author: TALBOT, J.

text:
    CITY OF KAUFMAN v. FRENCH.
    (No. 7137.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 14, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Dedication (§ 1) — Acts Constituting— Expbess and Implied Dedication.
    Common-law dedications are divided into express and implied dedications, and in both there must be an appropriation of land by the owner to public uses, in the one case by some express manifestation of such purpose, and in the other by some act or course of conduct from which the law will imply such an intent.
    [Ed. Note. — For other eases, see Dedication, Cent. Dig. §§ 8, 10-12; Dec. Dig. § 1.]
    2. Dedication (§ 15) — Requisites—Intent.
    To constitute a dedication it is essential that the donor should intend to set apart and appropriate the land to a public use, which intent must not be a secret one, but expressed by the visible conduct and open acts of the owner inducing the belief that he 'intends to dedicate it to a public use, and where action is taken by the public or individuals, as if there had been in fact a dedication,_ the law will not permit the donor to deny the intent to dedicate.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.

    For other definitions, see Words and Phrases, First and Second Series, Dedication.]
    3. Dedication (§ 19) — Acts Constituting —Designation on Maps and Plats.
    A dedication may be established against the owner of land by showing that he has platted it as an addition to a city by a map placed on the public records, and has sold lots by deeds referring to the map in the description thereof, or that he has adopted a map or plat made by another person, the rule of construction in such case being to give effect to the intention manifested by such acts.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.]
    4. Dedication (§ 15) — Evidence—Presumptions.
    The doctrine of a presumed dedication from unequivocal acts or declarations upon which the public or those interested in the dedication have acted, rests upon the principle that a man is presumed to intend the usual and natural consequence of his acts; but where a dedication was not manifested by acts and declarations which would lead an ordinarily prudent man to infer an intent to dedicate, or where the donor’s acts and declarations forbade the inference of such intent and he was without negligence, he might show his mistake and avoid the dedication.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.]
    5. Dedication (§ 19) — Acts Oonstituting —Reference to Maps and Plats.
    Where a map and plat of land showing streets was made by one other than the owner and filed as a public record, the owner’s subsequent deeds caEing for and referring to the map for the description of the land, in the absence of evidence rebutting the presumption that he intended what his acts indicated, constituted a dedication of the land to public use, which, if acted upon by the city or by the grantees, made the owner’s intent immaterial.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.]
    6. Dedication (§ 15) — .Reference to Plat-Knowledge op Grantees — Estoppel.
    Where the owner of land, of which a third person had made a map or plat showing streets and filed it as a public record, did not intend by her conveyances referring to the map for description to dedicate the land to a public use, and the grantees were so informed or necessarily must have known when they purchased that she did not intend a dedication to public use, there was no dedication, since if the person against whom dedication is asserted was ignorant of his rights and free from negligence there would be no implied dedication; but even if ignorant of his rights the owner, if guilty of culpable negligence, would be estopped against those misled thereby.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig.. § 13; Dec. Dig. § 15.]
    7. Judgment (§ 256) — Conformity to Verdict.
    In an action to enjoin a city from claiming land for a street under a dedication by plaintiff’s mother, a finding that she intended to dedicate the land in controversy to public use could not be ignored by the trial court, and judgment ■ rendered for the plaintiff; but the court, if of opinion that the evidence showed that she did not intend to dedicate the land, should have granted a new trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.]
    8. Limitation op Actions (§ 6) — Retroactive Operation op Statute.
    In an action to enjoin a city’s use of land for a street, where the asserted dedication, if any, was made by deeds of plaintiff's ancestor executed in 1883, referring to a map or plat showing streets, limitations in favor of the plaintiff could not run after the statute of 1887 (Acts 20th Leg. c. 41) exempting municipalities from limitations, and where less than five years elapsed between the aUeged dedication and the statute, the city’s claim of right to open the street was not barred.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 16-31; Dec. Dig. § 6.]
    9. Dedication (§ 31) — Requisites—Acceptance.
    Proof of a city’s acceptance of land dedicated by a map or plat and by reference thereto in deeds was not necessary.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 64, 65; Dec. Dig. § 31.]
    10. Trial (§ 398) — Findings—Conflict.
    In an action to enjoin a city’s claim to land for a public street under an alleged dedication by plaintiff’s mother, a finding that her grantees did not know of her intention that the land should not be opened for street purposes was in conflict with a finding that plaintiff at the time of such deeds informed the grantees that he reserved the land as a part of his home place.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 946, 9Í7; Dec. Dig. § 398.]
    11. Dedication (§ 44) — Sufficiency oe Evidence-Reservation by Grantor.
    In an action to enjoin a city’s claim to a street under an alleged dedication, evidence held insufficient to sustain a finding that plaintiff had informed all the purchasers, by deeds referring for description to a map and plat of the land filed as a public record, that the land in controversy was reserved.
    [Ed. Note. — For other cases, see Dedication, Gent. Dig. §§ 85-87; Dec. Dig. § 44.]
    Appeal from District Court, Kaufman County; F. L. Plawkins, Judge.
    Action for injunction by W. A. French against City of Kaufman. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Charles Ashworth and Lee R. Stroud, both of Kaufman, for appellant. Huffmaster & I-Iuffmaster, of Kaufman, for appellee.

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

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

   TALBOT, J.

This is an .action brought by the appellee, W. A. French, to enjoin the appellant, city of Kaufman, from removing his fences and opening a street through the inclosure constituting his homestead in said city. The tract of land upon which his improvements are situated contains about 2% acres, and is described by metes and bounds as follows: Beginning 120 feet south of the J1 C. Cole league line on Jackson street, in the city of Kaufman, and on the east side of said street; thence north 450 feet; thence east 200 feet; thence south 450 feet; thence west 200 feet to the place of beginning. This land, being a part of a larger tract, was acquired by appellee’s father and mother in 1858 or 1859, and since that time has been under fence and constituted a part of their homestead. After the death of appellee’s father, appellee’s mother continued to occupy the premises as her homestead. Appellee became the owner of the land, took actual possession of it in July, 1891, later built a residence house upon the 2% acres of about the value of $5,000, and thereafter occupied the premises as the home of himself and family. On August 25, 1881, during the life-. time of Mrs. L. J. French, appellee’s mother, and under whom he claims, L. H. Bryant caused to be recorded in the office of the county clerk of Kaufman county, in vol. 30, page 144, of Deed Records, a map or plat of 13 acres of land belonging to the said Mrs. French, including the land involved in this suit,, as an addition to the city of Kaufman, to be known as the “French Addition.” Upon this map certain blocks, lots, and streets were delineated, one of said streets being called Seago street. This map was recorded not only without the consent of Mrs. French, but over her emphatic protest. By deed dated April 13, 1883, Mrs. L. J. French conveyed to Julia Cree, for a recited consideration of $200, “block No. 26 in L. J. French addition to the town of Kaufman, being 200 feet square, and bounded on the north by Temple street and on the east by Madison street, on the south by Ann street and on the west by Washington street.” The block 26 and the streets called for in this deed are in fact a part of the “French Addition” as platted and recorded by L. I-I. Bryant in 1881. By deed dated February 20, 1888, Mrs. L. J. French conveyed to J. A. Marshall a certain lot or parcel of land, described, among other descriptions given in said deed, as a “part of block No. nineteen (19), as shown and described on a map or plat of the town of Kaufman made by L. I-I. Bryant and duly recorded on the 25th day of August, A. D. 1881, in Book 30, page 144, of the records of deeds for said Kaufman county, to which reference is made.” On February 16, 1889, Mrs. French conveyed to W. S. Broughton a tract of land described in the deed as follows:

“Situated within the corporate limits of the town of Kaufman, and being a part of the 13-acre tract owned by the said L. J. French, the land herein conveyed beginning at the N. W. corner of block No. 27; thence east 16 feet to the N. E. corner of the said 13-acre tract; thence south 100 feet to comer on E. B. line of said 13-acre tract; thence west 16 feet to W. B. line of said block No. 27; thence north 100 feet to the beginning; being 1,600' sqr. feet.”

