author: RAINEY, C. J.

text:
    UNITED MOTOR DALLAS CO. v. HENDRICKS.
    (No. 7186.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1914.)
    Dismissal and Nonsuit (§ 19) — Right to Dismiss.
    . Under Rev. St. 1911, arts. 1900, 1955, providing that, where defendant has filed a counterclaim seeking affirmative relief, plaintiff cannot by discontinuance prejudice the right of defendant to he heard, an intervener, in a suit where plaintiff sought to enforce a lien for the repair of an automobile, cannot withdraw her plea of intervention without prejudice, where plaintiff joined issue on the plea and prayed that its lien be declared a superior lien.
    [Ed. Note. — Eor other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 33-36; Dec. Dig. § 19.]
    Appeal from Dallas Comity Court; W. F. Whitehurst, Judge.
    Action by the United Motor Dallas Company against H. G. Newsom, in which Della L. Hendricks intervened. From an order permitting intervener to withdraw her plea without prejudice, plaintiff appeals.
    Reversed and remanded.
    Burgess, Burgess & Chrestman, of Dallas, for appellant.

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

   RAINEY, C. J.

Appellant brought this suit against H. G. Newsom to recover the sum of $184.87, with interest, for labor and material furnished by appellant in the repair of a certain automobile, and for the foreclosure of the laborers’ and mechanics’ lien, the value of the automobile alleged to be $400. Newsom answered by general demurrer and general denial, but did not appear at the trial. Della L. Hendricks, by leave of the court, filed her plea of intervention, claiming the execution of a note to her by Newsom and a chattel mortgage issued to secure said note by said Newsom on said automobile, and asked the foreclosure of said mortgage, and that it be declared superior to plaintiff’s lien. Plaintiff joined issue with intervener and prayed that its lien be declared superior to intervener’s mortgage.

The case was called for trial, and after plaintiff and intervener had introduced evidence, and before judgment, intervener withdrew, by consent of the court, her plea of intervention over the objection of plaintiffs. The defendant, Newsom, not having been present to present his defense to plaintiff’s cause of action, the court dismissed intervener without prejudice, and entered judgment in favor of plaintiff against defendant, New-som. Plaintiffs appeal from the action of the court allowing intervener to withdraw her plea of intervention without prejudice.

In this action the court was wrong, the plaintiffs having prayed for affirmative relief against the intervener by asking that their lien be adjudged superior to the mortgage of intervener; and they were entitled to have the issue adjudicated in this court. Revised Stats. 1911, art. 1909; R. S. 1911, art. 1955;, Dunlap v. Southerlin, 63 Tex. 38. For failing to adjudge this issue, the judgment is reversed as to the intervener, and the cause is remanded, that said issue be adjudicated between them.

Reversed and remanded.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. CHILSON.
    (No. 345.)
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1914.
    Rehearing Denied July 2, 1914.)
    1. Telegraphs and Telephones (§ 68)— Damages eoe Mental Suffering — Notice.
    A telegram: “Moved mama to hospital tonight. Will operate to-morrow; very dangerous condition blood poisoning, wire money immediately, am very worried” — was on its face sufficient to affect the company with notice that a condition had arisen demanding the use of money and of plaintiff’s necessity therefor, so as to make defendant liable to damages resulting from her mental anxiety and distress incident to delay in receiving funds in consequence of its delay in delivering the telegram.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68. ]
    2. Telegraphs and Telephones (§ 68)— Damages for Mental Suffering — Death and Burial.
    Humiliation and mortification caused by plaintiff’s financial embarrassment, with the body of her mother unprepared for burial, and without money for an appreciable length of time, was a proper element of damages.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    3. Telegraphs and Telephones (§ 66)— Sufficiency of Evidence — Mental Suffering.
    Evidence, in an action for mental suffering caused by plaintiff’s financial embarrassment while with the body of her mother unprepared for burial and without money for an appreciable length of time,. although there was no direct evidence of mental suffering from the situation, held to sustain a verdict for plaintiff, as the jury would have a right to infer its existence from their knowledge of human nature.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Genevieve Chilson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, and Geo. H. Eearons, of New York City, for appellant Barkley & Green and Woods & Harris, all of Houston, for appellee.

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

   HIGGINS, J.

Suit by appellee for damages resulting from negligent delay in delivery of telegrams.

It was averred: That on August 29, 1906, the plaintiff, aged 21, with her mother, Mrs. M. S. Waller, was visting in Denver, Colo.; that she was the stepdaughter of M. S. Waller, a part of his family, and dependent upon him for support; that upon said date her mother became suddenly and violently ill, and it became necessary to take her to a hospital and that an operation be performed. That plaintiff did not have the necessary funds; that thereupon she wired M. S. Waller upon said date as follows:

“Moved mama to hospital tonight. Will operate tomorrow; very dangerous condition blood poisoning, wire money immediately, am very worried.”

This telegram was delivered to defendant at 11:55 p. m., August 29th. Not receiving a prompt reply, she again wired Waller on August 30, 1906, as follows:

“Doctor obliged to perform big operation to save mama’s life. Very critical condition. Come at once. Genevieve.”
“That at the time of writing and delivering said two telegrams to the defendant to be transmitted as aforesaid, plaintiff, by reason of her situation among strangers and without means and the condition of her mother, was suffering great mental pain, anguish, and anxiety, and desired to be relieved of the same by informing her stepfather of her situation, and that of her mother, and procure from him money to be used by plaintiff and her mother to meet their needs and necessities as they existed at that time and in the immediate future, and to procure his advice as to what course to pursue in their distressed situation, and to have her stepfather with her in the city of Denver, at the earliest possible moment.”

That by proper diligence such messages should have been transmitted and delivered to Waller on August 30, 1906, but defendant negligently failed to do so; that her mother died at 8 a. m., August 31st at the hospital from the effects of her disease and operation; that after the death of her mother she was in great distress and anxiety because she had not heard from her stepfather in answer to said messages, and she thereupon on August 31, 1906, sent Waller the following message:

“Mother died this morning at eight o’clock. Come at once.”

'That Waller received this message about 8 p. m., on August 31st, and he at once by wire arranged with friends in Denver to call on plaintiff and furnish her with money and render all necessary assistance—

“and further acquainted her with the fact that he was on his way to Denver by the first train, leaving Marfa, and further counseled plaintiff how to act in regard to the funeral of her mother, and whom to apply to in Denver among his friends for assistance and aid. That by reason of the failure of the said defendant in sending to plaintiff a service message within a reasonable time, which would have been one hour from the time of the delivery of each of the telegrams to plaintiff’s stepfather’s business associates at El Paso, Tex., as promised and agreed by said defendant company, and as it was in duty bound to do, and by reason of the negligence of the defendant, and its servants and agents, to transmit and deliver said two telegrams to said M.. S. Waller, herein set out within a reasonable time, as aforesaid, at Mar-fa, Tex., from El Paso, Tex. (which would have been a period of -one hour) and was prevented from having money to prepare for the funerá.1 and burial of her mother, and was prevented from having the aid and counsel for 24 hours of her stepfather, M. S. Waller, and was prevented from having the counsel and aid of her stepfather’s friends in the city of Denver. That is to say, had said M. S. Waller started on his journey from Marfa, Tex., to Denver, Colo., on the night of August 30th, instead of August 31st, as he would and could have done had he received said telegrams, hereinbefore set out, on August 30, 1906, he could have reached Denver 24 hours earlier. That in consequence of said defendant’s negligence in failing to promptly deliver said two telegrams to her stepfather, M. S. Waller, plaintiff has suffered untold mortification, intense humiliation, and great mental pain and anguish, to her damage in the sum of $1,995, for all of which said sum of $1,995 she now prays judgment against the said defendant, the Western Union Telegraph Company, and further prays for such general and equitable relief as she may be entitled to under the law and facts of this case.”

It is also shown by the allegations of the petition that the telegrams were addressed to Waller at El Paso, Tex., but at the time he was in Marfa, Tex., and a supplementary agreement to retransmit and deliver at Marfa is pleaded.

The jury was instructed:

“If you believe from the evidence that plaintiff was with the corpse of her mother on the 31st day of August, 1906, unprepared for burial and without money, for any appreciable length of time, and that because of such financial embarrassment, if any, she suffered humiliation and mortification * * * then, in such event, you will find your verdict for the plaintiff and assess her damages at such sum as you may believe from the evidence will reasonably and fairly compensate her for such mortification and humiliation, if any, suffered by her.
“In this connection you are charged that in estimating damages, if any, suffered by plaintiff, you will not take into consideration any mental anguish that you may believe she suffered by reason of her stepfather not being with her, nor will you consider any anxiety or apprehension that you may believe she suffered because of any forebodings as to the future financial condition of herself, or the future condition or disposition of the corpse of her mother, nor will you consider the question as to whether or not plaintiff was without funds or acquaintances in Denver at any time, but will confine yourself in estimating damages,_ if any, exclusively to the matters above submitted.”

