author: HIGGINS, J.

text:
    HOTEL DIEU v. ARMENDARIZ.
    (No. 315.)

    (Court of Civil Appeals of Texas. El Paso.
    May 14, 1914.
    Rehearing Denied May 28, 1914.)
    1. Pleading (§ 205) — Demurrer — Exceptions.
    Where the causal connection between the negligence of the master and the injury to the servant is sufficiently shown by reasonable deduction from the facts set up in the petition, the petition is good against a general demurrer, although a special exception to its sufficiency in that respect would have been well taken.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.]
    2. Pleading (§ 403) —Petition — Cube by Answer.
    Where a servant’s petition for damages for injuries sustained was defective in not showing causal connection between the master’s negligence and the injury, an answer, which alleged that the proximate cause of the injuries, if any, was the negligence of fellow servants cured the defect in the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.]
    3. Charities (§ 45) — Liability bob Torts— Injuries to Employé.
    A charitable hospital, which administers to the sick of all nations and creeds, accepting pay if the patients are able to pay, but otherwise rendering the service gratuitously, is liable for damages to an employs for personal injuries sustained through its negligence, and its property is not exempt from execution to enforce the payment of such demand.
    [Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.]
    4. Master and Servant (§ 151) — Injuries to Servant —Duty oe Master — Warning and Instructing Servant.
    Whether a charitable hospital was liable for the negligent act of its employés or not, it is liable for injuries to a servant caused by the negligent failure to warn and instruct the servant, since that is the duty which cannot be delegated by the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 298; Dec. Dig. § 151.*]
    Appeal from District Court, El Paso County; A. M. Walthall,' Judge.
    Action by Ramona Armendariz against Hotel Dieu. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    See, also, 145 S. W. 1030.
    T. A. Falvey and Davis & Goggin, all of El Paso, for appellant. Ralf Border, Gunther Lessing, and O. L. Bowen, all of El Pa-so, for appellee.

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

       Application for writ of error pending in Supreme Court.

   HIGGINS, J.

Ramona Armendariz brought this suit to recover damages arising from personal injuries, sustained while in the service of appellant. At the time of the accident she was engaged in operating a mangle, and received injuries to her hand upon which the suit is based. It was alleged that the mangle was dangerous and its operation hazardous; that she was a minor, inexperienced and ignorant of its danger and of the proper method of its operation, and defendant was negligent in failing to give proper instruction and warning regarding the mangle and its operation. Defendant answered by exceptions, general denial, and a special plea as follows:

“That on or about the 7th day of July, A. D. 1892, defendant was duly incorporated by and under the laws of the state of Texas for the purpose of erecting and maintaining a hospital in the city of El Paso, Tex., for benevolent and charitable purposes, at which hospital the members of said corporation are to administer to the sick and afflicted of all nations, and to enable its members to receive the sick,’the helpless and afflicted, and to nurse and care for and alleviate their pain and suffering, and to restore them as far as possible to health; that by the terms of said charter said corporation is to exist for 50 years from said date of 1892, and that it has still thereafter existed and now exists and owes its life and function to said charter; that the members of said corporation are Sisters of Charity, and that no person can be at any time a member of said corporation unless she is a Sister oí Charity; that there is no capital stock, and no stockholders in said corporation, and no profits or dividends have ever accrued or can accrue to any person from or by reason of said corporation; that defendant, as to all property and moneys in or to which it has or may acquire title or interest, holds and will hold same only in trust for the charitable use and purposes for which it is organized ; that at all times since the organization of said corporation, said defendant, in compliance with its charter power and obligations, has received into said hospital the sick and afflicted of all nations, and has administered to, nursed, and cared for such sick and afflicted, without profit; that if any such sick or afflicted who are received in said hospital are able and willing to pay for such care and nursing, the same is received, and the money so received is by defendant applied to the paying for the care and nursing of- such sick and afflicted received in said hospital as are poor and unable to pay for their care and nursing; that it was organized and exists for charity, and is a public charity corporation, and that it administers to the sick and afflicted poor of all nationalities without any regard to any consideration of class or of social or religious associations, and receives, nurses, cares for, and maintains the said helpless and afflicted poor in vast numbers, without any compensation whatever; that the members of said defendant corporation devote their time and labor to the care and nursing of the sick and afflicted without receiving any compensation therefor; that neither the said defendant corporation nor any member of said corporation receives any profits for the care and nursing of said sick and afflicted, and that all the property owned'by said defendant, and all money received from patients who are able and willing to pay for the care and nursing, is used entirely for said charitable purpose of caring for the sick and afflicted in accordance with the provisions of the charter of said defendant.. Defendant states that the work of ironing clothes by means of said mangle was a part of the work necessary to be done and being done for the purpose of taking proper care of said patients in defendant’s hospital, and was part of the work of washing the hospital linens for the use of patients under defendant’s care; that said institute, Hotel Dieu, obtains its property, subsistence, and maintenance from donations, bequests, contributions, and payments aforesaid, by. patients able and willing to financially aid said charity in return for hospital accommodations furnished to them, without any profit possible of attainment to the members of said corporation, whose services are given thereto as a gratuity; that all funds and property held or holdabie by said corporation are, for the sole object and purpose of said public charity, a special trust assumed by it under the Constitution and laws of Texas; that it does not and cannot own funds or property subject to execution for damages herein sued for; and that judgment against it for the alleged wrongs set up by plaintiff would be nugatory and to no purpose.”

A number of assignments are predicated upon the proposition that the petition is insufficient and subject to general demurrer because it is not averred that the injury complained of was.proximately caused by the negligence alleged. Upon general demurrer every reasonable intendment arising upon the pleading excepted to must be indulged in favor of its sufficiency. Applying this rule, the causal connection between the alleged negligence and injury is sufficiently, shown by reasonable inference and deduction from all of the facts set up in the petition. Bald-ridge v. Cartrett, 75 Tex. 628, 13 S. W. 8; Ry. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681; Campbell v. Walker, 22 S. W. 823; Erwin v. Hayden, 43 S. W. 610. Had a special exception been urged to. the sufficiency of the petition in this respect, it would have been well taken, as the causal connection should be' directly averred and not left 'to inference or deduction; but, in the absence of such an exception, ■ the petition here considered is regarded as sufficient.

Furthermore, a defective petition may be aided and cured by averments in the answer and for this purpose both may be considered in passing upon a general demurrer. Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Peoples v. Brockman (on rehearing) 153 S. W. 907; Gaston v. Wright, 83 Tex. 282, 18 S. W. 576; Hill v. George, 5 Tex. 87; Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Weathered v. Golden, 34 S. W. 761; Hennessy v. Clough, 40 S. W. 157; Gould on Pleading, § 192.

Defendant in its answer specially averred:

“That if said Ramona Armendariz sustained personal injuries pleaded and charged in the petition of plaintiff, the proximate cause of said injuries, if any, was the negligence, not of defendant nor of its agents or representatives, or of any one whose negligence is in law chargeable against defendant, but of fellow servants of said Ramona Armendariz, her coemployes on the occasion charged, for whose negligence defendant is not in law responsible, and of whose negligence plaintiff, Ramona Armendariz, assumed the risk.”

By the answer the question is thus sharply raised whether defendant’s negligence was the proximate cause of the injury. Conceding, therefore, the insufficiency of the petition in this respect, the defect was thus aided and cured by the answer. Fitzhugh v. Conner, 32 Tex. Civ. App. 277, 74 S. W. 83; Gaston v. Wright, supra; Boettler v. Tendick, 73 Tex. 488, 11 S. W. 497, 5 L. R. A. 270; Melton v. Beasley, 56 Tex. Civ. App. 537, 121 S. W. 575; Ry. Co. v. Miller, 128 S. W. 1165.

The trial court properly sustained the exception to that portion of the answer first above quoted. This question was fully considered and passed upon by the San Antonio Court of Civil Appeals upon the former appeal of this case. Armendarez v. Hotel Dieu, 145 S. W. 1030. It was there held that a corporation of a charitable nature, such as appellant, is liable in damages to an employé for personal injury sustained through negligence chargeable to it, and that its property is not exempt from execution to enforce payment of such demand. See, also, St. Paul’s Sanitarium v. Williamson, 164 S. W. 36, by the Dallas Court of Civil Appeals, which is practically to the same effect. And since such a corporation is held subject to the ordinary rules of liability between master and servant, it would seem to necessarily follow that the doctrine of respondeat superior applies in its full vigor; but, however this may be it has no pertinency here, where the negligence relied upon is a failure to instruct and warn. In any case in which, for any reason, the ¿master owes his servant the duty of explaining and giving instructions regarding dangers to which his work normally exposes him, that duty is not discharged by delegating its performance to an agent. Such duty rests primarily and absolutely upon the master, and is nondelegable. 4 Labatt on Master & Servant (2d Ed.) § 1508; 17 Am. & Eng. Ann. Cases (note) p. 491; Industrial Lbr. Co. v. Bivens, 47 Tex. Civ. App. 396, 105 S. W. 831. Therefore, since appellant’s duty to instruct and warn was a nondelegable duty which it owed the appellee, the doctrine of respondeat superior has no application one way or the other.

