text:
    ST. LOUIS, I. M. & S. RY. CO. v. WALLACE et al.
    (No. 784.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 8, 1915.
    Rehearing Denied May 22, 1915.)
    1. Cabeiees <&wkey;156 — Conveeision of Freight —Liability.
    A carrier converting goods shipped under a contract limiting liability to a specified sum at which the goods are valued is, notwithstanding the contract, liable for the full value of the goods.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 097-719; Dec. Dig. &wkey;156.]
    2. Cabeiees <&wkey;156 — Conversion of Freight —Liability.
    Where a carrier transported freight to a wrong place, and there sold it as unclaimed freight, it converted it and was liable for its full value, though the contract of shipment fixed a less sum as value, and though a carrier merely losing freight may rely on the limited liability.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. &wkey;156.]
    3. Caebiebs &wkey;>94 — Loss of Freight — Evidence — Admissibility.
    In an action against a carrier for the conversion of freight, the testimony of the freight claim agent of the carrier as to his efforts in tracing the freight was admissible, and he could, when having personal knowledge of the facts, testify as to die remittance to the treasurer of the carrier of the net proceeds of the freight sold as unclaimed freight.
    [lid. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. &wkey;94.]
    4. Trial &wkey;o85 — Evidence — Objections — SUJTBTCIENCY.
    A general objection to testimony, a part of which is admissible, is untenable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    5. Carriers &wkey;o94 — Loss oe Freight — Petition — Evidence—Admissibility.
    Under a petition, in an action against a carrier for loss of freight, which described the freight as household goods of a family, evidence of the loss of wearing apparel, clothing, etc., was admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. <&wkey;>94.]
    Appeal from Armstrong County Court; H. A. Mobley, Judge.
    Action by T. J. Wallace against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff against defendant named, it appeals.
    Affirmed.
    Turner & Rollins, of Amarillo, for appellant. Moore & Moore and J. S. Stallings, all of Claude, for appellee Wallace.
   HENDRICKS, J.

The appellee Wallace sued the appellant, the St. Louis, Iron Mountain & Southern Railway Company, also the Tesas & Pacific Railway Company and the Ft. Worth & Denver City Railway Company, for damages alleged to represent the value of a certain box of household goods, charging conversion of such box by the Iron Mountain. The trial court peremptorily instructed the jury in favor of the Texas & Pacific and the Ft. Worth & Denver City Railway Companies ; and, upon issues submitted, the jury found against the Iron Mountain & Southern Railway Company in the sum of $460. The bill of lading issued for the shipment of the box of household goods was indorsed, “Rel. $10. val.,” which indorsement, in connection with another stipulation, the appellant contends constitutes an agreed value, by virtue of which the appellee is bound.

A -witness for the railway company testified that the above notation meant that the goods were released at a valuation of $10 per hundredweight, and also said that, on account of the release clause notation on the bill of lading, the particular box of goods took a lower freight rate than it otherwise would have taken without the same being noted upon the contract; said witness testifying to the two rates (the lower and the higher) prescribed by the Interstate Commerce Commission.

The trial court charged the jury, if the Iron Mountain & Southern Railway Company converted the goods to its own use and benefit, to find for the value of the goods as shown by the evidence. They were also instructed that, if they failed to find from a preponderance of the evidence that appellant converted the goods, they were charged that appellant merely failed to deliver the box of goods as it had contracted to do, and, in that event, to find for the plaintiff for the sum of $36.31, with interest; said amount being the result of $10 per hundredweight, with the amount of prepaid freight added. The box of household goods was delivered by appellee to appellant at Newport, Ark., to be delivered to him, as consignee, at Memphis, Tex. The box was never delivered; appellee contending that the evidence shows that it was shipped to Memphis, Tenn., a destination in an opposite direction, and was there sold as unclaimed freight.

Justice Lumpkin, of the Supreme Court of Georgia, held that the delivery of goods by a railway company, at a station and to a person to whom the same were not consigned, constituted a conversion, and made the company liable for the full value of the goods. He said:

“Although it (the contract of shipment) fixes upon the goods a valuation less than their real * * * value, which stipulation the shipper agreed to in consideration of the rate of freight being reduced, there is nothing in its terms which would relieve the carrier from damages occasioned by its own negligence in making a wrong delivery.” Savannah, F. & W. Ry. Co. v. Sloat et al., 93 Ga. 803, 807, 20 S. E. 219-221.

The case of Great Northern Railroad Co. v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 381, 58 L. Ed. 703, decided by Justice Lamar of the Supreme Court of the United States, involved an interstate shipment of household goods, with a notation indorsed upon the bill of lading: “Released to $10 per cwt.” The household goods were lost en route, and the trial court, as well as the Supreme Court of Minnesota, held that the plaintiff was entitled to recover the full value of the goods shipped. The goods were shipped upon a lower freight rate, and Justice Lamar held that the valuation named was the agreed valuation, and that the liability should go to that extent, and no further, citing the familiar cases previously decided by the Supreme Court of the United States. Neither does the opinion by Justice Lamar, nor the opinion by the Supreme Court of Minnesota (O’Connor v. Great Northern R. Co., 118 Minn. 223, 136 N. W. 743), disclose how the goods were lost, nor what became of them.

The Supreme Court of New York said, in the case of Magnin v. Dinsmore, 70 N. Y. 411, 26 Am. Rep. 608:

“The act which will deprive the carrier of the benefit of the contract for a limited liability fairly made must be an affirmative act of wrongdoing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrongdoing, but the mere omission of ordinary care in the safe-keeping and carriage of the goods is not the misfeasance intended by the authorities.”

Justice Lamar, who rendered the opinion of the Supreme Court of the United States, in the case of Railway Co. v. O’Connor, supra, had previously announced in the case of Railway Co. v. Johnson, King & Co., 121 Ga. 231, 48 S. E. 807, while on the Supreme bench of Georgia, that:

“In an action of trover or damages for conversion, the tort-feasor could not take advantage of his * * * wrong, nor lessen the measure of his liability, by invoking an agreed valuation which the plaintiff may have made for the purpose of reducing the freight rate or securing like collateral advantage” — citing the Sloat Case, supra, decided by Justice Lumpkin of that court.

See, on the question, Rosenthal et al. v. Weir, 170 N. Y. 148, 63 N. E. 65, 57 L. R. A. 527; Railway Co. v. Blish Milling Co. (Ga. App.) 82 S. E. 786; Railway Co. v. Bank, 26 Ind. App. 600, 59 N. E. 43.

Hutchinson says:

“ # * * Where the carrier has converted the goods, he will be deemed to have thereby abandoned the contract of shipment, and he cannot thereafter insist on a stipulation that his liability shall be limited to a certain sum at which the goods are valued,” etc. Carriers, vol. 1 (3d Ed.) § 432, p. 435.

There is a sound public policy, in preventing a common carrier, who has not shipped under the contract, from maintaining a defense of a lesser agreed value for goods, and in allowing the shipper to recover a greater market value, after the carrier has been guilty of converting the goods. The consequence of such a doctrine, if permitted, can be readily discerned; and though the eon-tract, with the agreed valuation, calls for an interstate shipment, the federal Supreme Court has not held, nor tended to hold, the contract applies to conversion. The appellant, however, insists that there is no sufficient proof in this record that it converted the goods of appellee; the only proof on the question being hearsay.

Appellant admits in its answer that it lost the goods, and, of course, if the proof went no further, this case would come within the purview of the decision of Justice Lamar, in Railway Co. v. O’Connor, supra.

