author: YANTIS, J.

text:
    HERRING v. WESTERN UNION TELEGRAPH CO.
    (No. 2458.)
    (Supreme Court of Texas.
    April 19, 1916.)
    1. Telegraphs and Telephones <S=67(2)— Deliveey op Messages — Notice op Relationship.
    Where a telegraph message relates to death or sickness, notice of relationship need not be conveyed by the face of the message, but may be conveyed by oral statement to the agent of the telegraph company who received the message for transmission.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. 67(2).]
    2. Telegraphs and Telephones <g=>67(2) — .Failure to Deliver Message — Notice op Relationship.
    Whore a telegraph message relates to death or sickness, it is sufficient to put the agent of the telegraph company upon inquiry, and if he fails to make such inquiry, his principal will be charged with the information which would have been disclosed by such inquiry.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. 67(2).]
    3. Telegraphs and Telephones <§=>66(4) —
    Failure to Deliver Message — Evidence. In an action for damages for failure to deliver a telegram announcing the death of the plaintiff’s father, evidence held sufficient to charge the telegraph company with notice that a child or friend had a beneficial interest in the telegram.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63; Dec. Dig. <®=c>66(4).]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Mrs. Henry Herring against the Western Union Telegraph Company. From a judgment of the Court of Civil Appeals (146 S. W. 699), reversing a judgment of the District Court for the plaintiff, she brings error.
    Judgment of the District Court affirmed.
    B. A. Cox and J. F. Cunningham, both of Abilene, and Ramsey, Black & Ramsey, of Austin, for plaintiff in error. J. M. Wag-staff and Wagstaff & Davidson, all of Abilene, for defendant in error.
   YANTIS, J.

The plaintiff in error recovered a judgment in her favor in the district court of Taylor county, Tex., against the Western Union Telegraph Company, defendant in said suit, and the defendant in error here, for its failure to promptly deliver a telegram addressed to her husband, Henry Herring, at Roswell, N. M., which message was sent from Abilene, Tex., on the 25th day of September, 1908. The telegram in question was as follows:

“To Henry Herring, Roswell, N. M. C. B. died last night at San Antonio.
“[Signed] Mrs. O. B. Scarborough."

The prosecution of the suit terminated with Mrs. Herring suing in her own name, though the suit was begun in the name of her husband. After the suit had been filed by him, the husband and wife were divorced, and the cause of action sued upon was transferred to the wife, who prosecuted the suit alone.

It was alleged that the telegram was sent for the benefit of Mrs. Henry Herring, who was the daughter of Mrs. C. B. 'Scarborough; that it reached the Western Union office at Roswell, N. M., in about 25 minutes after it was sent, but that it was not delivered to Henry Herring for about 25 hours after it was sent, though both Herring and his wife, it is alleged, were well known in Roswell, and that Herring was employed within two blocks of the Western Union Office at that place. By the undisputed evidence it appears that when the message was finally delivered to Henry Herring at Roswell, it read as follows:

“Henry Arring, Roswell, New Mexico. C. B. died last night at San "Antonio.
“[Signed] Mrs. 0. B. Scarborough.”

It was alleged that the Telegraph Company was guilty of negligence in changing the name “Henry Herring” to the name “Henry Arring,” and that such negligence, or some other negligence of the Telegraph Company unknown to Mrs. Herring, was the proximate cause of the delay in its delivery, and of the damage sued for. The telegram was written in the office of- the telegraph company at Abilene, by one Ed Menielle, at the request of Mrs. C. B. Scarborough. Menielle testified, in relation to his connection with it, as follows:

“Mrs. Scarborough gave me a list of names to telegraph, his children and friends. She wanted to get them to Abilene, and let them know C. B. was dead, and get the children here.”

He further testified:

“I went to the Western Union Office the next morning to send these messages. I wrote this message in the Western Union Office on First street, in the Western Union Office at Abilene, Tex. I pushed it over to the young man, and told him to get it off as quick as he could. When he received it he turned around facing the door and looked up at the clock, and put the time of day on it. I made a statement to the agent there when I delivered this telegram, with reference to it. I wrote the telegram and shoved it over to him, and said: T want you to get that off as quick as you can, because I want to get his children and friends here.’ I stated that C. B. Scarborough was dead. I told him that I wanted him to get it off as quick as he could, that I wanted to get C. B. Scarborough’s children and friends here. I do not think I told him it was relatives or friends. I pushed the telegram over and said: ‘Get that off as quick as you can. I want to get C. B. Scarborough’s children and friends here.’ ”

On cross-examination he said:

“All that I said to that messenger boy when I went to deliver this telegram, any of them, was that I wanted him to get it off as quick as he could; that I wanted to get all of O. B. Scarborough’s children and friends there.”

He further stated:

“I answered Mr. Kirby that at the time I sent this telegram I only filed one other, and that to his other daughter. When I delivered the Herring telegram I made the statement that I wanted him to get it off as quick as he could; that I wanted to get his children and friends here.”

He further stated that:

“I put in two [telegrams] at one time to his daughters, one to Valley Mills, and one to Roswell, N. M. One was addressed to Henry Herring, and the other one to Mrs. Tubbs. I did not know Mrs. Tubbs’ initials, and had to address it to Mrs. Tubbs.”

The agent of the telegraph company, J. P. Duke, testified that he received the message from Menielle, and that he knew nothing of the relationship of the parties. He stated that he asked Menielle as to whether he was able to give a better address. The evidence shows that O. B. Scarborough died about September 24, 1908, in San Antonio; that during the evening or night of September 24, 1908, which was the day prior to the filing of the Herring messagfe for transmission, a message was received at Abilene, over the Western Union Telegraph Company’s lines, addressed to Mrs. Scarborough, notifying her of the death of her husband, which message was replied to at about 11:30 p. m. on the same day, in a message transmitted through the office of the Western Union Telegraph Company by C. B. Scarborough, Jr., which was addressed to 6. H. Moody, care Moody Sanitarium, San Antonio, Tex., instructing Moody to embalm the body of his father and ship same to Abilene. Having handled this latter message the day before the Herring message was filed for transmission, such fact was sufficient evidence to authorize the jury to conclude that the Western Union Telegraph Company, or its agents, had knowledge that C. B. Scarborough’s remains would be transported from San Antonio, to Abilene, and that it would be interred at the latter place. This, in connection with the testimony of Menielle, to the effect that he told the agent, when he was filing the Herring message for transmission, that:

“I want you to get that off as quick as you can, because I want to get his children and friends here”

—was sufficient to authorize the jury to conclude that the sender wanted to get the children and friends to Abilene, Tex., in order that they might attend the funeral of the deceased. From the judgment rendered in favor of the plaintiff in error, Mrs. Herring, the case was appealed, and was decided by the Court of Civil Appeals for the Eighth District, at El Paso. In that court the judgment was reversed and rendered in favor of the defendant in error, Western Union Telegraph Company, on the ground that the telegram on its face did not convey notice to the telegraph company of the relationship of Mrs. Herring to the deceased, and that there was no other evidence of such notice given to the telegraph company’s agent at the time the message was filed for transmission ([Civ. App.] 146 S. W. 699).

