In the fall of the same year John Fowler married the present appellant in this cause, and continued to live on the land until 1915, when John Fowler died, leaving the appellant on the place. The heirship of the appellees is admitted. The case was tried before the court without a jury, at the March term, 1917, and resulted in a judgment in favor of appellees.

The first three assignments of error will be considered together, as follows: (a) The court erred in rendering judgment for plaintiffs because the evidence was insufficient to support the ten-years’ limitation, (b) The court erred in rendering judgment for plaintiffs because the possession relied on solely by plaintiffs to vest title was not begun and continued under a claim of right, but Mrs. Fairchild entered to pre-empt 160 acres of land, and it was never during the ten years shown to be adverse, (c) The court erred in rendering judgment for plaintiffs because the testimony of plaintiffs showed that the possession was not open, visible, and continuous for ten years.

Appellants’ proposition is that to constitute adverse possession under the ten-year statute, there must be a claim of right, and cites the case of Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210. Unfortunately for the appellants, the doctrine which was thought by some members of the bar to have been announced in the above case has been held not to be the law in a very recent case by the Chief Justice of the Supreme Court, in the case of Houston Oil Company v. H. C. Jones et al. (Sup.) 198 S. W. 290, in which, among other things, the court uses the following language:

“While the requirement that the appropriation of the land must be commenced and continued ‘under a claim of right inconsistent with and hostile to the claim of another’ was first incorporated in the statute in 1879, at an early day this court announced that such claim was an essential element o.f adverse possession. Portis v. Hill. 3 Tex. 273. The present statutory definition of ‘adverse possession,’ in a word, is simply that which the court had always held it to mean and as other authorities, generally, had defined it. For instance, it was said by Judge Moore in Word v. Droutkett, 44 Tex. 365, decided in 1875: ‘His entry upon the land must be with intent to claim it as his own or hold it for himself; or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor. Wash, on Real Prop. 125; 2 Smith’s Lead. Cases, 561.’ The court has a number of times declared that a naked trespasser may acquire a limitation title to land under the ten-year statute. Smith v. Jones, 103 Tex. 632 [132 S. W. 469, 31 L. R. A. (N. S.) 153], Craig v. Cartwright, 05 Tex. 413, and Word v. Drou-thett are among the decisions so holding. It was not the purpose of Stevens v. Pedregon to overrule this established holding of the court, though there is an expression in Chief Justice Brown’s opinion that is to some extent confusing. The ‘claim of right’ to which the statute refers simply means that the entry of the limitation claimant must be with the intent to elaim the land as his own, to hold it for himself; and such must continue to be the nature of his possession. That it is necessary that his entry upon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten-year limitation statute.”

Without further comment on this proposition, we agree with the Supreme Court.

The further proposition is advanced that the court was in error, because the testimony was insufficient. The above assignments are overruled.

The fourth assignment challenges the action of the lower court as error in rendering judgment for plaintiffs, because Emma Fowler was a minor and pleaded and proved her minority for the first five years of plaintiffs’ pretended possession, to wit, from June, 1872, to June, 1877. It will be sufficient to say that at the time spoken of the appellant had no elaim of any kind, by paper title or in any other way, to any of the land in controversy. The fact is that after Mrs. Fair-child, who married Fowler, died in 1908, the appellant married Fowler, and as it was shown, conclusively, that the land was the separate property of Mrs. Fairchild, and that Fowler had no title to the same, and was only living there with his former wife, and continued to occupy the same with his present wife until 1915. It is impossible for this court to discover how the minority of the appellant could figure in the case, for the reason that even appellant’s husband, by and through whom only she was in possession of the land, had not even intermarried with Mrs. Fairchild during the time and including the time between 1872 and 1884, at which time appellant seeks to plead her minority. In other words, it is impossible for this court to understand how the minority of the appellant in this case would be pertinent to any issue in this case. The court rightly rendered judgment for appellees, and the assignment is overruled.

The fifth assignment is as follows:

“The eeurt erred in admitting in evidence the federal court judgment as; see bill of exception No.”

It is not clear to this court for what reason the federal court judgment was introduced, presumably, however, to fix the location of the land or for purposes of description. In any case, there was no error in its admission, and the assignment is overruled.

