text:
    WILLIAM MILLER & SONS CO. v. WAYMAN et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 18, 1913.
    On Motion for Rehearing, May 9, 1913.)
    1. Master ahd Servant (§ 274) — Action for Injuries — Evidence.
    In an action for the death of an employé whose business it was to keep in repair an elevator shaft in an unfinished building and who was struck by a descending bucket used in hoisting building materials and allowed to fall of its own weight without any warning and without ascertaining whether deceased was in a position where he was likely to be struck, evidence that deceased had worked for defendant on other buildings at the same kind of work and where the apparatus and conditions were the same as on the building in question should have been admitted to show deceased’s intimate knowledge of the conditions and dangers of the work in which he was engaged at the time he was killed.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.]
    2. Appeal and Error (§ 1057) — Harmless Error — Instructions.
    The exclusion of such evidence was harmless, where the undisputed evidence showed an intimate knowledge by deceased of the conditions of the work, the operation of the bucket in the shaft, the danger from the falling bucket to any one in the shaft when it was above him, the impossibility of any one above the bucket seeing him in the shaft or of conveying any warning to him, and of the fact that no signals had been provided for or were used.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194 — 4199, 4205; Dec. Dig. § 1057.]
    3. Master and Servant (§ 217) — Liability for Injuries — Assumption of Risk.
    Where an employs working on an elevator shaft in an unfinished building voluntarily placed himself in a position of danger while a hoisting bucket which was permitted to fall of its own weight was above him, although his work could have been accomplished by waiting until the bucket was lowered, with not only general knowledge that the bucket was operated in this way without giving warning before permitting it to drop, but also with knowledge that it would be so operated at the particular time and that no warning would be given, after being warned not to go in the shaft while the bucket was above him before, and at the time of, the accident, in reliance on his own ability to avoid the falling bucket, and not in reliance on any expectation that he would be warned, he assumed the risk of injury from the employer’s negligence in permitting the bucket to drop without warning him or without ascertaining whether he was in a position to be injured, since it does not affect the defense of assumed risk that the danger was brought about by the negligence of the employer, if the injured employé knew at the time of the dangerous condition brought about by the negligent conduct of the business and of the extra danger to himself therefrom.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    4. Master and Servant (§ 179) — Liability for Injuries — Negligence oe Fellow Servant!
    Under Rev. St. 1895, art. 3017, subd. 1, giving a cause of action for wrongful death caused by the negligence of the proprietor, owner, charterer, or hirer of any railroad, stagecoach, or other vehicle for the conveyance of goods or passengers or by the unfitness or negligence of their servants or agents, and subdivision 2, giving such cause of action when death is caused by any wrongful act, negligence, unskillfulness, or default of another, a private corporation which is not one of those referred to in subdivision 1 is not liable for the death of an employé through the negligence of another employé, but is liable if the death was caused by the negligence of a vice principal.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 354-358; Dec. Dig. §

    5. Master and Servant (§ 190) — Liability for Injuries — Negligence of Fellow Servant.
    Where a vice principal negligently directed an. employé to signal an engineer to permit a hoisting bucket in an elevator shaft to drop without warning another employé working in the shaft or ascertaining whether he was in a position to be injured and he was struck by the bucket and killed, his death was due to the negligence of the vice principal, and not to the negligence of the coemployé; the death not having been caused by any negligent execution of the order by the coemployé but by its execution at all.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. §

    6.Appeal and Error (§ 1175) — Disposition —Rendering Final Judgment.
    In an action for the death of an employé where the evidence was fully developed and no evidence offered by plaintiff excluded, and the undisputed evidence showed that plaintiff assumed the risk and did not suggest that upon another trial any additional facts could be disclosed, the court in reversing a judgment for plaintiff would render judgment for defendant as permitted by Rev. St. 1895, art. 1027, providing that when the judgment below shall be reversed the court shall render such judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in which cases the case shall be remanded for a new trial.
    [Ed. Note. — For Error, Cent. Dig. 1175.] other cases, see Appeal and §§ 4573-4587; Dec. Dig. §
    On Motion for Rehearing.
    7.Master and Servant (§ 278) — Actions for Injuries — Sufficiency of Evidence.
    In an action for the death of an employé working in an elevator shaft in an unfinished building and struck by a descending bucket used to hoist materials and permitted to fall by its own weight, evidence held insufficient to show that the vice principal in charge of the work promised to protect him while he was working in the shaft.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Nell E. Wayman and others against William Miller & Sons Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Hunt, Myer & Teagle, of Houston, for appellant. W. H. Ward and J. E. Melton, both of Houston, for appellees.

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

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

   REESE, J.

E. E. Wayman, on or about July 10, 1911, was in the employment of William Miller & Sons Company, a corporation, which was constructing a nine or ten story building in the city of Houston known as the “Southern Pacific Building.” While so engaged at work upon said building, Wayman was, on the date mentioned, killed by being struck by a large bucket used for hoisting concrete and other building material through a shaft or open space in the building called an “elevator shaft,” and which bucket was descending through the shaft from the roof to the bottom of the shaft. This suit was instituted by Mrs. Nell Wayman, widow, and the father and mother of the deceased Wayman, against the said William Miller & Sons Company to recover damages for his death. A trial with a jury resulted in a verdict and judgment for plaintiffs for $14,009, apportioned $10,000 to the widow, and $2,000 each to the father and mother of deceased. Defendant made a motion for ¿ new trial, which was overruled, and brings the case to this court on appeal.

After describing the place at which deceased was at work and the manner in which he received the injuries which resulted in his death on the following day, it is charged in the petition that the injuries and death were the proximate consequence of the negligence of defendant and of its vice principal, Lane, in the following particulars: First, in failing to exercise ordinary care to warn Wayman of the descent of the bucket in time to allow him to get out of the way; second, in causing the bucket to be lowered without exercising ordinary care to ascertain whether Wayman had gotten out of the elevator shaft, where he was at work; third, in failing to have in operation distinct, audible signals, which would have served to warn AVayman that the bucket was to be lowered; and, finally, that defendant and its said vice principal were guilty of negligence, which was the proximate cause of the death of Wayman, in causing the bucket to be sent down with full knowledge that Wayman was engaged in working in said elevator shaft, and without ascertaining that he had left the shaft. Defendant pleaded the general issue and in addition, with appropriate averments, the issues of contributory negligence and assumed risk. The court did not submit the third ground of negligence, as charged in the petition, of failure to have in operation a system of signals for warning employes of the ascent and descent of the bucket.

We have read very carefully the statement of facts, which is short, and do not find that there is any conflict in the evidence upon any material 'fact. The following conclusions arise upon the undisputed evidence:

At the time of the accident referred to, E. E. Wayman was in the employment of appellant, a corporation which was engaged in erecting a large building in the city of Houston, and Wayman had been so employed on this building for about five months prior to the accident in the same kind of service in which he was engaged at the time he was killed. Wayman was a skilled mechanic, about 26 years old. In doing the work of the erection of the building, which was about nine stories in height, appellant had had constructed inside of the building an elevator shaft, being a square opening extending entirely through the building, from the ground floor to the roof, about four or five feet square. A large iron bucket, about four feet square, weighing about 500 pounds, and which occupied practical!y all of the space of this elevator shaft, was carried up and down through the shaft from the ground to the roof by means of a rope, which ran through pulleys at top and bottom of the shaft. This rope was wound around a drum at the bottom of the building and by the side thereof, and a small engine, with steam power, so operated this drum as to raise and lower the bucket. The bucket was used for the purpose of carrying concrete and other building material to the different floors of the building. On the fourth floor of the building there was a receptacle called a “hopper,” which was about flush with the edge of the shaft and a few feet above the floor. In carrying concrete in this bucket to the fourth floor there was an opening in the shaft, and it was so contrived that by the use of a trigger, when a bucket full of concrete got to this floor, it would automatically tilt up and deposit the contents of the bucket in this hopper. When being used this bucket was carried up rather slowly, but when it was desired to lower it this was done by releasing a clutch at the engine, when the bucket fell of its own weight, and very swiftly, practically like any heavy body, falling of its own weight without impediment. When this bucket was up and it was desired to lower it, some person would go to the side of the building, next to the engine on the floor on which the bucket was, drop something on the roof over the engine to attract the attention of the person operating the engine, and then indicate by a motion of the hand that the bucket was to be lowered. The bucket so filled the space of the shaft that a person above where the bucket happened to be could not see anything in the shaft below the bucket. When a person was working in or partly in the elevator shaft, as Wayman was, with the bucket above him there was no way in which to give him a signal or warn him when the bucket was to be lowered. Ordinarily when at work this bucket went up and down about every 1 y2 or 2 minutes. This elevator shaft had been put in by Wayman, and it was his business to look after it and keep it in repair, and such had been his duty from the time it was constructed about four or five months before the accident. Whenever it became necessary to move or put in a guide (as hereinafter explained), it was Wayman’s business to do the work. It was testified, however,, by the foreman, that sometimes, when Way-man was engaged at something else, some one else would be called upon to do this work.. Wayman knew all about this elevator shaft and the operation of the bucket in every detail. One Charles Lane was the foreman in charge of the work. He had power and authority to direct the work being done by Wayman and his coemploySs, with power to hire and discharge the men, including Wayman, and was therefore a vice principal, and not the fellow servant, of Wayman.