There are no streets called for in this deed and no reference made therein to any map, but the land described is doubtless a part of the tract covered by the Bryant map. Again, on the 30th day of April, 1891, Mrs. French deeded to her daughter and son-in-law, Anna L. and John C. Graves, a tract of land described thus:

“Lying and being in the town of Kaufman, * * * and being a part of the J. B. Cole 26 labor league survey, and a part of block No. 1 originally on the south side of the original plat of the town of Kaufman, with following boundaries, to wit: Beginning 50 feet south of the southeast corner of block No. 45, being 661 feet south of the north corner of block No. 17 on the public square of said town, corner post; thence south 200 feet corner; thence west 100 feet corner post; thence north 200 feet to corner post on south line of street; thence east 100 feet to the place of beginning; containing the last half of block No. 17 of the addition to the town of Kaufman on the south, which is recorded in vol. 30, page 144, of Deeds for Kaufman county.”

On July 7, 1891, Mrs. French deeded to her «on, the appellee in this suit, “all that part of block 42 on the J. B. Cole 26 labor survey, and all of block No. 33 (thirty-three), situated in said town of Kaufman, in said addition, on the south of the original plat of said town of Kaufman, and being a part of said 13-acre lot on the J. B. Cole survey.” On the 5th of August, 1913, after appellee had been in the peaceable and adverse possession of the 2Ya acres of land mentioned, using it as his homestead, the appellant, acting by and through its duly elected council, passed an ordinance commanding appellee to open up Seago street as delineated on the Bryant map, between blocks Nos. 42 and 43 of the "French addition, within 15 days from that date, and providing that, in the event appellee failed to open up said street, it ■should become the duty of appellant to open it. Appellee failed and refused to open up Seago street as ordered by the ordinance, and, at the time this’ suit was instituted, appellant was threatening to do so. Appellant concedes in this court, in view of the evidence .and finding of the jury, that L. H. Bryant made and recorded the map creating the French addition to the city of Kaufman, without the consent of Mrs. L. J. French, but contends that, by the deeds above mentioned, she dedicated to public use all the streets •delineated on said map, including the said Seago street, and that notwithstanding the appellant had not, for the great length of time shown, attempted to have Seago street opened for the use of the public, appellee could not complain of the enforcement of the ordinance requiring it to be done. The evidence is undisputed that the strip of land sought to be appropriated by appellant to street purposes constitutes a part of appel-lee’s homestead, and that he had and held actual, peaceable, and adverse possession of it, under fence, for more than 10 years prior to the institution of this suit, the date of •ordinance referred to, and the date of the threats made by appellant to disturb his possession; that appellant, at the time appellee built his residence house upon the 2% acres ■of land, of which the strip in controversy is a part, and during all the time said land has been in the possession of appellee, knew that it was being used as a part of his homestead; that appellant never exercised any control or authority whatever over said strip of land, and never threatened or attempted to' do so until the passage of the ordinance in 1913, and just before the bringing of this suit; that Bryant’s map was made and recorded contrary to the express wishes of Mrs. L. J. French. The evidence further shows that the taxes were assessed against the 2 Ya acres of land, including that portion now •claimed to have been dedicated to street purposes, and collected by appellant from ap-pellee’s mother, and after appellee became the owner of the property from him from 1881 to the date of the trial of this suit; that appellant, about the year 1902, bought from one George Phillips a strip of land which was marked on the Bryant map as a street, and bought from Mrs. L. J. French about the same year strips of land also marked , a street upon said map and designated thereon as Jackson street. -Appellee contends that under these and other facts there was no dedication of the land in controversy to street purposes, or that if appellant ever had any right to run a street across his. land, designated as Seago street, upon the grounds asserted by it, such right had long since been abandoned, or that it was now estopped from the exercise of that right. The case was submitted to the jury on special issues, and, among other things, they found that Mrs. L. J. French, at the times she executed the deeds, referring to the map made and recorded by Bryant, had no verbal understanding with the grantees in said deeds, and that there was no intention on the part of Mrs. French that the land in controversy should never be opened as a street. They further found that Mrs. French did not intend to ratify and adopt the Bryant map by the execution and delivery of said deeds, but that the reference to said map in said deeds was merely for the purpose of description of the property conveyed. Upon the findings of the jury, judgment was rendered for the appellee, and the appellant appealed.

It is assigned that “the court erred in rendering judgment for the plaintiff, and not defendant, because the findings of the jury on special issues and also the proof, both show a dedication of the property in controversy to the city for street purposes by numerous deeds referring to the map and to Mrs. L. J. French’s addition thereon, wherein and whereby she conveyed the lots according to such map and plan.” The proposition asserted is that “a map of an addition to a town, made and placed of record without the consent of the owner of the land platted, does not bind the owner, but if such owner afterwards executes deeds conveying lots or blocks calling for such map to purchasers from time to time, such deeds made in accordance with the plat or map will convey to the purchasers and the public, and to the city in trust, the right to have the map so recited in the deeds sustained, and such conveyances from time to time will constitute a dedication of the streets according to such map and the general plan,” and that such a dedication is as binding as if the owner had authorized the map to be placed of record in the first instance and irrevocable by such owner.

There are two general kinds of dedication, namely, statutory and common-law. It is of the latter that we are here called upon to treat and. no further reference to statutory dedications need be made.

Oommon-law dedications are subdivided into two classes, express and implied. In both it is necessary that there should be an appropriation of land by the owner to public use, in the one case by some express manifestation of his purpose to devote the land to the public use, in the other by some act or course of conduct from which the law will imply such an .intent. Elliott, Roads and Streets (2d Ed.) § 121.

Mr. Elliott further says:

“It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. * * * If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.” Section 124.

It has been held in this state, and very generally so we think, that dedication may be established against the owner of the land by showing that he has laid off and platted the ground into lots, blocks, and streets as an addition to a city by a map placed on the public records, and has sold lots by deeds referring to the map in the description thereof, or by showing that he has adopted a map or plat made by another person. But the cardinal rule of construction upon the subject of dedication by maps or plats is that which prevails respecting ordinary grants, and that is to discover and give effect to the intention of the party as manifested by his acts.

So, where the dedication is manifested by unequivocal acts or declarations upon which the public or those interested in such dedication have acted, the fact that the owner may have entertained a different intention from that manifested by his acts or declarations, or acted under a mistake, is of no consequence. The doctrine rests upon the sound general principle that a man is presumed to intend the usual and natural consequence of his acts. So that, if a man “by his conduct has induced rightful action upon the part of others, he must be held to the consequences of that which his own acts made appear to the minds of men of fair prudence to have actual existence.” If, however, the dedication claimed is not manifested by such acts or declarations — that is, if the acts of the owner were not such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, or if his acts or declarations were of such a character as to forbid the inference of such intent and he was without negligence — then he would not be precluded from showing his mistake and avoiding the dedication.

In the case before us it is conceded by appellant that the map made and placed of record by Bryant was without the consent of Mrs. L. J. French, and that the question of dedication turns upon the effect to be given the deeds subsequently made by her referring to and calling for said map in the description of the several parcels of land conveyed by said deeds. In city of Corsicana v. Johanna Zorn, 97 Tex. 317, 78 S. W. 924, it was held that, where the husband of Mrs. Zorn caused a subdivision and survey of a tract of land situated in said city belonging to Mrs. Zorn to be made and placed on the county records of deeds with her consent, conveyances subsequently made and duly acknowledged by Mrs. Zorn and her husband of certain lots in such subdivision, calling for the map and for streets and alleys as shown on said map, operated as a dedication to the public of such streets and alleys, and empowered the city authorities to open them to the public, over the protest of the grantors, as the growth of the city required. This decision was made on certified questions, the first of which was:

“Can a married woman make a valid dedication of her separate realty to public use? If so, is it necessary for her to execute a deed for that purpose and privily acknowledge the same as required by statute for other conveyances by her?”

The second of these questions was:

“If, in answering the above, you hold that she can make such dedication without the statutory acknowledgment, do the facts as above stated show a dedication to public use of the streets and alleys designated on said map?”

In answering these questions the Supreme Court, after calling attention to the law of this state which prescribes that when a married woman conveys land, her separate property, she must acknowledge the deed as prescribed to give it effect as a conveyance, said:

“When the deed has been executed and acknowledged as the law requires, there is no difference in its effect as a conveyance from that of a feme sole or of a man”; that, “if Mrs. Zorn had been a feme sole, the effect of her deeds would be to convey to each one of the purchasers of lots a right to have all the streets and alleys represented upon the map or plat kept open for public use,” and that “her deeds duly executed must be given their full effect.”