The record shows that the appellee Wallace made complaint to the station agent at Memphis, Tex., on account of the nondelivery of the goods. The freight claim agent of the Missouri Pacific Railway Company and the appellant, St. Louis, Iron Mountain & Southern, testified as follows:

“That this box of goods in question was consigned Newport, Ark., to Memphis, Tex. That they traced for it over the main line, Newport, Ark., to Texarkana, as well as over the Texas line and found eventually the box had strayed to Memphis, Tenn., and had been sold as unclaimed goods. That all efforts to trace this box were fruitless. It was afterwards found that it had strayed to Memphis, Tenn., and was reported to him as having been sold for storage and other charges; the sale being made by M. Plough, of Memphis, Tenn. The box sold for gross 50 cents, less commission and drayage, 30 cents, net 20 cents, which was remitted on October 3, 1912, to the local treasurer of this company, St. Louis, Mo.”

On cross-examination:

“That he never saw the box in question. That of his own knowledge he knows nothing about what became of the box of goods, and that whatever knowledge he has is based alone on the records as furnished by the Memphis station. That he does not know what the box contained, and that he had no personal knowledge of the sale of the box, but that such information as he has, being obtained from the station records at Memphis, Tenn., and from the person who sold the box, but of his own knowledge he knows that the net proceeds, as reported, ■ 20 cents, was remitted October 3, 1912, to the local treasurer of the company at St. Louis, Mo.”

We are not sure that a great deal of the testimony objected to by appellant, as shown by its separate bills of exceptions in this record, does not come within the scope of the principle enunciated by the Supreme Court of New Hampshire, in the case of Burnside v. Grand Trunk Ry. Co., 47 N. H. 554, 93 Am. Dec. 474. It is true that the defendant’s freight agent, whose declarations in that cause were held admissible testimony, was the one to whom the goods were delivered for transportation. The freight agent in that case informed the plaintiff that he had ascertained that the goods were at another station; the admissibility of the testimony grounded upon the theory that the declarations came within the scope of the employe's agency. It may be deducible from this record that the freight claim agent was investigating the loss of these goods in pursuance of the claim made by the appellee, and that the investigation of the loss of said goods was within the scope of his authority. However, without ruling upon the particular point, one of appellant’s bills of exceptions is in this condition:

“Int. 10. If you have stated that said shipment was reported sold for storage charges, then state the amount it sold for, and what disposition was made of the proceeds of said sale.”

In answer to interrogatory 10, the witness says:

“Sold for gross 50 cents, less commission and drayage, 30 cents, net 20 cents; remitted October 3, 1912, to local treasurer of this company, St. Louis, Mo.”

The objection that all of this testimony is hearsay is not well taken. The witness, as shown, testified on cross-examination that of his own knowledge he knew that the net proceeds, as reported, 20 cents, were remitted October 3, 1912, to the local treasurer of the company at St. Louis, Mo. A part of the testimony being admissible, the general objection to the whole is untenable. The testimony quoted as having been delivered on cross-examination we presume, of course, was for the purpose of exhibiting that the witness’ knowledge of the sale of the box was of a hearsay nature. The statement, however, made by the witness of his own knowledge, as to the remittance of the net proceeds, is connected with a part of his cross-examination clearly identifying the box, as the particular shipment, with the net pro-eeeds as representing tlie sale of the same. The witness’ testimony as to his efforts in tracing the hox was, of course, admissible and it is not shown by the cross-examination as to the remittance of the net proceeds, testified about, as of his own knowledge, that, with reference to same, said witness was not at Memphis, Tenn., from where the remittance was forwarded. We are inclined to think that the conversion was shown.

The bill of exceptions under the eighth assignment of error contains objections to the testimony of appellee’s wife, because she had not shown herself qualified to speak as to their value. We think these objections are sufficiently met and answered by the cases (Pecos & Northern Texas Railway Co. v. Grundy, 171 S. W. 318, and Pecos & Northern Texas Ry. Co. v. Porter, 156 S. W. 267) decided by this court.

There is also objection in the bill to a particular part of her testimony, with reference to wearing apparel, clothing, sheets, and pillow cases, that there was not sufficient identification of the same. The proposition referable evidently to this particular testimony says that the same was not admissible because no effort was made, either in the pleadings or the evidence, to give any information as to what kind or character of clothing was in said box. The kind and character of clothing was sufficiently shown by the evidence, and in so far as this proposition is concerned, by the pleading, for a family of eight in number. The appellant, on a cross-examination, made no attempt to obtain from the witness a specific identification of each particular item of wearing apparel, and we think, upon the whole, the judgment of the trial court should be affirmed.

Affirmed.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgcoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURX, J.

license: Public Domain

text:
    McKINNEY ICE, LIGHT & COAL CO. et al. v. MONTGOMERY
    (No. 7248.)
    (Court of Civil Appeals of Texas. Dallas.
    April 24, 1915.
    Rehearing Denied May 22, 1915.)
    1. Trial <&wkey;260 — Requested Instructions— Given Instructions.
    In an action against a light company and a city for injury to plaintiff while turning off a light in his residence, the refusal of the company’s requested charges, presenting in various forms the proposition that if the city’s arc wire came in contact with the limbs of a tree, and such contact caused the arc wire to burn apart, or if a bracket attached to the tree broke, so that the city wire fell upon the light company’s service wires and transmitted to them an excessive voltage, which entered plaintiff’s residence and caused his injury, and that the city’s maintenance of its wire in the tree was the proximate cause of injury, the company was not liable, was properly refused, where the general charge grouped all the facts which would constitute sole liability of the city, and directed that if the city’s wire was permitted to come in contact with the limbs of the tree, and by reason thereof broke, and came in contact with the company’s wires, giving them a heavy voltage, which was conveyed on plaintiff’s wire and caused the injury, the city was liable, as such charge affirmatively submitted the matter of the 'requested charges.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    2. Appeal and Error <@=>1067 — Harmless Error — Instructions.
    In such case, error, if any, in the refusal, was not such a denial of the rights of the defendant light company as was calculated to cause and probably did cause the rendition of an improper judgment, and hence was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <&wkey;1067.J
    3. Electricity <&wkey;>19 — Negligence.
    _ In an action against a light company and a city for personal injury from an electric current, the light company’s requested charge that if the city maintained arc wires in a tree near where the wires crossed, and the city’s wires were burned or broken apart by contact with the limbs of the tree, and came into contact with the company’s service wires, charging them with an excessive voltage, which injured plaintiff, and that, if the city’s maintenance of such wires in the tree was the proximate cause of injury, the light company was not liable, was properly refused as a definition of active negligence, since the passive omission to do a thing may be as great negligence as active negligence.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. <&wkey;19.]
    4. Trial &wkey;>260 — Requested Instructions— Given Instructions.
    Such charge was properly refused, where the negligence of the light company as disclosed by the evidence was fully submitted to the jury in the general charge, stating what would make the city solely liable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§r=2G0.]
    5. Appeal and Error <&wkey;1067 — Harmless Error — Failure to Instruct.
    In such action, the failure to instruct to find for defendant company, if the< wires in plaintiff’s residence were defective and caused his injury, was harmless, where the record did not contain evidence of sufficient probative force to have sustained a finding in that respect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <@=>1067.]
    6. Trial <@=>260 — Requested Instruction-Given Instruction.
    In such action, the refusal to give the light company’s requested charge on the issue of unavoidable accident was proper, where the court charged to find for both defendants, if plaintiff’s injuries resulted from an accident and, in its general charge, included all the facts which, under the evidence, would relieve the company from liability, and instructed the jury on finding its nonliability to find solely against the city, since to charge that neither of the defendants would be liable for an accident was equivalent to charging that the company alone would not be liable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>260.]
    7. Damages &wkey;>132 — Excessive Damages — Personal Injuries.
    A verdict of $2,250 to plaintiff, who was burned by an electric current over a large space on the thigh, in places nearly to the bone, whose forefinger and the palm of whose right hand and the tips of the fingers of’ the left hand were severely burned, who was confined to his bed three weeks, to his room seven weeks, and whose wounds did not heal until eleven weeks, leaving the forefinger numb, so as to affect his writing, and the burned thigh and hand weaker than before the injury, resulting in nervousness, poorer appetite, and more broken sleep, and who endured severe suffering at the time of the accident, although he continued to hold his same position at the same salary, was not excessive.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 372-385, 308; Dec. Dig. &wkey;132.]
    ■8. Appeal and Ebkob <&wkey;1175 — Review — VERDICT.
    Where the evidence, in an action against & city for personal injury from an electric _ current, at most raised a mere surmise or suspicion that the city current was turned onto its wires ■at the time of the injury, the jury was not authorized to infer that the current was on its wires, a fact necessary to establish its negligence, and the appellate court, required “to render such judgment or decree as the court below should have rendered,” would reverse a verdict for plaintiff and render judgment for the city.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. &wkey; 1175.]
    Appeal from District Court, Collin County; W. J. Mathis, Judge.
    Action by J. H. Montgomery against the McKinney Ice, Light & Coal Company and the City of McKinney, with cross-bills by defendants against each other. Judgment for plaintiff against defendants, and against each defendant on its cross-bill, and defendants appeal.
    Affirmed as to defendant McKinney Ice, Light & Coal Company, and reversed as to defendant City of McKinney, and judgment rendered for such defendant.
    E. E. Wilcox, Jewell Abernathy, R. O. Merritt, and W. R. Abernathy, all of McKinney, for appellants. Wallace Hughston and G. R. Smith, both of McKinney, for appellee.
   RASBURX, J.