On a previous appeal of the same case to the honorable Court of Civil Appeals for the Second District, at Et. Worth, that court held directly to th'e opposite view (127 S. W. 882) though it is contended by counsel for the defendant in error that the evidence was different in one respect, and that was, that on the trial of the case which was appealed to the Et. Worth Court of Civil Appeals there was no evidence of the sending by Menielle of th'e telegram to Mrs. Tubbs, the other daughter. The honorable Court of Civil Appeals, at El Paso, erred, we think, in holding that there was no evidence to convey notice to the telegraph company of the relationship of Mrs. Herring to the deceased. This notice need not be conveyed by the face of the message, but may be conveyed quite as well by oral statement to the agent of th'e telegraph company who receives the message for transmission ; and where such notice does not carry as much information as the agent of the telegraph company desires, if the message relates to death or sickness, but is sufficient to put him upon inquiry, and he fails to make such inquiry, his principal will be charged with the information that such inquiry would have disclosed. The uncontradicted evidence in this case shows that Menielle stated to the agent of the telegraph company that the purpose of the message was to secure the attendance of children and friends. It is contended by the defendant in error that it had no notice whether it was a friend or a child being advised of the death of O. B. Scarborough, and therefore it could not have contemplated the damages that would accrue to a child, as was Mrs. Herring, in being denied the privilege of attending the funeral of a parent. This information was sufficient to apprise th'e agent of the telegraph company of the importance of promptly delivering the message, as, indeed, the telegram in its own terms so advised; it was sufficient to advise the agent of the telegraph company that either a child or a friend would be denied the privilege of attending the funeral if the message was not promptly delivered. If the agent of the telegraph company wanted more definite information, and wanted to know whether the message was for a child, or whether it was for a friend, the agent of the telegraph company should have made inquiry to ascertain the real facts from Mr. Menielle. As stated by Mr. Justice Henry in Telegraph Company v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920:

“When such communications relate to sickness and death, there accompanies them a common sense suggestion that they are of importance, and that the persons addressed have in them a serious interest. It would be an unreasonable rule, and one not comporting with the uses of the telegraph, to hold that the dispatcher will be released from diligence unless the relations of the parties concerned, as well as the nature of the dispatch, are disclosed. When the general nature of the communication is disclosed by its terms, instead of requiring the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires information about such matters, for him to obtain it from the sender, and if he does not do so, to charge his principal with the information that inquiries would have developed.”

Also see Telegraph. Company v. Carter, 85 Tex. 585, 22 S. W. 961, 34 Am. St. Rep. 826. Not having made such further inquiry to ascertain whether a child or a friend had a beneficial interest in the telegram, which information was accessible to it when the message was filed for transmission, it must be held to have had such information when it contracted for the prompt delivery of the message.

No other question being presented for our consideration, it follows that the judgment of the honorable Court of Civil Appeals for the Eighth District should be reversed, and the judgment of the district court of Taylor county, which was in favor of the plaintiff in error, should be, in all things, affirmed; and it is so ordered.
      <Bn»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    GOODWIN v. GUNTER.
    (No. 2432.)
    (Supreme Court of Texas.
    April 19, 1916.)
    1. Brokers @=>54 — Commissions — When Payable.
    It is a general rule that, for a broker to be entitled to commissions under a contract stipulating for payment in the event of his sale of given property upon stated terms, he must have produced a purchaser ready, able, and willing to buy upon the contract terms.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. @=>54.] '
    2. Brokers @=>57(2) — Commissions — When P.ayable.
    A broker has earned his commission under a contract stipulating for its payment in case of sale on terms stated when he procures a purchaser to whom the owner sells directly on terms satisfactory to himself, though different from those limited to the broker; the owner being deemed in such case to have waived the terms to which the broker was confined.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dee. Dig. @=>57(2).]
    3. Brokers @=>56(3) — Commissions — When Payable.
    Although a broker has produced the ultimate purchaser, he is not entitled to his commission under a contract stipulating for payment thereof upon sale by him on stated terms, where his negotiations terminated, and later the owner by independent negotiations sold to the buyer so produced.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 86; Dec. Dig. @=>56(3).]
    4. Brokers @=>82(2) — Actions—Pleading— Sufficiency.
    The principal, seeking to defeat the broker’s claim for a commission, cannot rely as an estoppel upon alleged representations of the broker’s agent to her that he waived his commission, where she failed to plead such representations as against the broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 102; Dec. Dig. @=>82(2).]
    5. Appeal and Error @=>1008(1) — Review-Questions op Fact.
    It was a question of fact for the trial court whether the efforts of a broker’s agent produced the ultimate purchaser of the property.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3955; Dee. Dig. @=>1008 (1).]
    0. Appeal and Error @=>842(2) — Scope op Review — Questions op Law — Constitutional Limitations.
    The Supreme Court is confined in its jurisdiction to questions of law, so that it cannot, except upon uncontroverted evidence, reverse a finding on a question of fact in the court below.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3319, 3329; Dec. Dig. @=> 842(2).]
    7, Brokers @=>86(4) — Actions por Commissions — Evidence.
    Evidence in a broker’s action for commissions held to support a finding_ that a broker’s efforts did not produce the ultimate purchaser.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117; Dec. Dig. @=>86(4).]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Osee Goodwin against Mrs. Rox-ana Gunter. From a judgment of the Court of Civil Appeals (142 S. W. 664) affirming a judgment of the district court for defendant, plaintiff brings error.
    Affirmed.
    J. M. Eskridge, of San Antonio, and M. B. Templeton, of Dallas, for plaintiff in error. Clark & Bliss, of San Antonio, and Thompson, Knight, Baker & Harris, of Dallas, for defendant in error.
   PHILLIPS, C. J.

The action was one for the recovery of commissions by Osee Goodwin, as plaintiff, growing out of the sale of a large tract of land belonging to Mrs. Gun-ter, the defendant.

The plaintiff, Goodwin, had a contract with Mrs. Gunter’s agent, Judge Don A. Bliss, by the terms of which he was to receive a commission of five per cent, on the selling price of the land if he procured a purchaser at §35.00 per acre; with the privilege of buying it himself. During the life of this contract a sale of the land was made by Judge Bliss, acting for Mrs. Gunter, to Henry D. Lindsley at $30.00 per acre, in cash, Goodwin claimed that through his own efforts and those of W. C. Witwer, his agent or associate, Lindsley was induced to become the purchaser, and thereon based his suit. To the action of Goodwin Mrs. Gunter pleaded a general denial, entering a cross-action against Lindsley and seeking judgment over against him, if cast by Goodwin, on account of representations made by Linds-ley to Jhdge Bliss in the closing of the sale by the latter to the effect, in substance, that neither Goodwin nor Witwer was instrumental in his becoming the purchaser. The trial, which was without a jury, resulted in a judgment for Mrs. Gunter against Goodwin’s claim, and accordingly in Lindsley’s favor on the cross-action, which was affirmed by the Court of Civil Appeals.

The substance of the essential facts found by the trial court and adopted by the Court of Civil Appeals amounts to this:

Mr. Goodwin, after making the contract with Judge Bliss in May or June, 1909, endeavored to find a purchaser of the land. About June 14 he made an agreement with. Witwer by which Witwer was to receive a division of his commission if he could interest Lindsley in the land and procure him as a purchaser. Thereupon Witwer engaged Lindsley in a conversation and informed him of the land being for sale and the price, and recommended it as a profitable purchase. Lindsley made inquiries of others in an effort, as the trial court states, to ascertain the names and addresses of proper parties; and learned that Judge Bliss, of San Antonio, represented Mrs. Gunter. On June 17 he wrote Judge Bliss for information concerning the land who referred him to- the resident manager of the property. Two or three conversations occurred between Linds-ley and Witwer, the latter continuing to recommend the purchase. In response to an inquiry Witwer informed Lindsley that he had no personal interest in the transaction, but would like to obtain a position to resell the land in small tracts if Lindsley bought it. lie also stated to Lindsley that Goodwin’s only interest in the matter was that of a prospective purchaser for himself or with others, or to assist in financing the purchase. Goodwin knew nothing of these statements. A day or so later, Lindsley and Witwer together inspected the land. After making an engagement by telephone with Judge Bliss, Lindsley, on the night of July 5 went to San Antonio and met Judge Bliss at his office the next morning. On that morning Goodwin sent a telegram to Judge Bliss, stating that he believed Lindsley was interested, requesting, if Lindsley took up the purchase directly, that he and Witwer be protected in the commissions, aud advising of a letter to follow. Judge Bliss had received this telegram when he entered upon the negotiation with Lindsley in his office that morning. He also had at that time a copy of a letter Witwer had written Mrs. Gunter oh June 24 in regard to Lindsley being interested in a purchase of the land. At the opening of their conversation this telegram and letter were shown to Lindsley by Judge Bliss, whereupon the former stated that neither Witwer nor Goodwin had anything to do with procuring him as a purchaser; that Witwer’s only interest in the transaction was to obtain employment under him for re-sale of the land if he bought it; that he did not know Goodwin in the transaction at all; and that if his offer of $30.00 per acre, cash, was accepted, Mrs. Gunter would have to pay no commission to any one. This was communicated to Mrs. Gunter, and in reliance thereon she accepted Lindsley’s offer of $30.00 per acre cash, he being advised that his offer was accepted with the understanding that neither Goodwin nor Witwer had procured him as a purchaser and that Mrs. Gunter would not have to pay a commission on account of the sale to him.

The land was afterwards conveyed to Lindsley by Mrs. Gunter, with knowledge that Goodwin claimed a commission.

The further finding of the trial court was that Witwer’s conversations with and visits to Lindsley “to some extent stimulated or accelerated Lindsley in his movements” which resulted in his purchase of the land; also, that Lindsley was not willing to pay more for it than his offer of $30.00 per acre, “hence he was not procured as a purchaser at the price at which Goodwin had the land for sale.”

In its conclusions of law it was also found by the trial court that Goodwin was not the procuring cause of the sale. ' The reason there given by the court for the finding was that Witwer did not disclose to Lindsley his relations with Goodwin; that Lindsley had the right to rely upon Witwer’s statements that he had no interest in the matter and that Goodwin was only interested in it as a prospective purchaser or to finance the i>ur-chase, upon which Lindsley, in good faith, made his statement to Judge Bliss, which was accepted as true by the latter and caused the acceptance of Lindsley’s offer.

The rule of law which governs the case is settled and plain, and its application presents no difficulty. It is a general doctrine that in order for a broker to be entitled to commissions under a contract stipulating for their payment in the event of his sale of given property upon stated terms, a purchaser must have been produced through his efforts, ready, able and willing to buy the property upon the contract terms; otherwise the contract is not fulfilled upon the broker’s part and the commissions are therefore not earned. But the commissions are earned and" the broker is entitled to their payment according to the contract if, while it is in force, he procures a purchaser to whom the owner directly makes a sale upon terms which are satisfactory to himself, though different from those limited to the broker and yielding the owner a less amount than that for which the broker was empowered to sell. This is but a rule of fairness and right. In such a case the owner receives the full benefit of the broker’s effort. Through the diligence of the broker a buyer is produced. Having interested a prospective buyer the broker is entitled to a fair opportunity of making a sale to him upon the terms authorized. That the owner, pending the broker’s negotiation, may, in disregard or repudiation of his obligation to respect the broker’s right to conclude the transaction, take the matter into his own hands, avail himself of the broker’s effort, close a sale upon satisfactory terms, and yet deny the broker’s right of compensation, is a proposition not to be countenanced. It is no answer in such a case to say that a purchaser has not been produced by the broker, ready, able and willing to buy upon the terms limited by the contract, and the owner is therefore free to deal with the buyer, though produced by the broker, without any liability to the latter. That becomes unimportant in the face of the outstanding fact that it is by the broker the buyer is produced, and, before his negotiation is concluded, a sale is made, as the result of his effort, which is presumably just as satisfactory to the owner. The owner will therefore be deemed, in such a case, to have waived the terms to which the broker was confined, and the law declares him liable for the commissions fixed by the contract, for the reason that, except as to such waived provision, the broker’s part of the contract has been fully performed. The decisions of this court clearly affirm this principle. It is recognized, generally, elsewhere; and nothing else could well be the law. Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Hamburger et al. v. Thomas (Civ. App.) 118 S. W. 770; Loomis v. Broaddus (Civ. App.) 134 S. W. 743; Chilton & Cole v. Butler, 1 E. D. Smith (N. Y.) 150.

A different state of case is presented and therefore a different rule prevails where the broker’s effort with a particular buyer has, after fair opportunity and without any fault of the owner, come to naught, resulting in the failure and termination of his negotiation ; and, later, the owner by direct and independent negotiation effects a sale to the same buyer, though upon the same terms originally authorized to the broker. Under such circumstances the broker cannot be justly considered the procuring cause of the owner’s sale, and the latter incurs no liability to him on that account. Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884.

In the present case, therefore, the only question, as between Goodwin and Mrs. Gunter, presented by the stated facts is, whether it was through Witwer’s efforts, acting for or in association with Goodwin, that Linds-ley was caused to enter upon the negotiation with Judge Bliss, Mrs. Gunter’s representative, so as to constitute Goodwin, in a legal sense, by this means the procuring cause of the sale. Goodwin had no direct communication with Lindsley. He acted entirely through Witwer, and his right to the commissions claimed depends upon the legal effect of Witwer’s acts. The sale was made to Linds-ley while Goodwin’s agency was still in force, and before the negotiation of Witwer with Lindsley had been concluded, or a reasonable time had elapsed for its conclusion. That negotiation, whatever its character, cannot be regarded otherwise than as still pending when the matter was taken up by Judge Bliss directly with Lindsley. Before he closed the sale he was in effect plainly advised by Goodwin’s telegram of the latter’s negotiation, through Witwer, with Lindsley. With the sale made to Lindsley under these circumstances, Mrs. Gunter would be plainly liable for Goodwin’s commissions under the contract, according to the rule above announced, if, in fact, it was Witwer’s effort that brought Lindsley before Judge Bliss. That, as already stated, was the only question to be determined in the case in the trial court, as between Goodwin and Mrs. Gunter,, and is the only one with which we are concerned.

In behalf of Mrs. Gunter it is sought to introduce another question and to support the judgment by an apparent finding of the trial court thereon, namely, the communication by Lindsley to Judge Bliss of Witwer’s representations to the former, in substance, that he had no interest in Lindsley becoming a purchaser of the land except to obtain employment under him, and that Goodwin had none in the matter except as a possible purchaser himself, or to finance the purchase, and Judge Bliss’ reliance thereon in making the sale to Lindsley. These matters, however, if available to defeat Goodwin’s claim for the commissions, could only do so upon the principle of estoppel. Witwer’s representations to Lindsley were not pleaded by Mrs. Gunter as an estoppel against Goodwin, and this latter question is therefore out of the case.

Whether Witwer’s action produced Lindsley as a purchaser, was purely a question of fact. The forum for its determination was the trial court. Whatever reason may have been given by that court for the conclusion, it distinctly found that Lindsley was not procured as a purchaser by Goodwin through Witwer. Though the trial judge had stated no conclusion on the subject, the judgment against the claim for the commissions would import that finding. This court does not try the facts of a case. We are constantly besought to do so, but the Constitution confines our jurisdiction to “questions of law,” and we decline to exercise any other. If by proof which was uneontroverted it is established by the record that Witwer’s action produced Lindsley as the purchaser of the land, Goodwin would be entitled to recover as a matter of law; but unless such is the state of the proof the question remains one of fact, upon which we would not substitute our opinion for that of the trial court whose duty it was to determine it, or for that of the Court of Civil Appeals whose authority it was to review it. We have made a careful examination of the record. It is not open to question that it presents evidence from which a court, trying the facts, could' conclude that Witwer did not procure Linds-ley as the purchaser. Lindsley himself so testified, without objection. Witwer told Linds-ley of the land being for sale and the price put by the owner upon it, but Lindsley testified that he already knew of its being for sale from information given him by another. Lindsley, according to his testimony, by his own inquiry learned that Judge Bliss was the representative of the land who could be dealt with for its purchase. In one phase, the evidence, in effect, is that Witwer’s conversations with Lindsley were confined to his recommending the purchase, with the distinct assurance that he had no interest in its being made except to obtain the opportunity of re-selling the land under employment by Lindsley. This if true, was a direct repudiation by Witwer of all agency for Mrs. Gunter in the transaction with Lindsley. It amounted to a declaration that he was not seeking to serve her, his principal, but solely himself. It was evidence, in other words, that Witwer did not regard his effort to induce Lindsley to make the purchase as any influence exerted in Mrs. Gunter’s behalf, or, from the standpoint of her interest, a procuring cause of Lindsley’s concern in a purchase. In one sense it was equal to an admission by Witwer that, so far as Mrs. Gunter was concerned, he was not to be considered a procuring cause of the sale; and assuredly bore upon the question of the weight to be attached to his negotiation with Lindsley in the settlement of that issue. Lindsley admitted as a witness that Witwer’s conversations and visits to him to some extent stimulated his action in the matter; but his testimony amounts to a positive denial that they caused him to enter upon the transaction of the purchase. As to what was the inducing, cause of Linds-ley’s negotiation with Judge Bliss, whether the information given by Witwer and the latter’s recommendation of the purchase, or his own initiative, is a matter of speculation. It was essentially a question of fact in the state of this record; and its determination by the trial court will therefore not be disturbed.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM. HAWKINS, J.

text:
    BEATY v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
    (No. 3658.)
    (Supreme Court of Texas.
    April 19, 1916.)
    Action by J. H. Beaty against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants was affirmed. 175 S'. W. 450. Application for writ of error was denied in Supreme Court without opinion.
    Application for rehearing overruled.
    James E. Yeager, of Waco, for applicant.
   PER CURIAM.

Rehearing denied.

HAWKINS, J.

(dissenting).

“The Missouri, Kansas & Texas Railway Company of Texas, hereinafter called the ‘Katy,’ on the 20th day of April, 1913, ran an excursion train from Waco to Dallas, and return, upon which appellant was a passenger. On the return trip, a short way out from the Katy depot, that company’s track approaches within a short distance of the track of the St. Louis Southwestern Railway Company of Texas, hereinafter called the ‘Cotton Belt’; and thence for some distance these tracks parallel each other. On the evening in question, just as the Katy going south out of Dallas, upon which appellant was riding, reached the point where said tracks began to run parallel, a Cotton Belt train from the west was seen coming into the city, and the two trains appeared as though they might run into each other, while, as a matter of fact, they could not do so. Appellant, laboring under the belief that the danger of collision was in.minent, jumped from the window of the car in which he was riding to the ground, sustaining serious injury from the fall, and this suit is brought by him against both companies to recover damages therefor, alleging: (1) That they negligently built and maintained their tracks in and along the streets of Dallas in such close proximity to each other as to create in the minds of passengers on trains running over said tracks the impression that there W'as great apparent danger of a collision; (2) that appellees were negligent, after discovering his peril, or after they should have discovered it by the use of ordinary care and diligence, in failing or refusing to stop or slow down their trains, or either of them; (3) that appellees negligently and x-apidly blew their whistles, as if to give warning of approaching danger; (4) that the Katy was negligent in starting and continuing to run its train when it knew, and could by ordinary care have known, that a Cotton Belt passenger train was due to pass there at about right angles with it, and was then coming in at a great rate of speed and in plain view; and (5) that appellees were each guilty of negligence in operating their trains faster than seven miles per hour, in violation of the speed ordinance of the city of Dallas. Appellees answered, denj’ing generally and specifically each allegation of negligence charged against them, and likewise pleaded contributory negligence on the part of appellant. There was a jury trial, and the court peremptorily instructed a verdict against appellant, upon which judgment was rendered, from which this appeal is prosecuted, and such ruling is assigned as error.”

As to the “Katy,” the issue relating to the blowing of its whistle was abandoned.

Said opinion concludes thus:

“We hold that the evidence fails to show that appellees were guilty of any negligence which was the proximate cause of the injury in question ; and, believing that appellant was guilty of contributory negligence, we conclude that the trial court ruled correctly in instructing a verdict in favor of appellees, for which reason its judgment is affirmed.”

Beaty’s application for a writ of error having been refused by this court, he now moves for a rehearing, insisting that the pleading and the evidence present a case which should have been submitted to the jury. Upon a more thorough consideration of the record than I gave to it upon the original hearing, I now believe that, by a narrow margin, the case is, indeed, one for a jury. A careful study of the evidence, as set out in the record, and of said opinion, has impressed my mind with the idea that the members of the intermediate appellate court, although usually very careful and accurate, may have decided this case under some misconception of the actual facts involved.

For instance: With reference to plaintiff’s I knowledge or want of knowledge, at the time of the accident, of physical conditions at and surrounding the scene of plaintiff’s injuries —an important feature of this case — said opinion said:

“There was testimony showing that he had lived in Dallas and was familiar with the tracks in question, and knew of his own knowledge to whom they belonged; knew that they were separate tracks; knew which was the Gotton Belt and which was the Katy, and had ridden on the Gotton Belt and knew where the respective depots were, and that the Gotton Belt passed some distance from the Katy depot going south to its own; but it is not clear whether he_ knew of these conditions before or after the accident.”

Yet, at two pages further on, .said opinion, in referring to Beaty, said:

“He * ⅜ * knew, it seems, of the situation and condition existing at the place where the accident occurred.”

And that was said, although plaintiff testified, “I lived in Dallas about three months after the injury,” and also testified, positively and unequivocally, with reference to the moment and scene of said accident, “I was not familiar with those road crossings before, no, sir,” and although it is the well-settled law that, in determining whether a case should be submitted to a jury or not, all evidence except that which is favorable to plaintiff should be discarded from consideration and that point determined upon such remaining evidence alone. Railway v. Vallejo, 102 Tex. 70, 113 S. W. 4, 115 S. W. 25; Wininger v. Railway, 105 Tex. 56, 143 S. W. 1150; Cartwright v. Ganode, 106 Tex. 507, 171 S. W. 696; Boyd v. Railway, 101 Tex. 411, 108 S. W. 813; Wallace v. Oil Co., 91 Tex. 18, 40 S. W. 399. See, also, dissenting opinions in Railway v. Petty, 180 S. W. 105, and Bank v. Jones, 183 S. W. 874, recently decided by this court. In another ease, the author of the above-mentioned opinion in this case tersely said:

“Where there is any evidence upon an issue raised by the pleadings, it is the duty of the court to submit the issue to the jury.” Railway v. Griffin, 49 Tex. Civ. App. 569, 109 S. W. 999. citing numerous cases.

Again, said opinion declared, “The ears were 60 feet apart when he jumped,” and there is, indeed, evidence to that effect; but there is, also, evidence to the effect that said distance was much less.

Beaty testified, “The Gotton Belt train comes within about 9 feet of the Katy track at the place where I fell off;” and Lipman testified, “I guess the Cotton Belt train was 15 or 20 feet from the Katy train when Mr. Beaty jumped;” and Yeager testified, “The roads were about 9 feet apart.”

The following phases of the evidence, which are not shown, in detail, in said opinion, should be kept in mind:

As to proximity of the tracks of the two railways:

Beaty testified:

“As far as I remember, the train was 20 minutes late of leaving. ⅜ * ⅜ The Katy kind of curves. The Gotton Belt runs right angling. ⅜ * * The Katy approaches the Gotton Belt road; it was running toward the Cotton Belt road. The Katy appeared that it was going across the Cotton Belt road. I was watching this Gotton Belt train. * * * The Gotton Belt train comes within about 9 feet of the Katy track at the place where I fell off. ⅜ ⅝ » I waite¿[ untii they got pretty close, and it looked like they were going to cross. ⅜ * * At yme j jumped it looked like one was going to hit the other.”

Van Zandt testified:

“I was on the Katy train. * * * As those trains approached each other, they seemed to run not exactly parallel, but it seems as though the Katy track was going across this other track.”

Lipman testified:

“The tracks were about 4 or 5 feet apart. I did not measure it. That is really guesswork. » * * I gU0Sg the Cotton Belt train was 15 or 20 feet from the Katy train when Mr. Beaty jumped.”

Craven testified:

“I was about the second coach back from where Mr. Beaty was when he jumped out of the coach. I made the remark to the boy on the seat that that train looked like it was going to run into this one. ⅜ * * From where I sat it looked to me like the Gotton Belt would strike the Katy about two coaches in front of me. It looked like it would strike about where he was” (referring to plaintiff).

Yeager testified:

“The Gotton Belt is coming in this direction, for instance, at right angles with the Katy, until they come within about 9 feet of each other, or 2 blocks from the depot. They then turn and run parallel with each other. The roads were about 9 feet apart, as I measured it.”

As to exceeding the speed limit:

The speed limit fixed by the city ordinance was seven miles per hour.

As to the Katy: Lipman testified: “The Katy, I guess, was going 10 or 12 miles an hour, coming, toward the Cotton Belt I suppose.” Craven testified: “The Katy was moving, I judge, about 10 miles: an hour.” Beaty testified: “This train was running more than 7 miles per hour.”

As to the Gotton Belt: Beaty testified: “In my opinion that Cotton Belt train was running about 35 miles an hour.” Lipman .testified: “I guess the Cotton Belt was going about 35 miles an hour.” Slauter testified: “The Cotton Belt that day was running, I would judge, about 35 miles an hour.” Tom-linson testified: “It was running about 30, not over 35, miles an hour.”

As to the blowing of the whistle by the Cotton Belt: Beaty testified: “I could see the Cotton Belt train coming about three or four blocks away. It was blowing its whistle rapidly.” Tomlinson testified: “It give two shrill whistles.”

Additional facts and circumstances are reflected thus by testimony of passengers on that Katy train:

Yeager testified:

. “The Cotton Belt and the Katy and the other roads have regular published time-tables by which they go, leaving and arriving at different stations and at Dallas, Tex.”

Beaty testified:

“The Katy appeared that it was going across the Gotton Belt road. I was watching this Got-ton Belt train. This train was running rapidly, ⅜ ⅜ * ^ the timo I jumped it looked to me like one was going to hit the other, and that was the sole reason I jumped. ⅜ * ⅜ At the time I jumped, I was sitting about the second window from the back end of the coach. ⅜ * * At the time of the approach of that train, the passengers were moving in the car; some looked like they were trying to get out, and some were running from one end of the car of the other, trying to leave the coach.”

Slauter testified:

“As we pulled out from Dallas and was coming around the curve sorter, X looked out, I didn’t see it, but Vernon Stargen, he told me to look up, and I looked. The Cotton Belt was coming this way (indicating), and he started to jump out of the window and I caught him. Vernon Stargen was with me. He is now dead. He started to jump out of the window, and I pulled him back. When I looked out of the window, I saw this man laying between the Katy and Cotton Belt.”

Tomlinson testified:

“This other train (Cotton Belt), on the other side, was coming around parallel to this train, and it give two shrill whistles, we were all looking out of the window. It looked like this train was coming around. It was coming fast, and this train was going slow. As the Katy crossed this track, it came around and looked like it was going to hit this train. About the time this shrill whistle come we all tried to get out. I think Mr. Beaty went out through the window. I went to the back door. When I saw the other train, it was right after the whistle. It must have been a block or a little over a block, about five coaches behind, or six. * * * I gaw jjr, Beaty in the window. That was the last I saw him. * ⅜ * When he was in the window, I looked out and I made for the back door. I was trying to get out. There was a regular commotion in there.”

At the time of the accident, Beaty was a minor, nearing his majority. There was much other evidence which need not be set out here.

The evidence shows, and, as we have seen, said opinion itself declares, that Beaty jumped “just as the Katy, going south out of Dallas, upon which appellant was riding, reached the point where said tracks began to run parallel,” and that “the two trains appeared as though they might run into each other.”

The following, also, is from said opinion:

“Before appellant was entitled to recover, it became necessary for him to show by preponderance of the evidence, first, that he was injured on account of the negligence of appellees; and, second, it must appear that he was not guilty of contributory negligence. Even if appellees had been guilty of negligence which was the proximate cause of his injury, still, if it had been shown that he was guilty of contributory negligence in jumping from the train, then he would not be entitled to z’ecover; and this is true, whether his right of action is predicated upon real or apparent danger. If upon the conclusion of the trial it appeared from the evidence, either that appellees were not guilty of negligence, or that appellant was guilty of contributory negligence, and that reasonable minds could not differ with reference thereto, then it was the province and duty of the court to direct a verdict in favor of appellees. Tírese rules of law are elementary, and it is not deemed necessary to cite authority in their support.”

The difficulty lies in applying the law to the facts. Certainly the established fact that there was no actual danger to Beaty does not constitute a full and sufficient defense to his suit. Even though no actual danger to him exists, a passenger may recover from a railway company for injuries resulting from his jumping from a moving train because of the reasonable appearance of immediate danger to Mm, provided such appearance of danger be the proximate result of negligence on the part of the railway company or its servants. The applicable rule has been stated thus by our Supreme Court:

“If the railroad company was without fault, then it could not be held liable whether the injured persons acted prudently or rashly, because it had not placed them in the situation of danger. If, however, the railroad company was guilty of negligence in not giving the signals, by which the deceased were caused to be in danger, then, whether they acted wisely and cautiously, or otherwise, it is liable, because it is responsible for the circumstances which produced the action on their part” — citing cases.
“If the standard by which the conduct of the imperiled party is to be judged is to be that which a person of ordinary prudence might be expected to do under like circumstances, how can it be determined what a man of prudence would do under such conditions? A jury is presumed from their knowledge of men and their affairs in ordinary transactions to know what a man of ordinary prudence would do under a given state of facts; but when prudence itself is destroyed and judgment yields to sudden impulse, when there is neither time nor capacity to reflect, how can any one say what a man, prudent under ordinary circumstances, would do if he should be so situated? The rule is sound and just which holds the party guilty of negligence responsible for the result, if that negligence has caused another to be surrounded by such circumstances as to him appear to threaten the destruction of his life or serious injury to his person, whether that person be prudent or imprudent, if in an effort to save his life he makes a choice of means from which injuz-y results, and notwithstanding it may turn out that if he had done differently, or had done nothing, he would have escaped injury altogether.” Railway v. Neff, 87 Tex. 309, 28 S. W. 286.

See, also, Railway v. Wallen, 65 Tex. 568; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232; Jackson v. Railway, 90 Tex. 372, 38 S. W. 745; Railway v. Rogers, 91 Tex. 52, 40 S. W. 956; Railway v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 195; Kleiber v. Railway, 107 Mo. 240, 17 S. W. 946, 14 L. R. A. 613; Railway v. Byrd (Tex. Civ. App.) 61 S. W. 147; Elliott on Railroads (2d Ed.) vol. 3, § 1173, and cases cited; Hutchinson, Carriers (3d Ed.) § 1223, citing numerous English and American cases.

In a somewhat similar case, which was submitted to the jury, the Supreme Court of Arkansas, in affirming a judgment for the plaintiff, repudiated the contention of the railway company to the effect that it was not liable in that “the precaution used by it was sufficient to prevent a collision, and the fact was that the appellee would not have been hurt if he had remained on the train.” That court, through Battle, J., said, with reference to railway companies:

“The first and most important duty incumbent on them is to provide for the safety of their passengers. To this end they are required to provide all things necessary to their security reasonably consistent with their business and ‘appropriate to the means of conveyance employed by them,’ and to exercise the highest degree of practical care, diligence, and skill in the operation of their trains. Arkansas M. R. Co. v. Canman, 52 Ark. 517 [13 S. W. 280]. If they recklessly, unskillfully, or negligently operate their trains, and thereby place their passengers in situations apparently so _ dangerous and hazardous as to create in the minds of the passengers reasonable apprehensions of peril and injury, and thereby excite alarm and induce them to make efforts to escape, and in_ the attempt to escape they receive personal injuries, the railroad companies are responsible for damages. Jones v. Boyce, 1 Stark. 493; Stokes v. Saltonstall, 38 U. S. (13 Pet.) 181, 10 L. Ed. 115; Caswell v. Boston & W. R. Corp., 98 Mass. 194 [93 Am. Dec. 151]; Twomley v. Central Park, N. & E. R. R. Co., 69 N. Y. 158 [25 Am. Rep. 162].
“In order to render the railroad company liable for injuries received in an effort to escape an apprehended danger, there must have been a reasonable cause of alarm occasioned by the negligence or misconduct of the company. If the effort of the passenger to escape resulted from a rash apprehension' of danger which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover. But if, on the other hand, he be placed, through the negligent or unskillful operation of its trains by the railroad company, in a situation apparently so perilous as to render it prudent for him to leap from the train, whereby he is injured, he will be entitled to recover damages, although he would not have been hurt if he had remained on the train.
“On occasions where a passenger is suddenly confronted by imminent danger and peril, he cannot reasonably be expected to (calculate chances, or to deliberate upon the means of escape, but ‘must of necessity judge hastily of the danger in remaining where he is, as also of the danger in attempting to escape, by the circumstances as they, at the instant, appear to him, and not by the result.’ He acts upon the probabilities as they appear to him, and if he acts as a man of ordinary prudence, ‘placed in the same circumstances and under a like necessity of immediate action and decision,’ would have acted, and in so doing makes an effort to escape and is injured, the railroad company is responsible to him for his damages. See cases above cited and Wilson v. Northern Pac. R. Co., 26 Minn. 278 [3 N. W. 333, 37 Am. Rep. 410].” Railway v. Murray, 55 Ark. 248, 18 S. W. 50, 16 L. R. A. 787, 29 Am. St. Rep. 32.

Thus much, indeed, seems to be conceded, in substance, by the Court of Civil Appeals, which, apparently, rests its decision on the proposition that neither railway company, had been guilty of negligence which was the proximate cause of Beaty’s injuries.

The measure of the general duty of a railway company to its passengers has been clearly defined, and is not an open question. In Railway v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829, this court said:

“Our Supreme Court has laid down the correct rule of liability in Railway v. Halloren, 53 Tex. 53 [37 Am. Rep. 744], in which it is said: ‘Railroad companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances,’ This rule of liability is sustained by the best text-writers and nearly all the adjudicated cases” — citing numerous authorities, including both decisions and text-books.

The following, also, are excerpts from that case:

“In the ease of Levy v. Campbell, 19 S. W. 438, the court approved a charge that the carrier is bound to use the ‘utmost practical care, in providing for the safety of passengers’; and in Gallagher v. Bowie, 66 Tex. 265 [17 S. W. 407], this court approved a charge that the carrier is bound to use the ‘utmost care’ to provide for the safety of passengers. In the ease of Railway v. Worthington, 21 Md. 288 [83 Am. Dec. 578], the term ‘utmost care’ is defined to mean ‘all the care and diligence possible in the nature of the case.’ ⅜ ⅜ * In the nature of things, the law must leave it to the juries in the exercise of a sound judgment, from their knowledge of men and the ordinary course of human affairs, to determine whether or not a carrier of passengers has exercised the degree of care required by law, and for that reason the charge should be such as to give the best direction to their investigation. It is within the power of railway corporations to secure prudent and competent persons to perform the service necessary in carrying passengers; they can provide the methods which have been tested and found practically valuable for securing immunity from danger; they have the means of enforcing the use of these methods and the exercise of this high degree of care. This the law •wisely and justly requires, and the requirement should be rigidly enforced.”

I think the rule so announced is both sound and applicable to the facts of the case at bar. See, also, Railway v. Shields, 9 Tex. Civ. App. 652, 28 S. W. 709, 29 S. W. 652, in which the rule, as so stated, was applied by said Court of Civil Appeals. Doubtless that court still recognizes, in principle, the correctness of that measure of liability, although, as it seems to - me, it failed to apply it properly in this case.-

As to proximate cause:

In Railway v. Hayter, 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856, our Supreme Court, through Gaines, C. J., said:

“This court has announced the doctrine that, in order to constitute negligence, the act or omission must be the proximate cause of an injury which, in the light of the attending circumstances, ought to have been foreseen as a natural and probable consequence of such act or omission. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. * * * In our opinion, as a general rule, these questions should be left to the determination of the jury” — citing cases.

What constitutes proximate cause is, ordinarily, not a question of law, but a question of fact for the jury, to be determined in view of all the surrounding circumstances. The Supreme Court of the United States, in Railway v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, an action for compensation for the destruction of a sawmill and lumber by fire communicated from a burning elevator which had been set on fire from defendant’s steamboat, said:

“The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though, it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market place. 2 Bl. Rep. 892. The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. These circumstances, in a ease like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the sawmill and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it is obvious that the immediate and inseparable consequences of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defendants might well have anticipated or regarded the probable consequences of their negligence as much more far-reaching than would have been natural or probable in other circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the origiuator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. In a succession of dependent events an interval may always bo seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for rules of social conduct. In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.
“If we are not mistaken in these opinions, the Circuit Court was correct in refusing to affirm the defendants’ proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued influence or effect of the sparks from the boat, without the aid or concurrence of other causes not reasonably to have been expected.”

As to concurring negligence, an eminent writer states the rule thus:

“The mere fact that another person concurs or co-operates in producing the injury or contributes thereto, in any degree, whether large or small, is of no importance.” Street’s Shearm. <& Redf. on Neg. (6th Ed.) §§ 31, 35, 122n, citing cases.

■¡See, also, Thomp. Neg. § 75; Bish. Non-cont. Law, § 39; Newcomb v. Railway, 169 Mo. 409, 69 S. W. 348; Moon v. Railway, 46 Minn. 106, 4S N. W. 679, 24 Am. St. Rep. 194; Hawkins v. Railway, 182 Mo. App. 323, 170 S. W. 461; Asher v. City of Independence, 177 Mo. App. 1, 163 S. W. 574.

As applicable to the issues presented, I quote as follows, from an opinion by Cobb, J., in Railway v. Webb, 116 Ga. 152, 42 S. E. 395, 59 L. R. A. 109:

“As was said by Elbert, J., in Pullman Palace Car Co., v. Barker, 4 Colo. 344, 34 Am. Rep. 89: ‘What is the proximate cause of an injury in a legal sense is often an embarrassing question, involved in metaphysical distinctions and subtleties difficult of satisfactory application in the varied and practical affairs of life.’ Chief Justice Shaw, in Marble v. Worcester, 4 Gray (Mass.) 397, said: ‘The whole doctrine of causation, considered in itself metaphysically, is of profound difficulty, even if it may not be said, of mystery.’ In Scott v. Hunter, 46 Pa. 195, 84 Am. Dec. 542, Strong, J., said: ‘Indeed, it is impossible by any general rule to draw a line between those injurious causes of damage which the law regards as sufficiently proximate, and those which are too remote to be the foundation of an action.’ In Smith v. Western U. Teleg. Co., 83 Ky. 104 [4 Am. St. Rep. 126], Judge Holt remarked: ‘The line between 'proximate and remote damages is exceedingly shadowy; so much so that the one fades away into the other, rendering it often very difficult to determine whether there is such a connection between the wrong alleged and the resulting injury as to place them, in contemplation of law, in the relation of cause and effect.’ It has been said that, notwithstanding the maze of doubt and difficulty with which this subject seems to be involved, still it is possible to-take a more practical and simple view than the observations of learned jurists would indicate: That the practical administration of justice prefers to disregard the intricacies of metaphysical distinctions and subtleties of causation, and to hold that the inquiry as to natural and proximate cause and consequence is to be answered in accordance with common sense and common understanding. Watson, Damages for Personal Injuries, § 28. Prom the author just cited we quote the following: ‘A natural consequence is one which has followed from the original act complained of, in the usual, ordinary, and experienced course of' events; a result, therefore, which might reasonably have been anticipated or expected. Natural consequences, however, do not necessarily inelude-all * * ⅜ gmjjj ag extreme prudence might anticipate, but only those which ensue from the original act without any such extraordinary coincidence or conjunction of circumstances as that the usual course of nature should seem to-have been departed from.’ Section 33. ‘Prom the very outset, the practical distinction between causes and consequences should be borne in mind in this particular: A consequence of an original cause may, in turn, become the cause of succeeding consequences. But suet a cause should not, manifestly, be regarded as an intervening cause, which will relieve from liability the author of the original cause, but rather as only a consequence along with the other consequences. A tortious act may have several consequences, concurrent or successive, for all of which the first tort-feasor is responsible. It is not intervening consequences, but intervening causes, which relieve. The test is to be found, it has been said, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the original wrong as a result which might reasonably have been foreseen as probable, legal liability continues.’ Section 58. ‘Some authorities have formulated rules on this subject designed for general application — as that the defendant is not responsible where there has intervened the willful wrong of a third person, or is liable where such act is of a negligent character merely. But the better doctrine is believed to be that whether or not the intervening act of a third person will render the earlier act too remote depends, simply, upon whether the concurrence of such intervening act might reasonably have been anticipated by the defendant.’ Section 71.
“In Pittsburg Southern R. Co. v. Taylor, 104 Pa. 315, 49 Am. Rep. 580, Mr. Justice Paxson said: ‘In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence ; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.’ In Lane v. Atlantic Works, 111 Mass. 139, Oolt, J., said: ‘The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of. the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.’ In Seale v. Gulf, C. & S. F. R. Co., 65 Tex. 278, 57 Am. Rep. 602, Chief Justice Willie said: ‘What character of intervening act will break the causal connection between the original wrongful act and the subsequent injury is also left in doubt by the decisions. If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is not broken.’ See, also, Colorado Mortg. & Invest. Co. v. Rees, 21 Colo. 435, 42 Pac. 42, 45 ; 21 Am. & Engl. Enc. Law (2d Ed.) p. 486 et seq.”

Several of the cases cited by the Court of Civil Appeals are distinguishable from this case on the facts.

In Railway v. Wallen, 65 Tex. 568, this court said:

“It does not appear from the testimony that a single one of those who leaped from the train, except the plaintiff, saw the freight train coming. When the plaintiff saw it, it was 300 or 400 yards away, and, as he says, appeared to be moving rapidly. He does not state that he supposed from what he saw that there would be a collision. No one left the train upon his own perception of danger. On the contrary, those who used their own senses felt no alarm, and remained in the cars.”

However, the principle upon which I insist is plainly recognized in the opening sentence of the opinion in the Wallen Case, as follows:

“The defendant neither caused nor contributed to the injury of plaintiff’s wife, unless it allowed the freight train to come so near to or so rapidly towards the passenger coach as to frighten the passengers.”

In Dillingham v. Pierce (Tex. Civ. App.) 31 S. W. 207, and in Railway v. Urteaga (Tex. Civ. App.) 25 S. W. 1025, the facts were dissimilar from those here involved.

Essentially different from the facts of this case are those detailed in the opinion by Sherwood, J., in McPeak v. Railway, 128 Mo. 617, 30 S. W. 170, wherein it was said:

“It is disclosed by undisputed evidence that there was no real danger, and no object within the range of vision from which danger could be apprehended, as both the advance and rear trains were out of sight. Plaintiff was guilty of the grossest contributory negligence, and even recklessness, in taking no precaution by looking out of the windows, or otherwise, before running out of the caboose, and jumping off a train going at the rate of 15 miles an hour, in the opposite direction from which he jumped.”

But even that opinion adds this:

“The rule in such cases is thus laid down by the Court of Appeals of Kentucky: ‘ * ⅜ ⅜ He, however, must act upon a reasonable apprehension of peril. His conduct must confonn to that of an ordinarily careful man under like circumstances’ ” — citing Jones v. Boyce, 1 Starkle, 493; Railway v. Ware, 84 Ky. 267, 1 S. W. 493 ; and other cases.

In Railway v. Felton, 125 Ill. 458, 17 N. E. 765, the decision turned upon the fact that the evidence failed to show that the blowing of the whistles, upon which plaintiff predicated his charge of negligence, was in fact negligent; wherefore it was held that the giving of a charge which assumed that such blowing of the whistles was negligence was reversible error. In the opinion therein I find nothing which conflicts with my own views as herein stated, but much in support thereof.

Applying such of the foregoing legal principles as I consider applicable to this case, I think that the location, course, and proximity of the railway tracks, the relative positions in which the two trains were being moved, the excessive and illegal rate of speed at which each of them was being run within the city, and the blowing of the whistle upon one of them, may all be considered as circumstances, along with other existing facts and circumstances, from which to determine: (1) Whether or not the plainly established concurring negligence of each of the railway companies, in running its train at such illegal speed, was or was not the proximate cause of Beaty’s -injuries; and (2) whether they created such an appearance of actual danger to him as would relieve his act of jumping from the aspect of contributory negligence; and that, upon the whole, the evidence was such as to require that those issues be submitted to the jury for determination.

Aside from the merits of this case, I deem it proper to say there exists, in my mind, some question as to whether plaintiff in error is in position here to complain of the trial court’s failure to submit this case to the jury; there being, it seems, nothing in the record to show that reasonable and proper objection was made to the giving of the peremptory instruction against him. See Acts 1913, p. 113. However, I pretermit discussion of that question because (a) it did not enter into or control the action of this court in this case, and (b) the point is receiving, in another cause, the careful consideration of this entire court. My conclusion, otherwise, is that the motion for rehearing and also the petition for writ of error should be granted.


author: CONNER, C. J. F. J.

text:
    CLEMENGER et al. v. FLESHER.

    (No. 8328.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 19, 1916.
    Rehearing Denied March 18, 1916.)
    1. Mines and Minerals <®=>79(7) — Oil Lease —Testing—Forfeiture—Election.
    Upon failure to pay rentals due on an oil lease contract, held, the lessor, under its terms, might have canceled it or sued for the rent, but he was not entitled to both remedies, as they are inconsistent.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 209; Dec. Dig. <®=^>79(7).]
    2. Appeal and Error <S=»931(1) — Findings— Conclusiveness.
    In determining whether the trial court erred in finding a fact, the evidence must be viewed in the light most favorable to the appellee.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3762; Dec. Dig. 931(1).]
    3. Mines and Minerals <®=»79(7) — Oil Lease —Testing—Forfeiture-Waiver.
    A lessor demanding either the rent or release of an oil lease, and after not receiving either taking no steps to cancel the lease, cannot be held as a matter of law to have elected to cancel the lease.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 209; Dec. Dig. <§=> 79(7).]
    • Appeal from District Court, Wichita County ; E. W. Nic-holson, Judge.
    Action by J. IT. Flesher against F. J. Clemenger and another. From judgment for plaintiff, defendants appeal.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellants. Smoot & Smoot, of Wichita Falls, for appellee.

       Application for writ of error pending in Supreme Court.

   CONNER, C. J. F. J.

Clemenger and T. B. Smith have appealed from a judgment against them in favor of the appellee, J. H. Flesher, in the sum of $1,650. The suit was based upon an oil lease contract covering a period of 5 years, which provided, among other things, that the “second parties (appellants) agree to commence a well on said premises within 90 days from date (February 8, 1912), or pay to first parties (appellee) at the rate of $50 for each month thereafter, payable quarterly in advance for completion of well until a well is completed; and it is further agreed and understood that failure by party of the second part to pay said rentals shall render this contract null and void.”

There was another provision of the contract reading:

“It is further agreed by all parties of this contract that failure of the parties of the second part to comply with the condition of this contract, this contract shall become null and void.”

Other provisions of the contract need not be set out.

It is undisputed that appellants never drilled, nor attempted to drill, a well as provided for in the contract, and the only defense that was made to the action that we need notice was—

“that, after the 90-day period for the beginning of the drilling of the well had elapsed, plaintiff elected to forfeit the lease, and notified defendants to that effect, and demanded a release of the contract from one of the defendants, and said defendant Smith promised and agreed to release the same as soon as he was able to obtain the signature of his codefendant, and that plaintiff accepted said proposition, and thereby elected to terminate said lease, and that by reason of said facts the plaintiff was not entitled to recover any sum of money on said contract.”

The trial was before the court without a jury, and we have no formal conclusions of fact and law. We must, however, impute to the court’s judgment a finding against the defense above quoted. Appellants in effect conceded, as indeed it must be conceded (Thornton’s Law relating to Oil & Gas [2d Ed.] § 151 et seq.), that the paragraphs of the contract providing for the contingencies under which it may be forfeited inured to the benefit of the plaintiff alone, and that unless the appellee’s action was defeated by an election to declare the contract forfeited, as pleaded by them, that then the judgment must stand. In other words, the sole question raised on this appeal is whether the trial court erred in finding, as in effect it did, that after the expiration of the 90-day period for beginning the oil well under the lease contract, appellee did not exercise any election to declare the contract forfeited as he might have done under the terms of the lease.

On this subject the appellant Smith testified, in substance, that the first time that he saw appellee Flesher after the execution of the lease contract was some 10 or 15 days after the 90-day term of the lease had expired.

“Mr. Flesher told me, ‘That lease has expired and I want you to release, to clear the title to my property;’ and I said, ‘So far as I am concerned, I will give you a release myself, but it would not be any account, I don’t think, without Mr. Clemenger would sign it; but, as soon as I can locate Mr. Clemenger, I will gladly give you a release on your property;’ and he said that was perfectly satisfactory with him. I made an effort to locate Mr. Clemenger, and I inquired of all the oil men I knew, and he was somewhere in Louisiana or down in that country, and I could not locate him. Mr. Elesher has never demanded a penny of rentals from me under this contract; he had never said a word about any rentals due until he filed that suit for that amount of money. When he came to see me he did not say a thing about my owing him anything; all he asked me for was a release, and I told him I would give it to him just as soon as I could get it, and he said it would be all right, that he wanted to get a release to clear the title to his property. As soon as I located Mr. Clemenger, I had a release written out and mailed to him at Houston, and I received this release back, and went down to Mr. Elesher’s farm and delivered it to him in person, and he stated that he could not take the release, that I would have to take it up with his lawyer, that it was in his hands. I executed this instrument; it is a release of the land that belongs to Mr. Flesher in Clay county. It is a release of the original lease we obtained in 1912 from Mr. Flesher. Mr. Olemenger’s signature is on it, and he acknowledged it. I took that release to Mr. Flesher at his home down in Clay county. This instrument is dated the 26th day of May, 1914. My acknowledgment to it is dated May 1, 1914. I caused the release to be written. I tendered that release to Mr. Flesher at his own home. It must have been June 1 or 2, 1914, that I went down to see Mr. Flesher and gave him this release.”

The appellee Flesher, after having testified to the execution of the lease contract, further said:

_ “I did not do anything or see any of them until the first 90 days ran out, and I tried to get to see Mr. Smith here in town, but I never could catch him, and I was talking to one of my neighbors that had worked for Mr. Smith, and he told me where to get his address; and I went to Mr. Smith’s house and told him that the lease money was due and had been for several days. It was something like a couple of weeks, or maybe 16 or 20 days, after the 90 days. I told him I either wanted the lease money or a release to my farm. I did not tell him I would take the lease away from him. When I asked him for a release, he said, ‘Xou are not entitled to a release; I have talked to somebody about it and you don’t have to have any release at all. It is already released.’ He did not furnish me a release. He did not furnish me with a release until several days after this suit had .been filed. I have never given any other lease on my land. I have never at any time told either of these defendants that they could not go to work on the land. I have always been willing for them to put down a well if they would go to work; there was a contract drawed up to that effect; I could not have kept them off, I don’t suppose, if I had tried. It only took me a very short time to get service on Mr. Clemenger.”

On cross-examination he testified:

“If they will pay up the back money they can go ahead and drill. I have not been willing for them to drill since the first rent money was due and not paid, unless they would pay the rentals. I regarded this lease null and void to a certain extent at the end of the 90 days. After the 90 days was up I did not think they had a right to drill on my land until they paid the lease rental. The lease provided, ‘And it is further agreed by and between all parties of this contract that the failure of the party of the second part to comply with the conditions of this contract, this contract shall become null and void;’ that was written in the lease with ink. I thought I understood this contract at the time I signed it. It was in the contract that a failure on the part of the party of the second part to pay the rental shall render this contract null and void. I do not know whether I can say what the provision, ‘Failure of parties of the second part to pay such rental shall render this contract null and void,’ in the lease means, but the provision was placed in the lease for just what it says. If they failed to comply with the contract it became null and void. This lease says that they were to pay me $50 a month in advance or drill a well in 90 days, and if they failed to pay me in advance the contract was null and void, and that is what the contract says. I understood the way I signed the lease that the contract held me until I had a release. There is not any provision in it, but I have signed up before a notary public that I do that of my own free will, which I did, but yet I have no release from that document, and therefore I claim that that holds me binding, that I could not release to another party until I have a release and it is recorded on my land. When they failed to drill the well at the end of the 90 days from the date of the contract and failed to pay me the rental at the end of that time I went to see Mr. Smith. The first thing I said to him was that I was entitled to my lease money or a release, and I demanded one or the other. Mr. Smith told me that he had consulted a lawyer, and the lawyer had told him you did not need any release, that it was dead of its own accord. Mr. Smith refused to pay me the rent, and told me my lease was null and void and that I did not have to have a release. I did not think that was true, and told him so at the time. I did not regard that they had any rights to the land after the 90 days had expired, until they paid the lease money, and I have not been willing since that time for them to go and drill on the land until they paid the lease rentals.”

On redirect examination he testified:

“I considered the lease as still binding on me. I had two indirect chances to lease my land I might say. I had not a direct chance, but I had two, we might say, indirect chances, to lease, of two different oil companies, which one of them did lease afterwards Mr. Fouck’s place and several other places. No one came to see me personally about leasing my land. Some one sent a representative out to see me with reference to leasing.”

On recross-examination:

“I cannot tell you what date I met Mr. Smith and told him about the lease having expired, but I met him on the sidewalk, and we stopped and was talking about it, and I told him there that I had to have a release against that land before I could have a clear title to my land. Mr., Smith offered me a release after we brought suit, and I refused to take it, because I had turned it over to my lawyer.”

Appellant Clemenger testified that he was well known in the oil world; that he made his headquarters at the Bender Hotel at Houston, and always attended to his business thoroughly, and that letters of importance that he thought ought to come he always received.

It is said in 15 Cyc. 259, that:

“Any decisive act of a party, with knowledge of his rights and of the facts, determines his election in case of conflicting and inconsistent remedies.”

But it is said on the same subject (page 260):

“Although acts prior to the actual commencement of legal proceedings indicate an intention to rely upon one remedial right, yet they do not constitute an election which will preclude the subsequent prosecution of an action or suit based upon an inconsistent remedial right, unless the act contains an element of estoppel in pais.”

Of the same general tenor is the reading in 9 R. O. L., bottom page 960, par. 7. See, also, Witherspoon v. Staley, 156 S. W. 557; Brodkey v. Lesser, 157 S. W. 458; Stone Land & Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544.

Upon the failure of appellants to drill a well upon appellee’s premises within the 90-day period specified in the contract, and upon the further failure to pay rentals as in the lease contract provided, appellee clearly had two remedies. He might, under the terms of the lease contract, have declared the lease void and have insisted upon its cancellation ; or he might, as he later did do in this suit, declare upon the contract and recover of appellants the specified rentals. Ap-pellee, of course, was not entitled to both remedies, as they are evidently inconsistent. So that if it must be said that under the evidence appellee in fact elected to cancel his lease, as appellants pleaded, then the judgment below should be reversed and here rendered for appellants. In determining this, however, we must view the evidence in the light most favorable to appellee. See Waggoner v. Dodson, 96 Tex. 415, 73 S. W. 517; Cartwright v. Canode (Sup.) 171 S. W. 696; F. & M. Gin Co. v. Simmons, 178 S. W. 621.

We do not feel that we can say that the court erred in his construction of the evidence. Conceding that appellee expressed a willingness to cancel the lease, and- that the contract did not provide for a release on the part of appellants in the event that it was declared void, appellee nevertheless had the right to fix the condition upon which he was willing to exercise his option to forfeit, and hence might reasonably insist upon a release before exercising his option to cancel the lease contract. As he testified, the lease had been acknowledged, spread upon the records of the county, and without a formal release on the part of appellants, or a judgment of cancellation, the lease contract would cast a cloud upon appellee’s title. At least appellee so regarded it and his testimony is susceptible of the construction, we think, that appellee understood that the contract bound him until appellants did execute a release, for he says that he had several indirect opportunities to lease his land to others of which he did not avail himself.

Appellee testified:

“I told him (Smith) I either wanted the lease money or a release to my farm. I did not tell him I would take the lease away from him.”

The very language quoted authorized the conclusion that appellee at that time did not definitely intend to exercise his right to declare the lease forfeited. A demand for one of two things is not a demand for one to the exclusion of the other. Appellee thereafter instituted no suit to compel a cancellation of the lease contract, and we find no act on his part which, in law, necessarily concluded him in the present action. Appellants failed to execute a release until after the beginning of this suit, which, it seems, was not instituted for some time after the rentals under the lease contract began to accrue; but appellants in their answer set up no reason why appellee should be estopped on this account. It is not alleged or shown that, by reason alone of appellee’s action, they were induced to rest in peace, and thereby incur obligations to pay rentals, when they could or would have otherwise prevented it. For aught the record shows, they may have deliberately rested in the matter with the hope that other developments in the section would later justify them in proceeding to drill wells, and otherwise perform their obligation under the lease contract they had made with appel-lee.

At all events, by the express terms of the lease contract, appellants became obligated either to drill a well within 90 days, or to pay within the life of the lease $50 per month until the well was completed. It* is undisputed that this was not done, and the finding and the judgment of the trial court being to the effect that appellee elected to stand upon his contract, and there being no dispute as to the correctness of the amount of the judgment rendered, we think the judgment below must be affirmed.

Affirmed.
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