Verdict in plaintiff’s favor was returned in sum of $650. The petition is not subject to a general demurrer.

The first telegram upon its face is sufficient to effect defendant with notice of the fact that a condition had arisen demanding the use of money and of plaintiff’s necessitous condition in that respect. This being true, the petition in any event states a cause of action for recovery of damages resulting from mental anxiety and distress incident to delay in receiving funds. Goodwin v. W. U. Tel. Co. (Civ. App.) 160 S. W. 107; W. U. Tel. Co. v. McFarlane (Civ. App.) 161 S. W. 57, Tel. Co. v. Richards (Civ. App.) 158 S. W. 1187; Tel. Co. v. Simpson, 73 Tex. 430; Tel. Co. v. Pearson (Civ. App.) 137 S. W. 736; Tel. Co. v. Quigley, 129 Ky. 788, 112 S. W. 897, 19 L. R. A. (N. S.) 575.

It will be noted the only item of recoverable damage submitted in the charge was founded upon humiliation and mortification caused by plaintiff’s financial embarrassment while with the corpse of her mother on August 31, 1906, unprepared for burial and without money for an appreciable length of time. Under the authorities quoted this is a proper element of damage.

The evidence in this case discloses that Mrs. Waller died at the hospital in Denver at 8 a. m., on August 31st. The telegram at that date notifying Waller of her death was received by him between 11 a. m. and 12 m. of same date. He immediately communicated with friends in Colorado, requesting them to call upon his daughter and furnish her with money and relieve her necessities, and at once started for Denver. The telegrams of the 29th and 30th were not delivered until September 1st. Had they been delivered on the 30th of August as they should have been, he would have reached Denver 24 hours earlier, and wired his friends there to have rendered his daughter assistance that much earlier. Before Waller reached Denver, Judge Brown, one of his friends, to whom he had wired, had made all proper arrangements with respect to embalming and care of body. The body, it seems, remained at the hospital until the night of the 31st, when it seems Brown made the necessary arrangements and it was embalmed and removed to an undertaking establishment. Plaintiff remained at the hospital until removal of body to undertaking parlors and thereafter with old school friends in the city. She also had and was holding the rooms occupied by herself and' mother at one of the leading hotels of the city. Plaintiff testified she was entirely without funds at time of her mother’s sickness and death, and had no friends or acquaintances in Denver upon whom she could call for assistance. About 12 hours after her mother died she received a wire from Waller advising he was on his way to Denver, and he arrived 48 hours later. She further testified that between the time her mother died and hearing from Waller her mind was distracted and she was in a condition of collapse. There are a number of assignments in different manner questioning the sufficiency of the evidence to support the verdict and judgment upon the ground that there is no evidence of any mental anxiety or distress occasioned by the fact that for a time after the death of her mother plaintiff was with the corpse unprepared for burial and without funds. There is a total want of direct evidence of mental distress due to the situation indicated. Direct proof of mental anguish ordinarily is not required. The jury may infer its existence from their knowledge of human nature. Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Tel. Co. v. Waller, 96 Tex. 589, 74 S. W. 751, 97 Am. St. Rep. 936; Tel. Co. v. McLeod, 22 S. W. 991; Tel. Co. v. Porter (Civ. App.) 26 S. W. 866.

However, the circumstances under which the cases hold it may be inferred are very different from an inference of mental suffering arising from mere delay in receiving financial assistance. In the latter case, we think ordinarily there should be some direct evidence of mental distress, and an inference thereof would not properly arise. In the Richards and Quigley Gases, supra, the point was not raised, and in the Goodwin and Me-Farlane Oases, supra, it seems there was direct evidence of humiliation and mental distress. While in the instant case this is lacking, yet we are of the opinion it was nonessential, and that the jury, from its knowledge of human nature, was warranted in presuming and finding such a mental condition to have existed in the case of a young woman alone with the corpse of her mother in a distant city among strangers, without funds, and awaiting a reply to a telegram previously sent, requesting the remittance of money. To the poignant grief incident to her mother’s death, it may reasonably and naturally be inferred there was added a distraction of mind due to her financial embarrassment, when funds were imperatively and instantly needed for the proper care of the corpse and herself. The assignments presenting this phase of the case are therefore overruled.

Affirmed.


author: HODGES, J.

text:
    JOHNSON v. ELLIOTT, Tax Collector, et al.
    (No. 1333.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1914.)
    1. Constitutional Law (§ 60) — Legislative Powers — Delegation.
    Rev. St. 1911, art. 7476, levies a state tax on sellers of nonintoxicating malt liquors of 82,000, and authorizes counties, incorporated cities, and towns to levy an additional tax not exceeding $1,000 on such persons. Section 7477 requires persons engaged in the business to apply for a license and pay the taxes prescribed. Meld, that Pen. Code 1911, art. 496, defining a disorderly house as any house situated in territory where the sale of intoxicating liquors is prohibited where nonintoxicating malt liquors, requiring an internal revenue license, are sold or kept for sale, was not invalid as delegating to Congress the power of determining whether the business of selling nonintoxicating malt liquors shall be valid, and as conferring on another jurisdiction power to suspend a state law; since, if Congress should exempt sellers of nonintoxicating malt liquors from the internal revenue, requirement, a person prosecuting such business in prohibition territory where the sale of intoxicating liquors is prohibited would owe his immunity from punishment, not to the suspension of the state law, but to the fact that he was not keeping' a disorderly house under the conditions prescribed by the Penal Code.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 89, 90, 93; Dec. Dig. § 60.]
    2. Criminal Law (§ 13) — 1Offenses—Defini-tion.
    Pen. Code 1911, art. 496, declaring that a house located in a district where the sale of intoxicating liquors is prohibited in which non-intoxicants, for the lawful sale of which an internal revenue license is required, are sold or kept for sale shall constitute a disorderly house, was not objectionable for uncertainty in referring to the laws of Congress to determine the conditions under which it should be applicable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13. For other definitions, see Words and Phrases, vol. 3, pp. 2108-2110.]
    3. Intoxicating Liquoks (§ 45) — Wrongful Sale — Statutes.
    Pen. Code 1911, art. 496, providing that a house located in a prohibition district, in which nonintoxicating malt liquor is sold or kept for sale, requiring the seller to have an internal revenue license, shall be- a disorderly house, should be construed as constituting a special exception to Rev. Civ. St. 1911, arts. 7476, 7477, providing for the licensing of persons to sell nonintoxicating-malt liquors, with reference to particular territory, and was therefore not in conflict with such sections.
    [•Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 47; Dec. Dig. § 45.]
    4. Intoxicating Liquoks (§ 15) — Nonintoxi-cants — Sale—Regulation—‘ ‘Police Power.”
    Pen. Code 1911, art. 496, including in the definition of a disorderly house a place in prohibition territory where nonintoxicating malt liquors, requiring a United States retail liquor dealer’s license are sold or kept for sale was a proper exercise of the state’s “police power,” which includes authority to restrict the pursuit of any business or occupation injurious to the health, peace, security, morals, or general welfare of society.
    [Ed. Note. — For other cases, seé Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. § 15 For other definitions, see Words and Phrases, vol. 6, pp. 5424-5438; vol. 8, p. 7756.]
    5. Constitutional Law (§ 47) — Police Power.
    To justify the courts in holding that a statute is an unwarranted invasion of the fundamental rights of the citizen, and therefore beyond the state’s police power, the objection must appear from the face of the act itself or from facts of which the court must take judicial notice.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 47.]
    6. Evidence (§ 20) — Judicial Notice — Police Power — Sale oe Nonintoxicating Malt Liquors — Regulation.
    There are no facts of which courts can take judicial notice justifying the conclusion that the business of keeping and selling nonintoxicating malt liquors under a federal license is not calculated to disturb the peace and good order of society, or in some manner to injuriously affect the public welfare so as to preclude a regulation of the business by an exercise of state’s police power.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. § 24; Dec. Dig. § 20.]
    7. Mandamus (§ 154) — Official Dutt — Performance — Petition—Requisites.
    A petition for mandamus to compel performance of an official duty enjoined by law must not only aver every fact essential to show the petitioner’s right to the service demanded, but must also negative every other fact which the officer might urge as a legal excuse for not per-' forming such service.
    [Efi. Note. — For other cases, see Mandamus, Gent. Dig. §§ 296-316 ; Dec. Dig. § 154.]
    8. Mandamus (§ 164) — Issuance of Writ-Allegations of Petition.
    In mandamus proceedings to compel the performance of an official duty, the propriety of issuing the writ must depend on the allegation and proof of facts showing affirmatively the particular circumstances establishing the respondent’s obligation to render the service demanded, and not on the officer’s failure to set up a valid defense.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.]
    9. Mandamus (§ 154) — Jurisdiction — Pleading.
    Rev. St. 1911, art. 7476, levies on all persons, firms, etc'., selling nonintoxicating malt liquors an annual state license tax of $2,000, and provides that counties, incorporated- cities, and towns where such sales are made may each levy an annual tax not exceeding $1,600 on all such persons. Held, that a petition for mandamus against a county tax collector to compel issuance of a nonintoxicating malt liquor license alleging tender of the $2,000 license fee, but containing no allegation of a tender of the local license tax or that the county commissioners had not levied any tax under the act, was fatally defective.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. § 154.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Petition for mandamus by Brady Johnson against W. E. Elliott, Tax Collector, and others. From a judgment denying the writ, petitioner appeals.
    Affirmed.
    Freeman & Batsell, of Sherman, Theodore Mach, of Ft. Worth, and Jones & Hassell, of Sherman, for appellant. Jno. W. Baskin, of Ft. Worth, for appellees.