The court, in our opinion, correctly tried the case, and gave to appellants all their rights, and, finding no error committed by that court, the judgment is in all things affirmed.
      @=»For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    OLD FAITHFUL OIL CO. v. McGIVERAN.
    (No. 5933.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1918.)
    1. Appeal and Error <&wkey;301 — Review—Assignments of Error without Basis in Motion for New Trial.
    Assignments of error, finding no basis in the motion for new trial, cannot be considered.
    2. Appeal and Eeeob <&wkey;230 — Reservation of Grounds of Review — Request for Peremptory Instruction and Objection to Charge.
    Where a peremptory instruction was not requested by plaintiff at the proper time, and its refusal excepted to, and plaintiff did not object to the court’s charge, plaintiff cannot complain of such charge or the court’s refusal to give a peremptory instruction for plaintiff.
    3. Appeal and Error <&wkey; 1039(6) — Pleadings —Fundamental Error.
    Where it cannot be said that the answer discloses no defense, fundamental error is not apparent from the pleadings; trial having resulted in verdict for defendant.
    Appeal from District Court, Bexar County ; J. T. Sluder, Judge.
    Suit by the Old Faithful Oil Company against John T. McGiveran. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    McAskill, Simmang & Mauermann, of San Antonio, and W. W. Holland, of Washington, D. C., for appellant. Ball & Seeligsón, of San Antonio, Ed. H. Cassells, of Chicago, Ill.,' and C. W. Trueheart, of San Antonio, for appellee.
   MOURSUND, J.

This is a suit by appellant, a corporation, against appellee, its president. Appellant alleged that appellee was withholding from appellant a certain deed made to it by appellee and B. F. Nysewan-der, Jr., and by failing to record said deed as directed, appellee had damaged appellant in the sum of $150,000, the consideration recited in said deed. It is further alleged: That appellee, while president of appellant company, assumed control of its operations, and, without the consent of its board of directors, began a system of wildcatting, sinking a deep well in unexplored strata, same proving a dry hole, and in sinking of which appellee incurred debts against appellant’s property in the sum of about $3,000, said debts being afterwards paid by appellant. That appellee misappropriated $5,000 of appellant’s money, handling same in a manner expressly prohibited by its by-laws, in that he deposited same in a bank other than the bank used by appellant and withdrew same over his signature, using same either personally or in wildcatting for appellant. That among said moneys so misappropriated were the following amounts received for stock from the following parties: $500, H. H. McLean ; $500, Eva Lee Hunt; $1,000, Nathaniel R. Losch; $500, Robert A. Black; $10, Isadore Howitz; $10, Walter F. Johnson; $30, G. R. Stallworth; $30, Olof Ogren— these amounts being feloniously embezzled by appellee or else withdrawn by appellee upon false, fraudulent, and forged cheeks. That appellee, after receiving for appellant $500 from one Woessner and $1,500 from H. H. McLean for appellant’s stock, without authority, turned said $500 back to Woessner, receiving back the stock, and himself embezzled said $1,500, returning with same to Chicago. That appellee also appropriated certain small amounts belonging to appellant to his own personal use, among same being an item of $125 out of $500 worth of stock sold to one Rallston. Appellant further alleged that, it had both a common-law and a contract lien upon certain 5,000 shares of its capital stock belonging to appellee, and asked a decree protecting its title to the land covered by the deed before mentioned, and awarding it recovery for its debt with interest, together with foreclosure of its said lien.

Appellee, in his second amended original answer, alleged that he had been holding the deed referred to at the request of B. F. Nyse-wander, Sr. and Jr., and now tendered same to appellant to whom it belonged; that the drilling of the deep well referred to was undertaken by B. F. Nysewander, Jr., prior to the time appellee came to Texas, and when he came and took charge, said well was continued by him with the sanction of the Nyse-wanders, Sr. and Jr:, various amounts being spent on behalf of same, as well as in settlement of debts previously incurred by the said Nysewanders for the benefit of appellant company, all of same being done by appellee with the knowledge, consent, and acquiescence of the Nysewanders, Sr. and Jr.; they being the other two directors composing the directorate of appellant company along with appellee, its president, and such expenses not being objected -to by the other directors until long after the well proved to be non-producing; that appellee, while acting as president of appellant company, received the total sum of $3,008.70 for and on behalf of the company, and as president, and with the sanction of his codirectors, he in good faith expended said entire amount for and on behalf of the company, with the exception of $9.11 remaining on deposit to the credit of the Old Faithful Oil Company; that the Woessner stock was merely sent on approval, and was rejected by Woessner without remittance of money; that $1,500 worth of stock was issued to H. H. McLean in payment of commissions earned by him in the sale of stock for appellant company, and that appellee never received any money from McLean for stock referred to; that the $125 claimed by appellee out of $500 worth of Rallston stock was retained by appellee as commission due him on the sale of said stock.