There was nothing in the record in the case the Supreme Court here had under consideration tending to show an intention on the part of Mrs. Zorn and her husband different from that manifested and to be inferred from the execution of the deeds, and hence the effect of said deeds “was to convey to such purchasers the right that they and all persons should be permitted to use the streets and alleys for the purposes designated upon the said plat for all time.” In other words, the deeds executed by Mr. and Mrs. Zorn were acts clearly and unequivocally evidencing an intention to set apart tlie streets and alleys delineated on tlie map for public nse, and, in the absence of proof of a contrary intention and knowledge on the part of the purchasers at the time of their purchase, they conclusively established the dedication. In the case under consideration the jury found that Mrs. French in the year 1883 and in other years thereafter executed certain of the deeds introduced in evidence by appellant, which called for or referred to the Bryant map or the addition called the “French Addition”; that she did not, at the time she executed either of said deeds, have any verbal agreement or understanding with the purchaser named in the deed that the strip of land in controversy should never be opened up and made a part of Seago street; that there was no intention at the time of such sales on the part of Mrs. French that said strip of land should never be opened as a street, and that no intention on the part of Mrs. French to the effect that said strip should not be opened as a street was expressed to or made known to the purchasers. The jury further found, however, that the Bryant map was made and placed of record without the consent and over the protest of Mrs. French, and that at the time she executed the deeds referred to she did not intend by their execution to ratify and adopt said map, but that the reference to said map or plat in said deeds was intended by her merely for the purpose of description of the property conveyed; that at the time said deeds were made Mrs. L. J. French was in the actual possession of said strip of land, the same being inclosed by a fence, claiming it as her own, and that W. A. French (appellee) “at the time of the sales to various purchasers of the French land informed them that he reserved the land now included in his inclosure as a home place.”

It seems clear that under the decision made tq City of Corsicana v. Zorn, supra, and other decisions, the execution and delivery by Mrs. French of the deeds calling for and referring to the Bryant map, in the description of the land in said deeds conveyed, in the absence of evidence rebutting the presumptioh that Mrs. French intended what her acts in making said deeds indicated, constituted a dedication of the land in controversy to public use, and, if the appellant or interested purchasers have acted upon those acts, it is immaterial that Mrs. French may have entertained a different intention from that manifested by such acts.

If, on the other hand, Mrs. French did not, at the time of the execution and delivery of said deeds, intend to dedicate said land to public use, and the grantees in said deeds were informed, or from the acts or declarations of Mrs. French must necessarily have known at the time they purchased, that she did not intend to dedicate the parties lar strip of land in controversy to the use of the public by the execution of said deeds, then there was in fact no dedication of said land to such use, and appellant has no right to take possession of said land and open it up as a public street of the city of Kaufman. This is true for the reason that the law is that if the person against whom the dedication is asserted was ignorant of his rights, and was free from culpable negligence and evil motive, there would be no implied dedication, especially so if the person claiming it had full knowledge of all the facts. Bub, even if ignorant of his rights, the owner would be estopped, if guilty of culpable negligence, as against those misled thereby. Elliott, Roads and Streets, § 129.

Whether Mrs. French intended to dedicate the land in controversy in this suit to public use, and whether, if she did not so intend, the grantees in the deeds by which appellant claims a dedication was made knew that fact, were vital questions for the determination of the jury in the court below, and the first question seems to have been decided in appellant’s favor. A contrary finding upon this issue was so essential to appellee’s right to the relief sought by him that it could not be ignored by the trial court and judgment rendered upon the special verdict of the jury upon the findings favorable to him. It is well established in this state that in trials by the jury the verdict must form the basis of the judgment, and the trial court cannot, in rendering judgment, disregard a finding on a material issue, even though such finding has no support whatever in the testimony. So, when a special verdict has been returned, the court must either set aside the verdict and grant a new trial or render judgment upon and in conformity with the verdict. If, therefore, the trial court was of opinion that the evidence in this ease clearly showed that Mrs. French did not intend to dedicate the land in controversy to public use, and that the grantees in the deeds executed by her referring to the Bryant map had notice or knowledge.of that fact at the time they purchased, the proper course to pursue was to set aside the verdict of the jury and order a new trial of the case. Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485; Clark & Loftus v. Pearce, 80 Tex. 146, 15 S. W. 787. This is true even though there may be some conflict in the jury’s finding that Mrs. French did not intend that Seago street should not be opened through the land in controversy, and their finding that by the deeds executed by her she did not intend to adopt and ratify the Bryant map, but referred to it in said deeds for description of the land in said deeds conveyed.

Judgment, it seems, was not authorized in favor of appellee either upon the groundi of limitation, estoppel, or nonacceptance of the alleged dedication. The dedication, if any, was made by the execution of the deeds referring to the Bryant map, and the earliest of these deeds was the one made to Mrs. Cree in 1883. By the statute of 1887 (Acts 20th Leg. c. 41), municipal corporations were exempted from the operation of the statute of limitations, and hence limitation in favor of appellee could not run after the passage of that law, and, less than five .years having elapsed from the date, of the supposed dedication and the taking effect of said statute, appellant’s claim of right to open the street in question was not barred. Nor were the facts sufficient to constitute an estoppel.

In regard to appellee’s contention that the evidence failed tc show an acceptance on the part of appellant of the claimed dedication, it may be said that, even though no act of the appellant indicating an acceptance was shown, proof of acceptance, under the decision rendered by the Supreme Court in City of Corsicana v. Zorn, supra, was not necessary. We will take occasion to say, however, that there is an apparent conflict in this case and the cases of Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309, City of Galveston v. Williams, 69 Tex. 449, 6 S. W. 860, and City of San Antonio v. Sullivan, 23 Tex. Civ. App. 619, 57 S. W. 42, on the subject. In all three of the last-mentioned cases it seems to have been held that, in order to make a dedication complete on the part of the public as well as the owner, there must be an acceptance. Mr. Elliott, in his works on Roads and Streets, also lays this down as the rule. In City of San Antonio v. Sullivan, supra, in which a writ of error was denied, the court said:

“It is essential to every valid dedication that it should conclude the owner, and that, as against the public, it should be accepted by the proper local authorities or by general public users.”

The holding in Zorn’s Case, however, is, so far as we are aware, the last expression of our Supreme Court on the subject, and should be followed now as the law of this state.

There is also an apparent conflict in the findings of the jury on the question of whether or not the grantees in the deeds made by Mrs. French, and relied on as showing a dedication of the land in controversy, were informed by appellee, at the time said deeds were executed, that the land in controversy was reserved as a part of the home place. As pointed out above, they found, in effect, in answer to one of the questions propounded to them, that said grantees were not informed of an intention on the part of Mrs. French that the strip of land in question should not be opened up for street purposes, and, in answer to another question propounded to them, they answered that W. A. French, at the time of the sales to various purchasers of the French land, informed them that he reserved the said land as a part of his home place. This last-mentioned finding is doubtless broad enough to indicate that all the purchasers of land from Mrs. French were informed, at the time of their respective purchases by ap-pellee, that the land in controversy was to be reserved as a part of his home place; but an examination of the statement of facts leads us to the conclusion that the evidence was insufficient to support such a finding, or at least to create a doub't as to its sufficiency to do so; and, further, that probably all the available testimony upon the question was not developed on the trial of the case. It appears that appellee, after the death of his mother, Mrs. L. J. French, deeded land situated in what is called the French addition to W. Franklin and J. J. Patterson, and that he testified:

“When I talked to Franklin and them I told them I was reserving that piece of land over there for my home. The part on that side has always been reserved.”

