author: RASBURY, J.

text:
    BUFFALO PITTS CO. et al. v. ALDERDICE.
    (No. 7225.)
    (Court of Civil Appeals of Texas. Dallas.
    May 29, 1915.
    Rehearing Denied June 26, 1915.)
    1. CONTRACTS <§=>324 — REMEDIES EOR BREACH —Stipulatio ns.
    Wlzez-e parties to a contract agree on the remedies accruing on a breach thereof, the agreed remedies are exclusive.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1549-1557; Dec. Dig. <§=>324.]
    2. Sales <§=>261, 273 — Contract — Warranties — Implied Warranty.
    A contract for the sale of an engine, which provides that on its failure to meet the warranty, if it cannot be made to do so by experts, the buyer shall return it, whereon the seller may either fuz'nish another'engine or rescind the contract by return of the price, and which stipulates for notices by the buyer to the seller, or the right to return and receive the price will be waived, and which declares, “This is a secondhand engine, and has been used about 30 days, and is guaranteed in first-class condition,” and which concludes, “This warranty does not cover belting, nor secondhand machinery sold,” does not, when considered as a whole, stipulate for an express warranty and an exclusive remedy for breach of contract; and where the buyer had not seen the engine at the time of the making of the contract, but relied on the seller’s representations, the seller impliedly warranted that the engine was reasonably fit for the purpose for which the buyer purchased it with knowledge of the seller, and was of the kind and quality represented.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 727-735, 772-776; Dee. Dig. <§=3261, 273.]
    3. Sales <§=>418 — Contracts—Damages.
    A contract for the sale of a threshing outfit called for a new feeding attachment. The feeder delivered was secondhand, and the buyer refused to accept the outfit. Thereafter the parties made a supplemental contract, whereby the seller agreed to furnish a wheel for the thresher and a new feeder, and “to put same on and be responsible for any damages caused by delays in placing” the same on the thresher. The buyer was delayed while operating the thresher because of defects in the secondhand feeder. Held, that the buyer could recover for the loss sustained, for the quoted terms in the supplemental contract meant all delays from the time of the execution of the supplemental contract until the parts called for thereby were actually placed on the machine.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ H74KL201; Dec. Dig. <§=>418.]
    4. Principal and Agent <§=>136 — Contracts Made by Agent — Liability oe Agent.
    One acting as agent of its disclosed and known principal in making a sale is not liable to the buyer for breach of contract.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491'; Dec. Dig. <§s=136.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by J. M. Alderdice against tbe Buffalo Pitts Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed in part, and affirmed in part.
    Will Hancock and Supple & Harding, all of Waxahaehie, for appellants. Farrar & Mc-Rae, of Waxahaehie, for appellee.
   RASBURY, J.

April 15, 1912, appellant Buffalo Pitts Company and appellee entered into a written contract by which, appellant sold to appellee, and appellee purchased from appellant, certain threshing machinery, an enumeration of which is unnecessary, save that among tbe machinery so sold was a feeder. By the contract appellant Buffalo Pitts Company warranted that the machinery should be “of good material, well constructed, and, with proper use and management, capable of doing well tbe work for which the machines respectively are made and sold.” As part of the warranty quoted it was further agreed, if any “parts” of the machinery after six days’ use should fail to meet the warranty in any respect, that the appellee should give appellant immediate written notice thereof at appellant’s home office in Buffalo, N. Y., by registered letter, stating particularly the parts that failed to meet the warranty and wherein, and allow the appellant a reasonable time to get the machine or “part” with a skilled workman and remedy the defect, etc. Other provisions in the contract required further and telegraphic notice if the skilled workman failed to correct the defect, and provided for additional time for another expert; also provided that in case of the failure of second expert to cure the trouble the “part” was to be returned to the agency delivering same, whereupon appellant had the option of either furnishing another machine or “part” or of rescinding the contract by a return of the money or notes given in payment thereof, and thereby be released from all further liability. It was also stipulated in the contract that failure to give the written notices enumerated should be a waiver of the warranty and a release of appellant thereon, without in any manner affecting the liability of appellee. On the same day that the contract just outlined was entered into, another contract between appellee and appellant Buffalo Pitts Company was also entered into, by which appellant sold to appellee a single cylinder traction engine for the agreed price of $700. Said contract was similar in all respects to the one outlined above, being, as was the first one, appellant’s printed form of contract, save that- there was inserted in the last contract the following:

“This is a secondhand engine, and has been used about 30 days, and is guaranteed to be in first-class condition in every respect.”

Both contracts also contained the following concluding provision, printed in comparatively large type:

“This warranty does not cover belting nor secondhand machinery sold.”

September 12, 1012, appellee commenced this suit against appellant Buffalo Pitts Company, a corporation, and against appellant F. S. Cronk Company, also a corporation. The suit, for the purpose of this appeal, was to recover of appellant Buffalo Pitts Company certain damages, the alleged difference in value of the engine in the condition in which it was when delivered to appellee and what would have been its value had it been in the condition it was represented to be when it was sold to appellee; also to recover of both Buffalo Pitts Company and F. S. Cronk Company for the loss in operating expenses which appellee suffered due to the failure of the feeder to comply with the warranty. Other items of damage were sued for, but reference thereto is unnecessary, since there was no recovery.

Appellant Buffalo Pitts Company by way of defense pleaded the provisions of the agreement, which we have detailed, and appellee’s failure to comply with them, particularly in giving the notice required therein, and, being bound thereby, had, as a consequence, waived ali damages. Appellant F. S. Cronk Company pleaded the general denial, and specially that it was not liable for the damages sought to be recovered, because in the transactions relied on by appellee it was acting only as selling agent for appellant Buffalo Pitts Company.

There was a trial before the district judge without a jury, resulting in a judgment for appellee against Buffalo Pitts Company for $250, the difference in value between the engine agreed to be delivered to appellee and the one actually delivered, and judgment for appellee against both Buffalo Pitts Company and F. S. Cronk Company for $275, the amount lost by appellee in running expenses oh account of the feeder being defective. From such judgment, both Buffalo Pitts Company and the F. S. Cronk Company have appealed.

All the facts necessary to a disposition of the case are contained in the conclusions of fact of the district judge, in reference to which no claim is made that the findings are not supported by the evidence, or that any fact, so supported and material to appellant’s defense, has been omitted. Accordingly we adopt them. They are as follows:

“First. That during the spring of 1912 J. M. Alderdice was desirous of purchasing a threshing outfit, consisting of a traction engine to operate the thresher and separator and feeder and other machinery incident to a full threshing outfit, and was for some time, through the authorized agents of the Buffalo Pitts Company, negotiating with them for such machinery.
“Second. That R. B. George was at said time the state agent and state manager for the state of Texas of the Buffalo Pitts Company, and that F. S. Cronk Company was at that time the local agent at Waxahachie for the Buffalo Pitts Company, and that R. H. Fincher was the acting agent for said F. S. Cronk Company.
“Third. That a number of propositions pro and con were submitted by the Buffalo Pitts Company through said agents to said plaintiff, and counter propositions submitted by the plaintiff to them, and that finally a trade was consummated by which the plaintiff became the purchaser of a secondhand traction engine and of a separator and feeder, all of which are described and mentioned in the contracts hereinafter referred to.
“Fourth. That R. B. George represented to the plaintiff that the engine in question had been run about 30 days and was as good as new, and that at the time that the contract hereafter referred to was written there was included in the contract a statement that ‘said engine was a secondhand engine and had been used about 30 days and is guaranteed to be in first-class condition in every respect.’
“Fifth. That J. M. Alderdice, the plaintiff, never saw the engine in question until it arrived in Waxahachie on board the cars; that the representations made by said George, and there included in said contract, were material representations; and that said Alderdice relied upon them and purchased the engine upon' said representations and guaranty.
“Sixth. That said representations were untrue, and that the said engine was not in first-class condition and was not as good as new.
“Seventh. That the difference in the value of said engine in the condition in which it was at the time it was delivered to plaintiff and what its value would have been, had it been in the condition it was so represented to be, was $250.
“Eighth. That during the negotiations between the plaintiff and the agents of the defenU-ant Buffalo Pitts Company, and in the discussion between them as to the character of the feeder the plaintiff desired, it was understood that he was to have a new Ruth feeder, and (hat it was to be of the same kind that one John Shannon had upon his separator. The contract as signed by the parties does not describe the kind of feeder, but it was understood between them the feeder was to be of the character heretofore mentioned. At the time the machinery arrived at Waxahachie, the feeder upon the separator was of the kind that John Shannon had upon his separator, but was found not to be a new feeder, and P. S. Cronk Company, through R. IT. Fincher, undertook to have the matter adjusted, and undertook to get for the plaintiff a new feeder of the kind he had purchased. Plaintiff declined ■ to accept the outfit with the secondhand feeder on it, and in the negotiations between him and F. S. Cronk Company, through R. IT. Fincher, plaintiff finally agreed to take the threshing outfit with the feeder which was on it at that time, and use the same until the new feeder could be secured and placed on the machine; the said F. S. Cronk Company, as agent of the Buffalo Pitts Company, acting through said R. H. Fincher, executing at the time the supplemental contract.”

„ We interpolate at this point the contract referred to, which is as follows:

“June 18, 1912.
“The Buffalo Pitts Company agree to furnish free of cost one rear wheel for thresher bought from them by J. M. Alderdico 6/17/12; also to furnish a new feeder for the thresher mentioned and to put same on and be responsible for any damage caused by delays in placing these on thresher.
“Buffalo Pitts Co., by F. S. Cronk Co., Agts.”
“Ninth. After this supplemental contract was executed, the plaintiff took the separator and the other machinery and proceeded to do custom threshing therewith. It was known by said R. IT. Fincher that this was the purpose for which plaintiff was buying the machinery, and the said hincher knew also about the capacity of said machine per day and the price received for such work. That the feeder which was on the machine at the time it was taken out by the plaintiff never operated successfully and gave plaintiff considerable trouble, breaking down and giving way in first one particular and another. That the defendant Buffalo Pitts Company undertook to furnish plaintiff with a new feeder, and shipped one to Waxahachie, which was taken out by R. H. Fincher, or parties under his direction, to be placed upon the separator, but was found to be too small and that the same would not fit, after which they put the old feeder, which was on the machine at first, back on again, and undertook to secure a new feeder therefor, which they eventually did, and placed it on the machine. This last feeder placed upon the machine was not the same pattern as the feeder upon John Shannon’s machine, but seemed to have given satisfaction, and they had no further trouble with the feeder after the last one was so placed upon the separator.
“Tenth. That the time lost by the plaintiff on account of the feeder was 5% days, and that plaintiff’s damages during such time, or loss in his expenses running on, was $50 per day, or a total of $275.
“Eleventh. That the actual time lost by the plaintiff while they were actually working in undertaking to place the first feeder that arrived after the delivery of the machine was throe-fourths of a day, and that the time lost while they were placing the last feeder up.on the machine was one-fourth of a day, making a whole day that was lost during the time they were actually working and undertaking to place the feeders on the machine.
“Twelfth. The court finds that the plaintiff would not accept the machine with the first feeder on it until he was protected by the execution of the supplemental contract, which has been hereinbefore indicated.
“Thirteenth. The court finds that the oat crop for the season of 1912 was exceptionally good, and that this was known by R. H. Fincher, who also know that plaintiff was buying this machinery to do custom threshing, and that the machino could thresh 3,500 bushels per day, and that the plaintiff received 6 cents per bushel for threshing the grain.
“Fourteenth. The court further finds that no notice was given by the plaintiff, as called for in the contracts, in writing, but that the notices were made verbally to R. H. Fincher, who was acting for the F. S. Cronk Company, and by them communicated to the Houston office of the Buffalo I’itts Company, and that they acted upon said notices, and sent one McCracken from Houston to work upon the feeder which was giving the trouble, and that thereby the defendant _ company waived the notices which were required by the contracts to be given.”

The first and. second assignments of error challenge the right of the trial judge to allow damages for the difference in value of the engine sold and the one delivered, because by the contract between the parties they had agreed upon another and exclusive remedy in case the engine did not meet the warranty. The contract does provide, as we have shown, that in the event the machinery described therein should fail to meet the warranty, and could not be made to do so by experts, the purchaser should return same to the delivering agency, whereupon the seller could either furnish another machine or rescind the contract by a return of the purchase price, and thereby be released from any liability whatever. However, before the purchaser might return the machinery and receive other similar machinery, or a return of the purchase money, he was required by the contract to give certain written notice to the seller; otherwise, the right to return the machinery and receive the purchase price was waived. The remedy thus provided for on behalf of the purchaser is exclusive of all other remedies. Appellee did not give the notice to appellant stipulated for in the contract, nor was the engine returned to the delivering agency and an opportunity to rescind afforded appellant. Consequently, if the warranty and stipulations for notice and other provisions of the contract in that respect apply in this case, the judgment of the court was erroneous, since it has uniformly been ruled that, when the parties to a contract agree upon the remedies that shall accrue in case of breach thereof, such agreed remedies are exclusive of all others. Aultman & Co. v. York, 1 Tex. Civ. App. 484, 20 S. W. 851; Aultman v. McKinney, 26 S. W. 267; Case Threshing Machine Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Shearer v. Gaar-Scott Co., 41 Tex. Civ. App. 39, 90 S. W. 684; Gaar-Scott Co. v. Hodges (Ky.) 90 S. W. 580; Oltmanns Bros. v. Poland, 142 S. W. 655; Fetzer v. Haralson, 147 S. W. 295.

We conclude, however, that by other and. special provisions of the contract the warranty, the remedy for a breach thereof, and. the procedure to be followed in order to be entitled to tbe remedy, clearly have no application to tbe contract covering tbe sale of tbe engine. Tbe contracts in the record are a general form used by Buffalo Pitts Company, with blank lines at certain places therein for use in case it is desired to insert special provisions. In one of these blank places in the contract is written, as stated at another place herein, the provision that the engine is a secondhand one. By the concluding paragraph of the contract it is declared that the warranty does not “cover * * * secondhand machinery”; such provision being emphasized and notice being directed thereto by printing same in comparatively large type. With these two special provisions in the contract, it does not require argument or discussion to establish the claim made that the warranty does, not apply to the engine. There being no warranty, it is equally clear that the notice required and the remedy agreed upon by the parties also have no application, and that the notice and the remedy has reference solely to the warranty in the contract, and no other, we think clear. Such conclusion is supported both by the language used and its context. All the provisions of the contract dealing with both the warranty, the remedy, and the procedure appear. in one clause thereof. This clause, after reciting the warranty, further provides in effect that such warranty shall be enforceable in the event the provisions with reference to notice shall be given and an opportunity afforded to cure defects, etc., in the machine, failing in which it shall be returned and the contract rescinded by placing the purchaser in statu quo. We therefore conclude that the contract as relates to the engine provides neither warranty, remedy, nor procedure to obtain same.

The warranty being thus expressly withdrawn, an inspection of the contract discloses therein no other provision, express or otherwise, governing the parties in the absence of warranty. In such cases there are at least two well-defined rules — the first being the much-relaxed rule of caveat emptor, which has no application, for the reason that the court found as a fact that appel-lee never saw the engine until it arrived in Waxahachie, and as a consequence had no opportunity to exercise his own judgment in respect thereto, but relied upon the representations of appellant in that respect, who knew the purpose for which the engine was purchased; and, second, the rule of implied warranty, which in the absence of an express warranty projects into the contract by implication the agreement on the part of the seller that the article sold is reasonably fit for the desired purpose and is of the kind and quality represented. Houston Cotton Oil Co. v. Trammell, 72 S. W. 244, and cases cited; Houk v. Berg et al., 105 S. W. 1176, and cases cited. It was by authority of the .rule last stated that the judgment was entered ; and the finding of the court that ap-pellee never saw the engine until it was delivered, and that before purchasing same appellant’s general agent represented it to be in first-class condition and as good as new, which representation was untrue, but which was relied upon by appellee, is sufficient, under the rule to support the judgment.

The third assignment of error challenges the action of the court in allowing appellee $275 damages for loss of time caused by defective feeder. As will appear from the court’s findings, when the machinery arrived the feeder attachment was a secondhand one; whereas, the contract called for a new one. Learning that the feeder was secondhand, appellee declined to accept the outfit as a whole. At the request of F. S. Cronk Company, selling agents of Buffalo Pitts Company, appellee finally agreed to use the secondhand feeder until a new one could be obtained, in consideration of the execution by appellant F. S. Cronk Company, on behalf of Buffalo Pitts Company, of what is termed the “supplemental” contract, and included by us in the court’s findings of fact. The secondhand feeder, however, did not operate successfully, breaking down and giving way in first one particular and then another. Finally appellant Buffalo Pitts Company shipped a new feeder to Waxahachie, but when it was placed upon the machinery it was found to be too small. Thereupon the old feeder was replaced thereon. While operating with this feeder, and before another and a different type of feeder, which did operate successfully, could arrive, appellee lost 5 y2 days’ time, due to the imperfections of the secondhand feeder, at a cost, in actual expense, of $50 per day.

Appellant’s precise contention is that ap-pellee could only recover for the time lost in attaching the feeder to the separator or on the outfit. In this respect the court found as a fact that the time lost in removing the secondhand feeder from the machine or replacing it thereon was one full day. The other time lost was due to the breaking down of ’ the secondhand feeder from first one cause or another. An inspection of the contract shows that it involves two matters: First, an agreement to furnish a new feeder and wheel for the thresher; and, second, to pay all damages “caused by delays in placing these on thresher.” We think it clear that by the quoted words it was not meant to pay only for the time lost while actually attaching the wheel and feeder to the machinery, but to reimburse appellee for all time lost from the date of the supplemental contract until the new feeder and the wheel could be gotten to Waxahachie and placed upon the machine. When it is considered that the court found as a fact that appellee would not accept the secondhand feeder until protected by the supplemental contract, and that the very breakdowns and delays that appellee evidently anticipated did occur while in the midst of the harvest season, it is fair and reasonable to conclude that the expression “delays in placing these on the thresher” meant all delays from the time of the execution of the supplemental contract until the parts were actually placed on the machine, since the time lost in getting the parts to the thresher was delay just as surely as was the time lost in attaching them to the machinery. The thing to be done was to place the parts on the thresher and to pay all damages resulting from delay in that respect, however caused. Any other construction would lead to unreasonable results, since by the construction sought to be placed upon the contract appellant could have delayed until another harvest, and yet been liable only for the delay in actually attaching same to the other machinery.

The fourth assignment of error is that the evidence does not support the finding of the court that appellee was entitled to recover the 5Yz days’ lost time. It is urged that it does not support such judgment against appellant Cronk Company, because it appears from the evidence that Cronk Company, in all the transactions relating to the purchase of the machinery, was acting as the agent of its disclosed and known principal. Without detailing the pleading and the evidence on this question, we conclude that it does sustain appellant Cronk Company’s contention in that respect, and that the judgment as to Cronk Company is erroneous. It is also urged, under said fourth assignment, that the evidence does not support the judgment for lost time against Buffalo Pitts Company, because it is liable at most for the time actually consumed in placing the parts on the machinery. This claim involves in another way the construction which ought to be placed upon the supplemental contract, and which we have decided adversely to appellant’s contention.

The judgment of the trial court as to appellant E. S. Cronk Company is reversed, and judgment here rendered for said appellant. In all other respects, the judgment of the trial court is affirmed. '
      @^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    MOSEL et al. v. SAN ANTONIO & A. P. RY. CO.
    (No. 5542.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    Rehearing Denied June 25, 1915.)
    1. Railroads &wkey;>58 — Maintenance of Depots — Contracts—Validity.
    A railway company may, by contract, bind itself to perpetually maintain a depot at a particular place, unless the interests of the public demand a removal of the depot.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig-. §§ 130, 131, 133, 135, 130; Dec. Dig. <&wkey;>5S.]
    2. Railroads <&wkey;60 — Depots — Contracts —Enforcement.
    The court may enjoin a railway company from moving its depot located under a contract, provided public interests do not demand a removal of the depot.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 134, 136; Dec. Dig. <®=^60.]
    3. Railroads i&wkey;5S — Acquisition op Land for Depot Purposes — Contracts — Performance.
    A railway company acquiring land for a money consideration, and for the further consideration of maintaining thereon perpetually a depot, does not perform the contract to maintain the depot by maintaining it for eight years, and the contract is enforceable unless public interests demand a removal of the depot.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. &wkey;>58.]
    4. Railroads <&wkey;58 — Location of Depots— Contracts.
    A railway company, contracting to maintain passenger and freight depots on land acquired for the purpose in a small town, does not comply with the contract by maintenance of a freight depot only, in view of the custom that in small towns freight and passenger depots are located on the same grounds near each other.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. &wkey;58.]
    5. Railroads <&wkey;58 — Location of Depots— Powers of Railroad Commission.
    The Railroad Commission, empowered by Vernon’s Sayles’ Ann. Cfiv. St. 1914, art. 6675, to see that laws relating to railroads are enforced, has no authority to enforce a contract by a railway company with a private person to maintain a depot at a particular place, notwithstanding article 6550, providing for the designation of depot grounds, and prohibiting a change therein, which prevents the practice of locating a depot and after citizens have invested in lands adjacent thereto, removing the same, but which does not prevent a company from moving a depot to a more desirable location in the same town.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. &wkey;58.]
    6. Railroads <&wkey;60 — Depots—Contracts foe Location — Enforcement—Petition.
    A suit to restrain a railway company from moving its passenger depot in a town to another place in the same town, which alleges that the company contracted to maintain a depot at the present location; that it began preparations to erect a new depot on other grounds; that the place for the new depot would be inconvenient and inaccessible; that plaintiffs bought their property on the faith that the company would maintain its passenger depot on the present site —states a cause of action as against a general demurrer, and the court on the evidence must ascertain whether plaintiffs are entitled to a temporary injunction until the case may be tried on the merits.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 134, 136; Dec. Dig. <&wkey;>60.]
    7. Injunction <&wkey;157 — Temporary Injunction — Application — Questions Determined.
    A suit for an injunction should not be determined on a hearing for a temporary injunction, but the court sitting in chambers should, after hearing the evidence, grant or refuse a temporary injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 340, 342; Dec. Dig. &wkey;157/J

      8. Injunction <&wkey;>152 — Application por Temporary Injunction — Exceptions to Petition.
    The trial judge, on hearing in chambers an application for a temporary injunction, cannot pass on defendant’s exceptions to the petition.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. &wkey;>152.]
    Apiieal from District Court, Kerr County; R. H. Burney, Judge.
    .Suit by H. Mosel ancl others against the San Antonio & Aransas Pass Railway Company. Prom a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    H. C. Geddie and J. R. Burnett, both of ICerrville, for appellants. Boyle & Storey, of San Antonio, for appellee.
   PLY, C. J.

This is a suit instituted by Herman Mosel, the West Texas Supply Company, and Henry Welge, appellants, to restrain appellee and H. Rcmschel and Charles Schreiner from moving its passenger ,. depot from its present location in the town of Kerrville to another place in the same town about two blocks distant. It was alleged that, in 1892, Charles Schreiner conveyed to appellee 17Vio acres of land to be used for depot purposes; that freight and passenger depots were established on the grounds; that the houses burned about two years ago, but a new freight depot was erected and a temporary passenger depot built on the 17Vio acres aforesaid; that the consideration for the conveyance of the land was $3,000 and “the further consideration of the maintenance by said railway company of a depot on the tract of land hereinafter described,” referring to 174/.io acres of land, “and meaning a passenger depot”; that appellee had begun preparations to abandon the present site of the passenger depot and erect a new depot off the grounds conveyed to it for depot purposes, that the place chosen for the new passenger depot would be “inconvenient, inaccessible, and not reasonably safe to passengers.” It was further alleged that Mosel owned seven lots, two of which front the depot grounds, all of them being in that vicinity, and the removal of the depot would greatly injure his business and depreciate the value of his property, and also the property and business of the West Texas Supply Company, which owned lots near the depot, and was doing business there; that Mosel and the supply company bought their property upon the faith of the covenant that appellee would maintain its passenger depot on the land. This is a sufficient statement of the allegations of the petition which, together with the exhibits, covers 23 pages of the transcript. Appellee filed a general demurrer, and 13 special exceptions to the petition, and answered, traversing many of the allegations of the petition, and alleged that all of the property owned by appellants was bought from Schreiner before he conveyed the depot grounds to appellee except two lots and block 10, owned by the supply company, that block 10 ts situated nearer the proposed location of the depot than to the old one, and that the two lots mentioned are vacant lots without any improvements on them. The court sustained the general demurrer on the ground that the contract is one that cannot be specifically enforced.

Appellants sought a temporary injunction and specific performance of the contract evidenced by the deed of conveyance made by Charles Schreiner to appellee. It has been held that such a covenant, as that to maintain a depot at a certain locality, is one that runs with the title, and if that be true and Charles Schreiner could have enforced the contract, then his vendees could also have the equitable remedy of specific performance of the contract. The contract with Schreiner was a valid and binding one, as it has been time and again held in Texas that a railroad corporation can, by contract, bind itself to perpetually maintain a depot at a particular place. Railway v. Robards, 60 Tex. 545, 48 Am. Rep. 268; Railway v. Dawson, 62 Tex. 260; Railway v. Molloy, 64 Tex. 607; Williams v. Railway, 82 Tex. 553, 18 S. W. 206. All the cases cited, however, were those involving suits for damages, and the question of specific performance is not mentioned therein. That suits for damages on such contracts can be maintained is held in a number of states. Railway v. Camp, 130 Ga. 1, 60 S. E. 177, 15 L. R. A. (N. S.) 594, 124 Am. St. Rep. 151, 14 Ann. Cas. 439, and notes. In other courts it has been held that an agreement to establish a depot at a particular point in consideration of a transfer of land is illegal and void.

The well-considered case of Railway v. Camp, herein cited, has been sustained by the weight of authority, in so far as it holds that such contracts as the one under consideration are valid so long as it is possible for the company to discharge the duties owed by it to the public, and, at the same time, discharge the duties incumbent upon it by the contract. In the Georgia Case, after reviewing the authorities on the subject, the court held:

“The effect of * * • the decisions just referred to is that, when one contracts with a railroad company in reference to those matters where the public is involved, the contract is made subject to the rights of the public; and when the exigencies of the business of the company are such that the rights of the public come in conflict with the rights of the contracting party under his contract, it is to be presumed that it was the intention of the parties that the private rights under the contract should yield to the public right. In applying what has been said to the present case; it cannot be held that the contract * * * was void per se; for the company had the right to make a contract with the plaintiff to locate a station at a given point, so long as the location of the station did not interfere with the proper discharge of the duties resting upon the company as a quasi public corporation. But the plaintiff was charged with notice of the character of the person he was contracting with, and of the duties which that person owed to the public, and also, in reference to the subject-matter of the contract, that it was connected intimately and directly with the discharge of the duties the defendant owed the public; and therefore it became a part of the contract between the parties that the maintenance of the station at the point was limited, not by the time specified in the contract, but to that time, and to that time only, when, consistently with the discharge of the public duties of the company, the station could be maintained in the manner provided for in the agreement. The petition therefore set forth a cause of action. There is nothing alleged to indicate that the conditions are so changed that the railroad company cannot comply with its contract and at the same time discharge all duties to the public which the law places upon it. If that time has arrived, the railroad company may be allowed to show this by an appropriate plea, supported by competent evidence. This is a matter of defense.”

In the Georgia Case a demurrer was sustained to a suit for damages on a breach of contract to maintain a depot at a certain place.

There are cases that hold that such contracts are void, as against public policy, and cannot be specifically enforced, and that a party thereto is relegated to his suit for damages, but we are unable to see how a contract that cannot be specifically enforced because it is void on the ground that it is opposed to public policy can be made the basis for damages or any other character of suit. If it is void because in the face of public policy, it is void, and no suit of any character could be based upon it. The contract is valid or it is invalid, and if the former, it is like any other valid contract and can be specifically enforced. If invalid, the contract will not sustain 'an action for anything.

In the ease of Conger v. Railway, 120 N. Y. 29, 23 N. E. 983, an action had been brought to compel specific performance of a contract to maintain a station at a certain point, and the cause was decided against specific performance, not on the ground tliat the contract was void, but on the ground that the facts showed that maintaining the station at the point contracted for would not inure to the good of the public, and it was also consistently held that the fact that the station was not in a place where it would be of benefit to the public should not prevent a recovery for damages for breach of the contract. In other words, while it was conceded that the public good would be advanced, by the removal of the station to another point, still that fact did not destroy private rights arising from a breach of the contract. As said by the New York Court of Appeals:

“It has become the well-settled doctrine of this court that the specific performance of a contract is discretionary with the court, and that performance will not be decreed where it will result in great hardship and injustice to one party, without any considerable gain or utility on the other, or in cases where the public interest would be prejudiced thereby.”

In Elliott on Railroads, § 362, the rule is formulated as to stations located by contract as follows:

“If the contract is made solely to promote private interests at the expense of the public welfare, it should, as we think, be held to be illegal. But if public interests are not prejudiced, or the power of the company to do what the public welfare demands is not abridged, we believe the contract should be regarded as valid.”

The enforceability of such contracts must depend upon the facts of the particular case, and the contract be held valid and binding whenever the public welfare is not jeopardized thereby. Elliott, Railroads, § 386. There can be no question of public policy involved in the enforcement of such a contract, because in its enforcement the public interests can and will be carefully guarded. Many are the sins that have been committed in the name of public policy, which is so broad and indefinite that it can be and is invoked at the expense of reason and justice. No right to locate a depot, where the public interests demand it should be located, is bargained away, but the contract merely binds the railway corporation to abide by its contracts until its higher duty to the public releases it from the same. The moment the private interests of tlie party contracting with the corporation comes in conflict with the higher and more sacred duty to the public, the contract is automatically canceled and destroyed.

Some courts hold that, as equity will not take up matters that involve the performance of continuous acts or duties, it will not enforce the maintenance of a depot at a point where the corporation has contracted to maintain it. That rule has no reasonable application to such a case. To enjoin a railroad company from moving its depot, located under a contract, is in no way different from restraining any other unlawful act. If, as stated in the case of Railway v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385, the circumstances may change so that a removal should be permitted, another suit would remedy that matter without any continuous performance of equitable duties on the part of a court. It would not be a continuous performance because in the future the facts surrounding further performance of the contract have changed the position of the parties towards one another.