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

   HODGES, J.

On October 25, 1913, the appellant filed in the court below his original petition asking for a writ of mandamus against the appellees, alleging, in substance, the following facts: (1) That the plaintiff is a resident of Tarrant county, Tex.; that the defendants Elliott and Beavers were, respectively, the duly elected, qualified, and acting tax collector and county clerk of Tar-rant county; (2) that on the 23d of October, 1913, the plaintiff filed with the defendant Beavers, the county clerk, his written application for a license to sell nonintoxicating malt liquors in the unincorporated town of Handley, situated in Tarrant county, describing particularly the place where the business was to be located, and tendered to defendant Elliott in his official capacity the sum of $2,-000, being the amount of the annual tax levied by the state of Texas under the provisions of articles 7476 and 7477 of the Revised Civil Statutes and, demanded of the collector an official receipt; (3) that the town of Hand-ley is situated in a justice precinct in Tar-rant county in which the sale of intoxicating liquors was then and there prohibited by law. The plaintiff’s application and tender were refused by the defendants upon the ground that the business of selling nonintoxicating malt liquors was prohibited by law in the territory designated in the application; that the defendants relied upon the provisions of article 496 of the Penal Code of 1911, which define as a disorderly house any house situated within the territory where the sale of intoxicating liquors was prohibited, where nonintoxicating malt liquors requiring a federal revenue license were sold or kept for the purposes of sale. It is further alleged that the nonintoxicating malt liquors which the plaintiff desired to sell contain only about T.55 per cent, of alcohol, and are not injurious to the human system. It is admitted that, in order to carry on the contemplated business in accordance with the requirements of the federal statute, an internal revenue license must be procured. The prayer of the petition is for a writ of mandamus compelling the tax collector of Tarrant county to accept the tender of $2,000 offered in payment of the tax levied by the state, and compelling the county clerk to issue the necessary license authorizing the plaintiff to engage in the business of selling nonintoxicating malt liquors at the place described. The court sustained a general demurrer to the petition, and, on the refusal of the plaintiff to amend, dismissed the suit.

The appellant bases his right to the license applied for upon an act of 1909, which is now embraced in articles 7476 and 7477 of. the Revised Civil Statutes of 1911. So much of that act as is pertinent is as follows:

“Art. 7476. There is hereby levied upon all firms, persons, associations of persons and corporations, selling non-intoxicating malt liquors, an annual state tax of two thousand dollars. Counties, incorporated cities and towns where such sales are made may each levy an annual tax not exceeding one thousand dollars upon all such persons, firms or corporations.
“Art. 7477. Each person and each firm and. each corporation and each association of persons desiring to engage in the business mentioned in the preceding article, before engaging in same, shall file with the county clerk of the county in which the business is proposed to be-pursued an application in writing for a license to engage therein and shall state the place or-house in which such business is to be pursued,, and, if within the corporate limits of any incorporated city or town, that fact shall be stated ; and any such person or firm or corporation or association of persons shall pay to the tax collector of the county the entire amount of annual tax levied by the state and the entire amount of the annual tax upon such business as may be levied by the commissioners’ court of said county * * *; and all such taxes shall be paid in advance; and no license-shall be issued by the county clerk until the person, or firm, or corporation, or association of persons, applying therefor shall exhibit receipts-showing the payment of all taxes levied and. authorized by this chapter.”

The appellees in their brief filed in this-court justify the refusal of the money tendered upon the ground that the business for-which the license was desired would be unlawful. As supporting that conclusion, they refer to the provision of an act adopted at the special session of the Legislature in 1910, which is now article 496 of the Penal Code of 1911. That article contains the following as-a part of a definition of a disorderly house:

“Any house located in any county, justice precinct or other subdivision of a county where-the sale of intoxicating liquor has been prohibited under the laws of this state, in which, such non-intoxicating malt liquor is sold or-kept for the purpose of sale, as requires the seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer; or any house located; in any county, justice- precinct or other subdivision of a county in which the sale of intoxicating liquor has been legally prohibited, where the owner, proprietor or lessee thereof has posted a license issued by the United States-of America, authorizing such owner, proprietor- or lessee thereof to pursue the occupation and. business of a retail liquor dealer, or a retail, malt liquor dealer.”

Other provisions of the Penal Oode prohibit, under a penalty, the running of a disorderly house as defined in the article quoted.

It is conceded by the appellant that in order to lawfully carry on the business which he contemplated — that of selling nonintoxicating malt liquors — -he would be compelled, to procure an internal revenue license as a retail malt liquor dealer from the federal government. It is also admitted that under-the provisions of the Penal Code referred to-above the business for which this license-was sought is now prohibited.

The validity of that portion of the article quoted which prohibits the sale of, or the keeping for the purposes of sale, nonintoxicating malt liquors is attacked upon four grounds: (1) That the statute, in effect, delegates to Congress the power of determining whether or not the business of selling nonintoxicating malt liquors shall be lawful, and thus confers upon another jurisdiction the power of suspending a law of this state; (2) that in order to ascertain what is prohibited recourse must be had to the laws of another jurisdiction, and the statute is void for uncertainty; (3) that article 496 is, in effect, repealed by the adoption of the Revised Civil Statutes of 1911 licensing the sale of nonintoxicating malt liquors; (4) that the statute undertakes to restrict a species of commerce not within the police powers of the state.

Taking these objections in their order, the first question is: Does this penal statute delegate to Congress the power of suspending a state law relating to a subject exclusively within the jurisdiction of the state Legislature? For many years the federal government has levied and collected a tax on the business or occupation of selling malt liquors. The payment of that tax and the securing of a receipt, or, as it is sometimes called, a license, authorizes the dealer to sell all grades of malt liquors, whether intoxicating or not. It seems to have been the purpose of the Legislature in enacting this penal statute to forbid the prosecution of the business of selling nonintoxieating malt liquors under such conditions in territory where the sale of intoxicating liquors has been prohibited. The fact that the sale of such liquors must be carried on under a governmental permit which authorizes the dealer to sell those which intoxicate, as well as those which do not, is apparently the condition which makes the business offensive to our state law. That fact is more clearly disclosed by the concluding paragraph of the statute quoted above. If Congress should repeal the present laws relating to the sale of malt liquors, or should so modify those laws as to no longer require the possession of a retail malt liquor dealer’s license for the lawful pursuit of the business of selling those which are nonintoxicating, then the business in which the appellant wishes to engage would not be a violation of the Texas statute. It is contended that in thus making the criminality of the business dependent upon the status of the law of another jurisdiction, the Legislature has undertaken to surrender to that jurisdiction the power of suspending a state law. That conclusion does not follow when we take into consideration the specific offense which the state law denounces. This statute does not unconditionally forbid the selling of such liquors, or the keeping of them for the purpose of sale, but makes the penalty applicable only when the sale to be lawfully made must be licensed by the federal government. The Legislature doubtless had good reasons for denouncing such commerce when carried on under those conditions. But whatever may have been the legislative inducement, if the enactment of the law was within the state’s police powers, it is not void merely because it may be unwise. A penal statute is said to be suspended when its provisions are not enforceable against the specific offense which it describes and aims to suppress. This result is accomplished when the suspending power, acting upon the law itself, withholds its enforceability or annuls its provisions. As long as the statute occupies the status of being enforceable against the particular class of offenses which it describes, when committed, it is in no sense suspended. If Congress should enact a law so that the business of selling nonintoxicating malt liquors might be lawfully pursued without a retail malt liquor dealer’s license, a person prosecuting that business in the territory described would owe his immunity from punishment to the fact that he was not keeping a house under the particular conditions denounced, and not to the suspension of the state law. By dispensing with the requirement for a federal license 'Congress would remove the particular ingredient which makes the business offensive in territory where the sale of intoxicants has been prohibited. The provisions of the statute would still be enforceable against the offense which it denounces, and could not be considered as annulled or suspended.