This is all the evidence we have discovered bearing upon the question, and is, it occurs to us, insufficient to support the finding of the jury under consideration. Appellee further testified, however, that he attended to all of his mother’s property from 1873 or 1874 down to the date of her death, which occurred in 1894, and that, in making sales of any property, he never did represent to any purchaser that the strip of land in controversy would be opened up for street purposes. It may be that, had the question been asked, he would have said that he represented his mother in making the sales to Mrs. Cree and others, and that he stated, in substance, to her and the other purchasers that the particular strip of land involved in this suit was reserved as a part of his mother’s home, and that Seago street would not be extended through or over it. We are not, therefore, prepared to say that the facts of the case in the respect just mentioned, and perhaps in other respects, have been so fully developed as to authorize us to reverse the judgment of the court below and render judgment here in favor of appellant. The judgment of that court is, therefore, for the reasons indicated, reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    MARTIN v. STIRES et al.
    (No. 5356.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1914.
    On Motion for Rehearing, Dec. 23, 1914.)
    1. Appeal and Error (§ 759) — Questions. Reviewable — Assignments oe Error.
    Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), providing that errors assigned in the motion for new trial shall constitute assignments and need not be repeated by the filing of assignments of errors, and that an assignment directing the attention of the court to the error complained of is sufficient, does not require the Courts of Civil Appeals to consider an assignment not copied in tlie brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Appeal and Error (§ 724) — Questions Reviewable — Assignments oe Error.
    An assignment of error failing to direct the court’s attention to any error will not lie considered in view of Acts 33d Leg. e. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), which declares that an assignment directing the court’s attention to the error complained of is sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dee. Dig. § 724.]
    3. Appeal and Error (§ 722) — Questions Reviewable — Assignments oe Error.
    An assignment of error predicated on the admission of evidence of an assignee of a lessee in an action for rent, which is followed by an excerpt from the testimony and the objection thereto, is not a proposition of law, but will be considered in view of Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), providing that an assignment directing the attention of the court to the error complained of is sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    4. Landlord and Tenant (§ 208) — Assignment of Leasehold — Rights and Liabilities of Assignee.
    An assignee of a leasehold interest takes the place of the lessee with all his rights and subject to his liabilities, and must pay the stipulated rent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 737, 821-831; Dec. Dig. § 208.]
    5. Words and Phrases — “Assets.”
    The “assets” of a company occupying premises as a tenant include the leasehold interest.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assets.]
    On Motion for Rehearing.
    6. Landlord and Tenant (§ 79) — Assignment of Leasehold Interest — Liability of Assignee.
    Where a lease terminable at the end of any quarter was assigned, the assignees could terminate the lease at the end of any quarter, and thereby escape liability for rent, though unable by the act of the landlord to remove their property.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 235, 244-253; Dec. Dig. § 79.]
    7. Trial (§ 250) — Issues — Submission to Jury.
    A case should be submitted to the jury on the issues raised by the pleadings and evidence, and the jury should not be permitted to dispose of a case on pleadings unsupported by evidence or evidence not supported by pleadings.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584^586; Dec, Dig. § 250.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by George S. Martin against Vernon S. Stires and another. From a judgment granting insufficient relief, plaintiff appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Leo Tarleton, of San Antonio, for appellant. Phil IT. Shook and S. C. Eldridge, both of San Antonio, for appellees.

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

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

   FLY, C. J.

This is a suit for rent, accompanied by a distress warrant, instituted by appellant in the justice’s court, who claimed §175. In the justice’s court appellant obtained judgment for §175 and a foreclosure of his lien. The cause was appealed to the county court, and in a trial by jury a verdict was rendered for $42.50 in favor of appellant.

By the act of April, 1913, it is provided that the errors assigned in the motion for new trial shall constitute assignments and need not be repeated by the filing of assignments of errors, and that an assignment shall be sufficient which directs the attention of the court to the error complained of. Gen. Laws 1913, p. 276 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612). Liberal as that law is, it does not require Courts of Civil Appeals to consider an assignment that is not copied into the brief. The first assignment is:

“Plaintiff’s motion for new trial in paragraphs ■ 1, 2, 3, 4, and 5, embraces one subject, and are here submitted and prayed to be taken as one assignment of error. Trans, pp. 16, 17.”

That assignment fails to direct the attention to any error. It will not be considered.

The seventh assignment of error is the next found in the brief, and is as follows:

“The seventh assignment of error is predicated on the bill of exceptions included in the statement of facts, page 7, is and was to that part of the testimony of Stires, defendant.”

And then follows an excerpt from the testimony of Stires and the objection to the testimony, and after that it is stated:

“This is a proposition within itself, as the terms and conditions of the assignee’s holdings were in law conclusively the same as his assignor, and it matters not whether he even knew of such terms or not, he was bound in law by them.”

There is no proposition of law whatever in the assignment of error, and the proposition stated as being embodied in the assignment is not contained therein; but it may be that, under the charitable cover of the law of 1913, the statement which follows the assignment, when read in connection with the testimony and objections embodied in the assignment, is sufficient to direct the attention of the court to the error complained of. Very liberally construed, the assignment of error assails the action of the court in per mitting Stires to swear that he had never agreed to pay the rent.

The facts are that appellant had rented a piece of land adjoining the building he was occupying to the Schuler Company to be used for advertising purposes at the rate of $55 in advance for each three months; that the Schuler Company sold out their business to appellees, and they entered into possession of the premises, but refused to pay any rent to appellant, and under the terms of the contract with Schuler Company $165 was due for rent. The Schuler Company asked appellant if he would take Stires as his renter, and appellant swore that this was done in the presence of Stires. Time and again the rent was demanded of Stires, but he refused to pay on the ground that the rent was too high.

The Schuler Company transferred to ap-pellees their entire interest in the lease of the premises, and, whether they agreed to pay the rent or not, they became the tenants of appellant and liable to him for the rent in the same amount that the Schuler Company was paying. Appellees were the assignees of the leasehold interest and put themselves in the place of the Schuler Company, with all its rights and subject to its liabilities. Tiffany, Landlord and Tenant, p. 908; Harvey v. McGrew, 44 Tex. 413; Le Gierse v. Green, 61 Tex. 128; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.

The rental contract made by the Schuler Company became the contract of the Stires Company when they became the assignees of the lessees’ leasehold interest. The evidence shows that the Schuler Company sold its entire leasehold interest in the property to appellees, and they became liable on all the covenants of the original lease. The jury evidently found that appellees were in possession of the space by finding against them for some rent. Stires admitted that he bought all of the assets of the Schuler Company, and undoubtedly the leasehold interest was a part of the “assets.”

The tenth and eleventh assignments of error raise the questions hereinbefore discussed and are sustained. Whether Stires agreed with appellant to pay the rent or not, he became liable when he purchased the leasehold interest of the Schuler Company.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

No issues were submitted to the jury. The court gave no instructions whatever, and we are unable to determine upon what issues the jury found for appellees. Appellees did not defend on the ground that they were prevented from removing their property and terminating the lease at the end of a quarter, and neither that issue, nor that as to the ordinance of the city prohibiting the placing of signs where they were placed, is made by the pleadings. The testimony on those points was without pleadings to sustain it. The jury were left at sea as to the law and rendered a verdict without any pleadings or evidence to sustain the same.

If appellees bought the leasehold interest of the Schuler Company, they were bound for the rent he had agreed to pay so long as they occupied the rented space, unless they were prevented by appellant from moving from the land at the end of the quarter for which the Schuler Company had paid. The Schuler Company, or its grantee, had the right to terminate the lease, under the tqrms of the lease, at the end of any quarter, and, unless it had been terminated by appellees repudiating the lease and endeavoring to remove their property, they would be liable for the rent, provided they were not prevented from removing the property by appellant. The cause should be submitted to a jury on the issues made by both pleadings and evidence, and the jury should not be turned loose without rudder or compass to wander through the mazes of pleadings unsupported by evidence, or evidence not supported by pleadings.

The motion for rehearing is overruled.


author: CARL, J.

text:
    ANDREWS v. JETER & CO.
    (No. 5376.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 9, 1914.)
    Receivers (§ 174) — Action Against Receiver-Permission oe Court.
    A consignee’s cause of action to recover for loss of a consignment of goods not growing out of or connected with the carrying on of the business of a railway as to which the receiver may be sued under Act March 3, 1911, c. 231, § 66, 36 Stat. 1104 (TJ. S. Comp. St. 1913, § 1043), providing for suits against a receiver appointed by any court of the United States without leave of court, subject to the general equity jurisdiction of the court, but accruing before his appointment, could not be maintained without previous permission of the court appointing' him.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. § 174.]
    Appeal from Refugio County Court; Leslie Adkins, Judge.
    Action by Jeter & Co. against Prank Andrews, receiver. Judgment for plaintiff in justice’s court was affirmed on appeal to the county court, and defendant appeals.
    Reversed, and cause ordered dismissed.
    Claude Pollard, of Kingsville, and Robt. W. Stayton and David M. Picton, Jr., both of Corpus Christi, for appellant.