On the morning of the accident Wayman was working on the fourth floor of the building. They had been carrying concrete to this floor, in consequence of which there was an opening in the elevator shaft to enable them to unload the bucket in the hopper on this floor. In order to enable them to carry the bucket up and beyond this floor, it was necessary to close this opening so as to prevent the tilting of the bucket when it got to this floor. This was done by placing what was called a “guide” across this opening. This guide was a piece of timber, two by four, and about four feet long, which was nailed upright across the opening. In order to do this work of putting in the guide, it was necessary for the person doing the work to have some part of his person within the elevator shaft, so as to nail the guide, but not to get entirely within the shaft. Lane told Way-man to fix this guide, as he wanted concrete on the roof. Lane then went down to the ground floor, got in the bucket with some steel rods, and was. carried' to the roof. The guide not being in on the fourth floor, Lane kept the bucket from tilting when he came to the opening on this floor by the weight of his body on the opposite side of the bucket. Wayman waited a few minutes after the bucket passed up and began, with the assistance of a fellow servant, one J. W. Walker, called “Red,” to put in the guide. To do this he stood upon, the hopper and. reached inside of the elevator shaft to nail the guide fast. In doing this parts of Wayman’s body were exposed inside of the shaft. It was shown without dispute, by the testimony of Walker, appellees’ witness, that while in this position with the bucket above him, Walker warned him that it was dangerous to go inside of the sÍLaft, of to work to the manner in which he was working. This witness testified: “I warned Wayman about the bucket- falling and the danger of being struck by it, by hollering to him twice, ‘Look out,’ when the bucket was coming down. When the bucket was coming up and before it started down, I told him not to go in then, that it was dangerous, and he said, ‘Red, I will get out of the way.’ I warned him just a few seconds before he was struck that the bucket might come down and strike him and not to work in the manner in which he was working at that time. In reply to my warning he said: ‘Red, I will get out' of the way; don’t be afraid; don’t'be seared about me. I will get out of the way of the bucket.’ When he said he would get out of the way of the bucket, I said to him: T would not get in there. It is dangerous. The bucket has gone up over us. We cannot get any signals in here.’ ” This witness testified by deposition taken by appellees, and part of the testimony detailed was in response to direct interrogatories. The bucket after reaching the roof remained long enough to unload and place the steel rods, about 15 minutes, when one Green was directed by Lane to have the bucket lowered. Green then went to the edge of the roof next to where the engine was, dropped a stone on the roof over the engine, and, having thus gotten the attention of the engineer, gave the signal to lower the bucket. The clutch was released, and the bucket dropped through the elevator shaft. Wayman was at the instant standing on the hopper with part of his body inside of the shaft. The bucket struck him, but did not knock him into the shaft, but as the bucket passed him, or the instant after it passed him, he toppled over and fell head foremost into the bucket. He was unconscious when his fellow workmen reached him, and died the next day. His death was caused by the descent of the bucket through the elevator shaft striking him as aforesaid. Ap-pellee Mrs. Nell Wayman is the wife, and the Other plaintiffs are the parents, of the deceased, Wayman. He left no children.

Appellant offered evidence to show that Wayman had been in the employ of appellant for more than two years; that he had- worked for appellant on other buildings in Houston at the same kind of work and where the tools, apparatus, and conditions were the same as on the Southern Pacific building, which evidence was (we think erroneously) excluded. The purpose and effect of the evidence was to show an intimate knowledge by Wayman of all of the conditions and dangers of the work in which he was engaged at the time he was killed.

We think the error was, however, harmless, as we find that the undisputed evidence shows an intimate knowledge by Wayman of all of the conditions of the work, the operation of raising and lowering of the bucket in the elevator shaft, the danger from the falling bucket, to any one in the elevator shaft when the bucket was above him, the impossibility of any one above the bucket seeing him in the position in, or partly to, the shaft, or of conveying any warning to him that the bucket was about to be lowered, and of the fact that no signals had been provided for, or used, in such eases. AVe find from the undisputed evidence that Wayman had been warned by Lane, the foreman, about the danger of working on the elevator shaft when the bucket was above him. The undisputed evidence is of such a character that no other conclusion can be arrived at than that Way-man was as fully apprised as one could be of the danger of exposing any part of his person in the elevator shaft while the bucket was above him, that the bucket was liable to drop any minute, and without signal or warning to him. It is also the result of the undisputed evidence that Wayman could just as well' have waited until the bucket was lowered before putting in the guide, as this work only took about ten minutes to accomplish. Evans, plaintiffs’ witness, testified, and all of the testimony on the point was to the same effect: “Signals for hoisting and lowering the bucket were given by a man stepping to the outside of the window over next to the engine and dropping a rock or something on the roof over the engine and signaling to the engineer. The method of warning used inside the building to those who were working on or about the elevator shaft was, when we were doing work to the elevator shaft, we generally signaled to a man up above or a man below when we got to or would be putting in the guide or taking it out. There was no way that I know of to signal those who might be engaged in working in the elevator shaft, or to warn them of the descent of the elevator bucket. If there had been one, I would have known it.” Walker, witness for plaintiff, testified that the proper way to have repairs made on the inside of the shaft was to have stopped the machine that runs the bucket, get entirely into the shaft, and do the repairs, and then get out; but the undisputed evidence shows that Wayman knew that this method was not pursued.

By appropriate assignments of error appellant assails the verdict of the jury as being contrary to the evidence and without any evidence to support it, both on the ground that it is shown that the accident to the deceased Wayman arose out of and was the result of a risk known by him and voluntarily assumed, and that such injuries were the proximate result of his own negligence. The reply is made to this contention, so far as the defense of assumed risk is concerned, that the risk and danger were brought about by the negligent act of Lane, appellant’s vice principal, in sending down the bucket without first having either signaled Wayman to get out of the way, or ascertained that he was not in a position to be struck by the descending bucket. Conceding that Lane was thus negligent, or that this fact has at least been found by the jury upon sufficient evidence, and the accident was proximately caused by such negligence which would be the negligence of appellant itself, if there was no other feature of the evidence to affect or control the legal result, the case would come under the well-settled doctrine that a servant cannot be held to have assumed the risks of dangers to which he is subjected by the failure of the master to exercise ordinary care, not only to provide a reasonably safe place for him to work, but to conduct his business in a reasonably safe manner for the protection of the servant. But it is the result of the undisputed evidence that Wayman knew that the bucket was above him, that it was to be expected that it would be sent down at any moment, that no signals or warning would be given him of the descent of the bucket, and that he could not expect that Lane would or could' practically ascertain before sending the bucket down that he was not in a position to be struck by it. Not only did Wayman have this general knowledge of every danger arising from his doing the work as he did acquired by his intimate knowledge of the means employed and the manner in which the work had been customarily done, and was then being done, but he had been warned by Lane and others of the danger of doing the very thing which he was engaged in doing, and which was the proximate cause of his death, and he was also warned and his attention called to the danger at the very time of the accident. It is conclusively shown by the testimony of Walker, appellees’ witness, that Wayman did not rely for his safety while in the shaft upon any warning to be given to him of the descent of the bucket, nor upon Lane’s ascertaining that he was not in the shaft before sending the bucket down. He relied upon his own ability to escape the danger by dodging out.of the snaft in time to escape injury if the bucket came down while he was at work in the shaft. There is nothing in the record to support the contention put forward by appellees in their brief that Lane had promised to protect him while working in the shaft, or that he relied upon this. Lane merely directed him to fix the guide. Wayman knew what to do and how to do it, and the circumstances under which the work was to be done. He was not required by his orders to put in this guide or to go inside of the shaft in order to do so, while the bucket was above him. He could have waited until the bucket was lowered. He voluntarily assumed the extra risk of going inside of the shaft while the bucket was above him, with full knowledge that it might drop at any moment without warning.

In the case of G., C. & S. F. Ry. Co. v. Huyett, 99 Tex. 636, 92 S. W. 456, 5 L. R. A. (N. S.) 669, Judge Williams, speaking for the court, uses this language: “But the jury could, perhaps, have thought that, while this was a dangerous and negligent manner of doing the work, yet it was the one in which it was commonly and habitually done by the defendant, and that plaintiff knew that fact. Under such circumstances there would, we think, be an assumption of risk arising from a danger known to have sprung from the master’s negligence. Of course the mere fact that such an occurrence may have occasionally happened before would not have this effect for the reason that an employé may not be held to foreknow that negligent conduct would be repeated. The assumption of risk would arise from the doing of the work in a manner so common and habitual that the employés should know that it would be followed on the particular occasion.”

In this case we have, from the undisputed evidence, not only knowledge on the part of Wayman of the habit or custom, but actual and unmistakable knowledge that the work of lowering the bucket would be done in the same way on this occasion, and a clear appreciation of the danger to himself, arising therefrom. We understand the effect of this statement of the law in the Huyett Case to be that it does not affect the defense of assumed risk that the danger was brought about by the negligence of the master, if in fact the injured servant knew, at the time, of the dangerous condition thus brought about by the negligent conduct of the business, and of the extra danger to himself in the situation in which he placed himself. If the defense of assumed risk is not to be sustained, except in cases where the master is not negligent with reference to such risk, there would be practically no use in such plea. The master not being negligent, there would be no liability independent of any defense of assumed risk. In the case of St. L. Ry. Co. v. Brisco, 100 Tex. 354, 99 S. W. 1020, the Supreme Court undertakes to distinguish, not very satisfactorily, the Huyett Case, supra, from the case of H. &. T. C. Ry. Co. v. Turner, 99 Tex. 547, 91 S. W. 562. One ground of distinction, so far as we understand the opinion, is that in the Huyett Case the plaintiff was himself engaged in the work by the negligent conduct of which he was injured, while in the Turner Case he was engaged in an independent employment having no connection with the negligent switching of the cars by which Turner was injured. It might be urged, by way of applying the doctrine of the Turner Case to the present case, that Wayman was engaged in a work having no connection with the raising and lowering of the bucket. The only sound basis for such distinction is that one engaged in an independent work would not know that the operation by which he was injured was in fact being then negligently done, but at most would only know that it was the habit or custom to do it negligently. The facts of the present case forbid any such distinction, in view of Wayman’s actual present knowledge that the bucket would be sent down without warning to him or ascertainment whether he was in the shaft. The following cases also, we think, establish the doctrine by which this case must be ruled: Quill v. H. & T. C. Ry. Co., 93 Tex. 616, 55 S. W. 1126, 57 S. W. 948; M., K. & T. Ry. Co. v. Hannig, 91 Tex. 351, 43 S. W. 508; T. & N. O. R. R. Co. v. Bingle, 91 Tex. 288, 42 S. W. 971; Bonnet v. G., H. & S. A. Ry. Co., 89 Tex. 72, 33 S. W. 334; S. P. Ry. Co. v. Aylward, 79 Tex. 678, 15 S. W. 697. We find this statement of the author’s views on this.question in Judge Street’s excellent and very useful work on the law of personal injuries in Texas (page 293): “Where unusual risk, resulting either from the manner of the conduct of the business, or from defective machinery used, is known to the employé, the question of his assumption of the risk arising therefrom, if capable of being assumed at all, should be determined, as in other cases of. extraordinary risk; that is to say, besides his knowledge of the unnecessarily hazardous manner in which the business is conducted or of the defective condition of the machinery used, there must be shown appreciation of the danger and its voluntary acceptance in the particular instance.”

We cannot entirely accept the broad statement of the author (on page 299) “that in no case can the fact that one habitually carried on a dangerous business in an unnecessarily hazardous manner, or with defective machinery, exposing the servant to unnecessary danger, though Imown to the plaintiff-, be entertained as a defense. Such a, defense is contra bonos mores.” It is true that the habitual commission of a negligent act cannot rob it of its character of negligence, but the defense of assumed risk, arising from the full knowledge that the business is negligently carried on and the voluntary acceptance of the extra risk, known and appreciated, rests upon a different ground and does not depend upon a negation of the negligence. As broadly stated in the text, we think the doctrine is opposed to the authorities, at least in this state, by which we are bound.

Under the provisions of article 3017, R. S. 1895, appellant, being a private corporation and not one of those referred to in subdivision 1 of the act, would not be liable for the death of Wayman if the same had been caused by the negligence of one of its agents or servants, as distinguished from the negligence of the corporation itself. Fleming v. Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250. But the negligence here charged was that of Lane, who was shown to have been the vice principal of appellant, and hence the negligence of the appellant for which it would be liable under subdivision. 2 of the said statute. The immediate cause of the death of Wayman was the dropping of the bucket. This was done on Lane’s direct order. It was not the negligent execution of the order by Green, a servant of appellant, but its execution at all, which was Lane’s act as fully as though he had himself given the signal to the engineer which caused the bucket to be dropped. Hugo-Schmeltzer v. Paiz, 141 S. W. 518; Sullivan-Sanford Lumber Co. v. Cooper, 142 S. W. 1168.

There are other assignments of error presented by the brief of appellant, based upon errors of procedure which, in the view we take of the main issue, need not be disposed of. Having arrived at the conclusion that the undisputed evidence supports appellant’s defense of assumed risk, it follows that the judgment will have to be reversed. The facts are few and simple'. The testimony offered by appellees supports the defense named, and upon the entire evidence the court should have instructed a verdict for defendant upon this issue. The evidence was fully developed. None of that offered by appellees was excluded. There is nothing to suggest that upon another trial any facts could be disclosed that would tend to rebut, explain, or modify those shown to have surrounded this unfortunate accident. In such case it is the duty of this court to render such judgment as should have been rendered by the trial court. This is the better practice and sanctioned by the statute (article 1027, R. S.), rather than prolong a useless litigation. I. & G. N. Ry. Co. v. Hall, 46 Tex. Civ. App. 493, 102 S. W. 742; Pullman Co. v. Caviness, 53 Tex. Civ. App. 540, 116 S. W. 410; M., K. & T. Ry. Co. v. Rogers, 118 S. W. 738; I. & G. N. Ry. Co. v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661; T. & P. Ry. Co. v. Lewis, 133 S. W. 1086.

The judgment of the trial court is reversed, and judgment here rendered for appellant.

Reversed and rendered.

On Motion for Rehearing.

On motion for rehearing it is insisted by appellee that the statement in the opinion that “there is nothing in the record to support the contention put forward by appellees in their brief that Lane had promised to protect Wayman while working in the shaft or that he relied upon this” is in direct contravention of the evidence.

The principal evidence relied upon to support this contention is the testimony of the witness Walker, who was working with Way-man, that Lane told Wayman: “Wayman, go put that guide in. I am going to bring up some iron, and I will ride on the bucket by the time you get) it fixed.” The witness so testified. This testimony, when taken in connection with the fact that Lane then went down, loaded the bucket with steel rods for the roof, and rode on the bucket past the fourth floor to the roof, and that in going up it was necessary for Lane to put his weight on the opposite side of the bucket to prevent its tilting when it came to the opening on the fourth floor where Wayman was putting in the guide, could only mean that Lane would do just this. We 'find, as .appellee requests, that Walker gaye this testimony; but we do not think it can be tortured into a promise by Lane to protect or look out for Wayman while putting in the guide. Wayman clearly did not so regard it or rely upon it as an assurance that the bucket .would not be sent down without Lane in it, or be kept above while he was at work in the shaft. Neither did Walker so understand it. When warned by Walker of the danger of the descending bucket, Wayman did not say, “Lane will not send it down while I am in here,” or, “Lane promised me to protect me while doing the work,” but: “Red, I will get out of the way. Don’t be scared about me. I will get out of the way of the bucket.” The evidence does not show that it was necessary to put in the guide at the fourth floor to prevent the descending bucket from tilting there, as the descent was very rapid, almost like a falling stone.

We have set out this evidence in compliance with appellees’ request, and in order that they may have the full benefit of it on appeal; but we do not consider it proper to burden the record with all of the evidence mentioned in his motion.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    NEWSOME v. BROWN.
    (Court of Civil Appeals of Texas. Texarkana.
    April 24, 1913.)
    Evidence (§ 461) — Parol Evidence Affecting Weitings — “Contemplate” — “Propose.”
    Where a contract, by which plaintiff sold defendant a logging outfit and employed defendant to haul logs to his mill, provided that plaintiff contemplated moving the mill to another site after the timber adjacent to its present site had been cut and that he was to give the hauling of timber at the new site to defendant, pa-rol, testimony was not admissible to show that it was the intention to bind plaintiff to move the mill to a new site, since the contract as written was unambiguous, meaning that plaintiff was considering moving the mill, and if he did that he would give the hauling of the timber to defendant; as, while “contemplate” means “propose,” it only means "propose” in the sense of “intend.”
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.

    For other definitions, see Words and Phrases, vol. 2, pp. 1485-1486; vol. 6, p. 5731.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Action by A. E. Brown against Hiram S. Newsome. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellant and appellee entered into a contract which, omitting the particular description therein of the wagon, mules, etc., conveyed, as reduced to writing, was as follows:
    “State of Texas, County of Upshur. This memoranda of contract this day made by and between A. E. Brown and H. S. New-some, both of Upshur county, Texas, wit-nesseth:
    “(1) That the said A. E. Brown has and does hereby contract, sell and deliver unto H. S. Newsome, for the consideration hereinafter named 1 log wagon and team and outfit described as follows: (Description omitted.)
    “(2) That the said Newsome is to pay for said property the total sum of $800, said payments to be made as follows, to wit: On the 10th day of April, 1910, he is to pay the sum of $40 and on the 10th day of May, 1910, he is to pay the sum of $40; that on the 10th day of each month thereafter he is to pay the said A. E. Brown the sum of $50, until the total amount of the consideration flamed herein has been paid, except the last payment is to be the sum of $20. And the said Newsome is- to pay interest on each of the payments herein specified from the date hereof at the rate of 8 per cent, per annum. Said payments to be made in Up-shur county, Tex.
    “(3) It is further agreed that the said A. E. Brown is to employ the said Newsome to haul logs to his mill upon the following conditions, to wit: The said Newsome is to haul timber, or logs, to the skidway at the present mill site so long as the said Brown fetains his mill at that place, and from such timber as yet remains that was bought by him from the Progressive Lbr. Co. and is to haul of said timber wherever the same may be situated at the agreed price of $3.50 per thousand feet, being the price the said Brown is to pay for the hauling, that is to say, he, the said Newsome is to receive the sum of $3.50 per thousand feet for logs delivered at the mill, including the long and short and all other hauls, the said Brown having the right to designate such timber as is to be hauled. The hauling just above referred to is the hauling of what remains of what is known as the Knight timber, adjacent to the Knight mill where it is now situated. The said Brown contemplates moving his said mill from the present site as soon as the timber has been cut adjacent to the mill where now situated to another site, on or near timber purchased from AA. Mattox et al., and is to give hauling of the saw timber at the new mill site to the said Newsome upon the following terms: for all timber hauled and placed upon the skid-way a distance of 1 mile or less he is to pay the sum of $2 per thousand feet, and for all timber hauled over that distance he is to pay 500 per thousand feet additional for each 14 mile. In case the said Newsome should haul the lumber from the present Knight mill site to the town of Graeeton he is to pay the sum of $2 per M for any kind of lumber hauled.

      “(4) It is further agreed and stipulated that the property above mentioned is not to be removed from Upshur county or from the employment at the mill until the indebtedness above mentioned has been fully paid, and it is further agreed that the said A. E. Brown is to and does retain a lien upon the above described property so sold until the consideration price herein named has been fully paid.
    “(5) The said A. E. Brown is to sell to H. S. Newsome feed for said team at 10 per cent, on the cost price to Him, the said Brown, of such feed laid down at said mill.
    “This contract executed in duplicate.
    “In testimony whereof witness our hands this the 14th day of Feby., 1910.
    “Hiram S. Newsome.
    “A. E. Brown.”
    Appellee claimed that appellant, after paying a part of the $800 he had agreed to pay for the wagon, mules,' etc., refused to pay the remainder thereof, and brought suit to enforce the payment of said remainder. Appellant claimed that the contract bound ap-pellee to move his mill from the site it occupied at the date of the contract to a new site, on or near land known as the Mattox land, owned by appellee, and to permit him to haul saw timber for the mill to its new site, and that appellee had breached the contract in this respect, by refusing to move the mill and by selling the Mattox land to third parties. By pleadings in the nature of a cross-action appellant sought a recovery of damages he claimed he had suffered by ap-pellee’s breach, as alleged, of the contract. The trial court was of the opinion that the contract as written was plain and unambiguous, and that it did not bind appellee to move his mill. He therefore refused to consider parol testimony he had admitted tending to show the intention of the parties to have been to the contrary, and, having found there was a balance of $381.33 of the $800 unpaid, rendered judgment for that sum in favor of appellee against appellant.
    Warren & Briggs, of Gilmer, for appellant. J. S. Barnwell, of Gilmer, for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). We agree with the trial court that the contract as written was unambiguous, so far as it related to the removal of the mill to the Mattox land. The language used by the parties, to wit, “the said Brown contemplates moving his said mill * * * and is to give hauling of saw timber at the new mill site to the said Newsome upon the following terms,” etc., plainly did not mean that appellee had determined and thereby bound himself to move the mill, but meant that he was considering the matter of moving it, and, if he determined to and did move it, was to become bound to give hauling of saw timber to appellant. It is insisted that the word “contemplate” in its ordinary sense means, among other things, “to propose,” and that, giving the word that meaning, the language used by. the parties bound appellee to move the mill. It is true that “contemplate” means “to propose,” but it means “to propose” in the sense of “intend.” Had it been used in that sense, instead of the word “contemplate,” the construction which should have been given to. the contract would not be different from that given it by the trial court.

The judgment is affirmed.


author: REESE, J.

text:
    WESTERN UNION TELEGRAPH CO. v. FOREST.
    (Court of Civil Appeals of Texas. Galveston.
    April 10, 1913.)
    1. Appeal and Error (§ 501) — Questions Reviewable — Waiver.
    Where the judgment recited that when the cause came on to be heard both parties appeared by their attorneys and announced ready, and the court asked the attorneys if there were any preliminary law questions to be determined, and that the attorney for defendant responded that there was a general demurrer and special exceptions, but did not read them to the court, but said that the court could pass on the exceptions, whereupon the court overruled them, the special exceptions were not waived, within the rule that, unless special exceptions are shown by the record to have been presented in the trial court and acted 'on, the appellate court will not consider the assignments based thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §

    2. Appeal and Error (§ 518) — Questions Reviewable — Assignments oe Erbor — Motion for New Trial.
    Under Rev. St. 1895, art. 1364, providing that where the ruling appears otherwise of record no bill of exceptions shall be necessary to preserve an exception, and district court rule 53 (142 S. W. xxi), declaring that bills of exception need not be taken to the judgment of the court rendered on those matters which, at common law, constitute the record proper, the overruling of special exceptions to the petition need not be excepted to, and the ruling need not be incorporated in a bill of exceptions, and is reviewable where the motion for new trial sets out that the court erred in- overruling the special exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2342-2355; Dee. Dig. § 518.]
    3. Telegraphs and Telephones (§ 65) — Delay in Delivery of Messages — Actions — Petition—Sufficiency.
    A petition, in an action for delay in the delivery of a message announcing the fatal illness of plaintiff’s child thereby preventing him from seeing the child alive, which merely alleges in general terms that if the message had been promptly delivered he could and would have reached the child before death, is subject to special exception for failing to allege when, where, and in what manner he could' have reached the child before death if the message had been promptly delivered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dee. Dig. § 65.]

      4. Trial (§ 255) — Delay in Delivery of Telegraph Messages — Evidence — Instructions — Requests.
    Where the evidence, in an action against a telegraph company for delay in delivery of a message, called for an instruction as to the company’s office hours at an office, it should have asked a special charge covering the point, and where it failed to'do so it could not complain on appeal.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by Walter Forest against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals;
    Reversed and remanded.
    Hume & Hume, of Houston, for appellant. Marshall & Harrison, of Liberty, for appel-lee.

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

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

   REESE, J.

This is an appeal from a judgment of the district court in favor of appel-lee and against appellant for $1,995 as damages for the negligent failure of appellant to deliver promptly a telegraphic message sent- by the wife of appellee at Groveton, Tex., to appellee at Milvid, Tex.,, in the following words: “Baby is a good deal worse. Don’t expect he will live through the night.” The message was received at Milvid at 5:35 p. m. May 18, 1909, and was not delivered to appellee until the next morning about 8 o’clock. No negligence is charged in the transmission to Milvid. It was alleged that if it had been promptly delivered at Milvid appellee could and would have reached the bedside of his infant child some six hours before its death, which occurred at Groveton at 6 o’clock a. m. of the 19th. The ease was tried with a jury with the result stated.

The petition alleged, in general terms, that if the defendant had used ordinary diligence to deliver the message plaintiff could and would have reached Groveton in time to have been with his sick child before his death, that the child died about 6 o’clock a. m. May 19, 1909, and plaintiff could and would have reached Groveton' and the bedside of his child about 12 o’clock on the night of May 18th. Appellant, in addition to a general demurrer, filed a special exception to the petition on the following grounds: “It is not alleged therein by what particular means, or over what particular railroad connections, or on what particular train plaintiff could and would have traveled or used or availed of to make the trip from Milvid to Groveton, Tex., for the purpose alleged; wherefore,” etc. With regard to this special exception the judgment is a rather peculiar one. It declares as follows: “On this 28th day of February, 1912, this cause came on to be heard, and both parties appeared by their attorneys and announced ready for trial, whereupon the court asked said attorneys if there were any preliminary law questions to be determined and heard by the court, to which the attorney for the defendant responded that there was a ‘general demurrer and special exceptions,’ but that he, said attorney, did not read them to the court, but said that the court' could pass upon said exceptions. Whereupon the court said, ‘Well, then, I • will overrule them.’ ” This is all that appears.

The second assignment of error complains of this ruling of the court. In the motion for a new trial, as one of the grounds thereof, appellant sets out that “the court erred in overruling defendant’s first special exception.” There was only'the one above set out.

In answer to this assignment of error it is contended by appellee that the record does not show that the special exception was presented and acted upon, and therefore must be presumed to have been waived, and to support such contention decisions are cited which hold generally that, unless special exceptions are shown by the record to have been presented in the trial court and acted upon, the appellate court will not consider assignments of error based thereon. The rule is well settled, but we do not think this case comes within the rule. An examination of the authorities cited and relied upon by appellee will show this.

In Jones v. Black, 1 Tex. 527, the law is thus stated: “Had there been a judgment below, upon the exceptions to the sufficiency in law of the petition, of had it been brought to the attention and consideration of the court, then other and different questions would now be presented. 'That, however, was not the case, but it was permitted to pass unnoticed, until it is now first insisted upon in this court. We have already, in substance, decided in Mims v. Mitchell [1 Tex. 443], and it may be proper here to repeat in terms more explicit, that where exceptions were filed, but not relied on below, and the parties proceeded to a trial of the issues of fact, the record being silent as to any judicial action either sought or had upon the issues of law, they will be considered as waived, and will not be the subject of revision here. It has been the uniform practice of this court, where exceptions have been filed, but no notice subsequently taken of them, to proceed and dispose of the cause as though no such exceptions had ever been filed.”

In Mims v. Mitchell, 1 Tex. 443, the ruling of the court is sufficiently expressed in the syllabus: “Exceptions . to pleading, which do not appear from the record to have been relied on in the court below, will be considered as waived.” Other authorities cited follow this rule.

The judgment from which we have quoted speaks for itself. It simply shows that the special exception was called to the attention of the trial court but was not read. It was distinctly overruled. No other effect can be given to the language of the court quoted in the judgment than to overrule the exception. It was effectual as a judicial declaration to 'that effect. The court certainly did not treat it as waived. We must presume either that the substance of the exception was stated to the court, or that the court acted blindly and overruled it without ascertaining or inquiring as to the grounds thereof. It is not stated in the judgment that the grounds of the exception were not stated, which would have been sufficient; and in the absence of such a showing from the record we will not presume the other alternative that the court, after having its attention called to the exception, overruled it without inquiring as to the substance of it. The assignment of error and motion for a new trial are sufficient to present the point. It was not necessary that appellant should have excepted or had the ruling incorporated in a bill of exceptions. Article 1364, R. S.; Rule 53 of District Court (142 S. W. xxi).

Coming to the merits of the assignment of error, we think it is ruled by Telegraph Co. v. Mitchell, 91 Tex. 454, 44 S. W. 274, 40 L. R. A. 209, 66 Am. St. Rep. 906. In that case plaintiff sued for damages arising out of negligent delay in transmission and delivery of a telegraphic message, the purpose of which was to apprise him of the immediate necessity of arranging for water for his cattle at his ranch. It was alleged that, “if the message had been delivered in a reasonable time, the plaintiff would have gone to the ranch at once and could and would have made arrangement for water for his cattle.” It was not averred that he could and would have made any particular arrangements with any particular person in order to procure the water, nor what kind of arrangements could have been made. Defendant specially excepted to the petition “because it is not alleged therein when, where, and in what manner he could have arranged to get water for his cattle,” etc. In answer to certified questions the Supreme Court held that the trial court erred in overruling the special exception.- What is said in the opinion is exactly applicable to the present case. The court erred in overruling the exception.

If the evidence as to appellant’s office hours at Milvid called for an instruction on this point, appellant should have asked a special charge covering the point. The question is presented by the seventh assignment of error, which is overruled. See Telegraph Co. v. Vance, 151 S. W. 904, present term.

Other errors assigned need not be passed upon.

The verdict and judgment for $1,995 are complained of as excessive. In view of another trial we do not deem it improper to say that in the circumstances shown by the evidence the amount awarded is much larger than the evidence warrants, even under the latitude allowed to juries in fixing the amount of the damages in cases of this kind.

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

Reversed and remanded.


author: KEY, C. J.

text:
    MORROW et ux. v. HARVEY et ux.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.
    Rehearing Denied May 21, 1913.)
    1. Appeal and Error (§§ 281, 743) — !Proceedings in Trial Court — Motion for New Trial — Court Rules.
    Court of Appeals rules 24, 25, as amended January, 1912 (142 S. W. xii), contemplate that no question can be presented on appeal that has not been presented to the ‘trial court in a motion for new trial, whether the case has been tried by the court or jury, and that each assignment of error shall refer to, the paragraph of the motion for new trial in which the question covered by the assignment was presented to the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 2999, 3011, 3024, 3081; Dec. Dig. §§ 281, 743.]
    2. Infants (§ 19) — Custody—Evidence.
    In an action to determine the right to the custody of an infant, evidence held, to warrant a finding that the best interests of the infant would be served by delivering her into the custody of complainants.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 19; Dec. Dig. § 19.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Action by D. M. Harvey and wife against P. A. Morrow and wife. Judgment for complainants, and defendants appeal.
    Affirmed.
    John B. Durrett, of Belton, for appellants. J. H. Evetts, of Belton, for appellees.

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

   KEY, C. J.

D. M. Harvey and his wife, Annie Harvey, brought this suit against P. M. Morrow and his wife for the purpose of obtaining a judgment establishing the plaintiffs’ right to the custody, care, and control of Elma Stewart, a child five years of age. The defendants filed an answer contesting the rights asserted by plaintiffs. There was a non jury trial, which resulted in a judgment for the plaintiffs, and the defendants have appealed.

Appellants’ brief contains but two assignments of error, both of which present but one question, and that is the contention that, upon the testimony submitted, the custody of the minor child should have been awarded to appellants and not to appellees. Under rules 24 and 25 (142 S. W. xii) for the government of this court, as amended by the Supreme Court in January, 1912, it is not contemplated that any question can be presented upon appeal that was not presented to the trial court in a motion for a new trial, although the case may have been tried by the court without a jury; and rule 25 requires each assignment of error to refer to the paragraph of the motion for new trial in which the question covered by the assignment was presented to the trial court. In this case, no motion for new trial was filed in the court below, and therefore the rules referred to have not been complied with. However, as the welfare of a minor is involved, we have deemed it to be our duty to look into the merits of the case; and, after a careful consideration of the statement of facts, we have reached the conclusion that this court ought not to disturb the judgment of the trial court.

All the parties to the litigation, and also the minor child who is the subjeet-ma'tter of the controversy, are colored people. The undisputed proof shows that the mother of the minor child first married James Stewart, the child’s father; that, when the child was 8 or 9 months old, they separated, and she subsequently obtained a divorce from Stewart. Thereafter she married another man by the name of Clint Whillage, and later they separated, and the mother of the child became a prostitute and offered to give the child to the Harveys, saying that she was sick and could not care for it. The Harveys took the child and adopted it by executing and recording an instrument of writing, in conformity with our statute, which adoption made the child their legal heir. About two years afterwards, at the earnest solicitation of the mother of the child, who was then in bad health, and who stated that her father would not permit her to return to his home without the child, the Harveys permitted the mother to take the child and carry it to the home of her father, P. A. Morrow, she assuring them that they could have it after her death, and saying that she was going back home to die. Not long thereafter the mother died, and, her father and stepmother refusing to surrender to the Harveys the child, this litigation resulted.

The proof shows that the Harveys have become attached to the child, and that it is fond of them; that they have been married 12 years, have no other children, and are better able to care for, maintain, and educate the child than are appellants. It was also shown that they had taken good care of the child while it was in their possession and the testimony indicates that they will continue to do so hereafter. Appellant P. A. Morrow is 'the child’s grandfather, but his wife is not its grandmother, but is the second wife of P. A. Morrow, and therefore the stepgrandmother of the child. The proof also shows that P. A. Morrow has a family, consisting of his wife and seven children by his former wife, three of whom are large enough to work and ’contribute to the support of his family; but it was shown that his income is only about $700 per annum, while D. M. Harvey’s income is at least $1,000 per annum, and his wife was earning some money herself.

Counsel for appellants lay stress upon the fact that the Harveys are not related to the child, and that D. M. Harvey is engaged in the business of keeping a saloon, while P. A. Morrow is the child’s grandfather and a minister of the gospel. Notwithstanding the avocation pursued by D. M. Harvey, the un-eontradictory testimony shows that he is a sober, law-abiding man, kind and indulgent to his wife and to the child in controversy; and appellant Mary Morrow, while she testified that she wanted the child because it was related to her husband, said she thought the Harveys would be kind to it, but that she did not think they were the proper people to have it, because D. M. Harvey lived at Temple and his wife at Dallas; and she referred to an alleged assault upon Harvey’s wife by two women on account of some man. Harvey’s wife testified that no such difficulty ever occurred; and she and her husband gave what the court had the right to accept as a satisfactory explanation of her temporary residence in Dallas; and it was shown that she was a church member, in good standing, and actively engaged in church work. So, after considering all the testimony, we do not feel justified in'holding that the disposition of the case made by the trial court does not subserve the best interests of the minor, which should be the controlling consideration in cases of this kind. Ball v. Smith, 156 S. W. 576, recently decided by this court.

No error has been shown, and the judgment is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    MORGAN v. CITY OF BEAUMONT et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 8, 1913.
    Rehearing Denied May 22, 1913.)
    GARNISHMENT (§ 17) — PERSONS SUBJECT— Municipal Corporations.
    The provisions in the charter of a city that it and its officers, or agents, shall not be “required to answer any writ of garnishment against the city” exempts absolutely the city from garnishment and does not merely leave it optional with the officers or agents of the city whether or not to answer a garnishment writ.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 32-34, 44; Dec. Dig. § 17.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by Robert Morgan against F. O. Starr, defendant, and the City of Beaumont, garnishee. From a judgment in favor of the garnishee and defendant that plaintiff take nothing against the garnishee nor the defendant or his sureties on his replevin bond, plaintiff appeals.
    Affirmed.
    Oeo. C. Greer and Minor & Minor, all of Beaumont, for appellant. Blain & Howth, of Beaumont, for appellee Starr. A. L. Calhoun, of Beaumont, for appellee City of Beaumont.

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

   PLEASANTS, C. J.

In a suit brought by appellant against E. C. Starr, plaintiff sued out a writ of garnishment against appellee, the city of Beaumont. The answer of the garnishee to said writ, which was properly verified, was as follows: “Now comes the city of Beaumont, garnishee, in the above-entitled and numbered cause, and for answer herein to the writ of garnishment served on it says: That, at the time the said writ of garnishment was served upon it, it was indebted in the sum of $1,082.70 to the said E. C. Starr; that it is not now nor was it at the time the said writ of garnishment was served upon it in possession of any effect belonging to the said E. C. Starr; that it does not know of any person or persons who are indebted to the said F. C. 'Starr, or have effects belonging to him in their possession. Garnishee would further show to the court that after said writ of garnishment was served upon it, and before the garnishee became indebted to the said F. C. Starr for any other sum of money than the sum of $1,082.70 above mentioned, the said F. C. Starr replevied, according to law, the said sum of $1,082.70, which this garnishee held, at the time the writ of garnishment was served upon it, and therefore this garnishee has paid over to the said F. C. Starr the said sum of $1,082.70. Garnishee would further show unto the court that under the .charter of the city of Beaumont, granted to it by the Legislature of the state of Texas, the following provision is therein contained, found in section 35 thereof: ‘The property, real and personal belonging to the city, shall not be liable to be sold or appropriated under any writ of execution, nor shall the funds belonging to the city in the hands of any person be liable to garnishment. Nor shall the city or any of its officers or agents be required to answer any writ of garnishment against the city of Beaumont.’ In accordance with the above provision the garnishee says that it cannot be liable in any amount and should therefore be discharged from this suit. Garnishee would further show unto the court that it had to have an attorney to write this answer for it and that the reasonable cost of same is $25. Wherefore, garnishee prays that it be discharged from any liability under said writ of garnishment, with its costs, attorneys’ fees, and such other and further relief and decrees that it may be justly entitled to.”

The defendant Starr filed a pleading in the garnishment proceeding setting up the provision of the city charter referred to in the answer of the city, and alleging that by reason of said charter provision the city was exempt from garnishment, and prayed that the garnishment be dismissed and that he recover his costs.

The cause was tried in the court below without a jury, and judgment was rendered in favor of the garnishee and defendant that the plaintiff take nothing against the garnishee nor the defendant or his sureties on his replevy bond. Under appropriate assignments of error, the appellant assails this judgment on the ground that the charter of the city of Beaumont does not exempt said city from garnishment, but only gives it the privilege of declining to answer such writ and that by answering the writ the city waived its privilege, and the funds in its hands belonging to the defendant became subject to the writ.

It was held by our Supreme Court in the case of City of Laredo v. Nalle, 65 Tex. 359, that, in the absence of a statute exempting municipal corporations from garnishment, they are subject to such writs. The soundness of this decision was questioned by Judge Gaines in the subsequent case of City of Sherman v. Shobe, 94 Tex. 126, 58 S. W. 949, 86 Am. St. Rep. 825, but it has never been overruled and must be regarded as the law in this state on that subject. It is probably not supported by the weight of authority, but we think on principle the decision is sound.

The argument in favor of such exemption is that the public interests will suffer if city governments are subjected to actions and possible judgments and costs in relation to matters in which the corporation or citizens as a body have no interest; and to turn such municipal corporation into instruments for the collection of private debts would detract from their dignity and be subversive of the best interest of the public. Wé think these objections are fully answered by Judge Willie in the Nalle Case, supra. He says: “The policy of keeping the operations of municipal government free from the interference of lawsuits must yield to the more important policy of securing to the creditors and injured parties payment of their debts and redress for their wrongs, to be enforced by the appropriate process of the law. It is not the policy of the law that the citizen should be wronged rather than that the city government should suffer inconvenience. Little difference, if any, exists between the inconvenience of answering to an ordinary suit and that of answering to a writ of garnishment. The latter is nothing more than a suit by the plaintiff in the writ against the city; the matter in dispute, if there be any dispute at all, being the alleged indebtedness of the city to the debtor of the plaintiff. It is not required to take part in tlie controversy between tbe plaintiff and the party for whose debt it is garnished. It cannot therefore be said that, in requiring a city to answer to a writ of garnishment, it is necessarily drawn into a controversy, with which it has no concern.”

In Dillon on Municipal Corporations (5th Ed.) vol. 1, § 249, it is said: “The author’s views, where the question is left entirely open by statute, is that on principle a municipal corporation is exempt from liability of this character with respect to its revenues, the salaries of its officers, and perhaps, also, the wages of its employes, or payments to be made under pending contracts for public works and the like, but that, where it owes an ordinary debt to a third person not in its service, the mere inconvenience of having to answer as garnishee furnishes no sufficient reason for withdrawing it from the reach of the remedies which the law gives to creditors of natural persons and private corporations. The rule that a municipal corporation is subject to garnishment is supported by a respectable body of authority.” We think the rule as limited by Judge Dillon in the above quotation is based upon sound reason and in no sense subversive of sound public policy.

The case of Herring-Hall-Marvin Safe Co. v. Bexar County, 16 Tex. Civ. App. 673, 40 S. W. 146, follows the rule stated in the Nalle Case.

This being the settled rule in this state at the time the Legislature enacted the bill granting a special charter to the city of Beaumont, was it the intention of the Legislature, in providing in said charter that neither the city nor any of its officers or agents should “be required to answer any writ of garnishment against the city of Beaumont,” to absolutely exempt the city from garnishment or merely leave it optional with the officers or agents of the city whether or not to answer such writ, and let the question of the city’s' liability to judgment on a writ of garnishment depend upon whether or not the officer or agent authorized to act for the city chose to answer the writ? We cannot believe that the Legislature intended to leave the question of the city’s liability in such matters to the option of its officers or agents. Under the construction of the statute contended for by appellant, the liability of the city and the right of the plaintiff and defendant might often depend upon the partiality, prejudice, whim, or caprice of the officérs and agents of the city. This result is certainly subversive of sound principles of jurisprudence, and, unless compelled by the language of the statute to so construe it, no such interpretation should be given it We think the trial court properly construed the statute as exempting the city from garnishment. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


text:
    ALF BENNETT LUMBER CO. OF TEXAS v. FALL et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 1, 1913.
    Rehearing Denied May 22, 1913.)
    1. Logs and Logging (§ 3) — Sale of Timber — Construction or Contract.
    In an action to enjoin the cutting of timber, it appeared that a grantor of plaintiffs had, in February, 1907, sold the right to cut and remove the timber for a period of two years, which right was assigned the following month and never exercised by the payment of the price; that such grantor in July, 1908, conveyed the land to the assignee, his deed expressly stating, “all timber on this land excluded from this conveyance,” and reserving a vendor’s lien, and in August, 1910, executed to the assignee an instrument reciting the former conveyance and the vendor's lien, and containing the terms, “do hereby release said land from the lien retained thereon * * * and do hereby claim and convey * * * all my right, title, and interest in the land conveyed by my deed to him aforesaid.” Held1 that, construed in the light of the surrounding circumstances, the instrument was only a release of the vendor’s lien on the land, and did not convey the timber, the title to which remained in the grantor.
    [Ed. Note. — For other eases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3; Contracts, Cent. Dig. § 890.]
    2. Pleading (§ 8) — Matters of Fact or Conclusions — Irreparable Damage.
    In an action to enjoin the cutting and removal of timber, the mere allegation that plaintiffs would otherwise suffer irreparable damage was but a legal conclusion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. § 8.]
    3. Injunction (§ 163) — Dissolution of Temporary Injunction — Grounds —Irreparable Injury.
    In an action to enjoin the cutting and removal of timber, where defendants’ inability to respond in damages was not shown, and where plaintiffs’ injury, if established, was easily and readily compensable, and where defendants made equally as good a case of irreparable damages if the injunction was continued, the dissolution of the temporary injunction, leaving the parties to their action at law for damages, was a proper exercise of the court’s discretion.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig §§ 357-371; Dec. Dig. § 163.]
    4. Appeal and Error (§ 770) — Briefs — Failure to File Brief.
    Appellant, not being required to file any brief, should not be prejudiced by his failure to do so.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action for injunction by the Alf Bennett Lumber Company of Texas, in which other parties intervened as plaintiffs, against H. B. Fall and another, in which the Beaumont Timber Company intervened as defendant, with a cross-action by defendants and motion to dissolve a temporary injunction. Prom an order dissolving the temporary injunction, plaintiff lumber company appeals.
    Affirmed.
    John Lovejoy and Presley K. Ewing, both of Houston, for appellees.