In support of his proposition appellant refers us to the case of Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 96 Am. St. Rep. 821. In that case the Court of Criminal Appeals had under consideration an act passed in 1893, which prohibited, under a penalty, any one except a duly authorized agent of a railway company from selling, bartering, or transferring railway transportation tickets. The statute required railway companies to have conspicuously printed across the face of every ticket sold a notice to the holder thereof that it is a penal offense for him to sell, barter or transfer that ticket for any consideration, and that this ticket, or any unused part thereof, was redeemable by the company at any of its offices. A penalty not exceeding $500 was imposed upon any person who violated the act. It was provided, however, that any person holding a ticket upon which was not plainly printed the fact that it was a penal offense for him or her to sell, barter, or transfer the same for a consideration should not be liable to the penalty. A majority of the court held that the law was invalid, upon the ground that it left it optional with the railroad companies whether or not in the issuance of tickets they would create a penal offense; and for the further reason that the law did not itself create the offense and define it with sufficient certainty, but delegated its authority to another agency. It was held that this act was obnoxious to section 28 of our Bill of Eights, which says: “No power of suspending laws in this state shall be exercised, except by the Legislature.” It seems to us that the reasons assigned by the able judge who delivered the opinion in that case are not sufficient to support the conclusions reached; and in a civil proceeding like the present we do not feel bound to follow the precedent, even if it be considered in point. The courts have no right to annul the legislative acts of the people’s representatives, except in those instances where the enactments clearly transcend the limits of legislative authority, or are so uncertain that their enforcement is impracticable.

It is also contended that the statute here under consideration is uncertain because it refers to the laws of Congress to determine the conditions which make it applicable. If the Legislature desired to prohibit dealing in nonintoxieating malt liquors only when such business could be lawfully carried on under a federal license permitting the dealer to also sell intoxicating malt liquors, how could the offense be defined in any way? The act is as certain as is practicable, considering what appears to be its real purpose. Congress had a right to impose upon the business of retailing liquors the burdens embraced in the present revenue measures. Those laws are not foreign to the citizens of this state. They constitute a part of the law of the land, and are judicially noticed by our courts.

In the third ground it is contended that there is a conflict between the civil and penal statutes; that under the provisions of articles 7476 and 7477, of the Eevised Civil Statutes the state has licensed, and thereby specially authorized, the business of selling nonintoxicating malt liquors, and for that reason the provisions of the Penal Code which seek to prohibit the pursuit of that business are not enforceable. As before stated, the civil statute imposing the tax and requiring a state license for the sale of nonintoxieating malt liquors was adopted at the regular session of the Legislature in 1909. The penal statute was enacted at the special session held in 1910, and is therefore of a later date. In section 16 of the Final Title of the Revised Civil Statutes of 1911 it is expressly stated that:

The “provisions of the Revised Statutes, so far as they are substantially the same as the statutes previously in force, shall be considered as continuations of such statutes, and not as new enactments.”

It follows from this that, if there should be any conflict between our civil and the criminal statutes, the latter, being the last enactment, should control to the extent of the conflict. Moreover, the civil statute is general in its terms and applies to the entire state, while the penal statute prohibits the business described in territory where the sale of intoxicating liquors has been prohibited. It may therefore be treated as excepting from the general provisions of the civil statute the particular territory mentioned.

• We pass then to the consideration of the appellant’s fourth ground — that to prohibit the sale of nonintoxicating malt liquors under the conditions prescribed in the statute is an unwarranted invasion of the absolute rights of the citizen and is beyond the police powers of the state. If the statute is subject to that objection, it is because it denies to the citizen the right to engage in a particular species of commerce. The police power of the state includes the authority to restrict the pursuit of any business or occupation which is injurious to the health, peace, security, or morals of the public, or to the general welfare of society. That the state may, in the exercise of its police power, absolutely prohibit the sale of intoxicating liquors because of the known results which follow that traffic is now universally conceded. Whether or not the business of selling nonintoxicating malt liquors under a federal license which aláo authorizes the sale of intoxicating malt liquors is a trade which in some way injuriously affects society, is equally a question of fact, and one which must be settled by the Legislature. It must be assumed in construing laws like that here under consideration that the Legislature has made the necessary investigation and has found that the facts warranted the restriction which it imposes. This, of course, does not mean that the Legislature has the authority to arbitrarily prohibit the pursuit of a harmless or useful vocation by merely declaring that it is hurtful to society. It cannot invade the absolute rights of the citizen under the pretense of promoting the public welfare. Like all other legislative authority, this power must be exercised with due regard to constitutional limitations. Under our system of government all legislative enactments are subject to review by the courts.

But to justify the courts in holding that a given act is an unwarranted invasion of the fundamental rights of the citizen, and therefore beyond the police power of the state, that objection must appear from the face of the act itself or from facts of which the courts must take judicial cognizance. Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206. If a proper determination of the question as to whether or not the business is hurtful involves an inquiry into the conditions normally resulting from the traffic, and makes necessary the ascertainment of facts through the medium of evidence in some form, the Legislature has a right to prosecute such an investigation, and its findings are entitled to' as much weight as should be attached to the findings of a court.

There are no facts judicially known to the courts which would justify the conclusion that the business of keeping and selling nonintoxieating malt liquors under the federal license before referred to is not calculated to disturb the peace and good order of society, or in some manner injuriously affect the public welfare. It is admitted in the appellant’s petition that nonintoxicating malt liquors do contain a small percentage of alcohol. The fact that this beverage is nonintoxicating is not conclusive of the further fact that it is not injurious or does not in some manner result in disturbing the peaceful condition of society. We cannot say, as a matter of law, that one must actually drink malt liquors to a state of intoxication before any of the evil consequences resulting from the use of alcoholic stimulants will follow. It is true the appellant alleges that the drink which he- desires and expects to sell is not harmful to the human system; but the validity of the statute is to be determined, not by what the appellant expects to do, but by what he may lawfully do, under his license when granted. Again, we cannot say, as a legal conclusion, that the prosecution of such a business under a federal license which also authorizes the sale of those grades of malt liquors which do intoxicate may not furnish such a tempting opportunity to violate the law against the sale of intoxicants that 'it would lead to the commission of crime and to that long train of evils which usually attends the saloon trafile. We therefore conclude that the statute under consideration is not subject to any of the objections urged. Powell v. Pennsylvania, supra; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; United States v. Cohn, 2 Ind. T. 474, 52 S. W. 38.

There is still another reason which we think justified the court below in dismissing the application for this writ of mandamus. Such writs are extraordinary remedies, and, when invoked for the purpose of compelling the performance of some official duty enjoined by law, it must clearly appear from the petition that the applicant is entitled to the service which he seeks to have performed. Ry. Co. v. Randolph, 24 Tex. 333; Watkins v. Huff, 63 S. W. 922, and cases there cited. The petition, in order to be ' free from objection, should not only aver every fact essential to show the right to the service sought, but should also negative every other fact which the officer might urge as a legal excuse for not performing the service demanded. In granting a writ against a public official, seeking to compel the performance of a public duty about which the officer may have no personal concern, the court must be fully advised on the subject.

.The propriety of issuing the writ is therefore not to be determined by the defense wíiich the official may interpose, but by the allegation and proof of facts which show affirmatively and clearly that under the particular circumstances he is legally bound to perform the service. The duties of the court would’be none the less imperative if the officer failed to set up any defense whatever. It is not a matter which he can waive.

The statute quoted requires the applicant for license to pay $2,000 as the state tax, and such tax not exceeding $1,000 as may be levied by the commissioners’ court of any county in which the business is to be carried on. This apparently leaves it optional with the commissioners’ court to levy a tax upon such traffic; but, when levied, it is the duty of the tax collector to collect that tax from the applicant before the license can be issued. It will be observed that the appellant’s original petition alleges only a tender of the amount of the state tax. It does not aver that the commissioners’ court of Tarrant county had not levied any tax under the authority given in the statute. The court must be advised as to that fact before granting the writ. The petition therefore should have stated, if such be the case, that no such tax had been levied by the county. The absence of such averments justified the court in dismissing the petition, even if the penal statute assailed is subject to the objections heretofore discussed.

The judgment of the district court will therefore be affirmed.


author: WILLSON, O. J.

text:
    WATTAM v. INTERNATIONAL & G. N. R. CO.
    (No. 1332.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 22, 1914.
    Rehearing Denied June 11, 1914.)
    Cashiers (§ 86) — Carriage of Freight — Facilities for Unloading — Obligation oe Parties.
    A carrier owes to a shipper the duty to furnish him reasonable facilities for unloading, but the shipper must exercise reasonable diligence in unloading, and the carrier need not permit him to use the car as a storehouse in which to carry on his business as a seller on the payment of demurrage charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 316-322 i Dec. Dig. § 86.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by W. H. Wattam against the International & Great Northern Railroad. Company. From a judgment granting insufficient relief, plaintiff appeals.
    Affirmed.
    Over appellee’s line of railway and connecting lines appellant shipped a carload (600 bushels) of apples from Marionville, Mo., to Bryan, Tex. After the apples were delivered to him at Bryan appellant claimed the right to sell them from the car in lots of from one dozen to a wagonload each, and was proceeding to exercise such a right, when appellee objected to its car, track, and right of way béing used for that purpose. Appellant persisted in making such use of the car, and continued to sell the apples. Appellee thereupon closed and sealed the doors of the car, excluding appellant therefrom, but at the time telling him it would open the doors and permit him to unload the apples whenever he desired to do so. On the day after the appellee closed and sealed the doors of the car appellant opened the same and resumed the business he had before engaged in of selling the apples from it, and during the 14 or 15 days following continued selling the apples, until he disposed of all of them. During this time appellee moved the car from one place to another in its yards, and so interfered with appellant in the use he was making of it. It appeared from the testimony that if appellee had not so moved the oar nor otherwise have interfered with appellant, he could have sold the apples in about five days and at a greater profit than he realized from the sales he made of same. It also appeared from the testimony that he incurred expenses he would not have incurred had appellee not interfered, as it did, with his use of the car and its premises for the purpose of selling the apples. Appellant sought by his suit to recover of ap-pellee $300 as actual damages he had suffered, and $500 as exemplary damages. The trial was before the court without a jury, and resulted in a judgment in appellant’s favor for $1. Appellant was not satisfied with the recovery allowed him, and prosecuted this appeal.
    Zumwalt & Key, of Denton, for appellant. Thompson & Barwise, of Ft. Worth, for ap-pellee.