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

   CARL, J.

Appellee, Jeter & Co., sued Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, on December 15, 1913, in the justice’s court to recover $1,96.30 on a claim for loss of part of a shipment of goods which arrived at Refugio March 6 or 7, 1913. The value of the goods lost is placed at $154.70, $ 1.60 proportionate amount of freight paid on same, and $40 for loss of sales or profit on same. Jeter & Go. recovered the full amount in that court, and, on appeal to the county court, again prevailed for the full amount claimed.

The goods claimed to have been lost were a part of a larger shipment alleged to have been consigned to appellee by Curlee Clothing Company of St. Louis, Mo., about February 21, 1913.

Frank Andrews was shown, by a certified copy of the order and decree of the District Court of the United States for the Southern District of Texas, at Houston, in equity cause No. 36, to have been appointed receiver of the St. Louis, Brownsville & Mexico Railway Company on July 5, 1913; and it is plain that the cause of action here sued upon accrued prior to that date. It is clear that the claim sued upon is not such a one growing out of or connected with the carrying on of the business of the railway as is provided the receiver may be sued on under the U. S. Statutes of March 3, 1911, § 66, but is a cause of action against the railway company accruing before the appointment of the receiver. No permission of the court appointing the receiver was obtained before bringing the suit; nor, indeed, has that ever been done. This being true, this suit could not be maintained. It is not necessary to say more in this opinion than that this case is fully covered by the case of St. Louis, Brownsville & Mexico Railway v. Knowles, 171 S. W. 245, decided by this court on November 11, 1914, and not yet officially reported.

The judgment is reversed, and the cause ordered dismissed.


author: HODGES, J.

text:
    BAILEY v. WESTERN UNION TELEGRAPH CO.
    (No. 1340.)

    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1914.)
    1. Commerce (§ 8) — Interstate Commerce— Regulation by States.
    The states have no power to control, beyond their own limits, the conduct of corporations and individuals engaged in interstate commerce, and any legislation to that end is void as creating an unwarranted burden thereon.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dee. Dig. § 8.]
    2. Telegraphs and Telephones (§ 27) — Transportation oe Interstate Messages— Liability.
    A telegraph company receiving an interstate message in Tennessee for delivery in Texas is liable for damages for mental anguish caused by its failure to deliver the message in Texas.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 80; Dec. Dig. § 27.]
    3. Commerce (§ 8) — Transportation oe Interstate Messages — Liability—“Common Carrier.” _
    _ The amendment June 18, 1910, c. 309, § 1, 36 Stat. 544 (U. S. Comp. St. 1913, § 8563), to Interstate Commerce Act, Feb. 4, 1887, c. 104, § 1, 24 Stat. 379, whereby telegraph companies are made “common carriers” within the act, does not supersede the laws of a state permitting recovery for mental anguish for failure to deliver a message, notwithstanding Carmack Amendment June 29,1906, c. 3591, § 7, pars. 11 and 12, 34 Stat. 595 (U. S. Comp. St. 1913, § 8592), which applies only to carriers of property transported as freight.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.

    For other definitions, see Words and Phrases, First and Second Series, Common Carrier.]
    4. Telegraphs and Telephones (§ 54) — Contracts eor Transportation and Delivery oe Interstate Messages — Stipulations — Validity—“Common Carrier.”
    A stipulation, in a contract for the transmission and delivery of an interstate message by a telegraph company, made a common carrier by the act of Congress of 1910, making the Interstate Commerce Act applicable to telegraph companies, that the company shall not be liable for damages beyond $50, at which amount the message is valued, unless a greater value is stated in writing at the time of the offering of the message for transmission and an additional sum paid or agreed to be paid based on such value, is invalid as permitting the company to limit its liability for its negligence in the performance of a duty to the public as a common carrier.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. § 54.]
    5. Telegraphs and Telephones (§ 54) — Contracts eor Transmission and Delivery oe Messages — Limitation oe Liability — Validity.
    The stipulation is also void because unreasonable.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. § 54.]
    Appeal from District Court, Bowie County; W. T. Armsted, Special Judge.
    Action by T. C. Bailey against the Western Union Telegraph Company. From a judgment granting insufficient relief, plaintiff appeals.
    Reversed and remanded.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant. Chas. S. Todd, of Tex-arkana, for appellee. i

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

       writ of error pending in Supreme Court.

   HODGES, J.

The appellant sued the ap-pellee to recover damages resulting from mental anguish suffered by reason of the negligent failure to deliver a death message. On April 13, 1913, R. L. Bailey, the father of the appellant, sent the following message to the appellant at New Boston, Tex., from , Bethel Springs, Tenn.: “John at Bethel Springs dangerously sick. Typhoid pneumonia.” “John” referred to in the message was the brother of the appellant. He died the next day, and was buried at about 1 o’clock on the 15th. The message reached New Boston, but was never delivered, and the appellant did not know of his brother’s illness and death until he received a letter from his father several days after the burial.

After a general denial, the appellee specially pleaded the following provision printed upon the back of the blank on which the message, was written:

“Send the following message subject to the terms on back hereof, which are hereby agreed to. * * * In any event the company shall not be liable for damages for any mistakes or delay in the transmission or delivery, or for the non-delivery of this message, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this message is hereby valued, unless a greater value is stated in writing hereon at the time the message is offered to the company for transmission, and an additional sum paid or agreed to be paid, based on such value, equal to one-tenth of one peí- cent, thereof.”

R. L. Bailey, the sender of the message, testified substantially as follows: That he delivered the telegram to the Western Union Telegraph Company at about 8:40 o’clock a. m. on April 13, 1913. He paid the agent $3.65, of which 65 cent's was the message fee, and the remainder was for special delivery. At the time the message was tendered to the agent at Bethel Springs, he told the agent that T. O. Bailey, the addressee, lived from four to six miles distant from New Boston in the country; he did not know the exact distance. He also notified the agent of John Bailey’s illness and of the relationship to the plaintiff. The appellant testified that he never received the message and knew nothing of his brother’s illness and death until some days afterwards, when he received a letter from his father. He lived in the vicinity of New Boston, about five or six miles in the country; had been living there for a number of years; was acquainted with Mr. Roberts, the agent of the telegraph company at New Boston; had been with him in the Masonic Lodge at that place. He further testified that if he had received the message on the 13th of April he would have gone hack to Tennessee to see his brother; he was financially able to make the trip, and was familiar with the route.

The appellee offered in evidence the original telegram and the printed provision set out in its answer. It also offered in evidence certain orders made by the Interstate Commerce Commission, which will be referred to later.

At the conclusion of the testimony the court instructed the jury upon the issues of fact involved in the case, and in addition thereto gave the following on the measure of damages:

“Should you find for the plaintiff, you will assess his damages at the sum of $50, which was the value of said message agreed upon and fixed in the contract between the parties when it was given and received for transmission.”

The jury returned a verdict in favor of the appellant for the sum of $50. From the judgment entered the plaintiff below has appealed, and assigns as the principal ground for which the case should be reversed the giving of the charge referred to. He contends that the stipulation contained in the printed matter on the back of the telegram blank, which undertakes to limit the liability of the telegraph company to $50, is unreasonable and void.

This being an interstate message, the first question to be decided is: Was mental anguish a proper element of damages to be considered by the jury? If it was not, then the question as to the validity of the stipulation limiting the amount of the recovery to $50 is of no importance, and the judgment of the court below should be affirmed on the ground that no other damages were proven.

In his oral argument, counsel for the appellee called attention to the case of W. U. Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. In that case the message was sent from a point in South Carolina, addressed to Wm. Brown in Washington, D. C. It was forwarded to Washington without delay, but through the negligence of the agents of the telegraph company in Washington was not delivered. The message read as follows: “Come at once. Tour sister died this morning.” Brown subsequently filed suit in the court of common pleas in the state of South Carolina and recovered a judgment for damages based upon mental anguish. That judgment was affirmed by the state Supreme Court, and a writ of error prosecuted to the Supreme Court of the United States, where the case was reversed upon grounds heretofore stated. From the facts set out in the opinion it appears that the suit was based upon the statute of South Carolina which provided that damages for mental anguish were recoverable in such cases. It also appears that under the ruling of the courts of the District of Columbia mental anguish was not regarded as a proper element of damage in such suits. Justice Holmes, who rendered the opinion in the Brown Case, held that the action was one of tort; that, the misconduct having occurred in the District of Columbia, the question of liability must be determined by the laws of that place. .Upon that proposition he said:

“Whatever variations of opinion and practice there may have been, it is established as the law of this court that, when a person recovers in one jurisdiction for a tort committed in another, he does so on the ground of an obligation incurred at the place of the tort that accompanies the person of the defendant elsewhere, and that is not only the ground but the measure of the maximum recovery.”