In its first supplemental petition, appellant alleged that it was incumbent upon B. F. Nysewander, Jr., and J. T. McGiveran to place on the deed above referred to $100 worth of revenue stamps,'and since the former was claimed to have given the latter his half thereof, it sought recovery of the further sum of $100.

In its trial amendment, being filed in response to appellee’s special exceptions, appellant specifically alleged the various items going to make up the $5,000 claimed by it to have been misappropriated by appellee. It also alleged in detail the deposits made by appellee to the credit of the Old Faithful Oil Company, and the withdrawals of said deposits by appellee. The balance of the allegations in this petition are immaterial amplifications of appellant’s original allegations.

In his trial amendment, filed in response to special exceptions of appellant, appellee alleged that the Old Faithful Oil Company was first operated as a Delaware corporation, and upon its incorporation in Texas both debit and credit accounts of the former corporation were continued by agreement of the three directors and sole stockholders, the two Nysewanders and appellee. It was further alleged that when appellee discovered the extravagant expenditures of B. F. Nyse-wander, Jr., as manager of appellant company, and his illegal appropriation of $2,400 of its money, appellee himself assumed control of the company’s affairs, with the consent of the other directors. Appellee further made a counterclaim for $783, same being railroad fare and hotel bills paid by ap-pellee while on appellant’s business. In' addition to this appellee filed a first supplemental answer containing general denials.

The trial resulted in a verdict in favor of appellee as to appellant’s suit, and against appellee on his counterclaim, and judgment was entered in accordance therewith.

Objection is made to the consideration of the assignments of error for the reason that, instead of using the paragraphs of the motion for new trial as the assignments, formal assignments were thereafter filed, which are c-pied in the brief, and which it is contended differ essentially from the grounds urged in the motion for new trial.

The second, sixth, seventh, eighth,, ninth, eleventh, and twelfth assignments find no basis whatever in the motion for new trial, and cannot be considered. City of San Antonio v. Bodeman, 163 S. W. 1043. The other assignments complain of the failure to give a peremptory instruction and of the charge of the court, and it would be profitless to determine whether they are supported by the motion for new trial, for there is another objection to them which requires that they be overruled. The record fails to show that a peremptory instruction was requested, except that mention thereof is made in the motion for new trial, and fails to show that it was presented at the proper time and its refusal excepted to. The record does not contain any objections by plaintiff to the court’s charge. Under these circumstances it must be held that plaintiff cannot complain of the court’s charge or his refusal to give a peremptory instruction in his favor.

It cannot be said that the answer discloses no defense, and therefore it cannot be contended that fundamental error is apparent from the pleadings. Johnson v. Hall, 163 S. W. 400. There being no fundamental error apparent, the judgment will be affirmed.

Affirmed.
      cgz^For other oases see same topic and KEYrNUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    BURROW-JONES-DYER SHOE CO. v. GERLACH MERCANTILE CO.
    (No. 1254.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 9, 1918.)
    1. Garnishment <&wkey;7 — Jurisdiction-Judgment in Rem.
    A judgment in rem secured against a nonresident by publication after attachment and garnishment proceedings against his property within the state, binds only the property attached, and does not support garnishment proceedings instituted after the entry of such judgment in rem.
    2. Garnishment (&wkey;183 — Judgment in Rem— Form.
    The proper judgment in attachment and garnishment proceedings against a nonresident not personally appearing would be to limit the judgment’s execution to the specific property attached or garnished.
    3. Garnishment <&wkey;7 — Judgment to Support.
    Rev. St. 1911, art. 271, § 3, authorizing garnishment proceedings after judgment, refers to a personal judgment upon which execution might issue.
    4. Garnishment <&wkey;175 — Judgment Against Garnishee.
    There can be no valid judgment against a garnishee without a valid judgment against the principal defendant.
    Appeal from Hemphill County Court; Hon. J. L. Jennings, Judge.
    Garnishment proceedings by the Burrow-'Tones-Dyer Shoe Company against the Ger-laeh Mercantile Company. Judgment for .garnishee, and plaintiff appeals.
    Affirmed.
    Fisher & Palmer, of Canadian, for appellant. Baker & Willis and Hoover & Dial, all of Canadian, for appellee.
   BOYCE, J.