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

   WILLSON, O. J.

(after stating the facts as above). In the absence of a contract whereby it bound itself to do more (and it is not pretended that there was such a contract), the duty appellee owed to appellant was to transport the apples to Bryan and there deliver them to him, furnishing him reasonable facilities for unloading them from the car. It seems from the testimony that appellee discharged this duty. The duty appellant owed appellee was to exercise reasonable diligence in unloading the apples from the car and in removing them from appellee’s premises. It seems from the testimony that appellee failed to discharge this duty, and that if error was committed by the court below it was in awarding appellant a recovery of even the nominal damages adjudged in his favor. We think appellant was mistaken in concluding that because appellee was bound to furnish him a car in which to transport his apples, it also was bound, having furnished him the car, to permit him, on the payment of demur-rage charges of $1 a day, to use it as a storeroom in which to carry on his business as a vender of apples. Appellee was not bound to furnish him a car for such a purpose. Furnishing cars for such a purpose is not within the scope of the business common carriers engage in, and to requirk them to do so might, and probably would, seriously interfere with the discharge by them of duties they owe the public.

The case of Miller v. Ry. Co., 88 Ga. 563, 15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170, was unlike this, in that the question there was as to the right of the railway company to adopt and enforce a reasonable regulation as to the time within which ears might be unloaded by consignees without paying storage charges and to fix a rate to be charged for the use of cars beyond that time, but we think much of the reasoning of the court in disposing of it is'pertinent as an answer to appellant’s contention.

“The law,” said the court in that case, “compels the carrier to receive the goods of the public, and to transport and deliver them within a reasonable time. * * * To do this it is necessary that the moans of transportation shall be under the carrier’s control, and that, after the duty of carriage has been performed, its vehicles shall not be converted into storehouses, at the will of consignees, to remain such indefinitely, and without compensation. If no check could be placed upon such detention, it is plain that the business of transportation would be at the mercy of private interest or caprice, and that carriers, thus hampered in their facilities and unable to see the time or extent to which their vehicles would be diverted from the work of carriage, could not provide properly for the demands of traffic, or perform with dispatch their legitimate function. It would place upon the carrier the burden and expense of supplying numerous vehicles not needed for the hauling of freights, thus requiring it to provide extra facilities, as well as to render extra service, without compensation beyond that received for transportation. It would result in the accumulation of cars on the carrier’s tracks, and the obstruction in a greater or less degree of the movement and unloading of trains. Not only would loss ensue to the carrier, but consignees and shippers in general, and the people at large must suffer seriously from this hindrance to the due and regular course of transportation. In this matter the publio have rights paramount to those of any individual or class of individuals, and the business of the common carrier must be so conducted as to subserve the general interest and convenience.”

We think appellant has no cause to complain of the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    HEATH v. HUFFHINES.
    (No. 7936.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 2, 1914.
    Rehearing Denied June 6, 1914.)
    1. Appeal and Error (§ 499) — Assignments op Error — Instructions—Statutory Provisions.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that, after the evidence has been closed, the charge shall be submitted to the parties, and a reasonable time given» them in which to present objections, and objections not so made shall be waived, and article 1973, as amended by the same act, authorizing either party to present to the judge in writing instructions if submitted to opposing counsel for objections within a reasonable time after the charge is given to the parties, and article 2061, as amended by the same act, declaring that the ruling of the court on instructions shall be deemed approved, unless excepted to, assignments of error complaining of errors in the charge, or in refusing requested charges, cannot be considered, where the bills of exceptions do not show that appellant presented his objections to the charge before it was given, and that the refusal of special charges was excepted to • at the time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Appeal and Eeeoe (§ 608) — Assignments op Error — Instructions—Statutory Provisions.
    A statement in the transcript embodying what purports to be exceptions and objections to the charge, and beginning, “Now comes defendant in open court and makes the following exceptions and objections to tli'e charge,” and containing objections to various paragraphs of the charge signed by counsel for defendant marked, “Filed by the clerk,” on the day the court’s charge was filed, does not show objections to the charge before it was given, as required by Rev. St. 1911, arts. 1971, 1973, 2061, as amended by Acts 33d Leg. c. 59; and assignments of error complaining of the charge cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2673-2684; Dec. Dig. § 60S.]
    3. Trial (§ 282) — Instructions — Exceptions.
    Rev. St. 1911, art. 2061, embodied in chapter 19 of title 37, and amended by Acts 33d Leg. c; 59, so as to provide that the ruling on instructions shall be deemed approved, unless excepted to “as provided for in the foregoing ar-' tides,” relates to the chapter governing bills of exceptions, and not to the foregoing articles in the Laws of 1913, which, in preceding sections amends articles 1970, 1971, 1973, and 1974, embodied in chapter 13 of the title, relating to instructions and objections thereto; and the articles as amended govern the manner of reserving exceptions to instructions and refusal of instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 695, 696; Dec. Dig. § 282.]
    4. Appeal and Error (§ 501) — Assignments op Error — Instructions—Statutory Provisions.
    Where the record shows a special charge and the refusal thereof, but does not show an exception at the time, the ruling cannot be reviewed in view of Rev. St. 1911, art. 2058, and article 2061, as amended by Acts 33d Leg. c. 59, providing that refusal of instructions shall be deemed approved, unless excepted to.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    Appeal from Johnson County Court; O. L. Lockett, Judge.
    Action by W. C. HufChines against E. N. Heath. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 152 S. W. 176.
    R. S. Phillips and H. P. Brown, both of Cleburne, for appellant. Walker & Baker and S. C. Padelford, all of Cleburne, for appellee.

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

   CONNER, C. J.

This is a suit by appel-lee to recover a balance of $550 alleged to be due as commissions for1 the sale of certain lands owned by appellant. The undisputed evidence shows that the sale negotiated by ap-pellee was not finally consummated, and on a former appeal we reversed a judgment in ap-pellee’s favor because of error in failing to submit the issue tendered by appellant that by the terms of the agreement of the parties commissions were to be paid in event only that the sale should be fully completed by the payment of the specified consideration, the execution and acceptance of conveyance, etc. See Heath v. Huffhines, 152 S. W. 176, to which we refer for a statement of the* case in greater detail.

On the present appeal the only assignments of error go to alleged errors in the charge of the court as given, and to the action of the court in refusing to give specified special charges requested. Appellee objects to the several assignments of error, on the ground that proper exceptions were not taken to the aqtion of the court complained óf, as required by legislative act approved March 29, 1913. See' General Laws 1913, p. 113.

In an opinion handed down by this court on April 25, 1914, in the case of Taylor v. Butler (No. 7928) 168 S. W. 1004, in which it became necessary to determine a similar objection, we said:

“Formerly the ruling of the court in giving, refusing, or qualifying instructions to the jury was regarded as excepted to in all eases. See Revised Statutes, art. 2061. But this article was amended by the act approved March 29, 1913 (see General Laws 1913, p. 113), where it is provided that the court’s charge shall be in v/riting, and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine it and present exceptions thereto, ‘which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.’ Article 1973, Revised Statutes, is also amended so as to read: ‘Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give; provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.’ See Gen. L. 1913, p. 114. The same law amends article 2061 of chapter 19 of the Revised Statutes, making it the duty of a party dissatisfied with a ruling of the court to except thereto at the time it is made, and prescribing the requisites of bills of exceptions, so as to read: ‘The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall bei regarded as approved unless excepted to as provided for in the foregoing articles.’ See Gen. L. 1913, p. 114.
“It follows that, in order for a party litigant to now invoke our revisory power over a ruling of the court in giving charges, it is necessary to show, not only that the objections to the charge had been presented before the charge was read to the jury, but also that formal exception -was taken at the time to the action of the court in giving the charge complained of. Where the complaint is, as here, of the action of the court in refusing a special instruction, exception to the refusal must be made at the time, and the exception made part of the record by a proper bill of exception. Otherwise the ruling must be approved. The assignment under consideration refers us to bill of exception No. 4. No such bill appears in the record, nor do we otherwise find that exception to the action of the court in refusing the special charge in question was made, as provided by the amended act quoted. The ruling must therefore, in accordance with the act, be considered as approved.”