The appellee on September 12, 1912, while in the act of turning off the electric current from a light in his bathroom, was seriously burned and shocked as the result of a heavy charge of electricity passing into his body. The light was what is termed •a droplight, and consisted of a brass-receiving socket and globe attached to an insulated cord suspended from the ceiling. When ap-pellee seized the light to turn it off, the current was so great he was unable to release it. In his struggles his thigh came in contact with a lavatory in the bathroom, which appears to have increased the current, for, in addition to burning his thigh seriously, he soon lost consciousness and fell to the floor. Appellee thereafter sued appellants, the McKinney Ice, Light & Coal Company and the city of McKinney, hereafter designated, respectively, as light company and city, both at the time appellee was injured maintaining and operating an electric light plant in McKinney, the former company furnishing all •character of electric service to those that wanted it, likewise the latter, which in addition lighted its streets. Appellee alleged that he was injured as the result of the negligence of both appellants. Each appellant denied negligence and filed cross-bills against the other, urging, in effect, that, if appellee was injured, it was due to the sole negligence of its codefendant, against which contribution was sought. There was a jury trial resulting in verdict for appellee for $2,250 against appellants jointly, and a verdict finding against both appellants on their respective cross-bills. Judgment followed the verdict. Both appellants have appealed from the judgment in favor of appellee and from the judgment decreeing them jointly liable.

The pleadings of the parties properly raise all issues presented in the respective briefs, and for that reason we omit a detailed statement thereof. Nor will we attempt to collate the facts deducible from the evidence of the several parties, but content ourselves in that respect by reference thereto when considering the issues demanding it. It is necessary, however, in order to intelligently view the appeal, to say, in addition to what we have related above, that Tucker street in McKinney ranges east and west. The city has its poles and arc wires on the north side of Tucker street, and the light company has its poles and wires on the south side thereof. At a point on Tucker street, near where Hunt, street, a north and south street, intersects said Tucker street, a service wire belonging to the light company extends from the south side-of Tucker street across to the residence of H. Q. Smith, a customer on the north side. The lines of the light company at the intersection of Tucker and Hunt streets cross Hunt street, and then turn south on the east side thereof and enter the house a block or more away, where appellee was injured. The’ evidence was conflicting as to whether the arc wires were above the service wires or the service wires above the arc wires at the point where the wires of appellants crossed. When appellee received his injuries, in the manner we have stated, it was after night had fallen, and several theories were advanced in explanation of his injuries on trial, and it is urged on appeal that the evidence will sustain the verdict of the jury that the appellants were jointly negligent, or that the evidence will sustain the verdict against one of the appellants. Appellant city contends, however, that under the evidence no liability against it is shown at all, but of this feature of the case more an on.

It is first urged by the light company, the brief of which will be first considered, in effect, that the court erred in refusing to give its specially requested charges B and 3. These charges were separately requested, and the asserted error in refusing to allow them are presented in separate assignments, but, since they present the same question in a different form, they will be considered together. The effect of the requested charges was to tell the jury that if they should conclude from the evidence that, at the time appellee was injured, the arc wires of the city came in contact with the limb or limbs of a tree, through which the evidence showed it passed, and that such contact caused the said arc wires to burn apart, or to break apart and fail upon the service wires of the light company and transmit to same an excessive voltage of electricity, which in turn entered the wires in the residence of appellee and caused his injuries, etc., and that so maintaining its wires in said tree was the sole proximate cause of appellee’s injuries, to return a verdict for said light company. The proposition asserted in connection with the refused charges is that the pleading and evidence raised the issue presented by the special charges, and hence appellant light company was entitled to have the issue presented affirmatively. The proposition, assuming for the discussion that the evidence raised the issue, is theoretically correct; but we conclude nevertheless that the court properly refused both charges, since the court told the jury substantially as much in the ninth paragraph of the general charge. St. Louis S. F. & T. Ry. Co. v. Overturf, 163 S. W. 639, and cases cited. In the ease cited it was said:

“It has been repeatedly held and is now settled law that the defendant is entitled to have presented to the jury any specified group of facts developed upon trial, which, if true, would in law establish a given defense, provided, of course, that such requested charge is not substantially covered by the main charge or other allowed special charges.”

The ninth paragraph of the court’s general charge groups all the facts which would constitute sole liability on the part of appellant city, and directs the jury, among other matters, that:

“If you believe from the evidence that the wire of defendant city of McKinney was permitted to come in contact with one of the limbs of a tree then and there situate, and * * * that by reason of said wire coming in contact with said limb the wire in question melted or broke, and * * * was thereby caused to fall upon or come in contact with the wires of defendant McKinney Ice, Light & Coal Company, and * * * a heavy voltage of electric current was thereby conveyed into plaintiff’s bathroom,” etc., and “injured appellee as claimed, then, * * * if you so believe, you will find for plaintiff against the defendant city of McKinney, and assess his damages as hereinafter set forth.”

This portion of the court’s charge, it will he seen, groups the identical facts enumerated by appellant light company in .the requested charges, and tells the jury affirmatively, if they believe the recited facts to be true, to return verdict solely against appellant city of McKinney. Argument or illustration is not required to demonstrate that the facts set out in the requested charges were fairly grouped in the general charge. Then were they affirmatively presented? Clearly so, we believe, since the jury were told, if they believed the facts so grouped to he true, to find solely against appellant the city of McKinney. True, the charge did not say, as it might properly have done, and in favor of the appellant the light company. But no other result could have followed had the jury adopted the theory of the case thus presented. The purpose of the rule invoked by the special charges is to have the jury consider the very facts constituting the defense urged, and to have the jury instructed, if they believe such facts to be true, to find for the party urging them, and it is not material how or in what part of the court’s charge the instruction is given. Ordinarily in cases where there is but a single defendant or more than one, but no cross-action as between the defendants, it would be correct to instruct the jury to find for the defendant, if the facts were believed to he true. But in a case like the instant one, where each defendant is by cross-action seeking relief against its eodefendant, and the trial court assumes the evidence raises that issue, and so submits the case, it is proper to tell the jury that the conditions under such group of facts would constitute sole liability against the other defendant. Finally it may be said that the error complained of, if error, did not amount to such a denial of the rights of appellant light company as was calculated to cause and probably did cause the rendition of an improper judgment, and that therefore it was harmless.

