author: RASBURY, J.

text:
    BOOTH et al. v. CITY OF DALLAS et al.
    (No. 7493.)
    (Court of Civil Appeals of Texas. Dallas.
    July 3, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Licenses c&wkey;5% — Poweb of City — Charter — Motor Bus.
    The city of Dallas, under its charter power to license and regulate enumerated occupations, and all other occupations which, in the opinion of the board of commissioners, should be the proper subject of police regulation, and to regulate the use of automobiles or any motor vehicles and the use of its streets, could fix an annual license tax of $75 for the privilege of operating a motor bus over its streets.
    (Ed. Note. — For other cases, see Licenses, Dec. Dig. <&wkey;5%.]
    2. Licenses <í&wkey;l — Motor Bus — Seasonable License or Tax.
    An annual license fee of $75, fixed by ordinance for the privilege of operating a motor bus in the streets of a city, where the cost of inspection and regulation would be in excess of the amount realized from the fees, was a reasonable fee based on the cost of regulation, and not objectionable as a tax.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 1; Dec. Dig. <&wkey;>l.]
    3. Constitutional Law <&wkey;208 — Equal Protection of Laws — Discrimination.
    Class legislation, affecting a p&rticular class, is not unenforceable for that reason alone, since the Legislature has the right to classify persons or subjects for taxation or regulation, which right includes the right to exempt. The test of the validity of laws directed against a class is that the same means and methods be applied impartially to all the members of the class, so that it shall operate equally and uniformly upon all.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. &wkey;> 208.]
    4. Licenses <&wkey;7 — Motor Bus — Discrimination.
    An ordinance imposing an annual fee of $75 for the privilege of operating each of about 500 motor busses over its streets, not sufficient to pay the expenses of inspection, regulation, etc., subjecting the drivers to a rigorous physical and mechanical examination, regulating the number of passengers, requiring them to select a fixed route and operate thereon at least six hours a day, was not discriminatory, in comparison with an ordinance imposing an annual license fee of $10 on each of about 100 motor vehicles, known as “rent cars,” allowed to stand upon the streets only at certain places and certain hours, not operated over fixed routes, and charging a greater fare, regulated by the city, since they were engaged in different classes of street traffic.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <3&wkey;7.]
    5. Constitutional Law &wkey;>88 — Personal Bights — Liberty—Business or Vocation.
    An ordinance for the regulation of motor busses, providing that a bus should be operated along the termini designated by the operator for at least six consecutive hours a day, such operation to be in accordance with the terms of the ordinance, and making it unlawful to operate any motor bus on any other street or route than that designated in its license certificate, was not in derogation of the citizen’s right to engage in any lawful pursuit of business.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 164, 165; Dec. Dig. <&wkey;> 88.]
    6. Municipal Corporations &wkey;>591 — Police Powers — Delegation — Ministerial Duties.
    A provision of an ordinance for licensing and regulating motor busses, that the operator of each bus should submit it to the city automobile inspector once every week, that if the inspector found it safe he should issue a certificate permitting its operation for one week, that if unsafe he should refuse such certificate, and making its operation without the inspector’s certificate displayed thereon a penal offense, was not objectionable as an attempt on the part of the city to delegate the police power intrusted to it by the state.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1310; Dec. Dig. >&wkey;> 591.]
    7. Licenses <&wkey;29 — Peculation of Motor Busses — Charge for License.
    A city, having the right to charge a license fee reasonably commensurate with the cost of regulating motor busses, had the further right to make a charge of $1 for any additional expenses resulting from the loss of the original certificate, or a change of route. or of seating capacity.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 63; Dec. Dig. <&wkey;>29.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action for injunction by O. C. Booth and others against the City of Dallas and others. From the dissolution of a temporary injunction, plaintiffs appeal.
    Affirmed.

      ' McCutcheon & Church and L. R Ckllaway, all of Dallas, for appellants. O. P. O'Donnell and G. C. Adams, both of Dallas, for ap-pellees.
   RASBURY, J.

. This is an appeal from the action of the judge of the Sixty-Eighth district court in dissolving a prior temporary injunction. The action of the court as disclosed by the record was based upon substantially the following matters:

Prior to the commencement of this suit appellee the city of Dallas in the manner provided by its charter enacted an ordinance defining a motor bus, imposing a license for the privilege of operating same, regulating its use, declaring the unrestricted use thereof a nuisance, penalizing sárne, and declaring an emergency. A motor bus by the ordinance is declared to be:

“Any automobile, automobile truck or trackless motor vehicle engaged in the business of carrying passengers for hire within the city limits, * * * held out or announced by sign, voice, writing, device or advertisement to operate or run, or which is intended to be operated or run, over any particular street or route or to any particular or designated point or between particular points or to or within any designated .territory, district or zone.”

The ordinance also contains many other provisions, but only those, together with relevant collateral provisions, deemed necessary to a discussion of the issues presented on appeal will be detailed, and those so necessary will be related while discussing the particular issue to which they relate. After the several successive steps necessary for the legal enactment of the ordinance had been observed, and after same had been published in the official organ of the appellee city one of the three required times, appellants, Booth, Cochran, Birthright, and Smith, for themselves and approximately 500 others similarly situated, filed this suit against ap-pellees, the city of Dallas and its commissioners, for the purpose of having said ordinance declared void and unenforceable, and sought pendente lite a temporary injunction restraining appellees from in any manner enforcing same. Upon ex parte hearing temporary injunction was, granted, and appellees cited to appear subsequently and show cause why the temporary injunction should not be continued in force pending trial. At the time set there was a hearing, and the temporary injunction was dissolved.

The evidence adduced by appellants on the hearing tended to show that there was at that time 400 or 500 vehicles as defined by the ordinance being operated upon the streets of the city of Dallas, either by the owners’ or those who rented same, engaged in transporting passéngers for hire from point to point in the city for a fare of 5 cents per passenger.- Those so engaged had a fixed route or termini, but would divert therefrom and make special journeys to any or all portions of the city upon terms agreed upon between the operator and those seeking such service. The operators of these vehicles averaged a gross income of $5.70 per day, with an average expense of $3 per day, leaving approximately a net income of $2.70 per day. Included in such earnings was whatever amount was secured from the special journeys above referred to, and for which special journeys the operators, as a rule, received greater compensation than they did for running over the fixed route. Those operators who testified at the trial gave it as their opinion, based upon their experience in the business, that a license fee of $10 was sufficient, and that the number of vehicles engaged in the business could not successfully operate without being permitted to divert from their fixed route and make special journeys here or there, as demanded by the public.

The evidence adduced by appellees tended to show that the operators of the vehicles defined by the ordinance have greatly congested the .city’s streets with traffic in the downtown sections. Since the operation of such vehicles there have been numerous accidents in which such vehicles were concerned, and as a consequence of which persons have been injured and property damaged and destroyed. Many of the vehicles are old and worn. The operators run irregularly over their selected routes, and do not go to the limit thereof, but return as soon as they secure enough passengers to fill the car, taking them on at any point. Many of the vehicles are operated at a rapid and dangerous speed. Many of them transport passengers in double the number, of their rated capacity, and after filling the body of the car they permit them to stand upon the running board. It tvas also shown that the cost of enforcing the regulatory provisions of the ordinance, including supervision, inspection, and police surveillance, would be in excess of the amount which could be realized from the license fee and other charges provided for in the ordinance.

It was further shown that there are in operation in the city of Dallas 75 or 100 motor vehicles designated by ordinance as “rent cars.” There are two ordinances that regulate the right to operate these rent cars. Such regulations, material to the issues presented on appeal, are that such cars are required to pay a license fee of $10 per annum and may stand upon the streets only at certain places at given hours. The evidence further shows that such cars do not operate over fixed routes, but stand at the places on the city streets fixed by ordinances or in garages from whence they are called by those desiring their services. These vehicles charge a much greater fare for their services than the motor bus, such charges being regulated by the city.

