author: HARPER, O. J.

text:
    SOUTH TEXAS LUMBER CO. v. WOLVIN LINE.
    (No. 756.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Estoppel <§=>112 — Pleading — Sufficiency.
    It is sufficient to plead the facts relied on tó show estoppel.
    2. Contracts <®=>309(1) — Performance—Excuses — Impossibility.
    Generally, where performance becomes impossible subsequent to execution of contract, the promisor is not discharged, unless performance is prevented by a law subsequently passed.
    3. Carriers ⅞=>83 — Loss of Goods — Liability.
    Where shipping company, knowing Mexican law required delivery to custom house, induced plaintiff to ship lumber with bill of lading with draft attached, agreeing to surrender lumber' only on surrender of bill of lading, and delivered lumber to custom house, which delivered it without bill of lading,, the company was liable-for the loss.
    Error from Harris County Court; Clark C. Wren, Judge.
    Action by the South Texas Lumber Company against tlie Wolvin Line. Judgment for defendant, and plaintiff brings error.
    Reversed and rendered.
    W. O. Huggins, of Houston, for plaintiff in error. Baker, Botts, Parker & Garwood, of Houston, for defendant in error.
   HARPER, O. J.

The South Texas Lumber Company brought this suit against the Wol-vin Line for $103.41 under the following allegations: That plaintiff delivered to defendant certain lumber for transportation to Tam-pico, Mex., which lumber it had contracted to sell to a named lumber company at said place for the sum of $7,312.02, for which draft with bill of lading attached was drawn upon the latter company; that by the terms of the contract between plaintiff and defendant for transportation defendant bound itself to keep the lumber in its possession until ordered by plaintiff to deliver upon surrender of the bill of lading to it, but that the lumber was delivered without authority of plaintiff to the consignee or some other person without authority; that the lumber company at Tampi-co sent to plaintiff a part of the purchase price, leaving unpaid $103.41, for which it sued.

Defendant answered by general denial, and, specially, that the bill of lading was delivered to plaintiff; that the lumber was transported to Tampico and upon arrival was delivered to the customs .house as was required under the laws of Mexico, and that when defendant so delivered the lumber it had no further control over it, but it was in the exclusive control of the customs house authorities of Mexico; that the shipment moved under bill of lading, subject to the provisions thereof, said bill of lading made a part of its pleading's.

To this answer plaintiff replied by supplemental plea that if it was true that the laws of Mexico required delivery to the customs house authorities, that defendant knew this fact at the time it entered into the contract; that plaintiff had no such knowledge; therefore it was estopped from setting up such lack of power to perform its contract.

The court rendered judgment in favor of defendant, from which the cause is brought here by writ of error.

Appellant urges that the facts as found by the court show that -defendant at the time it entered into the contract knew that delivery could not be made in accordance with the contract; that plaintiff did not know it, but relied upon the contract, and in consequence suffered the damages sued for; therefore the court erred in its judgment.

“Findings of Fact.
“First. That on the 10th day of April, 1913, Cia. Consolidado De Maderas, a lumber company at Tampico, Mex., hereinafter for convenience called the ‘Mexican Company,’ purchased from plaintiff .certain lumber to be shipped to Tampico, and upon payment by the Mexican Company of the total agreed charge therefor, to wit, $7,312.02, it would be entitled to the ownership and possession of the lumber.
“Second. That plaintiff advised with James Beattie, the manager of the defendant, as to the method that should be adopted in order to assure to plaintiff payment in full for the lumber and all carrying charges, before the delivery of the lumber to the Mexican Company, and was by said manager advised to ship the lumber to its own order at Tampico, indorsing the bill of lading in blank, or to the Mexican Company, and attaching same to a draft on the Mexican Company for the sum above named. The mails at the time being interrupted, it was agreed that the master of the vessel of the defendant carry the lumber to Tampico, and there deliver it to a bank, for collection of the draft and the delivery of the bill of lading to the Mexican Company. The draft with the bill of lading attached, forwarded by plaintiff, was placed in an envelope addressed to the Tampico Banking Company and sealed by plaintiff before same, was delivered to the master of the vessel of the defendant.
“Third. The lumber was then delivered by the plaintiff to the defendant, and defendant issued to plaintiff a bill of lading therefor, the original of which (by the agreement of the parties) is hereto attached, marked Exhibit A and made a part hereof.
“Fourth. That said hill of lading was executed in behalf of defendant by the said Beattie.
“Fifth. The defendant then drew a draft for said sum on the Mexican Company, indorsed the bill of lading to the Mexican Company, and attached it to the draft and delivered the same to the master of the steamship Hero who, for the defendant, carried the lumber to Tampico, and also carried the draft and bill of lading, delivering the letter to the bank at Tampico. The draft with the bill of lading attached forwarded by plaintiff was placed in an envelope addressed to the Tampico Banking Company and sealed by plaintiff before same was delivered to the master of the vessel of the defendant.
“Sixth. The defendant did not deliver the lumber to plaintiff or its order at Tampico, but delivered same to the customs officials at that port.
“Seventh. The Mexican Company refused to pay the draft to which the hill of lading was attached, and the draft and bill of lading were' returned to plaintiff by the Tampico Banking Company.
“Eighth. The customs officials at Tampico, without surrender of the bill of lading, delivered the lumber to the Mexican Company.
“Ninth. Afterward the Mexican Company remitted to plaintiff the sum of $7,208.51, leaving unpaid the difference between the draft drawn by plaintiff on the Mexican Company, to wit, $7,312.02, and the said amount remitted, the said balance amounting to $103.41, and this balance the Mexican Company refused to pay.
“Tenth. By the laws in force at the port of Tampico at the time of the delivery of said lumber and for some time prior thereto, the defendant was not permitted to deliver the lumber to plaintiff, or its order, but was required to deliver same to the customs officials at that port, and in doing so lost.possession and control of said lumber.
“Eleventh. The defendant and said Beattie knew at and before the execution and delivery of the bill of lading to plaintiff that the defendant would not be permitted to deliver the lumber to plaintiff or its order at the port of Tampico, but would be required to deliver same to the customs officials at Tampico upon arrival of the ship at that port.
“Twelfth. The plaintiff and its officers and agents conducting the matter for plaintiff had no knowledge of any law or custom at the port of Tampico which would prevent defendant from delivering the lumber to it or its order at that port.
“Thirteenth. Plaintiff had on prior occasions sold lumber which was shipped to Tampico, Mes., but on all such occasions deliveries were made by plaintiff in the United States, the purchaser undertaking the movement by water.
“Fourteenth. The greater portion of the lumber was dutiable goods under the Mexican law.
“Fifteenth. The ordinary course of handling shipments at Tampico was that the custom house authorities would not deliver goods held by them until the bills of lading, properly indorsed by the agent of the defendant company, were surrendered, but in this instance the customs officials did not observe this course.
“Sixteenth. The defendant did not inform plaintiff at any time of said laws and customs in force at said port of Tampico.
“Seventeenth. Plaintiff was unwilling to rely on the credit of the Mexican Company for payment, and was unwilling, to ship the lumber except upon such an arrangement as would assure payment to it in full before the delivery of the lumber to the Mexican Company.
“Eighteenth. If the terms of the bill of lading had been performed by the defendant as written in the bill of lading, it would not have surrendered possession of the lumber- at the port of Tampico except upon surrender of the bill of lading to it. This finding is based solely upon the written terms of the bill of lading.
“Nineteenth. Plaintiff would not have delivered the lumber to the defendant for shipment had it known that 'the defendant would be unable to retain possession of the lumber until the bill of lading had been surrendered to the defendant.
“Twentieth. At the time the lumber was delivered by plaintiff to the defendant for shipment, defendant and said Beattie knew that plaintiff was unwilling that the Mexican Company get possession of the lumber until it had paid in full therefor, and had adopted the methods pursued in order to assure same.
“Twenty-First. At the time the shipment moved there were numerous revolutions in Mexico.
“Twenty-,Second. The said balance of $103.41 has never been paid.”

The proposition is that since appellee entered into the contract with full knowledge upon its part that the laws of Mexico prohibited the delivery of the lumber direct to the consignees and the collection of the purchase price before delivery, and these facts not being known to appellant, appellee is estopped to deny that it could perform the contract.

Preliminary to a discussion of the merits of the case under the contract as pleaded and found by the trial court, appel-lee urges that the question of estoppel is not in this ease, because there is no pleading to support it. A sufficient answer is that appellant has pleaded the facts and that is all that is required. Johnson v. Byler, 38 Tex. 606.

The question first presented by proposition is, Did the act of the customs authorities in taking possession of the lumber and subsequently delivering it to consignees, thus preventing appellee from literally carrying out its contract to deliver, relieve it from performance of this provision of the contract?

The general rule is that where the performance becomes impossible subsequent to making of the contract the promisor is not discharged. An exception to this rule is where the performance of the contract is prevented by a law subsequently passed. 9 Oyc. 627, 628.

But the facts of this case are that the practice of the customs officers at Tampico in taking charge of dutiable goods and thereafter delivering to consignee was in practice at the time this contract of shipment was entered into, and appellee knew that such was the law and practice at the time. Therefore, by its representations and by taking the goods for shipment under the provisions of the contract, it thereby induced the appellant to enter into a contract it otherwise would not have entered into/ Appellee took the risk and should be held to it to the extent of payment of damages which arose as a consequence of its breach. Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57; Northern P. Ry. Co. v. Am. Trad. Co., 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269. And having failed to make the delivery as it contracted to do, the fact that the customs officers took charge of the lumber did not relieve it of liability under the contract.

Appellee contends that the holding in Herbst v. The Asiatic Prince (D. 0.) 97 Fed. 343, affirmed 108 Fed. 287, 47 O. C. A. 325:

“Where, by the local law and usage, dutiable goods imported are required to be delivered to the customs authorities, who assume the responsibility of thereafter making delivery to the proper person on payment of the duty, a delivery by the ship to such authorities is a good delivery as between carrier and shipper”

—is conclusive of appellant’s right to a recovery. In the cases cited, the only question involved was that of delivery in accordance with the contract, and the court holds that there was a substantial compliance with the contract in the delivery which occurred through the customs authorities.

In this case, we have more than a question of delivery. The goods were delivered to appellee as shown by the pleadings and findings of the trial court, to be transported and delivered, and -not to be delivered without payment of the contract price of the lumber shipped.

By the representations made by appellee’s manager as above indicated, it induced the contract of shipment, which, according to the findings of the trial court would not, otherwise, or but for the representations in the form of inducements to enter into the contract, have been made. So if appellee has contracted to do that which the laws and customs already existing prohibited, and with full knowledge thereof, and failed to per- ■ form it, in -all good conscience and in equity, he must now be estopped from taking advantage of any conditions of which it had such knowledge as a defense to actual damages suffered by the appellant.

There being no controversy as to the facts, the cause is reversed and rendered for appellant.

WALTHALL, J., did not sit, being absent on committee of judges assisting tbe Supreme Court.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. FRANKEL.
    (No. 7472.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1917.)
    1. Trial <®=3l39(l) — Direction on Verdict.
    If there is any evidence tending to dispute defendant’s evidence on issues, verdict cannot be directed for defendant.
    2. Appeal and Error <®=>1O01(1) — 'Verdict-Lack on Evidence.
    If there is some evidence, though very weak and unsatisfactory, tending to support the answers to special interrogatories, they cannot be set aside.
    3. Appeal and Error ®=>1003 — Review — Verdict.
    A judgment based on a verdict against a great preponderance of the evidence must be reversed.
    4. Justices on the* Peace <®=^>150(6) — Appeals — Motion for New Trial — Necessity.
    A motion for new trial is not essential to confer jurisdiction on county court on appeal from justice court.
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge.
    Action by Jessie Erankel against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Williams & Neethe, of Galveston, and Parker & Kennerly and Richard T. Eleming, all of Houston, for appellant. Heidingsfelders’ and J. M. Gibson, all of Houston, for appellee.
   LANE, J.

This suit was originally brought in the justice court of precinct No. 1 of Harris county by appellee, Jessie Erankel, against appellant, American National Insurance Company, to recover $106 alleged to be due her upon a policy of life insurance issued by the insurance company upon the life of her deceased husband, Maxwell B. Erankel; for $2.20 for overpaid premium; and for $25 attorney’s fees — a total of $133.20.

The defendant in the court below, the insurance company, answered by general denial, and specifically averred that by the terms of the policy sued upon it is specially provided that the same should not take effect unless the insured was in sound health at the time of the delivery thereof to the insured, and that the insured was not in sound health at the time said policy was issued and delivered, but, on the contrary, he was at such time suffering with laryngeal tuberculosis; that the issuance and delivery of the policy was procured by the insured by reason of the false representations made, by him that he had not suffered from consumption, habitual cough, etc.; and that by reason of the matters alleged it was not liable to appellee in any sum whatever.

The undisputed testimony shows that the policy in question was- issued and delivered as alleged by appellee on the 29th day of November, 1915, upon an application made by the insured of date November 15, 1915; that the policy contains the following provisions and subjoined agreements of insured:

“Tbe American National Insurance Company doth agree, subject to tbe conditions printed below and on tbe following pages hereof, each of which is hereby made a part of this contract as fully as if recited over the signatures hereto attached, to pay to the beneficiary hereinafter mentioned, immediately after receipt of due proofs of death of the insured hereunder, upon surrender of this policy and all receipt books, the amount stipulated in said schedule: Provided, however, that no obligation is assumed by the company prior to.the date hereof, nor unless on said date the insured is alive and insurable according to the standard of insurability required by the company.”
“Proofs of death under this policy shall be made upon blanks to be furnished by the company, and shall contain answers to each question propounded to the claimant, physicians, and other persons, and shall contain the record, evidence and coroner’s inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of but not against the company. In the event of the death of the insured while this policy is in force, the company will pay the sum of money due under this policy to the beneficiary named in the schedule on the first page hereof, if living; if not, to the insured’s executors, administrators or assigns.”
“I hereby apply for insurance for the amount herein named, and I declare and warrant that the answers to the above questions are complete, true and were written opposite the respective questions by me, or strictly in accordance with my directions. I agree that said answers with this declaration shall form the basis of a contract of insurance between me and the American National Insurance Company, and that the policy which may be granted by the company in pursuance of this application shall be accepted, subject to the conditions and agreements contained in said policy. I further agree that no obligations shall exist against the company on account of this application, although I may have paid premiums thereon, unless said company shall issue a policy in pursuance thereof, and the same, is delivered to me.”

It is understood that there was attached to the policy as a part thereof the. application of the insured and his answers made to questions propounded to him by the examining physician; that these answérs were to the effect that at the time the questions were propounded he was in good health; that he had not lately been sick; that at that time no physical or mental defects or infirmity existed with him; that he had never suffered from consumption, asthma, spitting of blood, habitual cough, etc. Judgment was rendered for appellee in the justice court for the full amount sued for, and from' this judgment appellant, insurance company, carried the cause by appeal to the county court.

. In the county court the insurancs’company, by an amended answer, set up the terms of the policy, and averred that the conditions provided therein had . never been met,. and therefore the policy never became effective as an insurance policy in the hands of the insured or the beneficiary named therein, and for all practical purposes renewed the allegations of its original answer. The cause was tried in the county court before a jury upon the following charge:

“You are instructed to answer the following questions:
“Question No. 1. Answer whether or not the deceased, Maxwell B. Frankel, on the date of said insurance policy herein, was insurable according to the standard of insurability required by the defendant company. Answer this question ‘Yes’ or ‘No.’
“You are instructed that good health is within the meaning and included in the phrase ‘standard of insurability’ required by the company as used in the policy sued upon in this case.
“Question No. 2. Answer whether or not the representations made by deceased, Maxwell B. Erankel, in the application to obtain said insurance policy, were fraudulently made by him and the defendant company, or its agents, relied and acted upon said representations. Answer this question ‘Yes’ or ‘No.’
“The burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence. The burden of proof is on the defendant to prove his defense, if any, by a preponderance of the evidence.
“You are the exclusive judges of the facts proven, the credibility of the witness, and the weight to be given their testimony.”

The verdict of the jury was as follows:

“We, the jury, answer the questions submitted to us by the court as follows:
“No. 1. Yes.
“No. 2. No.”

