author: CONNER, C. J.

text:
    RULE COTTON OIL CO. v. RUSSELL.
    (No. 8501.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 13, 1917.
    Rehearing Denied Feb. 10, 1917.)
    1. Trial <&wkey;252(ll) — Action for Injury to Servant— Instruction — Sufficiency of Evidence.
    Evidence held sufficient to justify an instruction in an action for injury to servant caused by other ears colliding with the car in which plaintiff was working, that the cars were not coupled together, and that it was the employer’s duty to keep them coupled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(ll).]
    2. Master and Servant &wkey;>278(18) — Action for Injury to Servant — Verdict Supported by Evidence.
    In an action for injury to employe resulting from employer’s negligence in not setting brakes on freight cars and coupling them together, evidence held sufficient to sustain a verdict for the plaintiff.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 969, 971; Dec. Dig. <&wkey;> 278(18).]
    3. Master and Servant <&wkey;lll(l) — Master's Duty — Railroad Cars.
    Where plaintiff was employed by defendant to unload freight cars, it was the employer’s duty to use all reasonable precautions to keep other cars from rolling down a grade siding and colliding with the car in which plaintiff worked.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215, 255; Dec. Dig. <&wkey; HKD-]
    4. Master and Servant <©=286(32) — Injury to Servant — Master’s Negligence — Question for Jury.
    Where the evidence showed that if the employer had coupled coal cars together they would not have collided with the car in which plaintiff worked, and injured him, the question of whether the employer was negligent in not doing so was for the jury.
    [E'd. Note. — For other cases, see Master and Servant, Dee. Dig. <©=286(32).]
    5. Master and Servant <&wkey;90 — Dangerous Occupation — Duty of Master.
    Where an employe is engaged in a dangerous service, it is the master’s duty to use all reasonable and necessary means to protect him against any danger which might reasonably be expected to arise from extraneous causes, and the greater the peril to the servant, the greater the degree of care exacted of the master.
    [Ed. Note — For other cases, see Master and Servant, Cent. Dig. § 139; Dec. Dig. <5&wkey;90.]
    Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.
    Action by J. W. Russell against the Rule Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, W. R. Chapman, of Anson, and Chas. E. Coombes, of Stamford, for appellant. W. H. Murchison and Clyde F. Elkins, both of Haskell, and David B. Trammell and Theodore Mack, of Ft. Worth, for appellee.
   CONNER, C. J.

As the case went to trial this suit was one by the appellee Russell against appellant, the Rule Cotton Oil Company, to recover damages resulting from personal injuries. As alleged and substantially shown by the evidence, appellee, as one of appellant’s workmen, was engaged in unloading cotton seed out of a car that had been spotted on a switch track leading to appellant’s cotton oil plant. The switch track extended in the general direction of north and south. The track connected with the main line of the Kansas City Mexico & Orient Railway some 400 or 500 feet south of the car in which the plaintiff was at work, and to the latter point there was a distinct down grade. On the occasion in question, the railway company was engaged in switching one or more cars loaded with cotton seed which were “kicked in” on the switch track from the south end. Some distance to the north two loaded coal cars were standing on the switch track; yet farther north were one or more other cars which were also spotted on the switch track between the coal cars and the car in which the plaintiff was at work. When the two cars of cotton seed were kicked in on the switch track at its south end, they progressed until they came in contact with the two coal cars mentioned. The cars loaded with cotton seed coupled to the first coal car, and these cars rolled but a short distance and stopped. The coal ear farthest to the north, however, continued to roll, and, gathering momentum, struck the other cars that had been spotted on the switch track north of the coal cars and south of the car in which the plaintiff was at work, and all then proceeded north with sufficient momentum to break some of the couplings, and struck the car in which plaintiff was at work, threw him out, and injured him.

The plaintiff alleged negligence on the part of the cotton oil company in a failure to warn him of the danger involved in the switching, and in a failure to have the brakes on the two coal cars properly set, and to have these two cars coupled together. The defendant replied by a general denial and a general plea of assumed risk, but the trial upon the issues indicated resulted in a final judgment for the plaintiff in the sum of $7,500.

Appellant presents but two assignments of error. The first reads as follows:

“The court erred in the main charge to the jury as one of the grounds of recovery against this defendant that they might find against this defendant in case they found that the defendant negligently failed to couple the cars on the siding, there being no evidence to justify said charge and there being no evidence to show that it was the duty of the defendant to keep the cars coupled.” '

The sufficiency of the evidence to authorize the conclusion that the coal car farthest north was not coupled to the one just south can hardly be disputed. To illustrate: The brakeman who did the switching when the cars loaded with seed were kicked in on the switch track testified, among other things, that:

“There were some three or four ears between the one we coupled into and the one in front of the seed conveyor. There were two coal cars and one or two box cars between me and the seed conveyor. We coupled into the coal car, and it stopped, and the cars I was on stopped. Of course if the other coal car had been coupled into the one we coupled into it would have held it, and it would have stopped also. That coal car went on down south, some 90 feet, I guess, before it hit the box cars. As to whether it gained in speed, will say it was running down grade.”

Indeed, it is assumed in appellant’s proposition under the assignment that this coal car was not coupled, and while it seems no witness testified that it was the specific duty of the appellant company to couple ears, it was undoubtedly its duty to exercise at least ordinary care to provide the plaintiff with a safe place to work, and to that end to do all things that a reasonably prudent and careful person would do to accomplish the result. The evidence shows that the switch track was intended for the exclusive use of the oil mill company; that as cotton seed, coal, and other material needed by the oil company was shipped in over the railway, the cars into which such material was loaded were placed by the railway company upon the switch track described, and spotted at such places as the employés of the oil mill company indicated. A Mr. MeElreath was appellant’s superintendent, and the testimony shows that it was his duty to “keep the mill up in first-class shape to get the best results, load and unload cars, or have it done; in fact, to look after everything that came up to keep the mill in operation,” and “to see and know about 'the placing of cars on our switch track there.” Mr. MeElreath testified, among other things, that:

“It was the custom of the oil mill to always set the brakes on the cars we were loading or unloading. * * * Sometimes on the north end of the track we leave loaded and unloaded cars without setting the brakes. We did not do that on the south end. It was not only our custom, but our duty, to set the brakes and see that they were set.”

This witness further testified that on the occasion in question he knew that the company had some loaded cars of seed at the station and knew that the next thing to do with th'e cars would be to drop them in on the switch. He said:

“I did not know whether they would put them in there or not. They usually did. I knew that following the usual custom they would drop the cars in there that day. * * * I knew at that time that this deaf and dumb employé [the plaintiff] was at work unloading seed. I knew that he was depending on me to give him warning in the event of any danger of anything. I believe there were two coal cars on the siding | that -morning. The end of the last coal car south was about even or opposite the north end of the hullhouse. It was about ISO yards from the south end of the switch to the south end of the hullhouse. * * * These two ears were standing together. I think they were coupled together, but I am not certain. * * * Those cars in between the coal cars and the car Russell was in were not coupled together. It set one of the coal cars in motion and two other cars in motion, and set the car Russell was in in motion, and went on some distance north with sufficient force and speed to partially knock the trucks from under another car. * * * I would guess it was about 120 feet or something like that from the north end of the last coal car down, to the south end of the one Russell was working in. * * * During the time that Mr. Russell worked under my management he never did have anything to do with the setting of brakes on the cars. The only way» he could have known whether the ears were coupled together or the brakes set would be to be out and look at them. That wasn’t any part of his duty.”

Without quoting further from the evidence, we think it will be sufficient to say that it has been carefully examined, and as presented to ns we think it fully sufficient to support the verdict of the jury upon all of the issues of negligence presented in the plaintiff’s petition. It was the duty of appellant, in the operation of its grade switches, down which cars would roll by force of gravity and collide with the car in which the plaintiff was at work, to use all reasonable precautions to secure such ears against starting or against escaping from control. There is clear evidence to the effect that if appellant had adopted the precaution of having the coal cars coupled together the accident would not have happened, and we think it was for the jury to say whether appellant w.as negligent in not having adopted this among other precautions. As said in the case of Missouri Pacific Railway Co. v. Watts, 63 Tex. 549:

“Where the employé is engaged in a dangerous service, it is the duty of the master to use all reasonable and necessary means to protect him against any superadded danger that might be reasonably expected to arise from extrinsic causes. In such eases the greater the peril to the servant on account of the nature of the service, so also the greater the degree of care and prudence exacted of the master in protecting him against an increase of the danger arising from extrinsic causes.”

