author: HALL, J.

text:
    PECOS & N. T. RY. CO. v. PORTER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 22, 1913.
    Rehearing Denied April 26, 1913.)
    1. Process (§ 6) — Amendments—New Cause ox Action.
    The dropping of one plaintiff from a suit, or the adding of another plaintiff, or the elimination of a defendant improperly joined, by filing an amendment to the petition, does not constitute a new cause of action or an abandonment of the original action, and additional service of process is not necessary.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 5; Dec. Dig. § 6.]
    2. Assignments (§ 121) — Injury to Freight —Right oe Action.
    Part owners of a car load of freight, damaged during transit, may assign their claim to one of their number, who may sue for and recover the entire damages in his own name as assignee.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 200-205; Dee. Dig. § 121.]
    3. Abatement and Revival (§ 41) — Assignment oe Cause oe Action.
    An assignment of a cause of action pending the action is proper and does not necessitate a change of parties.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 212-220; Dec. Dig. § 41.]
    4. Pleading (§ 240) — Amendments—Notice.
    Under Rev. St. 1895, art 1188, giving the right to file amended pleadings in vacation, a party is not entitled to notice of the filing in vacation of an amendment, not setting up a new cause of action or injecting new issues, but which merely omits some of the plaintiffs and defendants.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 636-641; Dec. Dig. § 240.] -
    5. Courts (§ 489) — State Courts — Jurisdiction.
    The state courts have jurisdiction of an action against a carrier for the conversion of an interstate shipment, though the shipper has filed a complaint with the Interstate Commerce Commission and the carrier has appeared and answered.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1330, 1333-1341, 1372-1374; Dec. Dig. § 489.]
    6. Abatement and Revival (§ 12) — Pend-ency oe Other Suit.
    A plea of another suit pending, based on the pendency of a suit in a federal court, is not sustainable.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 87-91, 94, 95, 98; Dec. Dig. § 12.]
    7. Evidence (§ 474) — Opinion Evidence — Competency oe Witnesses.
    A witness, who stated on direct examination that he knew the market value of property, and not cross-examined as to his knowledge thereof, was properly permitted to testify to market value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2-196-2219; Dec. Dig. § 474.]
    8. Carriers (§ 94) — Conversion of Freight —Measure oe Damages.
    The measure of damages for the conversion by a carrier of household and kitchen furniture is not market value, but actual value, and, to prove value of household and kitchen furniture, it is not necessary to first establish the fact that there was a market value.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    9. Evidence (§ 474) — Opinion Evidence — Competency oe .Witnesses.
    f.- A witness who positively testifies that he knows the value of household and kitchen furniture is competent to testify to actual value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    10. Carriers (§ 26) — Freight Rate — Inter-, state Rate.
    Where no specific rate from point of origin to destination of a through shipment is provided, and no specific manner of constructing the combination rate for it is prescribed, the lowest combination of rates applicable over the route is the lawful rate for the shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dee. Dig. § 26.]
    11. Carriers (§ 26) — Freight Rate — Interstate Rate.
    Where a commodity rate is named in a tariff between specified points, the commodity rate is the lawful rate and the only one that can be used with relation to such traffic between the designated points, -though a class rate or some combination may make a lower rate.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. § 26.]
    12. Carriers (§ 91) — Conversion oe Freight-Liability.
    Where a terminal carrier of an interstate shipment, through a mistake as to the rate, refused to deliver the goods until a higher -rate than it was entitled to charge had been paid, the refusal amounted to a conversion, especially where the shipper, on the correct rate being ascertained, promptly tendered it, and the measure of damages was the value of the goods at the time of such refusal and not at the subsequent time of tender by the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. § 91.]
    13. Trial (§ 256) — Instructions—Requests —Necessity.
    A carrier, in an action for the conversion of freight, may not complain of any error in an instruction fixing the date of the conversion, in the absence of a requested charge correctly fixing the date.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dee. Dig. § 256.]
    14. Carriers (§ 94) — Conversion of Feeight —' Actions — Evidence — Admissibility.
    In an action against a carrier for conversion of freight, based on refusal to deliver without payment of excessive charges, evidence that the carrier claimed a specified sum to be the true rate per hundred pounds on the shipment was admissible .to show what rate had been demanded.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    15. Appeal and Eebob (§ 204) — Questions Review able — Questions Not Raised in Trial Court.
    An objection to evidence not made in the trial court cannot be raised oh appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.]
    16. Evidence (§ 377) — Private Writings— Admissibility.
    Where, in an action for the conversion of a car load of freight, a witness identified and verified a list of the goods, the list was properly considered by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. § 377.]
    17. Evidence (§ 341) — Documentary Evidence-Findings op Interstate Commerce Commission.
    A certified copy of the findings, opinion, and judgment of the Interstate Commerce Commission is, by Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 14, 24 Stat. 384 [U. S. Comp. St. Supp. 1911, p. 1297]), admissible in evidence in an action involving the question of the true rate for.an interstate shipment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292;.Dec. Dig. § 341.]
    18. Evidence (§ 502) — Opinion Evidence-Examination — Cross-Examination.
    Where a witness testified on direct examination as to the value of property alleged to have been converted, the sustaining of objections to questions on cross-examination, asked to test the accuracy and truthfulness of the witness and to show his credibility, was reversible error, under the rule that where a witness has, on his examination in chief, given his opinion as to value, he may be cross-examined in lull as to his reasons for such opinion.
    [Ed. Note. — For other cases, see Evidence,Cent. Dig. §§ 2306, 2307; Dec. Dig. § 502.]
    19. Witnesses (§ 268) — Cross-Examination —Right to Cross-Examine.
    The right to cross-examine a witness is a substantial one, and it is error to so restrict it as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    20. Commerce (§ 88) — Interstate Commerce Commission — Decision—Conclusiveness.
    A decision of the Interstate Commerce Commission fixing the rate for an interstate shipment is res judicata as between the shipper and the carrier appearing before the commission, and is conclusive in an action against the carrier for conversion, based on its refusal to deliver without the payment of excessive charges.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by 6. H. Porter and others against the Pecos & Northern Texas Railway Company. From an adverse judgment, defendant appeals.
    Reversed and remanded.
    See, also, 56 Tex. Civ. App. 479, 121 S. W. 897.
    Madden, Trulove & Kimbrough, of Amarillo, Carl Gilliland, of Hereford, and Terry, Cavin & Mills, of Galveston, for appellant. Knight & Slaton and S. J. Dodson, all of Hereford, for appellees.

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

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

   HALL, J.

