author: BROOKE, J.

text:
    HUBBELL, SLACK & CO. v. FARMERS’ UNION COTTON CO. et al.

    (No. 233.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 14, 1917.
    Rehearing Denied June 27, 1917.)
    1. GARNISHMENT <&wkey;228 — RIGHT 03? PLAINTIFF IN GARNISHMENT — SUCCESSION TO RIGHTS oe Original Defendant.
    Garnishment cannot confer on plaintiff in garnishment any higher right than that of defendant in the original suit.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 433, 434.]
    2. Carriers <&wkey;58 — Bill of Lading — Transfer-Payment of Draft Attached.
    Where a firm had bales of cotton in its possession evidenced by shipper’s order bills of lading issued by different railroads to it, and it indorsed the bills, and, with drafts on the purchasers of the cotton from it attached, delivered them to a bank, which gave credit to the firm’s account on its book for the aggregate of the drafts, the bank became vested with title to the cotton either as owner or pledgee.
    [Ed.. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-199.]
    3. Pledges <&wkey;2G — Redelivery of Possession-Statute.
    While the pledgee ordinarily loses his lien by redelivery to the pledgor, the principle does not apply to delivery to the pledgor for a special purpose.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 64-66.]
    Appeal from District Court, Harris County; W. J. Howard, Special Judge.
    Suit by Hubbeli,. Slack & Co. against A. M. Liddell & Co., wherein garnishment was sued out against the Farmers’ Union Cotton Company and the First State Bank & Trust Company of Wichita Falls, and the First National Bank of Wichita Falls intervened. From a judgment in the garnishment suit that plaintiff take nothing, and that the First National Bank of Wichita Falls recover of the garnishee an amount of money, plaintiff appeals.
    Affirmed.
    G. P. Dougherty, of Houston, for appellant. Carrigan, Montgomery & Britain, of Wichita Falls, -for appellees.

      Application for writ of error pending in Supreme Court.

   BROOKE, J.

It is admitted that the following is a correct statement of the nature and result of the suit:

“This suit was originally filed on June 23, 1914, by Hubbeli, Slack & Co., appellant, in the Fifty-Fifth district court of Harris county, against A. M. Liddell & Co., to recover a debt, and was numbered 63447 on the docket of said court, and on July 16, 1914, and in the same case, a garnishment was sued out and on the same day served upon the Farmers’ Union Cotton Company, a garnishee; that on October 22, 1915, Hubbeli, Slack & Co., appellant herein, recovered a judgment against A. M. Liddell & Co. for the sum of $3,314.13, and costs, amounting to $17.65, and the garnishment proceeding styled Hubbeli, Slack & Co. v. Farmers’ Union Cotton Company, garnishee, and numbered 63447A on the-docket of said court, was transferred to Sixty-First district court of Harris county. After the institution of the garnishment proceeding against the Farmers’ Union Cotton Company, the First State Bank & Trust Company of Wichita Falls, Tex., intervened, claiming title to the proceeds of the sale of the cotton which had been placed in the possession of the garnishee by A. M. Liddell & Co. On the trial of the case the First National Bank of Wichita Falls, Tex., intervened, claiming all the right or interest of the First State Bank & Trust Company of Wichita Falls by assignment since the institution of the suit. This case was tried on March 1, 1916, and judgment was rendered on said date adjudging that appellant (plaintiff), Hubbeli, Slack & Co. take nothing by its suit, and that the intervener, First National Bank of - Wichita Falls have and recover of the garnishee, Union Cotton Company, the sum of $3,939.55, being the amount of the fund in its hands, the same being the proceeds of the sale of cotton placed in its hands by A. M. Liddell & Co., and that Hub-bell, Slack & Co., pay all costs of this suit. To which judgment the appellant duly excepted, and in open court gave notice of appeal, and has perfected its appeal to this court, and has assigned errors.”

The case was tried before the court, and the following are the court’s findings of fact and conclusions of law:

“Findings of Fact.
“(1) I find that the original suit to which this suit is ancillary, styled Hubbell, Slack & Co. v. A. M. Liddell & Co., and numbered 63447, was filed in the Fifty-Fifth distinct court of Harris county, Tex., on June 23, 1914, by Hubbeli, Slack & Co., plaintiff herein, against A. M. Liddell & Co., a firm composed of A. M. Liddell and W. B. Swift, to recover a debt.
“(2) I find that after the institution of said original suit — style and number given in the preceding finding — to wit, on July 16, 1914, the plaintiff in said suit filed an affidavit and bond in garnishment in due form against the garnishee, Farmers’ Union Cotton Company, and on the 16-th day of July, 1914, a writ of garnishment in regular term was issued in said cause, and was served upon the garnishee, Farmers’ Union Cotton Company, which said garnishment proceeding was and is ancillary to the original suit, styled Hubbell, Slack & Co. v. A. M. Liddell & Co., and numbered 63447 'on the docket of the Fifty-Fifth district court of Harris county, and the said garnishment suit in which these findings are filed is styled Hubbell, Slack & Co. v. Farmers’ Union Cotton Company, and numbered 63447A on the docket of the Fifty-Fifth district court of Harris county.
“(3) I find that in said original suit in the said Fifty-Fifth district court, styled Hubbell, Slack & Co. v. A. M. Liddell & Co., and numbered 63447, the plaintiff, Hubbell, Slack & Co., on October 22, 1915, recovered a valid judgment against A. M. Liddell and W. B. Swift for the sum of $3,314.13, and all costs of suit', amounting to the further sum of $17.65, and I further find that said judgment is still unsatisfied, and I further find that after said final judgment was rendered in said original suit that the garnishment suit ancillary to it, styled Hubbell, Slack & Co. v. Farmers’ Union Cotton Company, and numbered 63447A, was transferred from the Fifty-Fifth district court to the ,Sixty-First district court of Harris county.
“(4) T find that on or about the 23d day of May, 1914, A. M. Liddell & Co. had in their possession 64 bales of cotton, and this' possession was evidenced by bills, of lading issued by different railroad companies to A. M. Lid-dell & Co., and it appears from these bills of lading that said A. M. Liddell & Co. were owners and consignors of the cotton, and the cot'ton was shipped to Houston, Tex., and was billed to ‘shipper’s order,’ and each and all of these bills of lading were indorsed by A. M. Liddell & Co., consignees of said ciptton, in blank; and I further find that the said A. M. Liddell & Co. had made contracts to sell parts of this cotton to several different parties in Houston, among which was the plaintiff, Hub-bell, Slack & Co., the several contracts aggregating the entire 64 bales of cotton, and 1 further find that the said A. M. Liddell & Co. drew a draft on each purchaser for the contract price of the cotton sold to each respective purchaser, with a bill of lading attached describing the cotton sold, one of which drafts was drawn on said Hubbell, Slack & Co., and all of the drafts were indorsed in blank by A. M. Liddell & Co., the drawers of said drafts, tmd all of these drafts with the bills of lading attached were delivered to the First State Bank & Trust Company of Wichita Falls, Tex., on or about this date, and by' agreement between the said A. Ml Liddell & Co. and said bank the said bank gave credit to the account of. A. M. Liddell & Co. upon its books for the full amount of the aggregate of said drafts, less the amount of exchange on said drafts, and the said amount ,so credited to the account of the said A. M. Liddell & Co. on the books of said bank was afterwards, prior to June 17, 1914, checked out of said bank, by the said A. M. Liddell & Co. The said First State Bank & Trust Company sent the said drafts with the bills of lading attached to its correspondent, South Texas Commercial National Bank, at Houston, Tex., and said drafts with the bills of lading attached were presented to the respective purchasers or parties who had contracted to buy said cotton, including Hubbell, Slack & Co., and the said parties refused to pay the drafts and refused to accept the cotton, and that Hubbell, Slack & Co. did not notice or have any knowledge in whose favor said drafts were drawn, indorsed, or presented. The drafts and bills of lading were returned to the First State Bank & Trust Company of Wichita Falls, Tex. Soon. after this the bills of lading were sent by the last-named bank to the South Texas Commercial National Bank of Houston, Tex., with instructions to deliver the bills of lading, showing the ownership and possession of the said 64 bales of cotton to the said A. M. Liddell & Co. or A. M. Liddell, of the last-named firm. The .South Texas Commercial National .Bank, on or about the 17th day of June, 1914, delivered to the said A. M. Liddell, of the firm of A. M. Liddell & Co., or Swift & Liddell, the bills of lading for said bales of cotton, and took from said Liddell his receipt therefor reading as follows:
“ ‘Houston, Texas, June 17, 1914.
“ ‘Received, in trust from South Texas Commercial National Bank, Houston, Texas, bills of lading for sixty-four (64) bales of cotton," which were attached to drafts of A. M. Liddell & Co. on Hubbell, Slack & Co. and Gohlman, Lester & Co., total $4,243.23. Description of drafts and Bs/L on the' back of this receipt, for the purpose of sale of cotton covered by these, bills of lading, the proceeds of which we promise to deposit in the above named bank for the credit of the First State Bank & Trust Company of Wichita Falls, Texas, as soon as sold. [Signed] Swift & Liddell,
“ ‘By A. M. Liddell.’
“On the reverse side of the paper upon which the above receipt was written appeared a memorandum description of the various bills of lading representing said cotton. The said A. M. Liddell, acting for Swift & Liddell or Liddell & Co., then delivered said bills of lading to the g'arnishee, Farmers’ Union Cotton Company, acting by and through its duly authorized representative, E. A. Calvin, and at the time of such delivery the said Calvin signed a receipt for the same underneath the memorandum description of said bills of lading written on the reverse side of the receipt above set out, which Liddell had given to the South Texas Commercial National Bank, such reverse side, after the receipt of the garnishee had been affixed thereto, then reading as follows:
wichita Falls, Texas.
■wioMta Valley Ry. Co. B/L 6/11/14 #d 83
covering 2 B/C Lidd 917 lbs.
Kave
Consigned to S/O A. M. Liddell & Co.
M. K. & T. Ry. Co. of Texas B/L 6/H/14 D93
Covering 11 B/C Lidd 5056 Lns.
Kave
Consigned to S/O (A. M. Liddell & Co.)
Draft on Gohlman, Lester & Co. $520.00
M., K. & T. Ry. Co. B/L 6/9/14 D 355
Covering 11 B/C Lidd 3,794 Lbs. Greenville, Texas.
Root
“ 1 “ Mood 539 "
Draft on Hubbell, Slack & Co. $751.28
S/O A. M. Liddell & Co.
Texas Midland Railroad B/L 6/4/14 D 142
21 B/C Lidd 11,936 lbs.
Mood Greenville, Texas.
13 “ Addo 7,553 “
4 “ Root 2,396 “
Consigned to S/O (A. M. Liddell & Co.)
Draft on Hubbell, Slack & Co. $2,904.33
M., K. & T. Ry. Co. of Texas B/L 6/6/14 D 148
1 B/C Lidd 483 lbs. Dallas, Texas.
Mood
Consigned to S/O’ (A. M. Liddell & Co.)'
Draft Hubbell, Slack & Co. $67.62.
All of the above shipper’s order, bills of lading notify Gohlman, Lester & Co. and Hubbell, Slack & Co., Houston, Texas; destination Houston, Texas.
Received from Swift & Liddell the above described property, proceeds to be deposited in the South Texas Commercial National Bank.
[Signed] Farmers’ Union Cotton Co.,
By E. A. Calvin.
“At the time the said A. M. Liddell delivered said bills of lading to the Farmers’ Union Cotton Company and took said receipt therefor, he made and entered into a contract with said Farmers’ Union Cotton Company for and on behalf of the said A. M. Liddell & Co., or Swift & Liddell, to take possession of, store, hándle and sell said 64 bales o'f cotton, as commission merchants, and soon after the delivery of the said bills of lading by the said A. M. Liddell to the garnishee herein the said garnishee took actual possession of said 64 bales of cotton and stored the same in its warehouse at Houston, Tex. At the time the said E. A. Calvin, acting for the garnishee, Farmers’ Union Cotton Company, received said bills of lading and signed said memorandum receipt therefor above referred to and set out, he did not read the receipt of Liddell to the South Texas Commercial National Bank on the reverse side of said paper, and had no knowledge or intimation thereof, or that such a receipt had been given, and had no notice thereof, except such constructive notice, if any, as the law might impute to him, or charge him with, by reason of the fact that the receipt which he gave to Swift & Liddell was written upon the reverse side of the receipt which Liddell had theretofore given to the bank for said bills of lading, without the said Calvin actually reading or knowing anything about what was on the reverse side thereof, or that such a receipt had been given.
“(5) I further find that the said Farmers’ Union Cotton Company, after receiving the said bills of lading from the said A. M. Liddell & Co., and after actually receiving said cotton and storing the same, made sales of said cotton under and in accordance with its said contract made with A. M. Liddell & Co., by and through A. M. Liddell, acting on behalf of the said firm, on or about June 17, 1914, and I further find that 53 bales of said cotton were sold on or about July 9, 1914, and that on July 22, 1914, 11 bales of said cotton were sold, and that on December 17, 1914, the said garnishee sold the remainder of said cotton, and that these sales were made while the cotton was in the actual possession of the said garnishee, under its said contract with A. M. Liddell & C'o., and that the purchase price of said 64 bales of cotton in the aggregate, after deducting the freight, broker’s commission, and other expenses, amounted to the sum of $3,939.55, and that the said garnishee, by agreement of parties, deposited this amount of money as a special deposit in and with the Houston National Exchange Bank of Houston, Tex., under an agreement made and entered by and between the parties to this litigation and the said bank that the amount of said deposit should be paid to the party to whom 'the title of said funds might be adjudged in this litigation.
“(6) I find that the plaintiff, Hubbell, Slack & Co. had no knowledge or notice at the time the writ of garnishment in this cause was serve.d on the garnishee, Farmers’ Union Cotton Company, .that the intervener, First State Bank & Trust Company of Wichita Falls, Tex., had any claim to or lien upon the 64 bales of cotton, or the proceeds of the sale of the cotton placed in the possession of the said garnishee by A. M. Liddell & Co.
“(7) I find that the garnishee, Farmers’ Union Cotton Company, received the 64 bales of cotton from A. M. Liddell & Co., believing the cotton to be the property of A. M. Liddell & Co., and held the cotton as the property of A. M. Liddell & Co. and held the proceeds of the sale of said cotton after said cotton was sold, as the property of the said A. M. Liddell & Co., and the said Farmers’ Union Cotton Company did not have any notice or knowledge at the time of receiving the said cotton that the First State Bank & Trust Company or any other person, other than A. Mi. Liddell & Co. had any claim to or lien upon said cotton, unless some constructive notice was imputed or charged to said garnishee, Farmers’ Union Cotton Company, by reason of the facts heretofore found in the fourth finding of fact herein in reference to the signing of the receipt given by E. A. Calvin to A. M. Liddell for .said bill of lading.
"(8) I find that after said 64 bales of cotton had been received by the garnishee, Farmers’ Union Cotton Company, and before a sale of said cotton had been made the said garnishee, Farmers’ Union Cotton Company, was informed by the said intervener; First State Bank & Trust Company of Wichita Falls, of its claim to said cotton by reason of its ownership of the draft and bills of lading attached, but I find that the said garnishee continued to hold said cotton, and, after its sale, the proceeds of the sale of said cotton, as the property of A. M. Liddell & Co.
“(9) I find that A. M. Liddell & Co. and Swift & Liddell are different names for and referring to the same copartnership, composed of A. M. Liddell and W. B. Swift, and I further find that during the pendency of this suit the First State Bank & Trust Company of Wichita Falls has transferred and assigned its interest in the subject-matter herein to the First National Bank of Wichita Falls.
“Conclusions of Law.
“(1) X conclude from the facts found that the First State Bank & Trust Company of Wichita Falls, Tex., had a valid lien upon the 64 bales of cotton above referred to to secure the money paid by it to A. M. Liddell & Co. upon the drafts attached to the bills of lading for said cotton, and that its assignee, the First National Bank of Wichita Falls, intervener herein, is entitled to the proceeds of the sale of said cotton now in the hands of the garnishee.
“(2) I conclude from the facts found that the service of the writ of garnishment upon the garnishee, Farmers’ Union Cotton Company, did not fix a lien upon said cotton, or the proceeds of the sale thereof, superior to the lien existing in favor of the First State Bank & Trust Company of Wichita Falls, securing the money which it had advanced to A. Mi. Liddell & Co. upon the drafts and bills of lading attached thereto.
“(3) I conclude that judgment should be rendered herein in favor of the First National Bank of Wichita Falls for the fund in the hands of the garnishee.”

The assignments are grouped, and will be considered as one, being as follows:

(a) “The court erred in its first conclusion of law, which said conclusion of law is as follows, to wit: ‘I conclude from the facts found that the service of the writ of garnishment upon the garnishee, Farmers’ Union Cotton Company, did not fix a lien upon said cotton, or the proceeds of the sale thereof, superior to the lien existing in favor of the First State Bank & Trust Company of Wichita Falls securing the money which it had advanced to A. M. Liddell & Co. upon the drafts and bills of lading attached thereto.’
(b) “The trial court erred in its second conclusion of law, which said conclusion of law is as follows, to wit: T conclude from the facts found that the service of the writ of garnishment upon the garnishee, Farmers’ Union Cotton Company, did not fix a lien upon said cotton, or the proceeds of the sale thereof, superior to lien existing in favor of the First State Bank & Trust Company of Wichita Falls securing the money which it had advanced to A. M. Liddell & Co. upon' the drafts and bills of lading attached thereto.’ ”
(c) “The trial court erred in its third conclusion of law, which is as follows, to wit: T conclude that judgment should be rendered herein in favor of the First National Bank of Wichita Falls for the fund in the hands of the garnishee.’ ”
(d) “The trial court erred in rendering judgment herein in favor of the intervener, the First National Bank of Wichita IPalls, Tex., and against the plaintiff, Hubbell, Slack & Co.”
(e) “The trial court erred in failing and refusing to render judgment in favor of the plaintiff, Hubbell, Slack & Co., and against the defendant garnishee, Farmers’ Union Cotton Company, for the sum of $3,331.78, the same being the amount of the judgment recovered by the plaintiff, Hubbell, Slack & Co., against the defendants W. B. Swift and A. M. Liddell in the Fifty-Fifth district court of Harris county, Tex., on October 22, 1915, in cause No. 63447, styled Hubbell, Slack & Co. v. A. M. Liddell & Co. on the docket of said court, and costs therein incurred, for the reason that by the undisputed proof in the case and by the facts found the legal title to and ownership of said cotton was in the said A. M. Liddell & Co., and that the intervener, First State Bank & Trust Company' of Wichita Falls, Tex., held possession of said cotton as security for the phyment of the drafts attached to the bills of lading representing said cotton, and that the said First State Bank & Trust Company of Wichita Falls, Tex., delivered the possession of said cotton to A. M. Liddell & Co., and that a part of said cotton and the proceeds of the sale of said cotton were in the possession of said A. M. Liddell & Co. at the time of the issuance and service of the said writ of garnishment, and by the service of the said writ of garnishment the plaintiff, Hubbell, Slack & Co., acquired a lien upon said cotton and the proceeds of the sale of said cotton superior to claim of the said First State Bank & Trust Company of Wichita Falls, Tex., and that the said First State Bank & Trust Company of Wichita Falls, Tex., by failure to hold actual continuous possession of said cotton pledged to it, and that as the cotton pledged to the said First State Bank & Trust Company of Wichita Falls, Tex., was not followed by an actual and continued change of possession of the said cotton the service of the writ of garnishment upon the Farmers’ Union Cotton Company, who held possession of said cotton for A. M. Liddell & Co., had the effect to fix a superior lien upon the cotton and the proceeds of the sale of the cotton in its hands.”