Appellant, Burrow-Jones-Dyer 'Shoe Company, obtained judgment on nonresident notice by publication against James Margetts, with foreclosure of certain attachment liens, and also a judgment against certain garnishees on garnishment issued before rendition of the judgment against Mar-■getts. After the rendition of such judgment .against Margetts appellant secured the issuance of garnishment against appellee Ger-lach Mercantile Company under the provisions of section 3, art. 271, Revised Statutes, which provide for issuance of garnishment after judgment. After this garnishment proceeding had been tried in the justice court and on appeal to the county court the appel-lee pleaded that the court was without jurisdiction to try the garnishment loroceeding because there was no- such judgment against Margetts as w'ould support the garnishment proceeding against it, and this plea was sustained by the county court, and this appeal is from such judgment of the court below.

The court, in the original suit against Margetts, did not acquire jurisdiction to render a personal judgment against him. Its jurisdiction was only to proceed in rem against the property seized by its processes of attachment and garnishment and incidental to this right to ascertain and declare the amount of the indebtedness owing by Margetts to the plaintiff in the suit in satisfaction of which the court had the power to sell the'property of the said Margetts seized by it and then in custodia legis. The judg-. ment rendered could not, however, be personal. It binds only the property seized, and cannot be made the basis of the issuance of other process against any other property. Black on Judgments, §§ 229, 230; Stewart v. Anderson, 70 Tex. 588, S S. W. 295; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 373; R. C. L. vol. 15, p. 642. The proper judgment in an attachment and garnishment proceeding against a nonresident not personally appearing would be to limit the execution of such judgment to the specific property which had been taken under-such processes. Goodman v. Henley, 80 Tex. 499, 16 S. W. 432; Wilson Hdwe. Oo. v. Anderson Knife & Bar Co., 22 Tex. Civ. App, 229, 54 S. W. 928; Austin National Bank v. Bergen, 47 S. W. 1037; Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co., 189 S. W. 789; Berry v. Davis, 77 Tex. 191, 13 S. W. 978, 19 Am. St. Rep. 748; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931. And while we held in the ease of Studebaker Harness Co. v. Gerlach Mercantile Co., 192 S. W. 546, that the failure of the judgment to so limit it does not render it absolutely void, and it might be held valid in so far as its enforcement against the property of which the court then had jurisdiction was concerned, we distinctly recognized the principles above announced. A garnishment after judgment is a species of execution appropriate to the seizure of certain kind of property of the defendant, and the judgment referred to in section 3, art. 271, of the Revised Statutes, upon which garnishment process may be issued, is evidently such personal judgment as would authorize the issuance of an execution thereon. Friendman v. Early Grocery Co., 22 Tex. Civ. App. 285, 54 S. W. 278. In recognition of these principles it has accordingly been held that a judgment in rem will not support a garnishment. 20 Cyc. 981; Weston v. Beverly, 10 Ga. App. 261, 73 S. E. 404; Gilcreest v. Savage, 44 Ill. 57.

There could be no valid judgment against the garnishee, unless there is a valid judgment against the defendant, which is the foundation of the garnishment proceeding. Sun Mutual Insurance Co. v. Seeligson, 59 Tex. 4; Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co., 189 S. W. 787.

The judgment against Margetts was only a judgment in rem, and could only affect the property in the custody of the court at that time, and we think the court below correctly held that this garnishment proceeding cannot be maintained on such judgment, and the judgment of the court below will be affirmed.