We will consider first the attack on section 6 of the ordinance. Said section fixes an annual license fee of $75 for tlie | privilege of operating a motor bus over tbe | streets of tbe city. This charge is declared j to be void for many reasons; tbe first in' natural order being tbe claim that tbe mcy’s charter did not authorize same. By article 2, section 3, subdivision 24, of its charter, the city has authority, among other things, to license and regulate, in addition to the' businesses and occupations therein enumerated, “all other business or occupations whatever, which in the opinion of the board of commissioners shall be the proper subject of police regulation.” By subdivision 33 of the same article and section authority is conferred upon the city “to regulate the use of automobiles, motor cars, motorcycles, or any motor vehicles. * * * ” By subdivision 4 of section 7 of the same article there is conferred upon the city, in addition to certain enumerated things, the further right “to regulate the use” of its streets. These provisions are specific grants by the state of its police power, intrusted to the city for its exercise and enforcement. From these grants it is clear that the city has complete dominion over the entire subject in controversy in this suit, since it has the right to regulate every conceivable kind of motor vehicle, the right to control and regulate the use of its streets by such vehicles, and the right to license and regulate all occupations. So broad and comprehensive are the specific grants that the right of the city to fix a license fee against those operating the motor bus is not dependent upon the quoted grants as a whole, but, in our opinion, can be sustained by authority of any one thereof. The right to regulate the use of the city’s streets, or the right to regulate the use of all vehicles upon the city’s streets, is broad enough to authorize both the regulation of the motor bus and the imposition of a fee for the privilege of such use. We said as much in Southwestern Tel. & Tel. Co. v. City of Dallas, 174 S. W. 636. That the city would have the right to fix the license fee under the express provision permitting it to license and regulate every conceivable business or occupation seems too olear for discussion. The charter grants that much authority, the Constitution does not forbid it, and the operating of a motor bus is an occupation or business. Further, the right to prescribe a license in such cases is not an open question in this jurisdiction, but has been repeatedly sustained in cases enacted under charter provisions no broader than those contained in the grant to the city of Dallas. We therefore feel that a discussion of the reasons for the rule, and its applicability in the instant case is unnecessary, since in the cases presently cited those matters are fully discussed and many other authorities cited. Ex parte Gregory, 20 Tex. App. 210, 54 Am. Hep. 516; Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; Ex parte Denney, 59 Tex. Cr. R. 579, 129 S. W. 1115. I ■ t

It is next urged that the license fee is unreasonable and arbitrary, because in fact a tax, though denominated a license fee, in order to cloak and conceal its real purpose. If the conclusions stated in the proposition were supported by or fairly deducible from the evidence, it would present a serious issue. There is, however, in the record no evidence that tends to support the contention. We have said at another place that appellant’s testimony tended to show that they could not pay the tax and profitably operate the motor bus. Incidentally such fact might result from many causes, conceivably competition or a fare out of proportion to the cost of operation, but which would in no respect lessen the expense of regulation, or make regulation any the less necessary. We have also said- at another place that the evidence of appellees tends to show that the cost of supervision, inspection, and police surveillance wouid be in excess of the amount realized from the fee prescribed. No one seems to challenge the necessity of regulation on any of the many authorized grounds. The details of the evidence from which such conclusion is deduced, and the troth of which is not challenged, reveals that it is based upon the increased number of officers necessary to be employed as a result of so large an additional number of public vehicles upon the streets and the purchase of additional motorcycles to be used in that connection. This evidence shows that the sum charged is reasonable, in view of the added expense, and no testimony challenging same was offered by appellees. The unchallenged testimony being as stated, it results that the license fee is not in truth a tax, but purely a charge based upon the cost of regulation. Ex parte Gregory, supra; Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488.

The next issue presented is the familiar and necessarily oft-recurring claim that the ordinance is discriminatory, in that all persons subject to its provisions are not treated alike under like circumstances, and hence denies to appellant that equal protection of the law guaranteed alike by our state and national Constitutions. In the recent case of Southwestern Tel. & Tel. Co. v. City of Dallas, supra, we stated that the general rule, gathered from the decisions of the appellate courts of this state, those of the Supreme Court of the United States, the courts of the other states of the Union, and the text-writers, which were cited, is that “class legislation or laws that affect a particular class are not unenforceable for that reason alone,” since “the right of the Legislature to classify persons, corporations, or subjects for taxation, regulation, or restriction in the broadest sense is not an open question under either our state or national Constitution, and the right to classify includes the right to exempt, as does the right to exempt include ,the- concurrent right to discriminate.” The ■controlling test of tile validity of all laws directed against a particular class may be said to be that the same means and methods shall be impartially applied to all the constituents of the particular class, so that the law shall operate equally and uniformly upon all persons in the class sought to be regulated. If appellants are constituents of the class defined by the ordinance attacked, and others in the same class are exempt from its provisions, they have just cause for complaint.

Appellants maintain that such condition is shown in the treatment accorded them and that accorded those engaged in the refit car business, since there is a difference in the regulatory measures as applied to rent ears and those applied to the motor bus. The facts do disclose that the regulations applicable to rent cars, which are covered by another and prior ordinance, the essential provisions of which have been herein noted, and those applicable to the motor bus, are dissimilar in many and important respects. Some of the salient differences are that the rent car is required to pay a license fee of $10,: while the motor bus pays $75. The rent car operator is not subjected to the same rigorous physical and mechanical examination touching his qualifications to operate his vehicle that the motor bus operator is. The number of passengers that may be carried by the motor bus is regulated, but not so with the rent car. The motor bus is required to select a fixed route or termini and traverse the same for not less than six hours per day, .while the rent car is permitted to go from its .garage or stand to any point in the city over any route chosen. These radical and important differences in the regulatory provisions between the motor bus and the rent car are noted, not because in our opinion they establish discrimination, but for the purpose of emphasizing the fact that the regulator}' provisions of any ordinance are without significance whatever in determining whether all' the constituents of the defined class are legislated against equally and uniformly; for if rent cars and the motor bus do not engage in like street traffic they are not as matter of fact in the same class, and if not in the same class a difference in regulations as appliéd to distinct classes is immaterial. Thus the true inquiry is not, is there a difference in the manner of regulating rent cars, and the motor bus, but is the rent car and the motor bus, as defined by the respective ordinances, engaged in similar or. dissimilar street traffic? This is, of course, a question of fact to be determined from the evidence contained in the record.

The record of the evidence beyond controversy discloses great dissimilarity in the business pursued by the two, classes of vehicles.. As affecting street traffic and congestion thereof there are in operation 500 motor busses as against 100 rent cars. The motor bus has no fixed stand, but is continually in motion upon a fixed route upon the streets of the city, soliciting and halting to accept business at any place where the passenger is found, and upon some of the fixed routes there are as many as 100 buses. As related to the same question, rent cars do not transact their traffic in such manner, but are located either at garages or stands upon certain streets between hours fixed by ordinance, whence they are called by the public when their services are needed. Thus the mere statement of the manner and method of the traffic in which the respective vehicles are engaged demonstrates that each is pursuing a different class of business, so radically dissimilar in fact as to leave no room for fair dispute or disagreement. Appellants being then in a class entirely dissimilar from that of those who operate rent cars, it is immaterial that the regulations are dissimilar. Dissimilar regulations of dissimilar occupations cannot, of course, serve as a basis or support in law for holding the one or the other discriminatory, since dissimilar methods of regulating similar classes are, under the rule cited, the test of discrimination.

The constitutionality of section 9 is also attacked. This section provides that the motor bus shall be operated along the termini designated by the operator, save in certain excepted cases not material here, and for any portion or all of the day, at option of operator (but must by section 2 be operated for at least six consecutive hours), and concludes with the provision:

“But such operation shall be at all times in accordance with the terms of this ordinance, and it shall be unlawful to operate such motor bus as a public conveyance at any place or on any street other than along the route designated in the license certificate.”

The concluding provision just quoted is vigorously attacked as being in derogation of appellant’s common right to pursue any other lawful occupation than that of operating a motor bus. We do not construe the quoted portion of section 9 as does able counsel for appellants. The ordinance of which section 9 is a part does not, in our opinion, expressly or impliedly undertake to interfere with the free and undeniable right of the citizen to engage in any other lawful pursuit or business for which he may qualify, but undertakes to regulate solely those who may wish to engage in the operation of a motor bus as therein defined. The language contained in section 9 should and will be construed in the light of the purpose sought by the ordinance. So regarded, it is clear to us that the provision that it “shall be unlawful to operate such motor bus as a public conveyance at any place or on any street other than along the route designated,” means necessarily no more than that the citizen who desires to engage in the business defined by the ordinance shall, while engaged in that business, be confined to the particular fixed route or termini selected by bim at tbe time be applies for bis license. Any other construction is not warranted by tbe general purpose of tbe ordinance as reflected by its various special provisions. We do not agree with counsel that tbe effect of tbe quoted provision is to deny any appellant tbe right to engage in another business when be has complied with tbe provisions of the one in controversy. It does enact, of course, that certain regulations must be observed in order to legally engage in the business regulated by tbe ordinance. From that circumstance, however, it surely cannot be said that any one is prohibited from engaging in any other lawful pursuit. If any appellant desires to engage in any other lawful occupation, bis right to do so may not be denied, whenever be has complied with any regulations that may be imposed upon such other business or occupation.

It is also urged that section 15 of the ordinance is void. This section requires the operator of each motor bus to submit his vehicle to the city automobile inspector once every week for inspection. If upon examination the inspector finds the vehicle safe for use as a motor bus, he shall issue the operator a certificate permitting its operation for one week. If the inspector finds the vehicle unsafe for use as a motor bus, he shall refuse to issue certificate. Operation of the motor bus without the inspector’s certificate displayed conspicuously thereon is made a penal offense. This section is attacked in effect on the ground that it is an attempt upon the part of the municipality to delegate to another the police power intrusted to it by the state, which it is argued it may not do, since the trust is official and personal, and may be exercised only by those to whom it is committed by the state.

In connection with section 15, just referred to, and as a matter to be considered in connection therewith, the city of Dallas, simultaneously with the passage of the ordinance regulating the motor bus, enacted another ordinance creating the office of city automobile inspector. Omitting formal and nonessential portions, the last-mentioned ordinance makes it the duty of and confers upon the inspector the- authority to inspect and examine every character of motor vehicle operated for hire in the city of Dallas and keep a record thereof, to require them to secure license or inspection certificates required by other ordinances, to examine all applicants for license and enforce ordinances regulating the number of passengers to be carried, etc.