The fifth, sixth, and seventh assignments, together with the third proposition under the ninth, relate to the sufficiency of the evidence. They, and the tenth, being all regarded as without merit, are overruled.

Affirmed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    ACME CEMENT PLASTER CO. v. AMERICAN CEMENT PLASTER CO. et al.
    (No. 609.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1914.)
    1. Telegraphs and Telephones (§ 10)— Right to Construct Line — Statutes.
    Rev. St. 1911, arts. 1231, 1235, relating to the use of streets and roads by telegraph companies, applies only to companies organized to construct and maintain telegraph or telephone lines.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    2. Eminent Domain (§§ 13, 69) — Right of Condemnation.
    Land cannot be taken for private purposes in any event, and, upon being taken for public use, compensation must be paid; hence a private concern should not be allowed to appropriate another’s property by the denying of an injunction to prevent the appropriation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 51-53, 171-179; Dee. Dig. §§ 13, 69.]
    3. Eminent Domain (§ 47) — Construction of Telephone Line — Effect.
    Where the fee of a county road as well as that of the right of way of a railroad company remains in the landowner, the erection, of a telephone line on either is an appropriation of his property which cannot be justified, except in case of condemnation by a public service telegraph or telephone company.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.]
    4. Telegraphs and Telephones (§§ 10, 11) —Construction—Easements.
    Neither a county which has an easement in a public road, nor a railroad company which has an easement in a right of way over plaintiff’s land can authorize the establishment of a private telephone line over such ways, as easements granted for public purposes cannot be used for private purposes.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. §§ 6, 7; Dec. Dig. §§ 10, ll.J
    5. Injunction (§ 16) — Issuance—Adequate Remedy at Law.
    Under Rev. St. 1911, art. 4643, providing that an injunction shall be issued where the applicant is entitled to the relief demanded, and the relief requires the restraint of some act prejudicial to the applicant, an applicant is entitled to an injunction, regardless of his remedy at law.; the amendment of 1909, which added a provision, authorizing the issuance of injunctions to prevent irreparable injury to real property, irrespective of any legal remedy, not changing the previous rule.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 15; Dec. Dig. § 16.]
    6. Injunction (§ 49) — Issuance—“Irreparable Injury.”
    As a landowner would be put to a multiplicity of suits to recover damages at law, and as defendants might in time acquire an easement, an injunction restraining defendants from erecting a telephone line over plaintiff’s property should be issued, under Rev. St. 1911, art. 4643, providing for the issuance of injunctions in case irreparable injury to real estate is threatened, irrespective of any remedy at law, for by the term “irreparable injury” it is not meant that the injury must be beyond the possibility of repair by money compensation, but that it must be of such a nature that no fair and reasonable .redress may be bad in a court of law, and to refuse an injunction will work a denial of justice.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 102; Dec. Dig. § 49

    For other definitions, see Words and Phrases, vol. 4, pp. 3772-3774.]
    7. Injunction (§ 12) — Issuance.
    An injunction will not be issued to prevent an act already committed.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.]
    8. Injunction (§ 118) — Issuance—Petition —Sufficiency.
    A petition merely alleging that plaintiff did not consent to defendants’ erection of a telephone line over plaintiff’s land does not sufficiently negative plaintiff’s acquiescence therein to warrant an injunction to restrain the use of such a line.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From an order denying a writ of injunction, plaintiff appeals.
    Reversed and remanded.
    Decker & Claike, of Quanah, for appellant. Huff, Martin & Bullington, of Wichita Falls, and S. D. Bishop, of Lawrence, for appellees.

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

   HUFF, C. J.

This is an appeal from the order of tlie district judge refusing to grant the prayer for writ of injunction, because the petition presented to Mm did not disclose such an equity as would justify him in granting the writ prayed for. The appellant, the Acme Cement Plaster Company, complained of the American Cement Plaster Company and C. H. Newby, alleging substantially that the appellant was a corporation duly chartered under the laws of Illinois, and doing business in Texas, and that the appellee American Cement Plaster Company is a corporation chartered under the laws of the state of Kansas, for the purpose, and with powers, to mine, manufacture, and sell gypsum and its products, and doing business in Texas, and was not chartered for the purpose, nor had it the power or authority, to construct and maintain magnetic telegraph lines, and that C. H. Newby was the agent and manager of the company in Harde-man county, Texas. It is alleged that on the 1st day of January, 1910, and at all times since then, appellant was and is the owner of the fee in and to all those parts of sections 208 and 209, Block H. W. & N. W. Ry. Co. Surveys in Hardeman county, Tex., lying north of the Et. Worth & Denver City Railway Company’s right of way, and that on all of said days and dates it was lawfully seised and possessed of said land, holding the same in fee simple, with the exception: (a) That there is a public road meandering across said lands in a westerly direction, from the town of Quanah, known as the Quanah & Childress road, same being about 60 feet in width; (b) a public road extending in a northerly direction from intersection with the last-named road along the west side of section 208, occupying a , strip of about 20 feet off of said section; that Hardeman county owns an easement over said land used as a public road for road purposes, but that the fee thereto is now and has been on all, the dates aforesaid in the plaintiff; (c) that the Acme Tap Railroad Company is the owner of an easement over and across said section 208 in a northerly direction from'a connection with the Ft. Worth & Denver City Railway Company, the said right of way being 100 feet in width, but that the fee of said right of way is vested in the appellant; that on or about January 1,1911, the appellees, without the consent of appellant, erected their telephone line over and across plaintiff’s said land owned and held in fee, and over and along the right of way of the Acme Tap Railway Company and since said time has been using said line for the purpose of transmitting messages from Quanah to the plaster mill of appellees, and that about January 1, 1914, appellant notified appellees to remove said telephone line from appellant’s land; that about February 10, 1914, appel-lees, over the objection and protest of appellant, began digging holes in and along and across and over appellant’s land above described, and said that it is their intention to place telephone poles in said holes and wires on said poles, and use said telephone line for their use and benefit; that at this time the holes have been dug over and across sections 208 and 209, about 64 feet north of the north boundary line of the Ft. Worth & Denver City Railway Company, and state that it is their intention to place the remainder of the telephones on and along the public roads on the^west side of section 208; that some of the holes now excavated for the telephone line are on and in the Quanah & Childress public road aforesaid, and some are on the other lands of plaintiff; that defendants will continue to operate and construct said telephone lines, unless restrained, and the plaintiff has no adequate remedy at law. Appellant’s prayer was for a writ of injunction restraining appellees’ agent and employSs from further using and maintaining the telephone lines now in operation above described, and from erecting and maintaining the telephone lines above set out as under construction, and from further going upon and over and across plaintiff’s land, other than along the public roads, and from further digging holes and pits.in the jrablie roads across said land or upon other parts of said lands, and from further operating a telephone over and across the public roads on said lands, and from further operating a telephone over the remainder of said lands above described, etc.

Appellant’s first assignment is substantially that the court erred in refusing the writ of injunction prayed for, because the petition showed that appellees were naked trespassers upon appellant’s land, doing an unlawful act over the protest and objection of appellant in constructing a telephone line over the lands held and possessed by appellant in fee simple. The propositions thereunder presented are: (1) That an injunction will lie to protect the owner’s possession of real property from a forcible trespass. (2) That it appears from the allegation that appellees are not corporations organized and chartered for the purpose of constructing and maintaining a magnetic telegraph line, and had no right as such to construct over the public roads of which appellant has the fee. (3) That the restraining order should have been granted, restraining the operation over the railway right of way, the fee to which was owned by appellant, as well as to the abutting lands.

The allegations show that the appellees are not such corporations as are given the right of eminent domain or the right to construct and maintain telephone lines over the public highways. Under articles 1231 and 1236, R. S., this court held, in Roaring Springs Townsite Co. v. Paducah Telephone Co., 164 S. W. 60, “The statute gives the privilege only to corporations created for the purpose of constructing and maintaining telephone lines,” and, if not such a corporation, it should be treated as a trespasser in attempting to construct its line, and the owner of land would be entitled to an injunction. The allegations in the petition show that the line, as constructed and used, and the proposed extension is for the private use of appellees. Band cannot be taken for private purposes in any case, and can be taken for public use only upon compensation being made therefor. Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758; Borden v. Trespalacious, Rice, etc., 98 Tex. 494, 86 S. W. 11-14, 107 Am. St. Rep. 640; Kyle v. Ry. Co., 3 Willson, Civ. Cas. Ct. App. § 436, which case quotes Cooley on Const. Lim. (4th Ed.) 660. “The lands of an individual cannot be taken for public use without compensation; much less can they be wrested from one man and given to another, neither directly nor indirectly by such clogs, restrictions, and bur-thens upon his right of the recovery as to in a great measure destroy the value of the property itself.” Hearn v. Camp, 18 Tex. 549.