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

   REESE, J.

This is an appeal from an order of the district court, dissolving a temporary injunction theretofore granted. The case comes to this court with an assignment of errors and brief by appellees. The transcript contains the pleadings on the case, and is accompanied by certain original and certified copies of deeds introduced on the hearing by the parties, sent up with the record by agreement. The order dissolving the injunction recites that the motion was heard upon the sworn petition and answer and the exhibits annexed thereto, including affidavits. The said exhibits consist of the deeds referred to, which are attached to the answer and motion to dissolve of defendants, the appellees herein. The pleadings consist of the original petition, naming H. B. Fall and E. T. Culp as defendants, and application for temporary injunction, which was granted; the answer of defendants and the Beaumont Timber Company, intervener defendant, and their cross-action, and in connection therewith their motion to dissolve the temporary injunction; the answer of the original petitioner, and certain intervener plaintiffs, to the cross-action of defendants, and their motion to dissolve the temporary injunction; and the supplemental answer of the defendants to the last-mentioned pleadings of plaintiffs. The pleadings are sworn to, except the above-mentioned answer of plaintiffs to the motion to dissolve. The original petition alleges, in substance, that plaintiff the Alf Bennett Lumber Company, a corporation, was the owner of all the standing timber of certain dimensions on the survey of land granted to Jonathan L. Stanley in Montgomery county (referring to the patent and record for identification of the land), except a certain 100 acres thereof, and that said timber is of the value of $7,000; that on December 1, 1912, while plaintiff was in the lawful and peaceable possession of said timber, defendants conspired together to cut and carry away the same, and in pursuance of such conspiracy entered upon the premises, ejected plaintiff, and were engaged in cutting and destroying the timber, and had already cut and removed timber of the value of $300. It was further averred that damages for cutting the timber would be an inadequate remedy for plaintiff’s injuries, and unless defendants were restrained therefrom, plaintiff would be remediless. There was prayer for temporary injunction, which, as we have said, was granted and duly issued and was served upon the parties.

The Beaumont Timber Company, Limited, having leave to intervene as a defendant, joined the other two defendants in an answer duly sworn to, wherein it was specifically denied: (1) That plaintiff is, or was at the time of the filing of this suit, the owner of any of the timber on the Stanley survey, or that it was at any time in the peaceable possession thereof, or that the value thereof was as much as $7,000; (2) that defendants have conspired, as charged, to cut and carry away said timber, or that they have in any manner ejected plaintiff from said land; (3) that the damages for cutting said timber would be inadequate relief for the injury sustained by plaintiff, if he is the owner of the timber as alleged; (4) that defendants intend or contemplate doing anything tending to the waste or destruction of said timber further than the mere cutting and taking away the same in the ordinary manner of business.

It is further averred that the timber is of market value readily ascertainable, and that defendants are responsible and solvent, and amply able to respond in whatever amount of damages plaintiff may sustain in the premises. It was averred that defendants were the owners of said land and timber, and their title is set out in full by recitation of the several deeds and other instruments in writing, and the several deeds, etc., or certified copies thereof, are referred to and tendered as exhibits to their answer, from which it appears that Jonathan L. Stanley, the original grantee, died many years ago, leaving surviving him his widow, who afterwards married one McNeese, a son W. T. Stanley, and another child, who was represented, as survivor and heir, by Mary A. L. Snowball. W. T. Stanley conveyed his undivided interest in the survey to James T. Ferguson, and this title by' successive conveyances came down to E. V. Ley. Mrs. McNeese, by her last will, duly probated, devised all her interest to her granddaughter, the said Mary A. L. Snowball, and this title, by deeds of conveyance from the sole heirs of Mrs. Snowball, became vested in the said E. V. Ley. The title thus vested in E. V. Ley became vested in defendant H. B. Fall, except a specific 100 acres, now held and occupied by one L. L. McFee, which does not appear to be involved in this litigation. Upon information and belief it is charged as a fact that defendants claim that Mrs. McNeese, the widow of Jonathan Stanley, held in her own right the whole, or one-half, of said survey, and that plaintiff’s vendor of said timber regularly deraigns title to said lands under deed from her, executed and delivered prior to the will and deeds thereunder under which defendants claim. It is alleged that said deed from Mrs. McNeese was never filed for record in Montgomery county, where the land lies (and this is shown by the attached certified copy of the deed to be a fact), and that the defendants and their aforesaid vendors were innocent purchasers for value, and without notice of such prior deed of Me-Neese, if such ever existed, and the same is void as to them. It was further averred that if Mrs. MeNeese had any right, title, or interest in said land, it was an equitable interest or right only, and that such claim had lain dormant for half a century before the commencement of this suit, and is barred by laches as a stale demand.

It was further averred that plaintiff’s title is deraigned as follows: One J. L. Garwood held such title as was conveyed by the aforesaid deed from Mrs. MeNeese and he, on March 8, 1895, by deed of that date, conveyed to R. H. John out of said survey 443 acres, undivided and unsurveyed, less 100 acres thereof, being the aforesaid McFee tract. (This deed we cannot find among those sent up, so we cannot determine whether its contents are correctly stated in the answer.) Proceeding with the allegations of the answer with regard to plaintiff’s claim of title, R. H. John, on February 9, 1907, sold and conveyed to J. H. Brightwell the right to cut and remove, for a period of two years and not longer, the timber on said undivided 343 acres out of the Stanley survey. In March, 1907, Brightwell conveyed this timber right to J. O. Ross, who on May 29, 1907, conveyed it to Houston & Liggett. On July 21, 1908, John sold and conveyed to said Liggett the said 343 acres of land, excluding, by express provision of the deed, all the timber on the land. On October 28, 1910, John released to Liggett the vendor’s lien on the land. On October 26, 1910, Houston & Lig-gett conveyed the said land to the Bush Bros. Lumber & Milling Company. The plaintiff the Alf Bennett Lumber Company claims to have acquired the timber on said land from the said Bush Bros. Lumber & Milling Company. Afterwards R. H. John, on February 13, 1913, for valuable consideration, sold and conveyed the timber on said land (which had not been cut by Brightwell or his vendees of the timber) to R. W. Franklin, who in turn sold and conveyed to the Beaumont Timber Company.

It was averred that defendants, relying upon their deeds to said land under the heirs and devisees of Jonathan Stanley and his widow, Mrs. MeNeese, had for their further peace and protection purchased the timber aforesaid from R. H. John. It was averred that the said Fall is the owner in fee simple of said Stanley survey (except the McFee tract) and that the Beaumont Timber Company is the owner of the timber so far as cut and removed within six months from January 30, 1913.

The answer further alleges that the Alf Bennett Lumber Company, the Bush Bros. Lumber & Milling Company, the firm of Houston & Liggett, and George C. Rice Lumber Company, the latter under some contract for a timber interest with the Alf Bennett Company, are claiming the right, title, and interest in and to said land, and the timber thereon, and seriously threatening to prevent defendants from cutting or taking away timber; that there is urgent necessity, particularly to the Beaumont Timber Company, to cut said timber without delay, as otherwise they will suffer irreparable damage, not readily ascertainable, and not com-pensable at law, particularly on account of idle mill, and their inability to determine what timber would have been cut in the absence of such delay. It was alleged that the defendants had already been damaged to the extent of $550 per day by'the operation of the temporary injunction for which they sue, -and that plaintiff owns nothing except some timber option contracts, and is without property subject to execution sufficient to compensate defendants for the damages suffered by them by such injunction, particularly if the same be continued in force. This answer was duly sworn to by defendant H. B. Fall, and accompanying the same was a motion to dissolve the injunction.

To this answer, cross-bill, and motion plaintiff answered, alleging that it is the owner of all of the Jonathan Stanley survey, and denying that defendants, or either of them, had title, and charging that they, and each of them, had both actual and constructive notice of the title of plaintiff to the land and timber. It was further set out that plaintiff had a deed to the said survey from Bush Bros. Lumber & Milling Company. The allegations of damage set out in the answer of defendants were specially denied, also the allegations as to the inability of plaintiff to respond in damages. This answer was not sworn to.

George O. Rice, intervener, answered, adopting all the pleadings of plaintiff, and specially represented that in September, 1912, the plaintiff the Alf Bennett Lumber Company entered into a contract, whereby the said lumber company granted to him the right to cut all pine timber 8" and larger on the holdings of said company on certain land, among others the Stanley survey, also the use of its sawmill for a monthly rental of $200, and that by said contract George Rice bound himself to cut and manufacture all the merchantable pine timber of certain dimensions on said lands, to pay the said lumber company $4 per thousand feet of said timber cut, to pay it on or before the 10th of each month for all logs cut during the previous month, but no payment to be less than $2,600 per month, to commence October, 1912, and in default thereof to turn over to said lumber company all of its rights under said contract, including the lease of the mill. The said Rice was also to repair the mill to the extent of $4,000, if necessary, and to keep it insured. It was averred that his rights under this contract had been assigned to the Rice Lumber Company, but he is personally liable for its performance. Should this injunction be dissolved and defendants permitted to cut the timber intervener will be unable to cut the said timber, and will become liable for large sums of money on account of said contract, and will suffer great and irreparable damage, which could not be compensated or measured at law. Intervener further averred that H. B. Pall owned the Beaumont Timber Company; that the time limit of six months within which it was to cut the timber under the contract with Pall was a subterfuge, and'if Pall owns the timber he can give said company all the time it needs; that the said timber company is a Louisiana corporation, and has no property in the state of Texas whereby it can be made liable in damages to them; that defendants had full knowledge when they obtained the timber deed from R. H. John that John did not own, or claim to own, the same, but procured such deed to bolster up a design entered into by said Pall to deprive the true owners of their property after he had entered negotiations with them and procured their abstracts of title, with the pretended purpose of buying said property from them. It was alleged that the true meaning and intendment of the deed from R. H. John to. Liggett herein filed in connection with the deed to Brightwell was to convey both land and timber to said parties. It was finally averred that the defendants are not solvent or responsible, and that the dissolution of the injunction will result in irreparable loss to them, and there is prayer that the motion to dissolve be denied. This answer is verified by the affidavit of George C. Rice.

W. G. Liggett and Houston & Liggett answered by general demurrer and general denial.

Defendants, by supplemental answer, alleged that in the Stanley survey there are about 304 acres lying south of the MePee tract, and about 498 acres north of it, and the timber on each tract is about 3,000,000 feet in quantity, and of practically the same value; that when John sold the timber to Franklin, which he had expressly excluded in his deed to Liggett, he (John) well understood and stated that persons claiming under said deed, and under the limited transfers of timber which he had previously, made, were claiming that they had acquired the timber on said land, and he was claiming that they had not, and that in these circumstances he was willing to take, and did take, the price of $200 for said timber, which allegation is supported by the affidavit of said Franklin attached to the answer. Defendants further set up a deed from one Mabel P. Smith to the Beaumont Timber Company for all of the sawlogs pine timber growing on said land, with an allowance of six months to cut it. There were other allegations not material to the disposition of this appeal. This supplemental answer was sworn to.

So far as we can understand the allegations of the pleadings, and such of the deeds as are before us, the dispute as to the title to the land and timber rests mainly upon whether the grantors of appellees at the time they obtained the deeds from the heirs and devisees of Jonathan L. Stanley and his widow, Mary A. L. McNeese, had notice of the prior sale by Mrs. McNeese of the land under which appellants claim, and upon the construction of the release from John to Liggett. This notice is denied by appellees by sworn pleadings, and asserted by appellant the Alf Bennett Lumber Company, by its answer to defendants’ cross-action and motion to dissolve, which is not verified by affidavit. According to the allegations of the sworn answer, appellees show a clear title to the land, under both Stanley and his widow, Mrs. McNeese, and the deeds introduced show such title, unless defeated by the prior deed from Mrs. McNeese, which was not recorded in the county where the land lies, and as to which it is alleged, under oath, appellees were innocent purchasers for value and without notice.

Another question arises on the construction of the deeds from R. H. John. Appellant’s title comes through John, to whom Garwood, who held the title under Mrs. Mc-Neese, conveyed. John sold to Brightwell February 9, 1907, “the right to cut and remove for a period of two years and not longer” all the standing timber on the land, with permission to cut for a further period of one year on payment of 10 cents per acre. Even with the added year this right expired February 9, 1910. It is alleged that this further privilege was never availed of by payment of the price. This right to cut timber was transferred by Brightwell to J. O. Ross March 25, 1907, and by Ross to Houston & Liggett May 29, 1907. On July 21, 1908, John conveyed to W. G. Liggett the land, expressly stating in the deed, “all timber on this land excluded from this conveyance.” This conveyance reserves an express vendor’s lien to secure notes given for the purchase money due in one and two years. On August 10, 1910, John executed to Liggett an instrument which recites the former conveyance, the notes and vendor’s lien, and the payment of the notes, and that Liggett “is desirous of obtaining a release of said .lien retained on the land in the deed.” This instrument then proceeds as follows: “Now, therefore, know all men by these presents that I, R. H. John, * * * for and in consideration of the premises and of $1.00 to me in hand paid by W. G. Liggett, the receipt of which is hereby acknowledged, do hereby release said' land from the lien retained thereon in the deed aforesaid and do hereby quitclaim and convey unto the said W. G. Liggett all my right, title and interest in the land conveyed by my deed to him aforesaid.” Prom Liggett the title to the land passed to appellants. Inasmuch as at the time of the execution of this last instrument all the time given in the conveyance of the timber by John within which to cut same had expired, and tlie title to the timber was absolute in John, appellants contend that the effect of this instrument was to convey to W. G. Liggett the timber as part of the land. This is the construction claimed of the words “quitclaim and convey » * * all right, title and interest,” etc. We do not think this contention can be sustained. By his conveyance of the right to cut the timber to Brightwell and the subsequent conveyance to Liggett of the land, expressly excluding the timber, although Liggett (or Houston & Lig-gett) at that time also owned the right to cut the timber under the transfer to Bright-well, John had separated the timber from the land. This timber is shown to be valuable. Upon payment of the notes given for the land without the timber, and without additional consideration, John executed this instrument. We think it clear from the terms of the instrument when construed in the light of the attendant circumstances that this instrument was only a release of the vendor’s lien on the land. It contains no word not usual in, and appropriate to, such a release. It did not serve to convey to Liggett the timber, the title to which remained in John. There is nothing to indicate that this right in the timber did not pass to appellees under John’s subsequent conveyance thereof. As we understand the pleadings and the exhibits, this deed from Liggett is appellant’s sole source of title to the land and timber, which is destroyed, so far as concerns the timber, by the only construction of it permissible. If this deed did not convey the timber, the- title thereto still remained in John, and passed to Franklin and thence to appel-lees. Under the showing thus made by the pleadings, we think the court did not err in sustaining the motion to dissolve the injunction. There is no denial of the allegations of the answer in regard to the chain of deeds under which Fall claims title, to the land.

Upon other grounds we are of the opinion that such dissolution was not an improper exercise of discretion. It does not appear to us that the injunction is necessary to protect appellants from irreparable damages if on the trial they should be able to sustain their title to the land and timber. The mere allegation that they would suffer such irreparable damage is but a legal conclusion. The facts stated do not, to our minds, sustain such conclusion. The affidavit of the insolvency of appellees, set up under oath only in the answer of Rice, is specifically denied under oath by appellees. It cannot be said that the court was not authorized, in such circumstances, to consider that the fact of such insolvency was not sufficiently made out, the burden being upon appellants. If appellees are able to respond in damages, we can see nothing in the nature of the damages to be sustained by appellants by dissolving the injunction, if they should sustain their right to the timber, that would make them irreparable or not easily and readily compensable. Appellees make equally as good a case of irreparable damages if the injunction is continued. In such case, we think, the court did not improperly exercise its discretion to leave the parties to their action at law, for such damages that might accrue to either of them.

We, of course, must not be considered, by anything we have said, to have passed finally upon the title, or right of the parties. We only go so far as is necessary to show that on the showing made, the court did not err in staying the hand of equity, and leaving the plaintiff to the result of such trial.

Several questions are presented by the brief filed by appellees, which we do not find it necessary to discuss or dispose of, especially in the absence of any brief for appellants. Not being required to file such brief, they should not be prejudiced by their failure to do so.

Finding no error, the judgment is affirmed.

Affirmed.