In the case of Continental Trust Co. v. Toledo, St. Louis & K. C. Railway Company, 87 Fed. 133, 32 C. C. A. 44, the Circuit Court of Appeals for the Seventh Circuit said:

“The master’s duty is to exercise ordinary and reasonable care to furnish a reasonably safe working place for his employé, having regard to the danger of the service and the peril to which the employé will be exposed from the failure to exercise such care. From the brief review of the facts which we have given, we feel no doubt that the master failed in the performance of his duty. The grade of the coal track rendered it a dangerous location on which to place 15 or 16 heavily loaded cars without any means of preventing their escape onto the main track, except by the setting up of the brake on the car nearest thereto. The appellant, even if a derail switch or blocks were not necessary, might and ought to have secured the cars by having the brakes set up on each of them. Instead of that, the rule of the appellant only required the brakes to be set up on the one car nearest to the main track. He knew the character of the grade on the coal track, and the danger of cars escaping therefrom onto the main track, and, with this knowledge, he failed to exercise proper care to guard against it.”

See, also, G., H. & S. A. Ry. Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622 (writ denied 94 Tex. 705, 59 S. W. xv); Wellington v. Pelletier, 173 Fed. 908, 97 C. C. A. 458, 26 L. R. A. (N. S.) 719; Continental Trust Co. v. Toledo, St. L. & K. C. Ry. Co., 87 Fed. 133, 32 C. C. A. 44; Casey v. Kelly-Atkinson Construction Company, 240 Ill. 416, 88 N. E. 982; Moyse v. Northern Pac. Ry. Co., 41 Mont. 272, 108 Pac. 1062; Jones v. Kansas City, F. S. & M. R. R. Co., 178 Mo. 528, 77 S. W. 890, 101 Am. St. Rep. 434; Koerner v. St. Louis Car Company, 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; International & G. N. Ry. Co. v. Walters (Sup.) 179 S. W. 854; 3 Labatt’s Master & Servant, § 1111, pp. 2924-2926; Id. § 1110, pp. 2921, 2922; Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696; Texas Brokerage Co. v. John Barkley & Co., 49 Tex. Civ. App. 632, 109 S. W. 1001; Scott v. Texas Central R. Co., 60 Tex. Civ. App. 281, 127 S. W. 849; Cone v. Belcher, 57 Tex. Civ. App. 493, 124 S. W. 149; Citizens’ Ry. Co. v. Griffin, 49 Tex. Civ. App. 569, 109 S. W. 999.

Appellant’s remaining assignment urges error in the action of the court in refusing to give a peremptory instruction in its favor on the ground that there was “no sufficient evidence of negligence on the part of .the defendant to authorize the case to be submitted to the jury.” We think what we have already said is sufficient to dispose of this assignment.

Both assignments of error are, accordingly, overruled, and the judgment is affirmed.
      <£=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONLEY, C. J. DAVIS, J.

license: Public Domain

text:
    HOUSTON, E. & W. T. RY. CO. v. BRACKIN et al.
    (No. 136.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 4, 1916.
    On Motion for Rehearing, Jan. 31, 1917.)
    1. Carriers «&wkey;122 — Carriage of Goods— Duty to Minimize Loss.
    The consignee of goods damaged in transit must receive them if they are not wholly worthless, and handle them as best he can to minimize the damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 537, 538, 557-559; Dec. Dig. &wkey; 122.]
    2. CARRIERS &wkey;>133 — Carriage of Goods — Actions — Evidence.
    In suit by consignee against a carrier for damages to goods alleged to have been caused by the carrier’s negligence, it is proper to allow the consignee to show what efforts he made to minimize the damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. &wkey;>133.]
    3. Carriers <&wkey;133 — Carriage of Goods — Actions — Evidence.
    In action by consignee for damages to goods in transit,_ it was not error to admit testimony that he tried to sell the goods, but certain firms refused to make an offer on them, where the consignee specifically stated that such evidence was to show consignee’s efforts to minimize damages and not to establish value of the shipment or its lack of value.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dee. Dig. &wkey;133.]
    4. Evidence <&wkey;536 — Opinion Evidence— Experts — Qualification — Damages to Sweet Potatoes.
    In action by consignee for damages to sweet potatoes shipped, such consignee, having been a farmer raising and handling sweet potatoes for 20 years or more, was qualified to testify as to the value for eating purposes of sweet potatoes after going through a heat.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347; Dec. Dig. &wkey; 536.]
    5. Appeal and Error <&wkey;1052(8) — Harmless Error.
    In such action, even if testimony that the potatoes had no value for eating purposes was objectionable, it was not prejudicial, in view of testimony of other witnesses that the potatoes had no market value for any purpose.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4177; Dec. Dig. <&wkey;>1052 (8).]
    6. Evidence &wkey;>543(4) — Opinion Evidence— Experts — Qualification—Market Value.
    In such action, testimony of consignee that the potatoes did not have any market value when received was not open to objection that he did not know anything about the market value of damaged potatoes at such place, where it appeared that he was a farmer and had been in the business of raising and shipping potatoes for 20 years or more.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2358; Dec. Dig. <⅜^543(4).]
    7. Carriers t&wkey;135 — Carriers of Goods— Measure of Damages.
    The measure of damages for negligent injury to goods shipped is the difference between the market value of the injured goods at the destination and what they would' have brought in the market at the destination in the condition they would have been in had the carrier not been negligent; the freight, if not prepaid, being deductible from such amount.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 600, 602; Dec. Dig. <S&wkey;135.]
    8. Trial <&wkey;>357 — Special Finding — Responsiveness to Evidence Admitted for Special Purpose.
    In action for damages to goods shipped, evidence that the carrier sold the goods after being advertised for $145 did not conflict with an answer of the jury to special issue that the goods, when tendered to the consignee, had no market value, where evidence of such sale was offered for the limited purpose of showing that the carrier had complied with its statutory duty to advertise and sell goods refused by the consignee.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 855; Dec. Dig. <&wkey;357.]
    On Motion for Rehearing.
    9. Evidence <&wkey;317(10) — Hearsay— Conversations with Third Persons.
    In an action against carrier for loss of a contract for the sale of goods due to their being delivered in a damaged condition, it was improper to permit plaintiff to reproduce state-mentsmade to Mm by the prospective purchaser regarding the damaged condition of the goods, or conversations other than those essential to show the consummation of the contract of sale and the purchaser’s rejection of the goods after delivery at destination.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1183; Dec. Dig. &wkey;317(10).]
    10. Appeal and Error <&wkey;1052(8) — -Harmless Errob — Admission op Evidence.
    In such action, error in admitting testimony of statements of prospective buyer regarding the damaged condition of the goods was not reversible, where the testimony in the case overwhelmingly showed negligence of the carrier, causing great damage to the sMpment, and that the consignee did everything a reasonably prudent person would have done to dispose of the consignment and save what damage he could.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4177; Dec. Dig. &wkey;1052 (8).]
    11. Costs <&wkey;234 — On Appeal — Reformation op Judgment.
    Where the judgment was reformed and affirmed and appellees recovered a less amount than in the lower court, costs were adjudged against appellees.
    [Ed. Note — For other eases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. &wkey;234.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by J. D. Brackin and others against the Houston, East & West Texas Railway Company and another. From judgment for plaintiffs, the named defendant appeals.
    Affirmed.
    See, also, 180 S. W. 285.
    Hightower, Orgain & Butler, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. V. A. Collins, of Beaumont, and W. S. Parker and A. D. Bevil, both of Kountze, for appellees.
   CONLEY, C. J.

This suit was filed in the county court of Hardin county, Tex., by plaintiffs (appellees) against the Gulf, Colorado & Santa Fé and Houston, East & West Texas Railway Companies, seeking to recover the sum of $305.06, alleged damages to a shipment of sweet potatoes shipped from Honey Island, Tex., on the 14th of October, A. D. 1913, to Houston, Tex., but on account of the alleged delay in the movement of said car and the failure of the defendants to keep the vents of said car open, said potatoes were caused to be heated, and decayed and spoiled, and became worthless to appellees, to their damage in the sum of $305.06. Defendants answered by general demurrer and general denial, and specially answering that, when the defendant, Houston, East & West Texas Railway Company, received said car of potatoes it forwarded it in a reasonably expeditious manner, and upon the first available train, and when same reached Houston, the defendant notified the consignee, but that the consignee refused to accept said potatoes, although they were at said time in a good state of preservation, or at least were not totally destroyed, many of said potatoes being sound, and had such potatoes been accepted by consignee, said shipment would have been handled in a profitable way, but after said car was refused by the consignee, the defendant advertised for sale the contents of same, for the time, and in the manner provided by law, and sold same and applied the proceeds thereof to the payment of the freight and the expenses of the sale. At a former trial of the case, there was a judgment in favor of the Gulf, Colorado & Santa Fé Railway Company, and against the appellee, and in favor of the ap-pellees against the appellant, Houston, East & West Texas Railway Company, but on appeal the cause was reversed as to the Houston, East & West Texas Railway Company, and sent back to the lower court for a new trial. 180 S. W. 285. On November 23, 1915, on a trial before a jury, a verdict was again returned against the appellant, Houston, East & West Texas Railway Company, on special issues, and the court thereafter entered a judgment in favor of the appellees and against the appellant for the sum of $305.06. Thereafter, in due time, an appeal was perfected from said judgment to this court.

Appellant’s first assignment of error is as follows:

“The court erred in permitting the witness J. D. Brackin to testify, over the defendant’s objection, that Ziegler, of Houston, Tex., stated to the witness that the car of potatoes was worthless, the objection of appellant being that said statement made by Ziegler was a conclusion, and the statement of one not shown to be qualified to know, and also because it was hearsay.”

The record affecting the introduction of this .evidence reflects the following light: While Mr. Brackin, one of the appellees, was testifying, his counsel propounded to him the following question:

“Q. I will ask you, Mr. Brackin, if you attempted to do anything with the potatoes after you found them in that condition, and, if so, what?”

Appellant’s counsel urged the ob jection that such evidence was immaterial and irrelevant. Appellees’ counsel, answering the objection, stated to the court that the evidence was introduced for the purpose of showing that the appellees had complied with the duty, incumbent upon them by law, to show that they exercised reasonable diligence to minimize the loss resulting from the negligence of the appellant, and that the evidence was introduced to show that they tried to sell the potatoes; that Mr. Ziegler was the man they had contracted with to take the potatoes, but that the condition was such that he declined to take them. It appears to us that the answer of the witness to this question was simply an explanation as to why the party to whom the potatoes were shipped, and who had contracted to buy them, would not take them. Under the explanation of the evidence offered by appellees’ counsel, the question was neither asked, nor was the answer given, to prove that the potatoes had no value, but, as explained by appellees’ counsel, it was offered to meet the burden the law put upon the appellees to dispose of the shipment of potatoes, if possible, to minimize the loss. We think the evidence was admissible for the purpose for which it was offered. Even if it should be conceded that this evidence came within the hearsay rule, still there is other and ample evidence in the record from which the jury could have based the finding that the potatoes were worthless, and this, on statements other than this made by Mr. Ziegler. Under such circumstances, the error, if any, would be harmless. Lord v. Inc. Co., 27 Tex. Civ. App. 139, 65 S. W. 699; Railway Co. v. Russell, 40 Tex. Civ. App. 114, 88 S. W. 379; Railway Co. v. Baker, 35 Tex. Civ. App. 542, 81 S. W. 67; Railway Co. v. Baumgarten, 31 Tex. Civ. App. 253, 72 S. W. 78. The first assignment of error, is, therefore, overruled. The second assignment of error is as follows:

“The court erred to the prejudice of the appellant in permitting the witness J. D. Brackin to testify that he went to see the firms of Desel & Boettcher and Hencke & Pillot, and tried to sell them said ear of potatoes, telling them what the condition of the potatoes was, and that said firms refused to make any offer upon said car, but stated that they couldn’t handle them, said testimony being admitted over the objection of defendant, timely made, said objection being that said evidence was immaterial and irrelevant to any issue in the case, and that said facts do not, in any way, tend to show the market value of said potatoes at the time they were tendered the consignee.”

Under this assignment it is contended that the fact that the above produce dealers refused to buy the shipment, they not having examined the potatoes, is immaterial and irrelevant, and does not tend to establish that the potatoes had not market value. The law places upon the consignee of goods damaged in transit the burden of receiving them if they are not wholly worthless, and handling them as best he can to minimize the damage; and, in a suit by a consignee against a carrier for damages to goods alleged to have been caused by the negligence of the carrier, it is entirely proper to allow the consignee to show what efforts he made to minimize the damage. In the introduction of this evidence, it was specifically stated to the court that that was the object and purpose of such evidence, and that it was not introduced for the purpose of establishing value of the shipment, or its lack of value. Counsel for appellant did not ask for any special charge of the court limiting the effect of this evidence. We think it was admissible for the purpose for which it was introduced. Appellant’s second assignment of error is therefore overruled.

The third assignment of error is as follows:

“The court erred to the prejudice of this defendant in permitting the witness J. D. Brackin to testify, over the objection of the defendant, as to whether or not, after the potatoes go through a heat, they are of any value in the market for eating purposes, said objection being because that is not the test in fixing the market value, and, further, because the witness was not qualified, the answer of witness being, ‘Well, it is of no value for eating purposes, because it is only a matter of a few hours, something like 36 hours, until they are in a rotten state, beginning to rot, you know. Of course, you know you can cut a chunk of that rot off, and yet you can taste it in the potatoes if you attempt to eat it.’ ”

There is no merit in this assignment of error, in so far as it is based on the proposition of the witness not being qualified. The evidence shows that he has been a farmer, raising and handling sweet potatoes for 20 years or more. Of course, the general market value of the potatoes is the real test in proving the measure of damages, but if you take, from the potatoes their value as a human food, you have affected certainly the market value. It is not to be inferred from this answer of the witness that the potatoes would not have a market value as food for stock. However, this witness, further on in his testimony, as well as other witnesses, testified that the potatoes had no market value for any purpose. Even if this evidence was objectionable, we do not think it was prejudicial. This assignment of error is therefore overruled.

The fourth assignment of error is as follows:

“The court erred to the prejudice of defendant in permitting the witness J. D. Brackin to testify, over the objection of defendant, as to whether or not said car of potatoes was of any market value at the time the witness opened the car at Houston, Tex., the objection being made that the witness should state what condition the potatoes were in, and, said objection being overruled, the witness permitted to state that said potatoes did not have any market value at said time, and, further, because it appears from the witness’ testimony that he did not know anything about the market value of damaged potatoes in Houston.”

The witness in this case described in detail the condition of the potatoes when he opened the car. He also gave the basis for his knowledge as to the market value of the potatoes. The evidence is uncontradieted that he is a farmer, and has been in the business of raising and shipping potatoes for 20 years or more. There is no merit in this assignment, and it is overruled.

The fifth assignment of error is as follows:

“The court erred to the prejudice of the %e-fendant in failing and refusing to give to the jury, after having refused special charge No. 1, defendant’s special charge No. 2, to the effect that the plaintiffs were entitled to recover of the defendant the sum of $94, and no more, and to return a verdict in favor of plaintiffs for that amount.”

The court correctly refused appellant’s charge No. 2, as the measure of damages in a suit of this nature is the difference between the market value of the goods injured by the negligence of the carrier, at the destination, and what they" would have brought in the market at the place of destination in the condition they would have been in had the company not been guilty of negligence in transporting them; and, if the freight has not been prepaid, it, of course, should be deducted from such amount. Railway Co. v. Fagan, 72 Tex. 132, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776; Railway Co. v. Jarrell, 38 Tex. Civ. App. 425, 86 S. W. 632; Railway Co. v. Ball, 80 Tex. 602, 16 S. W. 441. There is no merit in this assignment, and it is overruled.

Appellant’s sixth assignment of error is as follows:

“The court erred to the prejudice of the defendant in submitting to the jury special question No. 3, as shown by its main charge, for the reasons set forth in its written exception and objections filed to said charge.”

Under special issue No. 3, the court asked the jury the following question:

“What was the reasonable market value of said potatoes at Houston, the point of destination, at the time said potatoes should have reached Houston by due course of shipment?”

—to which the jury answered “70 cents per bushel.” This charge submitted the correct measure of appellees’ damages. The only error the court made in the matter was in not deducting the undisputed amount of the transportation charge from Honey Island to Houston, which will be discussed in a subsequent assignment. This assignment is therefore overruled.

Appellant’s seventh assignment of error is as follows:

“That the answer of the jury to special issue No. 7 is without adequate evidence to support the same, and is against the great preponderance of the evidence, and the evidence is insufficient to support the same, in that the jury answered said question No. 7, to the effect that at the time said car of potatoes reached Houston, and it was tendered to consignee, said shipment had- no market value, when the evidence, without contradiction, shows that five or six days after said shipment was refused by the plaintiff, it was sold at public outcry, after being advertised, as provided by law, for the sum of $145, said sale being made to Ed Blackburn, a potato dealer in Houston, Tex., after said Blackburn and others liad examined said car before bidding thereon, and there was no legal evidence to contradict same, and plaintiff’s evidence showing that the shipment was only from one-third to two-thirds bad.”

Several witnesses for appellees testified that said potatoes had no market value. Therefore the contention that such potatoes had no market value, as being wholly unsupported by the evidence, is not well founded. When the appellant sought to show that it sold the potatoes, after being advertised, for $145, objection was made by counsel for ap-pellees to such evidence as not being the proper way to prove the market value of the potatoes, whereupon counsel for appellant made the following statement to the court:

“I offer it for the purpose of showing what we received for this car of potatoes. The statutes show that when any shipment is refused by the consignee, then it becomes the duty to advertise that for sale for five days, and sell to the highest bidder for cash, and to pay the expenses of sale, plus the freight out of it, and hold the balance for the consignee.”

Counsel for appellees thereupon advised the court that they would admit that the appellant company had complied with the statute in the matter of disposing of said potatoes after they had been refused, but still insisted that such evidence did not prove that the potatoes had any market value. The court then admitted the evidence, with the remark, “I do not think it is offered for that purpose;” that is, to prove market value. The evidence was therefore offered and admitted for the limited purpose of showing that the railway company had complied with the statutes in such matters, and not for the purpose of showing that the potatoes had any market value. So far as the record is concerned, the evidence of ap-pellees that the potatoes had no market value at Houston, their destination, at the time they reached there, is uncontradicted. This assignment is therefore overruled. The eighth assignment of error is as follows:

“The judgment as rendered by the court is excessive in the sum of $38.35, in that it is shown by the undisputed evidence that the freight on said car amounted to $38.35, and that said freight had not been paid. That there were, under the evidence, 435 or 436 bushels of potatoes, worth at Houston, as found by the jury, the sum of 70 cents per bushel.”

This assignment is well taken. In a suit to recover damages to a shipment of potatoes, where the evidence shows that the freight had not been paid, the carrier is entitled to have the amount of the freight deducted from the market value of the shipment at destination, and a judgment, allowing a recovery for the whole value of the shipment at its destination, without deducting the freight, is excessive to the extent of the amount of the freight. It would appear in this case that the total amount of freight was $38.35, and that the court, therefore, should have deducted this amount from $305.-06. The judgment will therefore be reformed in this respect.

Finding no prejudicial error in the trial of this cause, said judgment is therefore reformed, as hereinbefore stated, and affirmed.

On Motion for Rehearing.

DAVIS, J.

On consideration of appellant’s motion for rehearing, we are of opinion that the court was in error, in holding that the trial court did not err in permitting the witness J. D. Brackin to testify over objection, that Ziegler stated to the witness, “The ear of potatoes was worthless.” The rule is, as laid down in the case of G., C. & S. F. v. Coulter, 139 S. W. 16:

“In an action against the carrier for loss of a contract for the sale of goods due to their being delivered in a damaged condition, it was improper to permit plaintiff to reproduce statements made to him by the prospective purchaser regarding the damaged condition of the goods, or conversations other than those essential to show the consummation of the contract of sale and the purchaser’s rejection of the goods after delivery at destination.”

But, in view of the fact that the testimony in this case overwhelmingly shows negligence on the part of appellant, and that the shipment was greatly damaged because of the negligence of the appellant, and that the appellee did that which a reasonably prudent person would have done, in order to dispose of the consignment, to save what damage he could, we are of opinion that, while this testimony was not admissible, it was not of that material nature as to require a reversal of the case.

In the opinion rendered in this case no disposition was made of the costs of this appeal, although the judgment of the lower court was reformed and affirmed, and the ap-pellees recovered a less amount than in the lower court; and the cost of this appeal is adjudged against the appellees.

Appellant’s motion for rehearing is refused.

HIGHTOWER, Jr., O. J., being recused, did not sit.
      tte»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®u»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. FRAZIER.
    (No. 8474.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 9, 1916.
    Rehearing Denied Jan. 20, 1917.)
    1. Carriers <&wkey;20(3) — Regulation—Discrimination--Construction oe Penal Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6670, 6671, 6677, defining unjust discrimination by railroads in respect to special rates, rebates, drawbacks, etc., and declaring it an unjust discrimination for any railroad to make or give any undue or unreasonable preference or advantage to any particular person, under penalty recoverable by action, are to be strictly ' construed, and any doubt resolved in favor of the railroad.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 33; Dec. Dig. <&wkey;20(3).]
    2. Penalties <&wkey;>3 — Statutory Penalty — Recovery.
    To recover a statutory penalty, plaintiff must bring his ease strictly within the terms of the statute.
    [Ed. Note. — For other cases^ see Penalties, Cent. Dig. § 3; Dec. Dig. <&wkey;3.]
    3. Carriers <&wkey;20(3) — “Unjust Discrimination” — Construction of Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6670, subd. 1, denouncing any undue or unreasonable preference or advantage to any particular person in respect to railroad’s services as an unjust discrimination, without defining what constitutes such preference or advantage, is merely declaratory of the common law, under which it is an “unjust discrimination” for a common carrier, in the words of the statute, “to make or give any undue or unreasonable preference or advantage to any particular person,” etc.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §. 33; Dec. Dig. <&wkey;>20(3).
    For other definitions, see Words and Phrases, Second Series, Unjust Discrimination.]
    4.Constitutional Daw 208(3) — Privileges and Immunities — Classification.
    Under Const. Tex. art. 1, § 3, providing that all freemen, when they form a social compact, have equal rights, and that no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services, and Const. U. S. Amend. 14, forbidding any state to make or enforce any law abridging the privileges or immunities of citizens of the United States, legislation may be enacted granting certain rights and privileges to one class of individuals to the exclusion of another class, providing such classification is reasonable.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 650; Dec. Dig. ⅞=>208
    5. Carriers &wkey;>20(3) — Unjust Discrimination — Tickets and Fares — Statutory Penalty.
    In an action under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6670, defining unjust discrimination by railroads for any service rendered, and subdivision 1, declaring it to be an unjust discrimination for any railroad to give any unreasonable preference or advantage to any particular person, under penalty recoverable by action, it appeared that plaintiff on Sunday afternoon purchased a ticket from W. over defendant’s road, and that, on account of damage to the tracks from heavy rains, defendant on its first train out on Monday afternoon detoured its through passengers from W. over other roads to Ft. Worth, without any additional charge, and upon exchange for their tickets over its road from W. to Ft. Worth, and on that and the next day refused plaintiff such transportation, but on the following day gave him the same transportation as it gave to its other through passengers coming into W. on that day, upon exchange of his ticket and without additional fare, though the regular fare would have been more. Held, that plaintiff’s circumstances were so dissimilar from those of defendant’s through passengers as to furnish a reasonable basis for the refusal to carry him on the two days when he was refused transportation, and that any discrimination was between through passengers and plaintiff and others purchasing tickets at the station, and hence that there was no unjust discrimination.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 33; Dec. Dig. <&wkey;20(3).]
    6. Carriers <&wkey;20(12) — Passengers—Unjust Discrimination — Question for Jury.
    Under such provisions, the question of an unjust discrimination is usually one of fact for the jury; yet, when the facts are undisputed, and lead to but one reasonable conclusion, it becomes a question of law for the court.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 49; Dee. Dig. &wkey;20(12).]
    7. Carriers <&wkey;20(3) — Passengers—Unjust Discrimination — Penalty.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6671, providing that, if any railroad shall permit any discrimination in respect to services rendered, it shall be guilty of unjust discrimination, and, in addition to resulting damages, subject to a penalty of not less than $125. a railroad which had twice refused plaintiff’s demand that he be carried by the route over other roads by which through passengers were detoured from station where he purchased his tiek-et, in view of the highly penal nature of the statute, was not entitled to recover the minimum penalty, where the company on the third day detoured him by that route on exchange for his ticket and without additional fare.
    [Ed. Note. — For other cases, see Carriers, Cent. I>ig. § S3; Dec. Dig. <&wkey;20(3).]
    8. Carriers &wkey;>20(3) — Unjtjst Discrimination — Delat—Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6370, subd. 1, declaring it to be an unjust discrimination, subject to penalty, for any railroad to make or give any unreasonable preference or advantage to any particular person, or to subject any traffic to any delay, etc., contemplates delays caused by unjust discrimination in favor of other patrons of the road, and not a negligent delay separate and apart from such discrimination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 33; Dee. Dig. &wkey;20(3).]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Suit by J. E. Frazier against the Ft. Worth & Denver City Railway Company. Judgment for actual damages and for a penalty, and the defendant appeals from the judgment imposing a penalty.
    Reversed and rendered in part, as to the judgment for a penalty, and undisturbed as to the judgment for damages.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. C. B. Felder, of Wichita Falls, for appellee.
   DUNKLIN, J.

At about 3 o’clock in the afternoon of June 6, 1915, which was Sunday, J. E. Frazier purchased from the station agent of the Ft. Worth & Denver City Railway Company at Wichita Falls a ticket over said railroad from Wichita Falls to Ft. Worth, Tex. At that time his residence was in Cooper, Tex.; but he had been visiting his daughter, Mrs. Archer Denny, and her family, who resided in Vernon, Tex., and on the day he purchased the ticket he had come from Vernon to Wichita Falls with his daughter and her husband in an automobile. When he purchased the ticket, he informed the ticket agent that he understood that his train was late, and that unless he could leave on that afternoon for Ft. Worth he would return to Vernon in the automobile in which he had journeyed to Wichita Falls. He was assured by the agent that the train, which was due in Wichita Falls at 3 o’clock p. m., would not be delayed more than two hours leaving there, and upon that assurance he bought the ticket, boarded the train, and aft-ter waiting until about 6 o’clock was informed by the railway officials that the train would not leave the station that afternoon, but would be delayed until the following morning. Upon receiving this information, he left the train and went to a hotel, where he remained until the following day. The train due to go out on the afternoon of the preceding day did not leave on Monday morning, as the agent had stated it would do.

On Monday afternoon, June 7th, when the next regular passenger train came .in headed south in the direction of Ft. Worth, the railway company detoured its through passengers, coming in on that train, over the Wichita Valley 'Railway to Abilene, and from Abilene to Ft. Worth over the Texas & Pacific Railway, transporting them by that route without any additional charges for fare, giving them tickets over the roads named in exchange for tickets already held by them over the Ft. Worth & Denver City Railway from Wichita Falls to Ft. Worth. Frazier demanded of the railway company a like exchange of tickets for himself. In other words, he demanded transportation to Ft. Worth by way of Abilene on the same terms as was given to the through passengers, but this demand was refused. At that time the agent offered to sell Frazier a ticket over the Wichita Valley Railway to Abilene, but demanded the regular fare of $4.50, telling him he could there buy a ticket from that station to Ft. Worth over the Texas & Pacific Railway, and agreed to take up the ticket already held by Frazier over the Ft. Worth & Denver City Railway in exchange for the ticket to Abilene and allow him a credit therefor of $3.40, the amount he had paid.'

On the afternoon of Tuesday, June 8th, when the regular south-bound passenger train came into Wichita Falls over the Ft. Worth & Denver City Railway, that company again detoured its through passengers to Ft. Worth by way of Abilene in like manner as was done on the previous day, and without any additional railroad fare from such passengers, and on that occasion Frazier again demanded transportation to Ft. Worth by the same route, without the payment of any fare additional to that which he had already paid for his ticket purchased on Sunday afternoon, June 6th, but this demand was also refused. But on Wednesday afternoon the Ft. Worth & Denver City Railway Company gave him tickets to Ft. Worth via Abilene, the same as was given other passengers coming into Wichita Falls on that date, and without charging him any additional fare; those tickets being given in exchange for the ticket he held already.

The price paid by Frazier for the ticket purchased over the Ft. Worth & Denver City Railway from Wichita Falls to Ft. Worth was $3.40, while the regular passenger rate from Wichita Falls over the Wichita Valley Railway to Abilene, and from Abilene to Ft. Worth over the Texas & Pacific Railway, was approximately $9. The failure of the Ft. Worth & Denver City Railway Company to run its trains from Wichita Falls to Ft. Worth on June 6th, 7th, 8th and 9th was caused by damage to its track following heavy rains.

The discrimination made against Frazier was also made against all other persons holding tickets purchased in Wichita Falls, but on Wednesday, June 9th, all such persons who so desired were also detoured to Ft. Worth via Abilene, without payment of extra fare. Some of the through passengers mentioned had bought tickets to Ft. Worth from the Ft. Worth & Denver City Railway Company at points in Texas west and northwest of Wichita Falls.

The foregoing facts were uncontroverted.

Frazier instituted this suit against the Ft. Worth & Denver City Railway Company to recover actual damages sustained by him by reason of the delay in his trip to Ft. Worth, so caused, and also for the statutory penalties for alleged unjust discrimination against him by the company, under and by virtue of articles 6670, 6671, and 6677, Vernon’s Sayles’ Texas Civil Statutes, and from a judgment in his favor on the verdict of the jury for $14 actual damages, and for a penalty of $125, the railway company has appealed.

Those portions of article 6670 of the Statutes which are material to the present controversy are as follows:

“If any railroad subject hereto, directly or indirectly, or by any special rate, rebate, drawback or other device, shall charge, demand, collect or receive from any person, firm or corporation a greater or less compensation for any service rendered or to be rendered by it than it charges, demands, collects or receives from any other person, firm or corporation for doing a like and contemporaneous service, such railroad shall be deemed guilty of unjust discrimination, which is hereby prohibited.
“1. It shall also be an unjust discrimination for any such railroad to make or give any undue ■or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or to subject any particular description of traflic to any undue or unreasonable prejudice, delay or disadvantage in any respect whatsoever. ⅜ * ⅜
“4. Any railroad company violating any provision of this article shall be deemed guilty of unjust discrimination, and shall for each offense pay to the state of Texas a penalty of not less than five hundred dollars nor more than five thousand dollars.”

Article 6671: •

“In case any railroad subject to this chapter shall do, cause to be done, or permit to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter or thing herein required to be done by it, such railroad shall be liable to the person or persons, firm or- corporation injured thereby for the damages sustained in consequence of such violation; and in case said railroad company shall be guilty of extortion or discrimination as by this chapter defined, then, in addition to such damages, such railroad shall pay to the person, firm or corporation injured thereby a penalty of not less than one hundred and twenty-five dollars nor more than five hundred dollars, to be recovered in any court of competent jurisdiction in any county into or through which such railroad may run: Provided, that such road may plead and prove as a defense to the action for said penalty that such overcharge was unintentionally and innocently made through a mistake of fact: Provided, that any recovery as herein provided shall in no- manner affect a recovery by the- state of a penalty provided for such violation.”
Article 6677:
“Any ⅜ * * provisions of this chapter which may be inconsistent or in conflict with the act of 1907, chapter 42, page 93, relating to free passes and free transportation of goods, etc., incorporated in and made a part of the Penal Code of the state of Texas, shall be void and inoperative, but to that extent only. And the provisions of the foregoing articles of this chapter shall not have the effect to release or waive any right of action by the state, or any person, for any right, penalty or forfeiture which may have arisen or may hereafter arise under any law of this state; and all penalties accruing under this chapter shall be cumulative of each other, and a suit for or recovery of one shall not be a bar to the recovery of any other penalty.”

In his petition, plaintiff alleged that, by reason of the facts recited above, there was an unjust discrimination against him on June 7th and June 8th, entitling him to a recovery of the prescribed statutory penalties in addition to the actual damages sustained by him. His allegations with reference to the discrimination on June 7th were as follows:

“Defendant failed and refused to detour plaintiff via Abilene, Tex., to his destination at Ft. Worth, Tex., and did fail and refuse to transport plaintiff over its own roads or tracks, but did detour and transport the said -, and other passengers, via Abilene, Tex., which persons and passengers, or some of them, were destined to Ft. Worth, Tex., and were fellow passengers similarly situated with plaintiff, and that such acts, conduct and refusal and omission constituted an unjust discrimination against the plaintiff, and subjected defendant to the penalties prescribed by law in the sum of five hundred dollars.”

Substantially the same allegations were made with reference to the unjust discrimination on June 8th. Plaintiff further claimed the statutory penalty for the demand by the railway agent on June 7th of the regular fare of $4.50 for transportation from Wichita Falls to Abilene, while other passengers were carried for fare in a smaller amount, and a further, penalty for the unreasonable delay caused by his failure to reach Ft. Worth sooner.

Among other defenses, the railway company pleaded, substantially, that the acts complained of in plaintiff’s petition did not constitute unjust discrimination under the statutes because of the fact that plaintiff was not similarly situated to other through passengers who were detoured by way of Abilene without extra charge for transportation; that those passengers, who had already started upon their journey from other points, would have been stranded in Wichita Falls if they had not been so detoured; that the defendant was under no legal obligation to transport the plaintiff to Ft. Worth by way of Abilene over the other two railroads upon the ticket already held by him; that the transportation of its passengers over the other two roads by way of Abilene was due to the destruction of the defendant’s track between AVichita Falls and Ft. Worth from unavoidable causes. Defendant further alleged that, if the statutes should authorize the recovery of the penalties claimed in plaintiff’s petition, then such penalties would be so unreasonable and extortionate as to render the statutes obnoxious to the constitutional provision prohibiting excessive fines and penalties.

At the outset it should be noted that the railway company makes no complaint of the judgment for the actual damages awarded, but complains only of the judgment for the penalty.

The court charged the jury, in part, as follows:

“(I) You are instructed that the law provides that it is an unjust discrimination for any railroad company to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality.
“(II) Now, if you find and believe from a preponderance of the evidence in this case that the plaintiff on June 6,1915, purchased from the defendant company a ticket to convey him from Wichita Falls, Tex., to Ft. Worth, Tex., and if you further find and believe from the evidence that the defendant company, its agents, servants, or employés, represented to plaintiff, before plaintiff purchased said ticket, that defendant company would run its said train to Ft. Worth, Tex., that evening, and if you further find and believe from the evidence that, on account of said floods, said train was not run to Ft. Worth that day, and if you further find and believe from the evidence that on the next day, June 7th, the defendant company carried its other passengers holding tickets to Ft. Worth, or that vicinity, over the Wichita Valley Railroad, and by way of Abilene, Tex., to Ft. Worth, and if you further find from the evidence that plaintiff requested of the defendant, its agents, servants, or employés, to detour him with its other passengers to Ft. Worth, by way of Abilene, and said defendant company refused so to do, and if you further find by reason of the facts hereinbefore mentioned that defendant company unjustly and unreasonably discriminated against the plaintiff in said matter, then you will find for the plaintiff a penalty of not less than $125 and not more than $500, and in addition thereto if you find for the plaintiff for said penalty then if you find and believe from the evidence that he was compelled to expend money for his board and lodging, after the time said train left for Abilene, and before plaintiff left, then you will find for him such sum, if any, as you may find he is entitled to under the evidence, provided you find the sum to be reasonable, not to exceed the sum of $4. And you may further find for him for loss of time, if any, such a sum as you may find that he is entitled to under the evidence, provided the charge therefor is reasonable, not to exceed the sum of $10.”

Thus it will be seen that the only issue submitted to the jury as a basis for the verdict for the penalty of $125 awarded was whether or not, on June 7th, in detouring its through passengers from Wichita Falls to Ft. Worth, Tex., by way of Abilene, over the other two railroads mentioned, without charging additional fare, and in refusing to accord to plaintiff the same privilege, the railway company gave “any undue or unreasonably preference or advantage to any particular person,” under the provisions of subdivision 1, article 6G70, of the statute.

H., E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225, was a suit to recover a statutory penalty for failing to furnish cars upon demand, and in that case our Supreme Court said:

“The statute imposes a heavy penalty, and it is an elementary rule that such statutes must be strictly construed. This does not imply that the courts are authorized to refuse to give effect to the intention of the Legislature, but it proceeds upon the theory that it is not reasonable to presume it is their intention to impose punishment, except in so far as that purpose is clearly manifested by the language employed in the statute. It results, as a corollary from this rule, that the penalty will not be awarded in a case which does not come strictly within the terms of the statute. Such is the established canon of construction in this court. Schloss v. Railway Co., 85 Tex. 601 [22 S. W. 1014], and cases there cited.”

And in G., C. & S. F. Ry. Co. v. Dwyer, 84 Tex. 200, 19 S. W. 470, the following was said:

“Every man is presumed to know the law, and it would seem that before any one should be punished, either in a criminal or a civil action, for an act claimed to be penal, the offense should be clearly defined, and that any grave doubt as to the intention of the Legislature should be resolved in favor of the defendant.”

In M. K. & T. Ry. Co. v. State, 100 Tex. 424, 100 S. W. 766, the following was said:

“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and that the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law. Suth. Stat. Constr. § 322; Potter’s Dwaris, 244.”

In Thompson v. M., K. & T. Ry. Co., 103 Tex. 378, 126 S. W. 259, 128 S. W. 109, the following quotation from Sedgwick on Statutory and Constitutional Law, referring to penal statutes, was cited with approval:

“The rule that statutes of this class are to be construed strictly is far from being a rigid or unbending one, or rather it has in modern times been so modified and explained away as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing, on the one hand, .to extend the punishment to cases which are not clearly embraced in them, and, on the other, equally refusing by any mere verbal nicety, forced construction or equitable interpretation, to exonerate parties plainly within their scope.”

It is also well settled that, in order to recover a statutory penalty, the plaintiff must bring his ease strictly within the terms of the statute.

Subdivision 1 of article 6670, quoted above, denounces “any undue or unreasonable preference or advantage to any particular person,” etc, as an unjust discrimination, but it does not define what would constitute such preference or advantage. That question is left to be determined by the general principles of the common law. Thus it will be seen that subdivision 1 is nothing more than declaratory of the common-law rule, for in the authorities unreasonable preferences or advantages and unreasonable discriminations are used interchangeably as having the same meaning.

In Hutchinson on Carriers, § 302, the author uses 'the following language:

“The same principles become important in determining what, if any, discrimination may lawfully be made by the carrier in the rate charged to different shippers. This is a question of great importance and one which has recently been much considered. The cases contain many statements which seem to be in conflict, yet, except where the consideration is influenced by local statutes, it is believed that all the eases are in substantial harmony in reference to the vital principles involved. At the foundation of the whole matter lies the common-law rule, just and well settled, that in each particular case there shall be charged a reasonable compensation and no more. In this, as in every other ease, the question of what is reasonable depends upon the circumstances of each particular case, and this ordinarily becomes a question of fact. A reasonable compensation in each case does not, however, necessarily mean absolute uniformity of rates in all cases. It simply requires that there shall be no unreasonable, and hence no unjust, discrimination. Mere inequality in charges does not, therefore, of itself, amount to an unjust discrimination. It only becomes such when a discrimination is made in the rates charged for transportation of the goods of the same class of different shippers under like circumstances and conditions. So a mere reduction from the established rate is not necessarily an unjust discrimination. But it becomes such when it is either intended or has a natural tendency to injure another shipper in his business and destroy his trade by giving to the favored shipper a practical monopoly of the business.”

See, also, the same author, sections 297, 298, 801. And the same rule is applicable to fares for passengers. Hutchinson on Carriers, § 567a.

In a note on pages 647, 648, of 11 Am. St. Rep., there is a collation of authorities which hold that if a common carrier charges one of its patrons for its services the tariffs fixed by statute, or, in the absence of such a statutory regulation, a reasonable rate, then he cannot complain of any unjust discrimination against him, even though a lower rate is given to other patrons under the same or similar circumstances and conditions. Some of those authorities are Johnson v. Pensacola, etc., Ry. Co., 16 Fla. 623, 26 Am. Rep. 731; Fitchbury Ry. Co. v. Gage, 12 Gray (Mass.) 393; Sargent v. Boston, etc., Ry. Co., 115 Mass. 416. But in the same note it is stated that, according to the more modern rule of interpretation, the carrier must not charge any of its patrons a higher rate than is charged otners similarly situated and under the same circumstances, even though the fees charged the former are not in excess of the reasonable value of such service, or more than the amount fixed by statute. Many authorities are cited in support of that statement, such as Chicago, etc., Ry. Co. v. People, 67 Ill. 11, 16 Am. Rep. 599, Indianapolis, etc., Ry. Co. v. Rinard, 46 Ind. 293, and McDuffee v. Portland, etc., Ry. Co., 52 N. H. 430, 13 Am. Rep. 72. A note substantially to the same effect, and with a like citation of authorities, is- contained in 60 Am. Dec. 149, 150.

In Scofield v. Railway Co., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846, the authorities holding to those two views of the common-law rule are reviewed quite extensively, and with reference thereto the following is said:

“In some of the cases it is announced that upon the question of whether the law requires a common carrier to transport goods upon equal terms to all, or whether it only requires that the rate shall be reasonable, but not necessarily equal to all, has been differently determined by the courts of England and America. Ragan v. Aiken, 9 Lea (Tenn.) 609, 42 Am. Rep. 684. But, be that as it may, the tendency and undoubted weight of authority is in favor of the doctrine that a common carrier is charged with a quasi public duty to transport merchandise on equal terms for all parties, where the carrying for some shippers at a lower price than for others will create monopoly by injuring or destroying the business of those less favored.”

The different authorities are also reviewed, and the same conclusion reached, in Interstate Commerce Commission v. B. & O. Railway Company, 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699.

The more modern interpretation of the common-law rule is also approved by Hutchinson on Carriers in section 302, copied above, and we believe such to be the correct interpretation. According to that interpretation, it is an unjust discrimination, under the common law, for a common carrier “to make or give any undue or unreasonable preference or advantage to any particular person,” etc., just the same as is forbidden by subdivision 1, article 6670, of the Statutes.

In the light of the foregoing conclusions, we shall now proceed to discuss the question whether or not the action of the railway company on June 8th in detouring its through passengers to Ft. Worth over the Wichita Valley Railway and the Texas & Pacific Railway, by way of Abilene, upon tickets held by such passengers, without charging any additional fare, and denying to plaintiff, Frazier, the same privilege, without paying any fare in addition to the $3.40 already paid by him for a ticket from Wichita Falls to Ft. Worth over the Ft. Worth & Denver City Railway, was an unjust discrimination against him within the meaning of subdivision 1 of article 6670, as found by the jury.

If the circumstances and conditions applicable to the situation occupied by Frazier were substantially similar to those occupied by the other passengers who had purchased their tickets at other points and had already traveled thereon to Wichita Falls, then the statute was violated, and the railway company became liable for the penalty prescribed ; but if those conditions were dissimilar in a material respect, and such difference furnished a reasonable basis for such action on the part of the railway company, then there was no infringement of the statute.

The first portion of article 6670, and subdivision 1, following the same, are very similar to sections 2 and 3 of the federal Interstate Commerce Act enacted February; 4, 1887 (see 24 Stat. 379), and which read as follows:

“Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.
“See. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”

The requirement of the federal act that the same charges should he made for a like and contemporaneous service “under substantially similar circumstances and conditions” was substantially the same as the duty imposed by the common-law rule. The federal courts have often discussed the meaning of those terms as applicable to facts of different cases, and as they are impliedly written into the provisions of article 6670 referred to above, such federal decisions are at least strongly persuasive in the present suit.

In Interstate Commerce Commission v. R. & O. Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699, it was held that a charge of a smaller rate by a railroad company for the transportation of ten or more persons on a party rate ticket than was charged a single individual for the same trip, although it created a clear inequality and discrimination, did not give to the former an undue or unreasonable preference, or subject the latter to an undue or unreasonable disadvantage, within the meaning of the Interstate Commerce Act quoted above, by reason of the fact that the different charges so made were not under substantially the same circumstances and conditions. And upon that issue the following was quoted with approval from the opinion of Judge Jackson in the court below:

“To come within the inhibition of said sections (2 and 3), the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons, or classes, between whom differences in charges are made, must be compared with each other¡ and there must be found to exist substantial identity _ of situation and of service, accompanied by irregularity and partiality resulting in undue advantage to one, or undue disadvantage to the other, in, order to constitute unjust discrimination.”

To the same effect is Interstate Commerce Commission v. Alabama, M. R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414.

In Gamble-Robinson Commission Co. v. C. & N. W. Ry. Co. (by the Circuit Court of Appeals), 168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Cas. 613, it was held that the discrimination made by the railway company between shippers over its road, in demanding prepayment of charges for freight from one and giving credit therefor to others, did not subject the plaintiff to undue or unreasonable prejudice or disadvantage, within the meaning of the Interstate Commerce Act. See the opinion in that case for other authorities substantially to the same effect.

In St. L., I. M. & S. Ry. v. State (by the Supreme Court of Arkansas), 112 Ark. 147, 165 S. W. 251, the Iron Mountain Railway, by building a spur direct to the Cotton Belt Railway and by giving the latter railway permission to use the spur, and in return therefor getting permission to use the Cotton Belt road, was enabled to eliminate switching charges to one mill which made shipments over the Iron Mountain. There was another mill connected by a spur track with the Cotton Belt, but as it was not included in the contract between the two roads, it was required to pay switching charges for shipments over the Iron Mountain. In that case it was held there was no discrimination between the two mills, since, under the facts, they were not similarly situated. See, also, H. & T. C. Ry. Co. v. Rust, 58 Tex. 98.

The statute prohibiting undue discrimination is not more positive or explicit in its terms than article 1, § 3, of our state Constitution, which provides that:

“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

Nor .the language of the Fourteenth Amendment of the federal Constitution, providing that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, -without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is a familiar rule that, notwithstanding the plain and explicit language of those constitutional provisions, legislation may.be enacted granting certain rights and .privileges to one class of individuals, to the exclusion of another class, provided such .separation into classes is reasonable; the theory of those decisions being that if the circumstances .and conditions of those excluded from the class are different, there is.no.discrimination against them. See '8 Cyc. 1051; Insurance Company v. Chowning, 86 Tex. 656, 26 S. W. 982, 24 L. R. A. 392.

In tlie present suit it will be noted that the railway company treated all of its through passengers alike, granting them the same privileges, thus placing them in a class separate and distinct from those who purchased tickets at Wichita Falls, whom it placed in a separate class, and made no distinction between them. The discrimination complained of was between those two classes. It was in favor of all the through passengers alike as one class, but not in favor of “any particular person,” within the meaning of subdivision 1 of article 6670, if it can be said that there was a reasonable basis for such a classification. And as the rules for statutory construction apply also in the construction of the constitutional provisions (8 Oyc. 729), it seems to us that the authorities upon the question of reasonable classification of subjects in legislation, which are held not to be inimical to the Constitution, are in point upon the question of whether or not the railway company unduly discriminated against the plaintiff in the present suit. Many of such authorities might be cited in which the reasons for the classification, which are upheld as valid, are not so cogent as the reasons which prompted the railway company in making the discrimination between its passengers buying tickets at Wichita Falls and its through passengers. Only a few of such authorities will be referred to. Nash Hardware Company v. Morris, 105 Tex. 217, 146 S. W. 874 (by our Supreme Court), in which it was held that the bulk sales law, which invalidates any sale of a stock of merchandise in its entirety, unless prior notice is given to the creditors, was not unconstitutional as class legislation, even though it should be held that it is restricted to retail dealers and does not apply to wholesale dealers, and even though it discriminated in favor of certain creditors, as contended in that case, since it applied alike to all merchants of that class.

In Supreme Lodge, U. B. A., v. Johnson, 98 Tex. 1, 81 S. W. 18, it was held that the exemption of the Order of Railway Conductors, the Order of Locomotive Engineers, ajad other such orders specifically mentioned, from the operation of an act of the Legislature regulating fraternal beneficiary associations, was not subject to the objection that it violated either the Constitution of the state or the federal Constitution, guaranteeing equal protection of the law to all citizens. See, also, St. L., S. F. & T. Ry. v. Taylor, 134 S. W. 819; Marchant v. Railway, 153 U. S. 389, 14 S. Ct. 894, 38 L. Ed. 751; 6 R. C. L. §§ 364, 369, 370, 372, 374, 416, 400.

The facts recited above show conclusively that the circumstances and conditions under which the through passengers over the defendant’s road were placed when they arrived at Wichita Falls were materially and substantially different from the situation of the plaintiff, who had not begun his trip, and that, therefore, it cannot be said that in detouring the through passengers to Ft. Worth by way of Abilene on June 7th, and refusing the same privilege to the plaintiff on that day, was an unjust discrimination within the meaning of that portion of subdivision 1, article 6670, which was submitted in the trial court’s charge. The through passengers had made contracts for transportation different from that which was made by the plaintiff, and paid prices different from what he paid, and a failure of the railway company to detour them necessarily would have left them stranded in Wichita Falls, unless they had seen fit to buy other tickets from the other roads over which they were detoured. Nor do we think that the fact that plaintiff had come from Vernon tc Wichita Falls from the home.of his daughter in an automobile, and had thus started his trip to Ft. Worth, could make any difference, since the railway company had nothing to do with that part of his trip.

While it is true that usually the question of an unjust discrimination is one of fact, to be passed upon by the jury, yet, when the facts are undisputed, as in the present suit, and as presented lead to but one reasonable conclusion, it becomes a question of law for the courts to decide without submitting it to the jury. ■ .

It follows that appellant’s first assignment, complaining that there is no evidence to support the verdict of the jury for the alleged unjust discrimination occurring on June 7th, in refusing to detour the plaintiff to Ft. Worth under the same terms as it detoured its through passengers, must be sustained, and that appellee’s first cross-assignment, in which he complains of the refusal of the court to give a peremptory instruction in his favor for a recovery of the statutory penalty for the same discrimination on June 8th as was made on June 7th, must be overruled.

Plaintiff also requested a peremptory instruction for a verdict in his favor for the statutory penalty for the demand made by the railway company on June 7th and June 8th for fare at the regular statutory rate of three cents a mile as a charge for detouring him to Ft. Worth by way of Abilene, the same being in excess of the amount he had already paid for his ticket from Wichita Falls to Ft. Worth over the Ft. Worth & Denver City Railway, while on those dates through passengers were being carried without any such extra charge. That requested instruction was refused by the court, and the plaintiff has not presented any cross-assignment of error to that ruling; but he insists that, as the evidence without controversy established the fact that such demand was made, he was entitled to recover at least the minimum penalty of $125 for that demand, and that by reason of that fact alone appellant’s assignments of error should be overruled.

While it is true that the railway company did, on June 7th and 8th, refuse to detour the plaintiff without the payment of fare additional to that which he had already paid for his ticket, yet it finally withdrew that refusal and detoured him to Ft. Worth on Wednesday, June 9th, without the payment of any extra fare. In the opinion of the majority, this of itself, independent of other conclusions stated by us in this opinion, furnishes a sufficient reason for overruling the contention now under discussion. The statute invoked is of a highly penal character, and it would be unreasonable to hold that the railway company, having once violated it, would be denied the privilege of making the proper amends and complying with it. If the contention of ap-pellee be sound, then it would follow that, even though the railway company withdrew the demand in ten minutes after it was made and had then detoured the plaintiff to Ft. Worth, as requested, without any delay, the penalty would still have been recoverable, and as many penalties as there were demands made during the same day. Plaintiff recovered actual damages for the delay, of which the railway company makes no complaint, and as it finally detoured plaintiff and carried him to Ft. Worth, he cannot recover the penalty for the demand made, which was afterwards withdrawn, and the service accepted.

It is further insisted, by way of reply to appellant’s assignments, that as the evidence showed without controversy that plaintiff was delayed in reaching Ft. Worth, and as there was no proof offered by the railway company to show that the washout of its tracks between Wichita Falls and Ft. Worth, which rendered it unable to run its trains over the track, was not due to any negligence on its part, and as the burden was on the defendant to make such proof, that a cause of action for unreasonable delay was made out in his favor, which, under subdivision 1, article 6670, entitled him to at least a minimum penalty of $125. In answer to that contention, it is sufficient to say that the delay contemplated by the statute is such as is caused by unjust discrimination in favor of other patrons of the road, and not a negligent delay separate and apart from such discrimination.

The foregoing conclusions render it unnecessary to decide the further question whether or not the statute giving a right to a penalty would apply in the present suit, in any event, in view of the fact that the railway company owed no statutory duty to detour its passengers over the other two railroads ; in other words, whether or not such a situation was reasonably within the contemplation of the Legislature in enacting that statute, even though it could be said that, having assumed to render the service to other passengers, it owed the duty at common law to render the same service to the plaintiff upon the same terms, and that it would be liable to him for actual damages for failure so to do. Upon that question, see Interstate Commerce Commission v. D. G. H. & M. Ry. Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306, Younts v. S. W. Tel. & Tel. Co. (C. C.) 192 Fed. 200, and authorities there cited.

For the reasons indicated above, the judgment of the trial court for the penalty of $125 is reversed, and judgment is here rendered in favor of appellant, denying plaintiff recovery of any of the penalties alleged in his petition; but the judgment in favor of plaintiff for $14 actual damages and costs of the suit in the court below, of which no complaint is made upon this appeal, is undisturbed.

Reversed and rendered in part; undisturbed in part.
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author: BUCK, J.

text:
    FT. WORTH & D. C. RY. CO. v. WELLS.
    (No. 8475.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 16, 1916.
    Rehearing Denied Jan. 27, 1917.)
    1. Appeal and Error <&wkey;569(2) — Record — Statement of Facts.
    An unsigned document, purporting to be the statement of .facts, included among the papers in the case, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2531, 2532, 2543; Dec. Dig. &wkey;569(2).]
    2. Carriers <&wkey;20(3) — Unjust Discrimination — Penalty—Construction of Statute.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 6670, subds. 1, 4, and article 6671, providing that any railroad guilty of unjust discrimination in respect to- services rendered shall be liable for resulting damages, and in addition to a penalty of not less than $125, defendant railroad, selling plaintiff a ticket at V. for transportation to and -through W. to H., which, on account of its tracks being washed away, could not run a train from W. to H., and which furnished through passengers transportation by a detoured route to Ft. Worth on exchange of their tickets and without additional fare, and •refused to carry plaintiff unless he paid the usual rate by that route, but which on the following day in exchange for his ticket transported him by that route and beyond to H. without additional fare, could not recover the penalty, where it was not shown that any passenger whose passage originated at so short ¾. distance as V. from W. was granted an exchange of tickets, when an exchange was refused to plaintiff or that any passenger destined to a point as near from W. as H. was granted such a privilege, or that any passenger receiving an exchange of tickets was granted transportation to so great a distance as was demanded by plaintiff by the detoured route to H.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 33; Dec. Dig. «&wkey;20(3)J
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by E. F. Wells against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff for the statutory penalty and for actual damages, and defendant appeals.
    Reversed and rendered as to the re-covéry oí the penalty, and otherwise undisturbed.
    Carrigan, Montgomery & Britain, of Wichita Pails, for appellant. O. B. Felder, of Wichita Falls, for appellee.
   BUCK, J.

This is a companion case to that of Ft. Worth & Denver City Railway Company v. Frazier, No. 8474, 191 S. W. 808, the opinion in which was handed down by this court December 9, 1916. No statement of facts is found in the record, though an unsigned document purporting to be the statement of facts is included ■■among the papers in this case, which, of course, we cannot consider.

The court’s findings of fact show that on June 6, 1915, the plaintiff purchased at Vernon, Tex., a ticket entitling him to transportation over the defendant’s line to Henrietta, Tex., for which he paid the usual and customary price, and that on said day he became a passenger on defendant’s train and was transported upon his journey as far as Wichita Falls. There were many other passengers of defendant company, who also arrived at Wichita Falls on the same train at the same time. On account of high water, the defendant’s train could not run from Wichita Falls to Henrietta, and said passengers, including plaintiff, were so notified by defendant company’s agent. On June 7th, on account of the defendant company’s tracks being washed away,- the train on its said track could not proceed to Henrietta, and the. conditions were such that it was impossible or uncertain to ascertain at what time said train would run to Henrietta. On the after-' noon of June 7th, the defendant company, through its .officials and agents, decided to, and did, run a train from Wichita Falls to Abilene, over the Wichita Valley Railway, and thence over the Texas & Pacific Railway to Ft. Worth.. At said time, the agent of the defendant company at Wichita Falls took up the tickets -of divers and sundry passengers, being a large number, who had purchased tickets from points west and north of Wichita Falls, in the state of Texas, and whose destinations were, some of them, Bellevue, Bowie, Decatur, and Ft. Worth, and in .lieu of the tickets so taken up the defendant company furnished such passengers transportation by way of Abilene to Ft. Worth as aforesaid, and then furnished transportation at Ft. Worth to passengers over its line from Ft. Worth to Decatur, Bowie, and Bellevue. On said June 7th, the defendant company refused to exchange the ticket held by the plaintiff, for a ticket entitling him to the transportation- by way of Abilene and Ft. Worth, and thence to Henrietta, but informed plaintiff that he could purchase a ticket at the usual rate, if he desired to go that way. On June 8th the defendant did exchange tickets for plaintiff, and did transport and detour him by way of Abilene and Ft. Worth to his said destination at Henrietta, Tex. Plaintiff was the only passenger detoured by way of Abilene to Ft. Worth, and thence brought as far west from Ft. Worth on defendant’s line to Henrietta. It is not shown in said findings that any passenger on defendant’s line from Vernon to Wichita Falls, or destined to any point between Wichita Falls and Henrietta, was allowed the exchange of tickets denied to plaintiff on June 7th.

The distance from Ft. Worth to Decatur is 40 miles; from Ft. Worth to Bowie, 66 miles; from Ft. Worth to Bellevue, 81 miles; and from Ft. Worth to Henrietta, 96 miles. The distance by defendant’s line of railway from Wichita Falls to Henrietta is 18 miles; to Bellevue, S3 miles; to Bowie, 48 miles; and to Decatur, 74 miles.

Plaintiff, in his petition, alleged discrimination, and prayed for a recovery of the penalty provided by law under article 6670 et seq., Vernon’s Sayles’ Civil Statutes, and for actual damages in the way of loss of time and extra expense in the sum of $16. The court found that, by reason of the refusal of the defendant company to exchange with plaintiff tickets on June 7th, plaintiff was delayed 24 hours. From a judgment in favor of plaintiff in the sum of $125 penalty, and $4.50 actual damages, defendant appeals.

For the reasons set forth in F. W. & D. C. Railway Company v. Frazier, supra, and for the additional reasons hereinafter noted, we have concluded that appellee, under the facts shown in the court’s findings, is not entitled to recover the penalty. The reasons additional, which are peculiar to this case, are: (1) It is not shown that any passenger whose passage originated at so short a distance as Vernon is from Wichita Falls was, on June 7th, granted the free exchange of tickets denied appellee. (2) It is not shown that any passenger destined to a point as near from Wichita Falls as Henrietta is was granted such a privilege. (3) It is not shown that any passenger receiving a free exchange of tickets on June 7th was granted transportation so great a distance as was, on said date, demanded by appellee, by way of Abilene and Ft. Worth to Henrietta.

Therefore, under the authorities cited in Railway Co. v. Frazier, and for the reasons therein given, and the additional reasons herein mentioned, we have concluded that the judgment of the trial court, allowing plaintiff a recovery of a penalty of $125 must be reversed, and, since the evidence seems to have been fully developed, here rendered for appellant. Otherwise, the judgment is undisturbed, no eomplaint having been made as to the recovery for damages. The costs of this court will be adjudged against appellee.

Reversed and rendered in part; undisturbed in part.
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