Whether the statute giving to telephone companies the right to construct on or over the public roads can do so without compensating the owner of the fee is a much-mooted question by the various courts, and whether it is an additional burden on the land has occasioned diverse holdings. For suggestions by this court on this point, see Roaring Springs v. Paducah, etc., supra; also, for conflict between holdings, see McCann v. Johnson Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171, 2 Ann. Cas. 156; Bronson v. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426, 2 Ann. Cas. 639.

Is the erection of a telephone line on the right of way of the railway company and on the public roads a taking of the land from the owner of the fee? Our Supreme Court has answered this question:

“It should require only a proper regard for plain physical facts to bring the mind to the conclusion that the location of a railroad, like that of defendant, upon land in which the public have only the easement of a highway and another has the fee is the taking of that part of the land occupied by the track, at the very least, and hence a taking of the property of the owner of the fee. No one disputes that this is the legal effect of such an appropriation of land not burdened with such an easement, for, by the constitution and use of the railroad, the land is actually occupied, and necessarily, to a greater or less extent, the owner is excluded from that complete and exclusive use and control to which his ownership entitles him. Is it otherwise, except in degree, when, instead of only one, there are two interests in the soil to be considered, the public easement and the fee? Is not the land appropriated and used in that ease in the same way and for the same purposes as in the other? In both instances the railroad company actually occupies and uses the soil itself in the assertion of a right of way in and over it. Is there a taking in one instance, and not in the other? To make so fundamental a distinction is to deny to the visible facts their necessary consequence. * * * The fee in the land is not as valuable to him as if it were not burdened with the street, but nevertheless it is property which cannot be taken without compensation first made or' secured. If the easement of the street should come to an end, the fee would remain burdened only by the easement of the railroad right of way, and this lays bare the fact that the private property in the street is diminished to the extent of such right of way. In such situation the entire estate is divided into two interests, the easement of the public and the fee of the private owner, and the construction and use of a railroad over it is as much the taking of the corporeal property as if there were but one interest.” Lumber Co. v. Railway Co., 104 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870.

It is further held in that case that the fee burdened with an easement is “property” which cannot be taken without compensation therefor, and such threatened appropriation is enough to sustain the application for injunction. It follows therefore, when appel-lees, for their own personal benefit, entered upon the right of way and the roadway and sought to greet thereon their telephone lines, they took and attempted to appropriate the property of appellant to their own use. ' This the law does not sanction.

The county and the railway company could use the easement for the purposes for which it was granted them — that is, for public use — but could not farm it out to private individuals for their private ends or use. It was not therefore necessary for appellant to negative the consent of the county or the railroad company.

It is urged by the appellees herein that no irreparable injury is shown, or that appellant did not allege and show that it had no adequate remedy at law. As seen from what we have said above, the action of the appellees is a threatened trespass on the land of appellant. Our Supreme Court, in construing article 4643, R. S., which provides that a party is entitled to the right of injunction “where it shall ap'pear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the' applicant,” held that this provision modifies the common-law doctrine denying the equitable remedy of injunction where there exists an adequate remedy at law. S. W. Telegraph & Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. This article- was amended in 1909 (Acts [1st Extra Sess.] 1909, c. 34), adding to subdivision 3 thereof additional matter, which now reads that the applicant is entitled to the writ in all cases where he “may show himself entitled thereto under the principles of equity * * * or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.”

Clearly appellant had the right to prevent the threatened trespass on his real estate. Was- the. threatened trespass an irreparable injury? This is the serious question in this ease. The pleadings of appellant on this point are very meager. However, we have concluded, when the entire pleading is taken together, that an irreparable injury is shown within the meaning of that term as defined and explained by the courts. “By irreparable injury is not meant that the injury is beyond the possibility of repair by money compensation, but must be of such nature that no fair and reasonable redress may be had in a court of law, and that to refuse the injunction would be a denial of justice.” High on Injunctions, § 22. Injunctions to prevent trespass will be granted “when, owing to the peculiar character of the property in question, the trespass complained of cannot be adequately compensated in damages and the remedy at law is plainly inadequate.” A trespass of a continuing nature whose constant recurrence renders the remedy at law inadequate, unless by multiplicity of suits, will be enjoined ; so where from the nature of the case it is impossible to estimate the actual damages (Id. §§ 697, 700, 701) or a trespass which, if continued, will ripen into an easement, may be enjoined.

When an injunction is granted upon the ground that the trespass may ripen into an easement, the question of damage is immaterial. The relief will be allowed, although the act complained of results in no actual or substantial present injury to the complainant. Id. §§ 702, 702a, 715. Our Supreme Court held that a threatened trespass upon the fee, where there was an easement, was grounds for injunction. McCannon Lumber Co. v. Trinity Railway Co., 101 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870, supra. If this was an action to prevent damages to abutting property, perhaps it would then be necessary to allege such facts as would constitute a nuisance or the like. Certainly a party has the right to restrain a threatened invasion on his premises, and the wrongful appropriation of his property. Damages may be-inconsequential at the time, but, by repeating the act or continuing it, may establish a right in or to the property. By the allegations in the petition, it is shown that appellees are threatening to erect permanent structures on appellant’s property, by means of which a passage over appellant’s land is established, and, if permitted to continue, would ripen by prescription into an easement over appellant’s land. To measure the damages would be practically impossible, and, in order to secure compensation, would require a multiplicity of suits. Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441; Field v. Barling, 149 Ill. 556, 37 N. E. 850, 24 L. R. A. 409, 41 Am. St. Rep. 311. “If the use be continued it may'in time ripen into a title by prescription, and we are of the opinion that the plaintiff is entitled to an injunction against such a continual, trespass. She ought not to be compelled to sell her land in this way.” Cobb v. Massachusetts Chemical Co., 179 Mass. 423, 60 N. E. 790; Railway Co. v. Miller, 98 Tex. 270, 83 S. W. 182; Barbee v. Shannon, 1 Ind. T. 199, 40 S. W. 584. To require the appellant to accept damages in this case would be to require it to sell its land to a private individual when the' interest of the public is not to be subserved. Whether the damages are much or little, equity will nevertheless protect the owner of ' property in its enjoyment, whether that enjoyment be one of sentiment or a pecuniary one. An individual will not be permitted to deprive him of it, and the public cannot do so without adequate compensation first paid.

The allegation in this case shows that January 1, 1911, without appellant’s consent, appellees constructed their telephone on the right of way of the railroad, and continuously used it until February, 1914, when appellant notified them to remove it. Appellant, in its petition, asks that the use of this wire over the right of way be enjoined. When an act sought to be enjoined has already been committed, equity will not interfere, since the writ would be a useless thing. High on Injunctions, § 23; Kerr v. Riddle, 31 S. W. 328. The petition is not sufficient in this case to warrant the restraint of the use of the line already constructed on the right of way, since acquiescence in its use is not negatived. While it is alleged that the construction was without appellant’s consent, it may nevertheless have acquiesced therein and in appellees’ use thereof. This part of the prayer will be refused, but we think the appellees should be restrained from further erecting poles for its lines by digging holes and placing poles therein, and stringing their wire on such poles, whether the poles be placed in the public road or on any other portion of appellant’s lands.

The case will be reversed, with direction to the judge of the district court to grant a temporary writ of injunction as prayed for, limited as above set out in this opinion, and that he order the clerk of the district court of Hardeman county to * file the petition, issue citation, and a writ of injunction, upon appellant executing a bond, conditioned as required by law, in the amount which shall be fixed by the district judge.

Reversed and remanded.


text:
    ACME CEMENT PLASTER CO. v. KEYS.
    (No. 610.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1914.)
    1. Injunction (§ 118) — Petition—Service off Process.
    Where a petition in a suit to enjoin trespasses alleged that the residence of defendant, who was not alleged to be a corporation, was unknown, b.ut that he had agents and employés residing in the county upon whom process might be served, and the agents and employés were not made parties, an injunction was properly refused because of the failure of the petition to show parties and facts over which the court could exercise jurisdiction, since defendant could not be brought into court by the service of process on his agents, nor enjoined by service on them.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]

      2. Injunction (§ 114) — Persons Who May be Enjoined — Necessity oe Joining as Paeties.
    In a suit for an injunction, defendant s agents and employes could not be enjoined, unless made parties by the petition.
    [Ed. Note— Eor other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.]
    3. Dismissal and Nonsuit (§ 26) —Non-besident Defendants — Peo cess — Failuee to Serve.
    On a bill to enjoin tort-feasors, when one of the defendants resides beyond the jurisdiction of the court, and has not been served with process, the suit may be dismissed as to him and proceed as to the other.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 46, 48-50; Dec. Dig. § 26.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by the Acme Cement Plaster Company against John C. Keys. From an order refusing an injunction, plaintiff appeals.
    Affirmed.
    Decker & Clarke, of Quanah, for appellant.

