author: DUNKLIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. DECATUR COTTON SEED OIL CO.
    (No. 8213.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 3, 1915.)
    1.Railroads <@=>411 — Fences—Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 0603, declaring that every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such company in running over their respective railways, that such liability shall exist in counties which adopt the stock law, prohibiting the running at large of domestic animals, but that if the railroad light of way is fenced, the company shall be liable only for injuries resulting from a want of ordinary caro, has no application to the switchyards and station grounds, where the fencing of the tracks would endanger the safety of the railroad company’s employes in coupling and uncoupling cars.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. @=>411.]
    2. Animals <@=>50 — Stock Laws — Violation.
    Where cattle escaped from the owner’s inclosure through no fault of his, he was not guilty of a violation of the stock law prohibiting the running at large of animals.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. <@=>50.]
    3. Railroads <@=>447 — Injuries to Animals on Tracks — Actions—Instructions.
    In an action against a railroad company for the killing of cattle, the company contended that the cattle were either killed at a public mossing or while in its switchyards, which, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, need not be fenced. The accident occurred within the limits of a town whose ordinances forbade-the running at large of domestic animals, and the stock law was also in force therein. The jury were charged that if the cattle were not running at large with the consent and knowledge of the owner, then judgment should be against the railroad company. Held, that the charge was erroneous in allowing a verdict against the company, though the injury might have occurred on the public road, or in the yards, which need not have been fenced.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. <@=>447.]
    4. Trial <@=>296 — Instructions—Cure oe Errors.
    Where an instruction, purporting to generally define the rights of the parties, omits defenses, the fact that other instructions present those defenses will not cure the error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dee. Dig. <@=> 296.]
    5. Railroads <@=>435 — Injuries to Animals on Tracks — Ordinances.
    Where a municipal ordinance, prohibiting the running at large of domestic animals, is enforced, a railroad company is under no obligation to keep a lookout lor trespassing animals on its tracks in a switchyard which is not, by statute, required to be fenced.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec. Dig. <@=>435.]
    6. Trtal <@=>250 — Injuries to Animals on Tracks — Actions—Instructions.
    A charge on the duty of a railroad company to give the crossing signals prescribed by Vernon's Sayles’ Ann. Civ. St. 1914, art. 6564, is not appropriate in an action for the killing of cattle, unless they were killed on a crossing.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. <@=>250.]
    7. Railroads <@=>442 — Injuries to Cattle-Actions — Evidence.
    In an action for the killing of cattle on railroad tracks, evidence as to- where they were struck, based on the evidences found on the ground, is admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dee. Dig. <@=>442.]
    8. Appeal and Error <@=>1050 — Review — Harmless Error.
    The admission of testimony as to whether a railroad track was fenced at a point other than the place of the accident is harmless, in an action for the killing of cattle.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig-. @==>1050.]
    9. Trial @=>253 — Injuries to Cattle — Actions — Instructions.
    Where a railroad company claimed that the cattle were killed either on a public crossing or in. its switchyards, which were not required to be fenced, a charge that verdict should be for plaintiff if the place of the accident was not fenced, unless it was within defendant’s switch limits, is subject to criticism, as tending to exclude the defense that the cattle were struck on the public road.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 613-623; Dec. Dig. @=>253.]
    10. Railroads @=>447 — Injuries to Cattle-Actions — Instructions.
    In an action for the killing of plaintiff’s cattle, a charge that if defendant was not required to fence its tracks at the place where the cattle were hit, verdict should be for it, unless its agents and employes failed to use. in operating the train, such care as persons of ordinary prudence would have exercised, is too general in its terms, because it would permit the jury to construe as negligence the failure of the operatives of the train to keep a lookout for cattle, or to give signals to frighten them in the event of their presence, though the accident happened at a place where the tracks were not required to be fenced.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 1642-1650; Dec. Dig. @=>447.]
    11. Trial @=>251 — Instructions — Applicability to Issues.
    A requested charge that there was no evidence showing the train was being run at excessive speed is properly refused, in an action for killing cattle, where excessive speed was not made a basis of recovery.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 587-505; Dec. Dig. @=>251.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by the Decatur Cotton Seed Oil Company against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant. L. D. Ratliff, R. F. Spencer, Jr., and W. C. Shults, all of Decatur, for appellee.
   DUNKLIN, J.

Four head of cattle belonging to the Decatur Cotton Seed Oil Company escaped from its feed pens near its oil mill in the town of Decatur at night, and, as a result of being struck by a train of the Ft. Worth & Denver City Railway Company within the corporate limits of the town, and at a point where the railway was not fenced, two of them were killed outright, and the other two were so badly injured that they afterwards died. The owner instituted this suit against the railway company to recover damages for the value of the animals, and from a judgment in favor of the plaintiff, the defendant has appealed.

In its amended original petition plaintiff predicated its claim for damages upon allegations of negligence in the excessive speed of the train, in violation of an ordinance of the city of Decatur, in a failure of the operatives of the train to keep a proper lookout for the animals and in failing to ring the bell and blow the whistle, as required by law. In its answer defendant denied the allegations of negligence referred to, and further pleaded negligence on the part of the plaintiff in permitting the cattle to escape from the pens and wander upon the track. Defendant further alleged that the accident occurred within its switch limits in the town of Decatur, at a place regularly used by its employes in coupling and uncoupling cars; that the track was not fenced at that place, and defendant was not required by law to fence the same, by reason of the fact that so to do would endanger and impede its employes in the performance of the services necessary to couple and uncouple the cars. Defendant also alleged that the cattle were killed at a public road crossing, and denied that it was guilty of any of the negligence charged in the petition. By a supplemental petition plaintiff denied that the accident happened at a public road crossing, or within defendant’s switch limits, and specially alleged that at the place of the accident the defendant was required by law to fence its right of way.

There was evidence tending to support the defendant’s allegation that the cattle were .struck on a public road crossing, and the further allegation that if not at such crossing, then they were struck within the defendant’s switch limits in the town of Decatur, where it was necessary to leave the track unfenced in order to enable its employes to couple and uncouple cars with safety and without obstruction. Plaintiff introduced evidence tending to negative those allegations.. According to testimony offered by the plaintiff, the cattle were killed north of the public road crossing.

Upon the issue whether or not in approaching said public road crossing the statutory signals required of locomotives were given in the manner prescribed, the evidence was conflicting.

It was agreed by counsel for both parties upon the trial that at the time of the accident Decatur was a duly incorporated town, having then in full force and effect a city ordinance prohibiting cattle from running at large within its corporate limits, and prescribing a penalty against owners, or those having the cattle in charge, for permitting them to run at large in violation of that ordinance; that said ordinance was, at the time in question, being enforced by the officers of the city of Decatur, and that the place of accident was within the corporate limits of said town.

As amended in the year 1905, article 6603, Vernon’s Sayles’ Texas Civil Statutes, reads:

“Each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle; provided, however, that in all cases, if the railroad company fence its road, it shall only bo liable for injury resulting from a want of ordinary care.”

Before being amended the original article did not contain the provision—

“such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle.”

While the statute quoted does not, in specific terms, require the railroad company to fence its track, it is usually referred to in the decisions as having that effect, since, in the absence of á compliance with that statute, the railway company is held liable as an insurer against loss for the killing of cattle upon its track by its trains. According to the well-established rule of our decisions, that statute has no application within the switch limits of a railway company at and around its stations, where the fencing of the track would endanger the safety of its employes in coupling and uncoupling cars, and would impede their movements in performing that service. See Tex. Cen. R. R. Co. v. Hico Oil Mill, 126 S. W. 628; I. & G. N. Ry. Co. v. Cocke, 64 Tex. 151; I. & G. N. Ry. Co. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484.

According to evidence offered by the plaintiff, the cattle escaped from the inclosure through no fault on the part of the owner. In Texas & Pacific Ry. Co. v. Webb, 102 Tex. 210, 114 S. W. 1171, it was held that under such circumstances the owner would not be guilty of a violation of the stock law prohibiting the running at large of animals in districts which had adopted the stock law. Upon the trial of the present suit the following instruction was given the jury by the court:

“Now, if you find and believe from the evidence that said cattle were running at large in the city of Decatur, Tex., in violation of a city ordinance of the city of Decatur, Tex., prohibiting cattle from running at large, with the knowledge and consent of the plain tiff, and in violation of said city ordinance, then you will find for the defendant. On the other hand, if you find and believe from the evidence that said cattle were not running at large with the knowledge and consent of the plaintiff, then in that event you will find for the plaintiff.”