HUFF, O. J., not sitting, being absent at Austin, serving with committee of judges considering applications for writ of error.
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author: KING, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MUMMEY et al.
    (No. 282.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 26, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Appeal and Error &wkey;>742(3) — Assignment op Error — Statement Showing Action op Trial Court — Rule op Court.
    Objection to consideration of an assignment of error that it violates rule 31 for the Courts of Civil Appeals (142 S. W. xiii), in that the statement subjoined does not quote from the record the trial court’s action on special demurrer to the petition, is well taken, where it would require a search of the record to determine what action the trial court took.
    2. Master and Servant &wkey;>401 — Employers’ Liability Act — Pleading—Allegation op Notice “as Soon as Practicable’’ — “In Due Time.”
    In suit against the Texas Employers’ Insurance Association under the Texas Employers’ Liability Act of 1913 (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 5246h-5246zzzz]), the allegation in the petition that notice of the injury had been given the employer and the insurance association “in due time” was equivalent to an allegation that it was given “as soon as practicable,” as required.
    [Ed. Note. — For other definitions; see Words and Phrases, First and Second Series, As Soon as Practicable.]
    3. Master and Servant <&wkey;398i — Employers’ Liability Act — Notice oe Injury — “As Soon as Practicable.”
    Yerbal report of injury to a servant, made a day or two before his death to his foreman, the proper person to receive it, satisfied the Employers’ Liability Act of 1913, pt. 2, § 4a (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246ppp), requiring notice of injury “as soon as practicable,” which does not mean “as soon as possible”; the word “practicable” importing a difference, and meaning ordinarily that the thing must be done as soon as reasonably can be expected.
    4. Master and Servant <&wkey;404 — Employers’ Liability Ac# — Evidence.
    An injured servant’s report of his injury to his foreman having been verbal, in his parents’ action for his death under the Employers’ Liability Act of 1913, it was proper to hear the testimony of witnesses, the foreman, and another, to establish that the report of injury was made, and its contents.
    5. Master and Servant <&wkey;>405 (1) — Employers’ Liability Act — Evidence.
    In a parents’ action, under the Employers’ Liability Act of 1913, for death of their son in service, reports of the injury made by the employer to the Industrial Accident Board were admissible, and constituted prima facie evidence of the statements in them.
    6. Appeal and Error <&wkey;1010(l) — Review-Duty of Trial Court to Determine Effect of Testimony.
    It is the duty of the trial court to determine the effect of the testimony not of the Court of Appeals.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by Henry Mummey and another against the Texas Employers’ Insurance Association. From a judgment for plaintiffs, defendant appeals.
    Judgment affirmed.
    Harry P. Lawther, of Dallas, for appellant. James A. Harrison, of Beaumont, for appellees.
   KING, J.

Appellees filed suit against the appellant, alleging that they were the father and mother of Charles Mummey, deceased, who died unmarried and without issue; that on December 31, 1914, their son, Charléis Mummey, while in the employment of the Texas Company, slipped and fell, coming down with great force upon an iron pipe line laid on top of the floor, by which he was bruised and injured, resulting in an abscess which caused his death on February 25, 1915. The Texas Company, a large employer of men, was a subscriber to the Texas Employers’ Insurance Association under the terms of the Texas Employers’ Liability Act of 1913. It was alleged that Charles Mum-mey and appellees had notified both the said Texas Company and- the insurance association in due time of said injury, and that ap-pellees had made claim for their damages within six months after the death of their son, and filed same with the Industrial Accident Board. The 'board made its final ruling, allowing the claim, and appellant refused to abide by same, and required ap-pellees to bring suit. Appellant answered by general demurrer, special demurrer to the want of any allegation in the petition that notice of the injury of said Charles Mummey had been given to the association or its subscribers “as soon as practicable” after the happening of the accident, as required by section 4a, pt. 2, of the act, general denial, special denial that the death of said Charles Mummey resulted from the injury claimed. The cause was tried by. the court without a jury, and judgment was rendered in favor of appellees for the sum of $9.72 per week for 360 weeks, beginning January 8, 1915. aggregating $3,499.20, the weekly payments to bear interest at the rate of 6 per cent, per annum. Appeal has been perfected to this court.

We are met with an objection from appellees to the consideration of the first assignment of error, which complains that there was no allegation in the petition of plaintiffs that notice of the injury to the deceased had been given to the association or to its subscriber, as soon as practicable after the happening of the accident, because the same violates rule 31 (142 S. W. xiii) of this court, in that the statement subjoined does not quote from the record the action of the trial court upon this special demurrer as to whether it was called to the attention of the court, sustained, or overruled. The objection is well taken, as it would require a search of the record to determine what action the trial court took upon the special demurrer. Taking it for granted, however, that the record would disclose that the exception was overruled and proper exceptions reserved, we have decided that the allegations in plaintiffs’ petition that notice had been given in due time was equivalent to an allegation that it was given as soon as practicable.

The consideration of but two questions is necessary to a decision of the matters raised by appellant: (1) Was appellant notified of the injury as soon as practicable after the happening of the alleged accident; and (2) is there evidehee in the record sufficient upon which to base the judgment?

On January 14th deceased did not return to his work, Mr. Simpson, his foreman, testifying that some one telephoned him that deceased was sick. William Laufenberg testified that he was the person who telephoned to Simpson, and that he did so at the request of Mrs. Mummey, and that he told Simpson that deceased was sick and had been hurt and could not come to work, but that he did not tell Simpson where or how deceased got hurt. Charles Mummey died February 25, 1915, and Mr. Simpson, Ms foreman, testified that deceased’s brother, Clyde Mum-mey, came to Mm and told witness that Ms brother Charles was in the hospital, and the doctor said be bad received an injury, and asked whether or not he knew anything about him getting hurt. Witness thereupon went to the hospital, and according to the witness Simpson reported to him that while he was dumping red lead from kegs into the soap mixer he slipped and fell and hurt himself; that he understood deceased to say that he hurt his side; that he asked deceased why he did not report to him at the time it happened, and he said he did not think it would amount to anything, and he did not think it worth while to make a report of it.

Clyde Mummey testified that his brother, the deceased, reported to Mr. Simpson, and that he heard him tell Simpson that he slipped and fell straddle of the pipe, but the abscess at that time had moved up in Ms left side; that the original bruise was between the legs; that he slipped and fell stradde of that iron pipe.

The verbal report of the injury a day or two before the death of the deceased to his foreman, Simpson, who the evidence shows was the proper person to receive the report, satisfies the law as required by part 2, § 4a, of the Act of 1913. “As soon as practicable” does not mean as soon as possible, the word “practicable” importing a difference according to the circumstances, and meaning ordinarily that the thing must be done as soon as reasonably can be expected. Furthermore, the record discloses that no prejudice resulted by virtue of the report not having been made sooner, because it is agreed by the parties that the deceased worked alone in a room, and that no eyewitnesses could be had to the transaction, and therefore no investigation could have been made by the company as to the accident itself. The record further discloses that the deceased had the very best medical attention obtainable, and that everything that medical skill could do was done for him. The report being verbal, it was proper to hear the testimony of Simpson and Clyde Mummey to establish that the report was made, and the contents of the report.

On February 27th, two days after the death of Charles Mummey, the Texas Company made a report to the Industrial Accident Board, as required by the act of 1913, and upon a blank furnished by the board, and in said report stated that the de'ceased was an employs,- being an oil- refiner, and that the accident happened at the plant of the company at Port Arthur on December 31, 1914; that he was hurt in the left side and in giving the nature of the injury stated that he was bruised internally, had a large sore in left groin, which they understood had about seven openings, and which issued a discharge which could be smelled the moment one entered the room, and gave the name of the attending physicians who treated the deceased, and that deceased died on the morning of February 25, 1915. In a supplemental report by the Texas Company to the Industrial Accident Board, in giving the extent of the injury, the company used the following language:

“Injured December 31, 1914. Incapacitated from January 13th to date of death, February 25, 1915.”

The record discloses that no objection was made to the introduction by plaintiffs of these reports. They were admissible, and constituted prima facie evidence of the statements therein contained. It has been held by the Supreme Court of Michigan that a report to the Industrial Accident Board by the employer, made before the death of the employé, and at a time when he had ample opportunity to investigate and all sources of information were fresh and available, stating that the employé was injured by running a nail into his hand while throwing wood into a furnace, and a second report, after the death, stating that he was injured by scratching Ms hand on a nail, constituted prima facie evidence that the accident and injury occurred, as reported, and supported a finding of the board that such injury arose out of and in the course of the employment.

The Michigan Act with reference to reports required to be made by the employer is almost word for word like the Texas Act of 1913 upon this subject. Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771; First National Bank v. Industrial Commission, 161 Wis. 526, 154 N. W. 847. Honnold on Workmen’s Compensation says:

“The report of the accident made by the employer, as required by statute, is competent prima facie evidence of the facts stated therein, subject to be explained or contradicted.”

The testimony shows that deceased was suffering from a perirectal abscess, which produced septic toxemia, which resulted in death. The testimony of the physicians shows that a perirectal abscess may be the result of several causes, but that it is entirely consistent with an injury as claimed herein.

The trial court having heard the testimony, and there being evidence in the record which shows that the deceased probably died from the accident, as reported by the employer, and it being the duty of the lower court to determine the effect of the testimony, we feel unauthorized to disturb the judgment of the trial court, and therefore affirm the case.

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author: FLY, C. J.

text:
    INTERNATIONAL & GREAT NORTHERN RY. CO. v. KANSAS CITY PRODUCE CO.
    (No. 5932.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 19, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Carriers <&wkey;172 — Connecting Carriers— Through Shipment — Bill of Lading.
    A- connecting carrier by acting on and acquiescing in a bill of lading for a through shipment issued by the initial carrier, receiving the goods, and not issuing a bill of lading of its own, indorses it and makes it its own.
    2. Estoppel <&wkey;5A-KN0WLEDGE oe Facts.
    A shipper is not estopped by carrier’s customary dealing with his previous shipments, of which he did not know and by exercise of ordinary diligence could not have known.
    3. Carriers <&wkey;90'> — Bill of Lading — Drafts Attached.
    Drafts attached to bills of lading amount to positive instructions to carrier to collect before delivering goods.
    4. Carriers <&wkey;76 — Wrongful Delivery-Action — Parties.
    The shipper of goods consigned to himself with draft attached to bill of lading, not having parted with the ownership, may sue the carrier for delivering them to another without payment of the draft.
    5. Carriers <&wkey;90 — Conversion—Wrongful Delivery. '
    The carrier delivering goods shipped without production of the bill of lading and payment of the draft attached is liable for conversion.
    6. Carriers <&wkey;94’(4) — Conversion—Measure of Damage.
    The market value of goods at the place of their conversion by a carrier is the measure of damages.
    7. Carriers &wkey;>158(l) — Conversion — Measure of Damages.
    Provision in bill of lading as to the value of the property being that at point of shipment, having reference only to loss or damage, does not affect measure of damages for conversion.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by the Kansas City Produce Company against the International & Great Northern Railway Company. From an adverse judgment, defendant appeals.
    Affirmed.
    Cobbs & Cobbs and Davis & Eskridge, all of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Davis & Long, of San Antonio, Hart & Woodward, of Austin, and Taliaferro, Cunningham & Birk-head, of San Antonio, for appellee.
   FLY, C. J.

This is a suit for damages alleged to have accrued through the unauthorized surrender of large shipments of eggs to S. Guilhem & Co., without collecting certain drafts to cover the price of the eggs, which were attached to the respective bills of lading, the said eggs being converted to the use of said Guilhem & Co. It was alleged that the shipments were made by ap-pellee, I. Tobias, doing business under the name of Kansas City Produce Company, and that one shipment of the eggs consisted of 94 cases which had been sold by appellee to Charles S. Guilhem & Co., of Austin, Tex., at $0.10 a crate, and were shipped on March 13, 1914; that 82 cases of eggs were shipped on March 21, 1914, from San Antonio to Chicago, consigned to appellee, which were worth $5 a crate; that on March 23, 1914, 212 eases of eggs, consigned to appellee at Chicago, were delivered to appellant for shipment; that on March 27, 1914, 100 cases of eggs were delivered to appellant, and on March 28, 1914, 156 crates of eggs were delivered to the Galveston, Harrisburg & San Antonio Railway Company at Seguin, and on March 30, 1914, 249 crates of eggs were delivered to appellant for shipment, each shipment of eggs being consigned to appellee at Chicago, Ill., except those shipped on March 2Sth, which were shipped to New Orleans; that the eggs delivered to the carrier at Seguin were delivered to appellant at San Antonio; that the eggs, all being consigned to appellee, were, without authority, delivered to Charles Guilhem & Co., and converted by them to their use and benefit. Guilhem & Co. and others were made parties defendant, all being dismissed from the suit, except appellant and the firm named. The trial was by jury resulting in a verdict and judgment in favor of appellee as against the firm and appellant for $5,033.80, and for the same sum in favor of appellant against the firm. Only the railway company appealed.

The evidence sustains the material allegations of the petition, showing that appellant had, without warrant or authority, delivered the eggs described to the firm of Charles S. Guilhem & Co., who had converted them and deprived appellee of their value.

The first assignment of error assails the action of the court in permitting the bill of lading issued by the Galveston, Harrisburg & San Antonio Railway Company for the 156 crates of eggs, shipped from Seguin on March 28, 1914, to be read, for the reason that it was ex parte, hearsay, irrelevant, and immaterial, because not issued by an agent of appellant. There is no force or merit in the assignment. That the eggs were shipped over the line of the initial carrier from Seguin, and then delivered to appellant, is unquestioned, and the objections to the bill of lading were untenable. Appellant received the goods as a connecting carrier, and negligently permitted them to be converted by another. The authorities cited have no bearing on the facts of this case,

The second assignment of error is based on the assumption that the shipment of 156 crates of eggs from Seguin were never delivered to appellant, but it was abundantly proven that they were delivered to appellant, and consequently the assignment is not meritorious, and is overruled. It was practically admitted in the answer of appellant that the shipment from Seguin was delivered to it. It did not deny receiving the shipment, but pleaded as follows:

“And your defendant would further show that it was a connecting carrier in the shipment from Seguin, Tex., and that the liability of this defendant is regulated by the laws of Congress of the United States, this shipment being billed to other states of the United States, with privilege to stop in transit to finish loading.”

The evidence shows that appellant acted upon and acquiesced in the bill of lading given by the initial carrier, and did not tender a hill of lading to appellee in lieu of the one issued by the initial carrier. The shipment was a through one from Seguin to Chicago, and appellant could have issued a bill of lading of its own when the eggs were delivered to it, but it did not do so, but accepted the shipment under the bill of lading already .given, thereby indorsing and making it its own. Railway v. Turner, 42 Tex. Civ. App. 532, 94 S. W. 216.

The evidence did not show that appellee knew, or by the exercise of ordinary diligence could have known, of the manner in which appellant had dealt with Guilhem & Co., in connection with other shipments of eggs consigned to appellee, and it could not have been bound or estopped by such customary dealing. Appellant had no authority to deliver eggs to Guilhem & Co., without collecting drafts attached to the bills of lading. No such orders had ever been received from appellee, and the drafts attached- to the bills of lading amounted to positive instructions to collect the money before the eggs were delivered. Elliott, Railroads, § 1530; Tiedeman, Commercial Paper, § 494.

Appellee had full authority to institute the suit and recover the damages. Appellee had not parted with the ownership of -the eggs, and the right of Guilhem & Co. to the eggs depended upon their payment of the drafts attached to the bill of lading. Railway v. Smith, 84 Tex. 348, 19 S. W. 509; Railway v. Laws, 125 S. W. 973. The fourth assignment of error is overruled.

Even if Guilhem & Co. had been 'named as consignees, they would not have been entitled to delivery of the property until the draft was paid and the bill of lading properly produced, and the carrier would be liable if loss occurred by delivery without payment of the draft and production of the bill of lading. Elliott on Railroads, § 1429a; Railroad v. Commercial Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287; Vaughn v. Railway Co., 27 R. I. 235, 61 Atl. 695. In the present case the eggs were consigned to appellee, and the bills of lading with drafts attached gave no authority whatever for the delivery of the eggs to any one else, without the payment of the drafts. Disregarding those plain instructions, the eggs were delivered to Guilhem & Co., without the drafts being paid, and appellant is liable for the conversion of the property.

The witness Goldstein was properly qualified, and was authorized to swear to the market value of eggs in Austin, and, Austin being the point at which the conversion of the eggs took place, the market value there was the proper measure of damages. Carter v. Railway, 93 S. W. 681; Railway v. Rines, 37 Tex. Civ. App. 618, 84 S. W. 1092. The provision in the bill of lading as to the value of the property being that at point of shipment has reference alone to loss or damage of the property, and not to a conversion of the property by the carrier. The bills of exception do not form a basis for the assignments attacking the measure of damages fixed by the court, or the attempt to bring in review the admission of evidence as to the value of eggs in Austin where the conversion took place. Bill of exceptions No. 13 excepts to the refusal of the court to give a peremptory instruction, and bill of exceptions No. 14 seeks to point out four exceptions to the charge of the court, only one of them touching on the measure of damages, and that referring only to the testimony being insufficient to show market- value in Austin, and further that it “was not a proper location of the fixing of the measure of damages.” Nothing is said as to where the measure of damages should be fixed. When counsel was asked by the court as to the prices in what place the damages were to be ascertained, the reply was made:

“The proper place is largely a question; it is a matter of complicated law as to where it is, and I am making this objection to make myself safe.”

What the witness testified as to market value is not shown by the bills of exception. The invoices were allowed to be used as evidence without objection, as was testimony to the effect that appellee sold the eggs for the sums indicated in the invoices, and those invoices show the exact amount found by the jury. There is no merit in the fifth and sixth assignments of error, and they are overruled.

The judgment is affirmed.
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