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

   HUFF, C. J.

This is an appeal from an order refusing an injunction, and a companion case to. the ease of Acme Cement Plaster Co. v. American Cement Plaster Co., 167 S. W. 183, No. 609 in this court. The cause of action alleged is substantially the same as that alleged in No. 609. The appellant alleged: ■

“The Acme Cement Plaster Company, plaintiff, complaining of John C. Keys, defendant, represents that plaintiff is a corporation chartered under the laws of the state of Illinois, and has a permit to do business in Texas, and that the residence of defendant is unknown, but that he has agents and employes residing in Plardeman county, Tex., upon whom process may be served.”

The general allegation is that the defendant and his agents and employes, over the protest of plaintiff, committed the trespasses therein complained of.

Appellant appears to have sought jurisdiction over Keys by alleging he has agents in Hardeman county. He is not alleged to be a corporation; therefore service must be had on him in person. The agents are not named in the petition. It is alleged that Keys and his agents were at that time committing the trespasses. Keys was not a resident of the county, and presumably not in the county, and personally he could not be guilty of the act. The agents were not made parties, and hénce could not be enjoined. The citation could not be served on them and thereby bring Keys into court. We know of no statute which authorized the writ of injunction to be served on the agent. The agents could not be a party, unless made so by the petition, and could not be included in the injunction writ. Fellows v. Fellows, 4 Johns. Ch. (N. Y.) 25; Scott v. Donald, 165 U. S. 107, 17 Sup. Ct. 262, 41 L. Ed. 648. If Keys, through his employés, was trespassing on the land of aDpeliant, then they should have been joined as parties defendant, and the writ issued against them. Parlin v. Miller, 25 Tex. Civ. App. 190, 60 S. W. 881; Kirkpatrick v. Bank, 148 S. W. 362. On the bill to enjoin tort-feasors when one of the defendants resides beyond the jurisdiction of the court, and has not been served with process, the suit may be dismissed as to him, and proceed as to the other. High on Injunctions, § 1564. So, where there are persons whose interests are affected, they should be made parties, but, if they cannot be reached by process of the court, the bill should be dismissed, unless it can be prosecuted alone against the other defendants. Minnesota v. Northern Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499. If Keys was out of the state, it is very questionable whether the court could exercise jurisdiction over him by writ, or, if it was served, enforce it. The petition wholly fails to show such parties and facts over which the court could exercise jurisdiction. We think, under the pleadings presented, the district judge properly refused to grant the injunction.

The case is affirmed.


author: RICE, J.

text:
    WILLIAMS v. J. W. CROWDUS DRUG CO.
    (No. 5359.)
    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.)
    FRAUDULENT CONVEYANCES (§ 47) — SALE OE Stock in Trade — Statutory Provisions.
    Under Rev. St. 1911, requiring a purchaser of a stock in trade to secure from the seller a verified list of his creditors, and to notify the creditors of the proposed sale, a sale of a stock is void as to a creditor of the seller whose name was omitted from the list furnished to the purchaser, but which list was not verified by the seller, whether such omission was through mistake or actual fraud.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. § 47.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Attachment by the J. W. Crowdus Drug Company against A. C. Daniels and another, in which R. L. Williams filed a claimant’s oath and bond. Judgment for the plaintiff, and the claimant appeals.
    Affirmed.
    S. C. Autry, of San Angelo, for appellant. Thomas & McCarty, of San Angelo, for ap-pellee.

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

   RICE, J.

In March, 1911, A. C. French, who was indebted to appellee, sold his stock of goods, then in the Owl Drug Store in San Angelo, to May Daniels, wife of A. C. Daniels, who, in part payment therefor, assumed and promised to pay appellee’s indebtedness against French. In September next thereafter Mrs. Daniels, acting by and through her husband, sold said entire stock of drugs to appellant. Prior to suela sale, however, he had demanded, and she had agreed to furnish him, a complete list of her creditors; but the list so furnished was incomplete, in that it did not mention appellee’s claim, and was not verified, in consequence of which appellee was not notified of such contemplated sale, and did not learn of it until long thereafter. In December following appellee filed suit against A. 0. Daniels and his wife, May Daniels, on the French indebtedness which had been assumed by her, and thereafter caused a writ of attachment to be issued and levied upon a portion of said stock of drugs in the possession of appellant. Thereupon appellant filed his claimant’s oath and bond with A. O. De Long and S. Bustler as sureties, which writ of attachment, with sheriffs return thereon, and claimant’s oath and bond, were filed in the county court of Tom Green county. The case coming on for trial, the issue was whether or not said sale from Daniels to appellant was void under the “Bulk Sales Law.” There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted.

On the trial the court, in effect, instructed the jury to find for appellee, if they believed Mrs. Daniels was indebted to it on the French claim, the payment of which had been assumed by her, and for which judgment had been rendered in its behalf against her and her husband. Appellant requested, and the court refused to give, several charges, the substance of which was that, if Mrs. Daniels, or her agent, in making out the list of creditors, failed to place the name of the appellee on the list by mistake, or if they did not know at the tinje of making such list and sale that appellee was a creditor of said May Daniels, then and in that event plaintiff would not be entitled to recover.

Article 3971, R. S. 1911, known as the ‘‘Bulk Sales Law,” reads as follows:

“Any sale or transfer of any portion of a stock of merchandise, otherwise than in the ordinary course of trade in the usual and regu-ar prosecution of the seller's or transferer’s business, or a sale or transfer of an entire stock of merchandise in bulk, shall be void as against creditors of the seller or transferer, unless the purchaser or transferee shall, at least ten days before the sale or transfer, in good faith, make full and explicit inquiry of the seller or trans-ferer as to the name and place of residence or place of business of each and all creditors of the seller or transferer, and the amount owing to eadh such' creditor by the seller or trans-ferer, and obtain from the seller or transferer a written answer to such inquiries, which answers shall be sworn to by the seller or trans-ferer, and unless the purchaser or transferee, at least ten days before the sale or transfer, in good faith, notify or cause to be notified personally, or by registered mail, each of the seller’s or transferer’s creditors, of whom the purchaser or transferee has knowledge, of said proposed sale or transfer.”

Article 3972, Id., provides that any purchaser conforming to the provisions of said article shall not be held accountable to any creditor of the seller for any goods or merchandise that may have come into his possession by virtue of such sale or transfer.

The proof shows that, while appellant requested Mrs. Daniels and her husband to furnish him with a list of her creditors, as required by the statute, and a list was in fact furnished by them to him, still such list did not conform to the statute, in that it was not verified, and omitted the name, claim, and residence of appellee. It is true that this omission is sought to be excused by the seller on the ground that the bookkeeper furnished the list from the books, and that the books did not show such claim, and that Mr. Daniels refused to verify the account for the reason that he did not keep the books, and did not know whether such list was correct or not. Frequent .statements of appellee’s claim had been mailed to them, and the assumption of the account was of recent date, and the husband, who was acting for the wife must be presumed to have known that it had not been paid; and, while appellant had no other means of knowing whether the list contained the names of all the creditors, still he knew it was not sworn to, and received the same with such knowledge. This fact, and the refusal on the part of A. O. Daniels to verify same, was sufficient to excite further inquiry on his part. The statute makes it the duty of the seller, on demand, to furnish a complete list of his creditors. It also requires such list to be sworn to, and declares that, if this is not done, the sale shall be void. We think it is immaterial whether the omission was made through mistake or not. The parties are presumed to have known the law, and in this case it appears that they actually knew of the statute and contracted with reference thereto, and must be held bound thereby. And since the statute declares that all such sales not made in conformity thereto are void, we are constrained to hold that the sale in the present instance was invalid as against appellee, and that the court properly refused the special charges requested. And this is true, irrespective of whether such omission to comply with the law was occasioned by actual fraud or not; the failure to comply with the statute being sufficient to invalidate the sale, appellant haying knowledge of such failure, as held by Mr. Chief Justice Brown in the case of Nash Hardware Co. v. Morris, 105 Tex. 217, 146 S. W. 875. See, also, article 3971, supra; Daly v. Sumpter Drug Store, 127 Tenn. 412, 155 S. W. 167; Cantrell v. Ring, 125 Tenn. 472, 145 S. W. 166; Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 15, 62 S. E. 88. Mr. Chief Justice Fish, in the latter case, involving a statute of Georgia somewhat similar to our own, in effect, said that, irrespective of the question as to whether the sale was in fact made with intention to defraud creditors, it must be held void, because the requirements of the statute enacted for the protection of creditors had not been complied with.

Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.


author: RAINEY, C. J.

text:
    MEREDITH v. MITCHELL.
    (No. 7156.)
    (Court of Civil Appeals of Texas. Dallas.
    May 9, 1914.
    Rehearing Denied May 30, 1914.)
    Adverse Possession (§ 13) — Acts Constituting.
    Where plaintiff and those under whom he claimed resided about four miles from the tract in controversy, and the tract was never occupied by them or by a tenant and was not fenced or improved, and the only visible claim of right of ownership was the cutting of timber and converting it into lumber and for firewood, and the cutting of timber was not continuous for ten years, there was no such adverse possession as ripened into title, though plaintiff showed payment of taxes for over ten years and until the holder of the legal title set up his claim.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13 .

      ]

    Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.
    Action by G. C. Meredith against T. J. Mitchell. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    L. Davidson, of Canton, and J. N. Starr, of Athens, for appellant. T. R. Yantis, of Canton, and Wynne, Wynne & Gilmore, of Wills Point, for appellee.

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

   RAINEY, C. J.

This is an action of trespass to try title to a tract of land in Van Zandt county, Tex., and the only issue presented is whether or not appellant is entitled to recover on the ground of ten years’ limitation.

It is admitted that appellee holds the land by virtue of superior legal title, and entitled to recover unless appellant has held said land by adverse possession under a claim of right for a period of ten years.

The character of appellant’s possession of the land is shown by the following testimony:

“Jim Meredith, witness for plaintiff, G. C. Meredith, testified that his grandfather and father owned a sawmill located about four miles from the tract of land in controversy, and bought the land for its timber to saw into lumber and for building and fencing timber for their home place. That they cut timber from the land ah the time so long as they run the sawmill, which was eight or ten years, and sawed same into lumber, and my father has cut timber from the land every year, since the sawmill quit running, to keep up his farm and residence until Mitchell got on the land. That he tried to fence Mitchell out, but that Mitchell run him off with a double-barrel shotgun. Mitchell told him that he had to get off. I said to him I did not think I had to get off, but I reckon I can get off. That everybody living in the settlement where the land lay knew the land as the Meredith land. That he had always known the land as his grandfather’s and father’s land, and never heard of any one else claiming the land until Mitchell got on the land. That he cut timber one year, after the same mill quit running, from the land to fence 100 acres of land. That he got the timber from his grandfather and split it to rails one-half for the other.”

J. O. Meredith, witness for plaintiff, G. 0. Meredith, testified that:

. “The land was bought by my grandfather and father the same year I was born, but before I was born; that his father and grandfather had owned the land ever since he could remember ; that they have been cutting and using the timber from the land all the time,' every year since he could remember; that he helped cut timber from the land as soon as he was large enough to help his father and grandfather; that he had always known the land as his father’s and grandfather’s land, and never knew of any one else claiming the land; that the land was generally known in the country where the land lay as the Meredith land; that the claim of ownership of his father and grandfather was open and notorious, and so were all their acts of possession and use of the land.”

Jeff Davis, a witness for plaintiff, G. C. Meredith, testified that:

“He had been in Texas 25 years. That he settled not a great distance from the land in controversy, and soon after he came to Texas he learned that this land belonged to E. Meredith and G. O. Meredith. That they hauled saw stock from the land right by his house. That he had seen them hauling saw stock from the land every year for a number of years, and that this was constant and continued for many years. That he bought some timber from the land from G. G. Meredith about 15 years ago. That the Merediths and their claim of ownership was open and notorious, and that he never heard of any one else claiming the land until Mitchell got on it. That it was timber land. That, when he first came to this country, lands upon the hills were worth some $3 per acre, but the land in controversy was not worth so much; it being low wet land in the back woods and not so desirable.”

G. O. Meredith, plaintiff, testified in his own behalf that:

“My father and Mr. Morris bought the land from the old man Morris. That the young Mr. Morris wanted out of it and I bought him out. That the land was desirable only for its timber, and that they bought it for 'its timber. That there was no timber on their home place suitable for building and fencing purposes, and that they bought the land for its timber to supply their sawmill in saw stock, ahd for building and fencing purposes on their home place. That he knew it was a tax title, but believed it a good title and believed it was his land. That he and his father owned a sawmill located about four miles from the land, and that they cut and hauled the timber from the land to their sawmill for eight or ten years and sawed same into lumber, until they cut about all the timber from the land suitable for saw stock, and after they quit running the sawmill he continued to cut and use the timber from the land every year and all the time for building and fencing purposes for his home place until Mitchell set up his claim and got on the land. That he kept others off the land, and that he had an occasion one time to move some parties off who were attempting to cut timber from the land. He told them that they were on his land and they moved off. That he sold some timber to other parties and kept others off only as they bought from him. That his claim was open and notorious, and that he never heard of any one else claiming the land until Mitchell set up his claim. That the land was generally known in the country where the land lay as his land. That the land lay in a low level section of country near the swamps of Kickap'oo creek. That tkei'e was no farms nor residences in that immediate section, and that he would not live on the land for it”,

Tax receipts were in possession of plaintiff, G. C. Meredith, and exhibited on the trial of the case showing payment of the taxes on the land every year since 1SS3, until the year 1911, when Mitchell set up his claim.

It is shown that appellant and those under whom he claims resided about four miles from the land; that it was never occupied by appellant nor by a tenant. It was never fenced, nor are there any improvements of any character whatever planed thereon. The only visible claim of right of ownership was the cutting of timber and hauling it off for converting it into lumber and for firewood. ' It seems that this cutting of timber to be converted into lumber was not continuous for the period of ten years.

The evidence, we think, fails to show such adverse possession as contemplated by the statute for title to have ripened in appellant by the statute of ten years limitation. Brackin v. Jones, 63 Tex. 184; Satterwhite v. Rosser, 61 Tex. 166; Sellman v. Hardin, 58 Tex. 86.

In Brackin v. Jones, supra, it is said:

“It is a general rule that, where a person relies upon naked possession as a foundation for an adverse claim to land, there must be an actual occupancy, and beyond this the possession cannot be extended.”

In Sellman v. Hardin, 58 Tex. 86, where the facts of possession áre very similar to those in this case, but stronger to show an appropriation of the land, Justice Stayton held:

“The evidence * * * was not sufficient to show such adverse possession as would sustain his plea of limitation.”

The judgment is affirmed.


author: KEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. HAWKINS & NANCE et al.
    (No. 5334.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.
    Rehearing Denied May 27, 1914.)
    1. Evidence (§ 489) — Opinion Evidence — Mixed Question of Law and Fact.
    In an action for injuries to cattle during a shipment, an opinion by the plaintiff as to what would have been the reasonable value of the cattle if they had been transported to the place of destination within a reasonable time and with ordinary handling involves both a question of law and fact and is inadmissible.
    [Ed. Note. — For other cases,' see Evidence, Cent. Dig. § 2274; Dec. Dig. § 489.]
    2. Carriers (§ 230) — Carriage of Live Stock — Actions foe Injuries — Sufficiency of Evidence.
    In an action against two connecting carriers for injuries to cattle during a shipment, evidence held sufficient to take to the jury the question whether the cattle had been roughly handled while being transported over the line of the first carriel-.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    3. Appeal and Error (§ 877) — Parties Entitled to Complain — Error Favorable to Copartt.
    In an action against two connecting carriers for injuries to cattle during shipment, where judgment was rendered against the second carrier, it may complain on appeal of error in giving, at the request of the first carrier, an instruction that the evidence did not warrant a finding that the cattle had been roughly handled by the first carrier.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Doc. Dig. § S77.]
    4. Trial (§ 194) — Instructions—Weight of Testimony.
    In an action against connecting carriers for injuries to cattle during a shipment, a charge that there was no evidence which would warrant a finding that the cattle were roughly handled by the first carrier, where there was evidence from which that fact might have been inferred, was a charge upon the weight of testimony which is prohibited by statute.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Action by Hawkins & Nance and others against the Houston & Texas Central Railroad Company and the International & Great Northern Railway Company. Judgment for the plaintiffs 'against the defendant the Houston & Texas Central Railroad Company and against the plaintiffs and in favor of the International Great Northern Railway Company, and the Houston & Texas Central Railroad Company appeals.
    Affirmed in part, and reversed and remanded in part.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. Will G. Barber and R. E. McKie, both of San Marcos, for appellee Hawkins and Nance. Fisher & Fisher, of Austin, and Wilson, Dabney. & King, of Houston, for appellee International & G. N. Ry. Co.

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

   KEY, C. J.

Appellees Hawkins & Nance brought this suit against the Houston & Texas Central Railroad Company and the International & Great Northern Railway Company to recover damages alleged to have been sustained to a shipment of stock cattle from Waller to Kyle, Tex. There was a jury trial, which resulted in a verdict and judgment for the plaintiffs against the Houston & Texas Central Railroad Company, and that the plaintiffs take nothing as against the other defendant, and the Houston & Texas Central Railroad Company has appealed. Hawkins & Nance are not complaining of the judgment in favor of the International & Great Northern Railway Company, and that judgment will be affirmed.

Holding that the other assignments do' not point out reversible error, we sustain the fourth, and seventh assignments of error and reverse the case.. The bill of exception upon which the fourth assignment is predicated shows that the trial court admitted in evidence, over appellant’s objection, testimony similar to that which was held not to be admissible in this class of cases in Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808. The bill shows that the court permitted the plaintiff Hawkins, while testifying as a witness, to give his opinion as to what would have been the value of the cattle at Kyle, the place of destination, if they had been transported “within a reasonable length of time and after ordinary and reasonable handling en route.” Conceding that a witness, who has qualified himself, may express an opinion as to value, still it was decided by our Supreme Court in the Roberts Case, supra, that an opinion or conclusion similar to the one under consideration involves both a question of law and fact, and therefore is not permissible.

The seventh assignment complains because the court gave a charge requested by the International & Great Northern Railway Company, instructing the jury that there was no evidence which would warrant a finding that the cattle were roughly handled while in possession of that defendant. The contract of shipment stipulated that the Houston & Texas Central Railroad Company was not to be liable for any injury or damage to the property after it was delivered to the connecting carrier, and the case was tried upon that theory, and the court so instructed the jury. There was testimony given by two witnesses who handled the shipment for the Houston & Texas Central Railroad Company, the initial carrier, to the effect that when the cattle were delivered to the other defendant at Austin, Tex.,, they were in good condition; and tlie agent of the International & Great Northern Railway Company at Austin testified that he knew of his own knowledge the condition of the cattle at the time he received them, and that, so far as could be seen, they were in good condition, with the exception of two cows, one of which had a horn knocked off and another had a diseased hind leg. He testified that both of those injuries appeared to have been caused before the time the cattle were shipped. His testimony was corroborated by the agent of the International & Great Northern Railway Company at Kyle, but the plaintiff Hawkins testified, that, when he received the cattle from the International & Great Northern Railway Company at Kyle, two cows had their hips knocked down, one a horn knocked off, and the balance were hooked and skinned up; that one cow had her hock knocked out of place, which he thought was done after they were unloaded at Austin; that one calf was badly trampled, and died after it got to the pasture; that, when he took the cattle from the pens at Kyle, about 50 of them were skinned up.

So it seems there was some testimony tending to show that the cattle were not injured at all when appellant delivered them to the International & Great Northern Railway Company, and other testimony tending to show that only two of them were injured at that time, while the testimony of the plaintiff Hawkins tended to show that many others were injured at the time the International & Great Northern delivered the cattle to him at Kyle. Therefore we hold that there was testimony tending to show rough handling of the cattle while in possession of the International & Great Northern Railway Company, although its employes who handled the shipment testified that there was no rough handling, etc. And, such being the case, the court erred in giving the instruction complained of.

It is true that the plaintiffs are not complaining of the action of the court in giving that instruction, but their failure to complain does not preclude appellant from complaining. If the charge referred to had not been given, it may be that the jury would have found that the International & Great Northern Railway Company. was liable for some of the damages, which would have resulted in diminishing the amount of damages awarded against the Houston & Texas Central Railroad Company.

It is also true that the charge referred to did not instruct the jury that there was no testimony tending to show that the cattle were injured while in possession of the International & Great Northern Railway Company, but instructed them that there was no evidence which would warrant a finding to that effect. But the fact remains that the charge was upon the weight. of testimony, which is prohibited by statute; and therefore, in view of the testimony pointed out above, we hold that the giving of that charge constitutes reversible error, as against appellant.

For the reasons stated, the judgment is reversed, and the cause remanded, as to appellant but affirmed as between appellees Hawkins & Nance and the International & Great Northern Railway Company.

Reversed and remanded in part, ano in part affirmed.


text:
    GULF, C. & S. F. RY. CO. et al. v. STATE.
    (No. 5350.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.
    Rehearing Denied May 27, 1914.)
    1. Constitutional Law (§ 62) — Railroads (§ 58*) — Delegation oe Power to Railroad Commission — Union Depot.
    Gen. Laws (2d Extra Sess.) 31st Leg. e. 10 (Rev. St. 1911, arts. 6695, 6696), declaring that, where two or more railroads reach the same city, the Railroad Commission shall ascertain whether a union depot is practicable, and, if it is, the Commission shall give notice to them and, after investigation and public hearing, may require the construction and maintenance of such union depot, provided the construction and maintenance is just and reasonable to the railroads and demanded by public interest, and that the Commission may specify the requirements of such depot, is in effect a declaration that railroads shall, under certain conditions, construct and maintain a union depot, leaving to the Commission merely the determination in the first instance .whether these conditions exist, which is not a delegation of legislative power and does not invalidate the law.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 94^-102; Dec. Dig. § 62; Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.]
    2. Constitutional Law (§ 297) — Deprivation oe Property Without Due Process— What Constitutes.
    Such statute works no deprivation of property without due process of law, contrary to Const. U. S. Amend. 14, and Const. Tex. art. 1, § 19, because, before any action can be taken by the Commission after determining that a union depot is practicable, the Commission must give notice to the companies, after which follows an investigation and public hearing, before any order can be made requiring the construction of such depots.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. § 297.]
    3. Constitutional Law (§ 62) — Delegation oe Legislative Power.
    Such statute is not invalid as investing the Railroad Commission with power at their option to enforce or waive it; it merely placing upon the Commission the duty of ascertaining whether facts exist at any particular place which would authorize the Commission to order the construction and maintenance of a union depot.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.]
    4. Railroads (f 58) — Railroad Commission —Order eor Union Depot.
    An order by the Railroad Commission under Gen. Laws (2d Extra Sess.) 31st Leg. c. 10 (Rev. St. 1911, arts. 6695, 6696), for the construction of a union depot by two railroad companies, whose lines intersected in a town, is not too vague for enforcement because it left to the railroad companies the right to determine the location and the character of the depot, and merely required them within 30 days from the date of the order to report the kind and character of the building they expected to erect, together with plans and specifications thereof for approval by the Commission.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.]
    5.Mandamus (§ 176) — Railroad Depots— Compelling Submission oe Plans.
    In mandamus to compel railroad companies to obey an order of the Railroad Commission requiring them to present plans and specifications for the construction of a union depot, the court may issue a writ commanding the railroad companies to submit plans and specifications for a union depot to the Railroad Commission, for the court is not restricted to the mere issuance of a writ of mandamus commanding the construction of a union depot which might neither meet the approval of the Commission nor serve the public.
    [Ed. Note. — Por other cases, see Mandamus, Cent. Dig. §§ 392-394; Dec. Dig. § 176.]
    Appeal from District Court, Travis County; C. A. Wilcox, Judge.
    Action by the State of Texas against the Gulf, Colorado & Santa Fé Railway Company and another. Prom a judgment for the State, defendants appeal.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, Alex S. Coke, of Dallas, Piset, McClendon & Shelley, of Austin, and A. H. McKnight, of Dallas, for appellants. B. P. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.

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

   Statement of the Case.

RICE, J.

Por many years prior to the institution of this suit, appellants have operated their respective lines of railway into and through the town of Celeste in Hunt county, crossing each other practically at right angles, during most of which time they have maintained distinct and separate depots about 440 yards apart, necessitating a transfer of passengers and baggage from one depot to the other. On May 3, 1910, a petition, signed by 109 citizens of said town, was presented to the Railroad Commission of Texas, complaining of such conditions, and requesting it, after stating the above facts, to order appellants to build and maintain a union passenger depot at said place. In response thereto, the Railroad Commission of Texas, on the 11th day of July, 1910, made and entered the following order, to wit, after stating the number and style of the case:

“The abovfe numbered and entitled cause, in pursuance of notice duly given, having been called for hearing by the Railroad Commission of Texas at its June term, 1910, and the Commission having heard the evidence offered and facts presented pertaining to the matters covered by the petition and the notice herein, and having duly considered the same, and having also inspected the physical conditions with respect to the location of a union passenger depot building at said station, is of opinion -that the present passenger depot facilities of the railway lines entering the town of Celeste are inadequate and insufficient to the needs of the traveling public, and that the construction, operation, and maintenance of a union passenger depot in said town of Celeste, jointly by the railway companies hereinafter named, and whose lines enter said town, is both feasible and practicable, is just and reasonable to the railroad companies involved, is demanded by the public interest, and will be mutually beneficial to said railroad companies and the traveling public: Therefore, by virtue of the authority conferred upon it by law, it is hereby ordered by the Railroad Commission of Texas that the Missouri, Kansas & Texas Railway Company of Texas and the Gulf, Colorado & Santa Fé Railway Company be and they are hereby ordered and required to construct, operate, and maintain a union passenger depot building' in the town of Celeste, Tex.; said depot building to be located so as to best serve the purpose for which it is intended, and the expense of construction, maintenance, and operation of said depot to be prorated between the said railway companies upon such basis as they may determine among themselves. It is further ordered by the Railroad Commission of Texas that, upon the completion of said union passenger depot building, all passenger trains operated by the above-named railway companies to or from the town of Celeste shall be operated to or from said union depot. It is further ordered, that, within 30 days from this date, plans and specifications for the depot building, hereinbefore required to be constructed, be prepared and submitted to this Commission at' its office in the Capitol at Austin, in order that it may judge of the adequacy thereof and for its approval, and said depot building be constructed and ready for occupancy on or before October 15, 1910.”

This order was wholly ignored by the appellants, and this suit was thereafter, on January 19, 1912, brought by the state, at the instance of the Railroad Commission, against both of them to enforce compliance therewith, and to recover the penalty of $5,000 on account of their failure so to do.

Appellants answered by general and special exceptions, by which they assailed the validity of said order (1) on the ground that the act conferring authority on the Railroad Commission to make same was unconstitutional and void, in that it conferred legislative authority upon said Commission; (2) on the ground that it was the taking of the property of said appellants without due process of law and in violation of the fourteenth amendment to the Constitution of the United States, and of section 19, art. 1, of the Constitution of this state; (3) that it conferred authority upon said Commission to suspend or put in operation the law, at its option; (4) that said order was too vague and indefinite, in this, that it failed to name the place where said depot should be located; and (5) that the order did not prescribe the kind, character, quality, size, cost, or otherwise describe or define the depot that was to be erected thereunder. They also pleaded the general issue and specially averred that their present depots were adequate and confortable, and no necessity existed for the construction of a union depot at said place; that the public interest did not require it; and that the order of the Commission, as set up in the petition, was unreasonable, arbitrary, and unjust.

The ease was tried before the court without a jury, and resulted in a judgment on the 21st of October, 1913, overruling all of said exceptions, and awarding mandamus and mandatory writs of injunction compelling said railway companies to construct a union passenger depot at said place, and to have the same completed and ready for occupancy within 90 days from the date thereof. The judgment further required said companies to prepare and submit to said Commission, within 30 days from final judgment, plans and specifications of such union passenger depot for the approval of the Commission. It further required appellants to agree among themselves upon a basis for the division and prorating the cost of such building, and that, in the event they could not do so within 30 days from the. date of final judgment, then such fact should be certified to the Railroad Commission, which would then apportion the costs between them. It was further ordered that the state recover nothing by way of penalties on account of the failure and refusal to obey said order, from which judgment this appeal is prosecuted.

The trial court found the following conclusions of fact and law, which we adopt:

“Findings of Fact.
“(1) I find that on the 11th day of July, 1910, and for a long time prior thereto, and continuously since said date, the defendants, Gulf, Coloi’ado & Santa Fé Railway Company and the Missouri, Kansas & Texas Railway Company of Texas, has each controlled and operated a line of railroad within this state, running into and through the town of Celeste, in Hunt county, Tex., and that defendants’ said lines of railroad and tracks intersect and cross at and in said town of Celeste.
“(2) I find that on the 11th day of July, 1910, the Railroad Commission of Texas, after legal notice to the defendants, and after a hearing upon the matters involved, ordered the said defendants to construct, operate, and maintain a union passenger depot building in said town of Celeste; said order as it appears in the statement of facts being here referred to and incorporated as a part of this finding.
“(3) I find that the defendant Gulf, Colorado & Santa Fé Railway Company upon the date above referred to, and at this time, owns and operates a depot in said town of Celeste, which depot is old and inadequate for the reasonable needs at said place; said depot is situated so as to be reasonably convenient and accessible to the citizens of Celeste having occasion to use the same.
“(4) I find that the defendant Missouri, Kansas & Texas Railway Company of Texas owns and operates a depot within the town of Celeste situated about 440 yards, by the most practicable route, from the Gulf, Colorado & Santa Fé depot. The depot of the Missouri, Kansas & Texas is reasonably adequate and reasonably convenient and accessible to the people of Celeste.
“(5) I find that it would be feasible and practicable for the defendant railway companies to construct and operate a union passenger depot at or near the junction of their lines of railroad. Such point would be about an equal distance- from the main business portion of the town as is the present depot of the Gulf, Colorado & Santa Fé Railway Company, and would be about 100 yards nearer to the main business portion of the town than is the present depot of the Missouri, Kansas & Texas Railway Company.
“(6) I find that from four to five passengers having through tickets requiring a transfer from one of said roads to the other at said town of Celeste transfer at said point each month. I find further that each day a number of persons entering the town of Celeste over the line of one of said defendants upon local tickets leave the said town on the same day upon the line of the other defendant. Some of these, in order to make their connections, are required to go -immediately from one station to the other; and these, together with the through passengers mentioned above, would be accommodated by a union depot. However, many passengers entering the town upon one line of railway and leaving by the other have business in the town of Celeste between trains, and would not be especially accommodated by a union depot.
“(7) I find that the union depot, if constructed at the junction of the two roads, would be reasonably convenient and accessible to the peo-pjg OgIgsí©
“(8) I find that it would not be practicable for the defendant railway companies to consolidate their freight depots, and that the maintenance of a union passenger depot would require the employment of one or two additional persons to operate same, at a monthly expense of about $50 to each company, over and above the cost of the service under the present arrangement.
“(9) The construction of a union depot at the junction of the two roads would require each of the defendants to remove or rearrange some of their tracks; and that .the stopping of passenger trains at such point would probably operate at times to slightly delay trains on the other line.
“(10) T find that, under the present arrangements, the railroad companies pay the expense of transferring through passengers and mail from one depot to the other, which expense would be obviated, should a union depot be built.
“(11) I find that each of the defendant railroad companies failed and refused to obey the order of the Commission requiring the construction of a union depot; they being doubtful of the power of the Commission in the premises, and desiring to test, the validity of said order.
“(12) I find that the order of the Commission above referred to is not shown, by clear, and satisfactory evidence, to be unreasonable or unjust to the defendants or either of them.
“Conclusions of Law.
“(1) I conclude that the act of the Legislature, under which the order of the Commission was entered, is valid and constitutional.
“(2) I conclude that the Railroad Commission of Texas had the authority to enter the order requiring the defendants to construct a union depot at Celeste, and that said order is valid and binding upon the defendants, and each of them, and that the state is entitled to the writs of mandamus and mandatory injunction compelling the enforcement of said order.”

Opinion.

The first exception urged by appellants is that said order was void for the reason that the act of the Legislature upon which it was based did not impose the duty upon railway companies of constructing and maintaining union depots, but undertook to confer this, power upon the Commission itself, and was therefore in contravention of the Fourteenth Amendment to the Constitution of the United States, and of section 19, art. 1, of the Constitution of Texas. The law upon which this order is based reads as follows:

“Where two or more railroad companies reach the same city or town in this state, it shall be the duty of the Railroad Commission of Texas to ascertain whether it'is practicable and feasible for, such railroad companies to use a joint or union passenger depot; and, if the Railroad Commission finds upon investigation that it is practicable for such railroad companies to join in the construction and use of a passenger depot, then it shall give notice to said railroad companies, and, after investigation and public hearing, may require the construction and maintenance of such union passenger depot by the railroad companies entering any such city or town: Provided, that it shall appear to the Railroad Commission that the construction and maintenance of such joint or union passenger depot are just and reasonable to the railroad companies involved, and demanded by the public interest. The Railroad Commission may specify the requirements of such union depot as to kind and character; and said Railroad Commission may apportion the cost of constructing and maintaining the same to each railroad company in cases where the interested railroad companies cannot themselves agree. Failure upon the part of any railroad company to observe and obey the orders of the Railroad Commission, issued in compliance with the preceding article, shall subject such railroad company to the fines and penalties prescribed by law for failure to obey the lawful requirements, orders, judgments and decrees made by the Railroad Commission of Texas.” Articles 6695 and 6696 of the Revised Statutes of 1911.

See, also, Gen. Laws 31st Legis. 1909, p. 399.

With reference to said insistence it is sufficient to say that the question is no longer an open one in this state; it having been determined adversely to appellants’ contention by this court in the case of State of Texas v. St. Louis Southwestern Railway Co. of Texas, 165 S. W. 491, in an opinion rendered May 21, 1913, not yet officially reported, in which a writ of error was denied by the Supreme Court of this state on December 10, 1913, in which opinion Mr. Justice Jenkins, in discussing this question, says:

“We think a reasonable paraphrase of this act is that, when two or more railroads reach the same town, they shall be required to construct and maintain a union depot of the kind and character suitable to the needs of the station and demanded by the public interest, if the erection of such depot is practicable and feasible and just and reasonable to the railroads; and the existence or nonexistence of such facts shall be determined by the Railroad Commission. It is not left to the Commission to enact tne law requiring railroads to build union depots, as appellees contend. The Legislature has done that. It is only left to the Commission to ascertain the existence of the facts upon which said law becomes applicable. Had the Legislature enacted that union depots should be built wherever the facts above set out existed, without naming any tribunal to determine their existence, any one having the requisite interest in the subject-matter could, by suit in the district court, have compelled the erection of such depot upon proof of the existence of such facts. Is the law any less valid because it leaves the determination of these facts, in the first instance, to a commission of able and experienced men, rather than to a court? Is the Railroad Commission less capable of determining the existence or nonexistence of these facts than a judge or jury? Ought railroad companies be heard to complain that the ascertainment of these facts is referred in the first instance to such a commission, when they are given the right of appeal to a district court? We must answer these questions in the negative.”

And after discussing and quoting . with approval both from Locke’s Appeal, 72 Pa. 491, 13 Am. Rep. 716, and Moers v. City of Reading, 9 Harris (21 Pa.) 188, and Slack v. Railroad Co., 13 B. Mon. (Ky.) 25, concludes by saying:

“We have no doubt as to tbe constitutionality of tbe law requiring railroads to build union depots at sucb places and of sucb character as the Railroad Gommission shall find necessary for the accommodation of the public, when it shall also have found the other facts required by the statute; but, if any doubt existed on this subject, it would be our duty to resolve it in favor of the statute. Courts should not hold laws unconstitutional, unless they are clearly so. Petterson v. Commissioners, 24 Tex. Civ. App. 42, 57 S. W. 1002. The power of the courts to nullify a law enacted by the lawmaking department of the government is one that should be exercised with great caution, especially so in matters pertaining to governmental policies, the public health, and public utilities.”

Without undertaking to add further reasons to those given in said opinion, we overrule the first assignment presenting this question.

As to the second question raised, we differ with appellants in their contention that the statute above quoted deprives or tends to deprive them of their property without due process of law, or that it denies to them the equal protection of the law, within the meaning of the fourteenth amendment of the Constitution of the United States, or of section 19, art. 1, of our own Constitution, because before any action can be taken by the Commission, after determining that it is practicable and feasible for such railroad companies to use a joint or union passenger depot, it is made incumbent upon it to give notice to such companies, after which follows an investigation and public hearing, before any order can be made by the Commission requiring the construction of such depot. As well said by the Attorney General in his brief:

“In this instance the notice was given in due time and form to appellants, the matter was duly set down for public hearing by the Railroad Commission, and the appellants both appeared, answered, and contested the issuance of the order by argument and the presentation of evidence; these facts appealing in the face of the order. There was certainly no denial of due process or of equal protection of the law up to this point. The order having been made and promulgated, the appellants had the right, under the provisions of articles 6657 and 6658, R. ¡3. 1911, to bring their suit in any court of competent jurisdiction in Travis county, state or federal. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 395 [14 Sup. Ct. 1047, 38 L. Ed. 1014]. This they did not choose to do. They simply neglected and refused to comply with the order. Thereupon this suit was instituted, by the state to enforce the order. The suit having been instituted, the appellants thereupon filed their several- answers contesting by allegation, as they had a legal right to do under the terms of articles 6695 and 6696, as construed by this court in the case of State of Texas v. St. Louis Southwestern Railway Co. of Texas, supra, not only the authority of the commission to make the order, but also every fact upon which the order rested for reasonableness. The case was tried as an original action, and the matters of fact were traversed de novo, in the district court, and appellants were allowed to present by pleading, proof, and argument every defense, both of law and fact, which they had or desired to present. After a full and complete presentation of the issues, the questions of law and of fact were by the trial court resolved against them; from the judgment of the district court they had and exercised the right of appeal, as in other cases. They have not been denied any right of procedure, but, on the contrary, they were accorded and exercised every right which the law gives to any citizen by its judicial machinery. It is apparent at a glance, therefore, that no objection can be leveled at the judgment because of any departure from the forms of the law.”

For the reasons stated, we overrule appellants’ contention. See T. & N. O. Ry. Co. et al. v. Sabine Tram Co., 121 S. W. 256; Reagan v. Farmers’ Loan & Trust Co., supra; Railway Co. v. Minnesota, 134 U. S. 458, 10 Sup. Ct. 462, 702, 33 L. Ed. 970.

* We do not think there is any merit in appellants’ insistence that the act in question invested the Commission with power, at their option, to enforce or not enforce the statute. It merely placed upon the Commission the duty of ascertaining whether or not such facts exist at any particular place as would authorize it to act. Statutes similar in principle have been upheld by the courts of our own state. See M., K. & T. Ry. Co. v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681; Baldacchi v. Goodlet, 145 S. W. 325; Arnold v. State, 71 Tex. 239, 9 S. W. 120; Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108; State v. Wood, 110 Ind. 82, 10 N. E. 639; Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655. The question at issue is entirely dissimilar, we think, to that presented by the facts in the case of Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 96 Am. St. Rep. 821, wherein a law was declared unconstitutional which required agents of railway companies to stamp tickets before they could be used, making it a penal offense for a passenger to use such ticket without being stamped. Besides, if this case could be held in point, it would not be applicable here, since no penalty was imposed by the judgment for violation of the order of the Commission. We do not mean to hold by this suggestion, however, that a court could not impose the penalty denounced by statute against companies for a willful refusal to comply with a valid order of the Commission in this respect, nor that this act is invalid for the reason stated.

It is urged by demurrer that the order was too vague and indefinite to be complied with, in that it did not designate the location of such depot, and failed to state the kind and character of building or structure required. We think it is unquestionably true that the Commission under this statute had the right to determine for itself the location, as well as the character and kind of depot that should be erected; but it was permissible, we think, for it to leave these matters of detail open to appellants, for the reason that these questions might be best determined by them. Their- common interests would cause them, it seems to us, to select some point for the location of such depot where their own, as well as the public, convenience would be best subserved. In addition to this, the order itself required appellants, within 30 days from the date thereof, to report to it the kind and character of building they expected to erect, together with plans and specifications thereof, subject to its approval, by which we think they were, by implication at least, required to report the location thereof as well. But, be this, as it may, we are inclined to the opinion that they have no right now to object to such order on account of its failure to designate a location, because they made no such objection when the matter was pending before the Gommission; but, on the contrary, it is shown by their pleadings that they never intended to comply therewith unless compelled to do so by force of law. Hence the failure of the Commission in this respect did not influence their action, for which reason, under the circumstances, they must be held, we think, to have waived their right to object on this ground.

By the twelfth assignment it is insisted that the court erred in rendering judgment requiring defendants to submit plans and specifications to the Railroad Gommission of Texas for a joint depot at Celeste, Tex., because tlie court is without power to require the defendants to submit plans and' specifications to the Railroad Commission of Texas for such a.joint depot at Celeste, Tex., and in fact had no authority to render any judgment herein, except to award the writ of mandamus requiring the defendants herein to construct a joint depot at Celeste, Tex. If the Commission, in the first instance, as we have held, had the right to make the order requiring appellants to submit plans and specifications, which it is shown they refused to do, then it seems to us that the power should rest somewhere to require the appellants to submit such plans and specifications before undertaking to erect a depot, because, if they were not required to do so, then they might construct a depot at said point that would subserve neither the public interest nor be satisfactory to the Commission, which alone has the right to determine its adequacy. It seems to us that it was for the interest of appellants that such order should be made, so that they might know in advance whether the building to be erected would meet the approval of the Commission. We think the court had the' right to make the order and overrule this assignment.'

Believing that the order of the Commission above referred to has not been shown, by clear and satisfactory evidence, to be unreasonable or unjust to appellants, or either of them, we overrule all of the assignments complaining that the same was unjust and unreasonable to the companies involved, and not demanded by the public interest.

The remaining assignments, after due consideration, are regarded as without merit, and are overruled.

Finding no error in the judgment of the trial court, the same is in all things affirmed.

Affirmed.