It is also urged that the court erred in refusing to read to the jury appellant light company’s Special charge No. 6, which told the jury if the wire of the appellant city of McKinney was caused to fall upon the wire of its codefendant, the light company, by reason of one of its brackets, attached to a tree becoming unfastened, and that fact was the cause of appellee’s injuries, to find for appellant light company. This issue was also presented to the jury in the ninth paragraph of the court’s charge in the same manner in which the issues just discussed were presented, and what we have said there applies to the issue so raised.

It is next urged that the court erred in refusing appellant light company’s specially requested charge No. 4, directing the jury in effect to find in its favor if they believed the city maintained its arc wires in a tree adjacent to where the wires of appellants crossed, and that the wires of the city were burned or broken apart by coming in contact with the limbs of said tree and fell upon the wires of appellant light company, imparting to them an excessive charge of electricity, in turn injuring appellee, and that the maintaining of said wire in said tree was the primary, active, continuing, producing, and proximate cause of appellee’s injuries. The proposition contended for under the quoted charge is that the appellant was entitled to have such facts grouped and affirmatively presented to the jury for their consideration. The facts detailed in the requested charge are the same facts grouped in the other special charges, which we have discussed, and, as indicated, in discussing them they were sufficiently grouped and presented in the ninth paragraph of the court’s main charge.

The charge, however, is also submitted as a proposition, and the authorities cited thereunder indicate that the charge was submitted to the court as correctly defining active negligence. If so, we thinlr it was properly refused on that ground. If the term “active and passive negligence,” has any place in our jurisprudence, the mere words themselves are without force, in the absence of any definition of the meaning or import given them by law, since passively omitting to do a thing might conceivably instance as great negligence as would the active commission of some act of negligence.

Further, the active negligence of the appellant, as disclosed by the evidence, was fully submitted to the jury by the ninth paragraph of the court’s charge, wherein is submitted those facts which the jury is told will make appellant city of McKinney solely liable, if believed by the jury. The jury was not told that those acts were acts constituting active negligence, but were told that they would fasten sole liability upon the city, if believed. The facts, however, did, as between the appellants, constitute active negligence on the part of the city, and in our opinion is all that appellant light company was entitled to under the rule invoked. A similar charge relating to the bracket in the tree becoming unfastened and precipitating the city’s wires upon the company’s wires was also requested and refused and is presented on this appeal. But, for the reasons just stated, there was, in our opinion, no error in that respect.

It is nest contended that the court erred in not instructing the jury in effect that if the wires, light fixtures, or appliances in appellee’s residence were deficient or out of repair or improperly installed or constructed, and thereby caused appellee’s injuries, to find for appellant light company. The light company did not raise by its pleading the issue which it claims should have been submitted. It did, however, adopt the pleading of the city tendering that issue. The court did refuse to submit the issue, except on behalf of the appellant city. We conclude the action of the court was harmless, since the record, in our opinion, fails to disclose any evidence of sufficient probative force to have sustained a finding in that respect.

It is next urged that the trial court erred in refusing to allow appellant light company’s special charge submitting the issue of unavoidable accident. On this question the court told the jury if “plaintiff’s injuries resulted from what is known as an accident (that is, if plaintiff was injured), but neither of said defendants was guilty of negligence,” to find for both defendants. The point made is that the court did not submit the issue as to appellant company alone and singly, but erroneously coupled it with its co-defendant. In the ninth paragraph of the court’s charge, as stated in several places in this opinion, all the facts, which, under the evidence, would relieve appellant light company from liability, were presented, and the jury told, if they believed them true, to find solely against the city. These facts are the only facts upon which the issue of accident could be based, and, in our opinion, they do not raise the issue of accident. But, if accident was raised by the evidence, the charge is sufficient, since it tells the jury that neither of the defendants would be liable in that event. To say that neither of two defendants are liable if the plaintiff was injured accidentally is to say that they are not liable, no matter how the accident occurred. Accident is the issue, not the number of defendants to be released if the cause was accidental.

It is next urged that the verdict is excessive in amount. Appellee was burned on the thigh over a space eight to ten inches long, by four or five inches wide. The burn in part was nearly to the bone. Every finger, particularly the forefinger, and the palm of his right hand, was severely burned; the flesh adhering to the globe when he fell unconscious. The tips of the fingers of the left hand were also burned. He was confined to his bed three weeks, his room seven weeks, and it was eleven weeks before his wounds healed. The extent of his permanent injuries is that the forefinger of the right hand is dead or numb and stiff. Such condition affects his writing materially. The burned leg is weaker since its injury, as is also the burned hand. He is nervous since his injury, his appetite is not as good as formerly, and he sleeps indifferently at times. The physical pain and mental anguish which he suffered at the time of the accident and before the lapse of consciousness were, as appellee puts it, nearly “unbearably severe.” After the injuries he suffered great physical pain for a period of three weeks. He has the same position he held before his injuries, and is commanding the same salary, and is doing the same work, except in reference to bookkeeping, which he is unable now to do. In matters affecting the amount of the verdict, we have but slight discretion, and, in the absence of any showing that the jury was moved either by passion or prejudice, we are unable to say that the facts detailed do not support the verdict of $2,250. It is our opinion that they do support it.

So far we have discussed only the errors assigned by the light company, and, as indicated by the views here expressed thereon, we have concluded that, so far as relates to the light company, none of the assignments present reversible error.

The first assignment of error presented by the appellant city of McKinney is that as to it the verdict and judgment are not supported by the evidence, since it is practically undisputed that, at the time appellee was injured, the wires of the city of McKinney were not charged, or that the current of electricity was not on. In support of the issue thus raised, appellant city of McKinney assembles under its said assignment what purports to be all the material evidence on the question of whether the current was on the city’s wires at the time appellee was injured. The evidence so assembled is not challenged in any respect either by appellee or appellant light company, and we assume it is correctly quoted and constitutes all the material evidence on the point. It is as follows:

L. If. Clielf testified:

That he was in the employ of the city during the fall of 1912 as engineer. That he remembered the fire at Mr. Hynds’ or up in there somewhere. That the arc lights of the city were not on that night. That he had not put them on. That he did not know where Mr. McKen-non was that night when he phoned and told him. if he had put on the arc lights to puli them off. That they were not on then. That he did not know where he phoned him from, and did not know what night nor where the fire was, and did not know what month. “I just know that some time or other he phoned me not to put light on, and I hadn’t put lights on. 1 did not hear the next day where the fire was, but next night when I went back on duty I phoned and asked him. I do not remember any other occasion when Mr. McKennon phoned me with reference to lights. That is the only occasion. It is not a fact that whenever there is a fire they frequently phone me to shut the light off. They never did it before. That is the only time. We never shut lights off during a fire.”

W. E. McKennon testified substantially as follows:

“I am the superintendent of the water and light department of the city. I remember the occasion along about September, 1912, when the fire alarm was given at Mr. Hynds’ house and the fire department was there. I was with them. In going up there we passed two of the arc lights of the city, and those lights were not burning. The night that the fire department and I went to Mr. Hynds’, I communicated with Mr. Ohelf at the light plant by telephone. I telephoned from Mr. Hynds’, and that is the same night that Mr. Montgomery is said to have been hurt.”

J. S. McKinney testified as follows:

“My name is J. S. McKinney. I am city marshal of the city of McKinney, and I have lived here a long time. I went to the fire that night at Mr. Hynds’. and it was 7:30 and dark at that time. In going up to Mr. Hynds’ we passed by two or three of the arc lights of the city of McKinney, and they were not burning. Those lights were not on when we passed. I said that, when I went up there to the fire on the fire wagon, the lights were not on, but 1 really could not tell the jury whether or not they had been on. I belong to the fire department. I do not remember to have seen any street lights on before I started to the fire.”