Ilecurring, then, to the proposition asserted by appellants, it is readily conceded that it states a correct and long-settled principle of law which it is unnecessary to sustain by the citation of authority. Accompanying the rule stated, however, at all times, is the further rule, equally well defined and established, that the former will not be construed and applied so as to require the city commissioners, in the exercise of the city’s police powers, to personally engage “in every step necessary for the exercise of the function”; but they may “fully discharge their official duty and exhaust the municipal discretion by enacting by-laws or ordinances to be executed by the proper board or officer.” 28 Cyc. 691. Another concomitant of the rule invoked by appellants is that the municipality, after exercising its discretion as to the enactment of laws, is not forbidden from delegating its “ministerial or administrative functions to subordinate officials.” 28 Oyc. 276. Thus it appears that on either limitation of the general rule section 15 may be sustained. Having the charter authority, as we have determined at another place in this opinion, to regulate every character of motor vehicle engaging in street traffic upon its streets, the city had the right, under the first limitation of the rule noted, to enact an ordinance voicing or exercising its authority on the particular and precise subject, and to confer upon the inspector the authority to enforce the provisions thereof. This was done, and nothing left to the discretion of the inspector, since he is required to inspect every motor vehicle and its mechanism, and determine if it is one that can be safely operated upon the city’s streets.

We may, however, discard the broad rule, which holds that the municipality may by exact and precise ordinance confer on another the enforcement of its discretion as declared by duly enacted ordinance, and yet find ample authority for the act complained of in the second limitation of the general rule noted. That is that section 15, taken in connection with the ordinance creating the office of city automobile inspector and defining his duties and authority, evidences nothing more nor less than a transfer by the city to said officer of its ministerial and administrative functions. The discretion of the city in reference to the matters covered by either ordinance is in the last analysis whether it will require the operators of the motor bus to submit it to inspection, a requirement obviously intended for the protection of the life and property of the citizen. By the enactment of section 15 and the ordinance creating the office of inspector, it clearly and fully exercised that discretion, and directed; that thereafter each motor bus should be examined and inspected in all of its mechanism and parts, in order to determine whether it could be safely operated upon the city’s streets. The further provision that such examination shall be made by the inspector confers upon him none of the discretion conferred on the city, since the acts of examining the car and the issuance of the certificate are but ministerial or administrative, as distinguished from legislative and discretionary, authority. Bouvier defines a ministerial act “to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the acts being so done,” and cites in support of the defined meaning Rains v. Simpson, 50 Tex. 501, 32 Am. Rep. 609, and which case in turn cites Commissioner y. Smith, 5 Tex. 471, and Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791. See, also, Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659.

Every element of the ministerial act is found in section 15 and the other ordinance, unless it can be said that the method of examining the motor vehicles is not precisely prescribed. The city automobile inspector is required to be one skilled in the mechanism of automobiles, and it is the nearly unanimous rule that in ministerial matters much may be left to the judgment and discretion of public officials in reference to matters resting peculiarly upon professional or expert knowledge or skill. Further, it is, common knowledge of all that the mech-< anism of automobiles, while not exceedingly intricate, is nevertheless of that character that requires the judgment at least of a skilled mechanic, and for whose guidance a set or fixed rule would be out of the question. Should the inspector, as appellants argue might be the case, refuse arbitrarily in the exercise of his authority to issue the certificate, notwithstanding the applicant was entitled thereto, this will not affect the validity of the regulation, since the presumption is that the officer will proceed impartially in the exercise of the discretion conferred, and until it is shown to the contrary no cause of action exists. Kissinger v. Hay, 52. Tex. Civ. App. 295, 113 S. W. 1005.

It is next urged that sections 5, 12, and 14 are ultra vires. These sections, in the order in which they are enumerated, provide that, in the event an operator desires to change his route after it has been selected, he will be required to pay $1 for the new certificate made necessary by the change, or, if he loses his original certificate, he is required to pay $1 for a new certificate, or, if he desires to operate a car of greater seating capacity than he is licensed to operate, he is required to pay ?1 for a new certificate to that effect. The "evidence of appellees tends to show that the cost of securing and issuing the license certificates and number plates enumerated will reasonably be the charges fixed. On that issue appellants made no proof. The city having the right to charge a license fee reasonably commensurate with the cost of regulation, it would have the further right to make a charge for any additional expense resulting from loss of original certificate, etc., or change of route when sustained by the evidence, as it is on the issue under ■discussion.

Finding no reversible error in the record, the judgment of the court below is affirmed.
      <g^»For other cases see same topic and KEY-NUMBER, in all Key-Numberéd Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    CONSUMERS’ LIGNITE CO. v. HOUSTON & T. C. R. CO.
    (No. 7339.)
    (Court of Civil Appeals of Texas. Dallas.
    July 3, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Carriers &wkey;>20 — Carriage op Goods — De-pay in Shipment — Statutes.
    Rev. St. 1911, art. 6670, subd. 1, declares that it shall be an unjust discrimination to subject any traffic to unreasonable delay, while subdivision 2 declares that every railroad which shall fail or refuse to receive and transport without delay cars of any connecting line, or destined to a point over a connecting line, shall be guilty of unjust discrimination. IIeld, that subdivision 2 and not subdivision 1, governs an action for unjust discrimination for delay in the transportation of a car destined to a connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. <&wkey;> 20.]
    2. Carriers <&wkey;13 — Unjust Discrimination —Rules of Railroad Commission.
    Under Rev. St. 1911, art. 6670, subd. 2, declaring that every railroad company which shall fail or refuse, under such regulations as may be prescribed by the Railroad Commission, to transport freight destined for a connecting carrier, shall' be guilty of unjust discrimination, it is contemplated that the Commission shall establish rules; hence, in an action for unjust discrimination, such rules are admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 21-24; Dec. Dig. &wkey;13.]
    3. Carriers <&wkey;13 — Carriage of Goods — Delay — Rules.
    Rule 2 of the Railroad Commission declares that railroad companies shall promptly receive and issue bills of lading for car load freight and transport it at a rate of not less than an average of 30 miles per day of 24 hours, inclusive of Sundays and legal holidays. The 2d day of March, Texas Independence Day, is declared a legal holiday by statute (Rev. St. 1911, art. 4606). It fell on Sunday. Held that, as a custom or usage repugnant to the express provisions of a statutory regulation is unavailing, the fact that it was customary to observe the following Monday, when Sunday was a legal holiday, will not, under the rules of the Railroad Commission, excuse the carrier for delay in transporting goods on the Monday following Sunday, March 2d.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 21-24; Dec. Dig. c&wkey;>13.]
    4. Carriers <&wkey;13 — Carriage of Goods — Railroad Commission — Rulinos of.
    Where Sunday, March 2d, was a legal holiday, a reply by the chairman of the Railroad Commission, to an inquiry by a railroad company as to whether the succeeding Monday would be recognized as free time, stating that the tariff merely said Sundays and legal holidays, but that as, when holidays fell on Sunday, it was generally the custom to consider Monday as a holiday, the Commission would recognize Monday as free time, fails to show that the Railroad Commission as such had promulgated a rule recognizing Monday as free time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 21-24; Dec. Dig. &wkey;?13J
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the Consumers’ Lignite Company against the Houston & Texas Central Railroad Company. There was a judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    Etheridge, McCormick & Bromberg and Chas. T. McCormick, all of Dallas, for plaintiff in error. Baker, Botts, Parker & Gar-wood, of Houston, and Smith, Rol ertson & Robertson, of Dallas, for defendant in error.
   TALBOT, J.

The plaintiff in error, hereinafter referred to as plaintiff, sued the defendant in error, hereinafter referred to as defendant, to recover damages and a penalty for delay in the transportation of a shipment of freight over the defendant’s line of railroad. The petition alleges, in substance, that the defendant, on the 26th day of February, 1013, accepted at Ferris, Tex., for shipment, a car load of bricks, consigned to the plaintiff at Hoyt, Tex., and that under the contract of shipment the bricks were to be delivered by the defendant to its connecting carrier at Dallas, Tex., a distance of 10.4 miles, from which latter point the car load was to be carried by defendant’s connecting carrier to Hoyt; that defendant delayed delivery to its connecting carrier until March 4, 1013, and this delay caused damage to plaintiff, and constituted an unjust discrimination, as defined by article 6670 of the Revised Statutes of 1911, and entitled the plaintiff to the recovery of the penalty provided for in article 6671 of said statutes. The petition further alleged:

“That there existed in full effect rules and regulations of the Railroad Commission of Texas, regulating, covering, governing, and requiring the interchange of freight from one connecting carrier to another connecting carrier at all points of junction in the state of Texas of all lines of railway being operated therein.”

The defendant answered, admitting that the ear was received and delivered by it on the dates set forth in plaintiff’s petition, but set up by w-ay of avoidance: (1) A certain rule of the Railroad Commission of Texas, known as rule 2, entitled “Reception and Transportation of Car Load Freight,” and alleged that it had carried the car with the expedition required by that rule; and (2) that, if any delay had occurred in the delivery of the car, it was due to the fact that the transfer track at Dallas, used in the interchange of freight between it and its connecting carrier, was unduly congested, such congestion being due to the insufficient capacity of the freight yards at Dallas of its connecting carrier, and the delay of its connecting carrier in the interchange of such freight. The defendant further pleaded that March 2, 1913, was a Sunday, and that March 2, 1913, was also a legal holiday, being Texas Independence Day; that there was a general custom that in such a case as this, when a legal holiday fell on a Sunday, the next day, Monday, would be and was regarded as a holiday. A jury trial, February 14, 1914, resulted in a verdict and judgment for the defendant, and the plaintiff in due time -sued out a writ of error to this court.

There is evidence to the effect that the plaintiff, which was the consignee, in addition to its rights as such consignee, had by assignment all the rights of the consignor, and that the shipment in question was delivered and received as alleged in plaintiff’s petition; that the distance from Ferris to Dallas is 19.4 miles; that the shipment was not delivered by the defendant to its connecting carrier at Dallas until about 4 o’clock in the afternoon of March 4, 1913; that March 2, 1913, was Sunday, and was also a legal holiday, being Texas Independence Day; that the banks and post office in Dallas observed March 3, 1913, as a holiday; that the defendant, in the matter of demur-rage, has a custom, rule, or order with reference to holidays; that this custom or rule, for which free time can be allowed in demur-rage record, is that,' with the exception of Decoration Day, all holidays falling on Sunday are observed on Monday. When Decoration Day falls on Sunday, the preceding Saturday is observed. The Railroad Commission rule pleaded by the defendant was introduced in evidence, and so much of it as is material here is as follows:

“When car load freight of any character proper for transportation is legally tendered to a railroad company at its customary place of receiving shipments, and correct shipping instructions given, such railroad company shall promptly receive the same and issue bills of lading therefor; the same must be carried forward at a rate of not less than an average of thirty (30) miles per day of twenty-four hours, exclusive of Sundays and legal holidays, computed from 7 o’clock a. m. of the second day following the receipt of shipment. For failure to so receive and transport such shipments the railroad company at fault shall forfeit and pay to the owner or party injured the sum of fifty i50) cents per car for each day or fraction thereof during which the terms of this rule are not complied with: Provided, however, that twenty-four hours additional time shall be allowed at each junction or division terminal where it is necessary to rehandle or transfer the car or oars; also, forty-eight (48) hours additional when it is necessary to transfer contents from one car to another.”

The court’s action in admitting in evidence the foregoing rule of the Railroad Commission is the basis of the plaintiff’s first assignment of error. The proposition advanced is that this rule had' no application to the issue of whether or not the delay pleaded and proved constituted unjust discrimination as defined by the statute.

Article 6670 of the statute provides that if any railroad, directly or indirectly, or by any special rate, rebate, etc., shall charge or receive from any person or corporation a greater or less compensation for any service rendered by it than it charges or receives from any other person or corporation for doing like and contemporaneous service, such railroad shall be deemed guilty of unjust discrimination; and subdivisions 1 and 2 of said article read:

(1) “It shall also be an unjust discrimination for any such railroad to make or give any undue or.unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or to subject any particular description of traffic to any undue or unreasonable prejudice, delay or disadvantage in any respect whatsoever.”
(2) “Every railroad company which shall fail or refuse, under such regulations as may be prescribed by the Commission, to receive and transport without delay or discrimination the passengers, tonnage and cars, loaded or empty, of any connecting line of railroad, and every railroad which shall, under such regulations as may be prescribed by the Commission, fail or refuse to transport and deliver without delay or discrimination any passengers, tonnage or cars, loaded or empty, destined to any point on or over the line of any connecting line of railroad, shall be deemed guilty of unjust discrimination.”

We agree with the view, expressed by counsel for the defendant, to the effect that, if any penalty can be recovered under the petition of plaintiff on account of the alleged delay in the transportation of the shipment in question, it is recoverable under subdivision 2 of article 6670 of the statute. As argued, it seems clear that subdivision 1 of said statute is not applicable, because it is dealing with the general subject of preference or advantage in the ordinary handling by railroads of shipments, while subdivision 2 specifically covers the cause of action set out and relied on herein, namely, the case of a railroad company’s duty to transport and deliver shipments destined on the line of a connecting carrier, The case at bar, as shown by our statement of its nature, in the former part of this opinion, is one in which it devolved upon the defendant to transport and deliver the shipment of bricks without delay or discrimination to its connecting carrier at Dallas, and, if it has failed to do so, then a recovery for the penalty sought may be had; but the same must be had under subdivision 2 of the statute, to which we have referred. Subdivision 2 of article 6670 provides, as has been seen, that every railroad which shall, under such regulations as may be prescribed, by the Railroad Commission, fail or refuse to transport and deliver without delay tonnage or cars destined to any point on or over the line of any connecting line of railroad, shall be deemed guilty of unjust discrimination. This provision of the statute clearly contemplated, if it did not require, that the Railroad Commission of the state should prescribe rules and regulations upon the subject to which it relates, and evidently the Commission, to meet this purpose and intent of the statute, promulgated the rule admitted in evidence over the objections of the plaintiff, and of the admission of which it complains in the assignment of error under consideration. We think, therefore, the rule was properly admitted, and the assignment will be overruled.

The second assignment of error is to the effect that the court erred in admitting the testimony of the witness W. Bruce Luna that it was the custom of the Post Office Department at Dallas, Tex., to observe the following Monday as a holiday when a legal holiday falls on the Sunday preceding. The propositions under this assignment are, first, that a statute cannot be varied by pfoof of local custom or usage; and, second, that the custom of the post office as to the observance of the day in question as a holiday has no tendency to show a custom upon the part of railways in the city of Dallas as to the observance of such day as a holiday. The 2d day of March, among a number of others, is declared by statute of this state to be a holiday—

“on which all the-public offices of the state may be closed and shall be treated and considered as Sunday or the Christian Sabbath for all purposes regarding the presenting for payment or acceptance and of protesting for and giving notice of the dishonor of bills of exchange, bank checks and promissory notes placed by the law upon the footing of bills of exchange.” Rev. St.'1911, art 4606.

Rule 2 of the Railroad Commission, referred to in discussing the defendant’s first assignment of error, prescribes that railroad companies—

“shall promptly receive and issue bills of lading for car load freight and transpoi't the same at a rate of not less than an average of thirty (30) miles per day of twenty-four hours, exclusive of Sundays and legal holidays.”

Neither the statute nor the rule makes any provision for the observance of the following Monday when the holiday falls on Sunday, and the question is: Can the defendant excuse itself for not moving the plaintiff’s shipment orn Monday, March 3, 1913, and avoid the penalty provided by law for unjust discrimination or delay, by showing a custom in such case not to do so? It is well established that a custom or usage repugnant to the express provisions. of a statute is void, and that, whenever there is a conflict between a custom or usage and a statutory regulation, the statutory regulation must control. 12 Cyc. 1054. So, too, if a statute has given a definite meaning to any particular word, no evidence of custom will be admitted to attach any other meaning. 12 Cyc. 1055.

Railway Co. v. McCown, 25 S. W. 435, was a suit to recover damages under our statute for failure of the railway company to deliver a car load of corn upon tender by the owner of the amount of freight charges, as shown by the bill of lading. Among the defenses set up by the company was a custom of railroads in the United States to require the surrender of the bill of lading before the delivery of freight, and that the plaintiff had refused to do this or give an indemnity bond demanded in lieu of such surrender. The court held that the failure of the defendant to comply with article 4258a, Rev. Civ. St., requiring railway companies to deliver freight on tender by the owner of the freight charges, as shown by the bill of lading was not excused by the refusal of the owner to surrender the bill of lading, or to give an indemnity bond in lieu thereof, and upon the question of custom said:

“It [the custom] cannot deprive one of a legal right without his consent and without compensation; it cannot make contracts for parties ; it can in some cases construe the terms used in a contract; hut it is not a good custom if it is unreasonable, or contrary to law. The custom contended for cannot be enforced.”

Likewise we think it must be held that the custom set up by the defendant in the case at bar to excuse itself from transporting or delivering the shipment in question to its connecting carrier at Dallas on Monday, March 3, 1913, cannot be enforced under the statute and regulations of the Railroad Commission as they existed on that day. The observance of that day as a legal holiday was not authorized, as heretofore indicated, by either the statute or a rule or regulation prescribed by the Railroad Commission. In the absence of some provision of the statute or rule of the Commission authorizing the observance of Monday as a legal holiday when the holiday falls on the preceding Sunday, a carrier in this state cannot justify and excuse its failure to transport or deliver a shipment received by it on that day, on the ground that a custom prevailed to recognize and observe that day as a legal holiday. The specific day named by the statute as a holiday cannot be varied by evidence of a custom that some other day was observed as such.

But the defendant contends that the evidence introduced in this case, and of which the plaintiff complains, does not have the effect to vary a statute, or the definition thereof, by proof of a local custom or usage; that it is nothing blit the application of the rule or regulation of the Railroad Commission in force with respect to the subject. The contention is based upon a telegram received by the attorneys for the defendant, which was introduced in evidence, from the chairman of the Railroad Commission, in reply to one sent by them, stating that March 2, 1913, fell on Sunday, that the post office and banks in Dallas observed March 3d as holiday, and asking if there was “any ruling of Railroad Commission that in such a case March 3d should be excluded in movement of ear load freight under rule 2 as to transportation of car load shipments?” The telegram in question reads as follows:

“Yours 9th. Commission’s tariff simply says Sundays and legal holidays, when holidays fall on Sunday the custom being generally to consider Monday as holiday, Commission would recognize Monday as free time.
“[Signed] Allison Mayfield, Chairman.”