The assignments will be considered on two propositions, viz.:

(1) It is contended that the property of the debtor in the hands of the garnishee after the service of a writ of garnishment is in custodia legis, as the garnishee becomes the receiver of the court and holds the property subject to the orders of the court, and failure to account by the garnishee for the property in. his hands at the time of the service of the writ of garnishment can be punished as for contempt, and he is liable to the creditor as for conversion of security.

(2) Garnishment, it is claimed, is a mode of attachment, and the service of a writ of garnishment upon a person having property of the debtor in his possession creates a lien upon such property superior to that of an unrecorded mortgage or that of a pledgee who has not held continuous possession of the pledge and has permitted the pledgor to retain possession of the property pledged. •

These propositions are strenuously urged by the appellant. On the contrary, it is urged by appellee that the service of a writ of garnishment has the effect only of substituting the garnishing creditor for the defendant in the original suit as to any debts, claims, or property belonging to such defendant, and does not give plaintiff in garnishment any higher right or claim than that of the defendant in the original suit, and in no manner affects the claims or rights of third persons, and that the service of a writ of garnishment is not an attachment of any particular property, and the plaintiff in garnishment is not such a lien creditor as gives him any superior right to any property in the hands of the garnishee as against any claimant or lienholder whose rights attached prior to the service of the garnishment.

We think it is the settled law of this state that a. garnishment cannot, under any circumstances, confer upon the plaintiff in garnishment any higher right than the defendant. in the original suit, or, in other words, that the plaintiff in garnishment succeeds to the rights of the original defendant against the garnishee, and that he can have no greater rights as against the garnishee than the original defendant had. In the case of Bhoenix Ins. Oo. v. Willis, 70 Tex. 12, 6 S. W. 825, 8 Am. St. Rep. 506, and as laid down in the case of Burns v. Lowe, 161 S. W. 942:

“Appellants, as garnishing creditors, could occupy no better position with reference to the fund than did their debtor at the time of the service of the writ.”

In the case of Moore v. U. S. F. & G. Co., 52 Tex. Civ. App. 286, 113 S. W. 947, it is said:

“The garnishment operated merely to substitute the plaintiff in garnishment pro tanto to the rights of Moore & Bridgman.”

In 20 Cyc. p. 1062, the following language is used:

“By unanimous opinion the general rule is that a person who has acquired a lien upon the property of the principal defendant in the hands of the garnishee, or upon the debts due from such garnishee, occupies no better position as regards subsisting adverse claims to such property or debt than does a purchaser or assignee with notice; and a plaintiff causing a writ of garnishment to be served upon the debtor of the principal defendant acquires a lien upon the property of or debts due to the principal defendant subject to prior valid rights and liens against such property or debt.”

This text is supported by the authorities, and approved in the case of Bank v. Setzer, 185 8. W. 596. In Hall v. Nunn Electric Co., 183 S. W. 13, the following language is used:

“It is a fundamental rule that the plaintiff in garnishment steps into the shoes of his judgment debtor; if nothing is owing to the latter, the former * * * is entitled to nothing.”

In the case of Focke v. Blum, 82 Tex. 437, 17 S. W. 770, the court announced that the attaching creditor could acquire no greater right in or to the property than that possessed by the debtor at the time of the levy. This .was said with reference to a garnishment creditor, the court treating garnishment as a species of attachment. See, also, Smith v. T. & P. Ry. Co., 39 S. W. 969.

We believe that the contentions of appellee, as last set out,' are sound in principle, and that they announce the correct rule, as laid down by the courts of this state.

It is contended that the cotton referred to in the court’s findings of fact was the property, at the time of its sale, of the First State Bank & Trust Company of Wichita Falls, and tlie garnishee held the same and sold it for them, and the proceeds of sale, it is contended, was the property of said bank, and not subject to garnishment as the property of Swift & Liddell, or Liddell & Co.

In the case of McMahan v. Bank, 160 S. W. 403, and which seems to be largely identical with the instant case; the court uses this language:

“The facts, briefly stated, are: D. V.- Lid-dell & Co., cotton buyers of some sort, called ‘scalpers,’ were dealing in Shawnee, Old., and vicinity. They approached the State National Bank of Shawnee and obtained a verbal agreement from that bank to honor drafts drawn upon them with bills of lading for cotton attached ; such drafts to be accepted by them, and the cotton to be held by the bank and sold jointly by it and the Liddells, from the proceeds of which sales the bank was to be reimbursed. The Liddells had no account with the bank at any time, but had executed to it a note and mortgage on personal property to secure possible deficiencies in the cotton sales.
“In pursuance of this agreement the Liddells’ agents bought cotton from various persons who drew drafts for the price of the cotton. These drafts were drawn upon the Liddells in favor of either the shippers or the banks through which they were drawn. In due course of business they came to the State .National Bank of Shawnee with bills of lading attached. They' were accepted by the Liddells and paid by the bank. The bills of lading were all to shippers’ order, and the bills of lading and the drafts were all held by the bank subject to its agreement with the Liddells.
“Prior to October 17, 1910, J. C. Liddell, Jr., one of the parties to the contract, made an agreement to sell, or did sell, the cotton in question to B. W. McMahan & Oo., appellants in this case, without the knowledge or cons'ent of the bank. On October 17th J. C. Liddell, Jr., went to the bank and, at his request was given possession of the bills of lading ‘so that he might pay the freight and obtain compress receipts for the cotton.’ He promised to perform this service and bring the compress receipts back to the bank at once. The bills of lading were given to him for that purpose and his receipt taken therefor. He took them to the raili-oad company and obtained the compress receipts, but, instead of returning with them to the bank, he delivered the receipts to McMahan & Oo., who, by virtue of the receipts, took possession of the cotton. McMahan & Oo., in buying the cotton, acted in good faith, without knowledge of the theft of the bills of lading and compress receipts by Liddell, and they paid full value for the cotton. The bank did not discover the theft of the bills of lading until about October 25th, when upon inquiry it discovered that the cotton had been sold to McMahan & Oo., and that it was then in Galveston in custody of the -Mallory Steamship Company, consigned by McMa-han & Co. to parties in New York. Judgment was rendered by the court below in favor of the bank, and this appeal is prosecuted by McMahan & Oo.
“Appellants’ first assignment of error insists that McMahan & Oo. purchased the cotton in open market, from a regular dealer, at a full price, in the usual course of trade, and without notice of any right, title, or interest of the hank, and that therefore it took a good title to the cotton 'with the right to possession. If this is a case in which the doctrine of innocent purchaser could apply, appellants’ contention is unanswerable. But is it such a case? The relation of the parties to the transaction and the character of the property involved are important matters to consider in resolving the question. The first points to be determined are: Was the title to the cotton ever vested in the appellee bank, and, if so, was the possession by Liddell of the bills of lading and compress receipts in the manner in which he acquired them indicia of title which would vest his vendee, an innocent purchaser for value, ■ with a title superior to that of the bank? In answering these questions it becomes necessary to determine the nature of a bill of lading in its relation to commercial usages. It is well settled that a bill of lading is only quasi negotiable, being the representative of personal property, and not of money. The transfer of a bill of lading has only the effect of transferring the title to, and the constructive possession of, the very goods for which the bill is a representative. The bills of lading in this case were issued to the owners of the cotton and were drawn to ‘shipper’s order,’ and consigned to Liddell & Oo. The term ‘shipper’s order’ is well understood in commercial usage, and means that the title remains in the shipper until he has ordered a delivery of the goods. The bills of lading in question were indorsed in blank by the shippers and attached by them to drafts drawn upon Liddell & Oo. for the price of the cotton. In the drafts either the shippers themselves or the banks through which they were transmitted were made payees. The drafts came to the appellee bank in due course of business, were accepted by the Liddells, and paid by appellee. The cotton was never at any time actually or constructively in the custody or control of the Liddells. No vestige of title or interest in the cotton ever vested in the Liddells. The only way they could have acquired an interest in the cotton was to pay the drafts held by appellee, when under their contract the bills of lading must have been turned over to them. Dows v. National Bank of Milwaukee, 91 U. S. 637, 23 L. Ed. 214. Liddell & Co. did not pay the drafts, and no title ever vested in them unless the delivery of the bills of lading to J. O. Liddell, Jr., under the circumstances in this case was sufficient to vest them with title.
“It is too well settled for discussion that a bank which pays a draft attached to a shipper’s order bill of lading, indorsed in blank, becomes the owner of the goods i-epresented thereby. Such ownership invests it with title to, and constructive possession of, the goods, and actual delivery to it is unnecessary to perfect the proprietorship. Therefore, under the facts as above stated, the appellee bank was at the time the bills of lading were taken by J. O. Liddell, Jr., the owner and in possession of the 100 bales of cotton in question. Adoue v. Seeligson, 54 Tex. 593; Dows v. National Bank of Milwaukee, supra; Bank v. Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Campbell v. Alford, 57 Tex. 159. The many cases cited and discussed by the above cases render further citations here unnecessary.
“Cotton compress receipts in the course of such business as is here revealed are simply warehouse receipts, and the legal status of the warehouse receipt is identical with that of a bill of lading in so far as its sale or transfer carries the constructive delivery and ownership of the goods for which it stands. Clay v. Gage, 1 Tex. Civ. App. 661, 20 S. W. 948; 40 Cyc. 407, and cases cited; Stamford Compress Co. v. Farmers’ & Merchants’ Bank [105 Tex. 44], 144 S. W. 1132 [Ann. Cas. 1914D, 1298], and eases there cited.
“If, then, the appellee bank was the legal owner and holder of the cotton on October 17, 1910, and up to that time Liddell & Co. never had any right or title thereto, was the delivery of the bills of lading by the bank to J. C. Liddell, Jr., on that day such a delivery or transfer of the title to, or possession of, the cotton as to vest in an innocent purchaser from him a good title against the bank? This question can only be answered in the negative. As has been shown, a bill of lading is not like a bill of exchange, carrying to the purchaser in good faith, by mere indorsement and delivery, a title good against the world. The transfer of the bill of lading delivers but the goods, and passes to the purchaser no better title than the seller had. The sale of found or stolen property, or property obtained by fraud, vests no better title because the sale is made through the means of an instrument called a bill of lading. A bill of lading is but a receipt for specific goods, and when Liddell sold to McMahan & Oo. he sold them the cotton of which he was the tortious, if not felonious possessor, and they took the title he had and no more. Stollenwerck v. Thacher, 115 Mass. 224; Shaw v. Merchants’ & National Bank, 101 U. S. 557, 25 L. Ed. 892; 6 Gyc. 418 to 424, and cases there cited; Bank v. Luttgen, 29 Minn. 363, 13 N. W. 151; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998. The first assignment of error is overruled, and what has been said disposes also of assignments Nos. 2, 3, 4, 4%, 5, and 7, and they are overruled.
“But appellants contend, in their sixth assignment of error, that the bank was, by its own negligence in trusting the bills of lading to the custody of J. C. Liddell, Jr., e'stopped to deny his right to sell. They admit that they did not assert the defense of estoppel, but contend that their plea of innocent purchaser for value, considered with the petition of the plaintiff, was sufficient to raise the issue in their behalf, although not specifically set up in their pleading. They contend that the appellee in its original petition alleged its own negligence when it stated that it ‘intrusted the bills of lading to J. O. Liddell, Jr.,’ and that to complete, their defense of estoppel they had but to show under their plea that McMahan & Co. had bought from Liddell in good faith, for value, and without notice.
“Estoppel is an affirmative defense, and under our practice, from the earliest date, it had been held that an affirmative defense must be specially pleaded. In the case of Smith v. Sherwood, 2 Tex. 461, our Supreme Court said it should be known by this time that all affirmative defenses should be specially pleaded. Keeble v. Black, 4 Tex. 69; Scarbrough v. Alcorn [74 Tex. 358, 12 S. W. 72]; Barker v. Abbott, 2 Tex. Civ. App. 147, 21 S. W. 72; Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865; Hollifield v. Landrum, 31 Tex. Civ. App. 195, 71 S. W. 979; Casey v. Treadwell, 32 Tex. Civ. App. 480, 74 S. W. 791; Tex. Produce Co. v. Turner (Sup.) 27 S. W. 583; Stanger v. Dorsey, 22 Tex. Civ. App. 573, 55 S. W. 129; Anderson v. Nuckles, 34 S. W. 184. ' The trial court held that the allegations of the pleadings were not sufficient to raise the issue of estoppel, and we must concur in that holding. However, if it should be conceded that the pleadings of the plaintiff can in this case be construed to supply an allegation omitted from the appellant’s intervention, it must still be held that neither such allegation nor the facts was sufficient to show negligence of the bank in such manner as to estop it from denying the authority of Liddell to sell the cotton.
“The sixth assignment of error is therefore overruled. This also disposes of assignments Nos. 9 and 10 and the third proposition under assignments Nos. 3, 4, 4%, 7, 9, and 10.
“Appellants’ eighth assignment of error and the fifth proposition under their eleventh assignment of error are overruled. They present questions as to the sufficiency of the evidence to support the findings of the trial court. There is evidence to support these findings, and it is not therefore within the province of this court to reverse them.
“We find no error in the judgment of the lower court, and the judgment is affirmed.”

As above stated, the ease seems to be almost directly in point, and we believe the court was correct in its holding. See, also, Adoue v. Seeligson, 54 Tex. 594; Daws v. National Bank, 91 U. S. 637, 23 L. Ed. 214; Bank v. Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Campbell v. Alford, 57 Tex. 159 ; American Thresherman Co. v. De Tamble Motors Co., 154 Wis. 366, 141 N. W. 210, 49 L. R. A. 644, and notes, where all the authorities are collected; Shaw v. Merchants’ Bank, 101 U. S. 557, 25 L. Ed. 892; Coker v. First National Bank, 112 Ga. 71, 37 S. E. 122; 31 Cyc. 818; Hood v. Bank, 12 Ala. App. 511, 67 South. 721.

It is further contended by the appellee that the First State Bank & Trust Company, having had the shipping order bills of lading indorsed and delivered it, and having paid the drafts drawn on Huibibell, Slack & Co. and Gohlman, Lester & Co., became the owner of and was actually in possession of the cotton, and when payment of the drafts was refused had the right to handle and sell the cotton for its own account, and it did not lose its rights to the cotton or its proceeds by delivering the same to the garnishee in order that the cotton might be sold and the proceeds paid to the bank’s agent and correspondent at Houston, Tex. See McMahan v. Bank, supra.

It is further contended that under the facts found by the lower court the Farmers’ Union Cotton Company, the garnishee, had the cotton in its possession as the agent or factor of the First State Bank & Trust Company, under an express contract to sell same and pay the proceeds to the bank’s agent and correspondent, and the proceeds of the cotton when sold belonged to the bank, and was not subject to garnishment for the debt of Lid-dell & Co. or Swift & Liddell.

We believe that the bank had the title to the cotton. The facts as found by the court are that Liddell & Co. shipped the cotton and procured shipper’s order bill of lading, and indorsed and delivered same to the bank, and at the same time drew drafts on the proposed purchasers of the cotton in favor of the bank, and that the bank paid Liddell & Co. the amount of said drafts.' The purchasers refused to pay the drafts and take the cotton. This transaction had the effect of vesting the title to the cotton in the bank, either as owner or pledgee. In Adoue v. Seeligson, supra, the opinion being toy Chief Justice Moore, it is said:

“To maintain their claim, it devolved upon them to show such title as precluded appellees from its seizure and sale under the attachment. This they claim they did by proof of a valid and bona fide transfer and delivery of it as a pledge by Arbuckle to themselves prior to the date of the attachment. And this presents the real, and indeed the only, question in the case. For although appellees seem in one part of their brief to insist that, if appellants had proved that the cotton had been bona fide transferred to them as a mortgage or pledge for money advanced to Ar-buckle by them, still they did not have such title as would prevent its seizure and sale under attachment or execution, but all that could be claimed for them would be that such seizure and sale would be subject to their prior lien. But this we understand them is when they are speaking of a pledge in a general sense, as in-dieating merely a lien or security for a debt, and not when it is accompanied with the complete and absolute transfer of the title and possession of the pledge. For it seems to be fully admitted in other parts of their brief, and certainly cannot be successfully denied, that in such case the contingent interest of the previous owner can no more be reached by attachment or execution than if the transfer had been in every respect absolute and unconditional.”

In the case of Guaranty State Bank of Timpson v. W. D. Cleveland & Sons, 195 S. W. 939, recently decided by this court, and not yet officially published, the case of Mercantile Banking Company v. Landa, 33 S. W. 681, was quoted as conveying the opinion of this court, as follows:

“Appellant’s title to the property was based upon an indorsement to it of the hill of lading, and a delivery thereof, which it claimed was made prior to the levy of the writ of attachment. Appellee joined issue on this proposition, and in effect asserted that the bill of lading was not indorsed until after the levy of the attachment. Appellee, in addition, sought to show by evidence of custom that the title to the property remained in the -shipper or consignee; and as the property was shipped by Harris, and in effect consigned to him in the bill of lading issued by the railway company, he was the owner. The issue raised by the appellant was: Did it have a title by reason of the indorsement of the bill of lading? And, under the case as presented by its pleadings, if it did not have title by virtue of that fact, then the appellee should recover, and evidence of custom would not aid him in this respect, and the court should not have presented such an issue. The law gives to a transfer by indorsement of a bill of lading, accompanied by a delivery of it, the effect of passing title to the property shipped. Railway Co. v. Heidenheimer, 82 Tex. 199, 17 S. W. 608 [27 Am. St. Hep. 861]. A title thus acquired is as effectual in law as it would be if based upon an express and completed contract of sale.”

From what has been said, we are of opinion that the chattel mortgage statute has no application in this case, that the statute is but declaratorJ of the common law that a pledgee ordinarily loses his lien by redelivering possession to the pledgor, hut this principle does not apply to the delivery to the pledgor for a special purpose.

We are of opinion that the conclusion reached by the court was correct. We have examined the record carefully, and, so believing, the cause is hr all things affirmed.
      <&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    BUCKHOLTS STATE BANK v. THALLMAN et al.
    (No. 5782.)
    (Court of Civil Appeals of Texas. Austin.
    May 16, 1917.
    Rehearing Denied June 27, 1917.)
    1.Pleading <&wkey;93(l) — Inconsistent Pleas.
    In Texas plaintiff is permitted, in different counts in his petition, to present inconsistent pleas, asserting his right in one plea to recover on the facts therein stated, and to claim in another plea that, if the facts are not as previously alleged, but as stated in such other plea, he is entitled to relief against another defendant.
    [Ed. Note. — For other cases, see Pleading, Cent Dig. §§ 189,190.]
    2. Shebiffs and Constables &wkey;> 168(1) — Liability— Pleading — Statutes.
    Rev. St. 1911, art. 3776, provides that, should an officer fail or refuse to levy execution when he might have done so, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, etc., to be recovered on motion before the court from which the execution issued. Article 3777 provides that, should an officer neglect or refuse to return any execution, or make a false return, he and his sureties shall be liable for the full amount of the debt, etc., to be recovered as provided in article 3776. Plaintiff’s petition alleged facts entitling him to the relief afforded by article 3777 as against a sheriff and the sureties on his official bond, but the pleading was not denominated a motion, and also sought to recover against a person other than the sheriff and his sureties on the theory that he had conspired with and induced the sheriff to commit the wrongful acts charged. Sel A, that plaintiff was entitled to the relief afforded by the. statute, since, if a plea states a cause of action or a defense, the fact that it may be given a wrong name by the pleader does not nullify its effect.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 398, 399.]
    3. Shebiffs and Constables &wkey;>168(l) — Failube to Sell Property — Pleading.
    Plaintiff’s petition, which alleged that 'defendant sheriff, at the instigation of another defendant, delivered to the latter property sold to plaintiff on execution, failed and refused to sell property, and that the latter, through his conspiracy with the sheriff, obtained the property, and appropriated it to his own use, stated a cause of action against the sheriff and the othei defendant for a conversion.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 398, 399.]
    4. Venue <&wkey;45 — 'Transfer to Other County-Action for Conversion.
    The fact that a petition for conversion does not show that defendants, other than a sheriff and one other, participated in or are liable for the conversion, affords no reason for transferring the ease to the county in which defendants reside, even if it would justify sustaining an exception for misjoinder of causes of action.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 67, 74.]
    5. Action &wkey;>45(l) — Misjoinder of Causes of Action.
    The doctrine of misjoinder of causes of action rests on the consideration that in most instances such procedure would consume too much time, confuse the jury, and hinder, instead of promote, the proper administration of the law.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 378-383, 385-402.]
    6. Action <&wkey;45(l) — Misjoinder of Causes of Action.
    When plaintiff’s petition indicates on its face that his joinder of causes of action is not calculated to consume too much time and confuse the jury, the .alternative cause of action being sustainable by the same testimony as will sustain the other, and when the case may be submitted to the jury on special issues, the rule against misjoinder of causes of action should not be enforced.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 378-383, 385-402.]
    7. Venue <&wkey;80 — Jurisdiction of Court after Change — Cancellation of Credit-Re,taxing.
    In an action against a sheriff, the sureties on his bond, and a third person for failure to deliver property sold on execution, conspiracy, conversion, etc., the court of another county than that of the county in which execution was issued, the case having been transferred to it, had no power to cancel a credit on plaintiff’s judgment, or to retax costs taxed against plaintiff in the sheriff’s favor.
    [Ed. Note. — -For other cases, see Venue, Cent. Dig. §§ 141, 142.]
    8. Venue <&wkey;72 — Misjoinder oe Actions — Plea oe Privilege.
    When defendants raised the question of mis-joinder of causes of action in connection with their plea of privilege to he sued in another county, if the trial coux-t was of opinion there was misjoinder, it should have required plaintiff to elect which cause of action it would stand on, and determined the question of venue after the election had been made; if plaintiff had declined to elect, it would have been pi*oper to have sustained the demui-rer presenting the question of misjoinder, and to have dismissed the suit.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 127.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by the Buckholts State Bank against O. Thallman and others. From a judgment for defendants, plaintiff appeals.
    Reversed, and cause remanded for further proceedings.
    Morrison & Lewis, of Cameron, for appellant. Geo. Powell, of San Antonio, for ap-pellee O. Thallman. W. S. Ethridge and H. C. Duffy, both of Bandera, and Henderson, Kidd & Gillis, of Cameron, for other appel-lees.
   KEY, C. J.

The following statement of the nature and result of this suit is copied from appellant’s brief:

“This action was begun by the appellant, as plaintiff, by a petition filed in the district court of Milam county on the 13th day of September, 1915, in which said petition the plaintiff brought this action against R. S. Smith, as the sheriff of Bandera county, against the defendants I-Iaby, Short, Davenport, Lewis, and Cox, as the sureties on the sheriff’s official bond, and also against O. Thallman, who was made a defendant on charges that he had conspired and confederated with the sheriff in inducing and procuring the sheriff to make a false return on an execution which had been placed in the hands of the shei-iff for service, and which the sheriff had failed in many particulars in performing his duty as required by law' under that pi-ocess, all of the above-named defendants i-esiding in Ban-dera county, Tex., and the action was also brought against I. B. Williams and A. J. Slone, the said Slone being a resident of Milam county, Tex., and Williams, a resident of Bandera county, Tex.
“It was alleged that in the district court of Milam county, Tex., on the 26th day of May, 1914, the appellant had recovered a judgment in cause No. 6872 against the said defendants Williams and Slone for the sum of $2,974.11, with 10 per cent, interest from that date, and which amount was secured by a mortgage lien on certain personal property, and that the prop-ei-ty was found to be situated in Bandera county, and that after the sale of said property the judgment was ci-edited with $188.39, and that' on the 15th day of May, 1915, there was due on the judgment $2,7S5.72, and on that date the appellant caused an execution to be issued out of said Milam county judgment, and placed in the hands of the defendant Smith, the sheriff of Bandera county, for execution, and that the plaintiff had duly indemnified the said sheriff, and the shei-iff had accepted such bond of indemnity, and that the said sheriff levied the execution on about 80 head of horses and mules, and that Smith, as such sheriff, sold a part of said property levied on for the sum of $2,100, and that it was bought in by the appellant, and that the said sheriff had unlawfully conspired with Thallman and delivered all of the property levied on, as well as that bought by the appellant, into the possession of said Thallman, and that the sheriff returned the execution to the district court of Milam county, with an indorsement on. the same that he had sold the pi-opex-ty levied on to the appellant for the sum of $2,100, and had retui-ned the order of sale with such in-dorsement to the district clerk of Milam county, and that the same had been recorded showing a credit on said judgment in such sum above stated. Plaintiff made the further averments:
“ ‘Plaintiff further avers that the said defendant sheriff made a return upon said execution showing that the property hereinbefore mentioned was sold to the plaintiff for the sum of $2,-100, and entered the same as a credit on plaintiff’s said judgment, and that said return has been recorded in the execution x-ecords of this coui-t, thereby showing that the said defendants I. B. Williams and A. J. Slone, the said defendants in execution, and against whom said before-mentioned judgment was rendered, .ai-e entitled to a credit of $2,100 on said judgment, and that the plaintiff, after the i-endition of said judgment and befoi-e the issuance of said before-mentioned execution, had caused and procured said judgment to be duly filed and recorded and abstracted in the judgment abstract record of Milam county, Tex., and the same then and there became and constituted a lien upon all of the real estate then owned by the said defendants I. B. Williams and A. J. Slone situated in Milam county, Tex., and that plaintiff is entitled to have said judgment recorded in the abstract of judgment records in any other county in the state of Texas so long as said judgment remains unpaid and unsatisfied, and that the entering of said return and credit on said execution and judgment by said defendant sheriff showing that said judgment was entitled to a credit of $2,100 has had the effect to release so much of said judgment, when in truth and in fact the said sheriff had sold said property to the plaintiff, but in fact had unlawfully delivered the same to the said defendant O. Thall-man, and. when said sheriff so entered said credit on said judgment he then and there well knew that he had pretended to sell said property and had delivered the same-to the said defendant Thallman, and that the plaintiff had not received anything of value for said credit so entered by him on said judgment, and thereby plaintiff has been defeated of the recovery of said property and of the fruits of its said execution, and said shei-iff then and thereby caused a release of the plaintiff’s lien upon any land or real estate that might be held or owned by the said defendants in execution, I. B. Williams- and A. J. Slone, and real property of said A. J. Slone has been so released, and the same was situated in Milam county, Tex., and was subject to plaintiff’s said judgment lien, and since the enti-y of said credit on said judgment by said sheriff said Slone has sold and conveyed said property, and the same was then and there of the value of $500, and the plaintiff is informed and charges that it has so lost its said lien on said i-eal estate, and all of which was well known to. the said sheriff at the time he made such l-etum upon said execution, and that the plaintiff cannot now cause and procure the issuance of other and additional executions upon said judgment for the payment of said $2,100 so long as such amount shall be entered as a credit by said sheriff’s return on said before-mentioned execution, and shall be allowed to stand, and then and thereby the said defendant sheriff and his sureties and said O. Thallman became bound and liable and are now bound and liable to pay the plaintiff its damages so occasioned by their wrongful acts, as hereinbefore shown. * * *
“ ‘Plaintiff further avers that, independent and beyond all of the other wrongs and injuries hereinbefore complained of, and that in addition thereto, plaintiff shows to the court that at the time the said sheriff made said levy under said execution, as aforesaid, he levied upon five two year old mules of the value of $100 each and two brown mare mules of the value of $160 each and one dun horse of the value of $100, aggregating in value the sum of $900, and that without reason, excuse, explanation, or justification the said sheriff unlawfully failed and refused to sell any of the property described in this paragraph of this petition, and that his refusal to sell the same or to deliver it to the plaintiff after it had been levied upon, and after said sheriff had duly advertised the same for sale, constituted a wrong and injury to the plaintiff, and it caused and occasioned the plaintiff to thereby lose the value of said eight head of horses and mules, which were then and there of the -aggregate value of $900, as hereinbefore shown. And in this connection the plaintiff avers and charges that the said O. Thallman conspired and confederated with said sheriff and attempted to induce and did induce the said sheriff to so fail and refuse to sell said eight head of horses and mules under and by virtue o'f the plaintiff’s said execution and the sheriff’s said levy, and that said Thallman either obtained the said horses and mules or part of the same and appropriated them to his own use and benefit, or confederated and conspired with said sheriff to refuse to sell and deliver them to the plaintiff, and that then and thereby the said sheriff and his said sureties and the said defendant Thallman each and all became and are now liable and bound to pay to plaintiff the value of said eight head of horses and mules, and in this connection the plaintiff further avers that the said defendants Williams and Slone, so far as plaintiff is informed and believes, are now each utterly and notoriously insolvent, and do not own any property at this time out of which plaintiff can make its said judgment or any part thereof, and in this connection it prays judgment against the said sheriff and his said sureties, especially for the value of the said eight head of horses and mules which the said sheriff so failed and refused to sell.
“ ‘Wherefore plaintiff prays that each of the defendants be cited as the law directs to answer this petition, and that upon a final trial:
“ ‘(1) That it have judgment against said sheriff and his said sureties and said Thallman for the conversion of said property and for the value of the same.
“ ‘Or in the alternative,
“ ‘(2) That it have judgment against said sheriff and his said sureties and said Thallman for the amount of plaintiff’s debt because of the incomplete and untrue return so made and indorsed on said execution.
“ ‘Or in the alternative,
“ ‘(3) That it have judgment against said sheriff and said Thallman for the title and possession of all of said property so delivered to said Thallman and for the establishment and foreclosure of its execution lien thereon.
“ ‘Or in the alternative,
“ ‘(4) That it have judgment against said sheriff retaxing and releasing plaintiff from the payment of said costs and charges now demanded against it.
“ ‘Or in the alternative,
“ ‘(5) That it have judgment against said sheriff and his said sureties, and against said defendants Williams and Slone, for a cancellation and extinguishment of all of said pretended credit so entered upon said judgment and a restoration of said original judgment to the amount and status of the same as it existed before the entry of said credit.
. “ ‘And -in the event it shall be held that plaintiff is not entitled to any one or all of the special prayers for relief, as before shown, then in addition thereto and in despite thereof, it prays that it have all such other and further orders, judgments, and decrees as may be meet and proper to do full justice to the plaintiff, and to which the plaintiff may show itself entitled, whether specially prayed for herein or not, and which may be necessary or requisite to give the plaintiff full relief, in law or equity, for all of the complaints and injuries herein shown, to which it may show itself entitled, and for all of which it will, as in duty bound, ever pray.’
“On the 18th day of October, 1915, the defendant sheriff and his sureties filed a general and certain special exceptions in the nature of a plea of privilege, and in the same instrument interposed a plea of privilege, and the defendant O. Thallman filed a separate plea of privilege on the 16th day of October, 1915, and at the same time, subject to his plea of privilege, filed a general and special answer to the plaintiff’s cause of action.
“On the 22d day of November the pleas of privilege were continued without prejudice, and on the 11th day of May, 1916, at the next term of the court, the general and special demurrers and ideas of privilege filed by the sheriff and his sureties, and also the plea of privilege filed by the defendant O. Thallman, were each and all sustained, and the ease ordered transferred to the district court of Bandera county as to all parties.
“Neither of the defendants Williams or Slone filed any answer, and it was ordered that the judgment transferring the case should remain in abeyance pending Iho apneal, and the appellant duly excepted to the judgment of the court in sustaining the demurrers and the pleas of privilege, and-in transferring the case to the district court of Bandera county, and gave notice of appeal to this court, and 60 days was allowed after the adjournment of the court in which to file a statement of the facts and bills of exceptions. and both, of which were filed within the time allowed.
“The appellant requested the district judge to file conclusions of law and fact, which he did, and to which the appellant excepted.
“The appellant also took a bill of exceptions to the action of the court and to the conclusions of law and fact, which bill of exceptions was allowed and approved within the time provided in the order.
“The appellant then filed its assignments of error in the court below, and also filed its super-sedeas . appeal bond, and has brought the case into this court for correction and revision, and relies for the reversal of the judgment upon the errors of the trial court as set forth in the following assignments of error.”

In addition to the foregoing, it is proper to state that the demurrers and exceptions contained in the answers filed by the defendants presented only two questions, which were: First, that the plaintiff’s petition showed on its face that the court had no jurisdiction over the persons of the defendants; and, second, that in like manner it disclosed a mis-joinder of causes of action. And the trial court in its findings of fact and conclusions of law sustained both of those contentions, and made an order transferring the case to the district court of Bandera county, and that action of the court is assigned as error.

Opinion.

In this state, while by Legislative enactment we have adopted the common law when not inconsistent with our own judicial system and rules of procedure, still by'force of statutory enactments and decisions of our court of last resort, there are many differences as to our methods of administering the law, as compared with those of the common law. We have no separate chancery courts or equity dockets, and we administer both law and equity in the same proceeding, and-with less distinction as to pleading. Our statute regulating pleading dispenses with common-law forms of action; and the question of how many different rights or causes of action may be litigated in the same suit may in many instances be properly left to the sound discretion of the trial court. In fact it is a common-law maxim that the law abhors a multiplicity of suits, and it is the judicial policy of this state to determine in one suit as many rights as may be done consistently with orderly and efficient procedure.

Accordingly we permit a plaintiff in different counts in his petition to present inconsistent pleas, asserting his right in one plea to recover upon the facts therein stated, and to claim in another plea that, if the facts are not as therein alleged, and are as stated in such other plea, he is entitled to relief against another defendant.

With these general observations we turn to the case in hand and begin its consideration by quoting two articles of the statutory law of this state:

Article 3776 reads as follows:

“Should an officer fail or refuse to levy upon or sell any property justly liable to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days’ previous notice thereof being given to said ofiBcer and his sureties.”

Article 3777 reads as follows:

“S-hould an officer neglect or refuse to return any execution as required by law, or should he make a false return thereon, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt,interest and costs, to be recovered as provided in the preceding article.”

If the facts alleged in the petition now under consideration are true (and they are to be so considered in determining this appeal), it seems clear to us that appellant was entitled to the relief afforded by the statute just quoted as against the defendant Smith and the sureties upon his official bond; and by the terms of the statute he was required to seek that relief in the court below, and perhaps was not entitled to it at the hands of any other court. But counsel for appellee make the contention in this court that it is apparent from the face of the petition under consideration that appellant asserted no right and sought no relief under the statute, but sought to recover against the sheriff and his sureties and the defendant Thallman upon a common-law right of action. True it is the plaintiff did not denominate its pleading a “motion,” and it is also true that it sought to recover against Thallman upon the theory that he ha.d conspired with and induced Smith, the sheriff, to commit the wrongful acts charged in the petition. But these facts do not preclude the plaintiff’s right to recover under the statute, at least as against the sheriff and the sureties on his official bond. While our practice act and rules prescribed by the Supreme Court designate certain pleas by certain names, still, if a plea states a cause of action or a defense, the fact that it may be given a wrong name by the pleader does not nullify the effect of the plea. The courts should, and as a general rule do, look to the substance, and not the form, in determining the merits of a particular written instrument, including pleadings filed in a court; and it has, in substance, so been held by this court in construing the statute referred to. Murray v. Evans, 26 Tex. Civ. App. 331, 60 S. W. 786; Nowotny v. Grona, 44 Tex. Civ. App. 325, 98 S. W. 416. In the cases just cited this court held that a proceeding under the statute constituted an ordinary civil suit.

We are also of the opinion that the petition stated a cause of action as against the sheriff and the defendant Thallman for a conversion of some .of the property, and the fact that it does not show that the other defendants participated in or are liable for such conversion cannot afford any reason for transferring the case to the county in which the defendants reside, even if it would justify sustaining an exception for misjoinder of causes of action, which we do not hold.

The doctrine of misjoinder of causes of action does not rest upon the fact that the court is without jurisdiction to try separate and distinct causes of action against two or more defendants, but upon the consideration that in most instances such method of procedure would be calculated to consume too much time, and to confuse the jury, and thereby hinder instead of promote the proper administration of the law.

But when the plaintiff’s petition indicates upon its face that the reasons referred to do not exist in the particular case, and when, as is permissible in this state, the case may be submitted to the jury upon special issues, we see no reason why the rule referred to should be enforced.

In the case at bar much of the testimony tending to support the charge of conversion would also tend to support the charge of statutory misconduct alleged against the sheriff, for the purpose of showing the statutory liability of himself and the sureties upon his bond.

The alternative cause of action asserted against the defendants Williams and Slone for the cancellation of the credit upon the plaintiff’s judgment against them is based upon the failure by the plaintiff to sustain either of its causes of action alleged against the other defendants, and would require no additional testimony. Hence we conclude that the plaintiff’s petition does not disclose a misjoinder of causes of action. But, if mistaken as to that, we would still be compelled' to hold that the trial court committed reversible error when it made the order changing the venue of the suit.

The court to which the case was transferred would have no power to grant some of the alternative relief sought by the plaintiff. We refer to that portion of the petition wherein the plaintiff seeks alternative relief against Williams and Slone by canceling a credit entered upon the plaintiff’s judgment against them, and wherein it asks for alternative relief against the sheriff, Smith, for the purpose of retaxing the costs taxed against the plaintiff in his favor in the court below. The district court of Bandera county, to which the court below ordered the case transferred, would have no power to grant the relief referred to.

In fact, when the defendants raised the question of misjoinder of causes of action in connection with their plea of privilege to be sued in another county, if the trial court was of the opinion that there was such misjoinder, it seems to us that the proper course would have been to require the plaintiff to elect which cause of action it would stand upon, and then determine the question of venue after such election had been made. And if the plaintiff had declined to make such election, then it would have been proper to sustain the demurrer presenting the question of misjoinder and dismiss the suit. However, we do not think there was any improper joinder of causes or parties.

For the reasons stated, the judgment of the trial court must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.
      ®=5>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: JENKINS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. GRIMES.
    (No. 5755.)

    (Court of Civil Appeals of Texas. Austin.
    June 6, 1917.
    Rehearing Denied July 2, 1917.)
    1. Action <&wkey;38(2) — Alternative Statements — Joinder of Causes.
    Since it is permissible to sue upon different causes in the alternative upon separate counts, where separate causes arising under different state of facts are alleged in the alternative in separate counts, there is no joinder of causes.
    [Ed. Note. — For other cases, see Action, Cent. Dig. § 549.]
    2. Appeal and Error <&wkey;1039 (3) — Harmless Error — Alternative Causes — Joinder of Causes.
    Where an injured servant alleged that his master was negligent and liable under both the federal and the state law, and that a connecting carrier was negligent under both federal and state law, neither could complain of misjoinder where it ultimately appeared that the master was liable under state law and the other defendant was liable under the federal law; the liability being for a joint tort.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4076.]
    3. Master and Servant <&wkey;88(6) — Injuries to Servant oe Other Road — Safe Place to Work — Duties.
    Where two intersecting railroads erected an interlocking plant for their joint use, the one knowing that servants of the other would use the plant was under the same duty to keep it in a reasonably safe condition for the other’s em-ployés as was the other itself.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 149.]
    4. Evidence <&wkey;506 — Opinion — Subject-Matter — Safe Place to Work.
    As it is a question for the jury whether the place at which plaintiff was injured was properly and safely maintained, testimony of experts that the place was in safe condition was properly excluded.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2309.]
    5. Trial &wkey;*350(6) — Submission of Issues.
    In a servant’s action for injuries, submission of issue whether other roads maintained interlocking plants in the same condition was not necessary; negligence of other employers being no excuse.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 830.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Action by William S. Grimes against the Missouri, Kansas & Texas Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellant Houston & T. C. R. R. Co. C. C. Huff, and J. M. Chambers, both of Dallas, and Wilcox, Graves & Metcalfe, of Georgetown, for appellant Missouri, K. & T. Ry. Co. of Texas. J. W. Parker, of Houston, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

On April 5, 1915, appellee was engaged as a freight conductor in the employ of the Missouri, Kansas & Texas Railway Company of Texas, at Elgin, Tex. Both the Katy Railroad and appellee were at the time engaged in interstate commerce. The tracks of the Missouri, Kansas & Texas Railway Company of Texas, which will hereinafter be called the “Katy,” and the tracks of the Houston & Texas Central Railroad Company, which will hereinafter, be called the “Central,” cross each other at Elgin at right angles, and said companies have jointly erected and jointly maintain an interlocking plant at said place. Said plant consists in part of a tower and certain pipes and rods running from the same to each of said roadbeds.

On the day mentioned appellee was attempting to board a caboose on the Katy, and.in.doing so stepped upon some rods on ttie side of the Katy track, and' within a few feet of the Central track, and within the right of. way of both of said roads. His foot hung in the rods, by reason of which, he was thrown down, and the train passed over his foot, and he was injured as alleged. These rods connect the tower with the track. ' They were uncovered with a space beneath, and ap-XJellee alleged that permitting them to be in that. condition was negligence upon the part of both the Katy and the Central. He alleged that both of said roads were engaged at the time in intrastate commerce. In another count he alleged that each of said roads at said time was engaged in interstate commerce.

In addition to general denial and general demurrer, the Katy alleged that at the time of said injury it and appellee were engaged in interstate commerce, and that its liability, if any, was determined by the federal laws. It alleged that the interlocking plant, rods, and other appliances used in connection therewith were constructed and placed in the most improved and up-to-date manner, that the rods upon which appellee stepped were used in connection with and by the Central Railroad, and that the Katy was not responsible for the manner and operation of the same. It also pleaded contributory negligence and assumed risk.

The Central, in addition to general denial and general demurrer, alleged that the appel-lee was in the service of the Katy Railroad, and not an employé of the Central, and that if he was upon the track of the Central he was not there as an invitee, but as a mere licensee, and that it owed him no duty to furnish a safe place in which to work for the Katy.

The court overruled all demurrers, and exceptions were reserved to such action of the court. At the close of the evidence appellants moved the court to require appellee to elect as to whether he sought recovery under the federal or state law, which motion was overruled; also to require appellee to elect as to which of the defendants he would further prosecute his.suit,’ which motion was also overruled.

The case was submitted to the jury upon special issues as follows:

“Special Issue No. 1: Was the open space with the rods in it a defect in the railway track or roadbed of the Missouri, Kansas & Texas Railway Company of Texas; that is to say, did the maintenance of such open space with rods in it expose the employés of the Missouri, Kansas & Texas Railway Company of Texas, while performing duties similar to those being performed by plaintiff, at the time of his alleged injury, to unnecessary danger of injury in the performance of such duties? You will answer this question ‘Yes’ or ‘No.’ ”
The jury answered “Yes.”
“Special Issue No. 2: Did the plaintiff in attempting to mount the caboose get his foot caught in the said rods, and was thereby thrown down or caused to fall and be injured by being struck by the cars in the train. Yon will answer this question ‘Yes’ or ‘No.’ ”
The jury answered “Yes.”
“Special Issue No. 3: Were the defendants, or either of them, guilty of negligence in maintaining such open space with the rods in it under the circumstances? You will answer this question ‘Yes’ or ‘No.’ ”
The jury answered “Yes.”
“Special Issue No. 4; If you have answered the preceding question in the affirmative, then answer this question: Were both of the defendants guilty of negligence in the respect submitted to you, or was only one (if either) guilty of such negligence? If you find that both of the defendants were guilty of negligence in the respect submitted to you, you will answer this question by saying ‘Both.’ - If you find that one of the defendants was guilty of negligence' in the respect submitted to you in the preceding question, then you will name such defendant.” The jury answered “Both.”
“Special Issue No. 5: If you do not answer questions Nos. 1, 2, and 3 in the affirmative, you will not consider of your verdict any further, but report your action to the court at once. If, however, yon answer said special issues Nos. 1, 2, and 3 in the affirmative, then you will answer this question: Was such defect and negligence, if any, the proximate cause of the defendant’s injury, if any? You will answer this question ‘Yes’ or ‘No.! ”
The jury answered “Yes.”
“Special Issue No. 6: If you do not answer question No. 5 in the affirmative, then you will not further consider of your verdict, but report your action to the court at once. However, if you have answered said question No. 5 in the affirmative, then answer this, question: Was the plaintiff guilty of contributory negligence in attempting to mount the caboose at the time and place and under the circumstances he did, or in stepping upon the said rods? You will answer this question ‘Yes’ or ‘No.’ ”
The jury answered “No.”
“Special Issue No. 7: Did the plaintiff know, or in the exercise of ordinary care in the performance of his duty would he have known, of the existence of the space with the rods in it and of the danger, if there was danger, to his footing should he step upon the said rods in mounting the caboose? You will answer this question ‘Yes’ or ‘No.’ ”
The jury answered “No.”
“If you answer the preceding question in the affirmative, then you will not consider of your verdict any further, but report your action to the court at once.
“Special Issue No. 8: If, however, you do not answer said special issue No. 7 in the affirmative, and if you find that the plaintiff was not guilty of contributory negligence, then you will consider the damages to which the plaintiff is entitled, and will assess the same at such sum of money as, if paid in hand at this time, would fairly and justly compensate him for the injuries alleged by him in his petition, and which you find from the evidence he sustained, if any, and in assessing such damages, if any, you may take into consideration the wages lost by him on account of such injuries from the time thereof up to this time, if any, the mental and physical pain suffered by him and that will be suffered by him in the future on account thereof, if any, and any impairment of his ability to earn money in the future on account thereof, if any. And you will state such amount,- if any, as your answer to this question.”
The jury answered “$6,500.”
“Special Issue No. 9: And in this connection you are instructed that, if yon find that the plaintiff was himself guilty of contributory negligence, then you are instructed that the law requires that the damages recoverable as against the defendant the Missouri, Kansas & Texas Railway Company of Texas, no damages being recoverable in such case against the Houston & Texas Central Railroad Company, shall be ditarnished in proportion to the amount of negligence attributable to plaintiff, by which is meant that, if the negligence causing the injury of the plaintiff was partly attributable to him and partly to the defendant the Missouri, Kansas & Tesas Railway Company of Texas, he cannot recover full damages, but only a proportional amount, bearing the same proportion to the full amount as the negligence attributable to said defendant the Missouri, Kansas & Texas Railway Company of Texas bears to the entire negligence attributable to it and plaintiff, stating such amount, if any, as your answer to this question.”