Tom Chambliss testified as follows:

“I live at McKinney, and am working for the city, and have been for three years. I remember the occasion when the fire alarm was turned in from Mr. Hynds’ house along about September, 1912, and I went to it. I went to the fire on the wagon aifi drove the wagon. Our fire station is about the middle of the block south from southwest corner of the square. When the firm alarm was turned, I drove No. 2, the big wagon. We passed through town on our way to Mr. Hynds’, and we passed by a number of arc lights, and none of them were burning. I do not know whether they had been burning or not, but I had not seen them on.”

Tom Wallace testified as follows:

“I live here in McKinney and have lived here about all my life. I am a member of the McKinney Volunteer Fire Department. It is not 'a paid department. I remember the occasion of the fire at Mr. Hynds’ in September, 1912. I answered the call that night. I went to the fire on wagon No. 2. I think we went right up this street where the street car line goes up, and then turned there on Church street, and then made a turn on Hunt street, and then turned up there by the high school building, and then turned on Tucker street. I don’t think the arc lights were burning as we went to the fire.”

S. O. Scott, a witness for defendant McKinney Ice, Light & Coal Company, testified, as follows:

“I remember the occasion of the fire at Mr. Hynds’ house, and the occasion that Mr. Montgomery claimed to have received the shock. At the time of that fire, and on that occasion, the are lights of the city of McKinney were not burning- when the fire alarm was given, but they were burning- just prior to the fire, and at the time of the fire they were not burning.”

On eross-exammation he testified:

“That night, just before the fire alarm, I was on the street between the Episcopal parsonage and where Mr. Shirley lives. It was just after sundown or about sundown (I don’t know the exact time of day), or was beginning to get a little dark. I do not know that it was later than that, and I do not know just how late it was, but, to the best of my remembrance, it was beginning to get about twilig'ht. Those lights burned a very short time; they came on, and I was walking along there, and the lights came on. The light that I saw was the one by the Episcopal Church — the are light right there in front of my house. I suppose the light was on half a minute or something like it. It just came on and flickered a little bit and then went out. It just burned from a half minute to a minute. It just burned a little bit, and I noticed it flickering, and then it went out. I saw the spark come on a minute. As to whether or not that flash was made when those lines came in contact up there in the street I will say I don’t know anything about that. I am not aiming to swear that the engineer down at the power plant turned on the lights that night. I don’t know anything about that.”

L. 'M. Taylor, a witness for the city, testified as follows:

“I live at Dallas, and have been living there off and on for IS years. I am city electrician at Dallas, and have charge of the wiring- inside and overhead construction. I have had 15 years’ experience in building plants, making: estimates, and doing the different classes of engineering work. A wire that has no current on it is what we call a dead wire. If the lights had not been turned on the city arc line, and the house wire fell over and came across the dead arc wire, and the house wire became grounded across the arc wire, that would put some current of electricity on there; and, while it is putting on that current of electricity, it may arc or flash, and it may burn the arc and flash, but it is an unknown quantity. It might make the are light and flash and burn a while, but we cannot tell how much current we are getting. I understand that this was a house wire, but the primaries as a rule have 2,300 (volts) on, and they reduce it to 110, but that side of the house (wire) coming across, and the other side being grounded, you could have g-ot-ten 2,300 (volts) through that line. It would create a sparking- or arcing where it would come in contact, but I.don’t think it would go a foot high. The reflection may look like it is a foot high, hut I don’t think it would be an arc a foot high.”

This witness further testified that if the house wire fell across an arc wire which had no current, and became grounded, this would burn the arc wire in two. On cross-examination he testified:

“I told Judge Wilcox that, if the arc wire broke in two, when it broke in two the lights went out. If both ends fell down to the earth, and both grounded, • the arc would come up to candle power and burn just the same as if nothing had happened. When I told him that arc light went out, I meant absolutely at that time, at that second, the current was off. As soon as those ends dropped to the ground and made a ground, no matter if they were 5, 10, or 20 feet apart, just, as soon as both the ends reached the ground the arc would go up.”

It was further shown by the testimony of W. B. McKennon, the superintendent of the city light department: That, in coming back from Mr. Hynds’ the night in question, he came by H. Q. Smith’s residence, and one of Mr. Smith’s feed wires was down in the street sparking, and that Tennie McOowan tied one end of it up around Mr. Smith’s porch column. That he saw the arc wire of the city that night, and that it was burned in two where tire west wire of the light company passed over the arc light line of the city. That the down wires of city were thrown up in trees that night, one end in a tree just west and one in a tree just east.

Tennie McOowan testified for plaintiff substantially as follows: That he went to the fire at Mr. Hynd’s, and in coming back he passed H. Q. Smith’s house. That the light company had a transformer pole across the street in front of Mr. Smith’s house. That Mr. Smith’s house wires left the light company’s line at the transformer pole and went right across the street into Mr. Smith’s house across the line of the city. That his attention was attracted to a down wire in the street flashing, and that he got off the wagon and got a stick and wrapped one end of the wire around stick and tied it to a pole so they could drive the wagons under it. That across the street the wire was attached to a transformer pole of the light company, and that, after he got up on the porch, he took hold of the wire with his hand, being on wood, which was a nonconductor, and tied it around pole (porch column). That there was only one of Mr. Smith’s service wires down, and that was the one he tied up. That he did not see either of the city’s wires burned in two. That he only saw the one wire down, and does not know whether that was burned in two; as he made no examination. That the wire spluttering in the street was the wire of the light company and was a live wire. That, when he took a stick and carried it over the fence and upon the porch and reached up and tied it on the column of the front porch, the other end at that time was attached to the pole across the street. That he did not see any other wire or line sparking there. That the line was dead after he got it upon the pole (porch column). That it was not burned between transformer and Smith’s house. If it had been he could not have gotten it back to house. If.it had been burned in two at the curb there would not have been enough wire to have taken it back to Mr. Smith’s gallery. That he never touched the end of wire coming out of house. That the wire was out in street also attached to the pole, and he brought it across street and took it there to Harry Smith’s porch. That this wire did not come from Mr. Smith’s house, but was a wire that came from the pole across the street. That he could not be mistaken because he got the wire out in the middle of the street. After McOowan had carried the down wire across the street and attached same to the porch column of Mr. Smith’s house, Tom Chambliss, driver of the fire wagon, drove under the wire.

Walter Wilson, a witness for the light company, testified on cross-examination of city:

That he was lineman for the light company, and it was his duty to look after the stretching of wires. That he said they had made no other repairs than putting up the line (Mr. Smith’s service wires). That they had one wire up there in the house and they took that wire down and put in a new wire. “I was up there that night, and I cut down the wire from the pole— the west wire from the pole — and let it fall in the street, and let it lay there, and did not do anything else until the next morning. I cut the wire just after the fire that night. When I got there the next morning the wire was lying in the same place. The other end was wrapped around a post and tied. The night before I saw that wire, the wire was clear, saw the other end burned loose and wrapped around the post, and I cut the wire at the post and just let it fall, and did not pull it out of the street. The end of the wire that fell to the ground near the post, it was dark, and I could not see, and I just let it fall where it would. The next morning when I went around, the city people had been there doing some work, and I found the wire in the same position, except the other end of the wire that I cut was tied over there on the post. The burned end was tied over there at Smith’s house around the porch post. With reference to the other end of wire coming out of the gable of Mr. Smith’s house, I actually saw it there that morning. I am not guessing about it; saw it coming out of the gable. The other end was attached to the gable end of the house, and was hanging down on porch.”