The opinion so rendered seems controlling here. No bill of exception is referred to which shows that appellant presented his objections to the charge of the court before it was given to the jury, nor one that shows that the ruling of the court in refusing the special charges now complained of was excepted to at the time.

It is true that our attention is called to pages of the transcript embodying what purports to be exceptions and objections to the charge of the court, and it is contended in behalf of appellant that such objections meet the requirements of the amended law of 1913. But the statement is not properly a part of the record by the course of the common law, and does not even recite the essential fact. It begins:

“Now comes the defendant in open court, makes the following exceptions and objections to the charge of the court in this case.”

Then follow numerous objections to the various paragraphs of the court’s charge which

are signed by counsel for the defendant, and marked:

“Filed July 31, 1913. E. F. Metz, County Clerk, Johnson County, Texas, by T. J. Clayton, Deputy.”

The record further discloses that the charge of the court was filed on the same day, to wit, July 31, 1913. Hence it merely appears that the statement was filed by the clerk in open court on the same day the court’s charge was filed. There is nothing in the record which shows that the objections so set out in the statement were in fact called to the attention of the trial court before his charge was delivered to the jury, and this fact must be shown in order to be available on appeal.

The language of amended article 1971 of the Statutes is that:

The objections “shall in every instance be presented to .the court before’the charge is read to the jury, and all objections not so made and presented shall be considered as waived.”

Amended article 2061 is equally as emphatic. The declaration .is that:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

The terms “as provided for in the foregoing articles” evidently refer to the foregoing articles of the chapter relating to bills of exception, and not, as it would seem appellant now insists, to the foregoing articles of the amendatory- act, for the amended article 2061 must now be read as if inserted in its appropriate place in chapter 19, relating to bills of exception and statements of fact, instead of chapter 13, relating to charges and instructions to the jury. The amending act expressly declares that “all laws or parts of laws in conflict with the articles here amended” are repealed. Construing the amended articles in their proper relation, they necessarily repeal all articles of the statutes prescribing the different practice heretofore followed.

We should perhaps add that in the case of the special charges, to the refusal of which complaint is made in this case, they are shown by the record, and each is indorsed, “Refused, J. B. Haynes, County Judge,” and filed July 31,1913. It thus appears that the record shows a special charge prepared which was refused by the trial judge; but the fact that the ruling was “excepted to at the time” does not appear of record, and, if article 2058 of chapter 19 and the amended article 2061 are to be enforced, these facts must be made to appear. See Mut. Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067, by the Court of Civil Appeals for the Seventh judicial district, to which our attention has been called since our former decision, and since* the preparation of the foregoing opinion.

We conclude that all assignments of error must be overruled, and the judgment aflirm-ed.


text:
    CITY OF FT. WORTH v. MORGAN et al.
    (No. 7978.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 16, 1914.
    Rehearing Denied June 20, 1914.)
    1. Appeal and Error (§§ 680, 742) — Record —Contents—Ruling to be Reviewed.
    Where neither the appellant’s statement •under an assignment nor the record shows that the court sustained an exception to any part of his petition, the assignment of error for sustaining an exception thereto need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882, 8000; Dec. Dig. §§ 680, 742.]
    2.Eminent Domain (§ 317) — Property Taken — Limited Estate or Interest.
    There is no law which authorizes a judgment in a city’s proceeding to condemn land for a reservoir site limiting its effect and use to any specified number of years, after which the use would be abandoned, and the land would revert to the former owners.
    [Ed. Note. — For other cases, Domain, Cent. Dig. §§ 834^840; 317.] see Eminent Dec. Dig. §
    3. Eminent. Domain (§ 131) — Compensation —“Market Value.”
    Under the charter of a city empowering it to condemn land for reservoir purposes by proceeding according to the general law, and Rev. St. 1911, art. 6519, providing that, when the whole of a person’s realty is condemned, he shall be entitled to the market value thereof in the market in which it is located, such market value was the proper measure of compensation upon the city’s condemnation of land for a reservoir site.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. § 353; Dee. Dig. § 131.]
    4. Eminent Domain (§ 262) — Review—Harmless Error — Argument op Counsel.
    In a city’s proceeding to condemn land for a public use, the argument of counsel for the owners in answer to argument of counsel for plaintiff, and tending only to enlarge the amount of damages, was not reversible error, where the city did not complain that the judgment was excessive.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 681-686; Dec. Dig. I 262.]
    5. Appeal and Error (§ 501) — Presentation os1 Grounds op Review — Exceptions.
    Under Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 2061, requiring that the ruling of the court in the giving or refusing of instructions shall be regarded as approved, unless excepted to in the manner provided, .the refusal of a special charge will not be reviewed, where neither the appellant’s statement nor the record shows any exception thereto.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
    Condemnation proceedings by the City of Ft. Worth against Nettie R. Morgan and others. Judgment of condemnation, and fixing the amount to be paid, and plaintiff appeals.
    Affirmed.
    McCart, Bowlin, Terrell & McCart and A. B. 'Curtis, all of Ft. Worth, for appellant McLean, Scott, McLean & Bradley and Car-lock & Carlock, all of Ft. Worth, for appel-lees.

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

   CONNER, C. J.

The city of Ft. Worth instituted this action against the appellees to condemn 90 acres of land owned by them for the purposes of a water reservoir. There seems to be no dispute in the facts, except upon the issue of the value of the land; this issue alone being submitted by the court’s charge, to which no exception has been presented. The opinion of the witnesses as to the value of the land varied all the way from $35 per acre, as stated by some of the witnesses in behalf of the city, to $300 an acre, as stated by one or more witnesses offered by appellees. The jury by their verdict fixed the value of the land at $65 per acre, aggregating the sum of $5,850, for which judgment was rendered, together with interest thereon at the rate of 6 per cent, per annum from the date of the taking, to wit, $711.75; and the city has appealed.

The first assignment of error is to the effect that the court erred in sustaining exceptions to that part of the city’s petition alleging that it could only use the land sought to be condemned for “30 or 35 years, at which time said reservoir will he filled up with sediment, etc., so that it will have to be abandoned by plaintiff as a reservoir site, at which time said land would revert to the heirs or assigns.” A sufficient answer to this assignment is that neither in appellant’s statement under the assignment nor in the record that we have been able to find does it appear that the court sustained an exception to any part of appellant’s petition. Moreover, we know of no law which would authorize the court to enter a judgment of condemnation limiting its effect to any specified number of years. In the very .nature of things the result indicated in the petition is but conjectural, and a decree that would have the effect of compelling the city at the end of 30 or 35 years to abandon a reservoir, permanent in its nature, and established at great expense in the effort to supply the inhabitants with water, and compel the owners to again receive the land in its then condition, would certainly leave an open door for many difficulties which, as it seems to ns, has been closed by our Statutes on the subject The charter of the city of Ft. Worth gives the city power to condemn lands for the purposes sought in this suit, but declares that in such cases the proceedings are to be governed by the “general laws of the state relative to condemnations.” Revised Statutes, arts. 1003, 100S, 6518, and 6519, specify the procedure under the state laws. Article 6519 provides that when, as here, “the whole of a person’s real estate is condemned, the damages to which he shall be entitled shall be the market: value thereof in the market in which the same is located.” This was the measure adopted by the court’s judgment, which we think is correct.

But little else remains for disposition. Several assignments are presented complaining of argument on the part of counsel for appellees ; but in part it was clearly in answer to argument of one of appellant’s counsel, and for the rest only tended, if of any effect, to enlarge the amount of the damages. There is no assignment complaining of the judgment as excessive, and a consideration of the evidence brings no such impression to our minds, so that we» think the argument complained of, even if objectionable, is not of that character which would justify us in granting a new trial therefor.

The remaining assignment undisposed of complains of the action of the court in refusing to give a special charge; but nothing in appellant’s statement nor in the record shows that exception was taken to this action, as required by Revised Statutes, art. 2061, as amended by act approved March 29, 1913. See Gen. L. 1913, p. 114; Heath v. Huffhines, 168 S. W. 974 (No. 7936), by this court, and not yet published.

We conclude no reversible error has been presented, and that the judgment must be affirmed.

SPEER, J., not sitting.


author: SPEER, J.

text:
    GEORGE W. SAUNDERS LIVE STOCK COMMISSION CO. v. KINCAID et al.
    (No. 7986.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.
    Rehearing Denied July 4, 1914.)
    1. Sales (§ 38) — Misrepresentations—Expressions ox Opinion.
    A statement by a salesman of a seller of live stock, that hogs loaded in cars were good stock, sound, and free from disease, made to a prospective buyer taken to where the hogs were, was not an expression of opinion, but a representation of fact, and the prospective buyer, relying thereon and purchasing the animals, could sue for the falsity of the statement.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 05-77. 85; Dec. Dig. § 38.]
    2. Appeal and Error (§ 499) — Questions Reviewable — Exclusion op Testimony.
    A bill of exceptions taken to the exclusion of testimony, which does not show what objections were made and sustained, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    3. Evidence (§ 314) — Hearsay Evidence.
    In an action by a buyer of animals for the seller’s misrepresentations of soundness, the testimony of a witness that no complaint as to disease among the animals had been made by packing houses purchasing them was properly excluded as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.]
    4. Appeal and Error (§ 501) — Questions Reviewable — Rulings on Instructions.
    Acts 33d Leg. c. 59, defining the time and manner of submitting instructions and making exceptions thereto, prescribes the method for reviewing the trial court’s action in giving dr refusing charges; and the matter must be proved by a proper bill of exception taken at the time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by A. H. Kincaid against the George W. Saunders Live Stock Commission Company and another, in which Armour & Co. was made a party. From a judgment for plaintiff against defendant the George W. Saunders Live Stock Commission Company, and in favor of defendant Womble and Armour & Co. against plaintiff and the Stock Commission Company, the Stock Commission Company alone appeals.
    Affirmed.
    Jas. G. Scott, of Ft. Worth, for appellant. Roy, Rowland & Young, Theodore Mack, Capps, Cantey, Hanger & Short, and W. L. Evans, all of Ft. Worth, for appellees.

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

   SPEER, J.

A. H. Kincaid filed this suit against the George W. Saunders Live Stock Commission Company and J. A. Womble for loss and damage on 220 hogs purchased of them; the plaintiff's petition alleging that the hogs were diseased when he bought them. It was alleged that defendants had represented the hogs to be sound, and that plaintiff had relied on such representations, and, upon discovering the diseased condition of the hogs, had shipped them back -to the defendant, demanding the return of $1,720 he had paid for them. The plaintiff further alleged that the defendant George W. Saunders Live Stock Commission Company had resold the hogs to Armour & Co. for less than they were worth, and had wrongfully withheld $218.50 of the price for which the hogs were resold to Armour & Co. Armour & Co. was made a party at the instance of defendant George W. Saunders Live Stock Commission Company, and pleaded that the correct amount due for the loss in the hogs resold to it was $122.44, and prayed judgment for that amount then in the possession of the George W. Saunders Live Stock Commission Company. A jury trial resulted in a judgment in favor of the plaintiff against the George W. Saunders Live Stock Commission Company for $771.15; in favor of defendant Womble and in favor of Armour & Co. for $122.44 against the plaintiff and the defendant George W. Saunders Live Stock Commission Company. The George W. Saunders Live Stock Commission Company alone appeals.

The first assignment of error complains that the court erred in overruling appellant’s general and special demurrers to the plaintiff’s petition. This is objected to, and under numerous decisions must be held to present no error save, possibly, the court’s action in overruling the general demurrer. Upon this point the proposition is asserted by implication, at least, that the representations of appellant and its agent as to the soundness of the hogs was the expression of an opinion merely, and as such did not amount to a warranty. The statement submitted under this assignment, however shows that:

“Plaintiff alleged that when he reached Ft. Worth he was met by the employé and agent of defendants, and was taken by said salesman to where the hogs were loaded in cars for shipment, and said salesman then and there represented to plaintiff that said hogs were good stock, well, sound, and free from disease, and this plaintiff, relying on said representations by reason of former business relations purchased and paid for 220 hogs.”

It is obvious that the statements there alleged constituted representations of fact, and not mere expressions of opinion. So that, in so far as the general demurrer is concerned, the court ruled properly.

The second assignment of error complains of the ruling of the court in refusing to permit the witness Womble to answer whether or not there had been any complaint by the packing companies, or inspectors, or officials, of any sickness or disease among the hogs sold to the packing companies; appellant offering to show in the same connection that the hogs sold to the packing companies were out of the same lot of hogs from which appellee’s 220 were taken. It is nowhere shown in the brief nor indeed in the bills of exceptions taken to the exclusion of the testimony what objections were made and sustained to the testimony. This itself is fatal. Gaal v. Camp, 164 S. W. 1070. Aside from this, however, we do not think it would be permissible merely to show that no complaint as to diseases among the hogs had been made by the packing houses purchasing them. That complaint was or was not made would appear to be pure hearsay. It perhaps would be permissible to show by witnesses who knew the facts that other hogs contained in the shipment with those in controversy were or were not affected with disease; but this is altogether another question.

The third, fourth, and eighth assignments are grouped, and each complains of a charge given or refused by the court. Objection is made that the assignments are improperly grouped, and that no proper bills of exception were taken to the court’s rulings with respect to the matters complained of. We have recently had occasion to construe the recent act of the Thirty-Third Legislature (page 113) prescribing the method for reviewing the court’s action in giving or refusing charges, and have held that such matter must be proved by a proper bill of exception taken at the time. See Heath v. Huffhines, 168 S. W. 974 (No. 7936), by this court, not yet officially published. These assignments are therefore overruled.

For the same reason, we cannot consider the seventh, ninth, and eleventh assignments of error; each complaining of the court’s action in giving or refusing charges affecting ap-pellees Womble and Armour & Co. The court summarily instructed a verdict for Armour & Co. in the sum of 8122.44, and no exception was taken to this charge. We have carefully considered the facts submitted by appellant in his statements submitted under the twelfth, thirteenth, and fourteenth assignments complaining of the judgment, and are clearly of the opinion tha^ they are sufficient to support the verdict and judgment.

There is no error in the record, and the judgment is affirmed.


author: RAINEX, C. J.

text:
    GUILLOT v. WALLACE.
    (No. 7178.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.)
    Garnishment (§ 38) — Property Subject-Negotiable Note.
    A negotiable note is not subject to garnishment, and, where the only proof was the .execution of the note to a third person for the purchase price of land and the garnishee’s duly abstracted judgment against such third person, there was nothing to take it out of the rule.
    [Ed. Note. — For other cases, see Garnishment Cent. Dig. §§ 73-77; Dec. Dig. § 38.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Garnishment action by Carl Wallace against Gus Guillot. Judgment for plaintiff, and defendant appeals.
    Reversed, and rendered for defendant.
    W. L. Mansfield, of Dallas, for appellant.

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

   RAINEX, C. J.

No briefs are filed by ap-pellee, and the case will be considered from the statements found in the briefs of appellant.

Appellee caused a writ of garnishment to issue against appellant alleging that appellant was indebted to one Charles M. Orr, or had effects of Orr’s in his hands.

Appellant answered denying that he was indebted to or had effects of Orr in his possession, unless the following facts would be considered an indebtedness, in that, on or about March 18, 1913, he executed and delivered to said Orr his promissory note for $5,000, payable to Orr or order five years after date thereof, and bearing interest at the rate of 8 per cent, per annum, payable semiannually. That he was informed and believes that Orr had negotiated the sale of said note to one Charles Genaro on August 2, 1913, who was demanding the first installment of interest, and prayed to be discharged with his expenses, which he alleged to be $100.

Appellee at the succeeding term of court filed a contest alleging, in effect, that said note was transferred to secure a debt of $600 until the interest would cancel said indebtedness. Upon hearing judgment was rendered against appellant for $200, from which he appeals.

We think this action of the court was wrong. In this state a negotiable note is not subject to garnishment. Willis v. Heath, 75 Tex. 124, 12 S. W. 971, 16 Am. St. Rep. 876.

The only proof made was the execution of said note, that appellant had a judgment against Orr, which had been duly abstracted, that the note was given for the purchase price of land, but no reason is shown that would subject the note to garnishment.

The judgment is reversed, and here rendered for appellant.


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. KILLETT.
    (No. 7193.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.)
    Evidence (§ 129) — Similar Pacts — Admissibility.
    Where, in an action for injuries to female passenger while alighting from a train, the issue was whether a miscarriage was produced thereby or by her own wrongful acts, evidence of a resolution by her, prior to a former miscarriage, to resort, in cases of pregnancy, to means available to produce an abortion was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. § 129.]
    Appeal from District Court, Rains County; William Pierson, Judge.
    Action by John Killett against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Chas. C. Huff, of Dallas, for appellant.

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

   TALBOT, J.

Appellee sued appellant to recover damages for personal injuries alleged to have been received by his wife on the 8th day of March, 1913, while, as a passenger, she was alighting from one of the appellant’s trains.