On January 24, 1907, Guy H. Porter filed in the district court of Deaf .Smith county this suit against the Ft. Worth & Denver City Railway Company, the St. Louis & San Francisco Railway Company, and appellant, alleging that about the 11th day of January; 1907, he delivered to the defendants at Fletcher, Old.., one car loaded with horses, hogs, farm implements, household goods, etc,, to be transported to Bovina, Tex.; that the Frisco road contracted with plaintiff to carry the goods and deliver them at Bovina, for an express consideration of 37 cents per hundred pounds, the agreement being in writing and signed by both parties; that there being no scales at Fletcher, the weight of the car of goods, etc., was estimated at 20,000 pounds and the contract price or rate of freight, amounting to $74, was prepaid; that the St. Louis & San Francisco Railway transported and delivered the car to the Ft. Worth & Denver City Railway at Quanah, Tex., which company accepted and transported the same to Amarillo, Tex., under a written contract, and at Amarillo delivered the same to the Pecos & Northern Texas Railway Company, which accepted the shipment and made a contract in writing with the plaintiff to deliver the car to plaintiff at Bovina, Tex., and when the car reached Bovina it was found there was 4,000 pounds excess weight, making $14.80 additional freight chargeable under the contract rate of 37 cents, which additional amount appellee tendered and offered to pay, but that the defendant (appellant herein) refused to accept the amount and demanded freight at the rate of 67 cents per hundred, or about $90, which appellee refused to pay. The petition alleges the value of the property to be $2,500, and claims expense in the sum of $75.05, and prays for actual and exemplary damages. On February 22,. 1908, without other change than adding two more names as plaintiffs to the case* a first amended original petition was filed in which G. H. Porter, B. M. Porter, and L. Cameron are named as plaintiffs. This amendment sets up the same cause of action as the original petition filed by G. H. Porter alone. On March 3, 1908, plaintiffs filed a second amended original.petition against the same three defendants, slightly changing the form of the allegations in the former pleadings, bnt seeking recovery on account of the same car and the refusal to deliver. The Frisco Company made no appearance. The Denver Bailway and appellant answered, demurring to the petition. This demurrer was sustained by the trial court, and, on writ of error to the Court of Civil Appeals for the Second District, the judgment of the trial court was reversed and the cause remanded. See Porter v. Pecos & Northern Texas Ry. Co., 56 Tex. Civ. App. 479, 121 S. W. 897. On the 28th day of October, 1911, plaintiffs’ third amended original petition was filed, in which no other mention is made of the names of G. H. Porter and L. Cameron as parties to the suit, and naming the Pecos & Northern Texas Railway Company as the sole defendant. This third amended original pleading presents a cause of action by B. M. Porter as plaintiff against,appellant alone. The cause of action set out therein is substantially the same as contained in the former original pleadings. Upon the filing of this pleading, appellant filed a motion to dismiss or to continue for want of service, claiming that it was entitled to service because the pleading was a new suit and that the suit as originally brought had been abandoned and abated. Its motion being overruled, appellant filed a first amended original answer, containing demurrers, general and special, plea. to the jurisdiction, general denial, and special pleas. During the trial, plaintiff was permitted by the court to file a fourth amended original petition, be: ing substantially the same cause of action before declared upon, claiming the conversion of divers and sundry articles described in the lists and exhibits attached to the petition. These lists had previously been attached to the third amended pleading. After, the filing of this fourth amendment by plaintiff B. M. Porter, the defendant filed a supplemental answer, containing demurrers and also filed a motion to retax the costs. The demurrers were overruled.

The first assignment of error complains of the court’s action in overruling defendant’s alternative motion to dismiss or continue for service, because the suit, as originally brought, had been abandoned, and because no notice of the new suit and of the amended petition filed in vacation, had been served on defendant. We think there was no error committed by the court in overruling this motion. Dropping the name of one plaintiff from a suit, by an amendment of the petition, does not state a new cause of action nor abandon the suit as originally filed. Mo. Pac. Ry. Co. v. Watson, 72 Tex. 631, 10 S. W. 731; Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303; Pridgen v. McDean, 12 Tex. 420 Neither does adding the name of another plaintiff by an amended petition change the cause of action. Roberson v. McIlhenny, 59 Tex. 617. Elimination of a defendant improperly joined may be by amendment and does not constitute a new cause of action. Texas Midland R. R. Co. v. Cardwell, 67 S. W. 157.

There was nothing improper in the assignment by the part owners of the contents of the eai- to the appellee B. M. Porter, and he had the right to maintain the suit for the recovery of the entire damages in his own name in the capacity of assignee. T. & P. Ry. Co. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562, and while the assignment or cause of action during the pendency of the suit is proper, it does not necessitate a change of parties. Bailey v. Laws, 3 Tex. Civ. App. 529, 23 S. W. 20; Drouilhet v. Pinckard, 42 S. W. 135; Ostron v. Layer, 48 S. W. 1095; Seiter v. Marschall (Sup.) 147 S. W. 226.

Appellant’s remaining contention under this assignment is disposed of in Western Union Telegraph Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312-314, in which Pleasants, Justice, quoting article 1188, Revised Statutes of 1895, says; “This statute confers the right to file amended pleadings in vacation in express terms, and' it is not clear under any proper construction of the article that the provision as to notice applies to any pleading mentioned other than pleas in intervention. It certainly cannot be construed to mean ■ that an amendment filed without notice should have no effect and should be treated as a nullity. Of course, the opposite party would be entitled to notice of the filing in vacation of an amendment setting up a new cause of action or injecting new issues in the case, which would operate as a surprise and present a case he was not prepared to meet, and, under such circumstances, he would be entitled to a continuance at the cost of the party filing the amendment.”

The second assignment insists that its plea to the jurisdiction of the state court should have been sustained because it fully appeared' from the pleadings and the testimony that the federal court alone had jurisdiction of the controversy. It appears from the record that this suit was filed about 10 days after the car of stock and household goods arriv,ed at Bovina; that on October -, 1907, G. H. Porter, L. Cameron, and the plaintiff, as joint comDlainants, filed their complaint with the interstate Commerce Commission, and each of the railway companies hereinbefore named appeared and answered before the Commission. The .Commission made an award, and .on January 9, 1909, plaintiffs filed in the federal court at Amarillo a suit to enforce the award, which suit is yet pending. These facts were offered in support of the plea to the jurisdiction and in abatement; and the questions arising under this assignment were also raised by demurrers, all of which were overruled, and the case proceeded to trial on the merits. Appellant insists, and it cannot be denied, that the freight in question must be classed as interstate commerce.

On the former appeal, the Second Court of Appeals held that the cause of action, as shown by the petition, was simply a suit for conversion (56 Tex. Civ. App. 479, 121 S. W. 897), and that the matter presented for adjudication was not one exclusively within the jurisdiction of the federal court or to be passed upon by the Interstate Commerce Commission. As we understand the duties, powers, and authority of the Interstate Commerce Commission, it has no right to adjudicate a question of damage for conversion, and the issue raised by this assignment has been, in our opinion, settled adversely to appellant’s contention. In St. Louis, San Francisco Railway Co. v. Roff, 128 S. W. 1194, Bookout, Justice, after announcing the rule that the question of jurisdiction between the state and federal courts is one to be determined by the averments of the petition and not by the federal questions presented defensively by the answer, held that, in an action by a shipper against a railroad to recover an alleged rebate on interstate shipments, where the sole issue was as to the meaning of a tariff adopted by defendant, which interpretation is not affected by the Interstate Commerce Law, does not present a federal question, conferring jurisdiction exclusively on the federal courts, and that the state courts have jurisdiction to interpret such a tariff, though it is interstate and established and required by the act of Congress ; and we think the issue has been further definitely settled by the Supreme Court of the United States in G., H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516, where Justice Lamar, delivering the opinion of the court, said: “The real question, therefore, presented by this assignment of error, is whether a state court may enforce a right of action arising under an act of Congress. Statutes have no extraterritorial operation, and the courts of one government cannot enforce the penal laws of another. At one time there was some question both as to the duty and power to try civil eases, arising solely under the statutes of another state, but it is now recognized that the jurisdiction of state courts extends to the hearing and determination of any civil and transitory cause of action created by a foreign statute, provided it is not of a character opposed to the public policy of the state in which the suit is brought. Where the statute creating the right provides an exclusive remedy to be enforced in a particular way or before a special tribunal, the aggrieved party will be left to the remedy given by the statute which created a right. But jurisdiction is not defeated by implication. And considering the relation between the federal and state government, there is no presumption that Congress intended to prevent state courts from exercising the general jurisdiction already possessed by them and under which they had the power to hear and determine causes of action created by federal statute. On the contrary, the absence of such provision would be construed as recognizing that where the cause of action was not penal, but civil - and transitory, it was to be subject to the principles governing that class of cases and might be asserted in a state court as well as those in the United States. This presumption would be strengthened as to a statute like this, passed not only for the purpose of giving a right but of affording a convenient remedy.” This language was used in discussing the Carmack Amendment to the Interstate Commerce Law and in our opinion is applicable to the question under consideration.

Appellant’s third assignment of error is that the trial court erred in overruling the railway company’s plea in abatement because the plaintiff and his coshippers, having elected to proceed before the Interstate Commerce Commission, and the federal court invoking their jurisdiction and judgment in matters pertaining to the controversy, had no right to prosecute this cause before the-state court; and the fourth assignment is-that the court erred in overruling defendant’s special demurrer to plaintiffs’ fourth-amended petition, to the effect that the petition was insufficient because it appeared1 therefrom that plaintiffs’ right, if any, had been adjudicated, in that the petition shows that plaintiff had filed his claim before the Interstate Commerce Commission and had secured an award and that said award is outstanding. The record shows that the shippers, the appellees, did file a complaint before the Interstate Commerce Commission, after delivery of their freight had been refused, setting up the facts and asking that the Commission determine what the correct rate should be; and it -further appears that the complaint states the value of the goods- and chattels contained in the shipment and asks that they be awarded that sum. So much of the complaint as invoked the aid' of the Commission in awarding the complainants damages was manifestly improper, since under the Interstate Commerce Law that body has no authority to award damages for conversion and the report filed by the Commission shows, that this request of' the complaint was disregarded. It further-appears that there was a suit for conversion filed by appellees in the federal court at Amarillo, after the filing of this suit; but the record shows that the federal court suit .has been dismissed by appellees. Even if the federal court proceeding had not been dismissed, it was a suit pending in a foreign-jurisdiction, and appellant’s plea of another-suit was not sustainable. I. & G. N. Ry. Co. v. Barton, 24 Tex. Civ. App. 122, 57 S. W. 292; Harby v. Patterson, 59 S. W. 63. Both the third and fourth assignments are overruled.

The fifth assignment is that the eourt erred in admitting in evidence, over defendant’s objections, the eighth direct interrogatory, to the witness L. Cameron, and the answer of said witness for the purpose of proving the market value at Bovina of each animal in the car at the time of its arrival there or within a few days thereafter, and contends under this assignment that said witness had not sufficiently qualified himself as to his knowledge of the market value at Bovina at the time . of the conversion to make the evidence admissible. The record shows that this witness testified, “There was a market value for such live stock at Bovina, Tex., of which I became acquainted soon after I arrived at Bovina,” and his answer to the question following this stated the value of the live stock in detail. There was no cross-examination as to his knowledge of the market value. He states positively that he knew the market value. We are unable to learn from the record how his information was obtained, and we must presume that he had from proper sources and in a proper manner obtained the knowledge which qualified him to state such market value. As was stated by Judge Stayton, Chief Justice, in Hardin v. Sparks, 70 Tex. 429, 7 S. W. 769: “The presumption, in the absence of a statement to the contrary in a bill of-exceptions, is that the court satisfied himself by proper inquiry as to the competency of the witness to testify as an expert, and the mere statement that the objection was on the ground that the witness had not shown himself qualified to testify as an expert is not enough to repudiate this presumption. A party who seeks to raise such question should show in a bill of exception, or in some proper manner, what examination, or that no examination, was mide, to test the qualification of a witness to testify as an expert.” So far as the record shows, this witness may have, upon the open market, at Bovina, upon his arrival- there, bought and sold live stock of the kind and character involved in this suit and may have been eminently qualified thus, or in other ways, to answer the question. The question of the qualification of a witness to testify as an expert is one primarily for the trial judge, and unless it is clear from the record that his discretion has been abused to the prejudice of the complaining party, this court cannot revise the ruling.

By the sixth assignment, appellant complains that the court erred in admitting the interrogatory to the witness Cameron, and the answer, in which he testifies as to the actual value of the household goods. The petition alleges “that the articles of property contained in said ear belonging to each of the owners thereof are fully set out and described, together with the value of each article, in Exhibits A, B, and C, hereto attached, and to which reference is here particularly made; and that the value of the property in said ear was $3,000.” The interrogatory complained of is as follows: “Did you have any household or kitchen furniture in said car, and, if so, state, if you can, the value of it at Bovina, Tex., at the time of its. arrival, and if you answer in the affirmative, then give the actual value of each article of such household and kitchen goods at the time and place above indicated.” Answer: “Yes, I had household and kitchen furniture in said car. Yes, I know the'value, and for the actual value I refer you to the list attached.” The objection urged to the interrogatory was that it called for, and the answer gave, the actual value of the property and plaintiff sued for the market value at Bovina; that the evidence is not supported by the pleadings and the witness does not qualify himself; and, further, it had not been shown by the witness that there was no market value for such property at Bovina. We think the witness showed himself qualified by his positive statement that he knew the value. Reference to the petition shows that he did not sue for the market value, but the allegation is one of “value” in general terms. In our opinion, it was not necessary, in order to prove value of the household goods, to first establish the fact that there was a market value for such property. It is settled in this state that the measure of damages for household and kitchen furniture (which is necessarily secondhand, if .sold by the owner) is not the market value, but the actual value. I. & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Benedict v. C., R. I. & P. Ry. Co., 91 S. W. 811; Wells Fargo Express Co. v. Williams, 71 S. W. 314.

It is also contended under this assignment that the court erred in permitting the plaintiff to prove the actual value of the household goods at the time the car arrived at Bovina, which was about January 13,1907, because the true measure of damages is the value on November 9,1907, at which time the record shows the goods were sold by appellant and immediately prior to the sale the correct amount of freight, as determined by the Interstate Commerce Commission, was tendered. This contention raises a question of considerable difficulty. The goods arrived in Bovina on January 13, 1907. Appellees had previously paid the freight at the rate of 37 cents per hundred pounds on an estimated weight of 20,000 pounds. After leaving Fletcher, Okl., the car was weighed, and it was ascertained that the true weight was 24,000, and upon arrival of the car at Bovina, appellees tendered the sum of $14.80, being the additional amount due for the 4,000 pounds excess at the agreed rate of 37 cents. This tender was refused by appellant’s agent at Bovina, upon the ground that the proper rate was 67 cents, which appellees refused to pay. Appellant’s agent subsequently named a rate of 65 cents, and. finally decided definitely upon a rate of 68 cents and refused to deliver the goods until the payment of the freight upon that basis. Whereupon, appel-lees, on the 19th day of October, 1907, as hereinbefore stated, filed their complaint with the Interstate Commerce Commission, and on January 5, 1909, the Interstate Commerce Commission decided that the correct rate between Fletcher, Okl., and Bovina, Tex., was 62 cents. In the month of November, 1907, the appellees tendered freight upon said shipment at the rate .of 62 cents per hundred, which was refused by appellant unless appel-lees would also pay certain demurrage charges which had accrued during the controversy over the rate. The findings of the Interstate Commerce Commission are, in part, as follows: “(1) Rate charged by defendants on plaintiffs’ shipment of emigrant outfit from Fletcher, Okl., to Bovina, Tex., of 68 cents per hundred pounds, found unreasonable to the extent that it exceeds the combination of locals of 41 cents per hundred pounds, now applying over the route the shipment moved. (2) Reparation awarded to complainants for excessive amount collected on their shipment of emigrant outfit, plus whatever amount was collected by sale for demurrage or warehousing. (3) The Pecos & Northern Texas Railway Company is required to keep in force for at least two years the local rate which now results in a combination rate of 41 cents per hundred pounds on emigrant outfit from Fletcher to Bovina. (4) The local rate at the time the shipment moved via the route it traversed was 62 cents per hundred pounds. This lawful rate was never quoted, assessed,- or charged upon the shipment, and all rates that were quoted, assessed, or charged were excessive by reason of exceeding this lawful rate in addition to being excessive because unreasonable.”

