author: JENKINS, J.

text:
    WESTBROOK v. MISSOURI-TEXAS LAND & IRRIGATION CO.
    (No. 5784.)

    (Court of Civil Appeals of Texas. Austin.
    May 2, 1917.
    On Motion for Rehearing, June 6, 1917.)
    1. Statutes <&wkey;158 — Repeal — Implied Repeal.
    Repeal by implication is not favored in law. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228.]
    2. Waters and Water Courses <&wkey;2l6 — Irrigation — Right op Irrigation Companies —Statutes—Repeal—Implied Repeal.
    Acts 25th Leg. c. 48, forbidding' the acquisition of lands by corporations whose main purpose is the acquisition of land, and Acts 24th Leg. e. 21, § 19 (Rev. St. 1895, art. 3131), as to incorporation of irrigation companies, permitting such companies to acquire land, are not irreconcilable, and the act of 1897 does not impliedly repeal that of 1895.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 305.]
    3. Statutes &wkey;>162 — Repeal — General Laws.
    A general law will not be construed to repeal a special law on the same subject.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 235-237.]
    4. Waters and Water Courses i&wkey;232 — Irrigation CoMpany — Acquisition op Lands — Public Policy.
    The public policy of the state being determined by the enactments of the Legislature, it cannot be said, in view of Acts 24th Leg. c. 21, § 19 (Rev. St. 1895, art. 3131), that it is against the public policy of the state for an irrigation company to acquire land.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 321, 322.]
    5. Pleading <&wkey;142 — Set-Off.
    In a vendor’s action for the price, allegations that the vendor agreed to put this land in cultivation, and that it had failed to do so, and that the cost of putting such land in cultivation was a specific amount per acre, and the undisputed evidence showing that it would cost $15.-50 to put said land in cultivation, was sufficient, in view of the prayer for general relief, to authorize the court to allow such expense as a set-off to the amount the vendor was entitled to recover.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 290, 291, 297, 300.]
    6. Vendor and Purchaser <&wkey;316 — (Recovery —Attorney’s Fees.
    If notes given as part of purchase price of land provide for payment of attorney’s fee if suit is brought, it is not error to award attorney’s fees in the vendor’s action for the price.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 932, 933.]
    On Motion for Rehearing.
    7. Corporations <&wkey;387(2) — Ultra Vires Act —Who May Question.
    The question of whether or not a corporation has acted in excess of its granted powers in the face of an expressed or implied statutory prohibition cannot be raised in litigation between it and a private party, but only by the state in a direct proceeding either to forfeit the franchise of the corporation or to subject it to punishment for the unlawful act.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1549, 1550.]
    8. Corporations c®=o44G — Ultra Vibes Act— Who May Question.
    Where a corporation is the vendor, the ven-dee cannot set up the vendor’s want of capacity to take and hold land as a defense to an action to recover the purchase price of land sold to him.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1785.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Suit by the Missouri-Texas Land & Irrigation Company against Theodore Westbrook, wherein defendant filed a cross-bill. Judgment for plaintiff, and defendant appeals. Reformed and affirmed. On motion for rehearing.
    Motion overruled.
    Gregg & Love, of Austin, for appellant. White, Cartledge & Wilcox, of Austin, for ap-pellee.

       Application for writ of error pending in Supreme Court.

   Findings of Fact

JENKINS, J.

On January 20, 1911, the appellee was chartered, said charter reciting that the company was formed under article 3125, Revised Statutes 1895. This article is a part of the general irrigation law of 1895. At some time subsequent to the issuance of its charter, and prior to the trial of this cause (March 17, 1916), appellee purchased 60,000 acres of land, and subdivided the same into tracts of 40 acres and multiples thereof, and placed the same upon the market. On September 18, 1915, appellee sold appellant 160 acres of this land for a consideration of $2,000 cash, and the promissory notes herein sued on, Secured by a vendor’s lien on said land. At the time of such sale there was only 40 acres of said 160 acres in cultivation, but appellee agreed, as a part of the consideration, to put 60 additional acres in cultivation, and to cultivate 100 acres of said tract, and to deliver the same to appellant the next year. Appellee cleared and put in cultivation only 20 additional acres of said tract. The cost of clearing and putting in cultivation the additional 40 acres would have been $15.50 an acre, or a total of $620.

Appellant resisted payment of the note sued on, and by cross-bill asked to rescind the contract, and to recover the $2,000 cash paid, upon the ground that the act of appellee in attempting to acquire the said 60,000 acres of land was ultra vires. Judgment was rendered for appellee for the amount of said notes, less interest on the $2,000 for one year, which appellee had agreed to pay in consideration of retaining possession of the land sold, and also for 10 per cent, attorney’s fees, and for foreclosure of the vendor’s lien.

Opinion.

The act of 1893, which is carried forward in Revised Statutes 1911 as articles 1177 and 1178, forbade the acquisition of land by corporations whose main purpose was to acquire land; and provided that lands theretofore acquired by such corporations should be alienated within 15 years from the passage of said act, except as to so much as was necessary for the use of the corporation in carrying out the purposes for which it was created. The act of 1895 (Acts 24th Leg. c. 21) § 19, carried forward in Revised Statutes of 1895 as article 3131, and which relates specifically to the incorporation of irrigation companies, permitted such companies to acquire land.

In 1897, General Laws, p. 48, there was passed an act to amend article 749c, c. 18, tit. 21. Article 749c was the act of 1893 above referred to. The act of 1897 forbade the acquisition of lands by corporations whose main purpose was the acquisition of land. Section 1 of the act of 1897 provides that all private corporations authorized by the laws of Texas, as provided in article 642, whose | main purpose is the acquisition of land, shall alienate such as had theretofore been acquired, in 15 years from the passage of said act; and further provides that no private corporation shall be permitted to purchase any land “under the provisions of this and the preceding articles, unless * * * necessary” for its corporate purpose, or to secure debt; and further provided that same should not apply to lands located in towns, or within two miles thereof, whether incorporated or not.

Article 642, referred to in this act, is the general Incorporation act which permits, among other things (section 23), the incorporation of irrigation companies. “The preceding articles” of this title relate to corporations generally.

The issue herein presented is, Did the act of 1897 repeal the act of 1895. § 19 (article 3131, Revised Statutes 1895) ? It will be seen from the foregoing statement that the act of 1893 related to corporations generally, as did also the act of 1897, and that the act of 1895 related specifically to irrigation companies, and undertook to regulate the whole matter of irrigation in this state. The act of 1897 made no specific reference to the act of 1895, and, if said act was repealed, the same was done by implication. Repeal by implication is not favored in law. Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; Less v. Ghio, 92 Tex. 651, 51 S. W. 502; Hanrick v. Hanrick, 54 Tex. 107; Neil v. Keese, 5 Tex. 23, 51 Am. Dec. 746; Selman v. Wolfe, 27 Tex. 72; Napier v. Hodges, 31 Tex. 287; Kinney v. Zimpleman, 36 Tex. 554; 8 Cyc. 748, note 37, and authorities there cited; State v. Massey, 103 N. C. 356, 9 S. E. 632, 4 L. R. A. 309, note and authorities there cited.

In Adams Express Co. v. Lexington, 83 Ky. 657, the court said that, in .order for one act to repeal another by implication, they must be absolutely irreconcilable, or there must be sufficient reason to conclude that the Legislature so intended.

The acts of 1897 and 1895 are not irreconcilable. When read together as one act, they provide that corporations whose main purpose is the acquisition of land shall not be permitted to acquire land, but that this shall not include corporations organized for the purpose of irrigation.

It is also a well-recognized principle that a general law will not be construed to repeal a special law on the same subject. Ellis v. Batts, 26 Tex. 703, Laredo v. Martin, 52 Tex. 561. The act of 1897 was a general law with reference to the acquisition of land by corporations, but the act of 1895 was a special law with reference to the acquisition of land by irrigation corporations.

This case was tried before the court without a jury, and findings of fact and conclusions of law were filed by the court. The court found, among other things, that the acquisition of tile 60,000 acres of land was necessary for the corporate purposes' of ap-pellee. Appellant, asserting that this finding is unsupported by the evidence, cites only the facts that the appellee purchased the 60,000 acres of land and subdivided the same, and -placed it upon the market for sale, and prior to the trial hereof had not erected any irrigation works. These facts do not show as a matter of law that the finding of the court is unsupported by the evidence. But without reference to this finding of the court, which is sufficient to sustain tire judgment of the court upon the issue of ultra vires, we think said judgment must he sustained upon the proposition that the statutes of this state authorized the appellee to purchase said land. Appellant contends that we ought not to so hold, for the reason that the acquisition of large bodies of land by corporations is contrary to the public policy of this state. The public policy of the state is to be ascertained from the enactments of its Legislature, and, as above stated, the Legislature of this state, in 1895, expressly authorized irrigation companies to acquire land without placing any limit on the amount so acquired. See article 3131, Revised Statutes of 1895. This article was reenacted by the Legislature of this state in 1913. General Laws, page 358.

The trial court concluded as a matter of law that there was no pleading or evidence which would authorize the court to allow damage for failure to grub the 40 acres of land which appellee had agreed to clear and place in cultivation. Appellant alleged the contract with reference to the clearing and placing in cultivation 60 acres of the land purchased, and that appellee had cleared and placed in cultivation only 20 acres, and that the price of placing the additional 40 acres in cultivation was $20 per acre, and that the consideration had failed by reason of such failure on the part of appellee. It is true that this allegation is made in connection with appellant’s cross-action asking a rescission of the contract, and appellee did not specifically pray for this amount of damage in the event the contract was not rescinded, but did pray for general and special relief. We think the allegations that appellee agreed to put this land in cultivation, and that it had failed to do so, and that the cost of putting such land in cultivation was a specific amount per acre, and the undisputed evidence showing that it would cost $15.50 to put said land in cultivation, was sufficient under the prayer for general relief for the court to allow this as a set-off to the amount that appellee was entitled to recover. The amount of judgment recovered by appellee was $7,-586.46; as against this appellants should have been allowed a credit of $620.

Appellant assigns error in the action of the court in allowing appellee to recover attorney’s fees. The notes sued upon provide that the appellant should pay 10 per cent, attorney’s fees for collection, if the same were placed in the hands of attorneys for collection, or were collected by legal process. Ap-pellee alleged that said notes had been placed in the hands of attorneys for collection, and that this suit was brought to collect the same, but did not allege that it had contracted to pay attorney’s fees for collection. The court did not err in rendering judgment for attorney’s fees. Childs v. Juenger, 162 S. W. 475.

The judgment of the trial court is here reformed so that the same shall be for $6,-966.46 instead of $7,5S6.46, and ag thus reformed the judgment of the trial court is affirmed.

Reformed and affirmed.

On Motion for Rehearing.

We were in error in our opinion herein in stating that “the court found, among other things, that the acquisition of the 60,000 acres of land was necessary for the corporate purposes of appellee.” The finding of the court was to the contrary of this, and was as follows:

“There was no evidence that would warrant the court in finding that the 60,000-acre tract of land purchased by the plaintiff was necessary to be purchased by it to enable it to carry on the business for which it was incorporated, nor was there any evidence that would warrant the court in finding that the plaintiff purchased said land for the purpose of enabling it to carry on its business under its charter from the state.”

Reference to our original opinion herein will show that we did not base the same upon the findings of the court in this regard, as erroneously stated in said opinion, but that our opinion was based entirely upon the proposition that appellee had authority under the statute to purchase the land referred to.

At appellant’s request we make the following additional findings of act:

(1) The 60,000-aere tract of land referred to in the opinion was not purchased for the purpose of enabling the appellee to carry on the business for which it was chartered, but was purchased for the purpose of resale.

(2) The appellee up to the time of the trial hereof had not constructed, maintained, or operated any canals, ditches, flumes, laterals, reservoirs, dams, or lakes for the purpose of irrigation, but had dug two artesian wells, one of which was on the land sold to appellant.

(3) In addition to the plea of ultra vires, appellant alleged that appellee falsely and fraudulently represented to him that, if he purchased the land in controversy, appellee would grub and clear and put in a state of cultivation 60 acres of the same that was then in a raw state, and would cultivate during the year 1914 100 acres of land, and turn same over to appellant after the crops were gathered in 1914, and that said representations were false and fraudulent, and made with no intention on the part of appellee to perform the same; that he was induced thereby to purchase said tract of land from appel-lee, and, in full reliance on said promises and agreements, appellant purchased said land on or about October 1, 1913, etc.; and further alleged failure of appellee to comply with its agreement to clear and cultivate said land.

The trial court found that the sale of the 160 acres of land to appellant was made in good faith. Such being the ease, failure to comply with the contract to clear and grub the land did not furnish a ground for rescission of the contract, but only for damages for breach of the same, which were allowed in our judgment herein.

In our original opinion herein we affirmed the judgment of the trial court solely upon the ground that the act of 1897 in reference to the incorporation of irrigation companies did not repeal the act of 1895 with reference to the general incorporation law. Such being our view of the law, we did not deem it necessary to discuss any other issues raised by the assignments of error. However, we think the judgment of the trial court should be affirmed for another reason. The trial court filed the following among other conclusions of law:

1. “The question of whether or not a corporation has acted in excess of its granted powers, in the face of an expressed or implied statutory prohibition, is a question which cannot be raised in litigation between it and' a private party, but can he raised only ¡by the state in a direct proceeding either to forfeit the franchise of the corporation or to subject it to punishment for the unlawful act.”

2. “Where a corporation is the vendor, the vendee cannot set up its want of capacity to take and hold land as a defense to an action to recover the purchase price of land sold to him.”

These conclusions of law are supported by the decision in Scott v. Bank, 97 Tex. 57, 75 S. W. 7, 104 Am. St. Rep. 835, and authorities there cited, and many others.

It has frequently been held that equity will not aid a corporation in the unlawful acquisition of land, but no such issue is here presented. The fact that the corporation had acquired the 60,000 acres of land by purchasing the same and paying therefor and receiving deeds in the usual form is not called in question. The only aid which the appellee was seeking in this case at the hands of the court was to collect a promissory note which the appellee had signed, and, as ap-pellee’s title had not failed, he had no legal or equitable defense against said action. Ap-pellee’s motion for a rehearing is overruled.

Overruled.
      (S^aPor other cases see same topic-and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    DUNAWAY et al. v. AUSTIN ST. RY. CO. et al.
    (No. 5744.)

    (Court of Civil Appeals of Texas. Austin.
    April 25, 1917.
    Rehearing Denied June 6, 1917.)
    1. Appeal and Error <&wkey;1069(l) — Harmless Error — Misconduct oe Jury.
    In action by widow of lineman for death of husband due to touching wire charged with current from the railway power wire, where the jury found the railway to be free of negligence, misconduct of a juror, in stating from his experience as a lineman that the deceased was contributorily negligent, was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4136.]
    2. Appeal and Error <&wkey;216(l) — Scope oe Beview — Preservation oe Exceptions — Instructions.
    Where counsel requested the court to submit an instruction to be prepared by the court on a certain issue, but the court indicated that it would not submit any instruction on such issue, counsel’s failure to prepare and submit a proper instruction did not waive their right to present the issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630.]
    3. Appeal and Error &wkey;1069(l) — Prejudicial Error — Misconduct oe Juror.
    In action by widow" of electric lineman for his death, it was misconduct, requiring reversal, for a juror to say that he had worked as a lineman, and that under the evidence deceased was doing the work the wrong way when injured.
    - [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4136.]
    4. Master and Servant <&wkey;364, 401 — Injuries to Servant — Employers’ Liability Acts — Construction.
    Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon's Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), applying to all corporations having more than five employés, applies to a city, and it was not incumbent upon widow of deceased workman to show that, the city employed more than five persons; but that it did not was a matter of defense to be alleged and proved by the city.
    5. Master and Servant <&wkey;293(l) — Injuries to Servant — Instructions.
    In action by widow of deceased servant for his death, instead of requiring the jury to find whether or not the employer “and” its agents, servants, and employés were guilty of negligence, the charge should be so framed to require a finding whether or not the employer “or” its agents, servants, or employés, wore guilty of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1148.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by Mrs. A. Z. Dunaway and others against the Austin Street Bailway Company and the City of Austin. Judgment for defendants, and plaintiffs appeal.
    Affirmed in part, and in part reversed and remanded.
    J. H. McLean, of Llano, and Batts & Brooks, of Austin, for appellants. White, Cartledge & Wilcox, of Austin, for appellee Austin St. Ry. Co. J. B. Rector, City Atty., and Hart & Patterson, all of Austin, for ap-pellee City of Austin.

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

Mrs. A. Z. Dunaway instituted this suit for her own benefit and the benefit of her minor children, and the mother of her deceased husband, W. B. Dunaway, who while acting as an employé of the city of Austin received injuries which resulted in his death. The suit was brought against the city of Austin, and also against the Austin Street Railway Company; the plaintiff charging that each of the defendants was guilty of certain specified acts of negligence.

Long before the accident which caused the death of W. E. Dunaway, the Street Railway Company constructed a railway line along East Twelfth street, in the city of Austin. The construction was in the following manner : The railway track was located approximately in the center of the street. Over the track and 20 or 80 feet from the ground was suspended the trolly wire which carried the electric current used in propelling the street cars. This trolley wire was supported by means of poles, which were placed opposite each other at intervals along each side of the street, and by guy wires which were stretched across the street from pole to pole and attached to the trolley wire. Some years after the construction of the street railway line, and more than a year before the death of Dunaway, the city of Austin constructed along one side of Twelth street its electric line, carrying three wires, two of them designated as “primary” wires, and the other as an “arc light” wire, which wires were used by the city for the purpose of distributing currents of electricity. ■ The “arc light” wire was strung on poles running along the side of the street and hung over the support poles of the street car trolley wire, and over the span wires that ran from the latter poles across the street. On the same poles that carried the arc light wire were strung the two primary wires, which constantly carried high-tension electric currents. The arc wire carried over 2,000 volts of electricity.

On the 11th day of May, 1915, about 8 o’clock in the forenoon, the arc light wire of the city that runs along East Twelfth street was reported “hot” and in trouble. This wire does not ordinarily, carry a current in the daytime, and was not then in use. On receipt of the report referred to, the city employes took certain steps to ascertain the cause of the trouble, and located and removed it the afternoon of the following day. •The trouble was caused by the arc light wire coming in contact with an iron bolt in one of the poles supporting a guy wire of the railway company, which bolt was connected with the guy wire, and it in turn being connected with tile grounded trolley wire. A very short time before this trouble was discovered and removed, W. E. Dunaway, while working as a lineman for the city on one of its poles on East Twelfth street, was killed by bringing his body into simultaneous connection with the grounded arc light wire and one of the primary city wires. The city’s wires and poles, and the street ear company’s wires and poles, were placed in such close proximity to each other that the action of the wind and vibration incident to the passing of street cars vith their trolley poles straining on the trolley wires would naturally in the course of time produce a loosening of all the poles and wires, and cause the wires to sag, and have a tendency to come in contact with one another.

The case was submitted to a jury upon 27 special issues, and the jury found that neither of the defendants was guilty of negligence as to the issues submitted, and that the deceased was guilty of contributory negligence. The trial court rendered judgment for the defendants, and the plaintiffs have appealed.

After carefully considering all the assignments of error that relate to the judgment in favor of the street railway company, we have concluded that none of them point out a sufficient reason for having that part of the judgment set aside or modified. It is not claimed in appellants’ brief that the finding of the jury to the effect that that defendant was not guilty of negligence is not supported by the testimony; nor do we think the court committed such error in submitting that branch of the case to tlie jury as requires a reversal. Such being the case, if it be conceded, as contended by appellant, that one of the jurors was guilty of- misconduct in stating to the jury his experience as a lineman, and how the deceased should have worked on the occasion when he was killed, such misconduct related only to the question of contributory negligence; and, if the verdict is permitted to stand, finding that the street railway company was not guilty of negligence, it is immaterial whether or not the deceased was himself guilty of negligence. If he was entirely free from negligence and exercised the utmost care, still appellant is not. entitled to recover from the street railway company unless the latter was guilty of some act of negligence.

As between the other litigants, we have reached the conclusion that reversible error has been pointed out and that the case should be remanded for another trial, and our reasons for that conclusion will be briefly stated.

It was alleged in plaintiffs’ petition that the defendant city of Austin, its servants and agents, were guilty of negligence, in that they failed to exercise ordinary care to prevent the arc light wire of the city from sagging and thereby coming in contact with a bolt in a pole of the street railway company, which bolt, because of defective insulation of the railway company’s support wire, and because of defective insulation of the arc light wire, was connected by an electrical conductor with the trolley wire and thereby caused the deadly current from the primary city wire to pass through the body of W. E. Dunaway and hill him, and that the city, its servants and agents, were thereby guilty of negligence, unskillfulness, and default which directly and proximately caused the death of W. E. Dunaway. It is also alleged that the city was guilty of negligence in failing to inspect the arc light wire prior to the death of Dunaway. The plaintiffs also adopted a charge of negligence contained in the cross-action of the street railway company against the city of Austin, wherein it was charged that the city, its agents, servants, and employes, were guilty of negligence in permitting its wires to become loose, slack, sag, and out of place. There was testimony tending to support all of those allegations.

The trial court submitted no issue to the jury relative to the prior negligence of the city in failing to exercise proper care to prevent the dangerous condition the wires were in at the time the accident occurred, but limited the plaintiffs’ right to recover to the negligence charged against the city in failing to exercise proper care after the wires became ehargedi with deadly currents, and thereby brought about the dangerous condition.

When the court’s charge was submitted to the plaintiffs’ attorneys, they filed written ¡ objections thereto, one paragraph of which read as follows:

"Blaintili respectfully suggests to the court that one of the important and material issues in this case is whether the city of Austin was not guilty of negligence that directly and proximately caused the death of W. E. Dunaway, in so constructing its electrical lines that the arc wire in the ordinary course of operation would come in contact with the metallic conductors of defendant Austin Street Railway Company, and in failing, after the construction of said electric line in said manner to exercise ordinary care to inspect and correct said defective and dangerous construction and plaintiffs therefore request the court to submit to the jury. special issues embodying said theoi'y of liability against the defendant city of Austin.”

The court overruled and denied that objection and request, for the stated reason that the general charge as framed sufficiently covered the matters referred to, and that action and ruling of the court is assigned as error.

We agree with appellants’ counsel that the pleadings and evidence raised the issues of negligence referred to, hut have had some doubt as to whether they have waived the right to complain in that respect, by their failure to prepare and present to the court a special charge properly framed for the submission of the issues referred to. It has often been held in this state that failure to charge upon a particular theory presented by the pleadings and evidence does not constitute reversible error, unless the complaining litigant shows that he presented to the court a properly framed charge upon that subject. But notwithstanding that rule, this court has held, though we are unable now to recall the style of the case, that when it is shown by the record that an appellant had verbally requested the court to charge upon a particular subject, and the court held there was no evidence to justify the charge upon that subject, and therefore he would not give any, it was not necessary for the complaining litigant to show that he had presented to the court a written charge upon the subject, and that it had been refused. We think the case at bar is analogous to the one referred to. In other, words, in matters of procedure, as well as in many others, the law ought not require any one to do a futile act; and when, as in this case, the trial court has rendered it manifest that he will no further charge upon a particular subject, no matter in what form he may be requested to do so, we think it would be unreasonable and unjust to hold that the complaining litigant has waived his rights upon that subject by not requesting a written charge, which he knew would have been refused.

But this does not dispose of the entire case between the plaintiffs and the city, as the latter has in its favor a finding of the jury that the deceased was guilty of contributory negligence. Appellants’ counsel concede that, if the finding referred to is permitted to stand, appellant is not entitled to have the judgment reversed; but they assail that finding upon two grounds, both of which we have concluded must be sustained, and these are: (1) Misconduct of one of the jurors relating to that subject; and (2) that on account of the Employer’s Liability Statute contributory negligence is not an absolute defense in this case.

The misconduct of the juror referred to, as shown, by undisputed testimony, consisted of his statement to the jury, after he had been elected as its foreman, that he had been a lineman for several years, and served in the same capacity in which the decease was serving at the time of his death, and that the proper way of doing the work the deceased was engaged in was to remain underneath the wires, while the testimony showed that the deceased at the time he was killed was above the wires and working from that position. As to which was the proper way to do the work, there was conflict in the testimony, and we think it is altogether probable that the statement made by the juror referred to had some influence upon other jurors in determining whether or not the deceased was guilty of contributory negligence. Hence we hold that the conduct of the juror, as stated above, was such misconduct as entitled the plaintiff to a new trial, and that the trial court exceeded its discretion when it overruled that contention.

As to the second question, we quote as follows from the Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Anri. Civ. St. 1914, arts. 5246h-5246zzzz]), wriieri went into effect September 1, 1913:

“Section 1. In an action to recover damages for personal injuries sustained by an employé in the course of his employment or for death resulting from personal injury so sustained it shall not be a defense: (1) That the employé was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such employé provided that no such em-ployé who may be injured or killed shall be held to have been guilty of contributory negligence where the violation of such employer of any statute enacted for the safety of the employés contributed to .the injury or death of such em-ployé. (2) That the injury was caused by the negligence of a fellow employé. (3) That the employé had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employé to bring about the injury. (4) Provided however in all such actions against an employer who is not an (a) subscriber as defined hereafter in this act it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.
“Sec. 2. The provisions of this act shall not apply to actions to recover damages for the personal injuries or for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to the empbyés of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to employés of any person, firm or corporation having in his or their employ not more than five employés.”

In Middleton v. Texas Light & Power Co. (Sup.) 185 S. W. 556, our Supreme Court sustained the validity of that act, and we sustain the contention of appellants’ counsel to the effect that it has application to this case, and we overrule appellee’s contention to the effect that before it could be available it was necessary for appellant to allege that the city has in its employ more than five em-ployés.

The city of Austin is chartered by a special law, and, if the courts are not charged as a matter of common knowledge with the fact that the dty has more than five employés, that fact was established' without objection by the undisputed testimony in this case, and therefore we hold that the statute has application. In fact, we agree with appellants’ counsel in the contention that as the city was required to plead contributory negligence as a defense, wbicb is a plea in avoidance, if any one was required to make any averment in tbe pleadings as to tbe number of employés, the city, and not tbe plaintiff, would be required to do so. In other words, the first section of the act when considered by'itself destroys absolutely the defenses of fellow servant and assumed risk, and reduces contributory negligence from a complete to a partial defense; while the second section exempts certain classes, including any person, firm, or corporation employing not more than five employés, from the operation of the first section.

In the case at bar, tbe city introduced a plea of contributory negligence as an absolute defense to tbe suit; but such negligence would not have that effect and operate as a complete defense, unless tbe city .was employing not more than five employés, and therefore it would seem that the burden should rest upon the city to allege and prove that fact. Neither party made any allegation in the pleadings upon that subject, but, as said above, tbe undisputed proof shows that tbe city was not in that class, because at tbe time referred to it bad in its employ more than five employés; and when tbe case is tried again, if tbe proof is tho same, tbe question of contributory negligence should be dealt with as prescribed by the statute. And tbe same may be said as to tbe defense of assumed risk.

Appellants’ counsel criticizes tbe conjunctive form in which the court submitted to tbe jury tbe issues of negligence charged against tbe city, and, without making that a ground for reversal, we suggest that upon another trial the charge be so framed as to submit such questions disjunctively. In other words, instead of requiring tbe jury to find whether or not tbe city, “and” its agents, servants, and employés, were guilty of negligence, tbe charge should be so framed as to require a finding as to whether or not tbe city, “or” its agents, servants, or employés, were guilty, etc.

As between appellants and tbe Austin Street Railway Company, tbe judgment of the court below is affirmed;' but, as between appellants and the city of Austin, that judgment is reversed, and tbe cause remanded for another trial.

Affirmed in part, and reversed and remanded in part.
      i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    RED RIVER, T. & S. RY. CO. et al. v. DAVIS.
    (No. 7777.)

    (Court of Civil Appeals of Texas. Dallas.
    May 12, 1917.
    Rehearing Denied June 9, 1917.)
    1. Raileoads <&wkey;72(l) — Deeds — Condition Subsequent.
    Provision of a deed to a railroad, that the price was accepted after institution of condemnation proceedings and on the condition that the property shall be used for railroad purposes only, all of which is part of the consideration, and the grantee binds itself and successors to so use it, imports a condition subsequent, the effect being as if the land had been condemned for railroad purposes.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 168, 169.]
    2. Railroads <&wkey;82(3) — Deeds — Condition Subsequent — Ejotect od Breach.
    Where land is deeded to railroad on condition subsequent that it shall be used for railroad purposes only, forfeiture of the easement created by tbe deed is the effect of permanent abandonment of such use.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 215.]
    3. Evidence <@=^461(2) — Pabol Evidence — Ambiguity in Deed.
    To aid in interpreting a clause of a deed as to use of tbe property by tbe grantee, testimony in regard to tbe agreement of the parties and the negotiations in regard to execution and delivery of the deed is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2130.]
    4. Evidence &wkey;>419(2) — Pabol Evidence — Consideration of Deed.
    Parol evidence is admissible to show the consideration named in a deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1912.]
    5. Evidence <&wkey;208(6) — Pleadings.
    Plaintiff may introduce in evidence an answer not denying an averment of the petition; it being abandoned by amendment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 71S, 719]
    6. Appeal and Ebrob &wkey;>1051(l) — Harmless Error — Admission of Evidence.
    Any error in admitting in evidence an abandoned answer as an admission of abandonment of land for the purposes for which it was deeded was harmless, all the circumstances showing the abandonment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Mrs. Camille G. Davis against tbe Red River, Texas & Southern Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, and Cockrell, Gray & McBride and Brooks & Worsham, all of Dallas1, for appellants. Spence ■& Haven, of Dallas, for appel-lee.

       Application for writ of error pending In Supreme Court.

   RAINEY, C. J.

This suit was instituted by appellee against appellants to recover two tracts 'or lots of land situated in the city of Dallas, one lot referred to as Commerce street property, and the other as Columbia street property. In substance the plaintiff alleged that she conveyed this land to the railway company upon the express condition that said lands would be used by a railway company for railroad purposes only, and that she conveyed such title to the railway company as it could have 'obtained in condemnation proceedings, and that said property was not being used by the railway company for railroad purposes only, and that the railway Company had forever abandoned any intention of so using said property. At the time of the trial W. F. Evans held the record title to the Columbia street property for the Red River, Texas & Southern Railway Company, and N. A. McMillan held the record title t'o the Commerce street property for the St. Louis Union Trust Company. The Red River, Texas & Southern Railway Company answered by general demurrer, a number of special demurrers, a general denial, and pleaded the four, five, and ten year statutes of limitation. The St. Louis Union Trust Company, after pleading a general demurrer and a general denial, pleaded that it was an innocent purchaser for value, and then adopted the allegations contained in the pleadings of its codefendant Red River, Texas & Southern Railway Company. The defendants W. F. Evans and N. A. McMillan answered to the effect that they had n'o interest in the property, and were simply holding the same, Evans for the railway company, and McMillan for the trust company, and adopted the answers of these respective defendants.

The cause was submitted to a jury on special issues, and upon return of the answers there was a judgment rendered in favor of the plaintiff for both tracts of land subject to a right of way of 10 feet by 100 feet off of the east side of the Columbia Street property, provided, however, that the plaintiff pay to the defendants the sum of $18,127.42, being the difference between the sum of $18,500, which amount was originally paid to the plaintiff upon the execution and delivery by her of the deed to said pieces of property, with interest there'on at the rate of 6 per cent, per annum from the date of the delivery of said deed to the date of the trial of this1 case, and the rents actually collected by the defendants from said property, less taxes paid, which said amount the plaintiff tendered into the registry of the court. From which said judgment the defendants have perfected an appeal to this court.

Conclusions' of Fact.

On and before February, 1903, the appellee was the 'owner in fee simple of the two lots of land in Controversy. On said date she executed a conveyance in form of a warranty deed to said lots to the Red River & Southern Railway Company, reciting:

“In consideration of the sum of $18,500 paid by tbe Red River & Southern Railway Company, cash in hand, the receipt of which is hereby acknowledged, which price was accepted after condemnation proceedings were instituted and upon the expressed condition that the hereinafter described property shall be used by a steam railroad company for railroad purposes only, all of which is part of the consideration hereof, and the vendee herein binds itself and its successors to so use said property.”

Prior to February, 1903, the railway company’s agent tried to purchase said land from the appellee, she refusing to sell, condemnation proceedings were instituted, and while pending she agreed with the parties that she would only deed such interest in said land as the railway company could procure by the condemnation proceedings, to which the railway company consented, and in pursuance of said1 agreement said deed was executed by her? the railway company knowing at the time that appellee only intended to part with an easement for railroad purposes exclusively. The consideration paid, as stated in said deed, was the full value of said land at that time.

At the time said conveyance was executed it was the intention of appellants' to use part of said land for railroad purposes, out it was never so used, and such intention was abandoned in the year 1912. In that year oral application was made to the city commissioners to crbss Young- street, but said application was refused. Since said time said railway company, or its successors, have placed a track on said property, but said track is not substantial and is not connected at either end with any steam railroad. In building said track it was not the intention 'of the railway company or its successors to use the balance of said property for railroad purposes only. A year 'or two after appellee executed the conveyance mentioned, the railroad company’s agent tried to secure from appellee a quitclaim deed to said property, but appellee refused to make' said deed. When the St. Louis Union Trust Company took its trust deed to the property in controversy it was placed upon notice of the character of the conveyance frOia appellee to the appellant railway company.

1. The main question for solution is the construction to be given the language in the deed from appellee to the railway company, which reads (after stating the consideration) :

“Which price was accepted after condemnation proceeding's were instituted and upon the express condition that the hereinafter described property shall be used by a steam railroad company for railroad purposes only, all of which is part of the consideration hereon, and the vendee herein binds itself and its successors to so use said property.”

This language imports a condition subsequent, but if there is any ambiguity therein, the circumstances surrounding the parties at the time clearly show the intention of the parties that it was to be a condition subsequent. We therefore hold the failure of the railway company to use the land for railroad purposes only is shown, and it thereby forfeited its easement created by the' deed. Teague v. Teague, 22 Tex. Civ. App. 443, 54 S. W. 632; Railway Co. v. Dunman, 74 Tex. 265, 11 S. W. 1094; McBride v. Gin Co., 152 S. W. 1135; Horner v. Railway Co., 38 Wis. 165; Allen v. Howe, 105 Mass. 241; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; Mills v. Railway Co., 10 Wash. 520, 39 Pac. 246.

2.The effect of the condition in the deed is the same as where the said land had been legally condemned for railway purposes, that is, where a permanent abandonment of the use for which it was condemned takes place, in which event it reverts to the grantor. Muhle v. Railway Co., 86 Tex. 459, 25 S. W. 607; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295; Railway Co. v. Clark, 146 S. W. 989.

3. The court did not err in refusing to give appellant’s peremptory charge to the jury, in effect, to find for appellants; there being sufficient facts introduced to raise issues for the determination by the jury which required its submission.

4. The trial court did not err in rendering judgment in favor of appellee, because under the facts in the case the plaintiff was entitled to recover, and the court did not err in rendering judgment for her.

5.'The judgment of the court is fully supported by the evidence and the verdict.

6. The court did not err in permitting Mrs. Davis and her son, Wirt Davis, to testify in regard to the agreements of the parties and negotiations in regard to the execution and delivery of the deed, because such evidence had a tendency to show the intent of the parties in making the deed, and served to interpret the clause of the deed as to the use of the land. Besides, parol evidence is admissible to show the consideration named in the deed. Walker v. McDonald, 49 Tex. 458; Gibbs v. Penny, 43 Tex. 560; Horner v. Railway Co., 38 Wis. 165.

7. There was no error on the part of the court in admitting in evidence the thirty-first paragraph of the first amended original answer in this cause, it being an abandoned pleading and superseded by an amendment. There is no general denial in the first amended original answer of the railway company. Neither is there in said pleading a special denial to the effect that the railway company did not intend to use said property for railway purposes. Railway Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877; Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; Railway Co. v. Wellington, 57 S. W. 856; Cameron v. Realmuto, 45 Tex. Civ. App. 305, 100 S. W. 194. If we are not right in the foregoing conclusion, we think the admission of said abandoned pleading was harmless error, for the circumstances all show that said land had been abandoned for the purpose for which it was deeded.

8. The remaining assignments of error have been considered, but under the facts and circumstances of the case, we think it is clearly shown that in making the conveyance of the land it was the intention of appellee to'convey it to be used only for railroad purposes, and it was so understood and intended by said railway company. We also think it clear that both tracts had long since been abandoned, and none of it, except the small strip of the Columbia property in which the track is now laid, has ever been used for railroad purposes, and under this view we are of the opinion that the claimed errors, if such, do not constitute reversible errors, and the judgment is affirmed.

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

      &wkey;jFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PATTERSON & ROBERTS v. QUANAH, A. & P. RY. CO. et al.
    (No. 1142.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1917.
    Rehearing Denied June 13, 1917.)
    1. CARRIERS <&wkey;90 — CONVERSION—'WRONGFUL Delivery to Consignees.
    If a shipment be under a shipper’s order bill of lading, it is a conversion by carrier to turn the car over to the consignees before payment of the draft.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 331-337.]
    2. Carriers <&wkey;94(3) — Sale oe Goods — Liability.
    A verdict for defendant, in action by shipper against carrier for conversion, should not be permitted, it appearing it sold the goods under the statute as to perishable property, and, after demurrage and advertising charges, has a balance belonging to plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 37S-3S5.]
    3. Carriers >@=3177(2) — Injury to Shipment —Through Bill oe Lading.
    Shipment having been on a through bill of lading, each of the carriers is responsible for damages to the goods in transit.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 77G, 777.]
    4. Carriers <&wkey;89 — Sale of Perishable Goods — Conversion.
    If goods shipped be perishable, which is a question of fact, and be sold by the carrier in conformity with the statute as to perishable goods, it would not be liable for conversion because thereof, if it tendered the balance of proceeds of sale, after deduction for demurrage and advertising charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 324-339.]
    5. Carriers <&wkey;S9 — Sale of Perishable Goods — Conversion.
    Sale by the carrier of a shipment of goods as perishable, without complying with the statute, requiring notice by advertising for five days, would be a conversion.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 324-330.]
    G. Carriers &wkey;>135 — Injury to Shipment— Right of Recovery.
    Where injury to goods in transit does not render them worthless, the shipper refusing to accept them, while not entitled to recover their value, may recover for the injury.
    [Éd. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-002, 608%-604%.J
    7. Trial &wkey;>359(l) — Submission on Special Issues — General Verdict.
    A case being submitted on special issues, the court should not accept a general verdict not responsive thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 857-800, 870, 878.]
    S. Trial <&wkey;l41 — Submission to Jury.
    Facts admitted in pleadings need not he submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336.]
    9. Evidence <&wkey;543(4) — Opinions—Qualification.
    A witness is qualified to testify to market value of maize at a certain place, there being no denial of his testimony that he had shipped much maize there, and was acquainted with market value there.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2358.]
    10. Evidence <&wkey;>130 — Letters.
    Letters exchanged between defendants are not admissible against plaintiff, they not being attached to a deposition, nor the facts stated therein sworn to by any witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 403.]
    11.. Evidence &wkey;471(24) — Opinions.
    Testimony of witnesses, not shown to be experts, that in their opinion maize, claimed to have been injured in ears, was ruined by being rained on while in the field on the ground, is nothing more than a guess, and inadmissible.
    Appeal from Cottle County Court; W. O. Jones, Judge.
    Action by Patterson & Roberts against the Quanah, Acme & Pacific Railway Company and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    Bell & Bell, of Paducah, for appellants. D. E. Decker and J. A. Clarke, both of Quanah, and Hawkins & Sneed and J. M. Whatley, all of Paducah, for appellees.
   HALL, J.

Appellants sued the Quanah, Acme & Pacific Railway Company, the Denver City Railway Company, Houston & Texas Central Railway Company, St. Louis, Brownsville & Mexico Railway Company, and Frank Adams, its receiver, Missouri, Kansas & Texas Railway Company, and Harris Bros. Grain Company, for the sum of $304.50, the alleged value of a shipment of maize from Paducah, Tex., to Heyser, Tex. The petition alleges that the shipment was damaged in transit by reason of a defective car, which permitted the rain to leak through and damage the contents, and, while the pleading is not faultless, it is sufficiently clear, as against a general demurrer, to permit a recovery in the alternative for conversion. Plaintiffs were entitled to recover either upon proof of conversion or upon proof of the facts alleging negligence in furnishing a leaky car. We understand from the record that the shipment was made on a through bill of lading which was attached to a draft drawn upon Harris Bros. Grain Company at McKinney. When the shipment reached destination, and its damaged condition was ascertained, the draft and bill of lading were returned to plaintiffs unpaid. The shipment seems to have been transferred from one car to another somewhere en route, but when and by whom the transfer was made docs not appear from the record. During the progress of the trial appellants took a nonsuit as to Harris Bros.; but it appears from the statement of facts that upon their request, when the car had reached its original destination, it was reconsigned to Tivoli. Whether this could be construed as an acceptance of the car and an exercise of dominion over it by Harris Bros., the record is not full enough for us to determine.

If the shipment was made under a shipper’s order bill of lading, the act of the railroad company in turning the car over to the consignees before payment of the draft would be a conversion by the carrier. M., K. & T. Ry. Co. of Texas v. Seley, 31 Tex. Civ. App. 158, 72 S. W. 89; T. & G. Ry. Co. v. First Nat’l Bank of Carthage, 47 Tex. Civ. App. 283, 112 S. W. 589.

The maize was advertised for sale under the statute permitting railway companies to sell perishable commodities, and it appears that, after paying the demurrage and advertising expenses, there is a balance of $59.32 still in the hands of the auditor of the delivering carrier. It was shown by two witnesses that the maize was delivered to the initial earriér in good condition, and several witnesses testified that it reached Heyser in a badly damaged condition, and, notwithstanding these facts, there wa.s a general verdict by the jury for the defendants. Upon what theory the court permitted the jury to return a verdict in favor of the defendants, when it is shown that one of them has $59.-32 in its hands belonging to plaintiffs, we are finable to state; but that is such a palpable error as will require a reversal of the judgment, even without consideration: of the several assignments presented in the brief.

Having been shipped upon a through bill of lading, each of the carriers is responsible for the damages to the maize in transit, under articles 731, 732, and 1830, Vernon’s Sayles’ Civ. St. Elder, etc., Co. v. St. Louis, etc., Ry. Co., 105 Tex. 628, 154 S. W. 975; Galveston, etc., Railway Co. v. Jones, 104 Tex. 92, 134 S. W. 328; Williams v. Gulf, etc., Ry. Co., 135 S. W. 390; S. A. & A. P. Ry. Co. v. Jackson & Allen, 187 S. W. 488; St. L. S. W. Ry. Co. v. Hughston Gr. Co., 186 S. W. 429.

In its present condition the record' is sufficient to show that probably the maize could be classed as perishable freight at the time of its sale, though the admissible evidence on that issue is meager. Of course if it can be termed perishable, which was a question of fact, the carriers would not be liable for conversion, because of sale, had they tendered the sum of $59.32 remaining in their hands as proceeds of the sale, though they may still be liable for the damages in transit. Whether or not the freight was advertised for fully five days before the sale we are not able to tell from the record. If it was sold without complying with the statute, such sale would constitute a conversion. Carter & Corey v. I. & G. N. Ry. Co., 93 S. W. 681; M., K. & T. Ry. v. Rines & Co., 37 Tex. Civ. App. 618, 84 S. W. 1093.

The court submitted the case to'the jury upon the following general charge requested by the defendants:,

“Gentlemen of the Jury: At the request of the defendant railway companies you are instructed as to the law in this case as follows: That if the car of maize in controversy, when it arrived at its final destination, was not wholly worthless, the plaintiff or consignee was charged with the duty of receiving the same, and of using reasonable efforts to obtain the market value for the shipment in its damaged condition; and if you believe from the evidence that the plaintiff and the consignee refused to accept said shipment, if the same was not wholly worthless, then you are charged that the plaintiff cannot recover in. this case, and you should return a verdict in favor of the said defendant.”

This charge is certainly not the law applicable to this case. See St. L. S. W. Ry. v. Burrus Mill & E. Co., 168 S. W. 1028, and authorities cited.

The jury did not answer any of the special issues, but, it seems, returned a verdict based upon the above-quoted charge. While some of the special issues submitted are immaterial, the most of them present proper issues, arid- the court should have required the jury to answer them, or else state that they could not agree; but it appears that no effort whatever was made to answer any of them. The general verdict, as returned, was not responsive. When a case is submitted upon special issues, the court should not accept a general verdict. If the shipment was made upon a through bill of lading, issues 1, 2, 3, 4, and 5 were immaterial inquiries so far as the rights of plaintiffs were concerned, but may have been relevant to the liability of the carriers inter se. Issue No. 6, as to the value of the maize at the time delivered, and issue No. 7, as to its value and con'dition upon its arrival at Tivoli, were material. That part of issue No. 8, with'reference to whether or not the maize was sold at Tivoli, was immaterial because the defendants’ answers admitted its sale, and facts admitted in pleadings need not be submitted to the jury. The ninth issue -is not stated in the brief, but the tenth was material. There is a second set of interrogatories appearing in the record. None of them have been answered.

We think that the witness Patterson was qualified to testify as to the market value of the maize at destination. He stated he had shipped a great deal of maize to that section of the country, and that he was acquainted with the market value in that locality. This evidence not being denied, he should have been permitted to testify.

It appears that a number of letters, written by agents and officials of some of the defendants, to the agents and officials of other defendants, were introduced as evidence against the plaintiffs. The letters were not attached to any deposition, the facts stated therein were not sworn to by any witness, and plaintiffs could not be bound by any of the declarations contained in them. Emerson v. Mills, 83 Tex. 385, 18 S. W. 805; Edwards v. Osman, 84 Tex, 656, 19 S. W. 868; M. K. & T. Ry. Co. v. Want & Co., 179 S. W. 903. All this testimony should have been excluded upon plaintiffs’ objection, or else its effect limited to the several defendants.

The testimony of several witnesses who testified by deposition was admitted, who gave it as their opinion that the maize was ruined by being rained upon while it was in the fields, and before the heads were picked up from off the ground. This is purely the expression of an opinion from witnesses who were not shown to be experts, and, at the best, could be nothing more than a guess. Appellants’ objections to this testimony should have been sustained.

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


author: HIGGINS, J.

text:
    FT. WORTH & R. G. RY. CO. et al. v. BRYSON & BURNS.
    (No. 715.)
    (Court of Civil Appeals of Texas. El Paso.
    May 24, 1917.)
    1. Cakeiebs <&wkey;230(l) — Injury to Stock Shipmeno>-Negligence — Question for Jury.
    Evidence showing that a stock shipment was in carrier’s exclusive control, that cattle were sound when delivered to carrier, and upon arrival were injured, made a prima facie case of negligence requiring submission to jury.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. § 962.]
    2. Trial &wkey;>194(15) — Instruction on Weight of Evidence.
    Instruction that if jury found “that through the rough handling,” etc., of cars, cattle shipped were injured, shipper could recover, was erroneous for assuming rough handling of shipment, thus being an instruction upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 465.]
    3. Carriers <&wkey;213 — Stock Shipment — Duty to Transport Within Reasonable Time.
    A carrier of live stock is required to use ordinary care to transport shipment with reasonable dispatch or within a reasonable time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922.]
    4. Trial i&wkey;296(l) — Erroneous Instruction Cubed by Other Instruction.
    An erroneous main charge was not cured by a correct special charge in conflict therewith, since the matter was thus left in such a manner as to confuse the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-707.]
    5. Evidence <&wkey;489 — Opinion — Value of Stock Shipment.
    A witness’ opinion as to what value of cattle would have been if they had been delivered by carrier free from injury was not objectionable as being an opinion upon a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2274.]
    6. Appeal and Error &wkey;204(l) — Necessity oe Objection — Admission of Evidence.
    An objection to admission of evidence not raised in the trial court cannot be raised for the first time on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1258.]
    7. Evidence c&wkey;474(19) — Opinion — Knowledge-Market Value.
    Where a witness testified that no market existed for cattle, as injured by carrier’s negligence, evidence as to his opinion as to their market value was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2218.]
    8. Carriers <&wkey;227(3) — Injury to Stock Shipment — Issues, Proof, and Variance.
    Where petition did not allege that any cattle shipped died after delivery, but was confined to the condition of the shipment on arrival, evidence was inadmissible to show such facts not pleaded. >
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 956.]
    Appeal from Comanche County Court; J. I-I. McMillan, Judge.
    Action by Bryson & Burns against the Ft. Worth & Rio Grande Railway Company and others. Judgment for plaintiff, and defendant named appeals.
    Reversed and remanded.
    Kearby & Kearby, of Comanche, for appellant. H. N. Goodson, of Comanche, for ap-pellee.
   HIGGINS, J.

Appellees shipped two carloads of cattle from Ft. Worth to Comanche over the line of appellant railway company. This action was brought by appellees against the railway company and its receivers appointed subsequent to the date of the shipment to recover damages to the shipment alleged to have been caused by delay and rough handling while being transported. A plea of abatement was filed by the receivers and sustained. Verdict was returned and judgment rendered against the railway company, from which it prosecutes this appeal.

It is complained of the court’s charge that the issue of rough handling should not have been submitted because there is no evidence to raise the same.

The evidence shows that the shipment was unaccompanied by a caretaker, and was in the exclusive care and control of the appellant while in course of transportation; that the cattle were delivered to it sound and uninjured, and upon arrival at destination some were badly injured. This raised a prima facie case of negligence in handling, which required submission to the jury. Railway Co. v. Franklin, 58 Tex. Civ. App. 41, 123 S. W. 1150; Railway Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239; Railway Co. v. Nowaski, 48 Tex. Civ. App. 144, 106 S. W. 437.

In the court’s charge, the jury was instructed :

“If you find from a preponderance of the evidence that at or about the time alleged in plaintiff’s petition, defendant received and shipped the cattle described in said petition from Ft. Worth, Tex., to Comanche, Tex., for plaintiff, as in such petition alleged, and that through the rough handling and jerking of the cars in which such cattle were shipped and by reason of holding the same on the cars at Dublin, if they were held on the cars and delayed at said place as alleged by plaintiff, said cattle were damaged as in plaintiff’s petition,alleged. * * *”

It is objected to tbis portion of the charge that it was upon the weight of the evidence, in that it assumed that there was rough handling of the shipment. This objection is well taken. Railway Co. v. De Bord, 62 Tex. Civ. App. 302, 132 S. W. 845; Railway Co. v. Williams, 111 S. W. 196; Railway Co. v. Williams, 17 Tex. Civ. App. 675, 40 S. W. 161; Railway Co. v. Burns, 41 Tex. Civ. App. 83, 90 S. W. 688.

The third and fourth assignments complain of other portions of the charge, the effect of which was to impose upon defendant the obligation to transport with reasonable dispatch. This imposed a greater burden than is proper since the law only requires the defendant to use ordinary care to transport with reasonable dispatch or within a reasonable time. Railway Co. v. Roberts, 60 Tex. Civ. App. 145, 126 S. W. 890; Railway Co. v. Hurst, 135 S. W. 599.

It is true defendant requested and the court gave a special charge which laid down the proper rule, but it was in conflict with the main charge, and the jury was thus without a proper guide to govern their decision in this matter. In any event, the main charge upon this phase of the case was calculated to confuse the jury.

By the fifth assignment, complaint is made of the testimony of certain witnesses who testified what the value of the cattle would have been if they had been delivered free from injury. Two objections are urged in the brief to the admission of this evidence, the first being that it was the opinion of the witnesses upon a mixed question of law and fact. This objection is not tenable. It was testimony as to value given by qualified witnesses and involved no question of law. The other objection made was not urged in the court below, and cannot be raised for the first time upon appeal.

Error is assigned to the admission of the testimony of the plaintiff’s witness Sherrell, as to the fair, cash market value of the cattle in question at the time and in the condition they were delivered to plaintiff at Comanche. It was objected to this evidence that the witness was not qualified to testify as to such market value. The witness testified that there was no market in Comanche for cattle in the condition plaintiff’s cattle were in at the time of their arrival. If,’ in the opinion of the witness, there was no market value for such cattle, necessarily he could not know and would not be qualified to testify what the market value was. The admission of this evidence was therefore error.

Error is next assigned to the action of the court in permitting the witness Bartlett to testify in behalf of the plaintiff that one head of cattle die'd the next morning after their arrival, and another the following morning. It was objected to this evidence that there was no allegation in the petition that any of the cattle died after delivery, the allegation being confined to their condition on arrival, and, further, that neither the allegation nor the proof showed that the injuries received in transit caused the death of any of the animals after delivery, and was highly prejudicial to the rights of defendant and immaterial as to any issue made by the pleadings. These objections are well taken. The state of the pleadings was as indicated in the objection, and thefe was no evidence that the death of the animals after delivery was caused by any injuries received in transit.

The last assignment complains that the verdict and judgment is excessive. Since the case must be reversed and remanded for retrial on account of the errors indicated above, there is no occasion to pass upon this assignment.

Reversed and remanded.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    GAFFEY v. CRITESER et ux.
    (No. 1737.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 8, 1917.
    Rehearing Denied June 21, 1917.)
    1. Divorce <&wkey;331 — Foreign Deceee — Full Faith and Credit — Alimony.
    A judgment for the periodical payment of alimony in an Oregon divorce suit under D. O. L. § 513, providing for the payment of alimony, and section 514, providing that at any time after a decree is given the court or judge upon motion of either party may set aside, alter, or modify so much of the decree, as may provide for the appointment of. trustees for the care and custody of minor children or the maintenance of either party to the suit, is not a final judgment in that state, and is not within Const. U. S. art. 4, § 1, providing that full faith and credit shall bo given in each state to the public acts, records, and judicial proceedings of every other state; the right to demand and receive alimony not being an absolute or vested right, but one which the court rendering the decree may terminate at any time.
    [Ed. Note. — :For other eases, see Divorce, Cent. Dig. §§ 841, 842.]
    2. Divorce &wkey;>331 — Foreign Degree — Full Faith and Credit — Adimony.
    A court of Oregon having power under D. O. B. § 514, to set aside, limit, or modify its decree, awarding alimony in a divorce suit at any time within its discretion, it may set aside the wife’s right to installments of alimony already due, and hence such judgment even as to past-due installments of alimony is not within the full faith and credit clause of Const. U. S. art. 4, §1.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 841, 842.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by D. G. Criteser and wife against O. E. Gaffey. Judgment for plaintiffs, and both parties appeal.
    Reformed and affirmed.
    In 1S98 appellant and appellee Josephine Criteser were married in New York. They removed to Oregon, where, on January 16, 1011, appellant commenced a suit for divorce, charging said appellee with cruel treatment of him and adultery with appellee L. G. Criteser, now her husband. January 27, 1911, Mrs. Gaffey answered the suit, denying the charges made against her, and in a cross-action, in which she charged appellant with cruel treatment of her and adultery with one Bertha Branch, asked that she be divorced from him. She also asked that she be given the custody of their two children, and that ■she have judgment against appellant for the expenses of the suit and for permanent alimony. February 1, 1911, appellant filed a reply to the cross-bill. In March, 1911, while the suit was pending undisposed of, appellant and Mrs. Gaffey became reconciled and lived together as man and wife, in Oregon, until April, 1912, when appellant moved to Texas. In July, 1912, his wife joined him here and they lived together until April, 1913, when she left him, and, taking their children with her, returned to Oregon. At her instance the divorce suit, then still pending undisposed of, was set down for trial on December 17, 1913, and appellant, then in Texas, was notified by the attorney who represented him in the institution of the suit, by letter, of the setting. November 7, 1913, appellant wrote, this attorney and requested him to have the trial of the cause postponed to a date later than January 10, 1914, and at the same time wrote the judge of the court in which the cause was pending requesting him to postpone the trial thereof until after said January 10, 1914. November 28, 1913, appellant wrote his said attorney a letter dismissing him from the case. When the cause was reached December 17, 1913, appellant not being present nor represented by an attorney, the court was about to postpone a trial of the case, when he was advised that appellant on August 29, 1913, had commenced in Texas a suit against his wife for a divorce and the custody of their children, and that in her answer to that suit his wife had set up the pendency of the suit in Oregon. On a suggestion then made to the court that a postponement of the trial might work a hardship on the wife by compelling her to try the issues made by the pleadings in the Oregon case in Texas, the ■court concluded not to postpone the trial of the' cause pending before him, and proceeded to try same. Without requiring Mrs. Gaffey to plead further than she had pleaded in her answer to appellant’s suit and her ■cross-bill for a divorce, etc., filed January 27, 1911, as before stated, the court, after hearing evidence, rendered judgment granting her a divorce, awarding to her the custody of the children, and a recovery against .appellant of $125 on account of attorney’s fees in the suit, and $50 per month for the maintenance of herself and her children. June 25, 1914, after she was divorced from appellant, Mrs. Gaffey married appellee B. •G. Criteser, and June 1, 1915, she, joined by him, commenced this suit against appellant seeking a recovery against him of the sum of $1,000.25, the amount, she • alleged, of the attorney’s fees and alimony accrued awarded to her by the judgment of the Oregon court. Appellant’s answer consisted of exceptions to the petition and pleas in which he asserted that the Oregon judgment was invalid and not binding on him. The court below was of the opinion that the Oregon judgment was valid and enforceable against appellant by the courts of this state in so far as it was for attorney’s fees and alimony to the date of Mrs. Gaffey’s marriage with L. G. Criteser, and not enforceable in so far as it was for alimony after that date. Accordingly he rendered judgment in appellee’s favor for the sum of only $450.25. Thereupon both appellant and appellees perfected an appeal to this court.
    F. H. Prendergast, Jno. W. Scott, and W. O. Dane, all of Marshall, for plaintiffs. S. P. Jones and Michael Harold, both of Marshall, and T. P. Harte, of Douglas, Ariz., for defendant.
   WILLSON, C. J.

(after stating the facts as above). Consideration of the record in connection with the authorities cited by the parties, and others not so cited, has convinced us that the judgment of the Oregon court sued upon was not a final judgment in that state, in so far as it provided for the payment by appellant to his former wife periodically after it was rendered of a sum as alimony, and that it therefore was not within the “full faith and credit” clause of the federal Constitution. Article 4, § 1.

In Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061, the Supreme Court after saying:

“That, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber Case, 21 How. 582, 16 L. Ed. 226, ‘alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is’ ”

—declared:

“That this general rule, however, does not obtain where by the law of the state in which a judgment for futuro alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an.extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”

We think it appears from the record before us that the judgment sued upon is within the exception stated to the general rule, because under the law of- Oregon the right in Mrs. Criteser to demand and receive future alimony it directed appellant to pay was not an absolute or vested right, but- one which the court that rendered the judgment, on application made to, it at any time, might in its discretion deprive her of.

It appears from the testimony that the statute of Oregon applicable is as follows:

“Sec. 513. Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree as follows: 1. For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due reg'ard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault; 2. For the recovery of the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross or in installments, as may be just and proper for such party to contribute towards the nurture and education thereof; 3. For the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other; 4. For the delivery to the wife, when she is not the party in fault, of her personal proporty in the possession or control of the husband at the time of giving the decree; 5. For the appointment of one or more trustees to collect, receive, expend * * * or invest, in such manner as the court shall direct, any sum of money decreed for the maintenance of the wife or the nurture and education of minor children committed to her care and custody.”
“Sec. 514. At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit.”

Not only, as we construe it, did the statute confer upon the court (and the judge thereof) which rendered the judgment in question here power to “set aside, alter, or modify” it so far as it was in Mrs. Criteser’s favor for future alimony, but such power was expressly reserved by a provision in the judgment that payments it directed were to be made by appellant only “until the further order of the court.” It seems clear, therefore, that the judgment was not a final one so far as it was for alimony.

The insistence of appellees seems to be that, while the court which rendered the judgment had power to “set aside, alter, or modify” it so as to deprive Mrs. Criteser of a right to demand and receive of appellant payments of alimony which had not become due, it did not have power to deprive her of a right to demand and receive payments which had become due. The contention, it is asserted, is supported by decisions of the Oregon Supreme Court construing the statute of that state. The decision most relied upon is that of the court in Brandt v. Brandt, 40 Or. 477, 67 Pac. 508. As we understand it the holding in that case not only does not support appellees’ contention, but determines the law of Oregon to be directly to the contrary thereof. In the Brandt Case the wife was granted a divorce in April, 1889, and the husband was directed to pay her $100 as the cost of prosecuting the suit and $20 per month from the date of the entry of the decree until further order of the court, as permanent alimony, no part of which he ever paid. The wife married again in January, 1890. In March, 1900, the court entered an order reviving the judgment in favor of the wife and directing the issuance of an execution against the husband for $2,820.40, the sum found to be then due and owing to her,- and which included -the $100 allowed her as costs of prosecuting the suit and $28 allowed her as “living expenses” while it was pending. In April, 1900, the husband filed a motion to set aside the order reviving the judgment against him and to recall an execution issued thereon, and in the motion asked “that the sum of $20 a month allowed by the original decree be remitted from and after May 2, 1889.” The appeal was from the order overruling this motion. In the Supreme Court the husband insisted that “the decree, in so far as it awards the plaintiff $20 a month permanent alimony, should be annulled as of the date of its entry.” In disposing of the contention the appellate court determined that it was within the power of court that rendered the judgment to annul itt so far as it awarded future alimony, whether same had become due or not by the terms thereof, and thereupon so reformed the decree as to deny the wife a recovery of the part of the sum due and owing to her as alimony which became due after she married again and as to award her a recovery of only the part thereof which became due before she so married. If, as was determined in that case, power to annul such a judgment existed in the court that rendered it, then the court which rendered the judgment here sued upon might set it aside at any time. If it might it was not within the “full faith and credit” clause of the federal Constitution. Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061; Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810; Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580, 13 Ann. Cas. 293; Ogg v. Ogg, 165 S. W. 912; Bleuer v. Bleuer, 27 Okl. 25, 110 Pac. 736; Rowe v. Rowe, 76 Or. 491, 149 Pac. 533; 1 R. C. L. 958; 9 R. C. L. 928; 23 Cyc. 1554.

What has been said does not, of course, apply to the judgment sued upon so far as it was for $125 “on account of attorney’s fees.” The contention made by appellant with reference to that part of the judgment are not regarded as sound, and are overruled.

The judgment will be so reformed as to award appellees a recovery of the sum of $144, being the attorney’s fee adjudged to her by the Oregon court and interest thereon, instead of the sum of $450.25, and, as so reformed, the judgment will be affirmed.
      <SspFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & P. RY. CO. v. DUFF.
    (No. 1811.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 31, 1917.
    Rehearing Denied June 5, 1917.)
    1. Appeal and Error <&wkey;555 — Striking Bills op Exceptions — Effect.
    Where appellee’s motion to strike from the record appellant’s bills of exceptions covering the court’s action in refusing its request to compel appellee to submit to an examination of Ms person by physicians was sustained on the ground that the bills were filed in the trial court after expiration of the time allowed by law, assignments presenting the rulings of the court with reference to such request for review in the Court of Appeals will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2955.]
    2. Railroads <&wkey;351(l) — Injuries at Cboss^ in g — Instruction.
    In an action against a railroad for injuries to a person at a crossing when he was struck by coal falling from a tender, an instruction that the jury should find for plaintiff if they believed the road’s employés in charge of the train “failed to exercise ordinary care in loading the coal on the tender of the engine so as to prevent it from falling off and injuring persons near its track,” was not erroneous as making the road absolutely liable for the falling off of the coal, instead of liable only for a failure to use ordinary care, to prevent its falling.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1193, 1194.]
    3. Appeal and Ebro® &wkey;o263(3) — Failure to Except to Instruction.
    Where defendant failed to except to the court’s action in refusing an instruction, defendant is in the attitude, before the Court of Civil Appeals, of having approved the instruction, and is not entitled to complain of it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1518.]
    Appeal from District Court, Van Zandt County; J. G. ICearby, Special Judge.
    Action by R. L. Duff against the Texas & Pacific Railway Cofapany. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Because (as found by the jury) of negligence on the part of employés of appellant in loading same thereon, pieces of coal fell off of the tender of one of its engines as it rapidly crossed over a public road on which appellee, within his right, was standing. In falling the coal struck appellee, seriously and permanently injuring him. The appeal is from a judgment in his favor against appellant for $5,000.
    J. A. Germany, Geo. Thompson, and H. G. Robertson, all of Dallas, for appellant. Wynne, Wynne & Gilmore, of Wills Point, for appellee.
   WILLSON, C. J.

(after stating the facts as above). Having sustained appellee’s motion to strike from the record appellant’s bills of exceptions covering the action of the court in refusing its request to compel appel-lee to submit to an examination of his person by certain physicians named by it, on the ground that said bills were filed in the court below after the expiration of the time allowed by law, the assignments numbered 1, 2, 3, and 4, presenting the rulings of the court with reference to such request for review here, will not be considered. Criswell v. Robbins, 152 S. W. 210; Canal Co. v. Quinn, 160 S. W. 151; Tyler v. Sowders, 172 S. W. 205; Loeb v. Railway Co., 186 S. W. 378; Pearce v. Knights and Ladies of Honor, 190 S. W. 1156.

The court instructed the jury to find for appellee if, other conditions specified concurring, they believed the employés of appellant in charge of the train “failed to exercise ordinary care in loading the coal on the tender of the engine, so as to prevent it from falling off and injuring persons near its track.” The argument in support of the contention that the portion quoted of the instruction was erroneous is that it made appellant “absolutely liable for the falling off' of the coal, instead of liable only for a failure to use ordinary care to prevent its falling.” It is plain, wo think, that the language used by the court is not capable of the construction claimed for it, and that the jury could not have understood it to mean that appellant was liable to appellee without respect to whether appellant’s employés were guilty of negligence or not in loading the coal on the tender. Therefore the sixth assignment is overruled.

The basis of the seventh and eighth assignments is the action of the court in refusing to give to the jury a special charge requested by appellant which, had it been given, would have instructed them to find in its; favor: Failing, as it did, to except to the action of the court in refusing the instruction,, appellant is in the attitude before this court of having approved same, and is not entitled to complain thereof. Article 2061, Vernon’s Statutes; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Railway Company v. Feldman, 170 S. W. 133; Denison Cotton Mill Co. v. McAmis, 176 S. W. 621; Railway Co. v. Wilson, 176 S. W. 619; King v. Gray, 175 S. W. 763.

There is no error in the judgment of which appellant can be heard to complain. Therefore it is affirmed.


author: LEVY, J.

text:
    ALLEN et al. v. KNOX et al.
    (No. 1850.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 25, 1917.
    Rehearing Denied June 14, 1917.)
    1. Injunction <&wkey;132— Temporary Injunction — Function.
    The function of a temporary injunction is to. afford preventive relief only.
    [Ed. Note. — For other cases, see Injunction,: Cent. Dig. § 302.]

      2. INJUNCTION t&wkey;>136(l) — Statute.
    By Rev. St. art. 4643, subd. 2, injunction pending litigation is authorized when it is made to appear that a party is doing some act prejudicial to the applicant.
    [Ed. Note. — For other cases, see Injunction, Oent. Dig. § 305.]
    3. Injunction <S&wkey;142 — Application for Temporary Injunction by One Not a Party.
    Where a lumber company, not a party defendant to an action in trespass to try title, joined with defendants in such action in an application for a temporary injunction to have plaintiffs restrained from cutting and removing the timber from the land in suit, the lumber company became a party defendant, and, in view of the allegations of the application, cannot be regarded as a mere volunteer having no right to invoke the right of injunction.
    [Ed. Note. — For other cases, see Injunction, Oent. Dig. § 314.]
    Appeal from District Court, Cherokee County; Jno, S. Prince, Judge.
    Action by, J. P. Allen and others against Hiram Knox and. others. Prom an order granting the application of two defendants and another, not a party, for temporary injunction, plaintiffs appeal.
    Affirmed.
    Perkins & Perkins and Thos. Shearon, all of Rusk, for appellants. John C. Box, of Jacksonville, Mantooth & Collins, of Lufkin, and Webber & Webber, of Texarkana, Ark., for appellees.
   LEVY, J.

Appellants, plaintiffs in the court below, brought an action in trespass to try title to 120 acres of land against Emma Ellis and her husband, B. B. Perkins, Dizzie Harris, Hiram Knox, and the North Texas Lumber Company. Hiram Knox, the North Texas Lumber Company, and the Southern Pine Lumber Company made application for temporary injunction, which was by the judge granted, to have the plaintiffs restrained from cutting and removing the timber from the land in suit. The appeal is by the plaintiffs to have the order revised.

The application for the restraining order sufficiently alleges grounds for issuing the temporary restraining order to maintain the status quo of the timber pending the determination of the rights of the parties. The function of the writ is to afford preventive relief only. The statute authorizes injunction when it is “made to appear that a party is doing some act prejudicial to the applicant.” Article 4643, subd. 2, R. S.; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994.

Joining with the other defendants in the application for injunction, as the Southern Pine Lumber Company did, has the legal effect of making such company a party defendant to the suit; and the said company, in virtue of the allegations in the application, may not be regarded as a mere volunteer having no right to invoke the right of injunction.

Affirmed.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    WATSON v. EVANS.
    (No. 1184.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.)
    1. Usury <&wkey;76 — Effect — Liability for Principal.
    The charging of usurious interest does not render unenforceable tho agreement to pay the principal.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 149-152.]
    2. Appeal and Error <5&wkey;50(l) — Decisions Appealable — Amount in Controversy.
    Where plaintiff alleged he had paid usurious interest in the sum of $42.30, and that defendant was still asserting an illegal claim against plaintiff for $20, the principal debt, and prayed for judgment for $84.60, double the usurious interest, and for cancellation of the alleged debt, the Court of Civil Appeals was without jurisdiction of the appeal; the real amount in controversy -being only $84.60, since plaintiff could not recover double the usurious interest and in addition have cancellation of the principal debt.
    [Ed. Note — Por other cases, see Appeal and Error, Cent. Dig. §§ 233-236, 240-253.]
    Appeal from Dallas County Court; T. A. Works, Judge.
    Action by H. S. Watson against Miss E. Evans. Prom judgment for defendant, plaintiff appeals.
    Appeal dismissed.
    Geo. Clifton Edwards and Nat L. Hardy, both of Dallas, for appellant. Ellis P. I-Iouse, of Dallas, for appellee.
   BOYCE, J.

This was a suit by appellant against appellee to recover usurious interest, and to cancel the claim of appellant for the principal remaining unpaid. Appellant alleged that on December 1, 1914, he borrowed of appellee $60, and paid thereupon $12.90 for seven consecutive months, beginning with January 1, 1915, a total of $90.30, of which amount $30.30 was usurious interest; that about July 1, 1915, he borrowed $20 from ap-pellee, and paid $6 per month on July 1, and August 1, 1915, as usurious interest on said loan; that he had thus paid appellee a total of $42.30 usurious interest, and appellee was still asserting an illegal claim against appellant for $20. He prayed for judgment for $84.60, double the amount of the usurious interest and for “cancellation of any alleged indebtedness, or evidence thereof, asserted by defendant (appellee).”

The charge of usurious interest did not make the agreement to repay the principal void. Appellant could not recover double the amount of the usurious interest, and in addition have a cancellation of the principal indebtedness. He might have the usurious interest paid applied to the principal indebtedness remaining unpaid and cancel it in this way, but this application would then reduce proportionally the amount of the recovery. So ' that while appellant prayed for judgment for $84.60, and in addition a cancellation of the claim for $20, the statement on its face showed no legal right to such additional relief, and the real amount in controversy was the sum of $84.60. This court is without jurisdiction, and the appeal will he dismissed. Connor v. Sewell, 90 Tex. 275, 38 S. W. 35; Smith v. Wilson, 91 Tex. 503, 44 S. W. 672; Martin v. Jeffries, 153 S. W. 658; Western Union Telegraph Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8; Continental Casualty Co. v. Morris, 46 Tex. Civ. App. 394, 102 S. W. 773.
      <@=»For other oases see same topic and KEY-HUMBER in all Key-Numbered Digests and Indexes