After quoting several authorities, he continues:

“The injustice of imposing a greater liability than that created by the law governing the conduct of the parties at the time of the act or omission complained of is obvious; and when a state attempts in this manner to affect conduct outside its jurisdiction or the consequences of such conduct, and to infringe upon the power of the United States, it must fail.”

Inasmuch as damages based upon mental anguish are recoverable both by the laws of Tennessee and of Texas, that particular ground for reversing the judgment does not exist in this case. But upon another proposition he uses this language:

“What we have said is enough to dispose of the case, but the act (referring to the statute of South Carolina) also is objectionable in its aspect of an attempt to regulate commerce among the states. That is, as construed, it attempts to determine the conduct required of the telegraph company in transmitting a message from one state to another or to this district by determining the consequences of not pursuing such conduct, and in that way encounters W. U. Tel. Co. v. Pendleton, 122 U. S. 347 [7 Sup. Ct. 1126], 30 L. Ed. 1187, 1 Interst. Com. R. 306, a decision in no way qualified by W. U. Tel. Co, v. Commercial Milling Co., 218 U. S. 406, 31 Sup. Ct. 59, 54 L. Ed. 1088 [36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815].”

Counsel for the appellee contends that this last quotation is an unequivocal holding that mental anguish is not a proper element of damages to be considered in any suit involving an interstate message, for the reason that to do so would be to impose a burden, on interstate commerce.

In the case of W. U. Tel. Co. v. Compton, 169 S. W. 946, the Supreme Court of the state of Arkansas took that view, and upon that ground alone granted a rehearing, reversed and remanded a case which had been previously affirmed by it. If Justice Holmes intended to announce a ruling so far reaching in its effects as that contended for, the language he employed in connection with the eases to which he referred left the matter in some doubt, at least. Until there is some clear and unequivocal declaration of such a doctrine by the federal Supreme Court, we .do not feel justified in departing from the rule so long recognized by the state courts. The facts of this case are in some material" respects different from those of the Brown Case. Here the misconduct, or tort, occurred in the state of the forum, and the effort is to apply those laws in measuring the liability of the wrongdoer. There the action was instituted in a state where the tort had not occurred, and the liability of the wrongdoer was determined by the laws of the forum, which were different from those of the place where the wrong was committed. This was an attempt to enforce the South Carolina statute beyond the limits of that state and bring it into conflict with the laws of the District of Columbia. We are strongly inclined to believe that this is what Justice Holmes referred to when he used the language quoted. This is made more apparent by an examination of the Pendleton Case, to which he refers as supporting the ruling made. That was a suit by Pendleton against the Western Union Telegraph Company to recover a penalty of $100 prescribed by a statute of Indiana for failing to deliver at Ottumwa, Iowa, a message received in Indiana for transmission to that place. The statute required telegraph companies, on payment or tender of the usual charge, to transmit messages with impartiality and good faith and in the order of time in which they were received, under penalty, in case of failure to transmit, or if postponed out of such order, of $100 to be recovered by the person whose dispatch was neglected or postponed. It contained also this additional proviso:

“That arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others.”

Justice Field, who rendered the opinion of the court in that case, held that these provisions exceeded the authority of the state in so far as they applied to interstate messages. He said:

“The object of vesting the power to regulate commerce in Congress was to secure, with refer1 ence to its subjects, uniform regulations, where such uniformity is practicable, against conflicting state legislation. Such conflicting legislation would inevitably follow with reference to telegraphic communications between citizens of different states if each state mas vested ivith ■power to control them beyond its own limits. (Italics ours.) The manner and order of the delivery of telegrams, as well as of their transmission, would vary according to the judgment of each state. Indiana, as seen by its law given above, has provided that communications for or from officers of justice shall take precedence, and that arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order; but that all other messages shall be transmitted in the order ini which they are received; and punishes as an offense a disregard of this rule. Her attempt, by penal statutes, to enforce a delivery of such messages in other states; in conformity with this rule, could hardly fail to lead to collision with their statutes. Other states might well direct that telegrams on many other-subjects should have precedence in delivery within their limits over some of these, such as telegrams for the attendance of physicians and surgeons in case of sudden sickness or accident, telegrams calling for aid in cases of fire or other calamity, and telegrams respecting the sickness or death of relatives.”

There, as in the Brown Case, an effort was made to give extraterritorial effect to a state statute. No doctrine, probably, is better settled by the decisions of the Supreme Court of the United States than that the states have no power to control beyond their own limits the conduct of corporations and individuals engaged in interstate commerce. Such legislation has uniformly been held to be void as creating unwarranted burdens on that species of commerce. It was that character of legislation which was condemned in the Pen-dleton Case, and we think Justice Holmes was applying the same rule to a similar state of facts when he used the language .last quoted. To give that language a different application would make that decision repugnant to the oft-approved case of W. U. Tel. Co. v. James, 166 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105.

In the last-mentioned ease, David W. James sued the telegraph company in the state courts of Georgia to recover the sum of $100 as a penalty for the failure of the company to promptly deliver a telegraphic message addressed to him at his residence in Blakely in the state of Georgia. The message was sent from Eufaula in the state of Alabama. The only question before the court was whether the statute of the state of Georgia providing for the recovery of such a penalty was a valid exercise of the power of the state in relation to messages by telegraph sent from points outside to some point within the state of Georgia. The validity of that statute was upheld upon the ground that it was but a proper exercise of the police power of the state, in the absence of any opposing congressional legislation on that subject.

In W. U. Tel. Co. v. Commercial Milling Co., referred to by Justice Holmes in tbe Brown Case, the court had a similar question under consideration; and, after quoting from numerous authorities, the same principle was announced. Both the‘James and the Pendleton Cases are referred to and harmonized. Of the James Case it is said:

“A statute of Georgia which required telegraph companies having wires wholly or partly within the state to receive despatches, transmit, and deliver them with due diligence under the penalty of $100, was sustained as a valid exercise of the power of the state in relation to messages by telegraph from points outside of and directed to some point within the state. It will be observed that this case in some particulars exhibits a contrast to Western U. Teleg. Co. v. Pendleton, and yet they are entirely reconcilable, having a common principle. In the latter case the law passed on clearly transcended the power of the state, because it directly regulated interstate commerce, as we have already shown. In the James Case the power of the state was exercised in aid of commerce. In the latter case prior cases were reviewed, and the principle determining the validity of the respective statutes was declared to be whether they could be ‘fully carried out and obeyed without in any manner affecting the conduct of the company with regard to the performance of its duties in other states.’ It was said that a statute of that kind, as it would ‘not unfavorably afteet or embarrass’ the telegraph company, in the course of its employment, should be held valid ‘until Congress speaks upon the subject.’ ”

Referring to the facts of the case then being considered, the court continued:

“The telegraph company in the case at bar surely owed the obligation to the milling company to not only transmit the message, but to deliver it. Eor the failure of th‘e latter it sought to limit its responsibility, to make the measure of its default not the full and natural consequence of the breach of its obligation, but the mere price of the service, relieving itself, to some extent, even from the performance of its duty; a duty, we may say, if performed or omitted, may have consequence beyond the damage in the particular instance. This the statute of the state, expressing the policy of the state, declares shall not be. Eor the reasons stated, we think that this may be done, and that it is not an illegal interference with interstate commerce.”

If a state may by statute impose a penalty on interstate carriers for their failure to perform within its limits their common-law duties, it may with equal propriety make mental anguish an element of damages for such misconduct committed within those limits. The principle upon which this proposition rests would be the same whether mental anguish was made recoverable by virtue of a statutory enactment or was founded upon a rule of common-law construction adopted by the state courts. It is urged, however, that since the rendition of the decisions referred to Congress has entered and covered that particular field of legislation, and that the rules there announced are no longer applicable.

In 1910 the Interstate Commerce Law was amended, and telegraph companies doing an interstate business were made subject to its provisions so far as the same were applicable. The material portions of the enactment relating to this subject are contained in section 1 of the Interstate Commerce Law, and are as follows:

“Sec. 1. That the provisions of this act shall apply to any corporation or any person or persons engaged in the transportatoin of oil or other commodities except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, and to telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one state, territory, or district of the United States, to any other state, territory, or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this act. * * * All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable ; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: provided, that messages by telegraph, ” telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages.”

See U. S. Compiled Stat. 1913, § 8563.

It appears from these extracts that the extent to which Congress has gone is merely to declare that telegraph companies shall be considered common carriers, and to require them to make and observe reasonable rates and charges for the services which they perform, and to permit them to divide their messages into classes, presumably as a basis for rates. The mere fact that Congress has enacted some legislation on this subject does not of itself signify a purpose to monopolize the field and exclude the states entirely. M., K. & T. Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377; Atl. C. L. Ry. Co. v. State of Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312.

After the adoption of the amendment referred to above, the Interstate Commerce Commission promulgated the following orders:

“(1) Each and every telegraph and telephone company which transmits messages over, its line, or lines, from a point in one state, territory, or district of the United States to any other state, territory, or district of the United States, or to any foreign country, is subject to the provisions of the act.

“(2) If a telegraph or telephone company, the line of which is wholly within a single state, or territory, or district of the United States, receives a message within such state, territory, or district of the United -States, for transmission to a point without the state, territory, or district of the United States, which it transmits over its line to another point in the same state, territory, or district of the United States and there delivers it to an interstate line for transmission to destination, the first-named company by virtue of its participation in this transaction, is not made subject to the provisions of the act; unless there be an arrangement between that company and its connection for through continuous transmission of such message, in which latter case all of the participating companies in such through continuous transmission are subject to the provisions of the act.

“(.8) if two or more lines are connected so that a person within one state, territory, or district of the United States talks with a person at a point without such state, territory, or district of the United States, or so that a message is transmitted directly from a point within a state, territory, or district of the United States to a point without the same, the transmission or message in this manner constitutes commerce and brings all of the participating lines within the purview of the act.

“(4) It follows that telegraph and telephone companies subject to the act, as above indicated, must conform to the provisions of section 1 thereof requiring that all their rates and charges for the transmission of interstate messages shall be reasonable and just, and that such companies may lawfully issue franks covering free interstate service or may grant free interstate service to the same extent, and subject to the same limitations as other common carriers under the provisions of said section.

“(5) Such telegraph and telephone companies subject to the act are also governed by the provisions of section 3 forbidding any undue or unreasonable preference or advantage by rebates or otherwise, or any undue or unreasonable prejudice or disadvantage in any respect whatsoever, and are subject to the lawful orders of the commission made pursuant to the provisions of section 15 of the act, and also of section 20 thereof respecting the keeping of accounts and memoranda and the making of reports to the commission.

“The commission at this time withholds expression of its views regarding other questions which have arisen with respect to the amenability of these carriers to the provisions of other sections of the act.”

In the case of M., K. & T. Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, the Supreme Court of the United States had under consideration a provision of a Texas statute allowing the recovery of $20 as attorney’s fees for the collection of claims not exceeding $200 against railroads. It was there contended that in its application to the collection of claims based upon interstate shipments this statute was void for the reason that the state had no authority to legislate upon that subject; Congress having enacted laws regulating that species of interstate commerce. After quoting numerous decisions, Justice Pitney, in rendering the opinion, said:

. “These cases recognize the established rule that a state law enacted under any of the reserve powers — especially if under the police power — is not to be set aside as inconsistent with an act of Congress, unless there is actual repug-nancy, or unless Congress has, at least, manifested a purpose to exercise its paramount authority over the subject. The rule rests upon fundamental grounds that should not be disregarded.”

Continuing, and quoting from a decision rendered by Justice Harland in Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108, he says:

“ ‘It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said — and the principle has been often reaffirmed — that, in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserve power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.’ ”

To the same effect is At. C. L. Ry. Co. v. State of Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312.

Applying the test here laid down, would there be any repugnancy between these congressional provisions and those of a state law permitting the recovery of a penalty, or damages for mental anguish, for a failure to deliver a message? We fail to discover any. The question is not one relating to rates or the classification of messages, but to liability for negligence. Neither do we think that by the passage of the law quoted Congress has “clearly manifested” a purpose to supersede or suspend the exercise of the police powers of the states with reference to this particular subject. The only provision of the Interstate Commerce Act to which we are referred as evidence of the fact that Congress has undertaken to legislate upon this is what is commonly referred to as the Carmack Amendment. We quote so much of • that provision as is claimed to be applicable:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.”

This provision evidently applies only to carriers of property transported as freight. It was made a part of the Interstate Commerce Act some time previous to the adoption of the amendment making that act applicable to telegraph and telephone companies, and at a time when carriers of passengers and freight were the only transportation companies sought to be regulated by that act.

In Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508, Justice Mathews, in rendering the opinion of the court, says:

“A carrier exercising his calling within a particular state, although engaged in the business of. interstate commerce, is answerable according to the laws of the state for acts of non-feasance or misfeasance committed within its limits. If he failed to deliver goods to the proper consignee at the right time or place, he is liable in an action for damages under the laws of the state in its courts; or, if by negligence in transportation he inflicts injury upon the person of a passenger brought from another state, a right of action for the consequent damage is given by the local law. . In neither case would it be a defense that the law gives the right to redress those wrongs as being an unconstitutional regulation of commerce by the state.”

Our conclusion is that in using the language he did in the latter portion of the opinion in the Brown Case Justice Holmes merely intended to reiterate the rule announced in the Pendleton Case and apply it to a similar state of facts.

Turning, then, to the consideration of the next question: Did the appellee have the right to limit the extent of its liability for its negligence in failing to deliver the telegram in the manner attempted in this instance? While this identical question has never been passed on by any of the courts of last resort, so far as we have been able to find, similar provisions have been held unreasonable and void by the Supreme Courts of both Texas and Tennessee. Marr v. W. U. Tel. Co., 85 Tenn. 529, 3 S. W. 496; W. U. Tel. Co. v. Rosentreter, 80 Tex. 416, 16 S. W. 25; W. U. Tel. Co. v. Neill, 57 Tex. 283, 44 Am. Rep. 589.

Counsel for the appellee contends that, since the amendment of the Interstate Commerce Act making telegraph companies subject to its provisions, the conditions expressed in the printed blanks of the company and the rates specified have become the lawful rates based upon those conditions and stipulations. The only evidence offered in the trial below of any established classification of messages for the purpose of fixing rates as permitted under the acts of Congress was that of the agent at New Boston before referred to.

It appears from orders made by the Interstate Commerce Commission that no ruling has yet been made by that body determining whether or not those provisions of the Interstate Commerce Act requiring carriers to file with the commission a tariff of rates and charges apply to telegraph companies. The wording of section 6, where this provision is found, warrants the inference that Congress had no such intention; and the fact that the commission, when called upon to pass upon the applicability of other sections, expressed no opinion as to that section, strongly indicates the same view. In any event, there is before us no evidence that the appellee has ever filed with the commission any classification of messages or system of rates. We must therefore assume that the classification of rates now in use is that which the company has adopted and is observing without the formal approval of the Interstate Commerce Commission.

But the question before us is, not whether the rate stipulated in this instance was unjust or unreasonable, but was the. limitation which it sought to ingraft a valid exercise of its right of contract? Considering the printed matter contained in those telegraph blanks as parts of a contract between the sender and the telegraph company regarding the particular service undertaken, the conditions under which it is to be performed, and fixing the maximum amount of damages recoverable in the event of failure to deliver the message within the proper time, is such a contract valid and enforceable? Aside from the question as to whether or not the stipulation is reasonable or may be enforced against the addressee of this message, we think it is subject to the objection that it is an effort on the part of the telegraph company to limit its liability for its own negligence and that of its servants. Congress has definitely fixed the legal status of telegraph companies engaged in interstate commerce by declaring them to be common carriers, thereby making them subject to the same restrictions upon the right of contract that applies to other common carriers. It is their common-law duty to receive, transmit, and deliver messages with impartiality, in good faith, and with due diligence. This obligation grows out of their relation to the public, and for a failure to perform it they are responsible in damages to the injured party— whether it be the sender of the message or the addressee. Negligence is ordinarily, as in this ease, the basis of their liability. Any agreement, stipulation, or condition in the ’terms upon which a message is received for transmission, which in effect relieves the company from liability for the full measure of the damages inflicted by the negligent failure to discharge its duty, is within the legal inhibition. It is not necessary that the agreement or stipulations, in order to be subject to this objection, provide for entire immunity from the consequences of such misconduct. It is sufficient if they provide for only a partial exemption. Nor does it matter that the agreement is founded upon a consideration. K. C. S. Ry. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683. If it be true that the evidence in this case justified a finding by the jury that the appellee was guilty of negligence in failing to deliver the message to the appellant, and that by reason' thereof he sustained damages in excess of the sum of $50, the only defense interposed against a full recovery is the alleged contract stipulating that in just such a contingency that sum is the maximum that may be recovered. It is insisted, however, that a legitimate exercise of the freedom of contract permits telegraph companies to adjust their rates according to the risk assumed, and that this right involves the collateral right of graduating their charges with reference to the maximum of liability that may be incurred. In support of that contention we are referred to the following line of cases: Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; K. C. S. Ry. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683. To which the following might be added as reiterating the same rule: G. N. Ry. Co. v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 381, 58 L. Ed. 703.

In the Croninger Case the Supreme Court had under consideration a clause in a receipt issued by an express company stipulating that the value of the property was fixed at $100, and providing that this sum should be the measure of the express company’s liability in case of loss. It was held that this' was a valid stipulation. The other cases cited involved similar provisions in bills of lading issued by railway companies. In tbe Carl Case tbe railway company bad issued a bill of lading in wbicb tbe value of tbe property was stipulated, and it was agreed that tbe carrier should not be bable in ease of loss for tbe value of sucb property beyond tbe sum fixed. Tbe question as to whether or not sucb contracts were contracts against negligence was referred to, and Justice Lur-ton, who rendered tbe opinion of tbe court, said:

“Is the contract here involved one for exemption from liability for negligence and therefore forbidden? An agreement to release such a carrier for a part of a loss due to negligence is no more valid than one whereby there is complete exemption. Neither is such a contract any more valid because it rests upon a consideration than if it was without consideration. A declared value by the shipper for the purpose of determining the applicable rate, when the rates are based upon valuation, is not an exemption from any part of its statutory or common law liability. The right of the carrier to base rates upon value has been always regarded as just and reasonable.”

Continuing be quotes with approval the following from Hart v. Railway Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717:

“ ‘The distinct ground of our decision in the case at bar is, that where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.’ The valuation declared or agreed upon, as evidenced by the contract of shipment upon which the published tariff rate is applied, must be conclusive in an action to recover for loss or damage a greater sum. In saying this we lay on one side, as not here involved every question which might arise when it is shown that the carrier intentionally connived with the shipper to give him an illegal rate, thereby causing a discrimination or preference forbidden by the positive terms of the. act of Congress and made punishable as a crime. To permit such a declared valuation to be overthrown by evidence aliunde the contract, for the purpose of enabling the shipper to obtain a recovery in a suit for loss or damage in excess of the maximum valuation thus fixed, would both encourage and reward undervaluations and bring about preferences and discriminations forbidden by the law. Such a result would neither be just nor conducive to sound morals or wise policies. The valuation the shipper declares determines the legal rate. Where there are two rates based upon valuation, he must take notice of the rate applicable. An actual want of knowledge is no excuse.”

In tbe Harriman Case tbe same judge said:

“The ground upon which .the shipper is limited to the valuation declared is that of estop-pel, and presupposes that valuation to be one made for the purpose of applying the lower of two rates, based upon the value of the cattle.”

Again be says:

“When the carrier graduates its rates by value and has filed its tariffs showing two rates applicable to a particular commodity or class of articles,. based upon a difference in valuation, the shipper must take notice, for the valuation automatically determines which of the rates is the lawful rate. If he knowingly declares an undervaluation for the purpose of obtaining the lower of two published rates, he thereby obtains an advantage and causes a discrimination forbidden and made unlawful by the first section of the Elkin Act of February 19, 1903 (U. S. Comp. St. 1913, § 8597).”

These decisions, we think, make it clear that in sustaining tbe right of tbe carrier to invoke tbe limitations based upon an agreed valuation of tbe property received for shipment there was no recognition of a right to limit ultimate liability to less than tbe actual value of tbe property, but merely the announcement of a rule of public policy wbicb estops the shipper from denying tbe truth of tbe fact which be has solemnly stated for tbe purpose of obtaining tbe service of tbe carrier. He will not be permitted to value bis property at one sum for tbe purpose of shipment when it enables him to secure a reduction in the freight rate, and at a higher sum when be seeks to recover damages for its loss. Tbe law contemplates that tbe receipt or bill of lading, when issued and accepted by tbe shipper, shall state tbe true value of fits property; and in order to circumvent tbe perpetration of a wrong both against the carrier and tbe public, in a suit for damages for tbe loss of tbe property, it conclusively presumes sucb is tbe case. It is true that, when tbe shipper undervalues his property in the bill of lading and is held to .that valuation in case of loss resulting from tbe negligence of tbe carrier, tbe latter does by virtue of that stipulation secure partial immunity from liability for its negligence. But sucb consequences are only incidental, and are not contemplated as tbe primary object of the contract. They occur only when tbe shipper has in tbe first instance made a false statement. There is an obvious distinction between tbe stipulations • sustained in tbe cases referred to and those here under consideration. There tbe contracts merely attempted to fix the value of tbe property to be transported, which does not in itself measure tbe limit of liability in tbe event of loss or damage. It not infrequently happens that there are other and special damages wbicb far exceed tbe value of the property and which may be considered in determining tbe full amount of tbe ultimate recovery. Sucb damages were not controlled or attempted to be controlled by tbe receipts and bills of lading involved in tbe cases cited. Telegraph companies not being required to file their rates with tbe Interstate Commerce Commission for its approval, tbe appellee is not in a position to claim that its rates have been established by law and that to allow tbe appellant to claim a sum in excess of $50 would be according him an illegal advantage over other patrons of the company. Neither is it in a position to invoke an estoppel against tbe appellant, as was done in tbe railway and express cases cited. There the shipper in legal effect declared a fact to be true, and upon that declaration legal rates and liabilities were adjusted. Here there is no statement of a fact. The valuation of the message can be regarded as nothing more than a pledge that no more than the sum named will be claimed as damages in the event the message is negligently delayed or not delivered. This at most is but a covenant on the part of the sender, and not the statement of a fact. The liability of telegraph companies is always limited to such damages as might reasonably be expected to result from the conditions and relations of which they have notice. That rule relieves such companies from consequences resulting from conditions of which they are ignorant or about which they have been misled. To give effect to the stipulations here relied on would be permitting the appellee, through the medium of a low rate, if such a rate be lower than that commonly charged for death messages between the same points, to purchase immunity from the consequences of misconduct amounting to a tort. We therefore conclude that the stipulation is void and should have been so held by the trial court. The same conclusion was reached by the Supreme Court of Arkansas in W. U. Tel. Co. v. Compton, 169 S. W. 946, recently decided. That case, however, as be- . fore stated, was reversed upon other grounds.

We are further of the opinion that the stipulation here under consideration is void because it is unreasonable. Telegraph companies are agencies for the rapid transmission of messages in emergencies which do not permit the slow process of the mails. Such companies are frequently employed as means of communication between utter strangers who know nothing of each other’s situations or surroundings. To require the sender of an important telegraphic message, under such circumstances, to value the contract, or, in other words, to fix the limitation of damages that should be recoverable by any of the parties interested on account of the failure of the company to perform its duty, would be to demand that such a party enter upon the most uncertain of speculations. To even require him, as a condition to the acceptance of the message, to fix a limitation upon his own claim, would be little less absurd and unreasonable. The public have a right to demand the carriage of messages without any such limitation whatever. Tet in the printed stipulations on the message offered in evidence as a sample of the regulations which have been adopted by the appellee no such option is given to the public. Unless the sender in every instance fixes some value or limitation upon his future claim for damages, the company reserves the right to fix it for itself at a sum not exceeding $50. This is an arbitrary denial of a right of which the public cannot be deprived in such a manner.

The judgment is reversed and the case remanded.