This telegram fails to show that the Railroad Commission had promulgated a rule or regulation to the effect that, when a holiday falls on Sunday, railway companies were authorized to observe the following Monday as such. It is but the statement of the chairman of the Commission to the effect that if a holiday should fall on Sunday, and there was a custom generally to consider Monday as a holiday, the Commission would recognize Monday as such. ■ The telegram does not, therefore, in our opinion, sustain the contention of the defendant, and we think the admission of the evidence of the custom sought to be established by the defendant, over the objection of the plaintiff, was error which requires a reversal of the ease. Clearly, rule 2, which was introduced in evidence, does not, expressly or by implication, authorize the observance of Monday as a holiday when a holiday falls on the Sunday preceding, and the mere statement, made by the chairman of the Commission in the telegram referred to, would not warrant this court in holding that such was the effect of the rule. Furthermore, we think it may be gravely doubted that under the custom shown by the evidence in this case the Railroad Commission would “recognize as free time” Monday, March 3, 1913. The custom was not shown to be general. The extent of the evidence is that the post office and the banks in Dallas and the defendant observed Monday as a legal holiday when a holiday fell on Sunday. There is absolutely no evidence, so far as we have been able to discover, showing that such was the custom of any other railroad in or out of Texas, and it may be doubted, from the character of the evidence introduced on the subject, that it was the custom of the defendant to observe Monday as a holiday when a holiday fell on the preceding Sunday, in so far as the movement and delivery of car load shipments were concerned. To prove that such was the custom of defendant, H. J. Fitzgerald was introduced, and he testified that the defendant in the matter of demurrage has a custom, rule or order with reference to holidays. He further said:

“The rule in effect in March, 1913, as to free time that the Houston & Texas Central Railroad Company would allow its patrons, is as follows:
“ ‘Houston & Texas Central Railroad Company. “ ‘Circular No. 913. All Agents:
“ ‘For your information and guidance I quote you below legal holidays in Texas for which free time can be allowed in demurrage record:
“ ‘March Second. Texas Independence Day.
“ ‘May Thirtieth. Decoration Day.’
“With the exception of Decoration Day, all holidays falling on Sunday are observed on Monday. When Decoration Day falls on Sunday, the preceding Saturday is observed. Those are the rules we have been following since 1909.”

All the evidence admitted on the question of custom should have been excluded, and because of its improper admission, and hurtful effect upon the rights of the plaintiff, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      «Su^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HUGHES et al. v. BUTLER et ux.
    (No. 468.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.)
    Appeal and Error &wkey;>1002 — Review—Verdict on Conflicting Evidence.
    A verdict clearly and fully supported by the evidence, though conflicting, will not be reversed on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3935 — 3937; Dec. Dig. 1002.]
    Appeal from District Court, Harris County ; A. R. Hamblen, Special Judge.
    Action by L. Butler and wife against M. L. Hughes and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Stanley Thompson, of Houston, for appellants. W. F. Carothers and R. A. Davis, both of Houston, for appellees.
   HIGGINS, J.

Butler and wife sued to recover the title and possession of certain premises in city of Houston, which were conveyed by them to M. L. Hughes and J. J. Lyles on March 28, 1910, and to cancel the deed of conveyance. The interest of Lyles subsequently passed to Hughes. It was alleged that the property was the homestead of Butler and his wife at the time it was conveyed, and, while the deed upon its face was absolute, it was, in fact, intended as a mortgage, and was given to secure the repayment of a loan of $75 made by the grantees to the grantors. It was further alleged that the loan had been repaid. In response to the only issue submitted to the jury, it was found that the conveyance in question was intended by the parties thereto as security for a loan; whereupon judgment was rendered in favor of appellees as prayed for.

The only question presented by this appeal is the sufficiency of the evidence to support the jury’s findings. We have carefully examined the facts, and the conclusion is reached that the evidence abundantly supports the finding. It will serve no purpose to state the same in detail. The issue of veracity between the defendants and plaintiffs was sharply joined, and by the jury resolved in' the latter’s favor — a conclusion which this court deems clearly and fully supported by the evidence.

Affirmed.


text:
    HUGHES et al. v. COLBERT et ux.
    (No. 470.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.)
    Appeal and Error &wkey;>1002 — Review—Verdict on Conflicting Evidence.
    A verdict clearly and fully supported by1 the evidence, though conflicting, will not be reversed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey;> 1002.] .
    Appeal from District Court, Harris County A, R. Hamblen, Judge.
    Suit by Anderson Colbert and wife against M. L. Hughes and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Stanley Thompson, of Houston, for appellants. W. F. Carothers and R. A. Davis, both of Houston, for appellees.
   HIGGINS, J.

Colbert and wife sued to recover the title and possession of certain premises in the city of Houston, conveyed by them to M. L. Hughes and J. J. Lyles by deed dated February 28, 1910, and to cancel the deed of conveyance. The interest of Lyles subsequently passed to Hughes. It was alleged that the property was the homestead of Colbert and his wife at the time it was. conveyed, and, while the deed upon its face was absolute, it was, in fact, intended as a mortgage, and was given to secure the repayment of a-loan of $100 made by the grantees to the grantors. It was further alleged that the loan had been repaid. In response to a special issue submitted to the jury it was found that the conveyance in question was intended by the parties thereto as- security for a loan; whereupon judgment was rendered in accordance with the prayer of the petition.

The only question presented by this appeal is the sufficiency of the evidence to support the finding of the jury upon the issue indicated. We have carefully examined the facts, and the conclusion is reached that the evidence abundantly supports the finding. It will serve no purpose to state the same in detail. The issue of veracity between the defendants and plaintiffs was sharply joined and by the jury resolved in the latter’s favor —a conclusion which this court deems clearly and fully supported by the evidence.

Affirmed.


author: HARPER, O. J.

text:
    HOUSTON TRANSP. CO. v. PEDEN IRON & STEEL CO.
    (No. 467.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.)
    Appeal and Error <&wkey;80 — Decisions Reviewable — Final Judgment — Disposal op Issues.
    In an action on a note, with a prayer by the indorser that on judgment for plaintiff he have judgment over against his codefendant, a judgment for plaintiff not disposing of the prayer for judgment over was not a final appealable judgment, so that an appeal therefrom would be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494r-500; Dec. Dig. <&wkey;80.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Suit by the Peden Iron & Steel Company against the Houston Transportation Company and John G. Tod, with prayer by defendant Tod that on judgment for plaintiff he have judgment over against his codefend-ant. Judgment for plaintiff, and the Houston Transportation Company brings' error.
    Dismissed.
    John G-. Tod, of Houston, for plaintiff in error. Baker, Botts, Parker & Garwood, of Houston, for defendant in error.
   HARPER, O. J.

Plaintiff, Peden Iron & Steel Company, brought this suit against the Houston Transportation Company and John G. Tod, defendants, upon certain notes for principal, interest, and attorney’s fees. The Houston Transportation Company answered by general denial, and, specially, that the charge of 10 per cent, attorney’s fees is unjust, etc. Defendant John G. Tod answered by general denial, and pleaded specially that, if he is liable at all on the notes sued on, it is as indorser thereof, and that therefore he prays that, if any judgment be rendered in favor of plaintiff and against the defendants, he have judgment over against his co-defendant, the Houston Transportation Company.

The judgment rendered is as follows:

“Be it remembered that on this, the 13th day of October, 1913, came on to be heard the above numbered and entitled cause, and came the plaintiff, Peden Iron & Steel Company, and announced ready for trial, and also came the defendant Houston Transportation Company, by its attorneys, and announced ready for trial, and also came the defendant John G. Tod, in person, and announced ready for trial, and the defendants in open court withdrew their demand for a jury, and all matters of fact and law were submitted to the court, and the court, having heard the pleadings and evidence, is of the opinion that the defendants are jointly and severally indebted to the plaintiff in the sum of fourteen hundred and six and 72/ioo ($1,406.72) dollars, which amount plaintiff is entitled to recover from said defendants, jointly and severally, with interest from date at the rate of eight per cent. (8%) per annum.
“It is therefore ordered, adjudged, and decreed by the court that plaintiff, Peden Iron & Steel Company, do have and recover of and from the defendants, Houston Transportation Company and John G. Tod, jointly and severally, the sum of fourteen hundred and six and 72/ioo ($1,406.72) dollars, with interest from date at the rate of 8 per cent, per annum and all costs of suit, for which let execution issue.”

It will be noted that the decree does not dispose of Tod’s plea for judgment over against the Houston Transportation Company in case judgment is rendered against him, without which it is not a final judgment. Cook v. Pore, 37 S. W. 970; Florence v. Choice et al., 124 S. W. 436.