These findings were evidently adopted by the jury in the rendition of the verdict, and the Interstate Commerce Raw makes them prima facie evidence of the, facts therein declared. It appears from the report of the Commission that the rate per hundred pounds applicable to this shipment from Fletcher, Okl., to Amarillo, Tex., was 37 cents, and this rate was not disputed before the Commission and, is not controverted in this case, but the rate from Amarillo to Bovina found by the Commission to be 25 cents, which, added to the rate from Fletcher to Amarillo of 37 cents, aggregating a total through rate of 62 cents, for the reasons therein stated, was the one that did in law apply on the shipment and should have 'been the one charged by the delivering carrier, the Pecos & Northern Texas Railway Company, at Bovina. So far as the record discloses, however, this rate was never quoted by the delivering carrier, etc., but that finally a rate of 68 cents was charged and collected.

It further appears from the reports of the Commission that the appellant contended for a 31-cent rate between Amarillo and Bovina, under their item No. 5 on freight class R shipped over 80 miles. In discussing this item, the Commission said: ‘‘The act to regulate commerce contemplates not only just and reasonable rates, but plain and intelligible rates; complication, intricacy, and involution invite, if they do not intend, injustice, inequity, and discrimination. A rate or a tariff published and filed with the Commission cannot be held to be legal simply because of that fact. It must also be plain and intelligible. The Commission has emphasized this time and again in as many varying ways as the constantly recurring tariff inconsistencies have necessitated.” It seems to be the rule that if no specific rate from point of origin to destination of a through shipment is1 provided, and no specific manner of constructing the combination rate for it is prescribed, the lowest combination of'rates applicable via the route over which the shipment moves is the lawful rate for that shipment.

The further rule of law applicable to this case seems to be that, where a commodity rate is named in a tariff upon a commodity and between specified points, such commodity rate is the lawful rate and the only rate that can be used with relation to that traffic between those points, even though a'class rate or some combination may make a lower rate. The naming of a commodity rate on any article or character of traffic takes such -article or traffic entirely out of the classification -and out of the class rates between the points to which such commodity rate applies.

We admit that, while there is considerable conflict of authority upon the proposition that where a connecting carrier, through a mistake as to the rate, refuses to deliver the goods until a higher rate than the carrier is entitled to charge has been paid, such refusal does not constitute a conversion if the rate demanded was honestly made. -The authorities upon this proposition are numerous; but, so far as we have been able to find, all of them were cases where the question of interstate rates, as determined by the Interstate Commerce Commission, was not involved. Our conclusion from this record is that it being the duty of the appellant to file clear and intelligible tariffs with the Interstate Commerce Commission, specifying its rates, it was its primary duty to know what was the ’ proper rate to be charged in this case. By reason of its failure to file clear and definite rate sheets and post the same, as required by the Interstate .Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. Supp. 1911, p. 1284]), and by reason of the consequent inability of its agent at Bovina to inform appellees as to the amount properly due, no fault can be charged to appellees because they did not tender the correct amount on January 14, 1907. It is shown by the record that on November 9th as soon as appellees ascertained that 62 cents was the correct rate, such amount was tendered, and we must presume that it would have been tendered sooner if the information had been obtained.

Appellant contends that if there has been a conversion, it was on November 9th when appellee tendered the freight at the rate of 62 cents; but, for the reasons above stated,we think the conversion was on January 14th. If we are correct in this conclusion, there was no error in admitting testimony tending to show the value of the goods on that date.

There is no assignment complaining of the error in the court’s charge fixing the date of the conversion as November 9, 1907, and we think, if there was such an assignment, the failure of appellant to request a special charge correctly fixing the date would render the error, if any, harmless. This assignment is overruled.

The seventh assignment of error is without merit. The witness Cameron sufficiently qualified himself to testify as to the market value of the corn, or at least there is sufficient in the record upon which we must base a presumption that the court did not err in holding the witness qualified to testify on this issue.

The eighth assignment complains of the action of the court in permitting the witness Cameron to testify by deposition that appellant claimed 68% cents to be the true rate per hundred pounds on the" shipment in question from Fletcher, Okl., to Bovina, Tex., between the time of the arrival of the goods at Bovina and the date of the sale. This question was asked and testimony admitted, not for the purpose of proving what the correct weight was on the Shipment, but for the purpose of showing what rate had been demanded by the appellant and was admissible on the issue of conversion.

By the ninth assignment of error appellant urges in this court his objection to the following interrogatory of the witness Cameron: Q. “State, if you know, the market value of the canned fruit, such as you had at Bovina at the time it arrived there, and, if not, state its actual value at the time and place.” Answer: “Do not know the market value of canned fruit, such as we had, but the actual value 40 cents per quart.” The objection to this testimony was that “it was not supported by all the pleadings, and the witness does not show himself qualified to testify as to such value.” These objections were properly overruled.

The tenth assignment is based upon the action of the court in permitting this witness to testify by deposition as follows: “Did you have any trees, berry bushes, etc., in this car? If so, state what kind, how many, and their market value, if you know it; otherwise, their real value there and then.” Answer: “Yes, I had about 100 apple trees, about 100 grapes, 25 blackberries. Do not know the market value, but actual value was $25.” The same objections were urged to the admission of this testimony as appellant urged to the question and answer set out under the ninth assignment. By the propositions under these two assignments, it is contended that the testimony was inadmissible because the witness does not first state that there was no market value. If this objection had been made in the trial court, we could entertain it here, and it would have been the duty of the trial judge to have sustained the objection. No such objection having been made there, it cannot now be urged in this court.

It is contended under the eleventh assignment that the court erred in permitting the witness Cameron to fix the various items of household and kitchen furniture .by referring to the list of items hereinbefore referred to, with the prices of each item set out on the list. Without the testimony of the witness to the effect that the values are as shown on the list, it might be contended that the lists were ex parte statements; but as evidence was sufficient to identify and verify them and supplemented by his evidence, the lists were properly considered by the jury. What has hereinbefore been said in disposing of the objections to the evidence of the witness Cameron applies to the objections urged to the evidence of the witness Mrs. B. M. Porter and Mrs. Lehman. Most of the objections urged to the testimony of these last-named witnesses affect the weight of their evidence and not its admissibility.

The thirteenth assignment is that the trial court erred in admitting in evidence the certified copy, of the findings, opinion, argument, and judgment of the Interstate Commerce Commission, wherein it discusses the rates on the car in question and concludes that 62 cents was the rate then in force and legally chargeable for the transportation of the car in question.

The nineteenth assignment complains of the refusal of the court upon motion made by defendant to strike this testimony from the evidence. In addition to what has already been said with reference to the findings and report of the Interstate Commerce Commission, it is sufficient to say, in disposing of these two assignments, that section 14 of the Interstate Commerce Act is admissible in evidence, without further authentication, and as we understand the provisions of the act, such report is prima facie evidence of the facts found.

By reason of the provision of the law, making the decision and findings of the Interstate Commerce Commission only prima facie evidence of the facts found, the court did not err in admitting item No. 20, contained in the Interstate Commerce Commission No. 3654, of the Santa Fé System tariff No. 5645-C. We therefore overrule the fourteenth and twentieth assignments of error, based thereon.

It is contended under the fifteenth assignment that the court erred in admitting the testimony of B. M. Porter, as to the particular articles referred to in the list attached to the plaintiff’s petition and owned by him, and in permitting him to testify in general terms as to its value. It appears that the witness excluded from his estimate such of his property as had been shown to have a market value at Bovina. I-Ie was then asked this question, “I want to ask you to state to the jury in general terms the proximate value of all this property at the time without taking up each particular item,” and the court having indicated that he thought the question was objectionable, it was amended as follows: “State in general terms what was the value of this list of property belonging to you, excluding from your estimate such property as you stated you thought you had a market value thereon at Bovina. Now, on the list here is some pictures which are itemized and including the package of mixed spices, cinnamon bark and ground ginger, a sack of meal, salt, cooked sausage, and some horse collars, there seems to be a lot of medical works and surgical instruments— quite a lot of books. If I have made no mistake in the count, there are eleven pages, containing a list of goods which you say this car contained, everything from a horse collar to furniture. I will ask you to give the jury an idea approximately of the real value of the property, excluding from ybur estimate such property as you have already stated had a market value at Bovina.” Answer: “The rest would have an actual value of $1,500 or more.” This was objected to because it was incompetent, irrelevant, and immaterial, and because the witness did not qualify himself, and on the testimony being admitted over these objections, appellant reserved a bill of exceptions. The record does not show that the witness was disqualified, and the objection that evidence of the value of the articles was incompetent, irrelevant, and immaterial is not tenable, and what is here said also disposes of the sixteenth, seventeenth, and eighteenth asssignments.

The twenty-first assignment is based upon various exceptions and objections contained in appellant’s bill of exceptions to the rulings, remarks, and conduct of the court during the trial. While the plaintiff himself was upon the stand, he had testified as to the value of certain property shown on a list attached to the pleadings and which was alleged to have been the property of G-. H. Porter, the original plaintiff, and who it seems had died since the institution of the suit. The plaintiff had testified on direct examination that the goods set out in the list were worth $350. The bill of exceptions shows that when counsel for appellant began to interrogate the witness with reference to the particular items in the list the court remarked : “He has answered that he didn’t remember anything else; no use to go over all that.” This remark of the court produced a colloquy between the court and counsel for plaintiff on one side, and between the court and counsel for defendant upon the other, a part of which is as follows: “Appellant’s Counsel: Q. In stating to the jury that the goods shown on this list were worth $300 or more, did you take into consideration the value of one suit of clothes? A I did. Q. What kind of suit was that? Court: He told you that he didn’t remember a thing in the world about that. Appellant’s Counsel: One witness has testified as to this list. The Court: What is the sense of that when he said he didn’t know anything in the world about that? Appellant’s Counsel: He said they were all worth that much. Court: He told you how that was done. Appellant’s Counsel: ■ I want to show by the witness that he did not know. Court: I am not going to be here always. Appellant’s Counsel: We except to the rulings and remarks of the court. The Court: Witness has said that he didn’t know what was in there, and it seems to be a useless consumption of time— Appellant’s Counsel: We except to the ruling and remarks of the court. Appellant’s Counsel (addressing the witness). Doctor, in response to Mr. Knight’s question this morning, when you stated that these goods— The Court: He stated three or four times in answer to your interrogatories, and Mr. Knight said he had included every item in the list. He has answered that question. Appellant’s Counsel: All we want to ask is the question for the benefit of a bill. The Court: I will give you the bill. Appellant’s Counsel: We expect the witness to answer that he did consider each and every one of these items in answering Mr. Knight’s question and fixing the value. The Court: Do you mean to ask that question with reference to each and every item? He has answered at least three times that he has made his estimate. That when he made his estimate he considered the items this morning. Appellant’s Counsel: We except to the remarks of the court. The Court: No use to have him repeat that over and over again.”

It appears from the record that on direct examination the witness had been shown a list of goods belonging to his deceased brother and which had been included in the shipment and had testified generally that the goods-in the list were of the value of $350, and appellant’s counsel sought by cross-examination to have the witness testify particularly as to the value of each article named in the list as a test of the accuracy and truthfulness of the witness’ statements and for the purpose of showing his credibility. We think he was entitled to that right. The purpose of a cross-examination is to sift and to modify and have the witness explain what has been said on his direct examination, and if the witness by this process can be discredited and the weight of his testimony weakened, the right should not be denied. “The benefit of cross-examination is an essential condition to the receptibn of direct testimony. That is to say, testimony is not admissible if the party against whom it is to be used or those in privity with him have no opportunity of cross-examining the witness. The right being a substantial and a very important one, it is error to restrict it so far as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.” Thompson on Trials (2d Ed.) § 406. The author, quoted further, says, “A witness may be cross-examined as to his examination in chief in all its bearings and as to whatever goes to explain or modify what he has stated in his examination in chief, and prejudice will be presumed where this right in denied.” Martin v. Elden, 32 Ohio St. 282. “Where a witness has on his examination in chief given his opinion as to value, he may be cross-examined in full respecting his reasons for such opinion, and here the rule applies that great latitude should be allowed in cross-examination.” Mo., etc., Ry. Co. v. Haines, 10 Kan. 439; C., B., etc., Ry. Co. v. Andrews, 30 Kan. 590, 2 Pac. 677; Markel v. Moudy, 13 Neb. 323, 14 N. W. 409; Buck v. City of Austin, 165 Mass. 509, 43 N. E. 496. This question has also been considered and the rules above announced followed by our state courts in the following eases: P. & G. Ry. v. Kirby, 42 Tex. Civ. App. 340, 94 S. W. 173; Kirby v. P. & G. Ry., 39 Tex. Civ. App. 252, 88 S. W. 281; M., K. & T. Ry. v. Rich, 51 Tex. Civ. App. 312, 112 S. W. 114; Dittman v. Weiss, 31 S. W. 67; Ft. Worth & Denver City Railway Co. v. Travis, 45 Tex. Civ. App. 117, 99 S. W. 1141.

The fact that a cross-examination in full would have necessarily required a great deal of time did not deprive appellant’s right of any of its merit, and the record discloses a degree of impatience on the part of the trial court with appellant’s counsel, which we think was prejudicial.

The twenty-second assignment complains of the court’s action in excluding the testimony of D. L. Meyers, by which appellant sought to prove the rate on the various roads, from initial point to destination, and in the fifteenth interrogatory he was requested to state such charges from the established, promulgated, and published tariff rate in force during the month of January, 1907. As has been said, the question of determining the correct rate due onv this shipment had been by both parties submitted to the Interstate Commerce Commission, the one tribunal authorized by law primarily to settle that question, and the Commission having fixed the rate at 62 cents, in our opinion, the matter was res adjudieata and conclusive in this action. As we construe the Interstate Commerce Act, appellants had the right to contest the validity of the rate fixed by the Commission by prosecuting the matter in the federal courts. Having failed to do this, they are precluded from questioning the correctness and reasonableness of the rate fixed by the Commission. We have not found any case, either by the state or federal courts, which passes upon the con-elusiveness of the findings by the Commission in a proceeding of this kind, and have been forced to reach the conclusion by an investigation of the Interstate Commerce Act itself. We have found no provision in the act other than that contained in section 16 thereof, which makes the findings and order of the Commission prima facie evidence of the fact therein stated where a petition has been filed in the federal courts against the carrier to enforce compliance with the orders and awards of the Commission.

With the exception of assignment No. 27, which criticises the charge of the court for fixing the time of conversion on November 9, 1907, the criticisms of the court’s charge are hypercritical and without merit. We have reviewed the remaining assignments in appellant’s brief, and such of them as have not been disposed of by what we have heretofore said are overruled for want of merit.

Because of the error of the court in abridging appellant’s right of cross-examination upon the material issue, viz., the value of the goods in question, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    SELLS-FLOTO SHOWS v. BROUSSARD.
    (Court of Civil Appeals of Texas. Galveston.
    March 6, 1913.
    Rehearing Denied April 10, 1913.)
    Animals (§ 27) — Hieing—Injuries to Animals.
    In an action for injuries to a team of horses hired by plaintiff to defendant, where the undisputed evidence showed that defendant’s agent knew nothing about the road and depended upon plaintiff’s driver, that the injuries were caused either because the horses were not properly cared for or were driven too fast, or by a deviation from the route specified in the contract of hiring increasing the distance about 16 miles, and that plaintiff’s driver was responsible for this deviation except possibly about 2% miles thereof, which the evidence Showed could not have hurt the team, a verdict for defendant should have been directed.
    [Ed. Note. — For other eases, see Animals, Cent. Dig. §§ 70-78; Dee. Dig. § 27.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by Alexander Broussard against the Sells-Floto Shows. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thos. N. Hill and Hill & Cooper, all of Beaumont, for appellant. J. V. Fleming, of Beaumont, for appellee.

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

   REESE, J.

This is the second appeal of this case. The nature' of the case is set out in the opinion on the former appeal, in which the present appellee was appellant. 128 S. W. 4S9. No testimony was introduced for the defendant on the former trial. On the present trial the defendant (appellant here) introduced the testimony of both its agent, who went with the team, and the driver. The liveryman, appellee, furnished .his own driver with the team, who was supposed to be acquainted with the route. Appellant’s agent was entirely ignorant as to the route, having never been in the county before. Ap-pellee admits that this agent did not know anything about the road and depended for this upon the driver of the team. The contract contained the following provision: “It is further understood and agreed that I (meaning Broussard) assume risk and will not hold the agents or proprietors of the above-named establishment (Sells-Floto Shows) responsible in any manner for accidents, delays, deaths or damages that may occur to the above mentioned teams, wagons or men.” The route named in the contract was from Beaumont to Brooks 6 miles, to Oheek 3 miles, to Taylor’s Bayou 6 miles, to La Belle 8 miles, back to Beaumont 16 miles — 39 miles in all. Taylor’s Bayou is the same place as Fannette. The testimony is sufficient to authorize the conclusion that in going from Taylor’s Bayou (Fannette) to La .Belle the driver went a good deal out of the way, going by Odelia, Stringtown, and Ham-shire, a distance of probably 15 or 16 miles greater than he would have been required to travel if he had gone direct by the shortest road from Fannette to La Belle. The horses were overdriven and as a proximate consequence one of them dropped dead in the harness, in the outskirts of Beaumont, on their return, and the other was injured. It was held upon the other appeal that “it may be presumed that the agent had a right to assume that the driver provided by appellant knew the road, and if the change of route was occasioned by the mistake of the driver in this particular, for which appellee’s agent was not responsible, appellee would not be liable.”

It appears there was a more direct road from Fannette to La Belle than that by Odelia. But it was only 1% miles from Fannette to Odelia, and it would have made the route from Fannette to La Belle only 3 miles longer if the driver had gone to Odelia, back to Fannette, and thence to La Belle. The evidence was that it was not more than 2Vi miles further than the direct route from Fannette to La Belle to have gone by Odelia. Now the agent of appellant, who testified on the last trial, stated that he knew nothing of the road, was an entire stranger, and trusted entirely to the driver to carry him to the places named on the route-sheet. The driver also corroborated the agent in this, except that on cross-examination he testified the agent told him to go to Odelia, and that Odelia was on the route-sheet. This route-sheet had been prepared by appellee. This witness contradicts himself flatly about appellant’s agent having told him to go to Odelia. But assuming that the agent did direct the driver to go from Fannette :tx> Odelia, this was a deviation from the route of, at most, 2% miles. The testimony was undisputed that if the horses had been properly driven and cared for (and for this, under the contract, appellant’s agent was not to be responsible) this slight excess in the distance could not have hurt the team, and it is clear that it would not. The only inference from the undisputed evidence is that either the horses' were not properly cared for and were driven too fast, or that the excessive distance in going from Odelia to La Belle by ,way of Stringtown and other places, making an excess in the distance of about 15 miles, was the proximate 'cause of the injury to the horses. As to this, the undisputed evidence shows that the agent of appellant had nothing to do with this deviation from the route. The driver was solely responsible. He testifies that he selected this route himself and the agent of appellant had nothing to do with it. A priori it is not reasonable to suppose that appellant’s agent had anything to do with this deviation as he was known to be entirely ignorant as to the route, and the driver was supposed to know it, and this is made absolutely certain by the undisputed evidence on the last trial. The only reasonable inference is that the driver, in fact, did not know the direct route beyond Odelia and took a wrong road, and this, aided by careless and reckless driving over a sticky road, caused the damage. The contract by its express terms relieves the appellant, in such case, from liability. It is at least suggestive that the driver was to blame, that he was arrested on complaint of appellee, charged with killing the horse, was tried and convicted, and served 118 days on the county road. The court should have given the charge requested by appellant to return a verdict for defendant. The judgment is reversed and here rendered for appellant.

Reversed and rendered.


text:
    R. W. WIER LUMBER CO. et al. v. CONN.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1913.
    On Motion for Rehearing, March 20, 1913.)
    1. Adveesb Possession (§ 100) — Colon ox Title — Extent.
    Where defendant acquired a tax title against the P. survey, it was sufficient color of title to give defendant the benefit of the principle that actual possession of a part of a tract of land by the owner will be extended to give him constructive possession of the whole and prevent the acquisition of title by adverse possession by one having no title beyond the limits of the actual inclosure of such adverse possessor.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.]
    2. Adveesb Possession (§ 100) — Extent — Occupancy by Tenant — Effect.
    Where a claimant of a defined tract of land leased a defined and separate portion thereof, the tenant’s actual possession of the leased portion did not give the claimant constructive possession of the whole tract claimed by him.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.]
    3. Evidence (§ 379) — Documentary—Plats —Proof.
    In trespass to try title, involving a conflict in certain surveys, a plat could not be considered without proof that it was correct.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1656; Dec. Dig. § 379.]'
    4. Infants (§ 24) — Adverse Possession — Residence.
    Where the occupants of certain land, claiming adversely, performed the necessary cultivation and used and enjoyed the land so as to indicate adverse possession, it was not material that for part of the time one of them was under age and both resided with their father on other land.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 25; Dec. Dig. § 24.]
    5. Appeal and Error (§ 1056) — Rulings on Evidence — Prejudice.
    Where, in trespass to try title, there was no evidence that the C. survey covered any part of either of the tracts sued for, defendants were not prejudiced by the exclusion of evidence to show that a written acknowledgment of tenancy was intended to cover a part of the P. survey within the boundaries of the C. survey, which was void.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dee. Dig. § 1056.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by R. C. Conn against the R. W. Wier Lumber Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Holland & Holland, of Orange, and W. W. Blake, of Jasper, for appellants. W. F. Goodrich, of Hemphill, and Smith & Blackshear, of Jasper, for appellee.

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

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

   REESE, J.

This is a suit in trespass to try title by R. C. Conn against the R. W. Wier Lumber Company to recover the title and possession of two certain tracts of land, one of 48% acres and the other of 160 acres, both on the T. Pratt survey. Plaintiff also sued for damages for cutting and appropriating timber. Plaintiff specially pleaded his title to the land sued for under the statute of limitation of 10 years. Defendant pleaded general denial, not guilty, and in addition sought a recovery on the warranty of W. J. B. Adams, R. F. Adams, and Abel Adams, Sr., who, it was alleged, conveyed the land by general warranty deed to W. H. Bonner, who in turn conveyed it to defendants by like covenants of warranty. Adams came in and answered, made general denial of the allegations of plaintiff’s petition, and pleaded not guilty and the statute of limitation of five years. A trial with a jury resulted in a verdict and judgment for plaintiff for the land sued for and for $2,225 damages for cutting timber, and for defendants against Adams for $2,081 on their warranty. A motion for a new trial by defendants was overruled, and they appeal.

The land sued for is on the T. Pratt survey of 640 acres. The 48% acres lie in the southeast corner of the survey, extending to the south line of the Pratt on the south, the east line of the Pratt on the east, and extending westward 1,360 varas. The 160 acres adjoins this tract on the north, bounded on the east by the east line of the Pratt, and extending west 950 varas.' The William Duncan survey of 640 acres joins the Pratt on the south. This suit was filed in 1908.