The light company introduced testimony showing that the arc line of the city was above Mr. Smith’s house wires before fire. On behalf of the city it was shown that the arc line of city before the fire was beneath Mr. Smith’s house wires. The undisputed testimony was the next morning after the fire the city lineman spliced up the arc wire, and then light company’s lineman put up two new service wires at Mr. Smith’s house hr lieu of the down wire and the one remaining up, and, after the lines were repaired, the service wires of the company were about two or three feet above the arc wire of the city, and continued so until the day of trial. The city linemen, Wilson and Ware, testified to facts with reference to change of a position of a bracket in a tree to which the arc wire was attached, tending to show that the city wire may have been lowered, but the city lineman denies making any change. The issue as to whose line was above the other was a hotly contested one, and the record is a very large one, and it is not deemed necessary to set out all the evidence on this issue.

Mrs. Benge Quesenberry testified for the light company substantially as follows: That she remembered the occasion of the fire at Mr. Hynds’. That she was out on her east porch, and that she saw a flash up in a cottonwood tree in front of Mr. Smith’s house. That an electric light wire ran through the tree. That it would flash up an instant and go out, and then flash up again. That she had never seen sparking in that tree before. That she and her husband stayed out on the porch until they heard them calling over at Mrs. Hynds’, sat there and watched the blaze in the tree until they heard them calling. It would arc up and blaze, and then would kind of spread out and vanish.

Mrs. William Hynds testified substantially as follows: That she remembered the occasion of the fire at her house. That night just before the fire she noticed a sparking in a tree in front of Mr. Smith’s house. The limb of the tree came to where Mr. Smith’s house (wire) came to, and the tree was in about 15 feet of the wire. That it was just after dusk. That what happened to her lights that night was that the kitchen caught on fire from the lights. Tha.t her son cut the wires, and this cut off the light from the kitchen, but this did not shut off the lights from the rest of the house. That there was nothing affected but the kitchen light, and when'he cut the wires it stopped the burning. That her son was an electrician.

Mrs. H. Q. Smith, witness for light company, testified substantially as follows: That she lived at McKinney and remembered the occasion of the fire at Mrs. Hynds’. That just prior to the fire she was on her porch and noticed a blaze in a .tree. That the flashing in the tree was the only flashing or arcing she noticed. That the tree was east of her house wire some 15 or 20 feet. That her lights were kind of flickering when she saw the blaze in her tree. That the flashing impressed her at the time as being near the center of the tree. That she did not know whether the wires were crossed or not, and did not know whether her house wires helped to cause the sparking or not. That after the fire at Mrs. Hynds’ they did not have any lights that night. That the next day her globes were all right, and when the man fixed the wires the lights went on burning just the same. That she could not remember just exactly when her lights went out, but thinks they were kind of flickering when she went up to Mrs. Hynds’.

It was shown by the testimony of plaintiff that on the evening in question he went to turn off his electric light in bathroom in the usual and customary manner, and he received a shock which held his hand to the socket for a time, and that, in trying to get loose, his thigh came in contact with a metal lavatory connected to the ground with pipes, and he was burned in hand, on thigh, and was knocked unconscious.

Mrs. Montgomery, wifet of the plaintiff, testified: That the first thing that attracted her attention was a flash of light that seemed to fill the bathroom. That she jumped up immediately and ran into the bedroom, which was between her and the bathroom, but before she got into the bedroom she heard Mr. Montgomery fall. She placed her baby on the bed and went into the bathroom and dropped down beside her husband and saw he was growing unconscious, and she got up and immediately gave the alarm.

Sol Weisman testified: That he lived across the street from where plaintiff used to live, and remembered the occasion when plaintiff got injured on his house light. That prior to that he heard something that called his attention to there being a fire. That he has a faint recollection that the alarm was growing closer, and that he thought he heard the bell and fire wagon. That when he heard the alarm he searched around to find the fire. That from where he was he could not see Mr. Smith’s house and did not look in that direction, and nothing attracted his attention in that direction, but there was a sparking in the neighborhood east or northeast. After the sparking that he had been looking at, he heard Mrs. Montgomery call for help. That it was a minute or two, perhaps longer, after he heard the sound of the gong, before he heard Mrs. Montgomery call for help.

The plaintiff lived across the street immediately south of Mr. Weisman, and Mr. Smith’s house was north of Mr. Weisman on another street (Tucker street), and Mrs. I-Iynds’ house was west of Mr. Smith on Tucker street.

By the foregoing it is seen that the engineer of the city electric plant declares positively that he had not turned the electric current on the city’s wires the night appellee was injured, and he is strongly corroborated in that respect by the city marshal and the fireman who accompanied the department to a fire at the residence of Mr. Hynds, which is on Tucker street, just beyond the point where the city’s wires and those of the light company crossed. It is also important at this point to remember that appellee was injured about the time the department was called to Hynds’ house. In fact, the witness Weisman, who lived across the street from appellee, was listening to the fire bells and trying to locate the fire when he heard appellee’s wife’s call for help, and when she called for help was hut a short space after appellee fell unconscious from the shock he received. The only evidence that conflicts with that of the engineer and the city marshal and the fireman is that of the witness Sco.tt, who stated that, while on his way home, he heard the fire alarm, just prior to which he noticed one of the city’s arc lights come on, and, after burning for a minute or a half minute, flickered and wen,t out; but he frankly admits that the lights were not burning prior to the sounding of the fire alarm, and that they only burned in the manner and to the extent he detailed. In explanation of what Mr. Scott saw, it was shown that if the city’s wires were without current and should come in contact with live wires of the light company, such live wires would cause the are lights to burn as detailed by Scott, until the arc wires parted and fell to the ground. The are wires were burned apart. Nor was any other witness introduced in contradiction of the city’s witnesses to show that .the are lights in fact were burning. The testimony which we have quoted discloses other facts and circumstances tending to corroborate the salient points we have mentioned, but none that seriously tend to contradict them. Such being the state of the evidence, we conclude that it raises at most but a “mere surmise or suspicion” that the city’s current was on its wires at the time appellee was injured. It was said in Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, that, where the testimony warranted no more than surmise or suspicion, the jury was not authorized to infer therefrom a fact necessary to a given issue. When such condition is disclosed by the record, it is our duty “to render such judgment or decree as the court below should have rendered,” etc.; and, however reluctant we may be to disturb the verdict of the jury, it is made our duty to do so in such cases as is presented by the record in this appeal.

Accordingly, there being evidence to support the verdict against appellant light company, the judgment of the district court, as between appellee and appellant light company, is affirmed, and, as between appellant city of McKinney and all others, the judgment is reversed, and here rendered for appellant city of McKinney.
      ©n»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CAMPBELL v. PEACOCK.
    (No. 5521.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 5, 1915.)
    1.Nuisance &wkey;>75 — Abatement—Disorderly House — Plaintiot—Injuey. ■
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 46S9, providing that the use of any place for keeping a bawdyhouse shall be enjoined at the suit of the state, or any citizen thereof, a citizen, to maintain the suit, need not be injured in his property rights.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. i&wkey;>75.]
    2. Nuisance <&wkey;75 — Abatement—Disorderly House — Complaint — Describing Plain-test.
    The complaint, in a suit, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, to enjoin use of a place for a bawdyhouse, alleging that plaintiff is a citizen, all that is necessary to authorize him to maintain the suit, it is immaterial that it describes him as the head of a neighboring educational institution.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75J
    3. Nuisance <&wkey;75 — Abatement—Disorderly House — Complaint—Remedy at Law.
    Plaintiff, in a suit under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, to enjoin the keeping of a bawdyhouse, need not plead that he has no adequate remedy at law.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75J
    4. Statutes <&wkey;64 — Pabtial Invalidity — Ee-pect.
    The main purpose of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, being to give authority to the state, or any of its citizens, to enjoin the keeping of bawdyhouses, any nnconstitutionality of the part attempting to create an exception by recognizing authority of certain districts to create segregation districts does not invalidate the remainder.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. &wkey;64.]
    5. Constitutional Daw &wkey;387 — Injunction &wkey;>102 — Abatement Statutes.
    Granting authority to enjoin crime, as the keeping of a bawdyhouse, as does Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, is in the power of the Legislature, and invades no rights of property.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 156-171; Dec. Dig. &wkey;87; Injunction, Cent. Dig. § 176; Dee. Dig. &wkey;3l02.)
    6. Juey <&wkey;14 — Right to Juey Trial — Tem-pobary Injunction.
    There is no right to a jury trial on an interlocutory hearing for a temporary injunction, but only on the final hearing.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. &wkey;14.]
    7. Juey <&wkey;14 — Right to Juey Trial — Civil ob Criminal Case.
    A suit to enjoin the keeping of a bawdy-house is not a criminal case, but a civil matter, as regards right to jury trial.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. &wkey;14.]
    8. Witnesses <&wkey;307 — Privilege—Incrimination.
    A witness in a civil case, to be relieved from answering a question, on the ground that it will incriminate her, must swear that it will do so.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1061-1064; Dec. Dig. &wkey;307.]
    9. Witnesses <&wkey;234 —Examination —Adverse Parties.
    By express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3647 a party may, like any other person, be examined as a witness by the opposing party.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 815; Dec. Dig. <&wkey;234.]