The appeal is therefore dismissed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BARNES & MITCHELL et al. v. CAMPBELL et al.
    (No. 7467.)
    (Court of Civil Appeals of Texas. Dallas.
    July 3, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Vendor ’and Purchaser <&wkey;33 — Sale — Right to Rescind.
    A purchaser of a tract of land who knew at the time that a viaduct connecting the lots with the business portion of the city was not built cannot, the grantors not having built the viaduct, rescind on the ground of misrepresentations contained in the deed platting the property, which recited that a viaduct was to be constructed and granted the city a right of w.ay for the building of a viaduct and waived any damages which might accrue, for it appeared that the city, and not the grantors, were to build a viaduct.
    [Ed. Note.' — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40 — 43, 66; Dec. Dig. &wkey;>33.]
    2. Vendor and Purchaser &wkey;s33 — Rescission-Grounds.
    Where a vendor subsequently agreed with a city for the construction of a viaduct on the property sold, a statement at the time of the sale that there then existed a contract for the construction of the viaduct is no ground for rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40 — 43, 66; Dec. Dig. &wkey;>33.]
    3. Vendor and Purchaser &wkey;>110 — Sales— Rescission.
    Where the agent of a landowner represented to purchasers of property in a subdivision that a viaduct leading to the business portion of the city would be subsequently constructed, a breach of that agreement does not warrant rescission unless it was made with intent to deceive and defraud.
    [Ed. Note.' — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dec. Dig. <&wkey;>110.]
    4. Vendor and Purchaser &wkey;>33 — Rescission — Actions—Evidence.
    In a suit, where it was sought to rescind a purchase of land on the ground of misrepresentations as to future actions, held, that such misrepresentations were not fraudulently made so as to warrant rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40 — 43, 66; Dec. Dig. <&wkey;>33.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by L. W. Campbell, Jr., and others against George W. Barnes and wife and John O. Mitchell, copartners doing business as Barnes & Mitchell, and others. From an order granting plaintiffs a temporary injunction, defendants appeal.
    Injunction dissolved.
    Cockrell, Gray & McBride, of Dallas, for appellants. Muse & Muse and L. W. Campbell, all of Dallas, for appellees.
   RAINEY, C. J.

This is an appeal from an order of the Forty-Fourth district court of Dallas county granting a temporary injunction to appellees against appellants in an action wherein L. W. Campbell, Jr., and Campbell-Harris Lumber Company sued George W. Barnes and wife, Madge Barnes, and John O. Mitchell, a partnership under the name of Barnes & Mitchell, and Ben T. Seay and Tom E. Cranfill, doing business as partners under the name of Seay-Cranfill Company, the Dallas Trust & Savings Bank, and J. D. Robinson, the object of the suit being to rescind a contract for the sale of land situated in the city of Dallas, said contract having been made by L. W. Campbell, Jr., with Barnes & Mitchell.

We gather from the sworn petition, answers and evidence introduced that Barnes & Mitchell in 1911 owned a 40-acre tract of land. They had it laid off into blocks, lots, and streets and alleys, and had a map thereof placed upon the records of Dallas county. Said plat so mapped and recorded was designated “Barnes & Mitchell’s Grand Avenue Addition.” This map did not designate a “viaduct” at Merlin street, as did a subsequent map recorded a few weeks thereaftei of which a copy is hereto attached.

At the time the last map was filed, to wit, December 2, 1911, there had been filed for record a deed of dedication from Barnes & Mitchell to the city of Dallas, which deed was dated November 24, 1911, and had been accepted by said city. Said deed, after setting out a strip of land for the extension of Merlin street, recites:

“Whereas, there is to be built a viaduct on and across the G., C. & S. F. R. R. tracks and right of way at the point herein described as the N. end of the strip of land herein conveyed and dedicated, _ the said grantors herein, tor and in consideration of the premises herein, hereby covenant and agree and do hereby grant to the city of Dallas the right and privilege to construct an adequate and suitable approach to the said proposed viaduct at its south approach, located and situated on the N. end of South Merlin street, as herein set out, and a sufficient portion of said land is hereby conveyed to the city of Dallas for such purpose, and we, the owners and holders of said land, hereby expressly give the city of Dallas the right and privilege to construct said approach and waive any claim for damages that may result to our said property contained in said addition set forth and described.”

Said plot or tract of land is separated from the business part of Dallas on the north by the Santa Fé Railroad, and Merlin street had only been opened up to said railroad and the extension of said street, and the building of a viaduct was greatly desired for the accommodation of those purchasing lots in said addition. Barnes & Mitchell resided in the state of Oklahoma, and Ben T. Seay, their attorney in fact, looked after their interests m Dallas and superintended the sale of lots and to such matters as pertained to said addition. During the year 1912, at different times, L. W. Campbell, Jr., purchased through Ben T. Seay all the lots in said addition remaining on hand; the consideration being cash and notes for deferred payments. Said notes were indorsed by Campbell-Harris Lumber Company, which notes were placed with the Dallas Trust & Savings Bank to secure an indebtedness due it by Barnes & Mitchell.

On December 27, 1912, the hoard of commissioners of the city' of Dallas passed an ordinance granting to the Gulf, Colorado & Santa Fé Railroad Company the privilege of constructing and operating certain switch tracks along its line of road just north of the boundary line of said addition in consideration of said railway company constructing an overhead viaduct across its tracks on Merlin street for the purpose of extending said street. Said ordinance was duly accepted and agreed to by said railway company) but said viaduct has never been constructed up to this time, nor any effort made to do so.

Appellee sold and conveyed a number of lots to individuals, some of whom have built upori them. Appellee’s petition, in effect, charges that he was deceived and induced to enter into the contract for the purchase of said lots for the following reasons: (1) That the map of said plat first recorded did not have written thereon the word “viaduct,” as indicated on the second plat recorded; (2) that the deed of dedication made by Barnes & Mitchell to the city of Dallas recited that a viaduct was to be built across the Santa Eé track on Merlin street; and (3) that said grantors stated that a contract had been made to build said viaduct, and that it was assured by them that said viaduct would be constructed across the railroad tracks on Merlin street.

Appellee evidently knew at the time of purchase of the lots that the viaduct was not then constructed. He should not have been deceived by the recitations in the deed of dedication made by Barnes & Mitchell to the city of Dallas that they were to construct the viaduct. While it was therein recited that a viaduct was to be constructed, said recital was made merely in connection with the covenant conveying the right of way over the property and releasing it from all damages that might accrue to adjoining property that might arise from the construction of the viaduct, and it is clear therefrom that the city was to see to the construction. There is no express agreement alleged in the petition that Bames & Mitchell were to construct the viaduct, and if they stated that an agreement then existed to construct the same, and said agreement did not then exist, an agreement was made some time thereafter to so construct between the city of Dallas and the railway company, which rendered said statement harmless, and affords appellee no ground for relief.

This leaves for consideration the question of assurance that the viaduct would be built, which assurance was made by Ben T. Seay, who was the authorized agent of Bárnes & Mitchell, to make sales of said lots, and did, in fact, make the sales. This assurance was not a representation that the viaduct was then in existence, but that it was to be erected in the future. Appellee may have relied on such assurance, and believed the viaduct would be built at some future time. But was such reliance and the failure to build such as authorized a recovery in an action for rescission of a contract for the sale of land? We think not.

In Railway Company v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, where action was for the rescission of a sale of land, the deed conveyed the right of way over the land, and fraud was charged in that the agent represented that the company would establish and maintain a passenger and freight depot upon the land, which representation had been breached. The court held:

“That ordinarily a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into the contract, will not amount to fraud in legal acceptation, though subsequently the promise is without any excuse, entirely broken and nonfulfilled. This is a plain and well-established proposition about which there can be no controversy ; otherwise every breach of a contract would amount to fraud” — citing Bighani v. Bigham, 57 Tex. 238.

The court, however, held that, while the above was the true rule, there was a well-founded exception, though there is a conflict in the authorities upon the question. The exception is that where the parties make the representation with the intent to deceive and defraud with no intention to perform the promise.

We think there is in this case a total failure to show any purpose to deceive or defraud.

Appellee read in evidence the affidavit of Ben T. Seay, president, and T. E. Cranfill, vice president, who compose the firm of Seay-Cranfill Company, and represented the said Barnes & Mitchell in platting and laying off the streets and alleys and in all other matters pertaining to the establishment of said addition, and represented them in making sales of said lots, which affidavit states, in effect: While the plat was being made and before it was placed on record, negotiations had begun between the city of Dallas and the said railway company looking to the building of said viaduct. The city required the deed of dedication from Barnes & Mitchell conveying the right of way, waiving all damages and widening Merlin street from 50 to 60 feet. This necessitated the making of a new map, which was recorded, as before stated, on December 27, 1911. The deed and map were the result of the joint acts of the city and the said Barnes & Mitchell, and were, in fact, contemporaneous transactions. That the filing of said map for record showing the viaduct was not done until the said city had prepared said deed, and was done wholly and solely in reliance upon the good intentions of said city and said railway company that they would proceed with the building and completion of the viaduct without unusual delay. That in placing said lots upon the market and in selling same to various parties they advertised and stated orally to said purchasers that' said viaduct was assured and would be built within a reasonable time, which statements and advertisements were based not only upon the contract made in said deed, but on the oral assurance of the members of the board of commissioners and representations of said railway company that said viaduct would be built and said acts were done by said agents in perfect good faith, and affiants believed a majority of the purchasers bought upon the faith they had in the affiants, the municipal board of said city, and the representations of the representatives of the railway company. The existence of such a viaduct would greatly enhance the value of said lots. This affidavit is uncontradicted, and we must accept it as embracing the true facts in regard to the question of fraud and deceit.