The evidence is sufficient to support the finding, and we find that, beginning with the occupancy by Nathan Burrell in 1893, and followed in 1894 by that of John Burrell, who claimed under Nathan, and by that of Nathan Burrell, who succeeded John in 1900, and by that of J. O. Killen, to whom Nathan Burrell conveyed it in 1900, and who in turn conveyed it to Conn in 1905, the appellee, Conn, and those under whom he claims title, have been in continuous, actual, and adverse occupancy of the 160 acres of land, cultivating, using, and enjoying the same, with all the elements necessary to support appel-lee’s claim of title under the statute of limitation of 10 years, for more than 10 years ensuing from and after the date of the first occupancy. As to the 48% acres, we find that, beginning about 1889, Arthur Burrell was in actual, adverse occupancy of this tract, cultivating, using, and enjoying it, and claiming it as his own, up to the time he sold and conveyed it to appellee, Conn, in 1905. Arthur Bur-rell sold and conveyed 60 acres, extending entirely across the Pratt survey, but his limitation title only included the 48% acres sued for herein. On May 7, 1895, A. N. Stone, tax collector of Jasper county, conveyed to W. J. B. Adams the T. Pratt survey, reciting that the land was levied on and sold for taxes for the year 1894, amounting to $6.40. The consideration paid was $10.65. The tax collector’s deed was introduced in evidence, but no evidence offered as to the tax sale, except the naked deed, which is in regular form to convey the T. Pratt survey. This deed was recorded May 26, 1896.

Some time prior to 1888 one Ab Cole' had located and settled upon a pre-emption of T60 acres of land, which was in conflict entirely with either the Wm. Duncan survey, or partly with the Duncan and partly with the Pratt. This 160 acres had been surveyed, and had defined boundaries, but the original field notes were not in evidence. Field notes of a survey made by the county surveyor in 1901 placed this Cole location entirely on the Duncan. Evidence was introduced which tended to show that it also encroached on the Pratt, but this evidence does not indicate what part of the Pratt was so covered. About 1889 F. W. Burrell settled upon this Ab Cole survey and was occupying it in 1899, when he executed the following instrument: “The State-of Texas, County of Jasper:

“Know all men by these presents that I, Frederick Burrell, of the county of Jasper and state of Texas, do hereby acknowledge that I am now occupying and living upon the following described tract of land, to wit, 160 acres of land, situated in the county.of Jasper and state of Texas, about six or seven miles in an easterly direction from Wiess’s Bluff, said 160-aere tract having been surveyed within the boundaries of an original survey known as the-survey of-acres; that I went into possession of said land on the - day of September, 1888, with the consent and permission of R. F. Adams, as his tenant; that I have ever since said date continuously occupied said tract of land, and am now occupying the same, as the tenant of the said R. F. Adams, who resides in the county of Jasper and state of Texas; and I hereby admit and acknowledge that the said tract of land is the property of the said Adams, and that I have no interest in said land save as the tenant of the said Adams, as aforesaid.

“Witness my hand this the 3d day of August, A. D. 1899.

“[Signed] Frederick Burrell.”

This tract of land referred to in this instrument was shown to be the Ab Cole survey. This possession continued by Burrell during his lifetime and after his death by his widow up to the time of the trial. There was evidence which tended to show that a part of Burrell’s improvements extended over on that part of the Ab Cole survey which conflicted with the Pratt. There was no evidence that this Cole survey, or any of Bur-rell’s improvements, covered any part of either of the tracts herein sued for.

By the first assignment of error appellants complain of the refusal of the court to give a charge requested, embracing the legal proposition that if appellants claimed the Pratt survey under a deed duly recorded and describing it by metes and bounds, and were in actual possession of any part of it by tenant, such actual possession of a part drew to it the constructive possession of the remainder, except such part thereof as was in the actual occupancy of appellee or his vendors, claiming adverse possession, and in such case appellee could only recover under his limitation claim the land under actual inelosure. Those claiming the adverse possession and under whom appellee claims having no title, we think that the tax title of appellants, although it was not shown that the facts existed to render it effectual as a conveyance of the title of the owner of the Pratt, was sufficient to entitle appellants to the benefit of the general principle of law that actual possession of a part of a tract of land by the owner will be so extended as to give him constructive possession of the whole and prevent the acquisition of title by adverse possession by one having no title beyond the limits of the actual inclosure of such adverse possessor, if there had been any evidence to support the application of this principle to this case. Evitts v. Roth, 61 Tex. 84; Claiborne v. Elkins, 79 Tex. 380, 15 S. W. 395; Texas Land Co. v. Williams, 51 Tex. 62.

When we come, however, to apply this principle of law to the facts of this case, we are met by the obstacle that there is no evidence upon which to base an actual possession by appellants’ vendors of any part of the Pratt survey, outside of the boundaries of the Ab Cole void survey, and that the actual possession of Burrell, as tenant of Adams, of land within the well-defined boundaries of that tract cannot be so extended as to give Adams constructive possession of any part of the Pratt outside of the well-defined boundaries of the tract held by Burrell as his tenant. Burrell by his acknowledgment of tenancy, held possession for Adams of the tract embraced within its boundaries. By virtue of this contract undoubtedly Adams was in actual possession of so much of this tract as was inclosed by Burrell, and in constructive possession of the remainder of the leased tract; but this did not give him possession of the Pratt, or of any part of it outside of the boundaries of the tract, which, under the express terms of the instrument referred to, was held by Burrell as his tenant. The proposition may be stated thus: If A., being the owner of a defined tract of land, leases to B. a defined and separate portion thereof, B.’s actual possession of the leased portion as A-.’s tenant does not give A. constructive possession of the whole tract owned by him. Texas Land Co. v. Williams, 5 Tex. 51; Read v. Allen, 63 Tex. 154. Adams had title to the Ab Cole survey, or claimed title, and it was this survey that Burrell rented from him. It is only by virtue of the fact that this tract encroached upon the Pratt that Burrell held under this tenancy any part of the Pratt. Burrell’s, and consequently Adams’, possession of any part of the Pratt was only by virtue of this fact, and cannot be held to give Adams constructive possession of the entire Pratt survey, with the consequence of preventing the acquisition of title by defendants’ vendors by 10 years’ adverse possession of parts of the Pratt, outside of the boundaries of the land covered by Burrell’s acknowledgment of tenancy. There was no evidence tinder which appellant would have been entitled to the application of the principle of law embraced in the requested charge, and the court did not err in refusing to give it.

There is a plat of the land in appellants’ brief which purports to show the relative positions of the Pratt, the Duncan, the two tracts here sued for, and the tract which F. W. Burrell rented from Adams, which appellee admits was intended to be the Ab Cole survey; but we can find nothing in the record which tends to show that this plat is correct. Certainly there is no evidence which tends to show the location of the lines of this latter tract with reference to the Pratt. The most that can be gathered from any of the evidence is that the Cole survey encroached upon the Pratt. There is nothing tending to show that it covered any part of either of the tracts sued for. In a former suit by W. J. B. Adams against F. W. Burrell and others to recover the Duncan survey, which also belonged to Adams, it was claimed by him that ihis 160 acres of land covered by the Burrell tenancy lay altogether on the Duncan, and he recovered 160 acres of the Duncan on the ground that Burrell, who claimed under the 10-year statute of limitation, held under him, and this contention, resting upon the written instrument herein set out, was sustained. Adams v. Burrell, 127 S. W. 581; Burrell v. Adams, 135 S. W. 1156.

The evidence shows that during part of the time that John Burrell and Arthur Burrell were cultivating and claiming the two tracts sued for they were living with their father, F. W. Burrell, on the 160 acres which he held under Adams, and appellants requested the court to charge the jury that for this reason they could not acquire by adverse occupancy title to the tracts on the Pratt survey herein sued for. John Bur-rell was 21 years old in 1896. His use and occupation have been shown as beginning in 1894. He built a house on the 160 acres sued for in 1S98, and moved on the place, having married. The evidence shows that his right during his minority to acquire this tract was recognized by his father. Arthur Burrell was four or five years older than John. There is no merit in appellants’ contention that these boys, by reason of the fact that they made their home with their father on this rented tract, could not by adverse possession acquire title by limitation to the two tracts sued for lying on the Pratt and entirely outside of the tract held by their father for Adams. Actual residence on the land was not necessary. The evidence abundantly shows that they claimed the two tracts, respectively, and that such claim was accompanied by the necessary cultivation, use, and enjoyment to perfect their title under the 10-year statute. The refusal to give the charge is complained of by the second assignment of error, which must be overruled.

There was no material or prejudicial error in sustaining the objections of appel-lee to the testimony of R. F. Adams referred to in the third assignment of error, so far as we can understand the rambling bill of exceptions. The only effect of this excluded-testimony was to show that the written acknowledgment of tenancy executed by F. W. Burrell was intended to cover that part of the Pratt survey within the boundaries of the void Ab Oole survey. This testimony did not tend to show that this Oole survey covered any 'part of either of the tracts sued, for; nor was there any evidence which did. If we are correct'in what we have said in disposing of the first assignment of error, the excluded testimony, if true, would not. have sustained appellants’ claim. The assignment is overruled.

What we have said in disposing of the first assignment of error sufficiently disposes of the contentions set out under the fourth and fifth assignments of error, which are overruled.

We find no error requiring reversal, and the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

On motion for rehearing appellants insist that the case of Read v. Allen, 63 Tex. 154, upon the identical proposition in support of which it is cited in this ease, “has been overruled by the Supreme Court continually and by the various Oourts of Civil Appeals.” It would have tended to lighten the labors of this court if even one of the overruling decisions referred to had been cited. In view of the statement in the motion we have been led to a further examination of the authorities in this state on this question, and the examination has failed to reveal a case even doubting the authority of Read v. Allen, with the exception of our own opinion in Haynes v. T. & N. O. R. R. Co., 51 Tex. Civ. App. 49, 111 S. W. 427, and the individual opinion of Judge Key in Puryear v. Friery, 16 Tex. Civ. App. 316, 40 S. W. 449. In Haynes v. Railroad Co., supra, the writer of this opinion, speaking for the court, said with regard to Read v. Allen: “The late ease of Bowles v. Brice, 66 Tex. 730 [2 S. W. 729], while not in terms overruling the former opinion in the case referred to, seems to us to hold directly to the contrary,” etc. A further examination of the authorities has led us to reconsider this expression as erroneous. In fact, a more careful consideration of the opinion of Bowles v. Brice would have prevented this error. Judge Gaines, speaking for the court in the latter case, uses this language: “The question is, Must the possession in this case be restricted to the portion of the premises actually occupied by the tenants? It is held in Read v. Allen, 63 Tex. 154, and in Texas Land Co. v. Williams, 51 Tex. 51, that when a party claiming land leases by written contracts specific parts of it, describing them by metes and bounds, his possession through his lessees extends only to the parcels so defined. This is in accordance with the principle laid down in Cunningham v. Prandtzen, 26 Tex. 34, that where one in possession of a tract of land sells the portion actually occupied by him, his constructive possession, which before existed as to the remainder, immediately determines. But we consider that we have a different case before us. Shall a party, who lets to tenants for the purpose of cultivation the improved part of a tract of land, be deemed to have lost his constructive possession of the portion which is unimproved? We think not. 1-Ie applies the property to the only use of which it is susceptible, and should be deemed as exercising ownership over the whole tract as fully as if he were in possession of the improved portion, cultivating it himself. It is true that the witnesses state that the tenants in this case had no right or authority over the land not in cultivation.”

The court evidently did not see any inconsistency between the doctrine announced in this case and that held in the two eases cited. If there had been any intention of overruling the two cases, this is the place where we would have naturally looked for it. In Read v. Allen and Land Co. v. Williams, the law is thus stated: “When a landlord places a tenant on a tract of land claimed by him, and designated by metes and bounds the subdivision of the tract as the portion which the tenant is to occupy, the possession of the tenant, on a question of limitation, can inure to the landlord’s benefit only to the extent of the designated metes and bounds set forth in’ the lease.”

The Haynes Case, by its facts, came exactly within the doctrine of Bowles v. Brice, as was held by this court. We were simply in error when it was intimated that there was any conflict between Read v. Allen and Bowles v. Brice. As was said by the court in the latter case, the two cases occupy different ground. We have again examined each of the cases cited by us in support of Bowles v. Brice in the Haynes Case, and find that the facts in each case brought it within the rules in Bowles v. Brice and clearly distinguish it from Read v. Allen and Land Co. v. Williams. With reference to the present authority of Read v. Allen, the decisions in this state show the following: In Craig v. Cartwright, 65 Tex. 424, it was cited with approval. This was, however, before the decision in Bowles v. Brice. Since that decision, however, in Parker v. Cockrell, 31 S. W. 222, the court distinguishes the two cases, and certainly there is no hint of discrediting Read v. Allen. On the contrary, we take it as an express recognition of the authority of that case. In Hall v. Clountz, 26 Tex. Civ. App. 348, 63 S. W. 944, Land Co. v. Williams and Read v. Allen are cited and followed. In Puryear v. Friery, 16 Tex. Civ. App. 316, 40 S. W. 449, it was held that the facts of the case brought it under the rule of Bowles v. Brice, the court expressly recognizing the distinction between that case and Read v. Allen, and not even a suspicion is cast upon the authority of Read v. Allen, except that Justice Key, who wrote the opinion, states as his individual opinion that Cunningham v. Frandtzen, 26 Tex. 34, cited in Land Co. v. Williams and Read v. Allen, does not support the doctrine announced in these cases. In Collier v. Couts, 45 S. W. 487, the facts were the same as in Bowles v. Brice, which is cited in support of the opinion. In Houston Oil Co. v. Kimball, 114 S. W. 668, Read v. Allen is cited and followed. Writ of error was granted, but the judgment was affirmed by the Supreme Court (103 Tex. 105, 122 S. W. 533, 124 S. W. 85); and while neither Read v. Allen nor Land Co. v. Williams is cited, the opinion clearly approves the rule announced by the Court of Civil Appeals. In Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032, the Supreme Court of Missouri cites and approves Read v. Allen. If there is a decision either of the Supreme Court or any of the Courts of Civil Appeals that has overruled or doubted the authority, in a proper case, of Read v. Allen or Land Co. v. Williams, except what is (erroneously) said by this court in Haynes v. Railroad Co., and by Judge Key, as his individual opinion, in Puryear v. Friery, we have been unable to find it.

Now, in the present case there can be no doubt that the written lease or acknowledgment of tenancy by F. W. Burrell to Adams referred to the Cole 160-acre survey. As it stands, the written lease was insufficient for want of description or identification of the land embraced in the lease. Without parol evidence showing to what land it referred, it was worthless. This parol evidence identified the survey referred to as the Cole 160-acre survey. Certainly the written lease by its terms, as explained by parol, covered no part of the Pratt, except in so far as the Cole survey covered the part of the Pratt. That ’ the boundaries of the Cole were not capable of exact identification, if such be the fact, does not affect the question. It was shown sufficiently that it covered only a small part of the Pratt in any event, and none of that part here in controversy. We must adhere to our opinion that the case is ruled by Read v. Allen and Land Co. v. Williams. None of the grounds of the motion for rehearing are tenable, and the motion is overruled.