We cannot accede to that other remarkable announcement, in the case cited, that performance of its contract for eight years by a railroad company as to the permanent location of its depot satisfies the contract, and the corporation can disregard it and move its depot to any point desired. The application of such a theory would place too much arbitrary power in corporations, and can have no solid basis upon which it can stand. Such a contract is in no wise different from any ordinary contract, except that it may be set aside in the interest of the pub-lie. ’ It is not void, but merely voidable, when it becomes antagonistic to the public good.

In the case of Taylor v. Railway, 54 Fla. 635, 45 South. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155, 14 Ann. Cas. 472, the plaintiffs sought specific performance of a certain contract in which the railway company agreed, in consideration of a conveyance of land, to locale a portion of its main line, a spur track, depot, and platform, at a certain point, and the Florida Supreme Court, In a strong opinion, upheld the right of plaintiffs to enforce the contract. The court held:

“It is the duty of a common carrier railroad corporation to have regard for the rights of the public in the service it engages to perform under the franchises the state permits it to use primarily for the beuefit of the public. This requirement embraces the duty to render a service adequate to meet all the just requirements of the public, including reasonable dispatch, convenience, regularity, and promptness m the transportation of passengers, provision and maintenance of adequate depot facilities suited to the business and convenience of the communities along the road, and the performance of the duties and the rendering of the service due to the public, without unjust dis-criminations of any character as to persons, localities, or conditions. This duty, however, does not relieve the corporation from its contract obligations to individuals when an observance of the obligations does not materially and injuriously affect the rights of the public, and where the public, or any member of it, is so affected, the rights of the respective parties cannot be arbitrarily determined by the corporation for itself. If the private rights under the contract cannot he adjusted by agreement, resort should be had to the courts by proper parties, where all rights will be adjudged. It is the duty of the corporation to observe the obligation of its contracts with individuals that are made in good faith, and that do not necessarily, directly, and materially affect injuriously substantial rights of the public, until the corporation is relieved from such contracts by due course of law. The railroad company is allowed a reasonable discretion in the performance of its duties and in the rendering of service to the public; but such discretion should be exercised in good faith and for the public welfare, and not arbitrarily, and it is subject to control and regulation by governmental authority.”

That is the reasonable rule applicable to such contracts, and no railway corporation should be relieved from such contracts in the absence of proof that the interests of the public demand a removal of the depot from the point fixed by contract. The great weight of authority, as well as sound reason and common sense, support that proposition.

Texas authorities are not silent on the subject of the enforceability of such contracts, for in City of Tyler v. Railway, 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911, the court was construing a similar contract and held:

“There is no difficulty in enforcing the specific performance of this contract; the judgment of this court perpetuating the writ of injunction heretofore issued in this cause will have the effect to prevent the removal by the St. Louis Southwestern Bailway Company * * * of its general offices and its machine shops and roundhouses for its main line from the city of Tyler, and we apprehend that no compulsory process of the court will be required to secure the maintenance and operation of the general office, machine shops, and roundhouses as thus located; nor will there be necessity for the oversight and supervision of any judicial or executive officer of the state in the operation thereof.”

In that case the plaintiffs sought specific performance of a contract, which differentiated it from the case of Railway v. Colburn, 90 Tex. 230, 38 S. W. 153, in which an individual sought to recover damages for the removal of a depot from one town to another in violation of article 6550, Vernon-Sayles’ Stats., and the court held that there was no canse of action.

If, as alleged by the petition, it was contemplated by the parlies to the deed of conveyance to the depot grounds that both passenger and freight depots should be maintained on the grounds, the maintenance of a freight depot thereon would not be a compliance with the terms of the contract. It is a well-known fact that in small towns the freight and passenger depots are located on the same grounds near each other, and that custom would be taken into consideration in arriving at a proper construction of the contract. The contract was so construed by appellee when it built freight and passenger depots on the grounds in question.

It may be, as contended by appellee, that the Itailroad Commission is the authority to enforce the law as to removal of depots, but it is not its duty to enforce the contracts of railroad companies with private parties. That is a right held by the party complaining of a breach of the contract through the courts. Appellant seeks to enforce a contract, and not a law. City of Tyler v. Railway, herein cited.

The Railroad Commission of Texas is authorized and empowered to see that all laws relating to railroads are enforced and obeyed and violations thereof promptly prosecuted (Vernon’s Say les’ Ann. Civ. St. art. 6675), but it has no authority over contracts in regard to the location of depots. The Commission would be empowered to enforce article 6550, which provides for the designation of depot grounds and prohibits a change in such grounds after the same have been designated, but that power would not militate against appellants’ right to enforce specific performance of the contract. If by the terms of that law it is meant that the route nor depots shall be changed after being actually surveyed and designated, the law could be used for removing any doubt, if there was one, of the specific performance of the contract being contrary to public policy, but we are of opinion that the law in question, while general in its terms, did not have in view the removal of a depot from one part of a town to another part of it, but was intended to prevent the practice of locating the route or depot at one point and after citizens had invested in lands adjacent or in proximity thereto to remove the line or depot to another point. The law prohibits the change of route after actual survey, but it could not, in reason, be held that if a better route could be obtained by changing the survey so as to locate the line in another place in the same locality, the law would be violated. Such a construction would prevent the shortening of a railroad by several miles by cutting through a hill instead of going around it. So in regard to a depot it might be greatly to the detriment of the people of a town to have the depot in the location first selected and greatly to their benefit to have it in another location, and we do not think the law in question should be so construed as to prevent the railroad company from moving to the more desirable location in the town.

The petition was not subject to general demurrer, but evidence should have been permitted to ascertain whether the preservation of the rights of appellants entitled them to a temporary writ of injunction until the case could be tried on its merits.

Appellants’ case should not have been determined on a hearing for a temporary injunction, but the court sitting in chambers should, after hearing the evidence, have granted or refused the writ. The judge should not have acted on exceptions while sitting in chambers. El Campo Light Co. v. Water Co., 132 S. W. 868; Lane v. Jones, 167 S. W. 177. As said by Joyce in his work on Injunctions, § 100:

“In granting or refusing temporary relief by preliminary injunction, courts of equity should in no manner anticipate the ultimate determination of the question of light involved.”

The effect of .the order on the application for temporary injunction was to put appellants out of court.

The judgment is reversed, and the cause remanded.
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author: HIGGINS, J.

text:
    ABBOTT v. BEAUMONT, S. L. & W. RY. CO.
    (No. 463.)
    (Court of Civil Appeals of Texas. El Paso.
    June 10, 1915.
    Rehearing Denied July 1, 1915.)
    1. Railroads <&wkey;4-ll — Killing on Animals —Depot Grounds.
    A railroad company maintained at a small sawmill town a station and a switch track and stand. The switch track led to and served the sawmill. About 100 yards from the switch stand was a cattle guard where the right of way fence began, ffeld, that the railroad company was not required to fence its right of way between the station and the cattle guard, though animals frequently grazed on the right of way, and it was not liable for killing an animal there unless occasioned by negligent operation of the train striking the animal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. <&wkey;411.]
    2. Railroads <&wkey;443 — Killing Animals— Negligence — Evidence.
    In an action for the killing of an animal by a train at a point at which the railroad company was not required to fence its track, evidence held not to show negligent operation of the train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. <i&wkey;443.]
    Appeal from Harris County Court, at Law; K. C. Barkley, Special Judge.
    Action by Lewis Abbott against the Beaumont, Sour Lake & Western Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Hutcheson & Hutcheson, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   Statement of Case.

HIGGINS, J.

Abbott brought this suit to recover the value of a mule run over and killed by one of appellee’s trains.

A peremptory instruction in defendant’s favor was given, in accordance wherewith verdict was returned and judgment in its favor rendered. The correctness of the court’s action in giving this instruction is the only question presented by this appeal.

The animal was killed during the night in the town of Dyersdale by a passing train. No one saw the animal struck, and it is not shown by what train it was killed. It was found on the right of way the next morning with its head severed from its body. There is no evidence whatever of the circumstances under which it was killed. Dyersdale is a small sawmill town. The animal was struck about 100 yards east of the station and about 40 feet east of the end of a switch track and switch' stand. At this point the right of way was unfenced. The right of way further eastward was fenced, it being about 100 yards from the switch stand to the cattle guard where the right of way fence began. The switch track led to and served the sawmill. There is evidence that animals frequently grazed upon the right of way at the point where the mule was killed. There is also testimony that through passenger trains passed through the town at night without stopping, which trains habitually ran at a rapid rate of speed.

Opinion.

The evidence is amply sufficient to warrant the court in its assumption that at the point where the mule was struck the defendant was not required to fence its right of* way. A due regard for the safety of its employés engaged in the switching of its trains imperatively demanded that at that point the track be clear of cattle guards, pitfalls, and fences. The evidence conclusively establishes this fact. This being true, the company was not liable for the death of the mule unless occasioned by the negligence of its employés operating the train which struck it. Railway Co. v. Blankenbeckler, 13 Tex. Civ. App. 253, 35 S. W. 331; Railway Co. v. Cocke, 64 Tex. 153; Railway Co. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484; Railway Co. v. Conley, 142 S. W. 36; Railway Co. v. Wallace, 2 Tex. Civ. App. 270, 21 S. W. 973; Railway Co. v. Ogg, 8 Tex. Civ. App. 285, 28 S. W. 347.

There is no fact or circumstance under the facts stated which would have warranted a finding that the animal’s death was due to such negligence. The fact that through passenger trains passed during the night at a rapid rate of speed and without stopping is manifestly insufficient. There were other trains passing as well, which might have killed it. There was a complete failure to show that the animal’s death was in any wise due to defendant’s negligence.

Affirmed.
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author: RAINEX, C. J.

text:
    McQUEEN et al. v. TENISON.
    (No. 7393.)
    (Court of Civil Appeals of Texas. Dallas.
    June 12, 1915.
    Rehearing Denied July 3, 1915.)
    Chattel Mortgages <&wkey;51 — Récord — Constructive Notice — Description.
    A recorded chattel mortgage of one ‘‘Maxwell 4-passenger automobile, factory No. 32466, was not such a description as to charge the purchaser of a “five-passenger Maxwell automobile, model 1-3 car, No. 2466,” with notice that the car purchased was the one covered by the mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 104; Dee. Dig. >&wkey;51.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by H. L. Tenison against W. L. McQueen and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment rendered for appellant McQueen.
    Chas. F. Clint, D. B. Eades, and Eric Eades, all of Dallas, for appellants. W. P. Donalson and W. T. Whitehurst, both of Dallas, for appellee.
   RAINEX, C. J.

The appellee Tenison took a mortgage on one “Maxwell” four-passenger automobile, factory No. 32466, to secure a promissory note for the sum of $586.60, executed by the Dallas Automobile Clearing House Association, a corporation. Default having been made in the payment of said note, Tenison sued the Dallas Automobile Clearing-House Association, H. W. Sanders, and W. L. McQueen, to recover on said note and to foreclose said mortgage, and sued out a writ of sequestration, which was levied on a machine described as “a five-passenger Maxwell automobile, model 1-3, car No. 2466,” which was purchased by McQueen from said Dallas Automobile Clearing House Association. McQueen pleaded, denying the right of foreclosure, that he bought the car levied on in good faith for value; that he had no knowledge, either actual or constructive, of said mortgage; that the description in the mortgage is different from the car levied on; that said mortgage was void as to him, in that said car was, at the time he purchased, being exposed for sale by said association, which was doing a retail business in secondhand cars by purchase and sale, and said car was in the salesroom of said association, among a great many other cars daily exposed for sale. McQueen reconvened for damages for the use of the car, etc. A trial by the court without a jury resulted in a verdict for Tenison for his debt and for a foreclosure on the machine as against McQueen, from which judgment this appeal is taken.

The pivotal question in this case is: Is the description in the mortgage executed by the association to Tenison, though recorded, such as to put third persons on inquiry that the car in question was the one intended to be covered by the mortgage? If the car in controversy was the one covered by the mortgage, as between Tenison and the association it could be so shown, and upon the making of such proof Tenison would have the right to recover as against the association and Sanders. But as to the rights of a third party, said third party having intervened, a different proposition arises. McQueen having purchased the car without actual knowledge of Tenison’s mortgage, was he charged with constructive knowledge by the record thereof? We think the evidence detailed by the record is insufficient to show that fact, even if the car in controversy is the one the parties intended to be covered by the mortgage. The car described in the mortgage is 1 “Maxwell 4-passenger automobile, factory No. 32466,” while the car in controversy is a “five-passenger Maxwell automobile, model 1-3 car, No. 2466.” The description of this ear is so dissimilar to the car described in the mortgage that one inspecting the record would never for a moment think that the car in controversy was the one covered by the mortgage. There is some evidence attempting to show that the car in controversy was No. 32466, but, according to our view, it was so slight in probative force as to be of no weight. The evidence as to the car being numbered 2466 and a five-passenger car was so direct and positive as to be convincing that the ear in controversy was not the one covered, or intended to be so covered, by the mortgage.

The judgment will be reversed, and judgment rendered for appellant McQueen.


author: RAINEY, C. J.

text:
    TERRELL SEWERAGE CO. v. STILES et ux.
    (No. 7360.)

    (Court of Civil Appeals of Texas. Dallas.
    May 22, 1915.
    Rehearing Denied June 26, 1915.)
    1. Pleading <&wkey;236 — Amendment at Trial-Discretion oe Court — Denting Contributory Negligence.
    In an action for personal injuries caused by defendant’s negligence, where the answer pleaded contributory negligence, it was within the discretion of the trial court to permit plaintiffs at the trial to amend their petition so as to deny contributory negligence.
    [Ed. Note. — Eor other cases, see Pleading, Gent. Dig. §§ 601, 605; Dec. Dig. &wkey;23GJ
    2. Continuance &wkey;>30— Subpeise — Amendment oe Pleadings.
    Where the petition was amended at the trial to deny contributory negligence which had been pleaded by defendant’s answer, defendant was not entitled to a continuance on the ground of surprise without a showing as to what witnesses it would call if given time or what facts it desired particularly to establish.
    [Ed. Note. — Eor other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. &wkey;30.]
    Appeal from District Court, Kaufman County; E. D. Hawkins, Judge.
    Action by B. E. Stiles and wife against the Terrell Sewerage Company. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    Robt. L. Warren and Bond & Bond, all of Terrell, for appellant. S. J. Osborne, of Kaufman, and Bumpass & Crumbaugh, of Terrell, for appellees.

       writ oí error pending in Supreme Court.

   RAINEY, C. J.

Appellees, Stiles and wife, sued the appellant to recover damages sustained by them. The petition alleges that on the 6th day of August, 1913, the Terrell Sewerage Company constructed a sewer ditch on the east side of Rockwall avenue, in the city of Terrell, which was about 400 feet in length, 18 inches wide, and about 4 feet deep; that appellant negligently and wrongfully excavated the said ditch on Rockwall avenue, and left the same uncovered, unprotected, and exposed, with no bars, barriers, lanterns, guard rails, or other similar appliances along said ditch or trench to prevent persons traveling said street from falling into said ditch, and carelessly and negligently failed to keep any light at the said ditch or to give any warning or notice of the location or extent of the ditch, except that one lantern was placed at the north end of said ditch, which is alleged to have been badly smoked, painted, stained, or obscured by dirt or some other opaque substance which left said lantern almost wholly obscured; that on the night of August 6, 1913, that about the hour of 10 or 11 o’clock at night, when they were going to their home about 3 miles north of Terrell, and while traveling on North Rockwall avenue, and while appel-lees were driving their team in a- careful and prudent manner, the animal on the east side and the wheels of their wagon on the east side suddenly and violently dropped into the open, uncovered south end of said ditch, and the sudden, violent jolt, jar, and fall caused by plaintiff’s wagon dropping into said ditch threw both of said plaintiffs out of their said wagon with great force, precipitating them to the ground. Appellee B. E. Stiles alleged that by reason of said fall he was greatly bruised and injured; that the muscles, tendons and ligaments of his back, arms, legs, and body were badly strained, wrenched, and impaired; that he was violently ill, suffered great pain and distress from the fall and from his wounds, bruises, and injuries; he vomited freely, and was made very sick; and that he was prevented by his said injuries for five or six months from attending to his usual and ordinary work and duties. Appellee Bertha Stiles alleged that by reason of said wagon dropping into said ditch she was thrown from the wagon and fell with her full weight on and across some tiling or cement pipes that the defendant had left negligently lying on the east side of said ditch or trench; that she fell across the pipes or tiling upon her back; that she was pregnant at the time, and that by reason of said violent fall she was greatly injured and permanently hurt, shocked, and injured; that her body, back, eyes, and sides were bruised, lacerated, and torn; that she was made violently sick, and was threatened with a miscarriage; that her womb was dislocated and misplaced; that her head, spinal column, neck, and nervous system were seriously damaged and injured; that prior to her said injuries she had been a stout, healthy, strong, and able-bodied, woman, free from disease, able to perform all of her household duties and assist her husband in his labors on the farm, but that since receiving her said injuries she has suffered great physical pain, mental anguish, and that she has continued to do so ever since, and will continue to do so for the balance of her life; that since said injuries, and now, she suffers from constant pains in her back, womb, and organs of generation, also from frequent and intense headache, and that her nervous system was badly shocked and deranged by her said injuries; that she is in continuous distress in pain, in both mind and body, which has made her unable to properly care for and look after her children.

Appellant by its amended original answer denied that the ditch was 400 feet in length, 18 inches wide, and 4 feet deep; denied that the ditch or trench was located 15 or 20 feet from the east line of Rockwall avenue, and denied that on August 6, 1913, wrongfully and recklessly or negligently left any ditch on Rockwall avenue in an uncovered, unprotected, and exposed con'dition during the nighttime; denied that there were no barriers, bars, guard rails or other similar appliances placed along said ditch; denied that there were no lights placed along the ditch or trench to give warning of the location of said ditch and denied that the lantern was wholly insufficient to warn any one of the ditch. Appellant answered, denying specifically the allegation of appellees’ petition and specially that appellees were guilty of contributory negligence.

The cause was submitted to the jury on special issues, and on return of their verdict judgment was entered for appellees for $1,-000, from which this appeal is prosecuted by the Sewerage Company.

The evidence establishes all the essential allegations of plaintiff’s petition.

The first and second assignments are grouped, and thereunder is submitted the following proposition:

“To recover for injuries received through contributory negligence of the injured parties it is necessary that the injured parties should allege or deny the plea of contributory negligence. Appellant having specially pleaded contributory negligence before appellee could recover, the special plea of contributory negligence must be denied, or else such plea shall be taken as confessed.”

The appellant presented exceptions to the petition on the ground that it did not allege that the appellees used ordinary care to prevent the injuries, nor did it allege the earning capacity of B. F. Stiles at the time the accident occurred, which exceptions were overruled by the court. The appellant then moved that its answer of contributory negligence, not having been denied by plaintiffs, be taken as confessed, and that the testimony of the witnesses adduced up to that time be stricken out, which motion was overruled, to which the appellant excepted. Then appellees were allowed to file a trial amendment, denying the answer alleging contributory negligence. Thereupon appellant moved a continuance on the ground of surprise, which was overruled.

The third and fourth assignments of error are based upon the foregoing proceedings. We cannot see that any harm resulted to appellant by the action of the court as stated. It was within the discretion of the court to allow an amendment of the petition after trial began, and there is no reason given why the continuance should have been granted after the amendment, even if we should hold that it was necessary for plaintiffs to deny the allegation of contributory negligence. We do not see how the appellant could have been surprised, for it had pleaded contributory negligence and it was expected that it would be prepared with such witnesses as it had to establish that defense. It stated the names of none of the witnesses whom they expected to have there if time was given, nor any fact it could prove if granted a continuance. The assignments are overruled.

Assignments 5, 6, 7, 9, and 20 relate to the admission of evidence of various witnesses. The evidence relates to the appearance and condition of Mrs. Stiles after the accident, to her ability to work, etc., and to her nervousness. These witnesses showed their knowledge of what they testified to, and if there was any error it was harmless.

The twelfth, assignment is answered in treating assignments 3 and 4.

The other assignments relate to the charge of the court and special charges refused. We believe that the charge of the court fully presented all material issues necessary for the protection of the rights of appellant, and that no harm resulted in not giving the charges requested and refused.

The judgment is affirmed.
      ©uujITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: CARL, J.

text:
    HOUSTON LIGHTING & POWER CO., 1905, v. WALSH et al.
    (No. 5460.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 21, 1915.
    Rehearing Denied June 28, 1915.)
    Electricity <s^j16 — Dangerous Premises— Liability.
    A light and power company erected a light post by cutting a girder along the outer edge of an awning sloping from a building to the outer edge of the sidewalk. A number of people went out on the awning, though not protected by a railing, to view a parade, and it fell, injuring plaintiff. Access was obtained by stepping out through windows. Crowds had been on the awning on former occasions, but there was nothing to show that the company knew that fact. Held, that the company was not liable, since the accident was not the natural result of its wrongful act of leaving the girder cut or since it could not anticipate that the accident would result therefrom, and the intervening act of the persons entering on the awning was negligence proximately causing the accident.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. @^16.]
    Appeal from District Court, Harris County; William Masterson, Judge.
    Action by G. P. Walsh against the Houston Lighting & Power Company, 1905, and others. From a judgment for plaintiff against defendant named, it appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, W. L. Cook, and Blake Dupree, all of Houston, for appellant. John Lovejoy, Presley K. Ewing, and L. E. Blankenbecker, all of Houston, for appellees.
   CARL, J.

G. P. Walsh sued Charles and Annexa Miller, owners of a building, the Houston Lighting & Power Company, 1905, and the Houston Electric Company, to recover damages for personal injuries caused by an awning to the building" giving way under a load of people who were viewing a circus parade; said awning having fallen on appellee and injured him. It is alleged that the Houston Lighting & Power Company, 1905, which we will refer to herein as the Power Company, and the Houston Electric Company had jointly erected a light post at the place of the accident, and in doing so had cut the girder running along the outer edge of the awning, and failed to repair it so as to make it as strong as it should have been made, which negligence was the proximate cause of the injury. This girder was cut, and the post set in the edge of the sidewalk, the post extending up through the outer edge of the awning.

On the day of the accident, there was a circus in Houston, and somewhere between 15 and 25 people went out on this awning to view the parade. It was reached by passing through a pool hall on the second floor oJE the building and up through windows. Witnesses differ as to how high these windows were, some saying they had to step up about a loot to a. foot and one-half, while others say that they were about two to two and one-half feet high, and they had to stoop in passing out to prevent striking their heads against the windows. The awning sloped from the building outwardly, and there was no railing or banister on the outer side. It was covered with a kind of tar paper.

The man who ran the pool hall and others swear that he notified the people not to go upon said awning, telling them it was unsafe, and some of them say they actually came back, in response to his warning, and sat in the windows. J. S. Taylor, who ran the pool hall, says he called for a policeman to try to keep the people back. Quite a number of people deny having heard any warning, and this is uniformly true of those who have suits pending for the same accident. Upon the trial, the suit was dismissed as to the Millers, the owners of the building, and the court instructed a verdict in favor of the Houston Electric Company. The case was tried on special issues, and judgment rendered against the Power Company for the sum of $0,000, and from that judgment this appeal is taken.

The first assignment of error complains of the action of the court in refusing a peremptory instruction in favor of appellant, “because the evidence wholly failed to raise the issue of any duty owing to the plaintiff from defendant, such as alleged in the petition. In this connection it may be stated that the petition alleged that the unsafe condition of the awning was known, or, by the exercise of ordinary care, would have been known, to the defendants and each of them, and that by exercising ordinary care they would have anticipated that the awning would be used by crowds of people on occasions like the one when the accident happened.

The evidence is sufficient to show that crowds had been on this awning on former festive occasions, but there is no evidence to show that the Power Company knew that the awning had been so used. The nature of the structure was such that it would indicate to any reasonable mind that it was not intended as a place for people to gather. It sloped from the building, of which it was a part, to the outer edge of the sidewalk, and it had no railing. The flooi* was made of tar paper or some similar material, and there were no doors leading onto it. Access was obtained by stepping up through windows. And there is no evidence, and we may add, no probability that it would have fallen but for the unusual occurrence of the crowd getting out on it, on the occasion when appellee was injured. So, if in the very nature of the awning and the surroundings it was unsuited to the congregation of people thereon, how could appellant have anticipated that a crowd would gather there, unless it had knowledge that they had been in the habit of so doing? To hold appellant liable, it must be shown that the accident was the natural and probable result of the wrongful act of leaving the girder cut and in a weakened condition, or appellant might have anticipated that such .would be the result. Supposing the appellant’s act originally to have been negligent:

“It is generally held, however, that if subsequent to the original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote.” Seale v. G., C. & S. F. Ry. Co., 65 Tex. 278, 57 Am. Rep. 602; Neely v. F. W. & R. G. Ry. Co., 96 Tex. 277, 72 S. W. 159; T. & P. Ry. Co. v. Bigham, 90 Tex. 224, 38 S. W. 162; Light & Power Company v. Lefevre, 93 Tex. 606, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; City of Greenville v. Pitts, 102 Tex. 3, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843.

Without the negligence of the crowd in going upon the awning, or the negligence of those having charge of the building in permitting them to do so, there would have been no injury. Therefore there were undoubtedly intervening acts of negligence. As said in T. & P. Ry. Go. v. Bigham, supra:

“Was there an unbroken connection between the wrongful act and the injury' — a continuous operation? We think not.”

The throng upon the street were not expected to go upon the roof, and would not have done so if the owners or occupants of the building had not permitted them to do so. In the first place, it was negligence for them to- be permitted to go upon a roof or awning which the occupant of the building knew to be unsafe, and the people who went thereon were negligent trespassers. But even if they were licensees, that would not relieve them from negligence. So there were intervening acts of negligence, the absence of either of which would have prevented the injury. We therefore sustain the first and second assignments of error, the last of which is predicated upon the failure of the court to grant a new trial upon the same ground as the first assignment.

We think the court further erred in refusing to submit to the jury the issue as to whether the Power Company, or its agents, actually knew that crowds were in the habit of standing upon this awning, and sustain the third and fourth assignments.

From what we have said, it follows that the judgment is contrary to the evidence and not supported thereby, and the fifth assignment is sustained.

The judgment is reversed, and the cause remanded.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    BROWN v. STATE.
    (No. 3627.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied June 25, 1915.)
    1. Witnesses <&wkey;277 — Criminal Prosecution-Privilege oe Accused — Waiver.
    In a prosecution for burglary, where the defendant pleaded guilty and filed a plea asking that sentence be suspended, taking the stand to testify that he had never been convicted of a felony, the action of the court in permitting the state to cross-examine defendant about the burglary was proper, since where a defendant in a criminal prosecution voluntarily takes the stand he may be questioned about any matter legitimately connected with that under inquiry, as well as about matters he testified to on direct examination.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. &wkey;277.]
    2. Witnesses &wkey;>277 — Plea oe Suspension oe Sentence — Examination oe Accused.
    Where one, who pleaded guilty of burglary, filed a plea asking that sentence be suspended, the state could cross-examine him, after his taking the stand to testify that he had never been convicted of a felony, as to the mode and manner of committing the offense, as an aid to the jury in determining whether they should suspend sentence.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. <&wkey;>277.)
    3. Burglary <&wkey;41 — Sufficiency oe Evidence.
    In a prosecution for burglary, evidence held sufficient to show that accused broke in, and did not find the.door open.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-108, 109; Dec. Dig. <&wkey;>41.]
    4. Criminal Law <&wkey;875 — Trial—Verdict.
    A verdict, in a prosecution for burglary, reading, “We, the jury, find the defendant guilty of burglary as charged, and assess his punishment at two years in the penitentiary,” was not insufficient as omitting the word “confinement.”
    [Ed. Note. — Por -other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. <&wkey; 875.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Ernest Brown was convicted of burglary, and he appeals.
    Affirmed.
    Will S. Payne, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Upon an indictment charging him with burglary, appellant entered a plea of guilty, filing a plea asking that the sentence be suspended. The record shows that the court admonished the defendant as to the consequences of his plea, etc., and he insisted on entering the plea. The state introduced evidence tending to show that the barn of J. H. Couch had been burglarized and some 30 bushels o.f wheat taken therefrom. At the conclusion of the evidence offered in behalf of the state, appellant took the stand and testified he had never before been convicted of a felony in this or any other state. No other questions were asked him by his counsel, but the state cross-examined Mm as to the mode, manner, etc., of committing this offense. The only bill of exceptions in the record complains that the court erred in permitting the state to cross-examine appellant and inquire about the burglary, for he says he took the stand only to testify that he had never theretofore been convicted of a felony. A defendant cannot be compelled to testify in any case; but, when he once voluntarily takes the stand, it is not only about matters he testified to on direct examination that he can be cross-examined, but he can be questioned about any matter legitimately connected with the matter under inquiry. I-Ie becomes as any other witness in the case; the cross-examination is not confined to matters elicited on his examination in chief. Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176, and eases cited in section 970 of White’s Ann. Proc. But, independent of this, this testimony would be admissible on Ms plea of suspension of the sentence. The state would have the right to inquire into the mode and manner of committing the offense as an aid to the jury in determining whether or not they would suspend the sentence. It might be the first offense, yet committed in such a way as to show Mm unworthy of the mercy shown in suspending the sentence for the first offense.

Appellant also contends that the evidence is insufficient to show burglary. It is true that appellant testified the door of the barn was ■ open, but Mr. Couch testified the door was always kept locked; the lock showed to have been broken, and appellant when, found was in possession of tools with which the lock could have been broken. The chain was clipped, and appellant was in possession of wire clippers. If that had been an issue in the case, the evidence would fully authorize a finding that he had broken the door open, although he testified that it was open. However, appellant entered a plea of guilty, and made no such contest on the triaL

The verdict reads:

“We, the jury, find the' defendant, Ernest Brown, guilty of burglary as charged in the indictment, and assess his punishment at two years in the penitentiary.”

The criticism that the verdict is insufficient in that the word “confinement” is omitted is without merit.

The judgment is affirmed.