As we understand the transaction, there is nothing in the record to show deceit or fraud on the part of Barnes & Mitchell or their agents, but, on the other hand, it shows they acted in perfect good faith in trying to procure the building of the viaduct.

Believing the injunction was improperly granted, it will be dissolved.
      <£=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. PRENDERGAST, P. J.

text:
    BROOKS v. STATE.
    (No. 3668.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;636 — Trial—Necessity oe Defendant’s Presence.
    Under Code Cr. Proc. 1911, art. 646, providing that in all prosecutions for felonies defendant must be personally present on the trial, and that he must likewise be present in all cases of indictment or information for misdemeanors, where the punishment or any part thereof is imprisonment in jail, where on a trial for a misdemeanor the jury, by the terms of the statute, assessed defendant’s punishment at six months in jail in addition to a fine, defendant’s absence from the courtroom while his counsel was arguing- a motion for an instructed verdict, in the absence of the jury, required a reversal; defendant having been locked in jail, and not voluntarily absent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465 — 1482, 2120; Dec. Dig. &wkey;636.]
    Prendergast, P. J., dissenting.
    Appeal from Maverick County Court; Ben Y. King, Judge.
    Z. M. Brooks was convicted of an offense, and he appeals.
    Reversed and remanded.
    David E. Hume, of Eagle Pass, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for soliciting and procuring Clara Brooks, a female, to be at a particular place, describing the place, for the purpose of meeting and having unlawful sexual intercourse with Percy Hamilton, a male person.

There was a square issue between the state and the defendant as to this matter on the facts. There is an issue presented by the record that defendant was absent during a part of the trial of his case. The facts in reference to this matter show that during the argument of defendant’s attorney for instructed verdict — that is, between the hours of 2 p. m. and 3 p. m. — the defendant was locked up in jail. As the deputy sheriff testified, he was “locked up good and tight in the county jail.” The jury went back into the courtroom at about 3 o’clock, ab'out the same time the officer brought in the defendant. About 1:55 p. m. defendant’s attorney submitted to the court a written motion for an instructed verdict, and began argument on said m'otion, which argument lasted about an hour, during which time neither the defendant nor the jury was present in the courtroom. As the defendant went in defendant’s attorney was just concluding his argument for an instructed verdict. Defendant’s attorney began said argument' about 2 o’clock. This is the agreed statement of facts approved by the county judge in regard t'o that matter. It is also stated in the general statement of facts, which was filed on April 13th, also made before the adjournment of court, that at 12:30 p. m. the court adjourned until 2 p. m., at which hour the defendant’s attorney began his argument for an instructed verdict, and concluded said argument at 3 p. m. At the conclusion of the argument the jur'ors and the defendant were brought into the courtroom. So the fact seems to be uncontroverted that defendant was locked up in jail, as the deputy sheriff said, “good and tight,” at the time his case was being argued to the court on the question 'of an instructed verdict in his favor. There was no question in this case like that in Killman v. State, 53 Tex. Cr. R. 570, 112 S. W. 92. In that case the defendant voluntarily absented himself under the circumstances detailed in that opinion, and it was held, under the circumstances of that ease, it was not reversible error, but in this case defendant’s absence was forced by being locked up by the deputy sheriff in the county jail.

The Revised Criminal Statutes 1911, art. 646, provide:

“In all prosecutions for felonies, the defendant must be personally present on the trial, and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment or any part thereof is imprisonment in jail.”

Part of the punishment in this case is imprisonment. By the terms 'of the statute the verdict of the jury alloted defendant six months in the county jail in addition to a fine of $50. The Killman Case, supra, is not in point. The other authorities c'ollated under the statute, we think, are in point, and require a reversal of the judgment.

For this reason, the judgment will be reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The agreed statement of facts shows that all that was done during appellant’s absence was that “at about 1:55 p. m. defendant’s attorney submitted to the court a written motion for an instructed verdict, and began argument on said motion, which argument lasted about an hour, during which time neither the defendant nor the jury were in the courtroom”' — simply that, and nothing more. No complaint of this was made at the time, and no objection thereto was made until after the trial in tiie motion for a new trial. This is a misdemeanor case. I think this was no such proceeding or part of the trial as the statute contemplates cannot be had in the defendant’s absence. No possible injury is shown or even claimed t'o him. It was too late to complain after the trial.
      <§^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    HAWKINS v. STATE.
    (No. 3684.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    1. Criminal Law <&wkey;1098 — Appeai^-Statement off Pacts — Form.
    A statement of facts, made up of questions and answers, cannot be considered; there being no statement by the judge in approving the statement that this was necessary, and it not appearing to have been necessary.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2865; Dec. Dig. 1098.]
    2. Criminal Law <&wkey;778 — Instructions — Burden off Prooe.
    An instruction that in all criminal cases the burden of proof is on the state is usually sufficient, unless there is some peculiarity about the case requiring the court to charge further that the burden never shifts to defendant, especially where there is no proper statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 185A-1857, 1960, 1967; Dec. Dig. &wkey;778.]
    3. Criminal Law <&wkey;330 — Burden off Pro off.
    There are instances in which the burden of proof is, or may be, placed on defendant; but this usually applies to special matters, like nonage and insanity, and does not include any case until after the state has made out a case overcoming the presumption of innocence and reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 721; Dec. Dig. &wkey;>330J
    4. Criminal Law &wkey;>1119 — Record — Matters Presented eor Review.
    Where defendant, a negro, received the minimum punishment for the offense of which he was convicted, and there was no statement of facts which could be considered, the prosecuting attorney’s allusion in harsh and bitter terms to the negro race was not ground for reversal, as the facts may have been overwhelming.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. c&wkey;> 1119.]
    5. Criminal Law <&wkey;720 — Argument of Counsel.
    Prosecuting attorneys in their argument should confine themselves to legitimate deductions from the facts as they apply to the law of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <&wkey;> 720.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    John Hawkins was convicted of robbery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of robbery with firearms; his punishment being assessed at five years’ confinement in the penitentiary.

The statement of facts is made, up of questions and answers. The motion of the Assistant Attorney General to strike out and not consider the evidence will be sustained. Under all the authorities, and under our law, a statement of facts in this condition cannot be considered. There is no statement by the judge in approving the statement of facts that this was necessary, and in fact it seems not to have been necessary to so arrange the evidence.

Appellant requested the court to charge the jury that .the burden is on the state, and never shifts to the defendant. This charge was refused. In the charge of the court this language is found: “In all criminal cases the burden of proof is on the state.’’ Usually this is sufficient, and will be treated so, unless there is some peculiarity about the case that will require the court to give the other phase of it, to wit, that the burden never shifts to the defendant. There are instances in which the burden is or may be placed on the defendant;' but that does not include any case until after the state has made out a case overcoming the presumption of innocence and reasonable doubt. That rule usually applies to special matters, like nonage and insanity. We think that the court gave a sufficient charge on this proposition as presented by this record, and especially in the absence of a statement of facts.

The district attorney made some rather vigorous remarks with reference to the negro race, defendant being a negro, and alluded to that race in harsh and bitter terms. Objection was urged to this by appellant’s counsel. The bill recites that the court did not stop the district attorney, nor did he charge the jury to disregard the remarks. However that may be, as the record is presented, the defendant received the minimum punishment. The facts may have been overwhelming. The error is not thought to be of such a nature, under the circumstances, as to require a reversal. ITad the defendant received a punishment above the minimum, we might have quite a different proposition, and would, in the mind of the writer, have a very serious question in the case. We wish again to admonish the prosecuting officers against such speeches. Such remarks ought not to be permitted, nor ought they to be indulged, and we again request the trial courts to use judicial authority in regard to these matters. They are unnecessary, and often lead to reversal of cases, when without it such reversal might not occur. Prosecuting officers should confine themselves to legitimate deductions from the facts as they apply to the law of the case. This is enough, and a conviction secured by means independent of the admitted facts frequently brings about reversals. It is, however, under the circumstances, thought not advisable to reverse this judgment for these improper remarks.

The judgment is ordered to be affirmed.
      (Sx^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    WELLS FARGO & CO. v. BENJAMIN.
    (No. 2774.)
    (Supreme Court of Texas.
    Oct. 27, 1915.)
    1. Negligence <&wkey;141 — Instbuctions—Con-tributory Negligence — Charge.
    In. an action for personal injuries, where the pleadings and evidence raise the issue, the defendant is entitled to have a charge given, grouping the facts upon which he relies to establish contributory negligence; such being a substantial right which should be accorded him.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. &wkey;141.]
    2. Negligence &wkey;>136 — Instructions—Contributory Negligence.
    In an action for personal injui'ies sustained by plaintiff by being struck by a box, which fell from a truck of defendant, defendant’s instructions on contributory negligence were properly refused, where they failed to include the element of contribution to the injury received.
    ■ [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dee. Dig. &wkey;136.]
    3. Negligence <@=>136 — Contributory Negligence — Anticipation — Question of Fact.
    Where, in an action for personal injuries caused by a box falling from a truck of defendant upon plaintiff at a railway station, reasonable minds might differ under the evidence whether plaintiff anticipated the danger of standing or walking near the loaded truck, the question whether his act in so doing was negligence contributing to the injury was for the jury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. &wkey;136.]
    4. Appeal and Error <&wkey;216 — Contributory Negligence — Instruction — Approach to Facts — Duty of Defendant.
    Where, in an action for personal injuries, the court gave a correct charge upon the issues of contributory negligence, whether it applied the law to the facts as directly as necessary will not be determined, since its failure was a mere error of omission, and it was defendant’s duty, if dissatisfied, to present a correct charge more directly applying the law to the facts.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=>216; Trial, Cent. Dig. §§ 627, 628.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by W. S. Benjamin to recover for personal injuries against Wells Fargo & Co. From a judgment of the Court of Civil Appeals (165 S. W. 120), affirming a judgment for plaintiff, defendant brings error.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Beard & Davidson, of Marshall, and Young & Stinchcomb, of Longview, for plaintiff in error. S. P. Jones, of Marshall, for defendant in error.
   YANTIS, J.

W. S. Benjamin, the defendant in error, recovered a judgment against Wells Fargo & Co., plaintiff in error, for personal injuries alleged to have been sustained in October, 1911, while he was on the platform of the Texas & Pacific Railway Company, at its passenger station at Marshall, Tex., where- he had gone to make inquiry at the ticket office about passenger rates covering a trip which he had in contemplation. While on the platform, a box fell from one of the plaintiff in error’s loaded trucks, and struck him in the right temple, from which his injuries are alleged to have resulted.

Two grounds of negligence were alleged to be the proximate cause of the injuries complained of: One, that the plaintiff in error negligently loaded said truck so as to permit and cause the box or crate to fall from the same; the other, that the plaintiff in error, its agents, servants, and employés, negligently handled and operated and managed said truck in such manner and way as to cause the said box or crate to fall from the truck and strike the plaintiff.

The plaintiff in error, being the defendant in the trial court, pleaded in defense contributory negligence on the part of the defendant in error, Benjamin, it alleging that he was guilty of contributory negligence in that he walked or stood by the truck of the plaintiff in error at such close proximity thereto as to permit a crate or box to fall off of the truck upon him; also, it alleged the injury to be the result of an unavoidable accident, in which it alleged that none of its employés were guilty of negligence. It also pleaded assumed risk, but the evidence did not warrant a submission of this issue to the jury, and no complaint is made here of the failure to submit such issue.

The verdict and judgment are assailed because the court refused to give plaintiff in error’s special charges Nos. 10, 12, and 33. The refusal to give these special' charges presents the only questions for our determination, since we approve the conclusions reached by the Court of Civil Appeals upon each of the other assignments. It is contended by the plaintiff in error that it was entitled to have a charge given grouping the facts upon which it relied to establish contributory negligence, and that these charges did so. There can be no doubt but that in a proper case this is the correct rule, where the pleading and evidence make the issue, and where such is the case, it is a substantial right which should be accorded the litigant. It is unnecessary for us to determine whether such issue was raised by the pleading and evidence in this case, in view of the conclusion we have reached with reference to the accuracy of the charges requested. When a correct charge in such a case is presented, it should be given; but an erroneous charge, of course, should be refus'ed. Whether the charges requested in this case were correct presents the main question for our determination.

Defendant in error’s special charge No. 10 is as follows:

“You are instructed that if you find from the evidence that the plaintiff was walking or standing by the moving truck, at the time he 'was struck, and that a person of ordinary care, under the same circumstances, would not have walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it.”

This charge fails to require the jury to find that the negligence, of the plaintiff, if the jury found that he was negligent, proximately conti-ibuted to his injuries. It instructs the jury, in substance, that if the plaintiff was negligent, in the manner set out, to find for the defendant. But to find the defendant in error guilty of negligence would not authorize the defeat of his recovery. If the defendant negligently inflicted injuries upon him, he should not be permitted to recover if he himself was guilty of negligence which proximately contributed to his injuries; but, assuming that he was guilty of negligence, this fact would be no bar to his recovery if it did not proximately contribute to his injuries. If each party to the suit was guilty of negligence, then it became a question for the jury to determine, the trial being had before a jury, whose negligence proximately caused the injury. The charge requested did not permit the jury to determine this question. It amounted to a peremptory charge in favor of the plaintiff in error, to the effect that if the defendant in error was guilty of negligence, then such negligence, would defeat his recovery whether it proximately caused or contributed to h,is injuries or not. This could not be right. It would manifestly be a denial of justice to defeat his recovery on account of his own negligence if in fact it did not contribute to his injuries. It is right and just that one whose wrongful act causes a loss to be suffered should bear that loss, rather than that it should be borne by one who is blameless. And one who was at fault, but whose fault was futile in the result which followed, should not be defeated in favor of the one whose wrong actually produced the injury.

There would be no warrant for a charge in which the court withdrew from the jury a question of fact and settled it conclusively as a matter of law, unless the facts were such that all reasonable minds would agree, and none differ on the subject. We hardly think it could be said that, under the facts and circumstances of this ease, all reasonable minds would agree that if Benjamin was guilty of negligence by being near the truck, such negligence proximately contributed to his injuries. One’s act is only a proximate cause of an injury when it could have been reasonably anticipated by him that some such injury would result from such act. Now, who should determine, the court or the jury, whether it was in contemplation of Benjamin that if he stood near the truck he would probably be injured? Plainly it is a question of fact, to be determined from the evidence introduced, and, being a question of fact, it was a jury question, and the trial court would have no authority in law to decide it.

In this connection, it might be well to call attention to the fact that no evidence was offered tending to prove any special information the defendant in error had as to the danger of being injured if he stood or walked near the truck. There was no evidence to show that he had, in his entire life, known or heard of any one being injured by standing or walking near a loaded truck, on a depot platform, or by allowing a loaded truck to pass near him. So far as this record shows, there was nothing in the experience of his life that would convey information to him which would act as a warning that he should avoid passing near a loaded truck, or should avoid permitting one to pass near him. The record is silent as to any fact that would cause him to contemplate injury in going near the truck, or in permitting it to pass near him. And to the ordinary person it might seem entirely safe to pass near a loaded truck on a depot platform, or to allow one to pass near him, since he should not presume the negligent handling thereof, or expect an unavoidable accident connected therewith, and especially if. it be that his own experience, as well as the experience of the traveling public, with which he was familiar, has been such as to advise him, that, instead of being attended with danger, such accidents are of rare occurrence, and seldom, if ever within his knowledge, have resulted in injury. At least, under such circumstances, it is a question about which reasonable minds might differ as to whether he should have anticipated danger of being injured. And when reasonable minds might differ about it, we are rightfully denied the privilege of declaring the act or omission to be negligence as a matter of law. In such a case the question is one of fact, and is within the peculiar province of the jury to determine.

It clearly follows that said special charge was erroneous, and it was not error on the part of the trial court to refuse to give it. H. & T. C. Ry. Co. v. Kelly, 13 Tex. Civ. App. 1, 34 S. W. 809, 46 S. W. 863; G., C. & S. F. Ry. Co. v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; Railway Company v. Rogers, 91 Tex. 52, 40 S. W. 956.

The same vice is contained in the plaintiff in error’s special charge No. 12. It instructs the jury, in its concluding clause, that:

“If you find from the evidence that a person of ordinary care, under the same circumstances, would have avoided walking or standing in such close proximity to the truck that a crate or box falling therefrom would strike him, you will find for the defendant.”

The plaintiff in error would not be entitled to a verdict in its favor upon this finding. If the jury found in its favor for all it contended, it would only find that the plaintiff was guilty of negligence in standing near the truck. It requires more than this to defeat Ms recovery, If lie Is otherwise entitled to one. It would take the further finding that such negligence contributed proximately to his injuries in order to entitle the plaintiff in error to defeat his alleged cause of action on the ground of contributory negligence.

The plaintiff in error’s special charge No. 33, whose refusal is complained of, contains the same identical error. It instructs the jury, in its last sentence, as follows:

“If you find from the evidence that the plaintiff failed to see the approaching truck, with the load thereon, or that he saw the said truck and its load, but took no notice of it, but you further find that a person of -ordinary care, situated as the plaintiff was when the truck was approaching him, would have seen the said loaded truck, and would have avoided walking or standing in such close proximity to it as to be 'struck by a falling crate or box, you will find for the defendant, regardless of whether or not any of its employés were guilty of negligence.”

A verdict against the defendant in error is required by this charge, regardless of whether the plaintiff’s negligence in the particulars specified in said charge contributed proximately to the injury.

The trial court gave a correct charge upon these issues of contributory negligence. Whether it applied the law to the facts as directly as necessary we need not determine, since if it failed in this, it was an error of omission, and if the plaintiff in error wanted a more elaborate charge thereon, or a more direct application of the law to the facts, it was its duty to present a correct special charge covering the issues involved. Under such circumstances, if the requested charge is erroneous, the court should refuse it, and it would not constitute error to do so. Railway v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; Railway v. Byas, 12 Tex. Civ. App. 657, 35 S. W. 22; Railway v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538.

We conclude that the judgment of the Court of Civil Appeals, and that of the district court, should be affirmed; and it is so ordered.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'