Error has been assigned to the latter portion of. that instruction, in effect, that if the cattle were not running at large with the knowledge and consent of the plaintiff, then a verdic-t should be returned in plaintiff’s favor. One of the criticisms presented to that instruction is, in effect,' that it excluded all other defenses to the suit save and except the one that plaintiff violated an ordinance of the city of Decatur by permitting its cattle to run at large. We are of the opinion that this assignment should be sustained for the reasons stated in the objection thereto just noted. If the animals were struck upon a public road crossing, or at a place within the switch limits of the defendant company where the safety of its employes required the track to be unfenced, then article 6603 of the statutes, quoted above, would have no application, and in order to entitle plaintiff to a recovery, it would be necessary for it to sustain some of the allegations of negligence shown in its petition. And it is no answer to this assignment that those defenses were submitted in other portions of the charge, since it cannot be determined which of the conflicting instructions was observed by the jury. S. K. Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814; Burgher v. Floore, 174 S. W. 819, by our Supreme Court.

Another paragraph of the court’s charge reads:

“Should you find and believe from the evidence that the track at said place was not required to be fenced, but further find that defendant’s agents and employés did not use such care in keeping a lookout ahead of the train, and blow the whistle and ring the bell, as a person of ordinary prudence would have done under the same or such circumstances, and that such failure, if any, was the proximate cause of the striking of said cattle, killing and causing the same to be killed, then you will find for the plaintiff.”

One of the criticisms presented to this charge is that as the cattle were trespassers upon the track within the corporate limits of the city of Decatur in violation of the city ordinance, the operatives of the train had the right to assume that the animals would not be at large upon the track in violation of that ordinance, and it owed no duty to keep a lookout for the purpose of discovering whether or not the cattle were on the track, or to blow the whistle or ring the bell in order to frighten them away before their presence was discovered. By another assignment appellant complains of the refusal of its requested instruction No. 3, presenting that theory of the law. As noted already, it was agreed upon the trial that the ordinance had been enforced, and we have been cited to no evidence in the record tending to show that cattle might reasonably be expected upon the track at the time in controversy. Under those circumstances we are of the opinion that, if at the place where the accident happened, the railway company was not required to fence its track, then it owed no duty to keep a lookout to discover the presence of the animals upon the track, or to give signals to frighten them away upon the supposition that they might be there, but without any knowledge of that fact, and that the extent of the liability of the company under such circumstances would be for negligence in failing to avoid injuring the cattle after their presence upon or near tlie track had been discovered, as presented in the requested instruction last referred to. See F. W. & R. G. Ry. Co. v. Hudgens, 43 Tex. Civ. App. 201, 94 S. W. 378; M., K. & T. Ry. Co. v. Byrd, 124 S. W. 738; I. & G. N. Ry. Co. v. Cocke, 64 Tex. 157; Railway Co. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484.

The court gave in charge to the jury the provision contained in article 6564, Vernon’s Sayles’ Texas Civ. Stat., relative to the duty of railway companies in approaching a public road or street to ring the bell and blow the whistle at least 80 rods before the locomotive reaches the crossing. In no event would that instruction be applicable unless the cattle were killed on the public crossing, and, if applicable at all in the present suit, its force might be overcome by the contributory negligence, if any, on the part of the plaintiff in permitting its cattle to run at large in violation of the ordinance of the city of Decatur.

There was no reversble error in permitting the witness Moss to testify where the cattle were struck, as complained in the first assignment. While it is true that he did not see them when they were injured, yet he based those answers upon the evidences found upon the ground, which, if true, would leave no' doubt as to where the cattle were struck.

While the testimony of the witness Grover Oats, which was to the effect that the right of way north of the depot is fenced up to the switches, may not have been admissible over the objection that it was irrelevant, the accident having happened south of the depot, yet we fail to see how it was prejudicial to appellant.

By another assignment the jury were told, in effect, that if the defendant’s track at the place of the accident was not fenced, a verdict should be returned for the plaintiff, in the absence of a further finding that such place was within defendant’s switch limits where the track was not required to be fenced. There was some testimony to the effect that the cattle were struck at a public road crossing. The instruction is possibly subject to the criticism that the jury might have been misled to exclude the defense that the cattle were struck on the public road crossing, and upon another trial the instruction should be so framed as to avoid that criticism.

Another paragraph of the court’s charge reads:

“In the event that the defendant was not required to fence its track at the place where said cattle were hit and killed, and crippled and wounded so that they had to be killed if they were, then you will find for the defendant, unless you further find that the agents and em-ployés of the defendant failed to use, in operating defendant’s train, such care as a person of ordinary prudence would have exercised under the same or like circumstances.”

This instruction was too general in its terms, and would permit the jury to construe as negligence the failure of the operatives of the train to keep a lookout for cattle, and to ring the bell and blow the whistle in order to frighten them in the event of their presence, but before such presence was discovered, even though the accident happened at a place where the statute did not require the track to be fenced, and was erroneous for the reasons already given.

There was no reversible error in refusing to give the defendant’s requested instruction, to the effect that there was no evidence to show that the train was running at an excessive rate of speed at the time of the accident, since that issue was not submitted to the jury as a basis for recovery.

Our views on questions presented in other assignments are sufficiently indicated in the foregoing conclusions, and a further discussion thereof is unnecessary.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      ^=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gns>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOUiR'SUND, J.

license: Public Domain

text:
    CITY OF BROWNSVILLE v. TUMLINSON.
    (No. 5510.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 20, 1915.
    On Motion for Rehearing, Nov. 17, 1915.)
    1. Pleading <®=»183—Supplemental Answeb —Necessity.
    Where a supplemental petition consisted solely of exceptions and denials, and alleged no new matter, there was no place in the pleadings for a supplemental answer.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 389-396; Dec. Dig. <&wkey;183.)
    2. Appeal and Ekbob <&wkey;1041 — Harmless Ebkob—Amendment of Pleadings.
    Where a pleading sought to be filed by defendant after its announcement of ready, although styled a supplemental answer, was in response to the amended original petition and was therefore an amendment, and the court permitted defendant to file a trial amendment, setting up new matter in defense of plaintiff’s suit, it did not appear that defendant was injured by the court’s refusal to permit defendant to withdraw its announcement of ready in order to file such so-called supplemental answer.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. <&wkey;> 1041.)
    3. Pleading <&wkey;199 — Demubeee — Time eor Demubbeb.
    If a general demurrer is well taken, it should be sustained at any stage of the proceedings.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 464-469; Dec. Dig. <&wkey;>199.]
    4. Appeal and Ebbob <&wkey;1040 — Haemless Error—Refusal to Rule on Demubbeb.
    Defendant cannot complain of the court’s refusal to rule on a general demurrer, unless it is well taken.
    [Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 40S9-4105; Dec. Dig. &wkey;> 1040.]

      5. Appeal and ERROR &wkey;>242 — Fundamental Error — Refusal to Rule on Demurrer.
    When the court refuses to rule on a general demurrer which is well taken, the case will be reversed for fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1417-1425 ; Dec. Dig. d&wkey; 242.]
    6. Pleading &wkey;>228 — Demurrer or Exception.
    A special exception which did not go to the form of the pleading, but asserted that defendant was not bound by the contract sued on, because it was an oral one, and that plaintiff therefore stated no cause of action, was a general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;228.]
    7. Municipal Corporations <&wkey;243 — Contracts — Form—Oral Contracts.
    As Rev. St. 1911, arts. 769-771, authorizing cities to construct electric light plants and waterworks are silent as to how contracts with their customers shall be made, a contract by a city to furnish electric current was binding on the city, although oral; the superintendent who made the contract having special authority to make oral or written contracts.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 675-677; Dec. Dig. &wkey;243.]
    8. Licenses <&wkey;39 — Remedy of Unlicensed Persons.
    Where plaintiff intending to engage in the moving picture business, contracted with defendant for electric current with which to light his theater building and conduct a moving picture show therein, and defendant’s failure to furnish such current delayed him in engaging in such business, he was not precluded from recovering damages sustained before engaging in the business, because he did not, at that time, have any license from the state to conduct such business, as he was not required to have a'license before he engaged in the business, especially as the statute imposing an occupation tax upon the theater business was passed for the purpose of raising revenue, and he paid the tax the day he commenced business.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. &wkey;?39.]
    9. Evidence <&wkey;433 — Parol Evidence to Vary Writing — Mistake.
    Where a written transfer by a partner of his interest in the partnership business did not include a transfer of claims due the firm, and it did not appear on the face of the instrument, or otherwise, that the instrument was intended to evidence a part only of the transaction, but, on the contrary, it was claimed that the failure to include a transfer of claims resulted from a mutual mistake, it could not be shown by parol that there was a transfer of such claims, as the rule that where the original contract was verbal and entire, and a part only reduced to writing, the parol part may be shown by oral evidence cannot be resorted to for the purpose of adding other property to that mentioned in a conveyance, when the parties undertake to make the written instrument cover the entire transaction ; the remedy when a mutual mistake is made in describing the property transferred being to bring an action to reform the conveyance.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1990-2004; Dec. Dig. &wkey;>433.]
    10. Reformation of Instruments <@=»33, 36 —Actions—Pleading—Parties.
    In an action on a claim due a partnership by one of the partners who had acquired the interest of the other partner in the partnership business, if it was desired to reform the instrument transferring such partner’s interest so as 'to include claims due the firm, the petition should have contained proper allegations, and the partner who made the transfer should have been made a party, so that the reformation of the instrument would be binding on him.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. |§ 122-139, 141-146; Dec. Dig. <5&wkey;33, 36.]
    11. Damages <&wkey;23 — Breach of Contract-Damages Not within the Contemplation of the Parties.
    Where defendant’s representative understood, when he contracted to furnish electric current to plaintiff for his theater building, that the business to be conducted therein was that of a moving picture show, it was not within the contemplation of the parties that a breach would cause damages on account of salaries to be paid members of a vaudeville troupe.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]
    12. Damages <&wkey;23 — Breach of Contract-Damages Not Within Contemplation of Parties.
    Notice to defendant’s representative, after the contract was made and before the breach, was not sufficient to entitle plaintiff to recover as special damages the amount paid to such vaudeville troupe.
    LEd. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]
    13. Damages <&wkey;176 — Breach of Contract-Evidence — Loss of Profits.
    In an action for breach of contract to furnish electric current for plaintiff’s theater building, plaintiff, in testifying to his loss of profits, was not bound to estimate his loss for each night separately.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 461, 468, 471, 493; Dec. Dig. &wkey; 176.]
    On Motion for Rehearing.
    14. Evidence <&wkey;442 — Parol Evidence to Vary Writing.
    In an action by one member of a partnership on a claim due the firm, evidence held insufficient to show that the written transfer of the other partner’s interest in the firm business, which was not in the record and did not include claims due the firm, purported to express only a part of the transaction, so as to authorize parol proof of the other part, especially where plaintiff expressly testified that the instrument was intended to cover the claims, but that they were omitted by mutual mistake.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. &wkey;442.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by T. R. Tumlinson against the City of Brownsville. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    T. A. Kinder and H. W. Williams, both of Brownsville, for appellant. F. W. Seabury, of Brownsville, for appellee.
   MOUiR'SUND, J.

T. R. Tumlinson sued the city of Brownsville for $1,399.70, with interest, alleged to be due because of the breach of a contract, whereby said city bound itself to furnish said Tumlinson and O. N. Boston with electric current for the purpose of lighting a theater building and conducting a moving picture show therein. Plaintiff alleged that be had acquired Boston’s interest in the claim sued upon. The .damages claimed were: (1) Special damages in the sum of $210, of which amount $100 was paid to members of a vaudeville troupe under contract made before plaintiff ascertained that no electric current would be furnished, $5 paid for advertising, and $105 for loss of profits during the week for which said vaudeville troupe had been engaged; (2) net actual and necessary expenditures for substitution of another source of electricity during the 90 days the city refused to furnish same, amounting to $689.70; (3) amount of loss of business and patronage, resulting from inferior service thus forced on Tumlinson '& Boston $500. Defendant answered by general demurrer, special exceptions, denials of the allegations of the petition, and specially pleaded that it had no notice or knowledge of any contract made by Tumlinson & Boston with any vaudeville troupe, or that he could not conduct the show unless he procured current, or that he would lose any profits if the current was not furnished. Defendant also pleaded that Tumlinson & Boston were indebted to it in the sum of $26.75 at the time its representative, Burks, made the contract sued lupon, but that Burks did not know of such indebtedness until after making the contract, and then, acting under an ordinance of the defendant authorizing him to cut off all electric current connected for patrons whose bills remained unpaid for more than five days, he disconnected the current at plaintiff’s theater. Defendant further pleaded that, at the time the contract sued upon was made, Tumlinson & Boston had not procured a license for the purpose of running a theater, and therefore could not recover. Plaintiff, by supplemental petition, denied the allegations contained in the answer. Defendant, by trial amendment, alleged that Tum-linson & Boston were guilty of negligence in purchasing and installing a gasoline engine of inferior quality for the purpose of running a dynamo to produce .electricity for their theater, and also in undertaking to operate such engine without being competent to do so, and that the damages were caused by such negligence on the part of Tumlinson & Boston. It also pleaded that plaintiff conducted his business on Sunday, in violation of law, and therefore should not be permitted to recover. By agreement these allegations were considered denied without any pleading being filed. The trial resulted in a verdict in favor of plaintiff for $1,354.70, with interest from October 1, 1909, and judgment was entered in accordance with such verdict.

By the first two assignments of error complaint is made of the refusal to permit defendant to withdraw its announcement of ready, for the purpose of filing its first supplemental answer and “Adoption of its First Amended Answer.” These assignments are without merit. There was no place in the pleadings for a supplemental answer. The supplemental petition consisted solely of exceptions and denials, and did not allege any new matter. The pleading which was sought to be filed, although styled supplemental answer, was in fact an amendment, as it was in response to the amended original petition. Defendant was permitted to file a trial amendment, in which it set up new matter of defense to plaintiff’s suit, and it does not appear that defendant suffered any injury by reason of the ruling complained of.

By the third assignment appellant complains of the refusal of the court to permit it to present its general demurrer and a special exception after the parties had announced ready for trial and some of the jurors had been selected. If a general demurrer is well taken, it should of course be sustained at any stage of the proceedings, but defendant cannot complain when the court refuses to rule upon a general demurrer, unless it is well taken, and if it is, the case will be reversed for fundamental error. The special exception not ruled on by the court did not go to the form of the pleading, and was a general demurrer, for it asserted that because the contract sued upon was an oral one, the defendant was not bound thereon, and therefore plaintiff stated no cause of action. The same question was raised by objection to the evidence, and by the fourth assignment of error appellant contends that its objection to the admission of evidence of an oral contract should have been sustained. We are not cited to any statute or charter provision which required the contract to be made in writing. The statutes authorizing cities to construct electric light plants and waterworks are silent as to how contracts shall be made with their customers. Articles 769-771, R. S. 1911. The superintendent who made the contract, had express authority to make oral or written contracts. He reported the contract in his next monthly report. In the analogous case of drainage districts it has been held that contracts need not be in writing where the statute does not specify written contracts. Matagorda Drainage District v. Gaines, 140 S. W. 370; Swearingen v. Drainage Dist., 142 S. W. 1006; Hidalgo Dist. v. Swearingen, 158 S. W. 211. See, also, Cyc. vol. 28, p. 666. We conclude there is no merit in the contention that the city is not bound by an oral contract, and that the petition was not subject to general demurrer because the suit was upon an oral contract, nor was it subject to general demurrer upon any other ground. It, therefore, follows that assignments 3 and 4 must be overruled.

By the fifth assignment complaint is made because the court permitted plaintiff to testify to certain evideneé of damages incurred prior to June 11,1909. This testimony was objected to on the ground that plaintiff could not recover such damages, because at the time they accrued he had no license from the state to conduct the business. This is not a case in which the plaintiff seeks to recover on account of a contract made in conducting a business without license, but one in which plaintiff, intending to go into business, made a contract for that purpose, which was breached by the other party. He was uot required to pay an occupation tax until he engaged in the business, and this he claims he was prevented from doing until June 11th on account of the city’s breach of the contract. The evidence warrants a finding that on June 11th, the very day on which he began business, he paid the occupation tax, but the receipt was not issued until June 30th. The receipt showed that the time for which payment was made began on June 11th. As the assignment does not relate to any damages save those claimed for the time preceding June 11th, we need not consider those accruing between June 11th and June 30th. The law does not preclude him from recovering the damages suffered by reason of the breach of the contract merely because he failed to pay the occupation tax for a period of time in which he was not engaged in the business. Even had this been a case where suit was brought for money due on account of the conducting of the business, it seems plaintiff could recover, as the statute imposing an occupation tax upon the theater business was passed for the purpose only of raising revenue. Ft. Worth & D. C. Ry. v. Carlock & Gillespie, 33 Tex. Civ. App. 203, 75 S. W. 931; Watkins Land Mortgage Co. v. Thetford, 43 Tex. Civ. App. 537, 96 S. W. 72; Amato v. Dreyfus, 34 S. W. 450; Cyc. vol. 25, p. 633. The assignment is overruled.

Plaintiff testified to the transfer by Boston of all of his partnership interest in the theater business to plaintiff, including all claims due the firm, and stated that the transfer was in writing. Afterwards plaintiff was recalled, and he then testified that he had found the transfer and ascertained that it did not include a transfer of the claims due the firm; that this was a mistake, for the entire agreement between him and Boston included the transfer to himself of all claims as well as all personal property. This testimony was objected to on the ground that there was no allegation in the petition to the effect that the word, “claims,” had been left out of the transfer by mistake, and therefore the testimony was inadmissible. It was not shown by plaintiff that the instrument on its face purported to evidence only part of the transaction, nor does plaintiff’s testimony show that they did not undertake to put in writing the entire trade between the parties. On the contrary his testimony shows that it was the intention of the parties to embrace in the written instrument the entire transaction, and that the failure to do this resulted from a mutual mistake. Under such circumstances plaintiff cannot fall back upon the rule that where the original contract was verbal and entire, and a part only reduced to writing, the pa-rol part may be shown by oral evidence. That rule was never intended for the purpose of adding other property to that mentioned in a conveyance when the parties undertake to make the written instrument cover the entire transaction. When a mutual mistake is made in describing the property transferred the remedy is to bring an action to reform the conveyance. Clark & Plumb v. Gregory, Cooley & Company, 87 Tex. 191, 27 S. W. 56; Coverdill v. Seymour, 94 Tex. 9, 57 S. W. 37. Plaintiff cannot prove his title to Boston’s half interest in the claims by pa-rol testimony conflicting with a written instrument by which the parties undertook to state their contract, and such parol evidence of ownership should have been excluded. If it was desired to reform the instrument for mutual mistake, and in the same suit recover thereon, the petition should have contained appropriate allegations, as contended by defendant, and in addition Boston should be a party to the suit, so that the reforming the instrument would be binding upon him. The sixth and seventh assignments of error are sustained.

Appellant contends that its representative, Burks, had no notice or knowledge that plaintiff had contracted with a vaudeville troupe for performances beginning June 1 and ending June 7, 1909, and that he would suffer loss if said troupe was unable to exhibit. The evidence shows that Burks had notice before the breach of the contract that the theater was intended to be used for vaudeville performances, and that a troupe had been procured by Tumlinson & Boston, but there is no .evidence that he was informed, at the time or prior to the making of the contract, that the theater would be used for that kind of exhibitions. He testified that he knew they intended to use it for moving picture exhibitions. It cannot be held that it was within the contemplation of the parties that a breach would cause damages on account of salaries to be paid members of a vaudeville troupe, when it was understood that the business to be conducted was that of a moving picture show. Notice given after the contract is made, though prior to the breach thereof, is not sufficient to entitle a party to recover special damages for breach of contract. Railway v. Belcher, 89 Tex. 428, 35 S. W. 6; Terrell, Atkins & Harvin v. Proctor, 172 S. W. 1001. The eighth assignment of error is sustained.

Appellee testified that his loss of profits during the time they ran the show without current from defendant was $500. This was his estimate for the entire time, and he testified that at first the attendance was very good, but gradually fell off. It was not incumbent upon him to estimate his loss for each night separately, nor would anything have been gained by having him do so. Appellant contends that appellee testified to a loss of $15 per night, but admitted that there was no loss during several of the first nights, and therefore the evidence is uncertain. Appellee did not testify to his loss of profits being $15 per night during the time he actually ran his show, but that he estimated his loss of profits at $15 per night during the week the vaudeville troupe was not able to show on account of lack of lights. Had he sued for $15 per day for the time he ran dhe theater with his own power, the amount would have been about $1,100, instead of $500. The jury must have found for loss of profits during such time in the sum of at least $455, in order to arrive at its verdict, and we find that the testimony supports such finding, and overrule the ninth and tenth assignments of error.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee has filed a remittitur covering the item of $100 special damages mentioned in disposing of the eighth assignment of error, and his motion for rehearing is therefore directed entirely to the ruling made in sustaining the sixth and seventh assignments of error.

He contends that the transaction between himself and Boston consisted of: (1) The sale of (a) realty, (b) corporeal personal property, (c) an interest in a partnership, •(d) claims, accounts and other ehoses in action ; (2) the agreement of Boston to make a cash payment and to assume the payment of the partnership debts; and (3) the dissolution, liquidation, and settlement of a copartnership. He contends that he corrected his testimony so as to show that such was the transaction, and that a valid parol transfer was made of the chose in action. He contends, further, that only a part of the entire transaction was reduced to writing, and that the written instrument does not purport to carry into effect, or express in writing, the entire transaction. The instrument does not appear in the record. Appellee designated it as a transfer, which mentions that Boston “deeds” to appellee all of his personal property, including the “Airdome,” that he has nothing to do with the Airdome. He testified, further, that the understanding with Boston was that Boston was to “deed” over all the rights and claims and property, and he, Tumlinson, was “to assume all indebtedness on the thing”; that he did not know why the transfer of claims was not included in the instrument; that it was a mistake, a mistake by both of them; that he first found out that morning that the written transfer did not include expressly the word, “claims.” This testimony does not show that any part of the agreement was omitted except that relating to claims. The witness did not testify that the dissolution ‘of the partnership was not provided for in the instrument, nor that the consideration was not fully set out, and it appears that while he uses the word, “deed” in lieu of “convey” or “transfer,” the instrument not only conveys land, but also personal property. It is also apparent that the witness does not undertake to prove an oral contract of which only a portion was intended to be reduced to writing, but expressly says the writing was intended to cover the matter of claims, and that such matter was omitted only because of a mistake on the part of both parties. We cannot say from his testimony that the written instrument on its face purports to express only a part of the transaction, and his testimony shows affirmatively that the' instrument was intended to cover the contract relied upon by him to show his ownership of the claim sued upon. It is frequently the case that only those portions of a contract are reduced to writing which evidence the transfer of land, or which evidence the consideration, and the rule relied upon by appellee is well recognized, but the facts do not bring this ease within the rule.

It is of course true that often the written instrument is of such a nature that it shows conclusively, when considered with the tes-timoiiy relating to the nature of the transaction leading up to its execution and delivery, that the entire agreement or contract was not intended to be embraced therein. But the testimony in this case fails to show such an instrument, but shows a “transfer” which might well have embraced the entire contract, and which appellee admits was intended to include the contract relied upon, and would have included same had it not been omitted by mistake.

The motion is overruled.
      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: BÍJCK, J. BUCK, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LOVELL.
    (No. 8227.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Railroads <&wkey;44íi — Operation—Cake Required — Inability.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, providing that railroad companies shall be liable to the owner for the value of all stock killed or injured by the locomotive and cars of the company in running over their respective railways, and that, if the railway company fences its road, it shall be liable only for injuries resulting from a want of ordinary care, there is no prima facie ease against the railway for the death of a horse which fell through a trestle on the defendant company’s right of way, upon which it went through a defective fence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443.]

      S. Appeal and Error <S=o907 — Presumptions —Matters Not Shown by Record — Stock Law. ,
    Where the record of a case does not show whether the stock law prohibiting horses and other animals from running at large was in force, the court on appeal will presume that it was not in force.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2S99, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907.]
    3. Railroads <&wkey;425 — Injury to Animals— Proximate Cause.
    Where several horses got onto a railroad right of way through a defect in the fence, and were frightened by a train so that part of them broke through the fence, while others crossed a bridge over a stream, and one of the latter, after the train had passed, attempted to cross back over the bridge to rejoin its companions, and fell through and was so injured that it had to be killed, the attempt to recross the bridge was the proximate cause of the injury, and not any negligence of the railroad company in the construction or maintenance of the fences or bridge.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. &wkey;425.]
    Buck, J., dissenting.
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by G. W. Lovell against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    Arnold & Taylor, of Henrietta, and C. C. Huff, of Dallas, for appellant. Wantland & Parrish, of Henrietta, for appellee.
   BÍJCK, J.

Appellee, as plaintiff, filed this suit in the county court of Clay county, alleging damages for the killing by defendant railway company of one brown mare of the alleged value of $150, and injury to four other horses in the sum of $20 each. He alleged that on or about the 22d day of August, 1914, these horses got out of the in closure without his fault, and got on defendant’s right of way, and became frightened at a passing train over defendant's railway, and that the unusual, violent, and negligent blowing of the whistle and sounding of the bell caused three of the animals to run into and through and over a fence extending from defendant’s right of way to a certain culvert or bridge therein, and which were thereby cut, bruised, and injured in the sum of $20 each, and that one of said horses was thereby caused to enter upon the said culvert or bridge, and was thereby scratched, bruised, and injured, to its damage in the sum of $20, and that one brown mare was caused to go upon said culvert or bridge and get caught therein between the openings between the cross-ties, and was so seriously injured that the defendant’s employes killed her.

No complaint is made of the judgment for $330, except as to the item of $150 for the mare killed. The defendant pleaded in the court below, and here urges, that because said animal was not struck by any locomotive or car belonging to the defendant, and said injury and damage was not the result of, or caused by, any locomotive or car striking the animal, but that said injury and damage was caused solely by said animal going onto said bridge and falling between the cross-ties thereof, the defendant is not in law liable therefor.

The evidence showed that at the place where the accident occurred the right of way runs east and west, and is crossed by a third-class public road running north and south; that the right of way is fenced, and that on the north side of the intersection of the right of way and the public road the railway company had theretofore kept and maintained a wire gap or gate, but that this gate was down at the time the horses entered the right of way from the north and was out of repair, and had been for some time previous thereto; that on the south side of the right of way there was another gate, which was closed; that a short distance from the intersection of the road with the right of -way eastward there was a bridge or culvert some 25 or 50 feet long extending over a creek, and that from each end of the culvert, and. on both the north and south sides thereof, there was a fence extending in an oblique direction to the right of way fence; that the culvert was from 10 to 15 feet from the ground, or the bottom of the creek.

John Choate testified:

“I was about 1,000 yards from the crossing when the east-bound local train came along going towards Denison. My attention was at-' tracted by the loud whistling of the train. I looked down toward the train, and saw the train after it had passed the crossing, going toward the east, and it was right behind the horses, whistling as loud and as fast as it could and was shooting out steam that was blowing right out behind the horses. It ran some of the horses through the right of way fence that leads up to the culvert and clear on beyond east of the culvert, and three of the horses tan through the right of way fence over into the place owned by Mr. Bear, and three of them ran into the right of way fence west of the culvert, and turned back down inside of the right of way. In this way three of the horses were left in the right of way, and three of them in Mr. Bear’s pasture, and the only way that the three in the right of way could get back to where they came from, or to where the others were, was for them to either go through the right of way fence or to follow the right of way fence onto the culvert and go over the culvert.”

Henry Sebert testified in the main as did the last-named witness as to liow the horses got through the fence or fences, except that he testified that after the east-bound train had passed the three horses which had got by the culvert and were still in the right of way turned back, and that:

“Between the time the west-bound passenger came and the east-bound passenger came 1 saw the other horses, two of them in the right of way, and three of them .in Mr. Bear’s pasture or field. They were all cut up pretty badly. I don’t know how this mare got onto the trestle, as I did not see her go there. * * * My judgment is that the train could not have passed over her and left her in that condition. The only way that the three horses that I saw on the east side of the culvert could have gotten back to where they came from or to where the other horses were would have been to go over that culvert or through the right of way fence.”

Prom this testimony it would appear that one east-bound train passed before and one after the west-bound train.

C. C. Harbison, section foreman, testified for the defendant:

“Our crew killed the mare after she had been dropped from the bridge. I saw the mare at the time she went onto the trestle. I was a good ways off, but at the time she went over the trestle the train was not there. She fell through the trestle without the train striking her, and no train struck her at all. When she went onto the trestle she was going back from where she had come — back to where the other horses were. The only way she had to get back was to go over the trestle or through the right of way fence.”

It will be seen from the evidence quoted, which is supported by other evidence in the case, that, so far as the mare that was killed is concerned, the injury to her, which resulted in her death, was caused by an attempt on her part to walk the trestle in an effort to get back to the west side thereof, and that in doing so she fell through and was so badly injured that she had to be killed. It is evident from the testimony in the case, and we so find, that she was not killed by coming in contact with a locomotive or train of defendant railway, and therefore there is not shown a prima facie case of liability on the part of the railway, as provided in article 6603, Vernon’s Sayles’ Tex. Civ. Stat., which reads as follows:

“Bach and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle: Provided, however, that in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care.”

The record is silent in this case as to whether or not the stock law prohibiting horses and other animals from running at large was in force in Olay county at the time of the accident. Therefore we are justified in concluding that it was not. But it is provided in the article of the statute above quoted that:

“If the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care.”

It is not contended by appellee that the defendant company is liable absolutely for the injury complained of, or that his action is predicated upon this article. It is urged that, if the railroad company failed to exercise ordinary care to prevent injury to the mare in question, it would be liable under the common law, and he cites, among other cases, the case of Railway Co. v. Dixon, 49 Tex. Civ. App. 506, 109 S. W. 978, which holds, in effect, that where a railroad company erects a fence along its tracks it owes to the adjacent owners1 the duty to exercise ordinary care to keep the fence in proper condition, and that, where it fails so to keep its fence, and horses, escaping, get onto the track and are frightened by a train, and run onto a bridge and are injured by falling through the bridge, the negligence in not keeping the fence repaired is the proximate cause of the injury, and that the railroad company is liable therefor. It is further held in that case that, where a railroad company fences its right of way, it assumes the duty of keeping it in proper condition and repair, and that the gate into the right of way may be treated as a part of the right of way fence. This latter holding is limited to cases where, as in this case, it is not shown that the gate was installed for the benefit of the adjacent landowner.

If is held in Railway Co. v. Hughes, 68 Tex. 290, 4 S. W. 492, and other cases construing article 4528, Revised Statutes of 1895, which in the main contains the provisions now in article 6603, supra, that, while no absolute liability results when the right of way is not fenced, unless there is a physical contact of the moving engine, or a part of the train, with the animal killed or injured, yet that a liability might arise on account of negligence, although there is no contact of the animal with the moving train. The opinion in the Dixon Case goes on to say:

“The railway company has seen fit to fence its right of way, and, if by its negligence it has permitted the fence to become defective and stock to wander upon the track, it presents a case in which it is not the absence of the fence that makes it liable, but a case in which its negligence was the proximate cause of injury. When the track is not fenced, animals upon it or near it have the means of escape from injury which do not exist when the track is fenced on both sides; and, when such is the case, animals, which are permitted to enter upon the right of way and track between the two fences are more exposed to danger and more liable to sustain injury than would be the case if they were not confined to the narrow limits of the right of way.”

But can we say that in the instant case the plaintiff has alleged such negligence as would make the railway company liable, and, if so, does the evidence sustain such allegations? Plaintiff alleged negligence of the defendant in the following language:

“That there is no fence, cattle guard, or obstruction to prevent stock from passing over said dirt road going south and on said right of way from the north, nor from going upon defendant’s said right of way and railroad track, both easterly and westerly, and, in fact, upon reaching said right of way over said dirt road from the north, such stock could find no outlet, except upon and over said right of way or to return north over said road, and plaintiff says that the failure to have a fence or cattle guard or obstruction from the' intersection of said dirt road fences with defendant’s right of way fences on the north side of said right of way to the defendant’s railroad, and proper cattle guards, is negligence on the part of defendant, and that by leaving the matter in the condition it is now and was in at the date of the injury herein complained of, without such fence, cattle guards, or obstruction, formed and created a ‘trap’ or ‘pocket’ to catch or ensnare stock onto said right of way and between the said railroad track proper and the wire fences of defendant on the north and south side thereof, all of which plaintiff says is negligence, and the proximate cause of plaintiff’s stock getting upon said right of way and being killed and injured, as further alleged herein.”

In subsequent paragraphs plaintiff alleges the construction of the fences at either extremity of the trestle or bridge or culvert connecting with the right of way fences at either end and on both sides, and alleges that such construction constitutes a “pocket” or “trap” for stock which have come on the right of way through said open gate or because of the absence of the gate. He further alleges negligence in the construction of the trestle, in that the ties are so placed that they permit the hoofs and limbs of horses and cattle to slip or pass between them.

We find nothing in the record to suggest that the trestle in question was negligently constructed, or constructed differently from those commonly used. If the death of the mare in question had been caused at the time of the passing of the east-bound train, and when three of the horses got over into the field north, and three others, including the mare in question, either got through both of the fences on the north side of the trestle and joining the ends of the trestle with the right of way fence, or passed over the trestle itself, and the witnesses seem to leave the matter in doubt as to which means was employed, we would feel justified in sustaining the judgment as to the $150 item, and to hold that the act of the railway company, and those in charge of its engine, in causing the engine to whistle, blow off vast quantities of steam, and the ringing of the bell, thereby frightening the animals, and causing them to run through the fences and onto the trestle, was the proximate cause of the.injuries; but the damage complained of as to this particular item, it does not seem, at least to the majority of the court, could have been reasonably anticipated. It appears that the mare which was killed, as well as two others of the horses, at the time the horses were frightened at the approach of the east-bound train, and caused to run eastward from the intersection of the public road and the right of way, and down the right of way north of the track, managed, either by going through the fences connecting the ends of the trestle with the right of way fence.or over the trestle, to escape the danger from the approaching train, and after the passing of the train turned back westward, and that the mare in question, in attempting to go back westward over the trestle, fell through the interstices between the ties, and received the injuries necessitating her being killed. In the judgment of the majority, this accident and injury was not such as resulted in direct sequence from any negligence of the railway company alleged by plaintiff, but was due to an independent and nonconcurring cause, to wit, the unusual and not to be anticipated notion that the mare took to undertake such a hazardous feat. Moreover, the majority are not satisfied that the evidence is sufficient to show notice to the defendant of the condition of the north gate.

Therefore, in the judgment of the majority, the railway company in no event could be liable for the value of the animal killed. The judgment of the trial court is reformed so as to exclude the item of $150, and, as thus reformed, is affirmed in the sum of $80, with interest at 6 per cent, from date of judgment. The costs of this appeal are adjudged against appellee.

Reformed and affirmed.

BUCK, J.

(dissenting). I cannot agree with the views expressed in the majority opinion, nor in the disposition of this case. If the railway company is liable for the injuries sustained by the horses which ran through the fences to escape from what, no doubt, seemed to them an approaching monster, emitting loud and frightening noises, and belching forth clouds of smoke and steam, then it seems to me that no less is it liable for the death of the mare in question, which, having escaped from the threatening and imminent danger, as she saw it, followed the natural promptings of her equine nature to get back to her companions by the only means of egress that presented itself. To one who knows horses and understands their habits it would seem that, under the circumstances, it must have been reasonably anticipated that in all probability she would have attempted to do the very thing she did do, not realizing the danger from the gaps in the walkway selected until after she started onto the trestle, and it was too late to turn back. I believe the accident in question is a result which naturally flows in a continuous sequence from the negligence of the railway company in permitting its gate or gap into its right of way to be down or get out of repair, or in failing to have fences and cattle guards on either side of the intersecting public road, thereby inviting loose stock to enter upon such right of way. The case of Railway Co. v. Dixon, cited in the majority opinion, is believed to be directly in point, and to support the judgment of the trial court as to this item of damage. Ap-pellee also cites Railway v. Benaist, 122 S. W. 587, Railway Co. v. Harris, 3 Willson, Civ. Cas. Ct. App. § 224, Railway Co. v. Mitchell, 4 Willson, Civ. Cas. Ct. App. 261, 17 S. W. 1079, and Railway Co. v. Cooper, 75 S. W. 329, all of which in more or less degree upon the point in issue support the Dixon Case. In the last-cited case, by this court, Judge Speer says:

“The evidence shows that the animal was killed within the appellant’s station grounds in the town of Miami, and at a place where it is not required by law to fence its right of way. Railway Co. v. Blankenbeckler [13 Tex. Civ. App. 249] 35 S. W. 331, and authorities cited. In such case it is incumbent upon the plaintiff to prove more than the mere killing; he must prove that it was negligently done. But this does not mean negligence of the train operatives alone, for any negligence of the defendant proximately causing the injury will suffice to establish liability. In this case the testimony tended to show negligence in the construction and maintenance of some stock pens and wing fences, forming what the witnesses denominate a ‘pocket’ that was dangerous to stock, and which was the occasion of appellee’s mule being caught upon the track and killed. Negligence in this respect might be sufficient to show liability.”

It is my opinion that the judgment of the trial court should be in all respects affirmed.

        r^r-_ — .Um- other eases see same topic and K13Y-NUMBER in all Key-Numbered Digests and Indexes

      (3&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    CATTLEMENS TRUST CO. OF FT. WORTH v. WILLIS, District Judge, et al.
    (No. 8340.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 9, 1915.
    Rehearing Denied Nov. 13, 1915.)
    1. Courts <&wkey;207 — Court off Civil Appeals —Issuance op Pberooative Writ — Prohibition.
    Under Const, art. 5, § 6, providing for division of the state into supreme judicial districts, and establishment of a Court of Civil Appeals in each district, which shall have appellate jurisdiction extending to all civil cases of which the district courts and county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1592, giving Courts of Civil Appeals the power to issue writs of mandamus and all other writs necessary to enforce their jurisdiction, the Court of Civil Appeals has power to issue a writ of prohibition to protect its jurisdiction.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. <&wkey;>207; Prohibition, Cent. Dig. § 65.]
    2. Courts <&wkey;>207 — Court off Civil Appeals —Issuance op Writ of Prohibition.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1591, relating to judgments of the Court of Civil Appeals, a judgment of the Court of Civil Appeals, affirming- a money judgment of the district court, with damages for delay, is the judgment of the appellate court, and not that of the district court, though it be remitted to the district court for enforcement; hence prohibition will lie to prevent another district court enjoining enforcement of the judgment.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. <§=>207; Prohibition, Cent. Dig. § 65.]
    3. Courts <&wkey;207 — Issuance of Prohibition —Jurisdiction of Court of Civil Appeals.
    Where a judgment of one district court against a resident of another district, after being affirmed by the Court of Civil Appeals, was sought to be enjoined by a district court lying-outside of the supreme judicial district over which the Court of Civil Appeals had jurisdiction, prohibition against the defendant and the judge of the district court in which injunction ■ivas sought may be issued by the Court of Civil Appeals; such defendant having been party to the original suit, and both having appeared and answered.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. &wkey;>207; Prohibition, Cent. Dig. § 65.]
    4. Courts <&wkey;207 — Court of Civil Appeals —Issuance of Prohibition.
    In view of Const, art. 5, § 6, giving Courts of Civil Appeals power to issue all necessary writs, the Court of Civil Appeals of o-ne district may issue a writ of prohibition against a district court of another district and parties residing in another district to prevent interference with its judgment.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. <&wkey;>207; Prohibition, Cent. Dig. § 65.]
    5. Prohibition <&wkey;12 — Grounds of Defense.
    In view of Rev. St. 1911, arts. 4643, 4653, providing for the return of writs of injunction before the court where the action is pending, a writ of prohibition, issued to prevent one district court from interfering with the judgment of another district court, which had been affirmed by the Court of Civil Appeals, will not be denied on the ground that the court-in which injunction was sought would properly administer the law according to the facts.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 61; Dec. Dig. <&wkey;12.]
    Petition by the Cattlemens Trust Company of Ft. Worth for a writ of prohibition against Frank Willis, District Judge, and another.
    Writ issued.
    A. H. Kirby, of Ft. Worth, for petitioner. J. W. Payne, of Ochiltree, Newton P. Willis, of Canadian, and George W. Steere, of Ft. Worth, for respondents.
   CONNER, C. J.

This is an application on the part of the Cattlemens Trust Company of Ft. Worth against J. M. Blassingame, of Ochiltree county, and against Hon. Frank Willis, judge of the Thirty-First judicial district, for a writ prohibiting the said Blas-singame from further prosecuting and the said judge from a further hearing of a writ of injunction issued by order of said judge on September 1, 1915, restraining an execution sale of certain lands belonging to Blassingame situated in Ochiltree county. The application for the writ is based upon the following undisputed facts:

On June 15, 1914, the Oattlemens Trust Company recovered a judgment by default in the district court of Tarrant county against the defendant J. M. Blassingame for the sum of $869.40, being the principal, interest, and attorney’s fees specified in a promissory note declared upon in that case. Blas-singame, though duly served, made default, hut later, on September 12, 1914, sued out a writ of error from said judgment to this court, at the time filing a supersedeas bond, with A. W. Thurman, S. C. Brillhart, Shar-man Jines, and A. M. Jines as sureties. Blassingame, however, failed to file the record in this court, or otherwise prosecute his writ of error with effect, as required by the terms of his supersedeas bond, whereupon the Cattlemens Trust Company, pursuant to the terms of our statute on the subject, filed its motion in this court praying for an af-firmance of the judgment and a recovery of 10 per cent damages for delay. In answer to the motion to affirm, Blassingame filed in. this court a pleading to the effect that shortly prior to the institution of the suit in Tarrant county by the Cattlemens Trusr Company he (Blassingame) had instituted a suit in Ochiltree county, where he resided, to cancel for fraud the note which was the foundation of the suit and judgment in Tar-rant county; that the^ case in Ochiltree county had been tried upon the issues made by the pleadings in that case, and that he (Blassingame) had recovered a judgment canceling the note; that the Cattlemens Trust Company had duly prosecuted an appeal from the Ochiltree county judgment to the Court of Civil Appeals for the Seventh Supreme Judicial -District, where it was alleged the appeal was then pending. The prayer was that the motion to affiim be dismissed, or in the alternative that this court postpone judgment on the motion until after disposition of the appeal from Ochiltree county by the Court of Civil Appeals for the Seventh Supreme Judicial District. After due consideration, we held, in effect, as will be seen from our published opinion (Blassingame v. Cattlemen’s Trust Co., 174 S. W. 900), that the facts set up by Blassingame in answer to the motion constituted a good plea in abatement only, and not a good plea in bar of the action in Tarrant county, and that, Blassingame having failed, after due notice of the Tarrant county suit, to therein plead said matter of abatement, such matter could not be given effect for the first time in this court, and that the same would not constitute cause to refuse the prayer of the motion to affirm, or to grant Blassingame’s prayer for a postponement of our action until after the determination of the appeal from the district court of Ochiltree county. The motion to affirm was accordingly, on, to wit, January 23, 1915, granted by us, and this court duly entered its judgment in favor of the Cattle-mens Trust Company for the amount adjudged in its favor below, together with the further sum of 10 per cent, thereon as damages for delay and all costs of the proceedings, against Blassingame and the said sureties upon his supersedeas bond. From this judgment of affirmance Blassingame later sued out a writ of error to our Supreme Court, but the writ was dismissed by that court on the ground of a want of jurisdiction. Yet later, on, to wit, the 23d day of June, 1915, the mandate of this court was regularly issued and transmitted to the district court of Tarrant county, directing the enforcement of our said judgment. The district court of Tarrant county thereupon regularly issued execution, directed to the sheriff of Ochiltree county, commanding him to make the sums of money adjudged by this court, which execution was levied upon lands belonging to Blassingame situated in Ochiltree county, and such lands were advertised for sale on September 2, 1915.

Thereafter, to wit, on or about August 1, 1915, Blassingame presented to the presiding judge of the district court of Tarrant county a petition praying that said judgment in said court and said execution sale be enjoined. In this petition Blassingame, in substance, set up the facts, so far as necessary to here state, as we have hereinbefore recited them, asserting the superiority of the judgment in the district court of Ochiltree county, and further averred that he had been misinformed as to his right or duty to plead the institution of the prior suit in Ochiltree county in the suit in Tarrant county, and that he had omitted to plead such matter in abatement upon the advice of his attorneys. The district judge of Tarrant county, to whom the petition was presented, indorsed his fiat thereon, commanding the Cattlemens Trust Company to appear before him on August 11, 1915, and show cause why the temporary writ of injunction prayed for should not be granted. The Cattlemens Trust Company appeared, and on a hearing of the motion, on, to wit, the 26th day of August, 1915, Hon. Ben M. Terrell, judge of said district court of Tar-rant county, entered his order stating that:

“The court, having heard and fully considered said application, is of opinion that same should be in all things denied and refused; and it is accordingly so ordered, adjudged, and decreed.”

It does not appear that any appeal was taken from the order last named. The next step on the part of Blassingame was the presentation by him on the 1st day of September, 1915, of a petition to Hon. Frank Willis, respondent herein, judge of the district court of the Thirty-First judicial district, seeking to enjoin the threatened execution sale hereinbefore mentioned and the said judgment upon which it rested. The petition set up the institution of the conflicting judgments, as hereinbefore recited, and the fact of the appeal pending in the Seventh supreme judicial district, omitting any reference to the proceeding in this court which resulted in the judgment of affirmance we have described, and the prayer was that the sheriff of Ochiltree county be “restrained and enjoined from further executing or enforcing.said judgment of Tarrant county district court until the decision of the honorable Court of Civil Appeals of Amarillo in this ease, and that on final hearing hereof said judgment be made perpetual, and for general and special legal and equitable relief.” Hon. Frank Willis indorsed his order upon the petition granting the issuance of the temporary writ of injunction as prayed for, and it is to further proceedings under the writ of injunction issued pursuant to said order that the relator, the Cattlemens Trust Company, now interposes its petition for a writ of prohibition, as stated in the beginning of this opinion. The respondents Blas-singame and Willis, in obedience to the notice of this court to show cause why the writ should not issue, have appeared and filed written answers. There is no denial of the material facts stated; the contention of respondents constituting in its essence a mere denial, for various reasons, of a power in this court to issue a writ of prohibition such as sought in this case.

While it seems to be true, as respondents insist, that no Court of Civil Appeals in Texas has ever issued such a writ, yet we have no doubt of the power of such court to do so in a proper case. Section 6, article 5, of our Constitution, after providing for a division of Texas into supreme judicial districts, and for the establishment of a Court of Civil Appeals in each of said districts, declares, among other things, that such courts “shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil eases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” Said section of the Constitution further specially provides that said Courts of Civil Appeals “shall have such other jurisdiction, original and appellate, as may be prescribed 'by law.” Later the Legislature, in defining the jurisdiction of the Court of Civil Appeals, among other things, enacted that:

“The said courts and the judges thereof shall have the power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

See Vernon’s Sayles’ Texas Civil Statutes, article 1592.

Clearly the legislative act quoted was authorized by the terms of the Constitution also quoted, and has all the force that could be given to it, had the same been specifically embodied in the Constitution itself. So that it seems apparent to us that there is no force in the contention that we are without constitutional power to issue a writ of prohibition. And, as we think, in a proper case it is wholly immaterial whether the jurisdiction exercised by a Court of Civil Appeals in the issuance of such a writ be classified as “original” or as “appellate.” Whatever be the proper classification of the power, it is clear that this court and all other Courts of Civil Appeals have been expressly given jurisdiction to issue any writ known to the law found to be necessary to enforce the jurisdiction of the court. The question therefore is: Does the said petition of respondent Blas-singame, and the said action thereon of the respondent Hon. Frank Willis, constitute attacks upon the jurisdiction of this court? We think they do.

As we construe the judgment enjoined, it is the judgment of this court, and not- that of the district court, as respondents contend, and as was incorrectly represented in the petition for the injunction. It is so, as we think, in form and in substance. The judgment decrees the payment by the respondent Blassingame and the sureties on his super-sedeas bond,, not only of the amount adjudged against Blassingame below, but also of the certain sum of 10 per cent, of the judgment of the district court as damages, besides the costs of this court, for all of which it is directed that execution may issue. The fact that under the statute the judgment is certified to the court below for observance, and that the execution enjoined was issued out of that court, instead of from' this court direct, does not alter the character of the judgment, or change the basis of its legal effect. Its vital force has its source in the power vested in this court and 'in issuing the execution the lower court only acted in a ministerial capacity. As to this it had no discretion, but was required to obey the mandate of its superior in authority. Burck v. Burroughs, 64 Tex. 445; Moore v. Chamberlain, 152 S. W. 195. Such judgment, too, perforce of the statutes and decisions of this state was final (Vernon’s Sayles’ Texas Civil Statutes, article 1591; Cole v. State [Sup.] 170 S. W. 1036; Gray v. Eleazer, 43 Tex. Civ. App. 417, 94 S. W. 911), and a writ as here sought for restraining an unauthorized interference with a final judgment of this court must, in its very nature, constitute an aid to our jurisdiction.

It is doubtless true that in certain exceptional cases a court of equity would entertain an action in the nature of an original suit to restrain a judgment of a trial court, even after affirmance, as, for instance, upon proper allegations of subsequently discovered fraud or perjury in its procurement. But here we have no such state of facts presented. The material facts, in substance, are those that might have been presented in the district court of Tarrant county, which rendered the judgment by default, and which were later in fact presented to this court, as before stated, in opposition to the motion to affirm on certificate. If, after a litigant has had his day in court and exhausted his legal remedies in both the trial court and on appeal, he can avoid the orderly effect and operation of the final decree against him by invoking the aid of other and inferior courts on the same state of facts, then indeed it would be idle for a court of final jurisdiction to attempt an exercise of its power. Such a construction of the law would deprive this court of all real power, contrary to the manifest purpose of the Constitution and Legislature in declaring that our judgments in cases such as the one before us should be final. See McCrimmin v. Cooper, 37 Tex. 423; Kendall v. Mather, 48 Tex. 585. We think it plain, therefore, that the writ of injunction issued out of the district court of the Thirty-First judicial district constitutes an attack upon the jurisdiction of this court, and that as against any objections thus far noticed the writ of prohibition herein sought will lie to restrain the district court of Ochiltree county from interpreting our said judgment or from interfering with its proper execution. See Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; State v. Spokane Co. Super. Ct., 8 Wash. 591, 36 Pac. 443; State v. Whitney, 66 Fla. 24, 63 South. 299; 32 Cyc. 609, text (e); State v. Drew, 38 Da. Ann. 274; In re State, 18 La. Ann. 102.

It is further insisted, however, that inasmuch as Ochiltree county, where'the respondent Blassingame resides and where the land levied upon is situated, and the Thirty-First judicial district, are beyond the territorial limits of this supreme judicial district, we are for this, if for no other, reason without power to issue the writ prayed for. But if otherwise authorized to issue the writ, we do not think this contention is maintainable. The writ sought by relator is in character very similar to the writ of injunction. As to the respondent Blassingame the very same result is to be brought about. As to him, at least, the only difference is in name. As against the other respondent, Hon. Frank Willis, the writ is sought and operative only as the judicial officer at this time authorized to perform the functions of the district court of Ochiltree county. As against him the real purpose of the writ sought is to restrain the threatened action of that court, whosoever may happen to be its presiding judge. Such writs were designated in the common law as writs of prohibition, as contradistinguish-ed from writs of injunction, and our authorities have adhered to that nomenclature. But in nature and judicial results obtainable there can be but little, if any, difference between writs of injunction and writs of prohibition. This being true, we see no reason why we should not, in this case, apply the familiar rule relating to writs of injunction, to wit, that an injunction operates against all persons, their agents and attorneys, who were parties to the cause, whether they reside within or without the territorial jurisdiction of the court awarding the writ. See Alexander v. Tolleston Club, 110 Ill. 65; State v. Fredlock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Rep. 932; Frank v. Peyton, 82 Ky. 150; Jennings Bros. v. Beale, 158 Pa. 283, 27 Atl. 948; 22 Cyc. 785. The respondent Blassingame was a party to the judgment that he now seeks to enjoin. He, as also the respondent Willis, voluntarily appeared before this court and answered in this proceeding, thus submitting themselves to our jurisdiction, and hence, as we think, cannot be indulged in now saying that we are without power to make and enforce such orders as the other facts before us authorize.

Moreover, for a yet better reason, perhaps, we are of opinion that in the respect now under consideration our power is not limited to the territorial limits of our judicial district. While the Constitution already quoted in general terms limits our appellate jurisdiction to the territorial limits of this1 district, it is apparent from the whole, when considered in connection with the legislative grants of power, that we have full authority to conclude litigation and render final judgments in causes, such as here in question, arising in our judicial district and properly brought before us. Such power, in accord with the very familiar rule of construction, carries with it by necessary implication the power to issue such process as may be essential to the maintenance of the integrity and vital force of our final decrees. Otherwise the supremacy evidently intended by the Constitution is meaningless. It follows, if necessary to the end, that such process, in the absence of any specific inhibition, will be operative anywhere within the limits of the sovereign, power by virtue of which this court exists. Any doubt of this that can arise from a construction of the Constitution alone is dissipated by the statute quoted and already referred to several times, which gives to this court power to issue the extraordinary writs therein named. As stated, the enactment of this statute was clearly authorized by section 6 of article 5 of the Constitution, and the statute expressly authorizes this court to issue all writs necessary to enforce our jurisdiction, whether in doing so we are in the exercise of original or appellate functions, and without any territorial limitation as to the operation of the writs when issued. It follows, we think, that such writs, when issued in a proper case, must, except perhaps in cases having no application here, be obeyed by all persons' and courts of inferior jurisdiction or authority in this state.

Several other objections have been urged by the respondents, but they are, we think, of minor importance, easily answered, and hardly require discussion. We should however, perhaps briefly notice the further insistence that the proper remedy of the relator was to present its complaint in the district court of the Thirty-First judicial district; the contention being that it must be assumed that the court issuing the injunction would properly administer the law upon the facts. As to this contention, it is to be observed that, even if the judgment enjoined should be construed as a judgment of the district court of Tarrant county, as respondents insist, and if the district judge of the Thirty-First judicial district had any authority at all to direct the issuance of the writ, it was returnable to and triable before the district judge rendering the judgment. See Revised Statutes, articles 4643 and 4653. In such cases the law evidently contemplates that the court rendering the judgment shall be the judge of its validity. The reason for this rule is of special force, we think, in eases where the judgment attacked is that of this court. In certain cases and under certain regulations, that need not be here specified, our Constitution and laws have vested in the Supreme Court the power to modify or annul the decrees of this court. The grant of such power in the Supreme Court necessarily excludes' all authority from courts of inferior jurisdiction to do so. In the case in which the enjoined judgment was rendered, the Supreme Court itself formally declared that it was without power to revise the judgment. How, then, is it to be supposed that the district court of the Thirty-First judicial district, or the judge thereof, has power to do so? In such cases the remedies urged by respondents have no application. See State v. Spokane Co. Sup. Ct., 8 Wash. 591, 36 Pac, 443; State v. Superior Court, 5 Wash. 518, 32 Pac. 457, 771; Kirby v. Superior Court, 68 Cal. 604, 10 Pac. 119; High, Extr. Hem. § 781; State v. Elkin, 130 Mo. 90, 30 S. W. 337, 31 S. W. 1037.

We conclude that relator, the Cáttlemens Trust Company, is entitled to the relief specified in its complaint, and that the writ of prohibition should issue as prayed for; and it is so adjudged.
      ©sjffor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '