author: HALL, J.

text:
    PYLE v. PARK et al.
    (No. 1182.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.)
    1. Monet Received <&wkey;17(l) — Pleading.
    An amended petition, alleging that defendant P., with fraudulent intent, conveyed to a third person plaintiff’s interest in an advertising contract, the proceeds of which it had been agreed should Bo distributed pro rata between plaintiff, P,, and L., entitled plaintiff to recover his interest in the proceeds, though it did not allege any authority in P. to convey plaintiff’s interest in the contract, and notwithstanding a statement by tho pleader of the legal conclusion that P. was the trustee of plaintiff and L.
    [Ed. Note. — Eor other cases, see Money Received, Cent. Dig. §§ 54r-57.]
    2. Pleading <&wkey;216(2) — Demurrer—Matters Considered.
    As a general rule, the only pleading which can be considered in passing on a demurrer, is the pleading demurred to.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 537, 538.]
    3. Pleading <§s=3210 — Exception—Demurrer —“Speaking Demurrer.”
    A statement styled an exception, wherein it was insisted that an effort to recover under an allegation of a partnership in the third amended petition was barr'ed by limitation inasmuch as tho former pleadings contained no allegation of partnership, was not an exception, but a “speaking demurrer,” and bad because it required consideration of pleadings other than that demurred to.
    [Ed. Note. — For other definitions, seo' Words and Phrases, First and Second Series, Speaking Demurrer.]
    4. Limitation op Actions <&wkey;180(l) — Objection — Plea—Exception.
    An objection that an amended petition presents a new cause of action barred by limitations can be reached only by a plea, and not by an exception, which requires consideration of the former pleadings to determine whether a new cause of action has been presented.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 670.]
    Appeal from District Court, Dallas County.
    Action by O. P. Pyle against Milton Park and others. From judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    M. L. Dye, of Dallas, for appellant. T. F. Lewis and Muse & Muse, all of Dallas, for appellees.
   HALL, J.

The nature of this case is fully and clearly stated in Park v. Pyle, 157 S. W. 445. Reference is made to such statement, and we will add only such further statement as is necessary to the disposition of this appeal.

After the reversal of the former judgment, it appears that the trial court ordered the parties to replead. In compliance with this order, the plaintiff, Pyle, filed his “third amended original petition,” and the defendants filed their “third amended original answer,” said pleadings styled “third repleader petition” and “third repleader answer,” respectively, in the briefs. The third amended petition alleged, in substance, that Hilton Park was duly made, constituted, and appointed trustee and agent of plaintiff and Latham by the contract dated October 19, 1908, and that Park undertook and promised to collect as trustee, and to deposit in the Gaston National Bank, all money collected for Park, Pyle, and Latham, keeping the same in said bank as a separate fund in his name for the use and benefit of Park, Pyle, and Latham, and on the 15th day of each month to distribute said money equally amongst the parties, deducting all expenses and charges; that Park did, during the months of October, 1908, to May, 1909, and at other times, collect $1,383.91; that said Park and Latham, on or about February 23,1909, sold and transferred to O. D. Reimers all the interest of plaintiff, Latham, and Park, under the advertising contract, and all of the unused space for the sum of $5,600,' which, together with the $1,-333.91 collected on advertising account, aggregates $6,933.91, and that none of said amount has been deposited by Park in said bank, nor has any of said amount been paid over to plaintiff; that Park concealed from plaintiff and Latham the books showing the collections and converted said amounts to his own use and benefit; that the contract with Smith & Sweet provided, among other things,' that it was to begin November 1, 1908, and terminate June 1, 1911, except certain omissions which were to be completed by or before December 1, 1911, and that whether or not the entire 7,000 inches of space is used by June 1, 1911, the remainder, if any, of said indebtedness of Smith & Sweet is to be canceled on that date and all notes, if any unpaid, and the deeds of trust, are also to be canceled; that, by virtue of said contract with Smith & Sweet for 7,000 inches of advertising space, said notes of Park, Pyle, and Latham were discharged, and the makers thereof, Smith & Sweet, released from liability thereon; that said Park was a trustee to collect for space sold and apply the proceeds to the payment pro rata of said notes, which was done until said trustee and Lath-am sold all of said unused space to Reimers; that, for the purpose of asserting a claim to plaintiff’s one-third interest in said $6,933.91, the said trustee, Park, procured said Latham to sign with said Park the name of the payee of plaintiff’s said notes on said transfer to Reimers, and together they transferred plaintiff’s notes, together with the notes of Park and Latham, to Reimers for $5,600, and Pyle and Latham were released from all obligation in the transfer to Reimers; that the real purpose of such assignment and transfer of said notes was to assign said 7,000 inches of advertising space to Reimers and to release him from his obligation to furnish same for the purpose aforesaid; that the transfer of said notes to Reimers was made by Park with the intent to defraud plaintiff and to afford Park a pretext for withholding and unlawfully converting plaintiff’s money to Park’s own use; that¡ after said notes were transferred to Reimers, he made no effort to collect them from the makers, Smith and White, but destroyed them; that the total principal of said notes amounted to $10,-000; that plaintiff, Park, and Latham were each entitled to 56 per cent, of the amount contributed by them in the enterprise; that this distribution of the $5,600 was agreed on between plaintiff, Park, and Latham, prior to the time the money was paid to Park by Reimers; that Latham has received 56 per cent, of said amount from Park, who promised Latham, as the representative of plaintiff, to pay plaintiff the same per cent, which has not been done; that 56 per cent, of the $4,050 .which Park refused to deliver to plaintiff amounted to $2,712.63.

Two “special exceptions” were urged to the third amended petition. One of them is as follows:

“And for special exception says that plaintiff’s cause of action, as disclosed by paragraph 4 of his third repleader, is for Ms interest of $1,333.91, collected by the alleged advertising contract, and in paragraphs 5 to 8, inclusive, for damages for the assignment of plaintiff’s interest in contract alleged, as Exhibit B, to Reimers for alleged sum of $5,600. There is no allegation in said third repleader which discloses any power or authority in Milton Park to assign or convey plaintiff’s interest in said contract, or how or in what way the title or interest of the plaintiff therein could vest in Rei-mers, and under said contract and instrument ■alleged no title of the plaintiff passed by virtue of said alleged transfer by Milton Park or by him and Latham. The contract set out in paragraph 2 of said third repleader petition is the same as the contract marked ‘Exhibit A,’ made a part of the petition, and is confined to the disposition of money realized from advertising contracts to fill the 7,000 inches of space, and provides, under said contract marked ‘Exhibit A,’ for the payment of advertising contracts to Milton Park. Exhibit B, par. 1 thereof, shows contract by newspaper to furnish 7,000 inches of advertising space. Exhibit A, par. 2, provides that Reimers, Park, and Latham are to procure contracts for advertising for the above space, and Exhibit B, par. 3 thereof, provides for $1.50 per inch for advertising contracts unless waived by written consent of said newspaper owners. Neither of the contracts alleged empower the sale of ‘space’; the extent of contract was to procure advertising contracts for ‘space.’ The third repleader petition, in paragraphs 5 and 7, alleges the sale of all the space to Reimers, who bought the paper from the owners who had contracted to furnish the spaeei The petition discloses no divestiture of title out of the plaintiff of the advertising space by the alleged assignment of sale thereof by Milton Park and Geo. Latham to Eeimers, or any authority in the said Park or Latham to so convey or in any wise transfer or affect the title of Pyle to such space. The contract restricts the rights of Park, Pyle, and Latham to procure advertising to fill the space by contracts for advertising at not less than $1.50 per inch. Wherefore defendant prays judgment.”

If this can be properly called a special exception, it raises several objections to as many different paragraphs of the third amended petition. The pleading may not allege any power or authority in Park to convey plaintiff’s interest in said contract, but it does allege the conveyance and the fraudulent intent of P'ark in making it and an agreement on the part of plaintiff, Park, and Latham to a pro rata distribution of the $5,-600 received as a consideration for such transfer. This allegation, if true, it seems to us, entitles plaintiff to recover his interest in said sum. There is no attempt, as shown by the pleading, to set aside the sale to Eeimers, nor to recover from Eeimers as a fraudulent transferee, any interest which plaintiff may have under the contract. This suit by plaintiff to recover of Park plaintiff’s pro rata interest in the proceeds of the fraudulent sale is an affirmance of the transfer. It is true the pleading alleges that Park was the trustee of plaintiff and Latham, but this is a statement by the pleader of a legal conclusion. Judge Tolbert, on the former appeal, held, in construing the contract, that in effect by its stipulation Park was not such trustee. Aside from the contract construed, the facts as alleged show that Park has collected and; has in his possession funds belonging to the plaintiff. Under these allegations,. if true, plaintiff is entitled to recover, whether he is called a trustee or not.

The second exception sustained by the-court is as follows:

“And for special exception this defendant says that paragraph 5 and paragraph 7 of the plaintiff’s third repleader petition, filed April 9, 1915, sets up a new cause of action to that set up in plaintiff’s second repleader petition filed herein February 10, 1915, and which said new cause of action set up in plaintiff’s third repleader petition filed April 9, 1915, is barred by the statute of limitation of two years, and the statute of limitation of four years, in that the transaction alleged occurred on or about the 23d day of February, 1905, according to the allegation in both of said above repleader petitions of the plaintiff; that said new cause of action consists in this, viz.: That in plaintiff’s second repleader petition, filed February 10, 1915, the plaintiff bases his. case upon contracts A and B, attached to said repleader petition, and under paragraph 4 thereof seeks to recover his one-third interest in $1,333.91, due him by Milton Park and Geo. Latham, under and by virtue of the contract set out in paragraph 2 of said second repleader petition, which said contract is Exhibit A, and alleges, the conversion of his interest in said sum of money by Milton Park, amounting to $444.62%, and of which said amount this court would not have jurisdiction, unless the same can be linked or connected with his damages claimed under paragraph 7 of said second repleader petition, for the sale of alleged space in said newspaper.
“In paragraphs 5 and 7 of said repleader pé-tition, filed February 10, 1915, the plaintiff based his right of recovery for damages upon the alleged conversion by Milton Park from the alleged sale of space, and transfer of contract shown in Exhibit B. The defendant, by his answer to said second repleader petition, by exception, challenged the right of the plaintiff to recover damages for the alleged transfer of contract set out as Exhibit B for the sale of space alleged thereunder, for the reason that from the contract Milton Park was without authority and possessed of no power to make such sale or transfer, and no title passed to Eeimers, his alleged vendee or transferee, and, if his said exception thereto was sustained, then the amount in controversy, .under the allegations and paragraphs 1, 2, and 4, of said second repleader petition, under contract A, failed because of want of jurisdiction of the court to hear and determine the controversy, involving less tljan $500, and said exceptions to said second repleader petition are here referred to as a part hereof and evidencing same; that said contracts made as Exhibits A. and B are the same contracts to the second and third repleader petitions by the plaintiff; that said second and third repleader petitions, under the order of the court, were required to be and took the place as substitute for all previous pleadings of the plaintiff, and likewise the repleader answers of the defendant took the place as substitute for the defendant’s previous pleadings; that in the pláintiff’s third re-pleader petition, filed April 9, 1915, in paragraph 5 thereof, the plaintiff modifies and changes the allegation of 5 in the former repleader petition, alleging that all of said acts, transfers, conveyances, etc., were made by Park and Latham, and then .charges a partnership between Latham, Pyle, and Park in avoidance of the effect of defendant’s special exceptions to his second re-pleader answer, of the fact that Park’s alleged transfer under said Exhibit B could not and did not pass any of Pyle’s title, which allegation of partnership is contained in averment of a material fact that Park concealed from his partners, Latham and Pyle, the book showing the collections, etc., in said paragraph 5 of his third repleader petition, and which said allegation of partnership was not heretofore alleged in paragraph 5 of his second repleader petition, but in other paragraphs thereof, and that said allegation of the fact of partnership is for the first time pleaded in said third repleader petition, the purpose and effect thereof being to make valid the alleged sale by Park and Latham of the alleged space under the contract shown in Exhibit B ; that said allegation of partnership changes plaintiff’s cause of action from that averred in his second repleader petition and makes new and distinct cause of action otherwise not maintainable under the allegations of his second re-pleader petition; that under plaintiff’s seventh paragraph in his third repleader petition is the allegation not heretofore made in his second re-pleader petition, to the effect that Park was trustee to collect for space sold, thereby ingrafting a cause of action not heretofore pleaded in his second repleader petition, and linked with his allegation of partnership above referred to would constitute the transfer and sale alleged a valid transfer and sale by a partnership, instead of an illegal sale by an individual, without power or authority to make the same.
“Wherefore, defendant excepts and says that said cause of action as so reported in his third repleader petition is a new and different cause of action from that pleaded in his second re-pleader petition, and that said cause of action alleged in said third repleader petition having occurred, and the transaction being as alleged in said third repleader petition on or about February 23, 1909, that the plaintiff’s said cause of action presented in his said third repleader petition has accrued more than two years prior to the filing of his third repleader petition on April 9, 1915, and the same is barred by the two years’ statute of limitation, and the four years’ statute of limitation; and that the defendant prays judgment, referring to and making said plaintiff’s second repleader petition and defendant’s second answer thereto a part hereof for the consideration of the court, and prays judgment upon this, his said exception, and that the same be sustained, and that the cause be dismissed.”

This unnecessarily prolix statement is in no sense an exception. As a general rule, only the pleading demurred to may be considered in passing on the demurrer, and no reason is shown here why the general rule should not 'obtain; and, in order to pass upon this as an exception, the court must necessarily consider, not only the allegations in the third amended petition, but also the facts alleged in the second amended petition. The pleader insists- that by comparison of the allegations in the two pleadings a new cause of action has been set up, in that plaintiff alleges a partnership between himself, Park, and Latham, which was not alleged in his former original pleadings, and that the effort to recover under the allegation of the partnership is barred by limitation. If this' is a fact, it can be reached 'only by a plea, and not by an exception, which requires the consideration of such superseded and abandoned pleading. Newsom & Johnston v. Sharman, 119 S. W. 912; Kruegel v. Porter, 136 S. W. 801; Porter v. Pecos & North Texas Ry. Co., 56 Tex. Civ. App. 479, 121 S. W. 897; Coons v. Green, 55 Tex. Civ. App. 612, 120 S. W. 1108. It is n'ot the office of an exception to set out facts not shown by the pleading to which the exception is urged. If it relies on extrinsic facts, it is called a speaking demurrer, and is bad. 6 Stand. Proc. 888-890. It appears that, after the court had sustained the two exceptions copied above, the cause was dismissed, and from such judgment this appeal is prosecuted.

The judgment is reversed, and the cause remanded.

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


source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    PRENDERGAST v. MASTERSON.
    (No. 1747.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1917.
    Rehearing Denied May 31, 1917.)
    1. Schools and School Districts <&wkey;176— Right on Teacher to Inflict Corporal Punishment — Statute.
    Under Pen. Code 1911, art. 1014, providing that violence to the person does not amount to an assault or battery when employed in the exercise of the right of moderate restraint or correction given by law to the teacher over the scholar, a teacher may lawfully inflict on a pupil who has violated the rules and regulations of his school corporal punishment by chastising him in a moderate and humane manner.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 345, 347.]
    2. Schools and School Districts &wkey;>176— Right on “Teacher” to Inflict Corporal Punishment — Statute.
    The superintendent of schools of the city of Marshall, incorporated by Sp. Acts 31st Leg. c. 6, was not a “teacher,” within Pen. Code 1911, art. 1014, providing that violence to the person does not amount to an assault or battery wheu employed in the exercise of the right of model--' ate restraint or correction given by law to the teacher over the scholar; the duty to maintain order and discipline in the schools devolved on the teachers, not on the superintendent, and the power to inflict corporal punishment on pupils was conferred on the teachers, not on the superintendent, a “teacher,” within the statute, being one who for the time being is in loco parentis to the pupil, who, by reason of frequent and close association, has an opportunity to know the distinguishing traits of the pupil, and who can reasonably be expected to judge the pupil’s conduct and measure punishment intelligently.
    TEd. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 345, 347.
    For other definitions, see Words and Phrases, First and Second Series, Teacher.]
    3. Schools and School Districts <&wkey;176— Right on Teacher to Inflict Corporal Punishment.
    Where the superintendent of schools of a city was not authorized by the rules of the school board as superintendent to take control of the high school to the exclusion of the teachers therein, because he did so- he had no right as a teacher to inflict corporal punishment on a pupil.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. §§ 345, 347.]
    4. Schools and School Districts <&wkey;176— Right of Teacher to Inflict Corporal Punishment.
    If the superintendent of schools of a city was as such a public officer, he did not therefore have a right to chastise a pupil in the high school; such right not being conferred by law on any public officer as such.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 345, 347.]
    5. Assault and Battery &wkey;>10 — Defense-Custom on School Superintendent to Chastise Pupils.
    A custom for the superintendent of schools of a city to chastise pupils existed in violation, not only of well-established principles of the civil law, but of a provision of the Criminal Code denouncing as a crime the use of any unlawful violence upon another’s person, and the custom was not a defense to the superintendent when sued for assault and battery by a pupil whom he chastised.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 6-8.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Suit by George Prendergast, by next friend, against F. L. Masterson. From a judgment for defendant, plaintiff appeals.
    Reversed, and cause remanded for new trial.
    This suit was by appellant, a minor, by his next friend, for damages, actual and exemplary, for an assault and battery which he alleged appellee made on him. Appellant was a pupil in- the Marshall city schools, of which appellee was superintendent. The city of Marshall was incorporated by a special act of the Legislature approved February 12, 1909 (Special Laws 1909, p. 78). The city was by the act (section 183) made a “separate and independent school district,” its schools to be “under the management and control of a school board,” which was authorized to—
    “adopt such rules, regulations and by-laws as it may deem proper as to all matters pertaining to the powers and duties of said board, the officers thereof, and of the superintendent, principals, teachers, pupils and janitors and em-ployés of said board and may adopt generally such rules as will subserve the efficient and perfect management of the said public free schools.” Section 203.
    There were six ward schools and one high school in the city. About 60 teachers were employed in the schools.
    The appeal is from a judgment in appellee’s favor.
    F. I-I. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, and T. P. Harte, of Douglas, Ariz., for appellee.
   WILLSON, O. J.

(after stating the facts as above). [1] The cause was tried in the court below on the theory that it was lawful for appellee, as superintendeit of the Marshall city schools, if it reasonably appeared to him that appellant had violated the rules and regulations of those schools, to administer corporal punishment to appellant by chastising him in a moderate and humane manner. Whether the theory was a correct one or not is the question to be determined. It was not incorrect, and the trial court did not misinterpret the law, if the superintendent of such schools was a “teacher” therein within the meaning of the law; for, to enforce a compliance with the reasonable rules of such schools, a teacher may lawfully inflict such punishment on a pupil. Penal Code, art. 1014; 1 Black. Com. 453; 35 Cyc. 1137,1139; 5 C. J. 641; 2 R. O. L. 540.

Was appellee a “teacher” within the meaning of the rule authorizing a teacher to chastise his pupil? We think not. A teacher is one who teaches. Appellee did not do that, and, as we understand the record, does not pretend that he did, or was authorized to, in the Marshall city schools.

His contention is that he had taken active charge of the high school, in which appellant was a pupil, and had active control thereof at the time he assaulted appellant, and that therefore he and appellant then occupied toward each other the relationship of teacher and pupil. He further contends, if they did not occupy that relationship, that he was a public officer charged with the duty to maintain order in the high school, and therefore that it was not unlawful for him to assault appellant as he did. And he further contends, if he was not entitled to defend against appellant’s suit on either of those grounds, it was because of a custom which recognized a right in a superintendent of such schools to chastise pupils therein.

It is, we think, a sufficient answer to these contentions to say: (1) That there was nothing in the rules of the school board which authorized appellee as superintendent to take control of the high school to the exclusion of the teachers therein. (2) If, as superintendent, appellee was a public officer, he did not therefore have a right to chastise appellant. Such a right is not conferred by law on any public officer as such. (3) If it was a custom for superintendents of such schools to chastise pupils therein, the custom existed in violation not only of well-established principles of the civil law, but in violation of a provision in the Criminal Code denouncing as a crime the use of any unlawful violence upon the person of another.

It appears from the rules adopted by the school board that appellee had no direct control over the pupils of the schools, except that he was required to investigate complaints they made, and was authorized to transfer them from one school to another for purposes specified, and to suspend them, “subject to the action of the board.” His control of the pupils was indirect — through the teachers. His business as superintendent, except as stated above, was with the teachers, not with the pupils. By the rules, the duty to maintain order and discipline in the schpols was devolved upon the teachers, not on him, and the power to inflict corporal punishment on pupils was conferred upon the teachers, not on him.

For the reasons stated, we do not think appellee was a “teacher” within the meaning of the law that authorizes a teacher to chastise his pupil. The teacher the law has in mind, we think, is one who for the time being is in loco parentis to the pupil; who, by reason of his frequent and close association with the pupil, has an opportunity to know about the traits which distinguish him from other pupils; and who, therefore, can reasonably be expected to more intelligently judge the pupil’s conduct than he otherwise could, and more justly measure the punishment he deserves, if any.

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

HODGES, J., not sitting.
      É=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    BRAZEALE et al. v. STRENGTH, County Judge, et al.
    (No. 1855.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 31, 1917.)
    1. Counties i&wkey;150(l) — Expenditure or Monet — Protection op Live Stock — Construction of Statute.
    Acts 33d Leg. c. 169, authorizing the county commissioners’ court to co-operate with the live stock sanitary commission in protecting live stock, empowered commissioners’ court to expend all county money necessary, and conferred all power relating thereto not inhibited by Const, art. 11, § 7, providing that no debt shall be incurred in a county, unless provision is made for levying a sufficient tax to pay interest thereon and provide a sinking fund.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 106, 215.]
    2. Injunction <&wkey;130 — County Commissioners’ Court — Protection oe Dive Stock-Consideration oe Statute.
    The county commissioners’ court could not he enjoined from exercising power given them by Acts 35th Deg. c. 60, relating to prevention of diseases in live stock in force at time of application for injunction, merely because Acts 33d Deg. c. 169, in force when order of commissioners’ court was made, did not authorize their action; since the court could consider both statutes in passing upon question.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. •§§ 288-300.]
    3. Animals &wkey;>29 — Prevention oe Contagious Diseases — Application of Statute.
    Acts 35th Deg. c. 60, relating to prevention of diseases in live stock, was intended to apply to counties where Acts 33d Dog. c. 169, had been adopted.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 79.]
    4. Animals &wkey;29 — Contagious Diseases — Validity of Statute.
    The Degislature had power to make the provisions of Acts 35th Deg. c. 60, relating to prevention of disease in live stock, apply where those of the repealed Acts 33d Deg. formerly applied.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 79.]
    5. Animals <3&wkey;29 — Constitutional Daw <§=» 293 — Prevention of Contagious Diseases —Validity oe Statute — Invasion of Property Rights.
    Acts 35th Deg. c. 60, and Acts 33d Deg. c. 169, requiring all cattle to be dipped, whether infected with ticks or not, and whether kept on owner’s premises or not, did not violate Const, art. 1, § 19, or Const. U. S. art. 14, § 1, prohibiting an unwarranted invasion of private property rights; and Const, art. 16, § 23, expressly authorizes Degislature to pass laws for the regulation of live stock and protection of stock raisers.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 79; Constitutional Daw, Cent. Dig. §§ 812-814.]
    6. Counties <&wkey;150(l) — Expenditure of Money — Protection of Dive Stock — Constitutionality of Statute — “Debt” — “Ordinary Expense.”
    Acts 35th Deg. c. 60, and Acts 33d Deg. c. 169, requiring expenditures of county money for building of vats and dipping of cattle to prevent disease, does not violate Const, art. 11, § 7, providing that no “debt” shall be incurred by any county, unless provision is made at the time for collecting sufficient taxes to pay interest thereon and to provide a sinking fund; the word “debt” meaning.any pecuniary obligation imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the corporation, and such expense being an “ordinary expense,” as thus distinguished from a debt'; and it was immaterial that expenditure would, in connection with other county debts, result in creating indebtedness which current revenues would be insufficient to pay, since there was sufficient money on hand to pay the necessary expense, and commissioners’ court not being required to give precedence to one contemplated “ordinary expense” over another.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 166, 215.
    For other definitions, see Words and Phrases, First and Second Series, Debt; Ordinary Expenses.]
    7. Counties &wkey;?150(3) — Expenditure of Money — Ordinary Expense — Constitutional Dimitation — “Debt.”
    If the sum of claims, representing ordinary county expenses, amounted to as much as it reasonably could be expected the current revenues would amount to, ordinary expenses thereafter incurred would be within the prohibition of Const, art. 11, § 7, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1432, 1433, 1436-1438,. requiring claims to be classified, registered, numbered, and to be paid in the order registered.
    [Ed. Note. — For other cases, see Counties,. Cent. Dig. §§ 165, 166, 217.]
    Appeal from District Count, Harrison County; P. O. Beard, Judge.
    Application for injunction by J. M. Bra-zeale and others against W. H. Strength,. County Judge, and others. Plaintiffs appeal from order refusing temporary injunction.
    Affirmed.
    The appeal is from an order entered April 18, 1917, refusingl to grant appellants, who were owners of cattle and other property in Harrison county subject to taxation, a temporary injunction restraining appellees, who constituted the commissioners’ court of that county, from “carrying out” an order made by said court February 16, 1917, as follows:
    “It is ordered that an appropriation sufficient to build necessary number of dipping vats to carry on the work of systematic tick eradication be and the same is hereby made, and that a sufficient number -of men be employed to build said vats by the 1st day of May, 1917. and that on and after the 1st day of May, 1917, systematic and compulsory dipping of cattle bo carried on under the direction of the Dive Stock .Sanitary Commission until the eradication of Texas fever-tick in Harrison county.”
    Appellants alleged that:
    Appellees “are threatening and if not restrained will carry out said order and will incur indebtedness against the said Harrison county in the sum of approximately ij!10-,000, which amount will be necessax-y to cai-ry out said order, and are threatening to and if not restrained will force plaintiffs to dip their cattle against plaintiffs’ consent. That in order to carry out said order it will be necessary to incur the following expenses during the months of April, May, June, July, August, September-, and October of the year 1917, to wit, cost of labor and materials necessary to construct and charge the dipping vats $5,000, and salaries of 10 men to enforce compulsory dipping $5,000; and the defendants if not restrained will incur said expenses during said months.”
    As grounds for the relief they sought, appellants alleged that the order was void because:
    “(1) An attempt to incur a debt against Harrison county, and the defendants at the time said order was made did not have the funds on hand with which to pay same, and no provision was made for levying a tax to pay the whole or any part of said indebtedness, * * * and any expense which they may incur in caiTying out said order will be creating a debt within the meaning of section 7 of article 11 of the Constitution of Texas.
    “(2) There is no provision of law authorizing the defendant to expend the funds of the county for the purposes set forth in said order, * * * and their acts in attempting to incur indebtedness against the county for said purposes are beyond the power conferred upon them by law.
    •“(3) An attempt on the part of said commissioners’ court to dip plaintiffs’ cattle in a certain poisonous fluid by completely immersing said cattle therein. That said fluid is frequently swallowed by cattle being dipped and frequently causes the death of such cattle. That said order requires all cattle in Harrison county to be dipped, regardless of where said cattle are located and regardless of whether or not said cattle are taken off of the owner’s private premises or allowed to mingle or come in contact with other cattle, and said order is in conflict with section 19 of article 1 of the Constitution of Texas, and with section 1 of article 14 of the Constitution of the United States, in that it is an unwarranted invasion of private property rights and deprives plaintiffs of- their property without due process of law.”
    C. M. Abney and H. T. Lyttleton, both, of Marshall, for appellants. Bibb & Bibb and T. W. 'Davidson, all of Marshall, for appel-lees.
   WILLSON, C. J.

(after stating the facts as -above). Nothing to the contrary appearing in the record, we are inclined to think this •court should assume that the vats were built before May 1, 1917, as directed in the order •of the commissioners’ court, and thereupon paid for; that the dipping of cattle was then ■commenced and thereafterwards carried on, as was further directed in the order; and that the cattle in Harrison county, including those belonging to appellants, have all been dipped, and the expense thereof paid by the county. If such assumptions should be indulged, then tire appeal should be dismissed on the ground that (the alleged threatened unlawful acts having been consummated) to now grant an injunction as prayed for would be; a useless act. 1 High on Injunctions, § 23. We will not pursue that course, however, but, being of the opinion it does not sufficiently appear from the record that the court erred when he refused to grant appellants the temporary relief they sought, will affirm the judgment. In doing so, the conclusion reached with reference to the contentions appellants made will be briefly stated.

The first of these contentions is that the commissioners’ court had no lawful right to use funds of the county for the purpose of building and charging vats and dipping cattle. It seems to be conceded that the “tick eradication law” approved April 8,1913 (General Laws, p. 353) was in force in Harrison county at the time the order of the commissioners’ court in question was entered. And it is conceded that by the terms of the act approved March 17, 1917 (General Laws, p. 107), which superseded said Act April 8, 1913, and which was in force at the time the judgment appealed from was rendered, the commissioners’ court was authorized to use the county’s funds for such purposes. The contention is that the act 1913 alone can be looked to, and that it does not confer such power on said court. We are inclined to thiink that the provision in the act 1913, which made it the duty of the commissioners’ court “to co-operate with and assist the Live Stock iSanitary Commission in protecting the live stock of their respective counties from all contagious, infectious or communicable diseases, whether such exists within or outside of the county, and in other ways protecting the live stock interest of their counties,” operated to confer upon the commissioners’ court power not inhibited by section 7 of article 11 of the Constitution, to incur, and pay with the county’s funds, such expense as was necessary to make effective assistance it was required to render to the Live Stock Sanitary Commission.

But we do not agree that the court below could not also look to the act 1917 for such power in the commissioners’ court. That act was in force at the timé the application for the temporary writ was acted upon; and, if such power then existed in the commissioners’ court, the fact that it did not exist in them at the time they made the order of February 16, 1917, would not be a reason for granting the writ. The trial court should not have enjoined the commissioners’ court from exercising power they then possessed, because they did not possess it at the time •they entered the order providing for'the vats:

Declaring that “all elections held pri- or to the taking effect of this act whereby any county in this state has by a majority vote, voted to eradicate ticks, is hereby in all things declared to be a valid election and is in all things ratified,” the act of 1917 by its express terms repealed the act 1913. That the Legislature intended the provisions of the act 1917 to apply in counties where the tick eradication law of 1913 had been adopted cannot be doubted. That it had power to make the provisions of the later act apply where those of the repealed act formerly applied we think follows from the decision of the Supreme Court in Ex parte Dupree, 101 Tex. 150, 105 S. W. 493.

It is further insisted, however, that both the act 1913 and the act 1917 are violative of section 19' of article 1 of the state Constitution and section 1 of article 14 of the federal Constitution, in that they were “an unwarranted invasion of private property rights,” because they required all cattle to be dipped, whether infected with ticks or not, and whether kept on the owner’s premises or not. We think the acts were not violative of the provision in the state 'Constitution specified. Section 23 of article 16 of that Constitution authorized the Legislature to “pass laws for the regulation of live stock and the protection of stock raisers.” Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440. The acts in question were passed for that purpose, and to accomplish it we thinli it was within the power of the Legislature to require all cattle to be dipped without respect to whether they were infected with ticks or not, or whether they were kept by the owner on his premises or not. Smith v. State, 74 Tex. Cr. R. 232, 168 S. W. 522; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63; Roberson v. State, 42 Tex. Cr. R. 595, 63 S. W. 884; McGee v. State (decided by Court of Criminal Appeals April 25, 1917); Bishop v. State, 122 Tenn. 729, 127 S. W. 698. Nor do we think the acts in question violative of section 1 of article 14 of the federal Constitution. Cooley’s Constitutional Limitations, 502 et seq., and 830 et seq.

The other contention made by appellants is- that it appeared that building the vats and dipping the cattle would be violative of that part of section 7 of article 11 of the Constitution which declares that:

“No debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent, as the sinking fund.”

It was shown that the commissioners’ court regarded the expense to be incurred in building vats and dipping cattle as an ordinary one, and contemplated paying same out of the county’s third class fund. It is insisted 'that it appeared that that fund was wholly insufficient to pay such expense and other ordinary expenses of the county, and that-the use of any part of it to pay for building the vats and dipping cattle inevitably would result in creating indebtedness which could not be paid out of the current revenues of the county. If it followed that the expense authorized to be incurred by the order providing for building vats, etc., when incurred, would create a “debt” against the county within the meaning of the provision of the Constitution set out above, as distinguished from an “ordinary expense” of the county, the contention should be sustained, for it appears that the only provision made for paying it was that made for paying ordinary expenses of the county. We think the expense was an ordinary one, and do not understand appellants to be in the attitude of denying it was. Their contention is, as we understand it, that the commissioners’ court did not have a right to incur the expense because to. do so would increase the total of the ordinary expenses of the county for the year 1917 to a sum the current revenues for that year would be insufficient to pay. The Supreme Court has. defined the word “debt,” as used in the provision in the Constitution in question, as meaning:

“Any pecuniary obligation imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year, or out of some fund then within the immediate control of the corporation.” McNeal v. City of Waco, 89 Tex. 83, 33 S. W. 322.

While the testimony showed that the current revenues of Harrison county for 1917 would be insufficient to pay ordinary expenses already incurred and which it was contemplated would be incurred by the county during the year, it further showed that the county, at the time the order in question was entered and at the time the judgment appealed from was rendered, had in hand funds sufficient to pay the expense of building the vats and dipping cattle and all ordinary expenses theretofore incurred by the county.

So the question which confronted the trial court was, it seems, whether it was beyond the power of the commissioners’ court to incur the expense contemplated by its order,, because to do so, if other contemplated ordinary expenses of the county were incurred during the year, would result in creating indebtedness against the county which its current revenues were not sufficient to pay. If building the vats and dipping cattle was an ordinary expense of 'the county which it could pay out of “some fund then within its immediate control,” as we have seen was the case, we do not think the commissioners’ court was without power to incur it for the reason stated. We have not found and have not been referred to anything in the law which required the commissioners’ court to give to one Contemplated ordinary expense precedence over another where the- current funds of the county were not sufficient to pay both.

There are provisions of the statute, however, which, it seems t'o us, point out a way to determine when the commissioners’ court has reached the limit of its power under the Constitution to create indebtedness against the county on account of its “ordinary expenses.” Article 1433, Vernon’s Statutes, provides for a classification of all claims against the county. Article 1438 provides for a classification of the funds belonging to the county. Article 1432 provides for the registration by the county treasurer of all claims against the county. Article 1436 requires the claims to be numbered in the order presented. Article 1437 requires the claims to be paid in the order they are registered. Where the requirements of the statute have been complied with, it seems to us it easily could be determined at any time whether the sum of claims representing ordinary expenses of the county amounted to as much as it reasonably could be expected the current revenues of the county would amount to. When it was found they did, it seems to us it might very well be said that such ordinary expenses of the county as were thereafterwards1 incurred were within the prohibition of section 7 of article 11 of the Constitution.

The judgment is affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    TEXAS CO. v. CHARLES CLARK & CO.
    (No. 6856 [6974].)
    (Court of Civil Appeals of Texas. Galveston.
    June 15, 1917.)
    1. Appeal and Error <&wkey;>1191 — Certificate of No Mandate.
    Under Rov. St. art. 1559, providing that upon judgment of reversal and remanding if mandate is not taken out within 12 months, then, upon the filing in the court below of the certificate of the clerk of the appellate court to that effect, the case shall be dismissed from the docket of the lower court, the clerk of the Court of Civil Appeals was not required to make certificate stating only the date of judgment reversing and remanding the judgment of tho court below, and that no mandate had been taken out, but a certificate offered by him showing that, after such judgment, petition for writ of error to the Supreme Court was filed, and by the Supreme Court dismissed for want of jurisdiction, and no motion for rehearing was filed in the Supreme Court by appellee, and the record of the cause accompanied by a certified copy of the order dismissing the application for want of jurisdiction was returned to the Court of Civil Appeals, was sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4646.]
    2. Appeal and Error &wkey;jll91 — Certificate of No Mandate.
    Under such statute, tho jurisdiction of the Court of Civil Appeals reversing and remanding a cause terminating with the expiration of the term in which such judgment was rendered and a motion for rehearing refused, such court has no original jurisdiction of a motion by appellant to require the clerk of that court to issue the statutory certificate.
    [Ed. Note. — For other cases, see Appeal and, Error, Cent. Dig. § 4646.]
    Action by Charles Clark, doing business as Charles Clark & Co., against the Texas Company. On motion of appellant to require the clerk to issue to it certificate under Rev. St. art 1559. Motion dismissed.
    For former opinion, see 182 S. W. 351.
   PLEASANTS, C. J.

Appellant has'filed a motion in this court in the above-styled cause to require the clerk of this court to issue certificate on article 1559 of Revised Statutes showing the date judgment reversing the judgment of the court below and remanding the cause was rendered.

The motion discloses that on October 21, 1915, we rendered a judgment in this cause reversing the judgment of the court below and remanding the cause for a new trial, and on April 20, 1916, a motion for rehearing filed by appellee was overruled. Thereafter, on May 20, 1916, appellee filed petition for writ of error to the Supreme Court. Neither appellant nor its attorneys of record had any notice of the application for writ of error as required by article 1542a, Vernon’s Sayles’ Statutes, and did not know that such application had been filed until they saw in the daily papers that the Supreme Court had, on April 18, 1917, dismissed the application for want of jurisdiction. No motion for rehearing was filed in the Supreme Court by appellee, and the record of said cause, accompanied by certified copy of the order dismissing the application for want of jurisdiction, was returned to this court and received by the clerk on May 7, 1917. Thereupon appellant applied to the clerk of this court for a certificate showing that no mandate has been taken out from this court under the provisions of article 1559, Revised Statutes. The clerk offered to issue a certificate stating all of the facts above set out, but refused to issue a certificate only stating the date of judgment reversing and remanding the judgment of the court below, and that no mandate has been taken out.

This motion is to require the clerk to issue the certificate in the form requested by appellant. In passing upon and refusing the motion at a former day of this term, we .did not consider the question of our jurisdiction to hear and determine the question presented, but our conclusion was and still is that the certificate- which the clerk offered to issue was a sufficient compliance on his part with the statute above cited. Upon further consideration we are of the opinion that we have no original jurisdiction of the matter presented by the motion, and that if the clerk has failed to perform a ministerial duty required of him by the statute, it is not one which affects any cause pending in this court, our jurisdiction over this cause having terminated with the expiration of the term in which our judgment was rendered and the motion for rehearing refused, nor does it in any way affect the proper performance of his duties to this court

Such being the case, the clerk could only be required to issue the certificate by mandamus proceeding instituted in a court of original jurisdiction of such proceedings.


author: CONNER, C. J.

text:
    CITY OF FT. WORTH v. PATTERSON.
    (No. 8571.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 7, 1917.
    Rehearing Denied May 12, 1917.)
    1. Municipal Corporations &wkey;>821(19) — Defects in Streets — Actions — Proximate Cause.
    Where plaintiff was injured by collision with team of horses, caused to run away by fall of a wheel of wagon into a hole negligently permitted to remain in a street of defendant city, by which fall the doubletree became unfastened and fell on one of the horses, frightening them, it could not be said as matter of law that the city’s negligence was not the proximate cause of plaintiff’s injuries on the ground that the fall of the wagon into the rut, the displacement of the doubletree, and the fright of tho team were intervening, independent causes, 'and that the result could not have been anticipated.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1753.]
    2. Negligence <&wkey;58 — Proximate Cause— Uncontemplated Injury.
    One is liable for the consequences of a negligent act which, in the probable and natural course of the happening of events, results in an injury, notwithstanding the resulting injury or some similar injury could not have been reasonably contemplated.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 71.]
    S. Negligence <&wkey;G2(l) — Peoximate Cause.
    The intervention of an independent cause which interrupts the continuity of the train of results flowing from an act of negligence, and which of itself alone in regular sequence causes the injury, will render the act of negligence complained of nonaetionable for such injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 70, 78.]
    4. Negligence <&wkey;62(l) — Pboximate Cause.
    Neither the instinctive act of an unreasoning animal nor the impulsive, involuntary act of a sentient being, directly brought about by an act of negligence, will break the line of causation of the consequences for which the negligent actor is liable.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76, 78.]
    5. Negligence <&wkey;61(l) — Ooncubbent Causes of Injuby.
    The intervention of an unforeseen and unexpected cause alone is not sufflcient to relieve a wrongdoer from the consequences of his negligence, if such negligence directly and proximately co-operates with the independent cause in the resulting injury.
    [Ed. Note — For other cases, see Negligence, Cent. Dig. § 74.]
    Appeal from District Court, Tarrant County; Mike B. Smith, Special Judge.
    Action by E. Patterson against City of Ft. Worth. From judgment for plaintiff, defendant appeals.
    Affirmed.
    T. A. Altman and B. L. Agerton, both of-Ft. Worth, for appellant. M. B. Harris, J. E. Burton, and A. B. Curtis, all of Ft. Worth, for appellee.
   CONNER, C. J.

The appellee, E. Patterson, instituted this suit against the appellant, the city of Ft. Worth, to recover damages on account of personal injuries alleged to have been sustained by him. Plaintiff alleged that at the time named he was engaged in driving a small wagon northward along Jennings avenue, a public street in the city of Ft. Worth, when he was suddenly run into from behind by a team of runaway horses, and violently thrown out of his wagon to the street, and was trampled upon and otherwise injured, as set forth in the petition. As alleged and as subsequently shown by evidence sufficient to sustain the verdict in that respect, the runaway team had been hitched to a hay wagon driven by one J. D. McCarter, which team was caused to run away and get out of the control of its driver in substantially the following manner and under the following circumstances: At that time and for long continuously theretofore there were large holes and ruts in said Jennings avenue over which both the plaintiff and McCarter were driving; that because of said broken and defective condition of the street the wheels of the hay wagon dropped into one of said holes, thereby causing a doubletree to become run-'fastened and to fall upon one of the horses attached to the wagon, by reason of which the horses became frightened and unmanageable, with the result as stated. It was alleged that the broken and defective condition of the street had, as stated, existed for several months prior to the occurrence, and that the city had both constructive and actual notice of the condition which, as alleged, was the proximate cause of the injury. The defendant pleaded the general denial, and presented other issues in its pleadings that we need not notice, as they are not here insisted upon. The .case was tried before a jury, and resulted in a verdict and judgment for the plaintiff, from which the city has appealed.

The evidence is undoubtedly sufficient to sustain the jury’s finding in the plaintiff’s favor on the issue of negligence in permitting the ruts and holes in Jennings avenue, into which McOaxter’s wagon wheels dropped. Indeed, this for the purposes of this appeal is admitted. In various forms, appellant only presents to this court the question of whether the said negligence of the city as alleged and proven was the proximate cause of the plaintiff’s injuries. It is insisted, in substance, that the fall of the wagon into the rut, the displacement of the doubletree, and the fright of the team were intervening, independent causes, and that the result could not' have been reasonably anticipated; the familiar cases of T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, Seale v. G. C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, F. W. & R. G. Ry. Co. v. Neely, 60 S. W. 282, and other cases being cited in support of the contention.

We are of the opinion, however, that appellant’s assignments of error raising the question should be overruled. The question of proximate cause has been so frequently discussed that we feel that it will be wholly unnecessary to again review the authorities on this much-debated question. It is a familiar rule, as indeed illustrated by the cases which appellant cites, that a defendant must be held liable for the consequences of an act of negligence which, in the probable and natural course of the happening of events, results in an injury. In such cases, in law, a defendant will not be heard to say that the resulting injury or some similar injury could not have been reasonably contemplated. Of course, the intervention of an independent cause, which interrupts the continuity of the train of results flowing from an act of negligence and which of itself alone, in regular sequence, causes the injury, will render the act of negligence complained of nonactionable, but we have no such state of facts before us. Here without dispute the city negligently permitted a deep hole for a long period of time, and of which it had notice, to remain in Jennings avenue, a well-traveled street. As it seems to us, nothing is more natural than that as a result of such a defect in the street it could be contemplated that some vehicle drawn by horses might fall therein, and that as a result of such fall the drawing team would become frightened and run and collide with another lawfully on the street. The fact that the fright of the team was caused by a flying doubletree that became detached, or by the fall of the driver or of the hay with which the wagon was loaded, instead of by the jar and rattle of the wagon as it fell, is wholly immaterial. These are but, to a greater or less extent, mere surmises as to the immediate cause of the particular happening, which more directly culminated in the unmanageable fright of the horses. Those circumstances do not amount, of themselves, to the intervention of independent causes of a character to relieve appellant from the consequences.

It is well settled that neither the instinctive act of an unreasoning animal, nor the impulsive, involuntary act of a sentient being directly brought about by an act of negligence, will break the line of causation. This will appear from a consideration of many decisions, but may be illustrated in the case of the animal by Texas & Pacific Ry. Co. v. Moseley, 58 S. W. 48, by the Court of Appeals for the Fifth District, in which a writ of error was refused. There Moseley while driving his team on or near a railway crossing was suddenly approached by a freight train coming towards him. The operatives of the locomotive negligently gave a number of sharp, piercing whistles of the locomotive, thus frightening Moseley’s team, which ran away and on and into a gully, by reason of which Moseley fell out of his buggy and was injured. Of course, the more .immediate causes of Moseley’s injuries were the fall from the buggy and the fright of his team, notwithstanding this the negligence of the operatives of the locomotive referred to was held to be the proximate cause for the results of which the railway company was held liable. An instance of liability notwithstanding the intervention of an independent, involuntary co-operative act of a third person may be illustrated by the celebrated “squib case” familiar to all law readers. There a person negligently threw a lighted squib into a crowded street, which fell upon one of the assembled multitude, who, instinctively and involuntarily in avoiding danger to himself, knocked or threw the squib beyond him onto another person, who was injured thereby. It was held that, notwithstanding the act of the intermediate party, the line of causation was not broken, but that in a legal sense the negligent act of the person who first cast the lighted squib into the street was the proximate cause of the final injury, and for which at the suit of the injured party the original wrongdoer was held liable.

Moreover, the intervention of an unforeseen and unexpected cause alone is not sufficient to relieve the wrongdoer from the consequences of his negligence. It suffices if the negligence directly and proximately cooperates with the independent cause in the resulting injury. At most nothing beyond this can be said In the present instance, for, as it seems plain to us, the negligence of the city in permitting excavations in the street at least directly and proximately contributed with all other causes in the injuries complained of by appellee. All material issues made by the pleading and the evidence, including the issue of proximate cause, as was proper, were submitted to the jury in a form of which no complaint is made, and we think the jury’s verdict must be upheld.

All assignments of error are accordingly overruled, and the judgment affirmed.
      @m»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexer.

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    SETTEGAST et al. v. BLAKELY.
    (No. 7306.)
    (Court of Civil Appeals of Texas. Galveston.
    May 17, 1917.)
    1. Appeal and Error <@=>1062(1) — Review-Harmless Error.
    In an action of trespass to try title, submission of special issues as to whether plaintiffs held the record title to the land sued for, where the undisputed evidence showed that plaintiff held such title, held harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.}
    2. Adverse Possession <@==>57 — Evidence.
    In trespass to try title, evidence held sufficient to support a finding that defendant had lived on the land for a period long- enough to give Mm title by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687.]
    Error from District Court, Harris County ; Chas. Ashe, Judge.
    Action by J. J. Settegast and another against Carter Blakely. Judgment for defendant, and plaintiffs bring error.
    Affirmed.
    Tharp & Tharp, of Houston, for plaintiffs in error. Roberts & Delhomme, of Houston, for defendant in error.
   LANE, J.

This suit was brought by J. J. Settegast and J. B. Cochran against .Carter Blakely on the 29th day of November, 1907, in the ordinary form of trespass to try title to certain land described in the original petition as lot 1 in block 3, situated in the Red Cloud addition; which is part of lot 6 of the west half of the Luke Moore league, in Harris county, Tex.

On the 16th day of February, 1915, more than seven years after the original petition was filed, plaintiffs filed their first amended petition, upon which they went to trial, and therein they described the land sued for as follows:

“All that part of lot 6 of the Trott subdivision of the west half of the Luke Moore league, and part of the Red Cloud addition, to wit: Beginning at the northeast corner of lot No. X (1), block three (3) of Red Oloud addition ; thence north 70 degrees west along a fence line 168 feet; thence south 1 degree 30 minutes west along a fence line 31 feet; thence south 60 degrees 30 minutes east along a fence line 51 feet; thence south 20 degrees west along a fence line 33 feet; thence south 70 degrees east along a fence line 109 feet to the east line of lot No. two (2) of Red Cloud addition; thence north 20 degrees east along fence line 741/2 feet to the place of beginning, which includes lot one (1), block three (3), of said Red Cloud addition, and other lands in said addition.”

Defendant pleaded “not guilty,” and also the three, five, and ten year statutes of limitation, in bar of plaintiffs’ suit.

The cause was tried before a jury upon special issues submitted to them by the court, and upon their answers judgment was rendered for defendant, Carter Blakely.

By assignments 1 and 2 it is insisted that the court erred in submitting special issues 1 and 2 to the jury, which special issues, in effect, raised the issue as to whether or not plaintiffs held the record title to the land sued for, because there was no evidence to support such issue, and the ■ undisputed evidence shows that plaintiffs held the record title to said land.

We think these assignments should be sustained. The effect of the jury’s findings upon issues 1 and 2 was that plaintiffs had not shown by the evidence that they had the record title to said land. We find that the undisputed evidence shows that plaintiffs held the record title to the lands, and unless the finding of the jury upon special issues 3 and 4 submitted to them, that defendant had title to said lands under the statutes of limitation of five and ten years, pleaded by him, can be sustained by the evidence, the judgment of the trial court should be reversed, and judgment here rendered for plaintiffs.

What has been said under assignments 1 and 2 disposes of assignments 3 and 4.

The jury, in answer to special issue No. 3, found that defendant had and held continuous, peaceable, adverse, and uninterrupted possession of lot'No. 1 in block 3 of the Red Cloud addition under a deed duly recorded, and that he had paid all taxes thereon for more than five years next preceding the filing of plaintiffs’ original petition in October, 1907, and in answer to special issue No. 4 they found that defendant had and held continuous, peaceable, adverse, and uninterrupted possession of all that portion of the land sued for, exclusive of said lot 1 in block 3 of the Red Cloud addition, cultivating, using, and enjoying the same fo^ more than ten years next preceding the filing of plaintiffs’ amended petition in Eebruary, 1915.

Defendant introduced in evidence a deed from Mary M. McDonald of date October 18, 1900, by which she conveyed to him lot 1 in block 3 of the Red Cloud addition to the city of Houston, Texas. This deed was duly recorded on the day of its execution.

Defendant testified:

“There is a fence around said property now. I have got truck on it. There has been a fence around it ever since 1900 up to now. My fence has not been changed in any way since I first put it there; it is just like I first put it there. Ever since I bought it I have been living on there. I have paid the taxes on it. I have got one receipt for taxes here in my pocket, and I have got the balance of them at home; I can find them. I have been raising a little corn, pumpkins, and one thing and another on that place ever since I have been there. I have been living continuously there ever since I built my house on it. There was not a house on it when I bought it; there was not anything on it but the bare ground. I have been owning the property ever since I have been living there, until Mr. Settegast claimed to own it. I have paid the taxes on the property each and every year since I bought it, except this year; I have not paid them this year.”

On cross-examination:

“I do not know exactly how many tax receipts I have got at home, but I have a good many of them. I did not bring them to court because they did not tell me to bring them, and X did not know. I knew it was necessary to show I had paid taxes, if I was claiming the land, but I was not told to bring my receipts. X have got one receipt in my pocket. The way I came to have this one receipt and not the others was that I had it down here all the time, and I put it in my pocket to carry home, and it has been in my pocket now nearly a month. I paid the taxes for the year 1900, and I have been paying taxes ever since I have been on the place.
“I had got my house up when Settegast and Cochran came on the place. I had the house up, and they told me that was their land. 1 had the house up and they come on the land, and X told them: T did not buy from you all. I bought it from Miss Media.’ He asked me who I bought, from, and I told him, and he asked who did she buy it from, and I told him she bought from Mr. Berry. At the time they told me it1 was their land and for me not to build on it I done had the house up. If they brought a suit against me then right away I don’t know it. I never was served with a citation or notice until now; X am served now.”

Examination by the court:

“I paid my taxes every year as they came due, before they became delinquent, and never allowed them to become delinquent, except this year. This year I have not paid yet.”

Esther Colt testified that she was raised in the neighborhood where the premises in question are situated; that she has known defendant a long time; that she remembers that the defendant moved upon the premises in 1901 and put up a little house thereon, and built a fence around the place; that it has been 11 years since she moved out of that neighborhood; but that she has been out there frequently since she moved.

Media McDonald testified that she has known the defendant for 30 years; that she knows where he lives; that she sold him the place on which he lives in 1900 or 1901; that she knows that he has lived on the place ever since 1900; that the defendant put a house on the premises the next year after he bought and has lived there continuously ever since that time; that he has had the property inclosed with a fence ever since he moved on it

While there was testimony of other witnesses directly in conflict with the testimony aboye stated, we think such testimony was amply sufficient to support the findings of the jury on the question of limitation submitted to them by the court and to support the judgment rendered by the court.

Having so concluded, we hold that the errors committed by the trial court pointed out under the discussion of assignments 1 and 2 are harmless and furnish no reason for a reversal of the judgment of the trial court.

The judgment of the trial court is affirmed.

Affirmed.
      <§=?For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    NORTH AMERICAN DREDGING CO. v. PUGH.
    (No. 7391.)
    (Court of Civil Appeals of Texas. Galveston.
    May 16, 1917.
    Rehearing Denied June 14, 1917.)
    1. Master and Servant &wkey;>315 — Independent Contractor.
    An original employer is not ordinarily liable in damages for the acts of an independent contractor to whom he has let or sublet the work, and over whom he has retained no control and no authority as to directing the mode and manner of doing the work.-
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244H253, 1255, 1256.]
    2. Master and Servant <&wkey;319 — Independent Contractor.
    Where the very nature of the work contracted to be done subjects to probable injury the person or property of another, the party contracting for such work is liable for the acts of an independent contractor performing it.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1259, 1260.]
    3. Master and Seevant &wkey;>319 — Liability eor Independent Contractor’s Ac.ts.
    Where the dredging work sublet to an independent contractor necessarily required the digging away of a part of land and the construction of levees on the bank and by the pumping silt, etc., was necessarily cast upon the land behind the levees, injuries thereby caused proceeded rather from the doing of the work itself than from the manner in which it may have been done, so that the one contracting for such work wa-s liable for the injuries, notwithstanding it was' let to an independent contractor.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1259, 1260.]
    4. Damages <&wkey;60 — Injuries to Land.
    The owner of lands used and intended to be used as a home for farm purposes, which were practically ruined for such purposes by dredging operations, was entitled to recover for the special damages sustained, and his right could not be offset or diminished by showing a general increase in the value of the land in that locality, alike common and inuring to the benefit of all owners, resulting from such dredging.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 115, 116.]
    5. Appeal and Error <&wkey;1062(3) — Harmless Error — Withdrawing Issues.
    In view of Rev. St. arts. 1980, 1981, as to resubmission of issues where the verdict is not responsive, the court’s action in withdrawing certain issues submitted held not prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4214.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by W. Pugh against the North American Dredging Company. Prom judgment for plaintiff, defendant appeals.
    Affirmed.
    Maco & Minor Stewart and R. W. Houk, all of Plouston, for appellant. T. S. Talia-ferro and Hutcheson & Hutcheson, all of Houston, for appellee.
   GRAVES, J.

This appeal is from a judgment of the court below for $1,950 in favor of appellee and against appellant, entered upon the findings of a jury upon special issues, as damages for certain alleged injuries to and depreciation in the values of his five-acre homestead and his one-acre burial ground, situated on opposite sides of Buffalo bayou near the Turning basin (Houston ship channel), and adjacent to what was known as section 3 of this channel under the contracts for dredging it.

It was alleged that, in dredging the ship channel in that vicinity, appellant built levees along its sides, and then pumped and caused to be cast upon appellee’s lands large volumes of clay, mud, water, and silt, and also obstructed the natural drainage thereof, causing the damages complained of. Appellant’s main defense was its contention, presented here under its first four assignments, that if appellee, Pugh, suffered any damages, it was through no fault of appellant, as none of the dredging in the vicinity where his lands lay was done by ‘it, or its agents, but by an independent contractor, namely, the Standard American Dredging Company, with which it was not connected, over which it had no control, and for whose acts in doing the work that caused the damage it was in no way responsible. The questions of what company did the work causing the overflow, and whether the Standard American Dredging Company was an independent contractor, were submitted as issues Nos. 2 and 3 to the jury, who answered that appellant did it, and that the Standard Company was not an independent contractor; but appellant complains that there was no evidence to sustain these findings, and we are constrained to agree with it. The un-eontroverted proof showed that appellee’s lands were situated near the Turning basin on the Houston ship channel, that all that part of the channel for nine miles from the basin down the bayou toward Galveston was designated as section 3 under the dredging contracts; that the dredging of all the upper portion of this section where appellee’s lands lay, and for at least 1,500 feet lower down, had been sublet by appellant to, and had all been actually done by, the Standard American Dredging Company with its own dredge boat,,Houston; that appellant neither owned nor operated this dredge boat, nor had any control over the performance of tlie work thus done with it hy the Standard ’ American Dre'dging Company, nor itself did any dredging at all in that locality, or opposite to the lands of appellee, but began 1,500 feet below them and dredged from that point still further down with its own boat Galveston; that appellant assigned this upper portion of section 3 to the Standard American Dredging Company, and while appellant received from the original contracting company under the United States .government the monthly payments for the portion of the channel dredge'd by the Standard Company, it passed these rights along to the latter company in their entirety, and had no control over the work done by it. In fact, appellee, Pugh, himself testified that the dredging near his land was done by the dredge boat, Houston. We think this undisputed evidence left no basis for the jury’s findings that appellant 'did the work causing the damage, and that the Standard Company was not an independent contractor, hut conclusively established the fact, not only that the Standard American Dredging Company did the work, but also that it was an independent contractor; and we sustain so much of the first four assignments as raise that issue; but in doing so, we are yet unable to agree with appellant that such conclusion necessarily 'determines the case in its favor, and that, if it had been reached by the trial court, would have entitled it to an instructed' verdict there.

That an original employer is not ordinarily liable in damages for the acts of an independent contractor to whom he has let or sublet the work, and over whom he has retained no control and no authority as "to directing the mode an'd manner of doing the work, is well settled. Southern Oil Co. v. Church, 32 Tex. Civ. App. 325, 74 S. W. 797, 75 S. W. 817; Cunningham v. Railway, 51 Tex. 509, 32 Am. Rep. 632; Simonton v. Perry, 62 S. W. 1090; Mo. Ry. Co. v. Ferch, 36 S. W. 488; Wood on Master and Servant, pp. 617, 618; Callahan v. Phillips Academy, 180 Mass. 183, 62 N. E. 260; 26 Cyc. 1573.

But it is likewise and equally well established that where one contracts for work to be done, the very nature of which subjects to probable injury the person or property of another, the party contracting for such work is liable for the acts of an independent contractor performing the same; and. we think the last-stated principle rules the case at bar.

The general rule governing and applied by the courts in this class of cases is well stated in Ruling Case Law, vol. 14, c. IV, pp. 86, 87, §§ 23, 24, and in authorities cited under footnotes 19 arid 4, as follows:

“Where one contracts for certain work to be done, and an injury is occasioned to a third person as the direct result of the doing of the work, not as a result of negligent acts of the ■contractor, the employer is liable for such injury. In other words, he is answerable for injuries which necessarily follow the performance of the work, and which are not the result merely of collateral negligence of the contractor.”
“For liability to attach to the employer of an independent contractor, it is not required that it be absolutely necessary that injuries to third persons will result from the doing of the work, but if the work is so inherently or intrinsically dangerous that injuries will probably be occasioned to third persons unless proper precautions are taken, the employer may be liable for such injuries, though primarily they are caused by the negligence of the contractor in failing to take the necessary steps to avoid the danger.”

That the facts here shown brought this case within these' rules we think is not susceptible of doubt; appellant’s manager admitted that the .officers of the company were aware that it would be necessary to make deposit along the banks of the bayou of the matter removed from the bayou. The undisputed evidence established that the one acre, which the jury found was damaged to the extent of $500, was on the very bank of the bayou, and that the work necessarily required the digging away of about one-fourth of this acre. The witness Pugh testified without dispute that his five-acres homestead tract was about 300 or 400 yards from the bayou, and that the pressure behind the suction pumps necessarily cast the water, silt, etc., upon his land; also, that the levees were constructed on and around his property, and the government engineer had pointed out to the contractors from the beginning that the natural drainage upon his lands was thereby obstructed and the water caused to stand thereon.

We think the injuries here shown by the uncontradicted proof to have actually resulted proceeded rather from the doing of the work itself than from the manner in which it may have been done, and that they might reasonably have been so anticipated by appellant as the probable consequence, under the conditions existing, of the dredging work it sublet and assigned to the Standard Dredging Company, and that the jury’s finding to this effect had ample support in the evidence. Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 159, 81 S. W. 282, 1 L. R. A. (N. S.) 198; Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 78 S. W. 9; Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. R. A. 484; Braisted v. Brooklyn, 46 App. Div. 204, 61 N. Y. Supp. 674; Thompson v. Lowell Ry. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323; Cameron v. Oberlin, 19 Ind. App. 142, 48 N. E. 387; Baumeister v. Markham, 101 Ky. 122, 39 S. W. 846, 41 S. W. 816, 72 Am. St. Rep. 397.

Our stated conclusions make unnecessary further discussion of the question presented under assignments numbered 6 and 7 on pages 18 and 19 of appellant’s brief; but we call attention to its violation of rule 29 (142 S. W. xii), regulating the preparation of briefs for. this court, and requiring the assignments therein to be numbered consecutively, in that it offers duplicate sets of assignments numbered 6 and 7, respectively.

Contention is also made that the evidence showed the market value of the lands to have been increased as a general result of and after the dredging, and not to.have been depreciated, as found by the jury; but when the proper rule for the measurement of the damages here suffered is applied, we think this contention untenable; appellee’s lands had been used by him, and were intended in the future to be so used, as a home, for farming purposes, and as the means, by farming thereon, of making the living of himself and family. The propf showed in considerable detail the actual damages suffered in sums at least aggregating the amount of the judgment, and that after the injuries complained of, the property had little value and was almost ruined, except, at most, as to one acre of the homestead tract, for these uses and purposes to which it had before been applied, and for which it was adapted. Ap-pellee was entitled to recover for the special damages thus sustained by him, and it could not be offset, nor diminished, by showing a general increase in the values of the lands in that locality, alike common and inuring to the benefit of all owners, resulting from the dredging'of the ship channel by the United States government. Railway v. Fuller, 63 Tex. 467; Railway v. Hall, 78 Tex. 169, 14 S. W. 259, 9 D. R. A. 298, 22 Am. St. Rep. 42.

Appellant’s insistence that prejudicial error was committed against it in the manner of receiving the verdict alone remains for discussion. But after carefully considering the question, we are unable to say that any such error is shown.

The net result of the proceedings reflected by the court’s charges, the verdict, and the bill of exceptions relating to the matter, is that the question as to depreciation in value of the five-acre homestead tract, treated both as an improved and an unimproved property, was under separate issues first submitted to the jury. After they had reported their findings, and had been sent back by the court to complete their verdict by answering issues Nos. 10 and 11, relating to the value of this tract considered as unimproved, and after they had again reported the same aggregate depreciation in value as at first, but apportioned differently, according as the tract was considered as improved or not, the court then by written instruction withdrew these issues Nos. 10 and 11 from their consideration, whereupon the jury returned the final verdict as entered, upon which, before receiving it, the court polled them, and after each juror had answered that that was his verdict, received it. At no time were different verdicts rendered, but, as stated, the same amount as to the same property each time, and only different parts of the same aggregate amount were apportioned differently according as the jury considered the tract as improved or unimproved; finally, after the court had withdrawn the two issues Nos. 10 and 11, leaving them only authorized to consider it as improved, which should have been done in the beginning, they returned the same verdict as at first. Even then the court made sure of no mistake by specially, in open court in the presence of counsel for both parties, receiving the answer of each juror that such was his verdict, before accepting it.

That the court was not without authority to withdraw these issues when done, and that no prejudicial injury resulted to appellant from the entry of .this verdict, we think is clear. R. S. arts. 1980, 1981; Railway v. Hubbard, 37 S. W. 25; Martin v. Petty, 79 S. W. 878.

These conclusions require the overruling of all assignments and an affirmance in all things of the judgment; and it is so ordered.

Affirmed.
      ®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    BURCUM v. GASTON.
    (No. 1189.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.)
    1. Judgment <@=15 — Authority to Enter.
    A court without jurisdiction over the subject-matter cannot render judgment,' but can only dismiss the cause.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 23.]
    2. Courts <§=24, 37(1) — Jurisdiction — Agreement or Estoppel.
    Jurisdiction over the subject-matter cannot be conferred upon a court by agreement or es-toppel.
    . [Ed. Note. — For other cases, see Courts, Cent. Dig. 76-78, 147, 151, 156.]
    3. Courts <§=121(1) — Jurisdiction—Amount in Controversy.
    A purchaser’s action to cancel and recover some 8300 paid on contracts to purchase land, on which over $1,700 were due, involves over $500, and is within the district court’s jurisdiction.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 410, 413, 416, 426.]
    4. Courts <§=122 — Jurisdiction—Amount in Controversy.
    The petition must determine whether the amount in controversy is within the court’s jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427.]
    5. Vendor and Purchaser <§=185 — Contract —Construction.
    Under a contract providing that, on failure to pay an installment of purchase price, the land should revert free of incumbrances at the vendor’s option, the land does not automatically revert upon failure to pay.
    [Ed. Note. — -For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372.]
    6. Vendor and Purchaser <@=341(2) — Purchaser’s Action — Sufficiency oe Petition.
    In purchaser’s action to set aside a contract for sale of land, and recover payments already made, he need not allege that the vendor had not elected to retake the land upon failure to pay a purchase-money installment, since this ia a matter of defense.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1011.]

      7. Pleading @=244 — Amendment — Necessity.
    Where the court considered the amount insufficient to confer jurisdiction upon it, plaintiff need not request permission to amend the petition by making its allegations more specific, since such request would have been useless.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 652.]
    8. Cancellation oj? Instruments @=¡37(6)— Fraud in Sale ojt Land — Sufficiency oe Petition.
    A purchaser’s petition to cancel contract that the vendor stated the land would not overflow, that such statements were false and known to bo false, etc., held, sufficient, since, in absence of a special exception, every reasonable intendment will be indulged in favor of the petition.'
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 68, 78.]
    Appeal from District Court, Dallas County.
    Suit by Frank Burcum against W. H. Gas-ton. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    McCutcheon & Church and W. D. Cardwell, all of Dallas, for appellant. Muse & Muse and T. F. Lewis, all of Dallas, for appellee.
   HUFF, C. J.

The appellant instituted this suit in the district court of the Sixty-Eighth district, for Dallas county, against the ap-pellee, W. H. Gaston, alleging that on the 16th day of June, 1913, plaintiff and defendant entered into a written contract by virtue of which plaintiff, appellant here, agreed to purchase 5.483 acres of land in the South Dallas Garden, known as tract No. 15, block 6, at an agreed price of $822, $12 cash and the balance in 81 payments of $10 each, with interest from date at the rate of S per cent, per annum; that plaintiff had paid defendant $222.40 on the contract, leaving a balance of $600 due thereon; also that on the 2d day of September, 1913, these parties entered into a written contract, whereby plaintiff agreed to purchase 8.682 acres, being tract 18, block 6, in South Dallas Garden, at an agreed value of $1,302.30, payable $17.30 cash, which was paid when the contract was executed, with 84 monthly installments of $15.30 each, with interest at the rate of 8 per cent, per annum from date; that plaintiff paid $124.40 thereon, leaving due the sum of $1,177.90 on the contract; that by the terms of the written contract appellant has paid $346.80, and that there is a balance due on said contracts amounting to $1,777.90. It is also alleged that appellant was induced to enter into said contract by false and fraudulent representations made by defendant and his agents; that they represented that the land had not overflowed since the year 1908, and was suitable for truck raising and gardening, and that by reason of the construction of what is known as the White Rock dam, a short time prior to the execution of the said contract, such construction and erection of the dam had prevented all overflows from White Rock creek, and would in future prevent overflows on the land; that the cleaning of the.Trinity river by the federal government would make backwater over the land very rare, if not entirely stop it; that the representations so made were false, and known to be so when made by ap-pellee and his agent; that appellant relied upon the representations so made, and believed them, and that he was thereby induced to sign and deliver the contracts above mentioned; that as a matter of fact the land contracted to be sold to appellant has overflowed, both in the fall and the spring of each and every year since he bought it, and is so located and situated as it will continue to overflow in the future; that by reason thereof it is of no value and useless, and that therefore there was a lack of consideration for the contracts. Appellant tendered the contracts to the defendant in his pleadings, and offered to rescind. The prayer in the petition is to recover the $346.80 paid with interest, and for judgment canceling the contract, and for general and special relief, etc. The defendant, appellee here, answered by general exception and general denial. The judgment of the court recites, in effect, that the defendant presented his general exception, and that the court held his ruling in abeyance, and ordered the case to proceed to trial. Thereupon both parties announced ready, and the jury was selected, who heard the petition and answer read, and the two contracts set out in plaintiff’s petition were offered in evidence, whereupon the defendant objected to the introduction of the evidence of the two contracts because the amount sued for and in controversy was less than $500, and not within the jurisdiction of the court, and because the said contract ipso facto became null and void upon default of payment, and that the money paid thereunder was applied on the purchase money on the obligation to purchase the land, and that there was no allegation in the petition that the defendant was making any claim for the alleged balance under said contract, and that they automatically terminated in the absence of allegations to the contrary; and the defendant further at said time Insisted upon a ruling upon his general demurrers, and that the same be sustained. The court, after considering the matter, advised plaintiff that in his judgment the general demurrer and the question of jurisdiction raised were well taken, and suggested that plaintiff withdraw his announcement and continue the cause to make amendment. The plaintiff announced that he would stand upon his pleading—

“whereupon the court sustained the defendant’s general demurrer and said defendant’s said objections, on the ground of want of jurisdiction, and stated that he would dismiss the case. The plaintiff declined to amend, whereupon the plaintiff’s counsel insisted upon the disposition of the case by the jury, and duly reserved his exception to the action of the court in sustaining de-fondant’s general demurrer to the action of the court in sustaining defendant’s objections, on the ground of want of jurisdiction herein-before shown, and, the plaintiff’s counsel insisting upon the disposition of the cause by the jury, the court thereupon instructed the jury to return a verdict for the defendant.”

The jury, in obedience to such instruction, rendered a verdict as directed, and the court rendered a judgment thereon for the defendant against the plaintiff, and that the defendant go hence without dáy! and recover all costs against tie plaintiff, awarding execution thereon. The appellant also took his bill of exceptions to the action of the court, reciting the facts substantially as does the judgment above set out.

It is apparently urged by appellee that the appellant invited the court into the error of instructing a verdict and rendering the judgment on the merits, and therefore should not complain. If the court had no jurisdiction over the subject-matter, as the trial court appears to have concluded, then he had no jurisdiction to render judgment. 1-Ie could only dismiss the cause. This is true whether he was invited to assume such jurisdiction or did so by agreement of the parties with his assent. Jurisdiction cannot be conferred upon the court by agreement or by estoppel. Woodruff v. Harrell, 67 Tex. 298, 3 S. W. 48; Mercer v. Woods, 33 Tex. Civ. App. 642, 78 S. W. 15. Taking the view of the trial court, the judgment was improperly rendered.

But in this case the amount in controversy was the $343.90 sought to be recovered, together with the amount of the contracts, $1,777.90, sought to be canceled for fraud. These are alleged to be outstanding obligations against ¡appellant, obtained by fraud. They were therefore in controversy, and exceeded $500, according to the allegations. The petition on its face alleged facts which gave the district court jurisdiction. We see nothing therein which evidences to us a pmrpose to improperly invoke the jurisdiction of the district court. There is no allegation that there was a fraudulent purpose to place the amount sufficient to confer jurisdiction on that court. This being true, it makes no difference what the evidence may develop on the trial, or what the verdict may be. It is the petition which must be looked to on the question of jurisdiction and the amount in controversy. Ablowich v. Greenville National Bank, 67 S. W. 79, on rehearing, 881, 95 Tex. 429; Railway Co. v. Bank, 93 S. W. 431; Cattlemen’s Trust Co. v. Blasingame, 184 S. W. 574, and the authorities collated in the above-cited cases.

It appears to have been the opinion of the trial court, because the contracts have each a provision to the effect, that if the appellant failed to make any installment payment, that he forfeited all right and interest in the land, and that at the option of the seller the same should revert to the seller, free from all incumbrances; that when these contracts were introduced an obligation on appellant’s part to pay the balance due on the contract was shown. The wording of the contracts we do not believe justify such construction. The seller had the option or the right to elect to declare the contracts at an end, but there is no evidence that he had done so. For aught that appears from the record, he yet held appellant on the contracts, and had not exercised his right to forfeit the right and interest of appellant to the land, and to reinvest himself with the title thereto. It is not our understanding that the appellant was required to negative in his petition the exercise of the option or election by the seller stipulated for in the contracts. This rested alone) with the seller. O’Donnell v. Chambers, 163 S. W. 138.

The trial court does not appear to have held the petition subject to general demurrer on the ground that the fraudulent representations inducing the contract were but expressions of opinion as contended for by appellee herein. His announcement in the judgment and his reason for sustaining the general exception was that the petition showed no jurisdiction. If this was his view, it would have been useless to ask for leave to make the allegations more definite on the question of fraud. When it appeared that the court was unwilling to entertain jurisdiction because the amount was insufficient, it would have been useless to ask to amend so as to make the allegations of fraud more definite. Railway Co. v. Underwood, 64 Tex. 463. However, we do not understand the allegations to be that appellee expressed his opinion that the land would overflow. The allegation is: That appellee falsely represented that it would not overflow on account of the construction of the dam erected as stated and because the government had cleaned out the Trinity river. He stated these things had been done as a fact, and that this rendered the land safe from overflow. That in making these statements he did so falsely and fraudulently. It occurs to us that, in the absence of a special exception, every reasonable intendment will be indulged in favor of the petition, and that in doing so he alleged acts of fraud by representation sufficient to cancel the contract. Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Gen. Bonding, etc., v. Mount, 183 S. W. 783. We believe the trial court was in error in sustaining the general exception and in instructing a verdict for the defendant in this case. The mere fact that the appellant insisted that his pleading was sufficient and demanded a trial by the jury should not be treated as an invitation to the court to instruct a verdict against him.

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

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