Upon this verdict the trial court rendered judgment for appellee against the insurance company for the sum of $133.20. Eiom this judgment the insurance company has appealed to this court. The first, second, and third assignments of error are as follows:

“First. The court erred in refusing the defendant’s request for an instructed verdict, because the evidence of the defendant,showed that the insured did not meet the standard of insurability set by the company either at the date he made application for the insurance, or at the date of the issuance of the policy, nor of the delivery thereof, because such evidence showed that such insured at each of said dates was afflicted with tuberculosis; therefore, said policy never took effect as an obligation ag'ainst the company for the reason that it provided that it should not take effect unless on the date thereof the insured should be alive and should meet the standard of insurability set by the company, which standard, the court charged the jury in this case, required that the applicant should be in good health, and there was no evidence sufficient to contradict this, and to justify the court in submitting to the jury the issue as to whether or not the insured met the standard of insurability.
“Second. The answer of the jury to question No. 1, submitted by the court, is absolutely without evidence to support it, but on the contrary is against the undisputed evidence and against the law of the case as given in the charge by the court. The defendant, therefore, moves that such answer be set aside.
“Third. The defendant would show that the answer of the jury to question No: 2 is without the evidence to support it, and that on the contrary it is against the undisputed evidence and against the law of the case as given in the charge by the court. Defendant therefore moves the court to set aside such finding.”

We overrule these assignments. There is some evidence tending to dispute the evidence of the defendant upon the issues mentioned in_ assignment No-. 1. There was also some evidence, though extremely weak, tending to support the answers of the jury to questions Nos. 1 and 2, propounded by the trial court to them.

By the fourth and fifth assignments insistence is made that the evidence tending to support the findings of the jury and the judgment rendered is so slight as to make the findings of the jury, against such a great preponderance of the evidence, as to show it is clearly wrong.

We are constrained to sustain these assignments. We quite agree with appellant in his contention that the verdict of the jury was against such a great preponderance of the evidence as to show it is clearly wrong, and for this reason the judgment of the trial court, based on such verdict, should be reversed and the cause remanded.

Appellee’s contention that the county court had no jurisdiction of this cause, because the record shows that appellant filed no written motion for new trial in the justice court within ten days after judgment was rendered in that court, that without such motion there could be no jurisdiction acquired by appeal to the county court at law, is overruled. A motion for new trial is not essential to confer jurisdiction upon the county court on appeal. Davis v. West Texas Bank & Trust Co., 119 S. W. 393; Masterton v. Conrad, 2 Willson, Civ. Cas. Ct. App. § 753.

For the reason pointed out, the judgment of the trial court is reversed, and the cause is remanded for another trial.

Reversed and remanded.
      <gr=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    TERRELL v. COMMERCIAL NAT. BANK OF EL PASO et al.
    (No. 766.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1917.
    Rehearing Denied Jan. 10, 1918.)
    1. Banks and Banking- <®=^171(5) — Collections — Notice of Nonpayment of Drafts.
    A bank that held a draft for 27 days without notifying the payee of nonpayment when instructed to give notice by wire was guilty of negligence, and liable for resulting loss.
    2. Banks and Banking <©=3175(5) — Collections — Action for Negligence — Nominal Damages.
    In such case, unless it appears that the drawer of draft would have realized something on the debt from drawee but for the bank’s negligence, only nominal damages can be given.
    3. Banks and Banking <S=^175(3) — Collections — Action fori Negligence — Burden of Proof.
    To recover compensatory damages for negligence of a bank for failure to promptly notify drawer of the nonpayment of a draft, the burden of proof is upon plaintiff to show by preponderance of evidence that it could and would have recovered and applied to drawee’s indebtedness money of the drawee on deposit in another bank, and such burden never shifts.

      4. Banks and Banking <§=>175(5) — Collections — Action foe Negligence — Measure of Damages.
    In sucli a case, the measure of damages would be the amount plaintiff would have so recovered not to exceed the amount of the draft.
    Error from District Court, El Paso County; P. R. Price, Judge.
    Suit by E. H. Terrell, trustee in bankruptcy of the Goldoft Biquor Company, against the Commercial National Bank of El Paso, Tex., and others. Judgment for plaintiff for partial relief only and he brings error.
    Affirmed.
    Hudspeth & Harper and B. A. Dale, all of El Paso, for plaintiff in error. Beall, Kemp & Nagle and Turney, Culwell, Holliday & Pollard, all of El Paso, for defendants in error.
   HIGGINS, J.

Plaintiff in error, trustee in bankruptcy for the Goldoft Biquor Company, brought this suit against the Commercial National Bank, the State National Bank, both of El Paso, Tex., and the Gila Valley Bank & Trust Company of Globe, Ariz., to recover the amount of a draft in the sum of $2,000, drawn by the liquor company against C. A. Adams, of Globe, Ariz., same having been drawn through the Commercial National Bank on September 7, 1914. The case was tried without a jury, and judgment rendered for the plaintiff against all defendants in the sum of $1 and costs. There is no statement of facts in the record. Findings of fact, however, were filed by the trial court. A condensed statement of the findings is as follows:

C. A. Adams was indebted to the liquor company in the sum of about $4,000, and on September 7, 1914, the liquor company drew a draft upon him in the sum of $2,000 through tho Commercial National Bank. The bank passed the amount of the draft to the credit of the liquor company. The draft was a protest item, and the Commercial Bank turned same over to the State Bank. The State Bank on September 8, 1914, sent same through the mail to the Gila Valley Bank & Trust Company. The State Bank directed the Gila Bank to wire if same was not paid. The Gila Bank received the draft on September 10,1914, and held it until October 7,1914, when it returned same to the State Bank, which in turn returned it fo the 'Commercial Bank, and the latter bank then charged the liquor company’s account with the amount thereof. When the Gila Bank presented the draft to Adams it was not paid. The Gila Bank failed to wire the State Bank of its nonpayment, and the liquor company had no notice of nonpayment until October 9, 1914. Upon receipt of the draft the Gila Bank went to Adams’ place of business, but did not find him. Some days later, however, Adams promised that bank that he would pay the draft, but never did so. On the morning of October 10, 1914, the liquor company sent a representative to Globe. From and after September 15, 1914, Adams has been insolvent. From’ September 8 to September 28, 1914, Adams had on deposit in the First National Bank of Globe, Ariz., various sums of money varying from $1,314.85 to $3,440.31. On September 28, 1914, this was reduced to $14.85, and on October 1, 1914, to 85 cents. Shortly after October 1st Adams left Globe, and his whereabouts have since been unknown. On September 7, 1914, most, if not all, of Adams’ assets were covered by a chattel mortgage, which, together with the lien for rent, about equalled the value of his property.

In the latter part of September, 1914, various creditors other than the liquor company levied attachments against Adams’ effects. The liquor company knew nothing about these suits until after the return of its draft. The evidence did not disclose the exact amount of Adams’ indebtedness to his other creditors except the indebtedness to one Keating, who was secured and who realized the amount of his claim. However, the aggregate of Adams’ indebtedness, other than that to Keating, was considerable, and if any of the attaching creditors realized anything upon their attachments, it was not as much as $200. The Gila Bank was negligent in failing to promptly notify the State Bank of the nonpayment of the draft. Had it done so, the State Bank would have notified the Commercial Bank, which in turn would have notified the liquor company, and the liquor company would have used ordinary diligence to collect its debt against Adams. At the time the draft was drawn the liquor company knew that Adams did business with the First National Bank of Globe but had no information as to whether or not he had any money in such bank. Whether the liquor company would have realized anything on its debt, or what sum it would have realized had it pursued the remedies available to it, does not appear from the evidence, and the trial court, from a preponderance of the evidence, was unable to say that the liquor company had suffered damages in any specific sum.

Upon the facts so found, the court concluded as a matter of law that the defendant banks were bound to use due diligence in the presentation of the draft and to promptly notify if same was not paid, and failure to exercise due diligence in this respect rendered them liable for any resulting loss; that the burden of proof rested upon plaintiff to show the extent of his damages arising from the breach of duty on the banks’ part; and that while the three banks were negligent in handling the draft, they were liable for nominal damages only because the plaintiff had failed to show with reasonable certainty the damages which it had sustained.

It is very clear that plaintiff in error is not entitled to recover on account of the negligence of the hanks in the presentation and handling of the draft, unless it has sustained damage in consequence thereof. In-juria absque damno will not sustain an action. Story on Agency, § 236; 2 Bouvier’s Law Diet. (Rawle’s Third Revision) p. 1580. The burden of proof rested upon plaintiff in error to show substantial damage and with reasonable certainty the amount thereof. Unless this was done, nominal damages only could be awarded.

The trial court made a general finding that it does not appear from the evidence whether the liquor company would have realized anything on its debt against Adams, or what sum it would have realized, had it pursued the remedies available to it. In that state of the evidence, the court could not have rendered a judgment for more than nominal damages. In the absence of a statement of facts this court cannot review that finding. But in this connection, plaintiff in error insists that other facts found by the court rebut the finding indicated above. This insistence is based upon the finding with respect to funds belonging to Adams on deposit in the First National Bank of Globe and the finding that plaintiff would have exercised due diligence to collect its debt had it been promptly notified of its nonpayment. But it does not necessarily follow, as a matter of law, that in the exercise of due diligence the plaintiff in error would have garnished those funds in time to have impounded same. Nor does it necessarily follow, if it had promptly garnished, that it woulfl have prevailed in the garnishment and recovered such funds. This court has no knowledge of all the evidence adduced upon the trial upon which the court based its finding that plaintiff had failed to show whether it would have realized any-tfiing upon its debt, or the amount it would have realized. The state of the evidence may have been such as to justify and support this finding, notwithstanding the fact that Adams had considerable funds on deposit in the First National Bank. In the absence of a statement of facts this court must uphold the general finding made by the trial court indicated above, unless its incorrectness is shown by other specific findings made.

Under its second proposition, plaintiff in error asserts that the burden of proof rested upon defendants in error to show that it could not and would not, in the exercise of reasonable diligence, have reduced to its possession and obtained the money on deposit in the First National Bank. On the contrary, the burden of proving this fact rested upon plaintiff in error. The burden never shifts from the plaintiff to establish by a preponderance of the evidence the facts upon which he relies for a recovery. Boswell v. Pannell (Sup.) 180 S. W. 593. In order to establish plaintiff's right of recovery in this case, based upon the fact that Adams had funds with the First National Bank, it was necessary for it to show by a preponderance of the evidence that it could and would have recovered and applied to the payment of Adams’ indebtedness the money or some of the money which he had on deposit with said bank. Until it did this, it had shown no substantial damage resulting from the defendants’ negligence. Had it done this, it would have established a prima facie case, and the measure of its damage would have been the amount it would have so recovered, not to exceed the amount of the draft. The amount of the draft is in no wise material in determining the measure of damage until a prima facie case had been made in the manner indicated, and it then becomes material only as limiting the amount of recovery.

No case has been called to our attention directly in point upon the facts here presented, but in support generally of the conclusions reached see the following: Bank v. Bank, 12 Tex. Civ. App. 318, 34 S. W. 458; Sahlien v. Bank, 90 Tenn. 221, 16 S. W. 373; Givan v. Bank (Tenn. Ch.) 52 S. W. 923, 47 L. R. A. 270; Bank v. Huggins, 3 Ala. 206; Exchange National Bank v. Third National Bank, 112 U. S. 276, 5 Sup. Ct. 141, 28 L. Ed. 722.

Finding no error, the judgment is affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      (g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    SOUTHERN TRACTION CO. v. ROGAN.
    (No. 1832.)
    (Court of Civil Appeals of Texas. Texarkana
    Nov. 9, 1917.
    Rehearing Denied Nov. 27, 1917.)
    1. Appeal and Error. <§=>500(4) — Review-Record — Matters Presented.
    Objections to the general charge and to the action of the court in submitting special issues will not be considered on appeal unless by proper authentication the record discloses that the objections were presented in the court below within the time prescribed.
    2. Trial <§==3253(6) — Instructions—Refusal.
    A special charge ignoring an issue of fact clearly presented by the evidence is properly refused.
    3. Release <§=>18 — 'Validity—Fraud.
    On the day of her husband’s burial, who was run down by defendant’s car, plaintiff, a widow, who was a deaf-mute, was induced to enter into a settlement with defendant. Plaintiff did not have sufficient funds to pay for her husband’s burial, and defendant’s agent represented that, if the charges were not paid, the body would be exhumed and thrown into the potter’s field, and defendant’s agent further represented that the plaintiff had no cause of action whatsoever, and that the only sum which she might receive was mere gratuity. Held, in view of the situation of the parties and the fact that plaintiff reproached herself for having directed her husband to go on the tracks of the defendant, the settlement which was inadequate in amount must be deemed the result of fraud and coercion, and cannot be sustained.
    4. Trial <§=3143 — Toby Question — Conflicting Evidence.
    Where the evidence is conflicting, the question is for the jury.
    5. Trial <§=3253(6) — Instructions—Refusal.
    In an action for wrongful death, where defendant set up a release which plaintiff attacked on several grounds, including fraud and duress as well as mental incapacity at the time the release was* entered into to understand its purport, the court submitted only the issue of mental incapacity to the jury, though the evidence raised the other issues. Held, that the failure of the court to submit the other issues relating to the validity of i;he release did not destroy plaintiff’s right to have them passed upon either by the court or the jury, and did not warrant the giving of special charges which ignored such issues.
    6. Trial <§=>139(1) — Peremptory Instruction-Propriety.
    Where the evidence raised issues of fact, the direction of a verdict for defendant is improper.
    7. Release <§=>21 — Contracts — Ratification.
    Where the evidence tended to show that plaintiff, when she executed a release, was the victim of fraud and duress, as well as that her mental condition at the time might have been such as to preclude her from understanding the, terms of the release, there was no ratification by reason of plaintiff’s subsequent acceptance of the sum mentioned in the release where at the time of ratification plaintiff had not learned of her rights; for there can be no binding ratification of a voidable contract so long as plaintiff was subject to the disabilities which made the contract voidable.
    8. Railroads <§=3400(14) — Injury to Persons on Tracks — Actions — Evidence — Discovered Peril.
    In an action for the wrongful death of plaintiff’s husband, who was run down by defendant’s car, question of whether defendant’s motorman was guilty of negligence after discovering the husband’s peril held, under the evidence, for the jury.
    9. Railroads <§=>377 — Injury to Persons on Tracks — Presumption.
    The rule that those in charge of trains have a right to presume that persons walking on the track will observe the usual danger signals and seek a place of safety has no application when those in charge of cars know or have good ground for knowing that for some reason the warnings were not heard or will not be observed.
    10. Railroads <§=>390 — Injury to Persons on Tracks — Discovered Peril.
    Eor one walking on railroad tracks to come within the doctrine of discovered peril requiring those in charge of trains to exercise care for one in a position of peril, it is not necessary that the pedestrian should be in actual danger; it being sufficient if it is apparent that he is about to enter into a perilous situation.
    11. Appeal and Error <§=>218(2) — Presentation of Grounds of Review in Court Be; low — Necessity.
    Whore defendant’s motorman testified that deceased was in his observation continuously from the time he was within 400 or 500 yards from him- until he was struck, a special issue submitting the question whether the motorman on discovering deceased’s peril used all means at hand consistent with the safety of his car to avoid striking deceased, calling, as it did, for a categorical answer, was not objectionable as on the weight of the evidence in assuming that deceased was in a position of peril, and defendant, not having requested the submission of the issue of deceased’s position of peril, cannot raise the objection on appeal.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by Lula P. Rogan against the Southern Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Spell & Sanford, Nat Harris, and Chas. B. Braun, all of Waco, for appellant. J. D. Williamson and Cross & Rogers, all of Waco, for appellee.
   HODGES, J.

On July 19, 1914, William Rogan was killed, while walking on the appellant’s track between Gross and Ralph, two stations not far from Waco, by one of the appellant’s motorcars. This suit was instituted by the appellee, Lula Rogan, his widow, in the early part of August thereafter, to recover the resulting damages. In substance, the plaintiff below alleged that the appellant’s right of way between those two stations was commonly used by pedestrians as a pathway, with the knowledge, consent, and acquiescence of the appellant; that William Rogan was deaf, and while walking north on the right of way between two stations known as Gross and Ralph was struck and fatally injured by one of appellant’s cars. It is alleged that the defendant was negligent in running the car at a reckless and dangerous rate of speed, in not warning William Rogan'of the approach of the car, and in failing to stop the car after discovering Rogan in a perilous situation. The appellant alleged, among other defenses, a settlement ; that after the death of William Rogan the appellee, Lula Rogan, in consideration of the sum of $519.50 paid to her as damages for the death of her husband, executed a release. ,By a supplemental petition the ap-pellee admitted the execution of the release, but alleged that it was procured through trickery, fraud and duress, and that at the time she signed the instrument she was mentally incapacitated to understand and comprehend its meaning. She tendered back the sum received, and further requested that in case she recovered a judgment this sum be deducted from the amount of the damages awarded to her.

The case was submitted to the jury upon the following special issues:

(1) “Was the plaintiff at the time she signed the release in question to the defendant traction company in such a condition of mind as to render her incapable of understanding and appreciating the nature and effect of such a release, even if plaintiff knew or had been advised of the contents thereof?” To this the jury answered “Yes.”
(2) “Did defendant’s motorman at the time in question, on discovering the peril of plaintiff’s deceased husband, use all the means at hand consistent with the safety of his car and the occupants thereof to avoid striking the deceased?” This was answered in the negative.
(3) The third issue related to the amount of damages, which the jury placed at $1,519.50, from which the court deducted $519.50 received as the consideration for the release theretofore executed.

Many of the material facts adduced on the trial below were undisputed. It was shown that William Bogan and his wife lived near the right of way of the appellant; that late in the afternoon of July 19, 1914, at the request of his wife, Bogan started to the house of a neighbor for the purpose of obtaining some milk. He used the path leading over the appellant’s right of way. One of the appellant’s motorcars going from Waco to Waxahachie overtook and struck Bogan, inflicting injuries from which he died. Bogan was a deaf-mute, but that fact was unknown to the motorman at the time. As will be observed, the only ground of liability was that of discovered peril. Upon that issue the testimony was conflicting, and will be discussed under an appropriate assignment.

In the first assignment of error the appellant insists upon the insufficiency of the evidence to authorize the submission of the first special issue. Objection is made to the consideration of that assignment, upon the -ground that the record contains no properly authenticated statement that objections to the charge were made at the proper time in the court below. There is in the record an unauthenticated instrument in which are incorporated the objections here urged. It is signed by counsel for the appellant and by the judge of the trial court, but over the signature of the latter is the word “Befused.” It has been repeatedly held that objections to the general charge and to- the action of the court in submitting certain special issues will not be considered on appeal unless by proper authentication the record discloses that those objections were presented in the court below within the time prescribed by statute. Railway Co. v. Wadsak, 166 S. W. 42; G. & T. Ry. Co. v. Dickey (Sup.) 187 S. W. 184.

Appellant presented three special charges in the court below, each of which was in substance a peremptory instruction to the jury to find for the defendant. In two of those charges the direction was based upon the proposition that the release was valid and binding and concluded the plaintiff’s right to any further damages. The other special charge informed the jury, as a matter of law, that the appellee’s husband was a trespasser at the time he was killed, and for that reason she was not entitled to any recovery. This last-mentioned charge ignored the issue of discovered peril which the evidence clearly raised, and for that reason alone was properly refused.

A more serious question, however, is presented in the propositions embraced in the other requested instructions. The evidence shows that on the day of the burial of the appellee’s husband, and within a short time thereafter, she executed a release reciting the receipt of $519.50 as a settlement for the damages resulting from the death of her husband. It was further shown that on the following day $400 of that sum was paid to and accepted by her. The remainder was, with her consent, applied to the payment of the funeral expenses of the deceased. Upon that settlement the appellant now stands, and resists further liability.

While the- appellee attacked, in her petition, the validity of the release upon several distinct grounds, only one was submitted by the court as an issue of fact to be passed upon by the jury, that of the mental incapacity of the appellee at the time she made the settlement. Conceding the correctness of the appellant’s contention that the evidence was insufficient to support the finding made upon that issue as submitted, there was evidence sufficient to support a finding upon one or more of the other grounds upon which the validity of the release was attacked. It is undisputed that the appellee belonged to that class of unfortunates who can neither hear nor speak. The evidence tended to show that she was an ignorant woman and unfamiliar with her legal rights. She was carried directly from the burial of her husband to the office of the appellant’s claim agent, for the purpose of discussing a settlement. The negotiations between her and the claim agent were carried on through one of her husband’s brothers, who acted as an interpreter. She testified that her husband’s brothers, who were present, told her that Mr. Boss, the claim agent, would give her enough money to bury her husband; that that sum must be paid, or he, the claim agent, would have her husband’s body taken up and buried in the potter’s field. We quote the following from her testimony:

“He [the interpreter] said Mr. Boss vtos sorry for me and would help me, but I had to sign the paper. They asked me for my plans for the future. I did not know. I said we were planning to build a little house in Oaklawn. They asked me what it would cost to build our house. I said a small three-room house about $300 or $400. * * * Mr. Boss said he would pay for the funeral and leave me $400 to build my house and then I could go to work, and that he would help me only for pity because he was sorry for me; that my husband had no right to walk on the track; that there was a law against deaf-mutes going on the road. They told me to sign that writing; that if I did not sign it they would take his body up from the grave in Oak-wood Cemetery and throw it in the potter’s field. I did not read the writing that I signed. As to my mental and physical condition at that time, I was heartbroken. I was heartbroken, for I thought I had Silled him when I made him go after the milk. They had me up there in that office about a half an hour or an hour. I did not know what was in the writing that I signed and did not care as long as he could stay in the grave.”

If these facts are true, there is presented a situation where the contracting parties were not dealing upon anything lite equal conditions. To conclusively presume tlaat an ignorant deaf-mute widow, too poor to bury her dead, while enduring the griefs of recent bereavement made sharper by feeling of self reproach, should be able to protect her legal rights in a contest with a trained and unemotional representative of a great corporation, is demanding too much of the human mind. If at the time this settlement was made the appellee had a well-founded claim for damages against the appellant, the amount she then received was grossly inadequate. If she was induced to make that settlement and accept that sum by the representations that her husband at the time he was killed was unlawfully trespassing upon the property of the railway company, and for that reason she was not legally entitled to any compensation for his death, that what was offered was a mere gratuity, tendered through sympathy for her poverty and distress, and that, if the release was not then executed, the grave of her husband would be reopened and his body transferred to the burial ground for paupers, then she was overreached, coerced, and imposed upon in a way which the law cannot sanction.

It is true the testimony of the ap-pellee was disputed by other witnesses, but that only presented a conflict, and did not remove the issue of fact from the province of the jury. As long as there were present issues of fact raised by the pleadings and the evidence which were sufficient to sustain a finding against the validity of the release, it would have been improper for the court to direct a verdict in the appellant’s favor. The failure of the court to submit those other issues relating to the validity of the release did not destroy the plaintiff’s right to have them passed upon either by the court or the jury. Logically the consideration of peremptory instructions comes first in determining what directions shall be given in a jury trial, and the propriety of giving them depends more upon what the court should do at that stage of the proceedings than what he may thereafter decide to do. The court’s failure to submit the proper issues of fact for the avoidance of the release could not by retroaction make, an erroneous special charge proper.

One of the two special charges referred to above is based upon the conduct of the appellee in accepting the $400 the day after the release was executed and retaining it. It is contended that, even if she was mentally incapacitated at the time to execute a binding release, her contract was voidable only, and open to an affirmance when that disability was removed, and that the evidence conclusively shows an affirmance at a time when she was suffering from no mental incapacity. That argument is founded upon the assumption that mental incapacity was the only issue which should have been submitted in that connection. If when that charge was requested the pleadings and the evidence were such as to show that the ap-pellee may have been influenced to execute the release by fraud or duress, the bare fact that she on the next day accepted the money and failed to repudiate the settlement is not sufficient, as a matter of law, to defeat her right to recovery. There is no evidence that she then knew any more about her legal rights than she did the day before. If she had then been deceived as to her rights, or was acting under compulsion of some kind, the deception may have still continued. There could be no binding ratification by her of a voidable contract so long as she was subject to the disabilities or impositions which made the contract voidable.

In the last assignment of error it is contended that the evidence was insufficient to justify a finding that the motorman discovered the deceased in time to avoid the injury. The motorman testified that there was no one on the car except himself and the conductor. They left Waco at 7 o’clock p. m., and when a short distance out he saw a person ahead walking on the end of the cross-ties on the outside of the rail. This person afterwards proved to be William Ro-gan, the deceased. The witness was not acquainted with Rogan at the time, and did not know that he was deaf. When he first discovered Rogan the latter was about 400 or 500 yards from the ear, going in the same direction. Witness then began to blow the whistle, and continued to sound it till the ear was within about 200 feet of Rogan. The failure of Rogan to make any move to get off the track caused the witness to check the speed of his car, and just as he was about to stop Rogan stopped off of the ties on to the ground and continued to walk there until the car, the speed of which in the meantime had ’been increased, was within about 25 feet of him. He then suddenly stepped on the track in front of the car and was struck by it. The witness further testified that after Rogan got on the track the second time he did all in his power to stop the car, but was unable to do so. A Mrs. Bateman, who appears to have been an eyewitness to the occurrence, testified that she was on the railroad crossing some distance in front of Rogan and the car; she saw both When they were a considerable distance away. She heard the motorman sound the whistle, and saw Rogan walking on the track. He was walking on the inside and near the west rail. She noticed the car slow down and then start up again; the car never came to a stop until after Rogan was struck. She testified further that she saw Rogan continuously from the time her attention was first attracted when the car was some distance from him, and that he never got off the track. In this particular she contradicted the testimony of the motorman. The latter further testified, after stating the extent to which he had sounded the whistle, that he intended to stop the car, get down, go to Rogan, and find out whether or not he was drunk; but that when Rogan stepped off on the ground he started his car again. This clearly indicates that the motorman had discovered, before Rogan was struck, that there was something wrong with him, something to indicate that he was not giving the proper attention to the danger signal. If the jury accepted the statements of Mrs. Bateman that Rogan never left the track, but continued to walk in front of the car in a place of danger, then they had a right to conclude that his peril was discovered at a time when the injury might have been prevented.

Counsel for appellant refers to a group of cases which in effect hold that those in charge of railway trains have a right to presume that persons walking on the track will observe the usual danger- signals and seek a place of safety. But that doctrine has no application when those in charge of cars know, or have good ground for believing, that for some reason the warnings are not heard or will not be observed. H. & T. C. Ry. Co. v. O’Donnell, 99 Tex. 640, 92 S. W. 409. To constitute discovered peril it is not always necessary that the injured party should be in a place of actual danger. It is sufficient if it is apparent that he is about to enter a perilous situation. H. & T. C. Ry. Co. v. Finn, 107 S. W. 94; Id., 101 Tex. 511, 109 S. W. 918. The facts distinguish this case from the group to which the appellant refers. Here it appears from the motorman’s testimony that he discovered that the danger signal was not being regarded, and, according to his own admissions, he thought something was wrong with the man. That being true, he was put upon notice that an injury would probably result unless he stopped the car. We think the evidence was sufficient to justify the court in submitting the issue and to sustain the answer given.

It is also contended that this portion of the court’s charge was on the weight of the evidence in assuming that the deceased was discovered in a perilous situation at a time when the injury might have been averted. The submission of this issue in the form selected called for nothing from the jury except a categorical answer, “Yes” or “No.” It is not subject to the objection made. The facts are undisputed that the deceased was, just before he was struck, in a perilous situation, and that he was discovered by the motorman. According to the motorman’s own testimony, the deceased was under his observation continuously from the time he was within 400 or 500 yards of him till he was struck. If the appellant desired to have the jury pass upon the question of timely discovery it should have made an appropriate request. Having failed to do so, it cannot now complain that the court reserved and exercised that privilege.

The judgment is affirmed.
      (gs^For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    TEXAS & P. RY. CO. v. WOLDERT GROCERY CO.
    (No. 1818.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 27, 1917.
    Rehearing Denied Jan. 10, 1918.)
    Carriers <S=>136 — Shipment op Peaches— Action — Directed Verdict.
    In action against carrier for decay of car of peaches shipped from Texas to Indianapolis, where there was an inference of full refrigeration from payment of full charge therefor, and there was no showing that the time in transit, about 96 hours, was not reasonable dispatch, mere showing of delivery to initial carrier in good condition and delivery by terminal carrier in. bad condition, with testimony that the peaches should have carried 60 to 72 hours under proper refrigeration, did not warrant directed verdict for plaintiff, for, where the inferences as to the carrier’s negligence or fault are conflicting and not conclusive, the case is for the jury.
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by the Woldert Grocery Company against the Texas &i Pacific Railway Company. Prom judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    The appellee company was the shipper of a carload of second-grade peaches from 'Clyde, Tex., consigned to Geo. H. Hitz & Co., Indianapolis, Ind. The appellant company issued a bill of lading reciting that it— “received from the Woldert Grocery Company 414 bushel baskets of Elberta peaches consigned to Geo. Hitz & Co., Indianapolis, Indiana, to be routed over the St. Louis, Iron Mountain & Southern Railway and Big Pour Railway at a rate of 69 cents per hundred pounds, the car to be iced to full capacity to destination showing a refrigeration of twenty thousand pounds.”
    It was proven by appellee that the peaches were in good condition when loaded in the A. R, T. car at Clyde, and should have carried in that condition from 60 to 72 hours under proper refrigeration. It was shown that the peaches reached Indianapolis on the morning of August 9, 1913, and that they were in an overripe condition, bruised, and showing decay. The consignees refused the shipment, and on telegraphic order of appel-lee made sale thereof for the appellee. The peaches were sold by the consignees for $612.30; and after deducting the freight, car service, cartage, icing, and commissions, they remitted the appellee the balance amounting to $318.10. The appellee brought the suit for damages for $302.90 and interest, alleging that the defendant company negligently (1) failed to furnish a suitable and properly equipped ear; (2) failed to transport the peaches safely and within a reasonable time and with due and proper care; and (3) failed and refused to properly ice the car in transit. The defendant, besides denial, pleaded a want of negligence on its own part and on the part of its connecting carriers, and the stipulation that no carrier should be liable for loss or injury not occurring on its own road or on its portion of through route, and the stipulation respecting the computation of the loss or damage for which any carrier was to he liable. The court peremptorily instructed a verdict for the plaintiff.
    Young & Stinchomb, of Longview, Simpson, Lasseter & Gentry, of Tyler, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellant. Price & Beaird, of Tyler, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant insists that the court erred in peremptorily instructing a verdict for the plaintiff for the sum sued for, because (1) in the circumstances of this case any inference of negligence proximately causing damages to the peaches was within the province of the jury, and (2) the amount directed to be found included items not authorized to be recovered in this case. The undertaking of the railway company was only, it appears, to transport the peaches with reasonable dispatch in a car to be iced to full capacity showing a refrigeration of 20,000 pounds. The only1 evidence respecting the icing of the car is that appearing in the recitation of the freight bill paid, which is “the aggregate freight of $220.49, including refrigeration charges and the East St. Louis' boat transfer.” And all the evidence respecting the transportation of the peaches is that the loading of the peaches into the ear at Olyde, Tex., was completed at 11:90 o’clock a. m. on August 5, 1913, and the car was forwarded from that station at 1:20 p,, m. of the same date and arrived at destination on the morning of August 9th, and delivery was then made to the consignees. It is shown that at the time the peaches were put into the car they were in good condition, “and should have carried from 60 to 72 hours under proper refrigeration.” Refrigeration would not entirely retard, it is shown, the natural processes of decay of the peaches. At the time of delivery at destination they were in an overripe condition and showing decay. Thus according to the evidence it may be concluded that the peaches in their condition at the time of shipment would carry and not become overripe upon proper refrigeration for 60 -to 72 hours from date of shipment. But an inference in the circumstances is authorized that after 72 hours the natural process of overripeness and decay in the peaches would not be entirely retarded, even though refrigerated. And while there is no direct evidence that the car was or was not refrigerated, there is the circumstance authorizing an inference of full refrigeration that the full refrigeration charges were demanded and paid. From 1:20 p; m. of August 5th, the date of shipment, to the morning of August 9th, the date of arrival at destination, was more than 72 hours. And there is nothing in the circumstances tending to show that the time thus taken in transporting the car of peaches to destination was not usual and ordinary and with reasonable dispatch. As a matter of law the court may not say that the time was unreasonable and not with reasonable dispatch. It the natural process of overripeness and decay in the peaches would be retarded by proper refrigeration for 72, and more than 72 hours was a required time for reasonable dispatch of the car to destination, then the presumption from circumstances would be conflicting as to whether negligent refrigeration or transportation or natural processes caused the peaches to become overripe and show decay, as appeared to be the damage. It is laid down as a rule of evidence that proof by the plaintiff that the goods were delivered to the initial carrier in good condition and were delivered by the terminal carrier in a damaged condition raises a presumption, not conclusive, but prima facie, of negligence or fault on the part of the company. Railway Co. v. Mazzie, 29 Tex. Civ. App. 295, 68 S. W. 56. And where the inferences that may be drawn from the circumstances in the particular case respecting negligence or fault on the part of the carrier are conflicting and not coriclusive the court is not warranted in withdrawing the case from decision by the jury. Railway Co. v. Richmond & Tiffany, 94 Tex. 571, 63 S. W. 619. In view of all the circumstances the court, it is believed, should have passed the case to the jury for decision. It becomes unnecessary to decide the point made respecting the stipulation as to amount of recovery, since the allegations in the petition' did not cover the special damages of cartage and commissions.

The court did not err in sustqining the exception to paragraph 5 of the defendant’s answer. Railway Co. v. Ray, 127 S. W. 281; Railway Co. v. Meyer, 155 S. W. 309.

The judgment is reversed, and the cause remanded.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    HOUSTON OIL CO. OF TEXAS et al. v. PATTERSON.
    (No. 288.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1917.
    Rehearing Denied Jan. 23, 1918.)
    Adverse Possession @=>100(1) — Extent oe Possession — Possession under Conveyance.
    Where plaintiff’s predecessor in title bought the whole of a survey which conflicted with another survey, nothing being known of the conflict at the time, and went into possession claiming the whole survey and using parts of it in the conflict and other parts not in the conflict, and extended his invasion of the senior survey by clearing up and fencing additional land in two different places, his adverse possession extended to the whole of the conflict.
    Error from District Court, Hardin County; L. B. Hightower, Judge.
    Suit by M. L. Patterson against the Houston Oil Company of Tesas and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Kennerly, Williams, Lee & Hill, of Houston, for plaintiffs in error. D. F. Singleton, of Kountze, for defendant in error.
   BROOKE, J.

M. L. Patterson filed suit in trespass to try title for a part of the Louis Boullette 320-acre survey, described as follows:

“Beginning at the original northwest corner of said Louis Boullette survey, which is the southeast corner of the P. S. Watts survey, said P. ¡3. Watts being originally the Reuben Pussey survey; thence east 682 varas cross the supposed west line • of E. P. Elliott league, and continuing east 1,344 varas in all to the original northeast corner of said Boullette survey; thence south on the east line of said Boullette survey 904 varas to Beaumont creek; thence up said creek to the mouth of a branch which is the dividing line between M. L. Patterson and Olive Sternenberg & Co. ; thence up said branch to the west line of said Boullette survey, which is the east line of Joseph Landis survey No. 3; thence north with the dividing line between the said Landis and Boullette survey 648 varas to the place of beginning.”

In addition to the usual allegations, plaintiff pleaded title by limitation, and asked for an injunction restraining the Houston Oil Company of Texas and the Kirby Lumber Company from cutting the timber from said land. Judgment was entered for plaintiff for the land in controversy.

This case was tried before the court without a jury, and the court filed his findings of fact and conclusions of law, as follows:

“Request having been made by the defendant in the above-styled cause for the findings of fact and conclusions of law in said cause, I hereby file the following as my findings and conclusions:
“(1) I find that the Lewis Boullette survey was patented by the state of Texas to Lewis Boullette on the- day of March, 1847. I find that on December 14, 1859, Lewis Boul-lette, the original grantee, conveyed said survey to M. Brackin, and that by regular chain of transfers title is now held by the plaintiffs in this suit.
“(2) I find that the Lewis Boullette survey conflicted with the P. P. Elliott league to the extent of something over 600 varas on the east; that is, that the eastern part of the Lewis Boullette survey was actually located and surveyed to the extent of over 600 varas on the west end of the F. P. Elliott league, and the Elliott league is the senior survey.
“(3) I find that M. Brackin went into possession of said Lewis Boullette survey on or about January 1, 1860, and immediately commenced the cultivation of a field on said survey consisting of 50 or 60 acres, and that within said field there was about 15 acres of land on the conflict between the Boullette and the Elliott surveys, and that said 15 acres field was continuously held, possessed, cultivated, and enjoyed by the said Brackin from January 1, 1860, until some time in March, 1872, at which time the said M. Brackin died, and that M. Brackin’s widow, now Mrs. M. L. Patterson, continued to ' use, cultivate, and possess and enjoy said 15 acres of land on said conflict until 1884; that the said M. L. Brackin, widow of the said M. Brackin, cultivated said 15 acres of land by hired labor until 1875, when she married Patterson, and that the said Patterson, the husband of said M. L. Brackin, cultivated the same until 1884.
“I conclude from the foregoing findings of fact that M. Brackin had matured title to all of the land in 'conflict between the Lewis Boullette and F. P. Elliott surveys under the three-year statute of limitation, and that possession of the part now claimed by M. L. Patterson, and which is involved in this suit, was continued under the said M. L. Patterson and her husband, H. T. Patterson, a sufficient length of time to complete and perfect title to all of said conflict of that part now claimed by M. L. Patterson, under the ten-year statute of limitation, and that therefore the plaintiff in this suit is entitled to recover, and judgment is given accordingly.”

It is conceded that the findings of fact are amply supported by the evidence.

Appellant’s first assignment of error is as follows:

“The court erred in not rendering judgment for the defendant as the owner of the record title to the senior survey, because, as shown by the undisputed evidence and the. findings of fact, the possession by the owners of the Boullette survey of that part of same in conflict with the Elliott league consisted entirely of the possession, cultivation, and use of a field which lay partly on the Elliott and partly off of same, and was adjoining and was incidental to the residence houses and all other improvements which were situated entirely without the Elliott league, and such possession as was held on the Elliott' league was merely subsidiary and incidental to, and therefore referable to, the home and place of residence, and was therefore insufficiently distinct to afford a basis for the, acquisition under - the statutes of limitation of more of the adjoining survey than was actually so possessed and used throughout the statutory period.”

It is insisted that the decision -in Bailey v. Kirby Lumber Company, 195 S. W. 221, applies to the instant case. On the contrary, it is insisted that this case is in no wise analogous to the cases of Bracken v. Jones, 63 Tex. 184, Holland v. Nance, 102 Tex. 177, 114 S. W. 346, and that line of cases known as encroachment cases, nor is this case in any wise analogous to the case of Bailey v. Kirby Lumber Company, supra. Inasmuch as the writer was the author of the opinion in the Bailey Case, it is sufficient to say that, in our judgment, the present case, like a great many others, is dependent upon the facts in the particular ease itself. We have no hesitation in saying that it is not such a case as the Bailey v. Kirby Lumber Company , Case.

Plaintiff’s predecessor in title bought the whole Boullette survey from the patentee in December, 1859, and immediately went into possession. At that time nothing was known of any conflict between the Boullette survey and the Elliott League, and the then owner of the Boullette went into possession, claiming the whole survey against the world, using parts of said survey in conflict and other parts not in conflict with the Elliott. Fur-thei-more, immediately after going into possession, he extended his invasion of the senior survey by clearing up additional land in two different places which he fenced, and thus emphasized his claim, thereby giving unmistakable notice to the world of the extent of Ms claim.

We find no difficulty in bolding in this case that the trial court was not in error in holding that the law was with the appel-lee. We are still of opinion and adhere to the holding in the ease of Bailey v. Kirby Lumber Company, but we see no occasion to and will not go into detail and discuss the differences between the facts in that case and in the instant case. Suffice it to say we believe that the lower court was not only correct in his findings of fact, hut in his conclusions of law, and, there being no error in his action, the case is in all things affirmed.
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author: RAINEY, O. J.

text:
    HILL COUNTY SCHOOL TRUSTEES v. MELTON et al.
    (No. 7994.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 22, 1917.
    Rehearing Denied Jan. 19, 1918.)
    1. Schools and School Districts <⅞^37(3)— B ound abies — Chan ge .
    Under Rev. St. 1911, art. 2866, providing that the commissioners’ court of any county may change the boundaries of any independent school district when in its judgment the public good demands it, providing that proper notification be given, it is not necessary for any petition to be presented to the board of trustees for the county, but it is authorized to act on its own initiative for the public good.
    2. Schools and School Districts <⅞=»36 — Change oe Boundaries — Powers.
    Under Acts 34th Leg. c. 36, taking management of public schools out of the hands of the county commissioners and placing it in the hands of five trustees to be elected by the people, vesting all the powers of the county commissioners in such county trustees, the trustees became vested with the power of the commissioners’ court to change the boundaries of any independent school district and to consolidate two or more districts, under Rev. St. 1911, art. 2816.
    3. Schools and School Districts <S=^37(3)— Change oe Boundaries — Statutes.
    Rev. St. 1911, art. 2865, provides that, when the trustees of an independent school district desire to attach a part of its territory, it must have a petition of the majority of the qualified voters for members of the Legislature living in the part of the district to be affected before the trustees can act. Article 2866 gives the commissioners’ court of any county authority to change the boundaries of any independent school district when in its judgment the public good demands it upon proper notification. Held; that the powers granted in these two articles are different in that the former article requires a petition of the qualified voters of the territory to be annexed.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Petition by G. S. Melton and others against the Hill County School Trustees and others for a writ of mandamus and to restrain the execution of certain orders. Judgment for petitioners, and respondents named appeal.
    Reversed and rendered.
    M. S. Wood, of Itasca, and Collins, Morrow & Morrow, of Hillsboro, for appellant. J. Webb Stollenwerck, J. D. Abney, and R. M. Vaughan, all of Hillsboro, for appellees.
   RAINEY, O. J.

This suit was brought by appellees, trustees of the Salem common school district No. 18, against _ the trustees of the Savage common school district and the board of trustees of Hill pounty and the trustees of the Irene independent school district in said county, seeking a writ of mandamus requiring the county board of school trustees to set aside and annul certain orders made by it on the 13th day of April and on the 4th of May, 1917, abolishing the Salem district and attaching its territory to said Irene and Savage district, and also praying for a writ of injunction restraining appellants from executing said orders, and for judgment canceling and rescinding said orders. Upon hearing before the court without a jury judgment was rendered as prayed for against the appellants, from which this appeal is taken.

The facts are that on April 13, 1917, the board of school trustees of 1-Iill county met and passed an order abolishing said Salem common school district, and attached a part of its territory to the Savage common school district, and the remaining portion to the Irene independent school district, said order reciting, “It appearing to the board that the good of the public would be best served by so detaching the hereinafter described territory from Salem common school district and attaching same,” naming the territory by motes and bounds, attached to each of the other two respective districts.

Afterwards the trustees of Salem district filed with the county school board a remonstrance against the abolishing of said district and asking that said order of April 13th be set aside and a rehearing be granted. The county school trustees met in session on May 4,1917, when said remonstrance was presented, and the county board proceeded to hear same, and reaffirmed the order of April 13th. It was recited in said order:

“That it is to the interest of the children residing in said Salem school district No. 18 * * *that it be so divided and attached to. the other districts, and that it is to the interest of the children and to the interest of the public education that said school district No. 18 be abolished and the territory thereof be divided and added,” as set forth.

It further recited:

“The board finds further that since its action-of April 13, 1917, a petition was signed by a majority of the legally qualified voters residing within that portion of the territory added to the Irene independent school district by this board duly verified by an affidavit of three of said voters, together with a description of said territory, was presented to the president of the board of trustees of the Irene independent school district, whereby said board was petitioned to receive and annex said territory to be and become a part of the Irene independent school district as provided by section 212 of the school law, and that the hoard of trustees of the Irene independent school district considered said petition and approved the same and adopted a resolution annexing the territory described in said petition to the Irene independent school district, and that thereafter the said resolution was duly certified and filed, for record in the deed records of Hill county, Tex., as provided by law, and the board further finds that the territory so annexed by said board of trustees of the Irene independent school district was the identical territory annexed by order of this board on April 13,,1917, and that after said territory was added to the said Irene independent school district the area thereof was not increased so that the same would exceed 25 square miles.”

After the matter was' reopened the school board heard evidence offered on the part of all parties and argument of counsel on both sides, and, after duly considering said evidence and argument, concluded as stated in the order of May 4th. Both orders, as shown by the record, were approved and signed by the president of the board, W. T. Lofland. Salem school district always contained less than nine square miles, after part of it in 1904 was detached and added to Irene school district No. 104. The Salem district is contiguous to the Irene and Savage districts, lying between them.

The said orders of April 13th and May 4th were attacked in the district court as null and void, and were so held by said court for the reasons:

(1) Because the trustees of Irene independent school district were not authorized by law to deprive Salem common school district of part of its territory, reducing it below nine square miles, and therefore the order was void. The transcript does not show definitely what the proceedings of the Irene board were on May 3, 1917, nor upon them acted, but assuming that action was taken by it, as stated, on Ma.y 3d, we think it immaterial, as it does not affect the decision of this case, as the board of school trustees of Hill county on April 13th had met and abolished said Salem district, and on May 4th reopened said order of the 13th and heard the whole matter and reaffirmed said order of April 13th which abolished and attached said territory to the Irene district.

(2) The trial court held said order of April 13th and May 4th void because it was not done on the petition of a majority of the qualified voters for members of the Legislature residing in the territory of the Salem district, and therefore had acquired no jurisdiction to act in the premises.

(3) Because the order of April 13th was set aside by the order of May 4th, and was not reviewed or reinstated by the order of May 4th; that said order was not made by said board of trustees for Hill county, but said board attempted to delegate its authori-5y to one M. S. Wood, who was not a member of said board, and, as the order prepared by said M. S. Wood was never approved by said county school trustees of Hill county, same was and is a void act in so far as attempted to be asserted as a legal and binding act and order on the part of the common school district No. 18, which was not by such proceedings abolished,' or its territory added to Irene independent school district and the Savage common school district attempted to be attached by said order.

All of the conclusions of law and fact found by the trial court are attacked by the appellants as incorrect on the ground that the board of trustees was authorized to abolish said Salem district and attach the territory to the Savage and Irene districts without any petition by the inhabitants of either district. In this contention we concur. It is true, by article 2865, R. S. 1911, when the trustees of an independent school district desire to attach a part of an adjoining common school district as part of its territory, before doing so it must have a petition of the majority of the qualified voters for members of the Legislature living in the part of the district desiring to be attached signed thereto before the trustees can act. But by article 2866 a different proceeding is provided, said article reading as follows:

“The commissioners’ court of any county shall have the authority to change the boundaries of any independent district situated in said county, when in the judgment of said court the public good demands such change: Provided, that, before any change is made in the boundary lines of any independent district, the president of the board of trustees of the independent district to be affected by the proposed change shall be notified, and said board of trustees shall have the right to be heard in case there is opposition to the change; provided, further, that this provision shall apply only to school districts incorporated for school purposes only; and, provided, further, that no change shall be made that would reduce the total value of taxable property in any independent district against which there are outstanding bonds legally issued.”

By the last article it is not necessary for any petition to be presented to the board of trustees for the county, but it is authorized to act on its own initiative for the public good.

By the act of the Thirty-Fourth Legislature of March 5, 1915 (chapter 36), management of public schools was taken out of the hands of the county commissioners and placed in the handsi of five trustees to be elected by the people. This act provides that all the powers heretofore vested in the county commissioners should be vested in said county ' trustees. This being so, said board of school trustees became vested with th.e power of the commissioners’ court to change-the boundaries of any independent district, to change district lines, “to redistrict a part or all of said county; and they may at any time consolidate two or more adjacent school districts, or may subdivide any school district or districts.” Article 2816, R. S. 1911.

The powers granted in articles 2865 and 2866 are different. In article 2865 the proceeding requiring a petition of the qualified voters of the territory to be annexed applies to the action of the board of trustees of an independent district, while in the second it is different, and the proceeding required is that the board of county school trustees are ’ authorized to make changes when in their judgment the public good demands it, provided notice is given to the trustees of said independent district and if opposition is made a hearing to be had.

At the meeting of the board of school trustees of Hill county held on May 4, 1917, the matter of dividing the Salem district and attaching its territory to the Savage and Irene districts was reopened, and the trustees of the three districts were present, and all that desired hearing were heard, and the matter was thoroughly considered, and the board decided that it was for the public good that the change should he made.

There is no contention by appellees that the action of the board was not for the best interest of public education in so making the changes. It is evident that the board acted according to their best judgment in the matter, and that matter cannot be reviewed in this case, as there is no allegation that said action of the Hill county board was not beneficial or for the good of public education. We see no material error in the proceeding of the board, and conclude that the tria1 court erred, and judgment will be reversed, and judgment rendered sustaining the action of the board of school trustees of Hill county.

Reversed and rendered.
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