In connection with the special issues the court gave proper definitions as to “negligence,” “contributory negligence,” “assumed risk,” and “proximate cause.”

The findings of the jury are sustained by the evidence, for which reason we adopt them as our findings of fact.

Opinion.

Appellants insist that there is a misjoinder of both parties and causes of action in this case. Our views as to our system of pleading were concisely expressed by the Chief Justice of this court in the recent case of Buck-holts Bank v. Thallman, 196 S. W. 687.

The petition does not allege and the evidence does not show a joinder of different causes of action; that is to say, recovery is not sought upon both of two distinct causes of action, but recovery is sought in the alternative upon one or the other of two Gauses of action. It is permissible under our system of pleading to sue -upon different causes of action in the alternative upon separate counts. Where separate causes of action arising under a different state of facts are alleged in the alternative in separate counts, there is no joinder of causes of action. Railway Co. v. Heard, 91 S. W. 371.

In Railway Co. v. Heard, supra, if the federal law governed, the cause of action was in the legal representatives of the deceased, and the judgment belonged to the persons named in the statute. If the state law prevailed, the judgment belonged to the estate of deceased. In such case it was held necessary to allege under which law the suit was prosecuted. To the same effect is Railway Co. v. Seale, 229 U. S. 157, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156.

In AYilliams v. Robinson, 63 Tex. 580, cited by appellants, two separate and distinct conversions were alleged by different parties and recovery was sought jointly against all of them. In that case a recovery against one party would have precluded a recovery against the other, and so it was properly held that there was a misjoinder of parties defendant and of causes of action.

In Hays v. Perkins, 22 Tex. Civ. App. 200, 54 S. W. 1071, where it was held that there was a misjoinder of causes of action and parties defendant, recovery was sought jointly upon two distinct libels by different parties at different times. We do not think these cases are in point in the instant case.

The petition in the instant case alleges that both appellants were engaged in interstate commerce. If so, it shows a cause of action against both under the federal law. It also alleges in the alternative that both appellants were engaged in intrastate commerce. If this is true, both parties are liable jointly under our state law. The evidence shows that the Katy was engaged in interstate commerce, and that the Central was engaged in intrastate commerce, but the essential fact to be determined is: Were both defendants guilty of the same wrong, resulting in the same .injury to the same party? The court applied the rules of the federal law to the Katy, and the rules of the Texas law to the Central. We do not think that it can make any difference if, after each defendant has had the benefit of all the rules of law to which it is entitled, the fact is found that both are liable for a joint act of negligence.

Appellants cite in support of their contention as to misjoinder the case of Railway Co. v. Strange, 156 Ky. 439, 161 S. W. 241, in which it is stated that the federal law differs from the state law: (a) As to parties; (b) as to fellow servant; (c) as to assumed risk; (d) as to contributory negligence; and (e) as to limitation. We deem these differences immaterial in determining liability in the instant case, for the reasons: (a) This suit was brought by the only party who could havo maintained it; (b) it was not claimed that the injury was caused by a fellow servant; (e) the jury found that there was no assumed risk; (d) and that there was no contributory negligence; and (e) limitation is not pleaded.

If the findings of the jury are sustained by the evidence and no error was committed in receiving or rejecting the evidence, or in the charge of the court, we do not see why appellants should be heard to complain because one of them was guilty of negligence under one law and the other was guilty of the same negligence under another law. The essential fact alleged is that both were jointly guilty of negligence as to the same act, which resulted in the same injury at the same time to the same party.

If there was any theoretical error by reason of the fact that liability might have been different under the federal law and under the state law, practically there was no error in this case, for the reason that the facts which might have created such difference did not, as shown by the findings of the jury, arise in this case. “A judgment is not to be reversed for an error by which the plaintiff in error cannot have been prejudiced.” Railway v. Kerse, 239 U. S. 576, 36 Sup. Ct. 174, 60 L. Ed. 448, citing Greenleaf v. Birth, 5 Pet. 132-135, 8 L. Ed. 72, 73; Fidelity Co. v. Courtney, 186 U. S. 342-351, 22 Sup. Ct. 833, 46 L. Ed. 1193-1198.

Error is assigned upon the judgment of the court for the alleged reason that, the ap-pellee not being in the employ of tlie Central Railroad, be was as to it only a licensee, and it did not owe bim tbe duty to furnish bim with a safe track and roadbed for bim to work for bis employer. Tbe interlocking plant having been erected jointly by tbe Central and tbe Katy for their mutual use and benefit, and the Central knowing that tbe track of the Katy would be used in tbe manner in which it was being used at the time of the injury, it was under the same ob* ligation to maintain tbe place where the injury occurred in a safe condition for the Katy’s employés as it was as to its own em-ployés. Railway Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471.

Appellants assign error in the refusal of the court to permit the witnesses Smith, Atchison, Prewitt, and Worthington, who were shown to be experts in railroad building, to testify that they knew the condition of the track where appellee was injured at the time of such injury, and that exposing the rods in the manner shown would not constitute any defect or insufficiency in the roadbed or track of the Katy Railroad, either as affecting the operation of trains on the track of said company, or as affecting employés in the discharge of their duty in the operation of trains over said track. In other words, it was sought to prove by' these witnesses that, in their opinion, the exposure of the rods in the manner shown by the evidence did not constitute negligence. This was a fact to be found by the jury, and, there being no dispute as to the manner in which the rods were exposed, or the .condition in which the track by reason thereof was maintained, the jury were in a position to determine the fact of négligence as well as expert railroad builders, and we do not think that said testimony would have aided them in determining such fact.

From a careful examination of tbe testimony and the photographs sent up with the statement of facts, it appears to us that leaving the rods exposed in the manner they were and at the place where they were situated was so obviously dangerous and so unnecessary that no other conclusion except that of negligence could have been arrived at by the jury had said expert testimony been admitted.

In Railway Co. v. McDade, 191 U. S. 67, 24 Sup. Ct. 25, 48 L. Ed. 100, the court said:

“It is so simple a task, one so devoid of all exigencies of expense, necessity, or convenience, so free of any consideration of skill, except that of the foot rule, and so entirely destitute of any element of choice or selection, that not to make such a construction safe for the brakeman on the trains is a conviction of negligence.”

We think these observations pertinent to the instant case in the matter of leaving the rods uncovered.

It is objected that the fifth paragraph of the court’s charge is erroneous, in that it is a general charge, and that the case was submitted on special issues. And the same objection is made to the seventh paragraph of the charge. We do not think that the charge is subject to this criticism. The fifth paragraph simply informs the jury that a railroad company is liable for negligence under the federal law, and that the Katy is being tried under that law. It does not submit any hypothetical state of facts upon which a verdict might be rendered for or against the appellee. The seventh paragraph amounts to no more than á definition of negligence, and is a correct statement of the law in that regard.

Error is assigned in the refusal of the court to submit the following special issue:

“Is it usual and customary for railway operators throughout the country in constructing standard interlocker devices to leave the pipes or rods uncovered where the same pass across and under the track for as great a distance outside the rails as the pipes or rods in question were uncovered.”

We overrule this assignment of error. It is no defense to negligence that others have been negligent in like manner. The issue of negligence must depend upon the facts of the particular case, and not upon what others may or may not have done. Railway Co. v. Smith, 87 Tex. 358, 28 S. W. 520, Lawson v. Compress Co., 162 S. W. 1023.

The other assignments of error have been examined, and we have reached the conclusion that none of them show reversible error.

No error appearing of record, the judgment of the trial court is affirmed. Affirmed.
      <§=»For other oases see same topic and KEY-NTJMBSH in all Key-Numbered Digests and Indexes