      10. Evidence &wkey;>158 — Ownership op Premises — Abatement of Nuisance.
    Defendant’s ownership of the premises need not, in a suit to enjoin the keeping- of a bawdy-house, be proved by a deed, but may be proved by direct testimony, including that of defendant, or by her admissions to others, or by any act tending to show it, as her rendering it for taxation.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 472, 478, 474y2-504, 506-526; Dec. Dig. &wkey;158.]
    11. Evidence <&wkey;471 — Conclusions or Statement -of Pact — Ownership.
    Statements as to who is the owner of property are not necessarily legal conclusions, but are statements of facts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. &wkey;471.]
    12. Appeal and Error <&wkey;742 — Assignments op Error — Statement.
    The statement, under an assignment of error attacking a description in the petition, making no effort to show what the description was, but merely referring to the record, is insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]
    13. Appeal and Error &wkey;>742 — Assignments op Error — Propositions—Indepinitenbss.
    An assignment of error, “Because the judgment * * * is contrary to the law and the evidence,” with a proposition thereunder equally vague and indefinite, does not require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by Wesley Peacock against Maud Campbell. From a judgment granting a temporary injunction, defendant appeals.
    Affirmed.
    Chambers, Watson & Reyes, of San Antonio, for appellant. Davies* & Davies, of San Antonio, for appellee.
   FLY, C. J.

Appellee, describing himself as a citizen of the city of San Antonio, the county of Bexar, state of Texas, instituted this suit, alleging that he was at the head of Peacock Military School in San Antonio; that a large number of young men attended the school, who are committed to- the care and attention of appellee; that appellant is owner of, or lessee of and in control of, lot No. 5, city block 339, being house No. 217, on the east side of South Santa Rosa avenue, of lot No. 10, city block 316, on north side of Matamoras street, of lots Nos. 11 and 12, city block 282, on north side of Mata-moras street, south of Leona and South Frio streets, and two or three lots east of South Leona street, all in the city of San Antonio; that appellant, either by herself or through her agents, managers, lessees, or sublessees, had been using all of said property for keeping bawdyhouses, “where prostitutes are permitted to resort and reside for the purposes of plying their vocation.” Appellant answered with a general demurrer and 25 special exceptions, by denials of parts of the petition, pleaded an ordinance in bar of the suit, and alleged, although there might not be a portion of the city segregated for houscn of prostitution:

“That there has been, by acquiescence and consent and knowledge of city officials of the city of San Antonio, a designated district which has been set aside for said purposes of a disorderly house, and, having been so done, the same is just as binding and is just as much in full force and effect as if an ordinance were passed setting same aside, and property set out in petition of plaintiff’s petition is in said district and delay of plaintiff in said matter is now estopped.”

Appellant further alleged “that she is now, and has been, living a virtuous and upright life, and has been conducting herself in a ladylike manner and endeavoring to in all respects conform with the laws of this state,” that the suit had “blackened her good name and reputation,” and that she had been damaged in the sum of $10,000, for which she prayed judgment. The court, after hearing the evidence, granted a temporary writ of injunction, restraining appellant, her agents, lessees, sublessees, operators, and the inmates of her houses from running bawdy-houses on lot No. 10, block 316, on north side of Matamoras street, house No. 313, and lot 4, city block 282, on south side of Monterey street, house Nos. 508 and 510, all in the city of San Antonio.

In 1907, the Legislature passed an act providing:

“The habitual, actual, threatened or contemplated use of any premises, place, building or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house, shall be enjoined at the suit of either the state or any citizen thereof.”

Vernon’s Sayles’ Stats, art. 4689. That statute authorizes any citizen of the state, whether any property or other rights of his are threatened or not, whether he is injured thereby or not, to enjoin the keeping of a bawdy or disorderly house. Appellee, therefore, having alleged that he was a citizen of Texas, could enjoin appellant from conducting houses of prostitution, whether such houses invaded any of his private rights or not, or whether they inflicted “irreparable injury” to him or not, and he was under no obligation to make allegations as to those matters. Each citizen of Texas is clothed with the authority to invoke the aid of a court to restrain and prevent the keeping of houses for the breeding of crime and dissemination of disease and immorality. The first assignment of error is overruled.

The case of State v. Patterson, 14 Tex. Civ. App. 469, 37 S. W. 478, was decided by this court many years before the statute cited was enacted, and, as should be apparent, has no application whatever to a case brought under the statute. In the case of Spence v. Fenchler, 151 S. W. 1094, it was not held that the petition should contain an allegation of injury to private rights, but the court expressly recognizes the fact that the ruling in State v. Patters on -cannot apply to cases under the statute, which “assumes that any citizen within the jurisdiction is injured.” No court, under the statute, can hold, with any degree of propriety or reason, that an injunction cannot be granted except upon the petition of the state or some citizen whose property rights have been invaded. Courts have no authority to read any such provision into the statute which gives “any citizen,” rich or poor, with or without property, the absolute right to enjoin the keeping of houses of prostitution, debauchery, and crime. The statute expressly provides that “such citizen shall not be required to show that he is personally injured by the acts complained of.” Article 4690.

The petition alleged that appellee was a citizen of Bexar county, state of Texas, and whether he afterwards described himself as the head of an educational institution, as colonel of militia, or a road overseer would be utterly immaterial. The fact that a man may be conducting a military school does not deprive him of his rights as a plain citizen of Texas. The second and third assignments of error are overruled.

The fourth assignment of error states that there was a misjoinder of causes of action, but no attempt is made in the brief to point out any such misjoinder. The petition does not disclose any misjoinder of causes of action. The assignment is overruled.

There is no merit in the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments, and they are overruled. Under the statute, ap-pellee was not required to. plead that he had no adequate remedy at law; in fact the Supreme Court has strongly intimated that such allegation is not required in any petition for injunction.

The fourteenth and fifteenth assignments of error attack the constitutionality of article 4689, on the ground that it seeks to authorize certain cities to segregate certain districts and license crime therein. If it be held that the statute in question recognizes the authority of certain cities to license prostitution, and that such authority is unconstitutional, that would not necessarily affect the remaining portions of the statute. The main purpose of the statute was to give the authority to the state, or any citizen thereof, to enjoin the keeping of bawdyhouses, and the exception sought to be interpolated into the statute could not affect the validity of the statute, however unconstitutional the exception might be. San Antonio School Dist. v. State, 173 S. W. 525. The fourteenth and fifteenth assignments are overruled.

It is unnecessary for this court to discuss the constitutionality of that part of the act which seemingly recognized the right of certain cities to designate reservations in which certain crimes may be perpetrated with impunity, because San Antonio has no such reservation. This court and others have, at different times, held that no such power can be given to the cities of Texas. McDonald v. Denton, 132 S. W. 823; Brown Cracker Co. v, City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504; Clyman v. State (Cr. App.) 155 S. W. 231.