It is charged that while plaintiff’s wife was in the act of stepping from the bottom step of the platform of the car to a "small box or stool placed near the bottom of the steps for the passengers to step on in getting off the train the train gave a sudden jerk, and, in placing her foot on the box, the box turned, throwing her forward with great violence and down onto the ground with her other foot and against her traveling companion, greatly bruising and injuring her.” The grounds of negligence alleged are the moving of the train with a sudden jerk, and that the ground on which the box or stool was placed was rough and uneven. It is alleged that plaintiff’s wife was, at the time injured, labout three months advanced in pregnancy, and that, as a direct and proximate result of the jar and injuries received, premature labor pains were brought on, causing her to miscarry and lose her child. The defendant answered by general denial, by plea of contributory negligence, and by a special plea that the ills from which plaintiff’s wife might be suffering were not caused by any accident in connection with her leaving the train at the time alleged, but that such injuries were brought about and caused by other agencies. The case was tried before a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $900, and the defendant appealed.

Appellant’s fourth assignment of error is as follows:

“The court erred in sustaining the plaintiff’s objection and in not permitting the defendant to prove by defendant’s witness Mrs. Pearl Jones, after Dr. P. W. Pearson had testified in defendant’s behalf, that some time in the month of December, 1911, she (witness) came with plaintiff’s wife, Mrs. Maggie Killett, from the village of Ginger to Emory and returned in a buggy, and that while on said trip, after plaintiff’s wife, Mrs. Maggie Killett, had told witness that she was pregnant, that she then asked the witness, Mrs. Pearl Jones, if she could tell her anything that she could do that would cause her to abort, and that the witness, Mrs. Pearl Jones, told plaintiff’s wife that she could not, and that then plaintiff’s wife stated to witness that she was going to have her teeth extracted at that particular time, because she thought it might cause her to abort, and that about one month later, some time in the month of January, 1912, witness was called to plaintiff’s residence about daylight one morning, this being the time testified about by plaintiff’s wife when she aborted, and Dr. Allen waited on her, and that when witness reached plaintiff’s house she found that plaintiff’s wife had aborted, and that plaintiff’s wife then told witness that she had used camphorized men-tholatum, and that that was what caused her to abort, and that she had now found out what would make her abort, and that she never expected to bear any more children, and that on the third day after plaintiff’s wife had aborted that witness, Mrs. Pearl Jones, and Mrs. Lula Doyle and Mrs. Delia Gasey were at plaintiff’s house, and that they used a syringe and administered to plaintiff’s wife a douche, and that while so doing the plaintiff’s wife made the following statement to them, “What do you reckon people would say if they knew what had been in that syringe?’ and that plaintiff’s wife then further stated that she had used camphorized mentholatum on herself by the use of the syringe, and that that was what had caused her to abort, all of which is fully shown in defendant’s bill of exception No. 8.”

It is also assigned that the court erred in sustaining plaintiff’s objections and in not permitting the defendant to prove by Mrs. Lula Doyle and Mrs. Delia Casey, who are mentioned in appellant’s fourth assignment of error, that some time in the month of January, 1912, and on the third day after plaintiff’s wife had miscarried or aborted, they were present with Mrs. Pearl Jones at plaintiff’s home, and that they used a syringe to administer to plaintiff’s wife a douche, and that while they were using the syringe, or preparing to use it, plaintiffs wife asked, “What do you reckon people would say if they knew what had been in that syringe?” and said that “she had used camphorized mentholatum on herself by the use of the syringe, and that that was what caused her to abort.” The objections urged and sustained to this testimony were that the same was irrelevant, immaterial, incompetent, and hearsay. The proposition contended for by appellant in support of its contention that the court erred in not allowing the testimony is that:

“The pleadings and the evidence having sharply raised the question of whether plaintiff’s wife was fraudulently pretending that her abortion had been caused by a jar of her body while alighting from the car, her previous acts and declarations about similar occurrences near the same time, and tending to show a fixed purpose and a systematic course of conduct to produce abortions, were relevant, and were admissible as tending to throw light upon the producing cause of the abortion for which damages were asked.”

These assignments and proposition present the only question for decision. Mrs. Killett, the plaintiff’s wife, testified that Mrs. Agnes Jones was traveling with her on the occasion of her injury; that when the train stopped at Point she and Mrs. Jones got up and started to get off; that they walked down the steps of the car, and as she was stepping from the bottom step to the step box the train moved and jerked. She said:

“When I stepped down, just as I put my left foot on the box the train started. Then I stepped down on the ground with my right foot. * * * I stepped with my left foot on the box, and stepped with my right foot on the ground at the end that would be the south or east end of the box. At that time Mrs. Jones was on the ground, not right in front of me, but a little below me to my left, next to the car. She stepped off and turned to go down like we would start home, and I just put my hand on her to keep from falling. * * * No, sir; I did not fall down at all; I just stepped down on my right foot; my left foot was on the box; my left foot was still on the box when I set my right |oot on the ground.”

Mrs. Killett/ further testified that after the accident she got in:a buggy with Mrs. Jones and drove to her home in the country; that shet was suffering on the way home; that she informed Mrs. Jones that she was suffering, but did not inform her that she was threatened -with miscarriage; that Mrs. Jones left the buggy some 200 yards before she reached plaintiff’s home; that she miscarried while she was in .the buggy;, that the fetus was very small; that she had miscarried once before, which was in January, 1912, and that was the only time she had miscarried except the time involved in this suit; that Dr. Allen waited on her in January, 1912, when she miscarried; that Dr. Pearson had been called to see her, but that she had not miscarried or suffered an abortion at the time Dr. Pearson was called to see her. Mrs. Agnes Jones, a witness for defendant, testified that she was traveling with plaintiff’s wife at the time of the alleged accident, and left the train with her; that if the train moved at the time they were leaving it, or if anything unusual happened there, or if Mrs. Killett caught to her, she did not know it; that after leaving the train they got in the buggy and drove to their home; that on the way home Mrs. Killett acted and talked as usual, and made no complaint or statement about being injured. Dr. P. W. Pearson, witness for defendant, testified that in July, 1912, he was called to see Mrs. Kil-lett, plaintiff’s wife, and found her about to abort, and that she did abort at that time; that if campho-mentholatum or mentholatum should be inserted in the womb of a pregnant woman it would cause her to abort. J. P. Smith, defendant’s conductor, testified that at the time Mrs. Killett claims to have been injured there was no movement of the train, and that nothing happened to her when she got off the train to cause her an injury. This testimony was amply sufficient to raise the issue of whether the plaintiff’s wife, as a result of the alleged negligence of appellant’s servants, received an injury or jar while she was alighting from appellant’s train which cause her to miscarry, or whether she was caused to abort or miscarry from some cause for which appellant was in no way responsible, and the testimony excluded was material and relevant to that issue. We are aware of the rule that proof of drunkenness or habitual excess in the use of intoxicants on other occasions by the plaintiff in a personal injury suit is not admissible on the issue of his drunkenness at the time of his injury, and also of the rule that, when the question is whether or not a person has been negligent in doing or failing to do a particular act, evidence is not admissible to show he has been guilty of a similar act of negligence, or even habitually negligent upon a similar occasion, but we regard the question now before us as more analogous to the question of motive or intent usually involved in cases of fraud, in which a very wide range is necessarily given in proving the facts or circumstances which tend to establish or repel the fraud. Usually in such cases “it is only by collecting and grouping together numerous circumstances tending to show the fraud that it can be established.” So it has become a well-settled doctrine that, where the issue involves the fraudulent sale or conveyance of property, evidence of other like sales or conveyances by the same parties at or about the same time are admissible. It is said that the ground for the admission of such evidence is that, where transactions of a similar character, executed by the same parties, are closely connected in time, the reasonable inference is that they proceed from the same motive. Day v. Stone, 59 Tex. 612. No case just like the one before us has been cited by counsel, and we have in the search given been unable to find one; but it occurs to us that for as strong, or stronger, reason given for the wide range allowed in proving the circumstances which tend to establish or repel the charge of fraud In the sale or conveyance of property, the evidence offered by appellant and rejected by the court in this case was competent for the purpose offered. The undisputed testimony in the case shows that Mrs. Killett suffered a miscarriage in about one month from the date appellant sought to show by the excluded testimony of Mrs. Jones that she asked her “if she could tell her anything that she .could do that would cause her to abort,” and stated that she was going to have her teeth extracted because she thought it might cause her to abort, and, according to the testimony of Dr. Pearson, which is contradicted by Mrs. Kil-let, she again aborted or miscarried in about six months thereafter, and after she, according to the proposed testimony of Mrs. Jones, Mrs. Doyle, and Mrs. Casey, had stated that she had produced the first miscarriage by the use of eamphorized metholatum, and that she would rather die than give birth to another child. The excluded testimony tended to show a firm resolution formed by Mrs. Killett prior to the first miscarriage not to bear any-more children and a fixed determination to resort, in ease of pregnancy, to such means available as might be necessary to produce an abortion. The excluded testimony was therefore, we think, clearly admissible to be considered by the jury in determining the cause of the miscarriage suffered by appellee’s wife, which is charged to the negligence of appellant, and for which appellee seeks to recover damages in this suit. That the exclusion of the testimony was probably prejudicial to appellant there can be no doubt.

The judgment of the court below is therefore reversed, and the cause remanded for a new trial.