author: HUPP, C. J.

text:
    LAMAR et al. v. HILDRETH et al.
    (No. 1448.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1919.
    On Motion for Rehearing, Eeb. 19, 1919.)
    1. Contracts @=>329 — Breach—Accrual op Cause op Action.
    Upon breach of contract, injured party’s cause of action at once accrues.
    2. Landlord and Tenant @=>331(2) — Breach op Rental Contract — Recovery op Propits.
    Recovery can be had for landlord’s breach of rental contract, in effect making undertaking a joint enterprise, for profits that would have been derived by tenants from crops had contract been continued to end of term.
    3. CÓNTINUANCE @=>6, 7 —ACTION BY TENANTS — DENIAL.
    In cross-action by tenants against landlords to recover damages, application for continuance, not statutory, but addressed to discretion of trial court, on ground that continuance would render it certain what crop had been grown or coftld have been grown, and its value, held pi'operly denied.
    4. Damages @=>62(4) — Landlord and Tenant @=103(3) — Rental Contract — Wrong-pul Rescission — Right op Tenants — Re-plevy Bond.
    Where landlords repudiated rental contract by suing for and sequestrating land, tenants could accept renunciation, and agree contract should be put to an end, subject to their right to bring action for wrongful rescission, and their failure to make replevy bond and retain property during contract year did not affect their cause of action.
    5. Damages @=163(2) — Breach op Rental Contract — Sequestration of Land — Negligence in not Replevying — Burden op Proof.
    In action by tenants against landlords for breach of rental contract, if there was any reason why tenants’ failure to replevy land after sequestration by landlords was negligence on part of tenants burden was on landlords so to allege and show.
    6. Landlord and Tenant @=>331(6) — Breach op Rental Contract — Evidence.
    In action by tenants against landlords for breach of rental contract, evidence as to damages held not so vague, uncertain, and conjectural that no verdict for tenants could rightfully be based upon it.
    7. Landlord and Tenant @=>331(2) — Breach op Rental Contract — Loss op Profits.
    Where landlords broke rental contract, they were liable for profits, in contemplation of themselves and tenants, lost to tenants by their breach, so far as such profits could properly be proved to form measure of damages.
    8. Landlord and Tenant @=323, 331(2) — Tenancy Contracts — Status as Business Enterprise,.
    It is settled law in tenancy contracts upon shares to treat parties as having entered into joint business enterprise, stipulating what shall be advantage of each, and when one deprives other of such advantage he should be required to compensate him for what contract stipulated he should have.
    9. Damages @=>62(4) — Contracts—Breach— Mitigation.
    In action for breach of contract against one who wrongfully put an end to agreement, action being brought immediately for compensation and damages, injured party will be entitled to such damages as would have been received from nonperformance at appointed time, subject to abatement by any means he may have for mitigating his loss.
    10. Landlord and Tenant @=>322 — Renting on Shares — “Subletting.”
    Where tenant on shares, in prospect of being drafted into the army, arranged with his brother to look after the land in his absence, such arrangement did not constitute a “subletting.”
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Subletting.]
    11. Landlord and Tenant @=>331(8) — Tenancy Contract — Action — Directed Yert dict.
    In action by tenant on shares against landlords for wrongful eviction and breach of eon-tract, plaintiff alleging special damages by eviction as well as exemplary damages, court properly refused to direct verdict against plaintiff because he was a single man within draft age, and had been called to army, which would have interfered with cultivation of crop in any event.
    12. Landlord and Tenant @=>331(2) — Breach op Tenancy Contract — Damages.
    For breach of rental contract tenant may recover what he would reasonably have made out of his crop but for breach, but is not lim: ited to such item, and is entitled as well to loss sustained as well as gains prevented, and may recover for damages to his feed by the eviction.
    13. Landlord and Tenant @=>171(1) — Breach op Contract — Ejection by Landlords — Removal by Tenants.
    Where landlords sued out writ of sequestration against tenants, mere fact that sheriff did not resort to physical force in ejecting them, but permitted them to effect removal themselves, made it none the less an ejection by the landlords.

      14. LANDLORD AND TENANT <©=>180(4) — RENTAL Contract — Eviction — Unlawful Sequestration — Exemplary Damages.
    Ordinarily exemplary damages are not allowed for mere breach of contract, as a tenancy contract, but where landlord wrongfully and willfully or maliciously uses writ of sequestration to obtain possession of rented property, to which he has no lawful right, such damages may be recovered.
    15. Landlord and Tenant <$=>180(3) — Action for Wrongful Eviction — Evidence.
    In action by tenants against landlords for damages from unlawful eviction, testimony of wife of tenant that landlords’ cattle would come up to patch of feed about barn, and she would ■drive them off, held, admissible to show animus •of landlords in instituting proceedings against .tenants out of which suit grew.
    On Motion for Rehearing.
    '16. Judgment <©=3252(1) — Excess Over Amount Pleaded.
    Where defendants, by cross-petition, alleged two items of actual damages, one for $1,000, and other for $100, judgment for $1,010, was not erroneous, simply because prayer left out $100 item.
    17. Evidence <⅜=52— Judicial Knowledge —Application on Appeal.
    Court of Civil Appeals cannot base reversal of judgment for tenants who, in their landlords’ action of trespass to try title, have recovered for breach of rental contract by eviction, on its judicial knowledge that particular season was dry, and that no crops were made in that part of country.
    Appeal from District Court, .Cottle County; J. H. Milam, Judge.
    Action by Susie Lamar and H. L. Lamar, her husband, against J. H. Hildreth and another. Prom judgment for defendants, plaintiffs appeal.
    Affirmed.
    J. M. Whatley, of Paducah, and'Pires & Diggs, of Childress, for appellants.
    J. M. Hawkins, of Hempstead, for appel-lees.
   HUPP, C. J.

Susie Lamar and her husband, H. L. Lamar, brought an action of trespass to try title against J. H. Hildreth and B. H. Bates to recover two certain tracts of land in Cottle county, and at the same time sued out a writ of sequestration, in the affidavit for which they stated that they were entitled to the possession of the premises, and that they feared that the defendants, then in possession, would make use of such possession to injure the property, etc. The defendants, Hildreth and Bates, answered by general denial, and by way of cross-petition that they, had not and did not then assert any claim to the freehold in the land described in plaintiffs’ petition, but that on or about the last of June or the first of July, 1917, plaintiffs and defendants entered into a valid and binding oral contract or agreement, wherein, for the consideration thereafter mentioned, defendants leased from plaintiffs, for the year 191S, all of the lands described in the petition, consisting of approximately 330 acres of land, and were at the time of the filing.of the suit, and are now, entitled to the possession until the expiration of their lease, on the 31st day of December, 1918. They allege that there were 175 acres thereof in cultivation, and the remainder in pasture, and that upon the premises there were two houses which the defendants were to have during the contract. The defendants allege that they obligated and bound themselves to, and would have and are now ready and able to, cultivate all of said 175 acres of land in a good and farmer-like manner, as follows: 125 acres in cotton and 50 acres in corn, agreeing to pay to plaintiffs as the rental thereof the sum of one-fourth of all the cottoli raised and one-third of all the feed raised on said premises, and that but for the acts and conduct of the plaintiffs they would have reasonably raised upon said land 30 bales of cotton and 50 tons of feed; that on the 8th day of January, 1918, the plaintiffs breached their contract, and instituted this suit, alleging that they'were afraid the defendants (would injure said property, and convert the fruits and revenues to their own use and benefit, and executed a bond in the sum of $23,600 for the willful and malicious purpose of evicting defendants from the premises without a hearing, and in willful defiance of their lawful rights, and for the sole purpose of injuring and harassing defendants, and in pursuance of said bond, and in conformity of the law, the clerk of the court issued a writ of sequestration, and placed same in the hands of the sheriff, which instructed him to dispossess defendants, which the sheriff did, by virtue thereof, on or about the 10th day of January, A. D. 1918, during the coldest weather of the year, leaving defendants without a place to go or shelter for themselves or stock; that at the time of the ejection the defendants had about 15 head of stock and about $500 worth of feed; that their feed had to be stacked in the open at great loss and waste; that they had 'no place to keep their stock, and were compelled to tend and feed them, to their damage in the sum of $100; that by reason of the unlawful ejectment of defendants they were prevented from using and cultivating the land described in plaintiffs’ petition during the year 1918, and were deprived of a home for themselves and a pasture for their stock, all of which they have not yet been able to secure, to their damage in the further sum of $1,000. “Defendants would represent to the court that but for the acts and conduct of plaintiffs they would have, in all reasonable probability, raised on said land during the year 191S 30 bales of cotton, three-fourths of which would belong to them; that they would have raised 50 tons of feed, two-thirds of which would have belonged to them; that the market value of said cotton so raised upon said premises would reasonably be worth $100 per bale; that the reasonable market value of the feed that would have been raised upon said premises would be $40 per ton, which would have netted your defendants, after deducting all the expense of planting, cultivating, and gathering the same, $2,000.” They allege that since the breach of the contract on the part of the plaintiffs they have made every effort to procure other lands, pasture, and houses to take the place of the land, pasture, and houses that they had rented from the plaintiffs for the year 1918, but without avail. They allege that they had secured 115 acres of sod land upon which one of the defendants was then living, and of a very inferior grade, and inferior to the land rented from the plaintiffs, which would require much more work and produce less by one-half, acre for acre, than the land rented from, plaintiffs; that by the exercise of ordinary diligence in cultivating this land it would be impossible for defendants to produce more than $1,000 worth of cotton and feedstuff, after deducting the cost and expense of breaking, cultivating, gathering, etc. They further plead that, by reason of the unlawful act and conduct of the plaintiffs in willfully and maliciously ejecting them from the premises herein mentioned, they have suffered mental and physical anxiety and humiliation to their further damage in the sum of $2,000. The jury found upon special issues submitted to them that the plaintiffs entered into an unconditional rental contract with the defendants for the year 1918; that the defendants’ feed was damaged to the amount of $10 by reason of the ejection of the defendants from the premises; and that the defendants were damaged in the sum of $1,000 by reason of their failure to occupy and cultivate the premises of plaintiffs from which they were ejected, and that they were damaged in the sum of $500 by reason of the willful ejection from the premises and in the willful disregard of the defendants’ rights by the plaintiffs. The evidence will support a finding by the trial court that the plaintiffs and defendants entered into a rental contract on the terms pleaded by the defendants in their cross-petition.

The first assignment asserts error on the part of the trial court in overruling the appellants’ motion for continuance. The motion set up, in effect, that the time for the expiration of the rental contract had not then expired. The application was made May 1, 1918. That the year previous had been a dry one, in which poor crops were made, and that it was then dry and to such an extent that no crops had been planted up to that date, and if the case should be continued until October, 1918, it could then certainly be known what crop had been grown or could have been and its value.

It must be borne in mind that this is not an action for the crops grown on the premises under a rental contract, but is a suit for damages for the breach of a rental contract on shares. It is a rule, now well established and recognized, that upon the breach of a contract the injured party’s cause of action at once accrues. Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Hearne v. Garrett, 49 Tex. 619. The only question in our mind presented by the motion is whether damages could be assessed for the period of time subsequent to the trial and within the contract period. This, however, would not be grounds for postponement on the part of the appellants. Rental contracts upon shares have a double. aspect — one is that of employment by the tenant, and the other is the profits to be derived by the undertaking. In this state it appears to be the rule, where a party sues for the breach of a contract for personal services for a given period, that he will be confined to his damages which have accrued up to the trial. Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975; Louisiana Rio Grande Canal Co. v. Quinn, 161 S. W. 375; and other Court of Civil Appeals'cases. On this question, however, there is a conflict of authority by other courts, as in Michigan, Massachusetts, and some other states. See Webb v. De Pew, 152 Mich. 698, 116 N. W. 560, 16 L. R. A. (N. S.) 813, 125 Am. St. Rep. 431. But we believe the rule will not apply where profits are to be derived, from a rental contract, which, in effect, makes the undertaking a joint enterprise. A recovery can be had for the breach for the profits that would have been derived from the crops had the contract been continued to the end of the time. Greenwall v. Markowitz, supra, and other cases, which will be later cited. At any rate, we are unwilling to extend the rule as applied to personal service contracts to cases like the present one. We mention this matter at this place, as it is suggested' to our mind in the consideration of the motion, and is possibly involved in considering the question of damages, but which is not assigned in terms as lessening the recovery.. The application for continuance is not statutory, but was addressed to the discretion of the trial court. Appellants do not show themselves equitably entitled to the continuance. The motion, for the purpose of the continuance, assumed a wrongful breach of the contract. The liability for damages which appellants inflicted by breaking their contracts as assessed for the term of the contract is one which they must be taken to have understood when they wrongfully ejected the appellees. If they did not wish to be subjected to such damages, they should have kept the agreement.

The second assignment asserts that the court was in error in overruling the appellants’ general exception to the appel-lees’ cross-petition, because there is no allegation that appellees were unable to make a replevy bond and thereby retain the property during the contract year. It is asserted that the appellees, though injured by the wrongful act of appellants, were under the duty to use all reasonable means to avoid any damage by reason thereof. The proposition may be true as a general rule, but it does not follow because one does not, when he can, make a replevy bond, that he is per se guilty of negligence which would defeat damages occasioned by the wrongful act. At most, it could be no more than a circumstance to be considered with other facts. The law does not impose upon a defendant the duty of making a replevy bond; it only permits him to do so. If there was any reason why a failure- to make such replevy would be negligence, on the part of defendants, we think that burden was on appellants to allege and show. Our Supreme Court held in Porter v. Burkett, 65 Tex. 383:

“As to the special exceptions, it was not necessary to allege that the plaintiffs could not have saved themselves from the consequences of the default of defendants by obtaining work elsewhere. If it were shown on the trial that they could, by this means, have reduced their losses or saved themselves harmless, it would have been a good defense, in whole or in part, to the action. A plaintiff is not bound to negative everything that might defeat his action. If the damages he shows he has incurred are to be reduced from any cause not necessarily occurring, in all such cases this must be shown by the opposite party in defense.”

This rule has been followed in a number of cases as well as under a variety of circumstances. San Antonio Life Insurance Co. v. Griffith, 185 S. W. 335, where will be found a list of authorities; see, also, Miller v. Sealy, etc., 166 S. W. 1182. But, aside from the above, if there was a rental contract, as alleged, appellants repudiated it by suing for and sequestrating the land. The appellees could accept this renunciation, and agree that the contract should be put to ah end, subject to the retention by them of their right to bring an action for the wrongful rescission. It was an option with appel-lees whether they accepted the renunciation and sue for their damages occasioned by the breach, or retain the land and enforce the contract as made. If they had replevied they could have retained possession of the land, with the right of occupancy and cultivation thereof under the contract, subject to the final determination of the contract by the court; but they were not bound to this course. Appellants, having wrongfully ejected the ap-pellees, cannot insist on defeating damages resulting therefrom on the ground that ap-pellees should enforce the contract’ instead, as they did, accepting the breach and suing for damages. The case of Taylor v. Kelley, 189 S. W. 340, cited by appellants, has no application to this suit. In that case the owner of an automobile sued to recover the car, or for its value, which had been seized under process for the debt of another. He sought to recover also for the loss of the hire or use in business while it was so detained. The court said there was no showing why he had not replevied the car or purchased another. That case is different in its facts and principles from this, and it will be unnecessary to discuss it further. We think there was no error in overruling the general exception.

We will consider the third, sixth, seventh, and tenth assignments together. These assignments relate to the refusal by the trial court to instruct a verdict for appellants and in submitting the issue to the jury to determine if the appellees were damaged, and the amount, on the ground that there was no evidence authorizing a recovery. Under these assignments it is asserted by propositions: (1) A recovery could not be had because no replevy bond was made by appel-lees; (2) the evidence is vague, uncertain, and conjectural as to' what the damages might be, and no verdict could rightfully be based thereon; (3) the evidence having failed to show appellees would be damaged at all by ejectment from the premises, there was nothing to authorize a judgment for any amount, and .should not have been submitted, and a verdict for $1,000 shows prejudice ; (4) in the absence of any evidence as to what damages the defendants sustained, it was reversible error for the court to instruct that the measure of their damages was what defendants in “reasonable probability” might have earned but for their ejection.

The evidence shows the land rented had in cultivation 175 acres; that appellees would have placed of it 125 acres in cotton and 50 acres in feed; that in an average or ordinary year one-third of a bale of cotton could be, and usually is, produced, or a total of 40 bales on 125 acres, the value of which was 20 or 25 cents per pound at the time of the breach, and one ton of feed to the acre, of the value of $40 per ton; that appellees would have received three-fourths of cotton and two-thirds of the feed, or gross about $4,400 to appellees’ part. The appellee Hil-dreth testified that they would have made not, after paying all costs and expenses of cultivating, gathering, and marketing, $2,000. If the crops would have made as much per acre as claimed, it is evident the value was not overestimated; the cotton seed and other items show not to have been taken into consideration in estimating the value. After appellees were ejected from the .premises they had to hunt land, houses, and pasture for themselves and stock. The evidence indicates they placed the stock in different pastures, and shows they were only able to get 115 acres of land, which had been sodded in the year previous, but the crop that year was hailed out, and the land was not cultivated; that it was for that reason sod land and not grubbed; that this land would not produce as much by half, acre per acre, as the land rented from the appellants. The jury evidently credited the profits they would have made on the rented land with $1,000, which would have been produced from other land rented after the ejection. The appel-lees had the work stock and tools to work and cultivate the land and care for it, and show that they could and would have worked it. The evidence shows there was a drought the year before, and that it was then dry at the time of the trial.

We have expressed our views relative to requiring the appellees to make a replevy bond under the second assignment of error, and it is needless to discuss that question further. In this character of case it is not required to establish each item with mathematical certainty. The facts surrounding ■the contract and' parties should be given to the jury, and they are allowed much discretionary power in arriving at ’a verdict; it is largely left to their judgment on the evidence before them. This is frequently illustrated in cattle shipping cases, personal injuries, and the like. A person who violates his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. It is not true that loss of profits cannot be allowed as damages for a breach of contract. Losses sustained and gains prevented are proper elements of damages. Most contracts are entered into with the view of future profits, and such profits are in contemplation of the parties, and, so far as they can be properly proved, they may form the measure of damages. As they are prospective, they must, to some extent, be uncertain and problematical, and yet on that account a person complaining of breach of contract is not to be deprived of all remedy. It is usually his right to prove the nature of his contract, the circumstances surrounding and flowing from its breach, and the consequences plainly traceable to it, and then it is for the jury, under proper instructions as to the rules of damages, to determine the compensation to be awarded for the breach. The earnings or profits are undoubtedly in their nature contingent and speculative and difficult of estimation, but being made, b/ the express agreement of the parties, the essence of the contract, we do not see how they can be excluded in ascertaining the compensation to which appellees are entitled. In this state it is now the settled law in tenancy contracts upon shares to treat the parties to the contract as having entered into a joint business enterprise, stipulating what shall be the advantage of each. When one deprives the other of those advantages, he should be required to compensate him for that which the contract stipulated he should have. In the cases decided the general rule is given for ascertaining the value of such shares. In this case the trial court gave the rule for ascertaining the net value of the appellees’ share which would, in reasonable probability, have been made upon the rented premises. The discussion of this relation and the rules governing contracts of this character are clearly stated in Brincefield v. Allen, 25 Tex. Civ. App. 258, 60 S. W. 1010, which has been expressly approved by the Supreme Court in Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753; Crews v. Cortez, 102: Tex. 111, 113 S. W. 523, 38 L. U. A. (N. S.). 713; and followed by the Courts of Civil Appeals in several cases. Waggoner v. Moore, 45 Tex. Civ. App. 308, 10 S. W. 1058; King v. Griffin, 39 Tex. Civ. App. 497, 87 S. W. 844; Springer v. Riley, 136 S. W. 577.

There is no complaint in this case to the charge of the court in instructing the jury and in giving the measure of damages. The charge appears to have been applicable to the facts and circumstances of this case. Appellants appear to be under the impression that because the season for crops had not started, or was not then over, that the contingency of such crops rendered the testimony of the reasonable probability under ordinary or average years too uncertain and speculative to base a finding of damages. One who has wrongfully put an end to a contract into which he has entered cannot justly complain if he is immediately sued for compensation in damages by him who he has injured. In such action the injured party will be entitled to such damages as would have arisen from nonperformance at the appointed time, subject to abatement by any means he may have had for mitigating his loss. Even if the injured party “actually obtains his profits before the time fixed for performance, and recovers on a basis of costs which might have been increased .or diminished by subsequent events, the party who broke the contract before the time for completing performance cannot complain, for he took the risk involved in such anticipation.” Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953.

The fourth assignment is based on the refusal of the court to give a requested charge, directing a verdict against Hildreth, for the reason that for the year 1918 he was undertaking to grow a crop separate from Bates; that he is a single man, within the draft age, and has been called to the army, and will leave for service May 6, 1918, and unable to make a crop, and forced to leave the land and crop without making any 'arrangements for their cultivation and harvesting, and, even if he had made arrangements, it was not shown whether or not the expense that would be incurred by him in having said crop cultivated and harvested would not be more than the value of the crops to be grown and harvested. This assignment is not followed by propositions, and is submitted as a proposition itself. We are at a loss to know what particular ground appellants rely on for instructing a verdict. In their argument they apparently considered the arrangements made by Hildreth with his brother to look after the land as a subtenancy. Clearly this arrangement was not a subletting. Hildreth testified he received his questionnaires in the summer of 1917, and that he was placed in class 1,. and was examined and accepted, and notified he was subject to call upon 24 hours’ notice; that had he retained appellants’ land the conditions would have been the same. He procured or rather one of his brothers agreed to look after the land for him, and another agreed to work it for him in his place. He and Bates were renting the appellants’ land together, and Bates was to have looked after their joint interest, or, as they express it, would have been overseer. The statement that he has not shown that the expenses would not be more than the value of the crop is a different proposition from the first part of the assignment. This part of the assignment asserts a distinct proposition from the one asserting that no arrangement was made, and no such proposition is presented thereunder as to require us to discuss the evidence on this po’nt. However, we think the charge requested was properly refused, because the appellees allege special damages by being evicted from the premises, as well as exemplary damages, both of which the jury found they were entitled to, and Hildreth certainly had the right to recover the damages he had already sustained, and the court would not have been justified in instructing a verdict against him.

The fifth assignment is founded upon an objection to the second issue submitted by the court to the jury, which inquired of the jury if the feed on the place belonging to defendants was damaged by reason of the defendants being ejected from the premises. The proposition under this assignment is that the measure of damages for breach of a rental contract is what the tenant would reasonably have made out of the crop but for such breach. The courts of this state have held the tenant may recover such profits, but they have not held that this is the only item which he can recover. He is entitled as well to the “loss sustained” as “gains prevented.” In other words, he is entitled to compensation occasioned by the breach. “If any special damage is pleaded, which is shown to have been in reasonable contemplation of the parties at the time the contract was entered into as a probable result of its breach, the special damages so shown can be recovered in addition to the damages which would ordinarily reáult from the breach of the contract.” Ry. Co. v. Jackson, 29 Tex. Civ. App. 342, 69 S. W. 89.

The eighth and ninth assignments relate to issue No. 4, submitting to the jury the issue of exemplary damages. The proposition is that there is no evidence that ap-pellees were ejected from the premises, but it is shown that they moved off without being put off by the plaintiff or the sheriff, and the issue suggested to the jury that they might find exemplary damages was error. The appellants sued out the writ of sequestration, stating they were entitled to the possession of the land. Bates testified substantially that the sheriff came out to the place with a writ in January, during very cold weather; that tire sheriff told him he had authority to dispossess them, but said, “ ‘We will give you the privilege of moving your own stuff;’ and we told him if he would give us until tomorrow we would move out, and he came back.” He testified further: “When the sheriff came out there and notified us that he had those papers we told him we would get out. He told us we could get out ourselves if we wanted to. We got off the place without the sheriff putting us off.” It is manifest the appellees did not voluntarily leave the place, but that they moved under the compulsion of the writ with which appellants had armed the sheriff. The mere fact that the sheriff did not resort to physical force in ejecting the appellees made it none the less an ejection by appellants. Clark v. Pearce, 80 Tex. 146, 15 S. W. 787. Ordinarily exemplary damages are not allowed for a mere breach of contract, but where a plaintiff wrongfully and willfully or maliciously uses a writ of sequestration for the purpose of obtaining possession of property to which he has no lawful right such damages may be recovered. Simpson v. Lee, 34 S. W. 1053; Land v. Klein, 21 Tex. Civ. App. 3, 50 S. W. 638; Knox v. McElroy, 103 Tex. 357, 127 S. W. 798; Waggoner v. Wyatt, 43 Tex. Civ. App. 75, 94 S. W. 1076; Gross v. Hays, 73 Tex. 515, 11 S. W. 523; McKee v. Garner, 168 S. W. 1031.

The eleventh assignment presents objections to the testimony of J. H. Hildreth, as to what he in reasonable probability would have made in anything like an ordinary year, etc. Most of this if not all of the evidence was admissible under the rules for damages heretofore announced. The objections made go more to the weight of the testimony than to its admissibility.

The twelfth and thirteenth assignments complain of the admission of the following testimony by Mrs. Bates:

“I do recall the occasion when Mr. Lamar turned some of his cattle in on us — about 125 head. These cattle would come up around the house, around the barn — come in to a little patch there. I would go over there and drive them back off a little patch to feed, a voluntary ■oats, that would be beneficial to our stock. We really needed it, and that was all I ever done to his stock at all. I drove them back off of that patch of feed. Mr. Lamar came to me one day — came over there hollowing at me and told me to stop it. He said if I didn’t he would cause' me trouble; and I says, ‘I am going to put them out;’ and he says, T am going to put you off.’ He says, ‘I don’t want no such people on my place.’ * * * He says, T will put you off.’ I told him, ‘Well, to do it, and then talk about it.’ He says: T will do it; when I set my head to do anything T come very near doing it. I will put you off if it costs everything Mrs. Lamar has got.’ That conversation took place there on our place, and I rode up the road and he followed me. * * * It was only a short time after that we got the notice to get off, and it was only a short time ■ after Mr. Lamar made that remark until I was arrested, and I have a case pending against me in the county court here now. After this notice was served upon us we were put out, and were not able to procure a house. The house we are living in now is just a little shack ■covered with sheet iron, and we have a tent to •cook and eat in. Not a drop of water on the place of any kind. The fact that he .put me off under the process of the court certainly did cause me worry; I worried. I could not say how much I have worried and have been bothered about it. It has been the worst worry I have ever had-.”

The appellant H. L. Lamar testified that he turned his cattle in the stock fields because he thought he had the right; that it was (some time during the middle of November that Mrs. Bates drove the cattle out of the field, and it was just a few days before he filed complaint against her, but that he 'was going to file it anyway if that had not 'happened; that he put in the complaint that •they had been running the cattle off their accustomed range, and “they had been running them there every day from one to five times.” He shows also by his testimony that he sued out the complaint against Mrs. Bates .a few days before he gave the notice to the appellees to quit the premises. He had also ■testified when first on the witness stand, ad.mitting that when Mrs. Bates was driving the cattle out of the field that it made him mad, and that he then went to town and filed 'the complaint. We think on the issues in ■this case the testimony of Mrs. Bates was admissible.

The fourteenth and fifteenth assignments urge error in admitting the evidence of W. 'M. Glasscock and W. A. Walling; their testimony being, in effect, as to what the land would produce in ordinary or average years. The objection made at the time appears to be that the testimony was uncertain, etc. What we have heretofore said disposes of these assignments.

The sixteenth assignment is to the jury’s finding that the rental contract was an unconditional one because, it is asserted, that it is unsupported by the evidence. If the appellees’ testimony is true, it supports the jury’s finding.

The seventeenth, eighteenth, nineteenth, twentieth, and twenty-first assignments are overruled for the reasons heretofore given in this opinion. , These assignments seek to raise in different form the questions presented in the assignments heretofore discussed.

We find no reversible error assigned and briefed, and the judgment will therefore be affirmed.

On Motion for Rehearing.

It is insisted that there was fundamental error in not sustaining the twentieth assignment, which is to the effect that the cross-petition only sought a recovery for $1,000 actual damages, while the verdict is for $1,010. This is based on the prayer for $1,000 actual damages and $2,000 exemplary damages, and for general and equitable relief to which in law appellants may be. entitled. It may be said that we overlooked the prayer in the original opinion, as the body of the petition set out two items of actual damages, one for $1,000 and the other for $100. It is evident by the petition appellee sought a recovery for both items. We do not think it fundamental error to recover an amount sued for simply because the prayer left out one item. This would not limit the cause of action to the amount stated in the prayer. The prayer would authorize the recovery of the amount stated in the body of the petition where it should be stated. Ry. Co. v. Canyon, 102 Tex. 478, 119 S. W. 294. As to the testimony of Mrs. Bates, of which complaint was set out in the fourteenth assignment, we will state that under the assignment in the brief there was included much testimony admissible under the allegations for exemplary damages; but if the bill in the record properly segregated the evidence in regard to the effect the acts of appellant had upon Mrs. Bates’ feelings, etc., we see no just ground upon which we could base a reversal. The admission of appellant and the uncontradict-ed facts show that appellants not only threatened to put Mrs. Bates and her family off the premises, and to have her arrested, but it also shows that he did immediately follow up his threat by sequestrating the property, and by having Mrs. Bates arrested for driving his cattle off their accustomed range; that is, off of the standing feed in the field of the appellees. These facts, we think, were admissible to show the animus Of appellant in instituting the proceedings out of which! this suit grew. A jury of ordinary intelligence would understand that such acts would humiliate and trouble any one. The mere fact that she stated it did would not add any force to the uncontradicted facts as to what was actually done, and it is not at all likely or probable that any injury resulted from her mere statement that it did worry her or affect her feelings. It may be we should take judicial notice that it was dry, and that no crops were made in that part of the country in 1918; hut we know of no rule that would authorize us to base a reversal upon our knowledge, or to set aside the verdict of the jury based on evidence. When appellant breached the contract he took the risk of a recovery at that time. In the light of subsequent events he may have conferred a favor on appellees, but eases cannot be reversed upon such contingencies. We can only look to the evidence, and, if we believe the court and the jury had evidence sufficient to sustain the verdict, it is- our duty, as we understand it, not to set their verdict or judgment aside.

The motion will be overruled.
      @==>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: BRADY, J.

license: Public Domain

text:
    TALIAFERRO et al. v. BRADY NAT. BANK.
    (No. 5985.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1919.)
    1. Appeal and Error <§=230 — Review-Waiver op Objections to Charge — Statute.
    General objection of defendants, when trial court announced it would instruct, verdict for plaintiff, held no objection at all to charge before reading to jury within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, so that objection to instruction cannot be considered.
    2. Warehousemen <§=34(2) — Pledge of Receipts as Security — Exhaustion of Other Security — Public Weigi-ieb and Sureties.
    Public weigher and his sureties were not entitled to require bank, which took as collateral security cotton receipts signed by weigher, to foreclose its mortgage upon security other than cotton or receipts before it could recover against weigher and sureties for weigher’s breach of statutory duty in releasing cotton without surrender of receipts.
    3. Warehousemen <®=34 (2) — Pledge of Receipts — Exhaustion of Other Security-Proceeding Against Weigher and Sureties.
    Bank which took cotton receipts issued by public weigher, in addition to other security for debt, debtor having left country and other property securing debt having been disposed of or not being discoverable held not required to foreclose upon or exhaust such property before going against public weigher and sureties for breach of statutory duty in releasing cotton without surrender of receipts.
    4. Warehousemen <§=34(11) — Recourse Against Public Weigher and Sureties— Protection by Judgment.
    Rev. St. 1911, art. 6332, held without application, in suit by bank against public weigher and sureties for breach of duty in releasing without surrendering of receipts cotton for which he had issued receipts, which were pledged to bank, to require judgment to protect weigher and sureties by subjecting property of depositor of cotton and pledgor of receipts first to execution, etc.
    5. Warehousemen <⅜^16, 25(5) — Public Weigher — Liability—Delivering Cotton Without Surrender of Receipts.
    In view of Rev. St. 1911, arts. 583, 584, bank having taken valid assignment of cotton receipts issued by public weigher, and having thereby and by agreement with assignor or pledgor of receipts as security acquired title to cotton, under article 7830, public weigher, on broach of official duty in delivering cotton to assignor or pledgor without requiring surrender of receipts, must respond to bank, in suit in its own name, for its loss.
    6. Appeal and Error <§= 173(2) — Theory of Case! Below — Failure to Raise Defense in Trial Court.
    In suit by bank, assignee of cotton receipts issued by public weigher, against weigher and sureties for breach, of duty in releasing cotton without surrender of receipts by assignor, where weigher and sureties did not make, in trial court, defense that there was no indorsement of receipts and no notice to weigher of assignment, it is not available to them on appeal.
    7. Warehousemen <§=25(5) — 'Liability of Weigher and Sureties.
    Under stipulation in cotton receipts that cotton would be delivered only on return of receipts, and Rev. St. 1911, art. 7839, requiring public weigher to keep in possession property for which certificates are issued until certificate is surrendered, liability of public weigher and sureties to bank, assignee of cotton certificates issued by weigher, held fixed by delivery of cotton to assignor without return of certificates.
    Appeal from McCulloch County Court; J. E. Brown, Judge.
    Suit by the Brady National Bank against C. E. Taliaferro and others. From judgment for plaintiff, defendants appeal.
    Affirmed.
    S. C. Rowe, of Ft. Worth, and Adkins & Adkins, of Brady, for appellants.
    Shropshire & House, of Brady, for appellee.
   BRADY, J.

Appellee, Brady National Bank, brought this suit against W. M. Mc-Morries and the appellant C. E. Taliaferro, and the other appellants, sureties upon his official bond as public weigher. The action against W. M. McMorries was upon a promissory note executed February 1, 1916. Appel-lee alleged that at the time of the execution and delivery of said note to it by McMorries, the latter delivered to appellee two cotton certificates or cotton warehouse tickets or receipts issued by appellant Taliaferro as public weigher, which were then and there attached to the note. The form of each cotton certificate or receipt is as follows:

“No. 3082. .Melvin, Texas, 10/28/15.
"C. E. Taliaferro Cotton Yard.
“Received from W. M. McMorries for —-- one bale of cotton in apparent good order, to be delivered only on return of this receipt and payment of charges thereon. No duplicates issued. Mark — W. M. M. Gin O. — Weight 545. Fees 10c. -Weigher.
“Eddie Taliaferro, Deputy.”

Appellee alleged that said cotton receipts were delivered by McMorries to appellee as collateral security to secure the payment of .his note, and at the time of the delivery of the receipts McMorries agreed that the bank was to hold same as security for the note; that they were not to be delivered to McMor-ries until the note was paid, and that the bank should be entitled to the possession and title .■of the cotton described in the receipts; and that in the event of default in the payment of the note, the receipts were to become the property of the bank, with authority to sell the cotton and apply the proceeds to the payment of the note. Appellee further alleged that appellant Taliaferro was required by statute to issue said cotton receipts as public weigher, and was required by the terms of the statute to keep the two bales of cotton and not to deliver same to McMorries or any one else, except on return to him of the receipts; that it was a breach of the stipulations in the receipts, as well as of his official duty, to deliver the cotton without surrender and cancellation of the receipts, but that Taliaferro delivered the two bales of cotton ■to McMorries without requiring the return of the receipts, and that at the time said cotton was redelivered to McMorries the receipts were in the possession of appellee, and were its property, and that such delivery to Mc-Morries was without the knowledge or consent of appellee.

Appellee further alleged that the conduct of Taliaferro amounted to conversion of the cotton, and prayed for judgment against him and the sureties on his official bond for the value of the cotton.

McMorries did not defend, but appellant Taliaferro answered by general .demurrer, general denial, and by a plea of estoppel, and the other appéllants adopted Taliaferro’s an.swer, and specially pleaded that the receipts wete issued by Taliaferro as a warehouseman, and not as a public weigher, and that, therefore, they were not liable as sureties on .said bond. The court instructed the jury to return a verdict against McMorries for the amount due on the note, and against Talia-ferro and his sureties for the value of the cotton, which was found by the jury to be $243.71, being less than the amount of Mc-Morries’ debt to the bank. Upon this verdict for appellee judgment was rendered, from which appellants take this appeal.

Appellants’ first, second, and fourth assignments of error complain of the trial court’s action in instructing a verdict in favor of appellee, but these assignments will not be considered by this court, for the reason that the alleged errors have been waived by appellants, under article 1971, Vernon’s Sayles’ Civil Statutes. This statute requires that all objections to the court’s charge must be presented to the court before it is read to the jury, and that “all objections not so made and presented shall be considered as waived.”

The transcript in this case shows that the only objection made to the court’s charge, as shown by appellants’ bill of exception No. 1, was that when the court announced that he would instruct a verdict for the plaintiff, the appellants objected as follows:

“To which action of the court * * * in instructing the jury to find in favor of the plaintiff, the defendants through their, counsel then and there in open court excepted.”

This general objection was, in our opinion, no objection at all within the purview of the above statute, because it did not point out any specific ground of objection to the charge or any alleged error in giving the same. Therefore we hold that the alleged errors in instructing a verdict for the plaintiff complained of in the first, second, and fourth, assignments of error have been waived, and cannot be considered by this court.

Appellants’ third assignment of error presents the point that the trial court erred in rendering judgment against appellants, because it appeared that the appellee had a mortgage upon other personal property to secure the note in suit, and that appellee neither alleged nor proved that the property so mortgaged was depreciated in value by the acts of appellant Taliaferro, or was not sufficient to satisfy the note, and that appellants would, in any event, only be liable in damages for the balance due appellee after exhausting the proceeds of such additional security ; and that as the certificates were only delivered as collateral security, appellee should be required to foreclose its lien on the additional security, unless its failure to foreclose should be excused by appropriate aver-ments and proof.

This assignment is not in strict compliance with the rules, and in reality indirectly attacks the charge of the court in instructing a verdict for appellee, which alleged error we have held has been waived; but as, in form, the assignment complains of the action, of the court in rendering judgment, we will consider the same. We are of the opinion that under the authorities appellants were not entitled to require the hank to foreclose its mortgage upon the other security before it could recover against appellants for their alleged wrongful acts, and for breach by Talia-ferro of his statutory duty as a public weigh-er. Wilkes v. Adler, 68 Tex. 699, 6 S. W. 497; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 717, and authorities there cited; Jones on Chattel Mortgages, § 448. But, if the rule of law were otherwise, the bank fully excused its failure to foreclose upon and resort to the additional security, because it was shown, without dispute, that McMor-ries left the country and had gone to parts unknown, and that the other personal property covered by the mortgage had been disposed of or could not be found; that appel-lee had endeavored to locate said property for the purpose of foreclosing on it, but was unable to find it. Under these circumstances, it cannot be justly contended that appellee was required to foreclose upon or exhaust the property embraced in its chattel mortgage, whatever the rule would ordinarily be in such cases. For these reasons, the third assignment of error is overruled.

Appellants present as fundamental error in their fifth assignment the proposition that the judgment of the court is erroneous, in that it does not protect appellants, in failing to require that the property of McMorries be first subjected to execution, and that if his property subject to execution should be insufficient to satisfy the judgment, execution should be first levied against appellant Taliaferro, and then execution should issue against the sureties, in ease no property belonging to Taliaferro should be found sufficient to satisfy the judgment. Appellants cite article 6332, Revised Civil Statutes, in support of this proposition.

The relief here suggested was not asked by any pleading below, nor in the motion for new trial, and we seriously doubt whether the assignment presents any question of fundamental error. However, we are of the opinion that the statute cited has no application to the facts of this case, and that the judgment, under the pleadings and proof and under the verdict of the jury, was the proper judgment to be rendered. For all of yvhieh reasons the fifth assignment of error will be overruled.

The last assignment of error presented by appellants is the sixth assignment, claimed also to be fundamental error. By this assignment appellants raise the point that at common law a nonnegotiable warehouse receipt in the hands of an assignee confers no right of recovery by the assignee against the warehouseman for conversion or loss of the property, in the absence of notice to the warehouseman of the assignment before the conversion or loss; and that by article 7830, Revised Statutes, certificates of public weighers are made negotiable only by indorsement and delivery, and there being no-indorsement pleaded or proven in this case,, and the undisputed evidence showing no notice to Taliaferro of the assignment of the receipts to the bank prior to the .delivery of' the cotton to McMorries, there can be no recovery against Taliaferro, or the sureties-on his official bond.

This is really an indirect attack upon the charge of the court, peremptorily instructing a verdict for plaintiff, and no such objection was urged to the charge below. We gravely doubt whether it can properly be regarded as fundamental error, but we have decided to consider it.

The statute invoked does provide that certificates issued by public weighers shall be negotiable by delivery and indorsement of" the owner, and doubtless such certificates, cannot be classed as negotiable paper, with all the qualities, rights, and defenses incident to such instruments, unless there has been, both delivery and indorsement by the owner. But in the issues of this case, we do not find, any question dependent upon the negotiability of the receipts or certificates in controversy.. In our opinion, the rights of the bank accruing from the transfer and assignment of the-receipts, which were merely symbols of the-property and therefore conveyed the title to-the cotton, are not made to depend upon and are not determined by the negotiability of" the certificates.

The statute cited (article 7830) specifically provides that it is the duty of the public-weigher to keep in his possession the property for which certificates are issued, when samé-is left in storage with him, and he is by the very terms of the statute commanded and required to “not to remove or permit to be removed such produce, until such certificate-is returned and delivered to him; and he-shall immediately stamp or mark in writing, with ink such certificate ‘Canceled.’ ”

The bank having taken a valid assignment of the certificates, and having thereby, and-: also by express agreement with McMorries, acquired the title to the cotton, if the terms of the above statute are to be enforced, Talia-ferro, upon the breach of his official duty in delivering the cotton to McMorries without requiring the surrender and delivery of the-certificates, must, upon the plainest principles, of justice, respond to the bank for its loss sustained thereby.

By article 583, Revised Statutes, the ob-ligee of any nonnegotiable instrument may-transfer by assignment to another all the interest he may have in the same, and by the succeeding article, the assignee is authorized-' to maintain an action tliereon in his own name; hut it is provided in the latter that the assignee shall allow every discount and defense against the same, which it would have been subject to in the hands of any previous owner before notice of the assignment is given to the maker.

Under these statutes, it is clear that the bank took title to the receipts'or certificates, and therefore to the cotton by the assignment from McMorries, and has the right to maintain suit thereon and therefor in its own name. If it be conceded that the defenses sought to be presented by the above assignment of error were available to appellants, they are defensive matters, and must, in our opinion, have been pleaded and proven below. No such defense was made in the trial court, and is raised for the first time on appeal, and we do not think it now available to appellants, if it ever was.

Moreover, in our opinion, by virtue of the stipulation in the receipts or certificates that the cotton described therein would be delivered only on return of the receipt, and by virtue of the statutory provision commanding and directing the public weigher not to deliver the property except upon surrender and cancellation of the certificates, the liability of the public weigher and his sifeeties was fixed by the delivery of the cotton to Mc-Morries without the return of the certificates. The certificates issued by Taliaferro on their face read that the cotton would be delivered only on return of the receipts, and we do not think appellants should be permitted to deny what was* thus represented, and cause loss to appellee, which in good faith acted upon such statement and lent money thereon, upon the faith of these representations, and in the belief that appellant would perform his statutory duty.

Appellants cite the case of Stamford Compress Co. v. Bank, 105 Tex. 44, 143 S. W. 1142, 144 S. W. 1130, Ann. Cas. 1914D, 1298, a decision by our Supreme Court. In this case an able dissenting opinion was rendered by Associate Justice Ramsey; but, of course, we are to be controlled by the opinion of the majority, and if their decision is in point on this question, we must follow it.

Appellants also cite the case of Stephen-ville Compress Co. v. Bank, 148 S. W. 335, which merely yields assent to the opinion of the Supreme Court in the former,case.

We have carefully examined the opinion of Chief Justice Brown in the Stamford Compress Company Case, and we find that he distinguishes a warehouse receipt, which on its face specifically provides that it would be delivered “only upon return of the receipt,” from the receipt issued by the compress company in that case. In reviewing Babcock v. People’s Savings Bank, 118 Ind. 212, 20 N. E. 732, Chief Justice Brown stated that the words “only upon return,” etc., contained in the warehouse receipt, were correctly held by the Supreme Court of Indiana to have the effect of making the warehouseman bailee of the assignee, and that it authorized the assignee to rely upon the implied promise to hold the property for any assignee of the receipt. In concluding his review of this case, Chief Justice Brown said, “No such recital occurs in the receipt in this casé.” It is to be noted also that Chief Justice Brown quotes with approval from Stewart v. Insurance Co., 9 Lea (Tenn.) 104, wherein it was said:

“The stipulation upon the face of the receipt that the articles mentioned will be delivered only upon the return of the receipt is a contract upon which the assignee has the right to rely, upon the faith of which he has acted and for the breach of which he has his action against the warehouseman.”

In view of the fact that the receipts issued in this case contain precisely the same language as the receipts considered in the Indiana and Tennessee cases, above cited and approved by Chief Justice Brown, and in view of the further fact that our statute makes this stipulation a positive duty of the public weigher, we think the facts of this, case must be distinguished from those considered in Stamford Compress Co. v. Bank, and that said case must be held inapplicable.

For the above reasons, we are of the opinion that even if the points presented can be considered as fundamental error, there is no merit in the sixth assignment of error, and the same will be overruled.

This disposes of all the questions raised on the appeal in the assignments which we are permitted to consider, and, finding no reversible error in the record, the judgment of the trial court will be affirmed.

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


author: • MOURSUND, J.

text:
    McLELLAN v. BROWN et al.
    (No. 6140.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.
    Rehearing Denied Feb 19, 1919.)
    1. Public Lands <®=>221 — Spanish Grants— Surveys — Estoppel.
    An erroneous survey of a valid Spanish grant by a county surveyor, the field notes of which included less land than the original grant, did not create an estoppel in favor of the state so as to make the excluded land vacant, where such survey was not made by authority of the owners of the original grant.
    2. Public Lands <S=»221 — Spanish Grants— Surveys.
    In an action by a grantee of the state to recover possession of land bought by him as public land, which was vacant according to an erroneous survey, such survey, when not made on authority of the owners of the original Spanish grant of which the vacancy was a part, did not estop them from claiming the land.
    S. Trespass to Try Title <®=>12 — Prior Possession — Inclosure.
    AVhen land is inclosed by a substantial fence at a time defendant forcibly enters thereon, plaintiffs in trespass to try title are entitled, in the absence of title in defendant, to recover on the strength of their prior possession, notwithstanding they have failed to show title because the land has not been inclosed for the statutory period.
    Appeal from District Court, Hidalgo County; V. W. Taylor, Judge.
    Action by James A. Brown and others against W. H. McLellan, with cross-action by defendant. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Erante C. Pierce and James A. Graham, both of Brownsville, for appellant.
    F. W. Kibbe, of Brownsville, G. R. Scott and Boone & Pope, all of Corpus Christi, G. C. Robinson and Dougherty & Dougherty, all of Beeville, for appellees.
   • MOURSUND, J.

The issue as made by the pleadings on which a trial was had was whether the appellees owned a certain tract of 266 acres of land in Hidalgo county, either by record title or by limitation under the ten-year statute. We have thus stated the issue for the reason that appellees were plaintiffs. The defendant, in addition to putting the plaintiffs on proof of their title, affirmatively pleaded estoppel, and by cross-action sought to recover by virtue of a purchase of such land by him from the state in 1909.

The trial resulted in a judgment in favor of plaintiffs for the land and for nominal damages. At defendant’s request the court filed conclusions of fact and law.

We will not copy the 46 findings of fact, but will undertake to matee a statement full enough to give the appellant the benefit of all facts found which even remotely bear on the issues presented in his brief.

About 1789 the Spanish government by valid grant, confirmed in 1852 by the Texas Legislature (section 2, vol. 3, Gammers Laws), granted to Juan Jose flinojosa a tract of land on the Rio Grande river containing about 25½ leagues, in the form of a rectangle, known as the Llano Grande grant, the lines of which were run upon a magnetic course, the eastern and western lines, called for as running north and south, being run, without correcting the variation, as would have been necessary to' run the lines true north and south.

In 1834 the state of Tamaulipas made a valid grant to Lino Oabasos of five leagues of land known as the La Blanca, lying west of the Llano Grande grant, along its entire west line, and calling for certain well-known land marks in the west line of said Llano Grande grant. This grant was duly recorded in Cameron county in 1849. Hidalgo county was created out of Cameron county in 1852. No patent was taken out for either of said grants.

In 1847 the then owners of the Llano Grande grant partitioned the same, said partition being made by running lines perpendicular from a base line along the river true north a short distance to a point a short distance south of the military road, such lines, however, having never been run out their full length. The extreme west line called to run through the Puerta La Blanca, a well-known landmark called for as a mark near the river of the west line of the Llano Grande grant.

In 1877 one Fields, deputy surveyor of Hidalgo county, made a resurvey of the Llano Grande grant, and the map and field notes thereof were recorded in the surveyor’s records of said county, and were in 1879 filed in the general land office. These field notes were erroneous and conflicted with the original field notes of the La Blanca grant, due to the fact that the western boundary of the Llano Grande was run upon a course of 55 minutes west of true north instead of magnetic north as originally run. Plaintiffs, and those under whom they hold, never participated or acquiesced in said resurvey.

Field notes of a resurvey of the La Blanca grant, made by Salinas and Haynes, and a plat thereof, were recorded in the surveyor’s records of Hidalgo county and filed in the general land office in 1879. This resurvey was made on the ground, and began at the southwest corner of the Llano Grande grant, and from there the eastern boundary was run north by the needle, or magnetic north, to correspond with the original eastern boundary of the La Blanca. The field notes contain the recital that the survey was made for the heirs and legal assigns of Lino Oabasos. No other evidence was introduced as to who caused such resurvey to be made.

The result of the two resurveys above described was that the triangular piece of land in controversy was noti included in either survey, although a part of the original Llano Grande grant.

In April, 1874, a map by the district surveyor of the district, which included Hidalgo county, was filed as an archive in the general land office, and remains on file, which showed that the eastern boundary of the La Blanca and the western boundary of the Llano Grande coincided, and that said line was run magnetic north and south without correcting the variation of the compass.

Haps of Hidalgo county, prepared by the general land office and on file therein, one dated April, 1880, and the other April, 1S96, show the location of Llano Grande grant as resurveyed by Field; that is, show the land in controversy as a vacancy.

In January, 1909, defendant made application to the county surveyor to survey as vacant land the land in controversy, and such survey was made and duly recorded. On May 1, 1909, defendant applied to purchase said land under the act of May 16,1907, in regard to sale of school lands without settlement, and on May 15, 1909, it was sold to him on the terms prescribed by statute for the sale of school lands.

In 1852 the title to the western two leagues of the Llano Grande and the eastern two leagues of the La Blanca was in the surviving wife and “one sole heir” of Antonio. Martinez Chapa, who by deed duly recorded in 1853 conveyed to John Young a tract out of the western portion of the Llano Grande grant, the west line of which was recited to be coincident with the division line of the La Blanca and Llano Grande grants. The heirs of the grantors in the deed to Young conveyed to James G. Browne by deed recorded in 1869 the eastern league of the La Blanca grant, running all the way from the river to the back line of the original grant, describing it as bounded on the east by the Llano Grande grant.

In 1869 James G. Browne went into possession of the land in controversy and of the La Blanca league conveyed to him, and used said tract in controversy, claiming it as his own, cutting and selling timber therefrom. This possession continued down to the time in 1909 when the defendant entered upon the land and took possession by cutting plaintiffs’ fences. The court in several findings describes the nature of the possession and use, and the extent of the inclosure at various periods of time, but also states in the thirtieth finding that the possession and use was such as to give plaintiffs title by limitation to all the land at the Jime defendant interfered with such possession, and finds, and such finding is not attacked, that plaintiffs were in actual possession of and had inclosed all of the land in controversy at the time of such forcible entry by defendant.

It is contended that the evidence shows that ihe land in controversy was public land in 1909, and subject to be sold by the state to the defendant, and that it was sold to him, and therefore the judgment is erroneous. The first proposition under the assignment reads as follows:

“Though the land in controversy was included within the boundary of the Llano Grande grant as originally surveyed, and as granted by the crown of Spain in 1789, the fact that the then owners of said grant, in accordance with the provisions of the act of the Legislature of 1852 as found at page 949, vol. 3, Gammel’s Laws of Texas, caused said grant to be' resurveyed in 1877, and caused the' field notes and a plat of said resurvey to be filed and recorded in the general land office of the state of Texas, and also caused said field notes and said plat to be filed and recorded in the surveyor’s records of Hidalgo county, Tex., where said land was then situated, as being the correct location of said grant on the ground, coupled with the fact that the state of Texas at all times thereafter relied on the said field notes and plat of said grant as being correct, and, so relying thereon, treated the land in controversy as public land, and sold same to appellant, who at the time of his purchase believed the state owned the land, as a matter of law estopped ap-pellees from denying the land in controversy in this suit was vacant or public land at the time the state sold same to appellant; and the judgment of the trial court should therefore have been for appellant for the title and possession of said land, for the rental value thereof in the sum of $2,200, for the value of improvements thereon situated and converted by appellees in the sum of $600, with 6 per cent, interest per annum on both of said sums from March 21, 1918, for dissolution of the injunctions theretofore issued and served in this cause, and for costs of suit.”-

The proposition does not correctly state the facts. The court did not find, and there is no assignment complaining of his failure to find,, that the persons who owned the Llano Grande grant at the time of the Fields resurvey caused or procured or had any knowledge of such resurvey, or caused the field notes thereof to be recorded in the surveyor’s office or to be transmitted to the general land office. Nor do we see how the court could have made such a finding had he been requested to do so, for it would have to be based on the mere presumption that Fields would not have made such survey and would not have recorded the field notes had he not been caused to do so by some one interested in or claiming an interest in the Llano Grande grant. There is no evidence that any of the owners of the grant did any act on which es-toppel in favor of the state could be predicated.

We consider the opinion in the case of Corrigan v. State, 42 Tex. Civ. App. 171, 94 S. W. 95, approved by the Supreme Court, 94 S. W. 101, to be decisive of this question. The authorities relied on by appellant, which are collated in Kennedy Pasture Co. v. State, 196 S. W. 293, are not applicable to the facts of this case.

The second proposition is that appellees and those under whom they claim were parties to, and bound by, the resurveys of the Llano Grande grant and the La Blanca grants made in 1877 and 1879, as well as by the placing of record of the field notes and plats of said surveys in the surveyor’s office and the general land office in such manner as to result in the land in controversy becoming vacant or unappropriated public land owned by the state of Texas. While there is no evidence showing who was responsible for the resurvey of the La Blanca grant, it would make no difference even if those under whom plaintiffs hold had such resurvey made; for it was a correct survey, and could not mislead any one.' In fact, the survey recites in a “note” to such field notes that there is annexed thereto a copy of the original grant “which was surveyed in accordance with the original corner stones as found upon the ground and in accordance with the adjoining tracts called for in said original grant.” The Salinas field notes call for the east line to begin at the S. W. corner of the Llano Grande grant, describing it, and to run 3,442 varas to a large stone designated in the original map and field notes as the “Lindero de la Puerta de la Blanca,” and referred to generally as the Puerta La Blanca, a prominent call in the original Llano Grande grant. The field notes prepared by Fields are not contained in the statement of facts, but it is found by the court that the western boundary line of the Llano Grande grant as located by Fields runs through the point called Puerta La Blanca, and from the field notes prepared by the surveyor Gore of the land in controversy it appears that he started at the Puerta La Blanca and ran S. 0° 55' E. 4,401.5 varas to a stake on the Rio Grande for the S. W. corner of the Llano Grande grant; thence up the river to the point designated in the Salinas field notes as the Llano Grande S. W. corner; and thence with Salinas east line of the La Blanca back to the Puerta La Blanca. This indicates that Fields did not look for the original S. W. corner of the Llano Grande grant, but started at the Puerta La Blanca, and called for a stake at the river where his line would intersect the same. The result of the Fields survey was to show a small vacancy between the two grants south of Puerta La Blanca and a tremendous conflict between the grants north of that point. An examination of the Salinas field notes would put any one on notice that the west line of the Llano Grande grant was believed by Salinas to be at a different place from that indicated by Fields, and would therefore be calculated to prevent a misconception instead of aiding it. Certainly the resurvey of the La Blanca, if chargeable to its owners, did not cause or contribute to cause the mistake in the maps. Now, as to the resurvey of the Llano Grande grant, the court found that the plaintiffs and those under whom they hold never participated in or acquiesced in such survey. Such finding is attacked in the second assignment of error, but we find no evidence showing any participation or acquiescence on the part of plaintiffs or those | under whom they hold in the Fields resurvey. They were not owners of any part of the Llano Grande grant in 1877 or 1879, or thereafter, unless and until they acquired title by limitation to the land in controversy, if they did so. Plaintiffs have no record title to the land in controversy, as it is no part of the La Blanca league. Their predecessor in interest, James G. Browne, who went into possession thereof in 1869, is not shown to have been in any way instrumental in having the Fields resurvey made, or, to have had any actual knowledge thereof. It seems clear that estoppel in favor of the state cannot be in-edieated on the acts, or failure to act, of any one under whom plaintiffs claim.

The third proposition is to the effect that the facts show an agreed boundary line between the state and all those owning or claiming any interest in the Llano Grande and La Blanca grants at the time the resurveys of said grants were made and the field notes placed of record. We consider it obvious that there is no issue of agreed boundary line in the true sense of the term, and that the proposition, in so far as it is worthy of consideration, merely repeats the contentions already disposed of.

Before passing from the question of estop-pel we call attention to the fact that there is no contention that the plaintiffs are estop-ped to claim the land as against defendant by reason of misleading him in any way to his injury.

The only other assignment of error complains of the trial court’s thirtieth finding of fact, wherein he in effect finds that the plaintiffs had acquired the lands in controversy by limitation. The statement of facts recites that testimony was introduced showing “that since 1S97 all of said tract of land has been inclosed by a substantial fence.” There can be no question concerning the actual occupancy of the land by tenants or the continual use thereof by cultivation and graz-' ing stock thereon during the time it was so inclosed. The statement of facts sustains the conclusion complained of.

However, even if plaintiffs had failed to show title to a part of the land, by reason of its not being inclosed for the statutory period, the fact remains that it was inclosed when defendant forcibly entered thereon, and plaintiffs were entitled, in the absence of title in him, to recover the same on the strength of their prior possession. Crafts v. Mc-Allen, 196 S. W. 729.

The judgment is affirmed.
      <§x^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=5>Fgi other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. LOCK.
    (No. 920.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.)
    1. Carkiees ©=*219(5) — Injury to Stock — “Through Shipment.”
    In suit against initial carrier for damages to shipment of cattle, held, there was no '“through shipment” within Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 731, 732, making initial carrier liable in such case for injury or loss •occurring on lines of connecting carrier.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Through Shipment.]
    2. Cabriers ©=>219(7) — Contract or Initial Carrier — Limiting Liability.
    Where defendant, initial carrier, which refused to enter into contract for through shipment, required a contract limiting liability to damage occurring on its own lines, and agreed ■only to transport to the end of its lines, there could be no recovery for loss or injury occurring •on lines of connecting carrier; there being no proof of fraud, compulsion, or mistake in avoidance of contract' required.
    •'3. Carriers ©=>219(6) — Limiting Liability-Right oe Initial Carrier.
    Initial carrier may limit its liability for ■damages to loss or injury to shipments occur-ring on its own line of railway.
    Appeal from Presidio County Court; II. B. Young, Judge.
    Suit in justice court by J. H. Lock against the Galveston, Harrisburg & San Antonio Railway Company. Upon appeal to the county court, there was judgment for plaintiff, and defendant appeals.
    Reversed and remanded for a new trial.
    I. L. Martin, Jr., and W. Van Sickle, both ■of Alpine, Baker, Botts, Parker & Garwood, •of Houston, and Beall, Kemp & Nagle and H. Potash, all of El Paso, for appellant..
    Mead & Metcalfe, of Marfa, for appellee.
   HARPER, C. J.

This suit was brought by .appellee for damages to a shipment of cattle, against the appellant, the initial carrier, alleging a through shipment from Marfa to Ft. Worth, Tex. From a judgment in the justice court, the cause was appealed to the county ■court, and there, upon trial before the court without a jury, a judgment was rendered for .appellee for $139 and costs, from which this .appeal is prosecuted.

The defense urged is that, under the contract of shipment, appellant limited its liability to loss and damages occurring on its own line, and appellant here complains, by assignments, that the shipment contract is for transportation to a station upon its own line only, viz., Flatonia, and, not being a through shipment and containing specific limitations of liability for damages occurring thereon, and that there being no proof of damages to the cattle upon defendant’s road, the presumption is that the injuries and consequent damages occurred upon the line of the delivering carrier.

The assignments present for our determination the question of fact: Was this a through shipment from Marfa by way of Fla-tonia to Ft. Worth, Tex., within the meaning of articles 731 and 732, Vernon’s Sayles’ Statutes? These statutes do not in any sense fix a test as to what constitutes a through shipment, but 731 simply declares that, where property is transported under a contract for through shipment, such contract as to the shipper and consignee is the contract of each of such common carriers for safe and speedy shipment, .etc., and 732 is that, in case of a contract for through shipment,. all connecting lines are liable for damages sustained anywhere in such through transportation, and article 731 further provides that the waybills, etc., shall be prima facie proof of such relationship between such common carriers notwithstanding any stipulation to the contrary, but not proof of the terms of the contract as seems to be contended by appel-lee. There is evidence in this record that the cattle were offered for through shipment by the Galveston, Harrisburg & San Antonio from Marfa to its connection with and thence over the Texas & Pacific Railway line to Ft. Worth; but it is also in evidence that appellant refused to enter into such a contract, but required a contract in writing which called for shipment to Flatonia and thence over its connecting carrier, the Houston & Texas Central, to Ft. Worth, and by this contract the appellant has limited its liability to damages occurring on its own lines.

And it is further stipulated in this contract that — ■

“If the live stock are to be transported over other roads it only agrees to transport it to said station of Flatonia, named as the end of its line,” etc.

This contract was pleaded by appellant and introduced in evidence after appel-lee had testified that he executed it, and, there being no pleadings or proof of fraud or compulsion or mistake in avoidance of this contract, appellee could not repudiate it. It therefore constitutes proof that this was a local and not a through shipment in so far as appellant is concerned. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474, approved in S. & A. P. Ry. Co. v. Grady, 171 S. W. 1019. To the same effect is G., H. & S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S. W. 328. That the initial carrier, as appellant is in this case, may limit its liability for damages as those occurring on its own line of railway, is the settled law in this state as is shown by the authorities cited next above.

It follows that, since there is a total lack of proof of injury or loss occurring upon the line of appellant’s railway, the cause must be reversed and remanded for a new trial, and it is so ordered.
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author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROACH-MANIGAN PAVING CO.
    (No. 2080.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1919.)
    Trial <S=296(4, 5) — Instructions—Cure of Error.
    An instruction to find for plaintiff if they believed defendant was guilty of negligence in the particular specified, without reference to contributory negligence, of which there was evidence, was not rendered harmless by another instruction to find for defendant if they believed plaintiff was guilty of contributory negligence.
    Appeal from Hunt County Court; A. J. Gates, Judge.
    Action by the Roach-Manigan Paving Company against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and remanded for new trial.
    . E. B. Perkins, of Dallas, and Crosby & Harrell, of Greenville, for appellant.
    H. O. Norwood and L. L. Bowman, both of Greenville, for appellee.
   WILLSON, C. J.

The appeal is from a judgment in appellee’s favor for $350 as the value of two mules belonging to it killed by one of appellant’s trains, and for $4 as the damages to a wagon the mules were drawing at the time they were killed. The accident occurred at a point where Texas street crossed appellant’s track in the city of Greenville.

Notwithstanding evidence, which authorized a finding that appellee’s employs in charge of the mules was guilty of contributors' negligence, the trial court in his charge told the jury to find for the appellee if they believed appellant was guilty of negligence in particulars specified, without reference to whether appellee’s said employe was guilty of contributory negligence or not. We think this was error which required a reversal of the judgment. That the court in his charge also told the jury to find for appellant if they believed appellee was guilty of contributory negligence did not render the error harmless. The jury were not told what to do if they believed, as they might very well have believed from the evidence, that both appellant and ap-pellee’s said employs were guilty of negligence.

The judgment will be reversed, and the cause will be remanded for a new trial.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LINDSEY.
    (No. 2069.)

    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1919.
    Rehearing Denied Peb. 13, 1919.)
    Master and Servant <S^276'(8) — Injurí to Servant — Evidence.
    In a suit by a section hand, who suffered a rupture while lifting a motor hand car from the track, evidence held' to warrant a finding that the proximate cause of his injury was the negligence of an assistant suddenly letting go of the car without warning.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Action by Pink B. Lindsey against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee, employed by appellant as a section hand, claimed he was injured as the result of negligence on the part of another of appellant’s employés, in that while they were lifting a motor hand car from the track the other employe suddenly and without warning let the car down so that the weight thereof fell on appellee. On special issues submitted to them, the jury found: (1) That appellee was' injured while removing the car from the track. (2) That an employs of appellant without notice to appellee let down the car so as to throw the weight thereof on appel-lee. (3) That it was negligence on the part of said employe to so let down the car. (4) That the damage to appellee amounted to $500. The trial court having rendered judgment in appellee’s favor on said findings, appellant prosecuted this appeal.
    Marsh & Mcllwaine, of Tyler, and Stephens & Sanders, of Gilmer, for appellant.
    Simpson, Lasseter & Gentry, of Tyler, and Briggs & Florence, of Gilmer, for appellee.

      Writ of error denied March 26, 1919.

   WILLSON, C. J.

(after stating the facts as above). Appellant insists that the testimony did not warrant a finding that one of its employés was guilty of negligence in letting down the car as charged by appellee; or, if it did, did not Warrant a finding that such negligence was the proximate cause of injury to appellee. The car, it seems, weighed 800 or 900 pounds. The motor with which it was equipped alone weighed about 400 pounds. The motor was placed at one end of the car, causing that end to be nrncji heavier than the other. Appellee and two other men were lifting the heavy end. It was usual, he testified, when the car was to he lifted from the track, for the foreman to direct about the work. At proper times he would say, “pick up, boys,” “walk off,” “put down.” On the occasion in question the men had picked up the car in obedience to the foreman’s command, had carried it to the place where it was to be set down, and ap-pellee was waiting, he said, for the usual order from the foreman to “put down,” when one of the two men lifting with him at the heavy end of the car, without giving any warning of his intent to do so, suddenly turned loose his hold on the car, thereby throwing a greatly increased part of the weight thereof on appellee, whereby, he said, he suffered a rupture as charged in his petition. We think the jury had a right to say that a reasonably prudent person engaged in assisting others in moving the car, under the circumstances stated, would have anticipated injury might result to those assisting him if he suddenly and without warning them let down the car, and would not have let it down as it appeared one of appellant’s employés assisting appellee did. Therefore we overrule the contentions specified. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

Other contentions made in appellant’s brief also are overruled, because we think none of them presents a reason why the judgment should be reversed.'

The judgment is affirmed.
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author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. JOHNSON.
    (No. 2070.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 27, 1919.
    Rehearing Denied Feb. 13,1919.)
    Railboads @=3482(4) — Fibe—Evidence.
    In an action for damages for burning a residence, evidence held sufficient to support a verdict on the theory that defendant’s employés failed to exercise ordinary care in handling and-operating a locomotive, allowing it to emit sparks, though equipped with a proper spark arrester.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Action by Earnest Johnson against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 199 S. W. 1175.
    Appellee brings the suit to recover damages to property, alleging that his residence and contents were destroyed by fire' negligently communicated by one of the appellant’s engines. The defendant, besides denial, pleaded that its engine was equipped with the best and latest spark arrester, in good order and repair, and was carefully and skillfully handled. The case was submitted upon special issues, which the jury answered as follows: (1) That the plaintiff’s property was destroyed by fire . caused by sparks set out by the defendant’s locomotive; (2) that the defendant company used ordinary care to equip the locomotive with the most approved spark arresters and to keep it in good order and repair; but (3) that the employés negligently handled and operated the locomotive that set out the fire. The court entered judgment on the findings for the plaintiff for the value, as found by the jury, of the house.
    There is evidence to support the findings of the jury, and they are sustained and here adopted.
    Marsh & Mellwaine, of Tyler, W. W. Sanders, of Gilmer, and E. B. Perkins, of Dallas, for appellant.
    Simpson, Lasseter & Gentry, of Tyler, and W. R. Stephens, of Gilmer, for appellee.
   LEVY, J.

(after stating the facts as above). The appellant insists that the finding of the jury is without evidence to support it that the employés failed to exercise ordinary care in the handling and operation of the locomotive to prevent the escape of sparks of fire. A flying switch was, it appears, being made, and “was,” as testified, “made in an unusual manner.” One witness says, “There was an unusual amount of cinders coming from the train,” and another witness says:

“Just previous to the fire, I had noticed the train switching back and forth west of the house that burned. It was making a flying switch: I noticed sparks of cinders coming from the train. I spoke of it before the house caught fire. There was a great quantity of the sparks and cinders. I never saw more come out in plain daylight — and sparks don’t show very plain in the daylight. They wore falling all along on this side or the east side of the railroad, and they were just coming right towards the Johnson house.”

And there are other similar statements and circumstances appearing in evidence. Considering all the evidence, it is .believed this court may not say as a matter of law that the finding of the jury is unauthorized. In these circumstances, the jury may have decided that the way and manner of operation of the engine caused sparks of fire to fall on the house, although there was a spark arrester in good order.

The judgment is affirmed.
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author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. REYNOLDS.
    (No. 2071.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1919.
    Rehearing Denied Feb. 13, 1919.)
    Railroads <®=»275(3) — Operation — Duty — Lookout.
    Trainmen are not bound to maintain a lookout to discover whether the train’s approach frightened a team standing at the side of a box car on a switch track, and so negligence cannot be predicated on their failure to keep a lookout to discover whether teams near the track were frightened.
    Appeal from Franklin County Court; O. L. Reaves, Judge.
    Action by M. D. Reynolds against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for new trial.
    J. M. Burford, of Mt. Pleasant, King & Estes, of Texarkana, and E. B. Perkins, of Dallas, for appellant.
    Wilkinson & Davidson, of Mt. Vernon, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for $200 awarded as the value of a mule killed by the appellant’s train. The killing occurred at the depot in Mt. Pleasant. The appellee had gone there to get a load of shingles from a box car standing on a switch track about 45 feet north of the main line of appellant’s railroad. After stopping his team at the side of the car, he went on the inside, and while there was told that a train was approaching. Fearing that his mules would become frightened, appellee immediately came out of the car, unhitched his team from the wagon, and undertook to drive them away. In doing this he went in the direction from which the train was approaching. The mules became frightened, whirled, and ran over the appel-lee. One of them ran in after the train, came in contact with the cars, and sustained the injuries which later resulted in its death. The appellee testified as follows concerning the conditions under which the accident occurred:

“The train was right at me when my team began to get seared. I had gotten them loose from the wagon and as far as the back of this courtroom before the engine passed me. They commenced getting scared after the engine had passed the west end of the depot. They were rearing and pitching before the engine passed me. They first began to scare about the time the engine cleared the southwest corner of the depot —by the time the engine got in 80 steps of them. The engine was within about 25 or 30 stops of the team when they commenced to rear and pitch. No, that wasn’t the first sign they showed of being scared, but that was when they first began to rearing and pitching. Yes, I was-driving the team in the direction of the engine,, but the engine had passed before they jerked loose from me and whirled around and went back in the direction the train was going. The-engine and maybe two cars had passed me before they jerked loose and ran back where the box car struck the mule. Yes, they got so close-to the track that the corner of one of the box cars struck the mule; that is how it was injured.”

No complaint is made that the train was-being operated in an unusual or negligent-manner, or that it was making more than the usual noise. The evidence tended to show that the appellant’s agents in charge of the tráin did not see the team till it was too late to take any precaution. There was other evidence sufficient to support a finding that those agents could have discovered the-appellee and his team in time to have stopped the train before the injury occurred. The court gave the following as a part of his main charge:

“In this case you are instructed that if yon-find from a preponderance of the testimony that the agents and employes of the defendant operating the locomotive saw or by the use of ordinary care could .have seen the plaintiff’s team, and you further find from a preponderance of' the testimony that said team became unmanageable and became frightened at the approach of the train, and that said operatives on the locomotive saw or by the exercise of ordinary care-could have seen that said team was becoming unmanageable and would likely be injured by the train if it continued to approach, and if you further find from a preponderance of the evidence that by the exercise of ordinary care the-said operatives could have stopped the train in time to have prevented the injury, and failed' to do so,” etc.

Under the facts of this case, that portion of the charge which permitted a recovery if the operatives in charge of the train could-by the exercise of ordinary care have discovered that the mules were frightened, in time-to have prevented the injury, should not have been given. It is always the duty of those operating trains, when they discover-the existence of a situation made dangerous by the approach of a train, to do what they can to prevent an injury. It is also the duty of such parties to look out for persons on or near the track at public places and other points where people may be expected, in order to prevent collisions with their train; -but it is not their duty to keep a lookout for-teams near the track', to discover perilous-situations caused by fright alone. Hargis v. Ry. Co., 75 Tex. 19, 12 S. W. 953; Texas-Central Ry. Co. v. (Boesch, 103 Tex. 256, 126 S. W. 8; G., H. & S. A. Ry. Co. v. Graham, 40 Tex. Civ. App. 98, 101 S. W. 846; McMillan v. Freeman, 138 S. W. 626. The above authorities state the law so clearly that it is unnecessary to add more.

We are further of the opinion that, unless the testimony in this case is strengthened upon another trial, the court should direct a verdict for the appellant. The judgment, however, will be reversed, and the cause remanded for another trial.
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