The right to enjoin the commission of certain crimes, being expressly given by statute, has been so often upheld in Texas that it would be useless consumption of time to discuss the constitutional power of the Legislature to adopt such statutes. The authorities cited by appellant, to sustain a contrary proposition sustain the validity of such laws. Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334; Ex parte Looper, 61 Tex. Cr. R. 129, 134 S. W. 345, Ann. Cas. 1913B, 32. In the case of Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684, which is cited by appellant in support of the proposition that “the court cannot enjoin a crime or the commission of a crime,” the Court of Criminal Appeals held:

“In addition to this, we go further, and hold that it is entirely competent for the Legislature to authorize the issuance of a writ of injunction, although it may involve restraining the commission of crime; that is, that the Legislature can enlarge the powers of courts of equity to grant injunctions. * * * If it be conceded that the effect of the act in question is to restrain the commission of crime, still, there being nothing in the Constitution preventing the Legislature from doing this, they had authority to so legislate.”

The court was discussing the act of 1905, as to gambling, now article 4685. In the case of Ex parte Allison, 99 Tex. 464, 90 S. W. 872, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653, the Supreme Court sustained the constitutionality of laws granting power to enjoin crime, the court holding:

“We fail to see that there is any peculiarity about the writ of injunction, or any peculiar sanctity about criminal or quasi criminal acts, which debar the Legislature from providing that one may be enjoined by a suit in equity from establishing a public nuisance, such as a gaming house”

—and we add, or a house of prostitution. The laws as to obtaining injunctions against two of the most prevalent and debasing establishments, gaming houses and bawdyhous-es, is not in conflict with criminal laws as to vagrants or prostitutes, but they are aids to them, and the Constitution cannot be invoked to protect the keepers of such houses from restraint through the courts at the instance of decent and law-abiding citizens. Old rules of equity courts cannot be invoked to destroy the machinery established by the Legislature to prevent criminals from outraging the decencies of civilized life and plying their degraded occupations. If it is despotism, as asserted by appellant, to restrain crime, the citizenship of Texas will welcome such salutary despotism. No man has the right to commit crimes against decency and good order, and the destruction of licentiousness, rather than an attack on freedom, is involved in the restraint and. suppression of such crimes against society. The courts of the country will not be led by an apotheosis of liberty to conjure imaginary constitutional rights to protect criminals in ruthless attacks upon the morals and decencies of civilized life. The right to violate laws and trample the rights of others into the dust are not involved in, nor are they a portion of, the rights of property. It is not disregarding a right of property to demand that it shall not be used for the debasement of the young and the pollution of society. Conformity to the laws of decency, purity, and uprightness has never deprived any man or woman of any God-given right, nor infringed upon true freedom in regard to person or property. The voice of the American people has been raised against “government by injunction,” but not against such injunctions to prevent debauchery, lewdness, and crime, and no protest will ever be heard against such procedure except by those who desire to violate the laws of the commonwealth.

The trial had in this ease was to determine whether a temporary writ of injunction should be granted, and appellant could not demand a trial by jury. To the trial judges is confided the discretion to grant or refuse temporary injunctions, and it was never contemplated that a party could demand a jury in an interlocutory proceeding, and then obtain another jury trial on the final hearing of the cause. When the case is called for final action appellant can have a jury trial on the facts, but interlocutory matters are addressed to the judge, and he alone must pass upon the sufficiency of the facts to justify a temporary restraining order. Appellant seems to labor under the impression that this is a criminal case, but it is a civil matter, as all cases must be that can be considered by this court. It follows that the seventeenth assignment of error must be overruled, the only proposition under it being:

“The Legislature has not the power to deprive persons charged with crime of the right of trial by jury.”

The eighteenth, nineteenth, twentieth, twentyffirst, twenty-second, twenty-third, and twenty-fourth assignments of error are overruled. There is no merit whatever in either of them.

The twenty-fifth assignment of error complains that appellant was compelled to testify as to whether she collected rents from certain property and to give the numbers of the houses thereon. Laboring under the false impression that she was being tried for the crime of keeping a bawdyhouse, appellant objected to her evidence because it would incriminate her, as well as that ownership of houses cannot be proved'by parol testimony. Appellant did not swear that her evidence would incriminate her, and the evidence was properly admitted. Woodmen v. Bailey, 163 S. W. 683. There was no impropriety in asking appellant the questions objected to. It is statutory that either party to a suit may be examined by the opposing party as a witness just as any other witness would be examined. Article 3647. Ownership was established by other testimony, and if there had been error in admitting the testimony, it could not have damaged appellant. It was shown by the tax assessor that appellant had sworn that the property was hers, and had rendered it for taxation. It is not true, however, that in eases of this character ownership can only be proved by a deed, for it has been held, even in criminal cases, that ownership of houses can be proved by the tax assessor’s rolls. Frazier v. State, 47 Tex. Cr. R. 24, 81 S. W. 532; Moore v. State, 53 Tex. Cr. R. 559, 110 S. W. 912; Sweeney v. State, 59 Tex. Cr. R. 370, 128 S. W. 393; Clyman v. State (Cr. App.) 155 S. W. 231; Davidson v. State (Cr. App.) 173 S. W. 1037. Her evidence, however, as to ownership of the property was admissible, as were her admissions to others. Railway v. Hall, 35 Tex. Civ. App. 545, 81 S. W. 82. Ownership and possession each can be proved by direct testimony of a witness. Any act tending to show ownership and control may be placed in evidence, such as applying for a license to' conduct a business on the property or rendering it for taxation. Abbott’s Trial Ev. p. 735. The property could be identified by any witness who would testify that the houses having certain numbers were on the lots described in the petition.

This not being an action of trespass to try title, the rules of evidence prescribed for that class of cases have no applicability to a case like this. Any testimony tending to show ownership or control would be sufficient. Statements as to who is the owner of property are not necessarily legal conclusions, but are statements of facts. Knapp v. Smith, 27 N. Y. 277; Nicolay v. Unger, 80 N. Y. 54.

The twenty-ninth assignment of error which seeks to attack the description of the property given in the petition is not followed by a sufficient statement. No effort is made in the statement to show what description was. given in the petition. References to the record are not sufficient.

The • thirtieth assignment of error is:

“Because the judgment granting said injunction is contrary to the law and the evidence”

■ — and of course is too general, vague, and indefinite to require consideration. The proposition under the assignment is fully as vague and indefinite as the assignment.

The solicitude and fear expressed by appellant that “the courts, step by step and piecemeal by piecemeal, are destroying the American Constitution” are ungrounded. The palladium of our liberties will never be impaired or destroyed by an honest effort upon the part of judicial tribunals to repress crime. The state courts are. fully as jealous of the rights of the individual as any litigant can be, and will diligently guard them from all attacks. It is tbe history of every law that is passed to protect the health, to conserve the morals, and uphold the peace and order of communities that it is attacked by those affected on the ground of being an invasion of private rights and an attack upon the Constitution. The courts invariably sustain the exercise of police powers exerted for the public benefit, and in spite of charges that such decisions are conspiracies to destroy the popular government, the Ship of State of the great Republic has weathered the storms of more than a century, and has grown from its primal puny condition until it ranks with the foremost nations of the world, and in no portion of the world are private rights more strictly guarded and private wrongs more thoroughly redressed than in this government against whose judiciary the charge is made that they, “step by step and piecemeal by piecemeal, are destroying the American Constitution.” The doctrine has always been upheld by the courts that no private right should be interfered with, unless its exercise is detrimental to the peace, health, or morals of the great majority. On that rock is built popular institutions and free government.

The judgment is affirmed.

        other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes