author: BUCK, J.

text:
    GROVE et al. v. KEELING et al.
    (No. 8143.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 3, 1915.
    Rehearing Denied May 1, 1915.)
    1. Judgment <&wkey;256 — Conformity to Verdict.
    If issues found by the jury in favor of defendants were material to plaintiffs’ right of recovery, or if the affirmative findings by the jury established any material defensive pleading by defendants which, if sustained by evidence, would defeat plaintiffs’ right to recover, a judgment for plaintiffs could not be sustained, as the judgment must follow and be supported by the verdict.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <®=>256.]
    2. Appeal and Error <&wkey;934 — Presumptions in Support of Judgment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, providing that, upon appeal or writ of error, an issue not submitted and not requested by a party to the cause shall be deemed found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding, the trial court is presumed to have found issues not submitted in favor of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <&wkey;934.]
    3. Contracts &wkey;>261 — Nonperformance — Treating Contract as Rescinded.
    Defendant, an alleged partner in a suspended private bank, contracted with a committee representing depositors to wind up the affairs of the bank for their benefit; a receiver then in charge to remain in charge, if he deemed it expedient, and to personally assume the liability of the bank to all of its depositors and satisfy their bona fide claims. The depositors procured the execution by certain local partners or stockholders of notes for a part of the bank’s obligations, to be delivered to a trustee and used in liquidating its obligations, and to procure an assignment to defendant of the interests in the bank of such local partners. Held, that the facts that the assignment was never tendered to defendant, and that he did not know that the assignment was in the possession of the trustee, did not entitle him to treat the contract as a whole as abrogated; and where the court presumptively found that the depositors had not abandoned the contract or pursued such a course as authorized defendant to presume that they had done so, and that defendant had suffered no; injury from delay in delivery, and the defendant had acted with the receiver in an effort to settle the claims of the creditors, and never demanded delivery of the assignment, and received all the benefits of it, the jury’s findings that he was not notified that the assignment was in the hands of the trustee, subject to his order, and that he did not know this fact, did not entitle him to judgment, in an action by the creditors.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1174-1180; Dec. Dig. &wkey;261.)
    4. Partnership &wkey;>94^CoNTRACTS between Partners — Mutual Rights and Liabilities.
    Where such agreement provided that, upon the execution and delivery of such notes by the local partners, they should be relieved of any further responsibility as to the bank’s indebtedness, such local partners as were depositors did not thereby waive their rights as such, and they were entitled to the benefits of defendant’s agreement to assume the bank’s liabilities, since, while as to third parties they were liable equally with defendant for the entire indebtedness of the bank, as between themselves their mutual and respective rights and liabilities as partners could be altered, enlarged, or restricted by contract.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 141; Dee. Dig. <&wkey;>94.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by G. W. Keeling and others against W. H. Grove and another. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    A. H. Kirby, Geo. M. Conner, R. C. Fuller, and Theo. Mack, all of Ft. Worth, for appellants. Flournoy, Smith & Storer, of Ft. Worth, for appellees.
   BUCK, J.

Suit was instituted by G. W. Keeling and others, Leroy A. Smith, trustee, and the firm of Flournoy, Smith & Storer, against W. H. Grove, Ben O. Smith, and others, alleging, among other things, that the defendant W. H. Grove, in connection with L. B. Ward and others, organized a private bank in Springtown, Parker county, Tex., known as the Farmers’ Exchange Bank of Springtown, Tex., and that all of the plaintiffs, except Flournoy, Smith & Storer, deposited with said bank large sums of money; that not long after the organization of the bank, and while the same was being operated by the partnership of which the defendant Grove and others, except Ben O. Smith, were members, the bank suspended business and failed and refused to pay its depositors the amount of deposits 'made therein; that thereafter, at a public meeting, a committee composed of C. C. Kidd and others was appointed by the depositors and empowered to enter into negotiations with the said Grove with the view of having him pay off the demands of said depositors, the persons so appointed being designated by the pleadings as “the committee,” and thereafter, on the 23d day of February, 1912, the said committee, with the assistance of the attorneys, Flournoy, 'Smith & Storer, procured to be executed and made by and between the said committee, for the depositors, and W. H. Grove, a certain contract in writing, a copy of which was attached to the petition of plaintiffs, and marked “Exhibit B.” It was alleged that by the terms of said contract Grove agreed, at his own expense, to liquidate and wind up the affairs' of the said bank for the benefit! of the depositors, agreeing to pay over for the said depositors and creditors, to the extent of their bona fide claims, such sums as should be realized from the assets of said bank, paying such creditors and depositors pro rata out of said funds; that, at the time of the execution of the contract, the assets of the said bank were in the hands of a receiver, Dan E. Lydick, appointed by the district court of (Parker county, Tex.; that it was agreed in said contract, however, that, if the said Grove deemed it expedient, he had the right to permit the said property to remain in the hands of said receiver, he agreeing to pay the cost and expense thereof, and that after the execution of the contract he deemed it expedient and allowed the said property to remain in the hands of the receiver, and permitted and requested that the same be done, and the assets of said bank were administered by the receiver with the consent and approval of the said Grove, and were paid out pro rato and properly distributed among the depositors and creditors of said bank; that the said Grove further agreed to personally assume the liability of the said bank to all of its depositors, and in said contract agreed to satisfy each of such depositors’. bona fide claim, with interest thereon, whereby said Grove became liable to the plaintiffs for the amount of their deposits made in said bank, together with interest; that it was further agreed in said contract that the depositors in said bank, through the said committee, would procure to be executed to Leroy A. Smith, as trustee, good and bankable notes,-bearing 6 per cent, interest from the date of said contract, to the extent of $2,500 and it was also agreed that said notes, when executed, should be credited to their face value pro rata on the obligations of the said bank to its depositors. It was alleged that by a supplemental written contract, duly executed by all of the parties to the original contract and approved by the defendant Ben O. Smith, dated February 27, 1912, a copy of which) was attached to the pleading and marked Exhibit D, it was agreed that the execution and delivery of the said $2,500 worth of notes should be a full release pf the said partners in said business who resided at Springtown, and designated in the contract as stockholders, from all further liabilities of the debts of said bank to its depositors and from any claim' for contribution from! them on the part of said Grove; that, in compliance with the said contract and supplemental agreement, the depositors, through the said committee, procured to be executed by the partners in said banking concern good and bankable notes to the amount of $2,500, and that, under the terms of said contract, the defendant Grove was entitled to a credit upon the obligation to the extent of $2,500 by reason of the execution of said notes. It was provided in said contract that Grove should make distribution of funds coming into his hands from the assets of said bank to those entitled thereto under certain circumstances, the materiality of which is not necessary to be stated in this connection. And it was further agreed in said contract that Grove was.to execute a good and sufficient bond in the sum of $4,000, payable to Leroy A. Smith, trustee, conditioned that he (Grove) would, according to the terms of said contract, satisfy and pay in full all of said depositors’ claims against said bank; and it was further provided in said contract that the liability of the sureties on said bond should be limited to $4,000; and in accordance with said agreement the said defendant W. H. Grove, as principal, and Ben O. Smith, as surety, made, executed, and delivered to Leroy A. Smith, as trustee, a bond and obligation in writing in accordance with the allegations last aforesaid, which bond was attached to plaintiffs’ petition, marked “Exhibit E,” and by reason of which the said Grove became liable to pay the plaintiffs the full amount, and the defendant Ben O. Smith, as surety on said bond, became liable to the extent of $4,000 toward the liquidation of the indebtedness to plaintiffs, as alleged. It was alleged that Grove made no payments whatever upon said obligations to the depositors in said bank, and that by reason thereof he was liable upon said contract and bohd, and the defendant Ben O. Smith was liable as surety to the extent of $4,000. The claims of the plaintiffs were set out in detail in Exhibit A, attached to the petition, which exhibit included the names of more than 200 depositors and the amounts of their several deposits ranging from one cent to more than $1,000, for which judgment was prayed.

Appellant Grove answered, urging a mis-joinder of parties plaintiff, a misjoinder of causes of action, and a misjoinder of parties defendant, as well as other demurrers not material to this appeal. He denied that he was a partner in said bank, that there was any consideration for the execution of the alleged contract or the alleged bond, and further pleaded that the consideration therefor, if any had theretofore existed, had failed, in that no assignment of the interests of the stockholders in said bank, who lived in Parker county, was ever procured and delivered to the defendant, as required and provided in said contract, designated as “Exhibit B.” The defendant Ben O. Smith adopted as his own answer the answer of his codefendant W. H. Grove. The answer of defendant L. B. Ward is not material on this appeal.

Supplemental pleadings were filed by both plaintiffs and defendants, but we do not deem it necessary to give the substance thereof in this statement, inasmuch as in the only question raised on this appeal supplemental pleadings become immaterial in the main, and will not be noticed, except as hereinafter stated.

By a petition of intervention, K. M. Van Zandt, trustee for the different depositors, adopted all of the pleadings directed against the defendants Grove and Ben O. Smith as his own and asked for judgment in his favor, as trustee, for the amounts prayed for in plaintiffs’ pleadings, for the persons provided for in said contract. The .contract designated in plaintiffs’ petition as Exhibit B, and for the breach of which plaintiffs sued, provided, among other things, in paragraph 9 thereof, the following:

“The depositors of said bank, through the said committee, hereby agree to procure to be executed to Leroy A. Smith, as trustee, good and bankable notes to be approved by'the said committee, bearing 6 per cent, interest from date of this contract, and maturing 40 per cent, bn or before 12 months from date hereof, and 60 per cent, on or before 2 years from date hereof, to the extent of $2,500 obtained from the stockholders (or partners) of said bank residing at or near Springtown, Tex., which notes shall, when executed, be credited to their face value pro rata on the obligations of said bank to its depositors and shall be used by the said Smith as trustee hereunder, in payment of said deposits pro rata when collected, less attorneys’ fees, as hereinbefore provided. They further agree to procure an assignment to said Grove by the stockholders (or partners) living in Parker county, Tex., of all of their interest in the affairs of said bank and its property.”

Exhibit E attached to the plaintiffs’ petition, by which the liability of appellant Ben O. Smith is claimed, is, in substance and effect, a bond executed by Grove, as principal, and said Smith, as surety, approved by Leroy A. Smith, dated February 23, 1912, and by the terms of which it was recited that Grove had entered into a contract in writing with the committee, composed of Gilliland and others, representing the depositors of the Farmers’ Exchange Bank of Springtown, by the terms of which Grove had entered into certain obligations with reference to the payment by him of the deposits claimed against said bank, and concluding:

“Therefore, if the said W. H. Grove shall, according to the terms of said contract, satisfy and pay in full all the said depositors’ claims against the said bank, then said obligations shall be void, otherwise to remain in full force and effect. The liability of the surety on this bond shall be limited to the sum of $4,000.”

It was alleged in plaintiffs’ first supplemental petition that:

“The depositors of Springtown Bank provided to be executed on or about February 23, 1912, an assignment in writing to the said Grove by the stockholders (or partners) in said bank living in Parker county; Tex., all of their interest in the affairs of said bank and its property, which said assignment was immediately upon its execution delivered to said Leroy A. Smith for said Grove and has been in his possession ever since, and has been from the time of its execution to the present date subject to the order and disposal of said Grove, and could ■ have been had by him at any time, all of which was well known to the said Grove; and said instrument is now here tendered to the said Grove.”

To which defendant Grove in his first supplemental answer replied:

“This defendant has not sufficient information on which to found a belief as to the truth of the allegations contained in paragraph 13 of said petition, and therefore neither admits nor denies same, but says, if said allegations be true, the transfer therein alleged to have been made to this defendant was never delivered nor tendered to this defendant, nor was this defendant over advised or informed that said transfer had been signed; and if same was signed and delivered to Leroy A. Smith, as alleged, it was not a delivery to this defendant, and said Leroy A. Smith has never been authorized to receive such transfer for this defendant, and such delivery thereof to Leroy A. Smith was not a delivery to this defendant; that the alleged contract contemplated that said transfer should be executed to this defendant at least within a reasonable time after the date of said contract, and, if same had been so delivered, this defendant could and would have taken charge of the affairs of said bank, as provided in said contract, but by reason of the nondelivery of said transfer and the fact that this defendant was never informed that same was signed, if in fact it was signed, as alleged, this defendant has at all times treated said contract as having been breached by the other parties thereto, and there was no consideration for the same, and that the consideration therefore has failed, and this defendant now here urges said want and failure of consideration for this contract.”

To this answer and pleading of defendant Grove, the plaintiffs in their second supplemental petition pleaded that said allegations showed no defense.

The case was tried and submitted to the jury on three special issues hereafter given with their answers thereto:

“FirstIssue: Did Leroy A. Smith notify the defendant Grove about March 4, 1912, or soon thereafter, that the transfer from the stockholders or partners in the said bank to said Grove in evidence had been executed by the said partners to stockholders and was in the hands of the said Smith subject to the order or disposition of the said Grove? Answer 1: No.
“Second Issue: Did the defendant W. H. Grove, at any time prior to the institution of this suit, have any knowledge that the transfer mentioned in issue 1 above was in the possession of Leroy A. Smith, and that it would be delivered to the said Grove on his request therefor ? .Answer 2: No.
“Third Issue: Did the committee representing the depositors of the Farmers’ Exchange Bank of Springtown, or any member or members of that committee, as representing said depositors, or Leroy A. Smith, as attorney for said committee or the said depositors, represent to said defendant, Grove, prior to the execution by him of the contract between the said committee and the said Grove, in evidence, that the assets of the said bank would be sufficient to reduce the liabilities of said bank to an amount not in excess of $6,000 or $6,500? Answer 3: No.”

Upon these answers the plaintiffs prayed judgment in favor of K. M. Van Zandt, as trustee, for the benefit of the plaintiffs against the defendant Grove in the sum of $7,612.54, and against Ben O. Smith, as surety, for $4,000, with interest, and the judgment was rendered as prayed for by plaintiffs, and the motion of defendants for judgment upon answers of the jury was overruled.

Appellants in their first, second, and third assignments urge error to the action of the court in overruling defendants’ motion to enter judgment and in entering judgment for K. M. Van Zandt, as trustee, for the benefit of plaintiffs, which three assignments will be considered together. It is urged that as the pleadings of the parties raise the issues submitted in the first and second questions of fact propounded to the jury, and since the submission of these issues was not objected to by the plaintiffs, and therefore must be deemed to have been concurred in by them, and since the answers thereto were favorable to defendants’ contention as to the nondelivery to defendant Grove of the assignment of the stockholders’ or partnership interest in the bank, therefore it must be presumed that the first and second special issues of fact submitted to the jury were regarded by all parties as material to a recovery by the plaintiffs and the intervener Van Zandt for the use of the plaintiffs, and that the answers of the jury thereto sustain defendants’ plea of lack or failure of consideration, and that therefore judgment should have been rendered for defendants.

In determining whether or not error was committed by the trial court in rendering judgment for appellees on the answers of the jury to the three issues of fact submitted, this court must decide whether or not issues Nos. 1 and 2 were material or controlling issues. If these two issues were material to plaintiffs’ right of recovery, or if the affirmative findings by the jury establish any material defensive pleadings by appellants, which, if sustained by evidence, would have defeated plaintiffs’ right to recover, then the judgment of the court in favor of plaintiffs cannot be sustained. The judgment must follow and be supported by the verdict. Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Ablowich v. Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881. But it is provided by statute that:

“Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment: Provided, there be evidence to sustain such a finding.” Vernon’s Sayles’ Tex. Civ. Stat. 1914, art. 1985.

As to issues not submitted, the presumption will obtain that the trial court has found such issues in favor of the judgment.

The issue of delivery vel non by the committee for the depositors of the assignment of the interests of other partners in the banking concern to W. H. Grove was joined by the pleadings thus far: .Plaintiffs alleged the execution by the stockholders or partners of this written assignment and the delivery of the same to Grove, or to Leroy A. Smith for said Grove, in whose possession plaintiffs alleged the instrument had been since its execution, and that it had been from the time of its execution to the date of the trial subject to the order and disposal of said Grove, and could have been had by him at any time, and that said Grove well knew these facts, and a tender of said assignment was further made to defendants in the pleadings of the plaintiffs. The defendant Grove denied the delivery of said assignment, and especially denied any knowledge on his part of its execution by the stockholders or partners and its delivery to Smith for his benefit or subject to his order.

In view of the fact that the defendant Grove acknowledged in his answer the execution of the obligation sued on, but sought to avoid its ..binding effect by reason of certain defenses pleaded,' one of which was fraud based upon the alleged representation made to him by the “committee” acting in behalf of plaintiffs that the assets of said bank were sufficient to pay all the liabilities of said bank, except about $6,000 or $6,500, and another that the plaintiffs had failed to comply with their agreement and contract to execute and deliver this assignment of the interests of the other partners in the bank to the defendant Grove, and inasmuch as the jury found against defendants on the issue of fraud, it is believed that, before defendant Grove would have been justified in treating the contract as a whole as being abrogated by reason of plaintiffs’ alleged breach and supposed abandonment, the intention on the part of plaintiffs to so abandon or rescind the contract must have been definitely and unmistakably made manifest, either by words or by a course of conduct inconsistent with any other reasonable conclusion. Loonie v. Tillman, 3 Tex. Civ. App. 332, 22 S.W. 524; Hood v. Raines, 19 Tex. 400; Victor Safe & Lock Co. v. O’Neil, 48 Wash. 176, 93 Pac. 214; Am. Loan & Trust Co. v. Toledo, C. & S. Ry. Co. (C. C.) 47 Fed. 343; Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; “Partial Performance” in note to Lake Shore & M. S. Ry. Co. v. Richards, 30 L. R. A. 47; McTague v. Sea Isle Ass’n, 57 N. J. Law, 427, 31 Atl. 727. There was no submission to the jury of (1) the issue as to whether or not plaintiffs had abandoned or rescinded the contract made with the defendant Grove or had pursued such a course of conduct as would have authorized the reasonable presumption on the part of defendant Grove that they had abandoned or rescinded the contract; (2) as to whether or not the defendant Grove had suffered any injury by reason of the delay in the delivery to him of the assignment of transfer. Therefore we must conclude that the trial court found such issues in favor of the judgment, and the evidence tends strongly to show that the defendant Grove regarded such contract in force, and that he acted with the receiver Dan E. Lydick in an effort to settle the claims of the bank’s creditors, and that he deposited with Mr. Ly-dick, the receiver, various sums of money to be used in the settlement of such claims. And, furthermore, there is nothing in the record to show any injury to the defendant Grove by reason of the failure of plaintiffs to deliver to him the assignment in question prior to the suit, and it is in evidence that the receiver, who had charge of the affairs of the bank, collected such claims as he could owing to the bank, including the notes for $12,500 executed by the partners other than Grove, and converted all of its assets into money, as far as he could, and out of the proceeds therefrom paid the claims pro rata of the depositors and other creditors; and there is nothing in the record to show that either defendant Grove or the receiver was in any way denied any right or precluded from exercising any authority over the assets of the estate. No demand was made by defendant Grove upon plaintiffs for the delivery of the transfer or assignment, and it is evident that time was not the essence of this part of the contract, and was not so regarded by the defendant himself. So far as we are able to judge from the record, the defendant' Grove received all the benefits by virtue of said assignment, even though he was not informed by Leroy A. Smith, or the plaintiffs, that it was in the possession of said Smith, and even though he had no information that such was the case. Hence we are forced to conclude that, in spite of the affirmative finding of the jury upon issues Nos. 1 and 2, the appellants have failed to establish facts which would have justified a judgment in their behalf, and that the judgment, as rendered, is sustained by, or at least not in conflict with, the verdict of the jury as to these matters. Accordingly the assignments under consideration are overruled.

In their fourth assignment appellant complains of the action of the court in rendering judgment in favor of K. M. VanZandt, trustee, for the benefit of J. T. Roberson, Kerby & Son, H. L. Young, W. H. Graham, J. A. Clarke, J. H. Smith, and E. P. Kerby, and each of them, because, as claimed in the proposition under this assignment, the above-named persons were members or partners with W. H. Grove, and were equally liable with Grove for the indebtedness of the partnership firm; and it was error, therefore, to permit these partners! to recover against the other member of the partnership.

From an examination of the judgment, it does not appear that the names of J. A. Clarke and J. H. Smith are in the list of the depositors for whose benefit judgment was recovered by K. M. Van Zandt, as trustee. The defendants J. T. Roberson, J. B. Kerby, E. P.- Kerby, W. H. Graham, J. H. Smith, H. L. Young, and L. B. Ward, who were partners with Grove, and also defendants S. L. Roberson, J. L. Perkins, and John Nix, were dismissed and discharged from the suit as defendants prior to tide trial of tire cause before the jury. Hence the issues presented in the trial of the case affected only the rights of the plaintiffs, depositors and creditors, as represented by K. M. Van Zandt, trustee, and the appellants herein. It appears that J. T. Roberson, Kerby & Son, H. L. Young, W. H. Graham, and E. P. Kerby were depositors in the bank, and therefore creditors of the partnership. It is true that, as copartners in the business, the persons mentioned above as partners would, as to third parties, who were creditors, be equally liable with appellant Grove for the entire indebtedness of the bank, though, of course, any partner paying more than his pro rata share upon such debts would have the right of contribution from the other partners. But, as between the partners themselves, their mutual and respective rights and liabilities could be altered, enlarged, or restricted by contract entered into by and between them. This appears to have been done, as evidenced by the two instruments in writing introduced in evidence, and upon which this suit was filed, and by said contract the rights and liabilities of appellant Grove and these other partners, as between them and Grove, were sought to be determined and fixed; and, unless it was specifically stipulated in the contract that the defendant Grove did not assume the payment of the depositors’ claims held by these other partners, it seems to us there is no reason why such partners should be excluded from a participation in the benefits derived by reason of such assumption by Grove to pay all depositors’ claims. The other partners had executed their several notes in the aggregate sum of $2,500, and had executed a transfer to Grove of their interest in the partnership affairs, and thereupon, as between themselves and Grove, became relieved of any further responsibility as to the bank’s indebtedness, but did not waive any right they would have as creditors of the bank by virtue of being depositors. Hence the fourth assignment is overruled.

The judgment is affirmed.
      ^rxoFor other bases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-.NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. et al. v. CRAIG et al.
    (No. 8218.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 3, 1915.
    Rehearing Denied May 1, 1915.)
    1. Appeal and Ebbob <&wkey;719 — Assignments op Ebbob — Necessity.
    On an appeal from a judgment granting a temporary mandatory injunction, no formal assignments of error are necessary.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dee. Dig. <&wkey;>719.]
    2. .Railboads <&wkey;73 — Rights op Way — Pee-VENTING TRESPASSES — BUILDING EENCES.
    A railroad company was within its rights in building a fence along its right of way to prevent the use of its right of way as a highway or passway by the patrons of a restaurant adjacent to the right of way, though there were no other means of ingress or egress to and from the restaurant, as the use of the right of way for such purposes would largely increase the hazard of accident, and was inconsistent with the use thereof for railway purposes, and a railway company may exclude trespassers from its right of way and take reasonable steps necessary to effect this purpose, even though the title in fee to the land occupied as a right of way is not vested in it.
    [Ed. Note.- — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dee. Dig. &wkey;73.]
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Suit by John Craig and another against the Et. Worth & Denver City Railway Company and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and rendered.
    Carrigan, Montgomery & Britain, of Wichita Falls, Thompson & Barwise and G. W. Wharton, all of Et. Worth, and Huff, Martin & Bullington, of Wichita Falls, for appellants. T. R. Boone, of Wichita Falls, for ap-pellees.
   BUCK, J.

This suit was filed by John Craig and Lee Downs in the district court of Wichita county, Tex., against the Ft. Worth & Denver City Railway Company and other named railway companies, for a mandatory writ of injunction, seeking to- require defendants to remove a certain iron fence which they had erected a short time before along the east edge, but within their property line, of portions of Lots 1 and 2, block 162, of the city of Wichita Falls. Plaintiffs alleged that they were the tenants under a lease of the St. Charles Hotel property, consisting of a large hotel on the second floor, with a room downstairs facing on Seventh street, with a saloon occupying the front part of said first floor, and a restaurant in the rear thereof, and that said hotel had been used for said purposes for five months prior to' the suit; that they had subrented the rear portion of said building for $25 per month for restaurant purposes, and had been deriving about $5 per day for trade drawn from people using the restaurant; that prior to the suit, on, to wit, about the 11th day of May, 1911, these defendants had instituted condemnation proceedings in the county court of Wichita county for the purpose of condemning portions of said lots and block lying immediately east of the premises now owned and controlled by plaintiffs; that said condemnation was sought for the specific purpose of placing on said property sought to be condemned a brick sidewalk to furnish ingress and egress to and from the Union Depot, situated on Eighth street, and for the purpose of acquiring a sufficient amount of ground on which to lay one house track along tlie eastern border of said property, and one industrial track along and across said property, and for the additional purposes of station and depot grounds. It was further alleged that by the terms of the judgment in said condemnation proceedings the amount awarded, to wit, $10,000, was held to be compensation only for the uses and purposes above/ mentioned, and that said sum did not compensate the defendants in said condemnation proceeding for any other damages for any other use of said property; that said iron fence had been constructed within six inches of the wall of said St. Charles Hotel, which was on the division line, and ran the entire length of the premises controlled by plaintiffs herein, and joined to a fence on other property, and thereby closed the doors of plaintiffs’ property which had been cut in the rear portion of said building for the purpose of a means of egress and ingress to the restaurant; that said restaurant was frequented by negroes alone; and that, therefore, the patrons of said restaurant were entirely excluded therefrom, inasmuch, as they could not -come through the saloon, which was used also for white trade. It was further alleged that the fence had been erected for the malicious purpose of injuring and harassing the plaintiffs and of injuring and depreciating the value and revenues of said property. It was further alleged that said fence along and adjacent to the eastern wall of the hotel building blockaded the rear portion of said leased premises, and that at the rear of said building there was a common alley which had been theretofore for a number of years prior to the condemnation proceedings, and continuously up to the erection of this fence of which complaint is made, used as a way of ingress and egress for the rear portion of said building. Other allegations were made as to damages suffered and sought to be recovered.

Defendants’ original answer, after pleading a general denial, specially excepted to plaintiffs’ petition: (1) Because it appeared from the face of said petition that plaintiffs had an adeqaute remedy at law for any injury or damages they had suffered, or would suffer, by reason of the erection and' maintenance of the fence complained of; and (2) because said petition showed on its face that the defendants controlled the property upon which said fence had been built, and had the right under the law to erect a fence thereon, said fence having been alleged to be along and upon said defendants’ right of way. It is further alleged in said answer that all rights granted in the judgment in said condemnation proceedings to the various railway companies had been acquired, and were now held, by the defendant Missouri, Kansas & Texas Railway Company and the defendant Ft. Worth & Denver City Railway Company. A part of said judgment in the condemnation proceedings was set out in said answer, and reads as follows:

“It is ordered, adjudged, and decreed by the court that the plaintiffs herein be, and they are hereby, authorized, upon the payment of said sums of money as herein directed, to take possession of the property hereinabove described, and to use the same for railway purposes, and to have the sole and exclusive possession of said property jointly for the railroad purposes set out in their amended petition filed herein, and shall.be entitled to an immediate and exclusive possession thereof upon the payment of said sums of money.”

It was further alleged that the defendants in this suit, plaintiffs in the condemnation proceedings, and- their successors, had occupied and used said premises as railroad property ever since the date of said condemnation proceedings. It was further alleged by defendants that the erection and maintenance of the fence in question was an absolute necessity for the protection of the public from accident and injuries on the joint house track used by defendants, and that said fence was erected upon the right of way for such purpose; that the plaintiffs were maintaining a saloon and negro eating house immediately adjacent to and adjoining defendants’ right of way, and that the back doors of said saloon and of said negro eating house were opened immediately upon said house track, and that if the right of way was permitted to remain unfenced at said place that large numbers of vicious and disorderly persons would necessarily congregate about such back door, and would pass in and out of said place of business, and would be a source and element of constant danger and annoyance to the defendants, and a source of injury to the public; that in the erection of such fence defendants had invaded no private rights of plaintiffs, but had erected said fence’ upon their own property for a laudable public purpose, as well as their own private protection, and not to injure or vex plaintiffs in any way. It was further alleged in the supplemental answer that in the summer of 1911 Mrs. Adilene Rucks was the owner of the property now occupied by the plaintiffs, to wit, the hotel, and that there had been an agreement between her and the defendants that, in consideration of an agreement upon the part of the defendants at that time to refrain from building a plank fence where the iron fence complained of is now situated, the said Mrs. Rucks agreed to close up the doors in the east wall of said hotel building, and along the right of way of defendants, and that she did so close such doors by placing brick in the same, and that thereupon the defendants abandoned for the time the intention to build a fence at said place, and did not erect such fence until the plaintiffs, in violation of said agreement by and between the defendants and the owner of the hotel property, opened such doors by taking out said' brick, whereupon it became necessary for the defendants to erect the iron fence complained of for their own protection and the protection of the public.

We believe sufficient pleadings have been given above to establish the issues involved in this suit and to render intelligible the discussion thereof in this opinion.

Upon the hearing the court entered a judgment decreeing the issuance of a mandatory writ of injunction prayed for, commanding the appellants to remove the fence, and prohibiting them from erecting or maintaining said fence, from which judgment this appeal is taken.

Although no formal assignments of error in this kind of a case are necessary (Holbein v. De La Garza, 126 S. W. 42), yet appellants have filed their brief in this case, and also written arguments; but for the purposes of this opinion we will discuss the legal propositions involved without a direct reference to the formal assignments contained in appellants’ brief.

If the erection and maintenance of said fence was necessary or reasonably incident to the uses, rights, and enjoyment of the appellants in the property described and used by them for the purposes designated in the judgment in the condemnation proceedings, then it appears to us that the defendants were within their rights in erecting and maintaining said fence, and that the judgment of the trial court granting the mandatory writ was error. It appears that plaintiffs’ petition nowhere negatives the proposition that said fence as erected was not necessary to the use, enjoyment, and rights of appellants in and to the property awarded to them under the condemnation proceedings, but merely alleges that:

“It is not a use of the premises as was contemplated by the condemnation proceedings heretofore had.”
“The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” Gillis v. Rosenheimer, 64 Tex. 243; Carter v. Griffin, 32 Tex. 212; Martin v. Sykes, 25 Tex. Supp. 197; Smith v. Frederick, 32 Tex. 256; Kell Milling Co. v. Bank, 168 S. W. 46; King v. Driver et al., 160 S. W. 415; Weaver v. Emison, 153 S. W. 923; Schlinke v. De Witt Co., 145 S. W. 660; City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459.

It is true that the appellants in their answer alleged that the erection and maintenance of said fence was necessary to the protection, use, and enjoyment of their rights in and to said property for railway purposes specified, and that it is agreed that appel-lees’ denial goes to all of the affirmative allegations contained in defendants’ amended and supplemental answers; yet it is urged by appellants that in injunction proceedings a party who sues for an injunction must stand or fall by the allegations made in his own pleadings, and that the pleadings of the othér party cannot be looked to to supply any deficiency or omission, and we are cited in support of this contention to the cases of Biddle v. City of Terrell, 82 Tex. 335, 18 S. W. 691; Railway Co. v. Vieno, 7 Tex. Civ. App. 347, 26 S. W. 230; Mullaly v. Ivory, 30 S. W. 259. To which might be added the case of De Witt Co. v. Wischkemper, 95 Tex. 435, 67 S. W. 882.

But, irrespective of the question of the sufficiency of the bill of injunction as to this allegation, we feel that it is well established by the authorities in this state that a railway company may exclude from its right of way trespassers, and may take reasonable steps necessary to effect this purpose, even though the title in fee to the land occupied as a right of way be not vested in the railway company. Railway Co. v. Ayers, 149 S. W. 1068; Olive v. Sabine Ry. Co., 11 Tex. Civ. App. 208, 33 S. W. 139; Couch v. T. & P. Ry. Co., 99 Tex. 464, 90 S. W. 860; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295. In the case of Olive v. Sabine, etc., Ry. Co., supra, it is held that, where a right of way of certain width is conveyed to a railway company, the owner of the fee may put the land to all uses consistent with the exercise by the company of its rights and performance of its duties, but that the erection of buildings on the land over which a right of way has been conveyed to the railway company, by the owner in fee, is inconsistent with the rights of the company,, though it had no specific use to which it expects to put the ground. And this view of the law, as expressed in the above-cited case, is supported by various authorities, some of which will be cited. Lumber Co. v. Harris, 77 Tex. 22, 13 S. W. 453; Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295; Muhle v. Railway Co., 86 Tex. 459, 25 S. W. 607. We feel that it must be held, as a matter of law, that the subjection of the right of way of the railway company to uses of a highway or passway for the patrons of a restaurant or other place of business is inconsistent with the use of said property for railway purposes, and that, therefore, the appellants in this ease were within the rights accorded them under the law when they sought to exclude patrons of this restaurant, and the public generally, from using their right of way as such highway or passway. The use of such property for said purposes would largely increase the hazard of accident, and consequently the liability of the railway company, and therefore, in preventing its use for such purposes, the railway company would be taking a course, not only within the conservation of its own rights, but in the protection of the public.

The judgment of the trial,court is hereby reversed, and judgment rendered for appellants dissolving the temporary writ of injunction.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS S. W. RY. CO. OF TEXAS v. MILLER & WHITE.
    (No. 8182.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.)
    1. Carriees t&wkey;219 — Delay in Transportation-Liability op Initial Carrier.
    Where the initial carrier of live stock, though guilty of delaying transportation, delivered an hour and a half late the stock to the connecting carrier while its train was on its track, but the connecting carrier refused without cause to accept the stock and transport it in that train, thereby delaying transportation, the initial carrier was not liable for delay in the delivery of the stock at its destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. &wkey;219.]
    2. Appeal and Error <&wkey;205 — Questions Review able — Findings—Judgment.
    Appellant may not attack the findings of fact unless he excepts thereto in the trial court and reserves his exceptions as provided by law, but he may complain of a judgment because contrary to the findings without excepting to the findings or requesting additional findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. &wkey;265.]
    3. Trial <&wkey;398 — General and Special Findings — Variance—Effect.
    A general finding at variance with a specific finding must be disregarded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 946, 947; Dec. Dig. &wkey;398.]
    4. Carriers <&wkey;230 — Initial and Connecting Carriers — Delay in Transporting Freight — General and Special Findings.
    In an action against the initial and connecting carriers for delay in transporting live stock, a finding of concurrent negligence by both carriers, and a finding that the initial carrier tendered the stock to the connecting carrier, while its train was on its track and about tq leave, but that it refused to then accept the shipment, are inconsistent, and the second finding controls the first, and a judgment against both carriers cannot be sustained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by Miller & White against the St. Louis Southwestern Railway Company of Texas and others. From a judgment for plaintiff, defendant named appeals.
    Reversed, and cause remanded.
    Marshall Ferguson, of Stephenville, and Kearby & Kearby, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellees.
   BUCK, J.

This suit was instituted by H. W. Miller and H. L. White in the county court of Comanche county, Tex., against the St. Louis Southwestern Railway Company of Texas and Avery Turner and G. F. Schleyer, receivers of the Ft. Worth & Rio Grande Railway Company, to recover damages for a shipment of live stock from Lamkin, Tex., on, the line of the St. Louis Southwestern Railway Company to Ft. Worth, Tex. The shipment was made by virtue of separate contracts between plaintiffs on the one hand and the two railway companies on the other, in each of which contracts the liability of the railway company was limited to losses sustained by reason of negligence or fault on its own line. By its contract the St. Louis Southwestern Railway Company undertook to transport said live stock, consisting of 34 head of cattle and one hog in one car, billed out in the name of H. L. White, and 32 head of cattle in the other, shipped in the name of H. W. Miller from Lamkin to Comanche, a distance of 21 miles, Comanche being the terminus ofl its line of railway, and by its contract the receivers’ railway company undertook to transport said shipments from Comanche to Ft. Worth. The live stock were loaded at Lamkin on Monday afternoon, December 15, 1913, and it was alleged that if they had been transported with due diligence and dispatch, they would have reached Ft. Worth early Tuesday morning in time for the market of that day, but that on account of the negligence of defendants and the delays alleged, the shipment did not reach its destination until 3:30 o’clock p. m. Wednesday, December 17th, and too late for the market of that day, and that therefore the live stock had to be held over in the yards at North Ft. Worth until Thursday, December 18th, at which time they were sold. Damages were claimed for ■ an alleged decline in the market between Tuesday and Thursday, for depreciation in selling appearance and market condition of the live stock, and for shrinkage ; the total amount claimed being $323.46. Defendants answered separately, interposing a general demurrer and special exceptions on the part of the receivers, and each denying the allegations of negligence in plaintiffs’ petition, and each specially pleading its contractual limitation of liability to losses sustained by reason of negligence on its own line of railway. The cause was tried before a court without the aid of a jury, and judgment rendered against defendants jointly for $309.75, from which judgment each defendant separately appeals.

There is no statement of facts in the record, but the court filed his findings of fact and conclusions of law, which are hereinafter set out:

“(I) I find that the plaintiffs, on Monday, December 15, 1913, delivered to the defendant the St. Louis Southwestern Railway Company, at Lamkin, Tex., the stock described in their petition, for shipment from Lamkin,- Tex., to Comanche, Tex., final destination, North Ft. Worth, Tex., and that same were accepted for such shipment by said railway company under and according to the terms of a certain written contract entered into between said railway company and the plaintiffs, which contract was in part as follows, and that such stock were shipped under said contract, to wit: That the said St. Louis Southwestern Railway Company specially limited its liability to its own line, and that it only contracted to carry said cattle to Comanche, Tex., and there deliver same to its connecting carrier, the receivers of the Et. Worth & Rio Grande Railway Company.
“(2) I find that defendants Avery Turner and G. H.' Schleyer, receivers of the Et. Worth & Rio Grande Railway Company, received said shipment of stock from its connecting carrier, the St. Louis Southwestern Railway Company of Texas, and accepted said shipment of stock, to be transported from Comanche, Tex., to North Et. Worth, Tex., on Tuesday morning, December 16, 1914, at about 9 o’clock a. m. under and according to a written contract, entered into by and between said plaintiffs and said receivers, which among other things contained the following agreements and conditions, to wit:
“ ‘That said shippers at their own risk and expense are to take care of, feed, water, and attend to said stock while the same may be in the stockyards of the carrier, or elsewhere awaiting shipment, and while the same is being loaded, transported, unloaded and reloaded, and to load, unload and reload same at feeding and transfer points, and whenever the same may be unloaded and reloaded for any purpose whatever, and hereby covenants and agrees to hold said carrier harmless on account of any loss or damage to his said stock while being so in his charge and so cared for by him or his agents and employés as aforesaid, except such damages as may result from the negligence of the carrier.
“ ‘Second, that the live stock covered by this contract is not to be transported within any specified time, nor delivered at destination at any particular hour, nor in season for any particular market, and that this contract is only an agreement for the movement of said stock over the railway line of the carrier between the stations named, and it is not nor shall it be construed as a contract for through shipment over any railway line except that of the carrier.’
“And said contract further provided: Twelfth. * * * The understanding of both parties being that the carrier shall not be held or deemed liable for anything in connection with said live stock beyond its own line of road, excepting to protect the through rate of freight named herein. * * * But in no event shall one carrier be liable for the negligence of another * * * and said shipper waives any right to hold this carrier liable for any delay, damage or injury to said live stock which occurred prior to the exact time at which said live stock were received by this carrier for transportation.’
“(2a) I further find that plaintiffs accompanied said shipment of cattle from Lamkin, Tex., to Comanche, Tex., and thence to Ft. Worth, Tex., as caretakers, under said contracts aforesaid.
“(3) That Lamkin, Tex., is about 21 miles from Comanche, Tex., and that said shipment from the time it left Lamkin, Tex., was about 2y2 or 3 hours in reaching Comanche, Tex., and that this was not a reasonable time in which to make said run, and was a negligent delay, and no excuse was shown for such negligent delay. That T% hours is a sufficient and reasonable time to make said run from Lamkin, Tex., to Comanche, Tex.
“(4) That at the time the St. Louis Southwestern Railway Company of Texas train got to Comanche, Tex., on the night of December 15, 1913, the north-bound freight train of the Et. Worth & Rio Grande Railway Company, receivers, was on the track at Comanche, Tex., and that the agents of the St. Louis & Southwestern Railway Company of Texas tendered' said cars containing said shipment to the receivers’ line to be taken to Et. Worth, Tex., that night, but that receivers’ line refused to accept said shipment that night.
“(5) That no excuse was shown by either of said defendants for the failure of the first-named defendant to deliver, nor the refusal of the last-named defendant to accept, said shipment of cattle out of Comanche, Tex., on the night of December 15, 1913.
_“(6) That by the use of ordinary care and diligence, and without the negligent delays, on the part of both defendants, said shipment could have been carried out of Comanche, Tex., on the night of December 15, 1913, and if it had, it would have reached Ft. Worth, Tex., on Tuesday. morning, December 16, 1913, in ample time for the early morning market of said day, and the damages complained of in this suit would not have occurred.
“(7) That the shipment was held by the St. Louis & Southwestern Railway Company at Comanche, Tex., on the night of December 15, 1913, and unloaded in its stock pens, and on the morning of December 16, 1913, were delivered to the receivers’ road about 9 o’clock a. m. and accepted by said receivers’ road at said time.
“(8) That said shipment was held in the stock pens of receivers’ road at Comanche, Tex., from about 9 o’clock a. m. December 16, 1913, until about 10:30 o’clock p. m. on December 16th, when they were loaded for shipment to North Ft. Worth, Tex., and were transported by the receivers’ road to North Et. Worth, Tex., a distance of about 117 miles, reaching there about 1:30 or 2 o’clock on Wednesday, December 17, 1913.
“(9) That receivers’ road had no facilities at their stock pens in Comanche, Tex., for either feeding or watering said cattle, and that ■ the shippers demanded that said cattle be fed and watered by the receivers, or that facilities be furnished them for said purpose, and which demand was refused by the receivers. That plaintiffs at their own expense fed said cattle the hay stated in their petition, but could not water said cattle at all, on account of the want of facilities for so doing, and said cattle were not watered from date of loading at Lamkin, Tex., until they reached North Et. Worth, Tex.
“(10) That the train on which said cattle werd transported from Comanche, Tex., to North Et. Worth, Tex., was roughly and negligently handled, and was negligently delayed in reaching North Et. Worth, Tex.
“(11) That at the time said shipment was delivered to the consignees at Et. Worth, Tex., the market for said day had closed — there were no cattle buyers on the yards, and no market for said cattle on said day — and that by reason of there being no market on said day of Wednesday, December 17th, the plaintiffs were compelled to hold said shipment over on the yards until the market of Thursday, December 18th, and were compelled to feed them the extra feed stated in their petition.
“(12) That said cattle and hog, by reason of the negligence of the defendants in the negligent delays, want of water, standing on cars, and the rough handling and treatment, were damaged as follows: Grown cattle, an extra loss in weight and flesh of 50 pounds per head; calves, an extra loss in weight and flesh of 25 pounds per head; one hog, extra loss in weight and flesh, 47 pounds. That all of said shipment was damaged five cents per hundredweight in market condition and selling appearance. That said market had declined 25 cents per hundredweight difference in the market on Tuesday, December 16th and Thursday, December 18th, and that all of said damages to the plaintiffs, by reason of the negligence of the defendants, amount to the sum of $309.75.
“(13) That at all times during said shipment, the plaintiffs gave their said cattle all the proper attention that they could with the facilities furnished by the , defendants.
“(14) That the plaintiffs were in no way negligent, and that all of the damages complained of were caused by the negligence of the defendants as above stated, and without which said damages would not have occurred, and that said damages were caused by the combined and concurring negligence of both of said defendants.
“Conclusions of Law.
“(1) I conclude as a matter of law that, by the •exercise of ordinary care and reasonable diligence, said shipment could have been transported from Lamkin, Tex., via Comanche, and to North Ft. Worth, Tex., by both, of said defendants, in time to have reached North Ft. Worth, Tex., in time for the morning market of December 10, 1913, and that it was the duty of the defendants under the law to have so delivered said shipment.
“(2) I conclude as a matter of law that the damages complained of were brought about and resulted from the combined and concurring acts of negligence on the part of both of the defendants, and that both of said defendants are jointly liable for the damage resulting proximatoly from their combined and concurring negligence.
“(3) I conclude as a matter of law that the plaintiffs are entitled to judgment against both defendants jointly for their damage and injury, •caused by the combined and concurring negli- . gence of both of said defendants, in the sum of $309.75, together with 6 per cent, per annum interest thereon from December 18, 1913, and all costs of this suit; and judgment is so rendered.”

It will be seen that in paragraphs 4 and 5 of said findings of fact, the court finds that the St. Louis Southwestern Railway ■Company of Texas train reached Comanche •on the night of December 15th, while the north-bound freight train of the receivers’ railway company was on the track of that road at Comanche, and that the agents of the first-named railway company tendered said ■cars containing such shipment to the receivers’ line to be taken to Ft. Worth, Tex., that night, but that the receivers’ line refused to accept said shipment that night, and, further, that no' excuse was shown by either of said defendants for the failure of the first-named defendant to deliver, nor the refusal of the last-named defendant to accept, said shipment of cattle out of Comanche, Tex., on the night of December 15th. In the face of the court’s findings in the fourth paragraph above that the shipment in controversy was tendered to the receivers’ line on the night of December 15th, and that said receivers’ line refused to accept said shipment that night, and the further finding in paragraph 5 that no excuse was shown for the refusal ■of said receivers’ line to accept said shipment on said night, we are unable to understand upon what basis a joint judgment could be sustained. While it might be reasonably claimed that, because of the time taken by the St. Louis Southwestern Railway Company to transport the shipment in question from Lamkin to Comanche, which the court found to be an unreasonable time for such shipment, and that the reasonable time was from 1 to lVa hours less than that taken, if 'by reason of said delay in reaching Comanche the receivers’ line was not prepared to ship said live stock out of Comanche that night, as they would have been had the shipment from Lamkin to Comanche been made within the time that the court found to be reasonable, and that therefore this negligent delay on the part of the St. Louis Southwestern Railway Company of Texas entered into I and became a concurring cause of the delays that afterwards occurred on the receivers' line, and that therefore the St. Louis Southwestern Railway Company of Texas would be jointly liable by reason of damage sustained from such delays occurring on both lines of railway, but we cannot indulge in such a presumption in the face of the distinct finding of the court that the evidence fails to show any reason or cause for the refusal of the receivers’ line to accept the shipment when it was tendered by the line of its codefendant. If the receivers’ line had no good reason for refusing to accept the two cars from its codefendant when tendered, as found by the court, then it must follow, it seems to us, that said receivers’ line was not caused to so refuse the tender by the delay that had theretofore occurred in the shipment from Lamkin, and that in the exercise of ordinary care it could and should have accepted the shipment when tendered and transported it to the point of destination, and that the St. Louis Southwestern Railway Company of Texas, under its contract limiting its liability to its own line, should not be held liable for delays occurring or damages accruing to the shipment while on the line of its codefendant.

Appellees urgently insist that the case of Landers v. McCutchan, 161 S. W. 960, and the case of Seedig v. Bank, 168 S. W. 445, both by this court, are authority for their contention that where findings of fact and conclusions of law are filed and no exceptions to the findings are made, or request for additional findings, the Court of Appeals will only inquire whether the pleadings sustain the judgment, and cite, in addition to the two cases mentioned, Pugh v. Werner, 166 S. W. 698, and Witt v. Byrum, 135 S. W. 687, Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S. W. 129, and Jones v. Jones, 146 S. W. 265, and quote from Ins. Co. v. Milliken, 64 Tex. 46, in which the court uses the following language:

“If no exception to the conclusions of law or judgment of the court is noted, unless the failure to except be waived or not insisted on, the only inquiry will be whether the pleadings justify the judgment; any other rule would often cause the reversal of judgments which would be affirmed if the case was fully presented.”

We do not think that the contention of ap-pellees that the judgment should be affirmed in this case because of the failure of appellants, or either of them, to except to the findings of fact by the court can be sustained by us, or is supported by the authorities cited. It is true, as stated in these authorities, that an appellant cannot successfully attack the findings of fact filed by the court unless he has excepted thereto in the trial court and reserved his exceptions as provided by law. But we have before us a case in which the appellants are seeking to reverse the judgment because, as claimed, the judgment is contrary to and not supported by the findings of fact themselves, and we believe, for the reasons above stated, such contention must be sustained. 3 Cyc. p. 376, top of page.

In tbe instant case we do not, in any way, intend to question tbe correctness of tbe holdings of tbe courts in tbe eases cited by appellants, as sucb holdings are limited by tbe facts and issues presented therein. But tbe holdings in these eases do not, in our opinion, justify tbe appellate court in sustaining a judgment which cannot be predicated upon tbe finding by tbe trial court of facts which are necessary to its support, nor in sustaining a judgment which is directly at variance with sucb findings upon some material issue, even where tbe court makes further and contrary findings, in tbe nature of general conclusions or deductions from tbe evidence as a whole. If the court finds a fact which would preclude the entry of the judgment rendered, such finding cannot be.obviated or deprived of its effect by other findings which in a general way assert the necessary basis for the judgment, in the instant case, a joint liability for all the injuries for which damages are recovered. The appellants, in their specifications of error attacking the judgment, are not relying on or seeking to refer to the evidence advanced on the trial, which is not before us, and which, therefore, this court cannot consider, but upon the facts as found dy the court, which are before us.

If a discrepancy exists between the general finding and the more specific finding of particular facts, the latter must control. Bank of Oroville v. Lawrence, 4 Cal. Unrep. Cas. 845, 37 Pac. 936. A general finding by the court at variance with the specific facts found must be disregarded. Paisley v. Casey (Com. Pl.) 18 N. Y. Supp. 102; Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11.

Unless the general finding of concurring negligence by both defendants, proxirnately causing all the loss sustained, can be harmonized with the specific finding that the shipment reached Comanche from Lamkin while the north-bound freight train of the receivers’ railway company was on the track, and that the agents of the St. Louis & Southwestern Railway Company tendered said shipment to the receivers’ line, and that it was refused, and no good cause was shown why said tender was refused, and why said shipment was not transported that Monday night over said receivers’ line, then the further findings of joint liability and concurring negligence as to further damages must be disregarded. We do not see how such apparent inconsistent findings can be harmonized. To say that it was negligence on the part of the initial carrier to do no more than tender to its connecting carrier the shipment in question, when the court finds that if such shipment had been accepted by the latter at the time of the tender and transported, as it could have been done, in the train then on the track, and if so transported would have reached its destination in time for the market of the next day, and thus avoided the major portion, at least, of the damages claimed, it seems to us, is unsound in reason and in law. What more could the initial carrier have done? It was not called upon to resort to physical force or the mandatory process of the law to enforce an acceptance by the connecting carrier.

Believing that this error is sufficiently presented in the assignments by both appellants, and that said assignments should be sustained, it is our judgment that the judgment of the trial court should be reversed and the cause remanded; and it is so ordered.
      <g=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SCONCE.
    (No. 8175.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 24, 1915.)
    1. Railroads <§^282 — Operation—INJURIES.
    In an action for injuries caused by cottpn seed cakes falling upon plaintiff in loading a car when another car was coupled to it, evidence held insufficient to show that defendant’s employes knew that plaintiff was in the car.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. &wkey;282J
    2. Railroads &wkey;>282 — Operation—Injuries —Contributory Negligence.
    In an action for injuries caused by cotton seed cakes falling upon plaintiff while loading them into a car," whether plaintiff was guilty of contributory negligence in being in the car when another car was being coupled to it held for the jury.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. &wkey;282.]
    Appeal from District Court, Denton County; C. E. Spencer, Judge.
    Action by Claude E. Sconce, by next friend, against the Missouri, Kansas & Texas Railway Company of Texas. Erom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Charles C. Huff, of Dallas, and Garnett & Garnett, of Gainesville, for appellant. Ows-ley & Owsley, of Denton, for appellee.
   BUCK, J.

This suit was brought by ap-pellee, who, being a minor, sued by Ms father as next friend, to recover damages on account of personal injuries sustained by a car door and some cotton seed cake falling on him, while he was engaged in helping to load a car at the oil mill at Denton, Tex. Jflaintiff was in the employ of said oil mill and was one of some four or five young men working under the direction of a foreman engaged in loading a car with cotton seed cake. The car was partially loaded when the superintendent was notified by the railroad company that it was about to place another car on the side track, where this car in the process of being loaded was located, and to get ready for it. The superintendent had the young men to put a car door in upright position at each end of the stack of cake, and to brace these uprights with another car door, which was nailed or tacked to the floor. The foreman then told all of the employés to get out of the car, which they did. While the incoming car was approaching, several of the young men were told by the foreman to get back in the car and to support these braces, so that the impact of the collision would not knock them down and cause the stack of cake to fall. They did so, and when the coupling was made the doors and the seed were caused to fall, and the door as well as the seed fell upon plaintiff, at least upon his feet and legs, and he was injured. It was alleged by plaintiff that his injuries were caused by reason of the negligence of defendant in running the ear against the one in which plaintiff was with great force and violence, knowing that plaintiff was in said car, and without notice to him that the incoming car would be run against said standing car.

Prom a verdict and judgment for $1,050 with interest, the defendant appeals.

While the plaintiff alleged that the defendant company and its agents failed to notify him that it was going to back its train and car into the car where plaintiff was at work, yet the evidence disclosed that prior to the backing in of said train, that the superintendent of the oil mill, who was in charge of the force loading-the car in question, had been notified by an employé of the railway company some time before that the cars were coming in on the side track, and that he asked such employé to give him time to prepare the car, and he had ample time to prepare the car, and he did so prepare it, putting up these supports as heretofore described at each end of the stack of cake, and that he notified the railway employes that he was ready, and that while the incoming train was some short distance from the standing car the superintendent told these young men to get back into the car. Hence, the court submitted only the question of whether or not' the defendant company, in operating the switch engine and cars against the standing car, propelled the same with unusual force and violence, and caused an unusual jar or jolt to the standing car, and whether or not in doing so such employés were guilty of negligence.

The testimony of plaintiff shows that when he got in the car the second time he knew that the switch engine pushing cars ahead of it was approaching the standing car. His testimony upon this point is as follows:

“We saw the cars coming at the time we went in there to hold the cake up. Yes; when we saw the car coming towards that car we all got hack into the car where the cake was. I don’t know how far off (he car was when we saw it coming. I guess it was about as far off as from here across this room (indicating about 45 feet) or further. I don’t know just how many yards it was; I never noticed. It might have been as far as across this room; I don’t know whether it was further or not. Yes; the car was coming towards the car that the cake was in at the time I noticed it. I never noticed whether it was coming pretty fast or not. I don’t remember whether it was at the end of a train and being pushed down or not. Yes; it was coming down the track, and when it was about 40 or 50 or 60 feet away, we all got into the car to hold the cake. It isn’t a fact that the car was coming so fast that we all knew it would knock that cake down when it struck the car, and we got in there to hold the cake. We didn’t know that it would knock the cake down; we thought maybe it would. The reason we got in there, that fellow gave us instructions to get in there — the boss man. We were in there just a little while until the car struck the one we were in. It didn’t strike just as soon as we got in there and got against the door; we had stood there for a little while. It is not a fact that we had not gotten ourselves well placed there and got fixed until the car struck; we had been there long enough to get ourselves placed and stood there a few minutes — a little while. I said I didn’t notice how fast the car was coming. I don’t know that it was coming tolerably fast; I never noticed. Yes; I saw the car. I didn’t notice how fast it was coming.”

Thus, it will be seen that so far as the plaintiff himself was concerned, he got in the car with the full knowledge of the near approach of the car that was being pushed in. It is further shown by the testimony of H. A. Porter, the superintendent, that ample time was given him in which to prepare the partially loaded car for the shock of the impact. Nor is there any evidence, so far as we have been able to find, that the employés of the railroad company knew, when they pushed the car on to this side track and against the standing car, that any of the oil company’s employés were in said partially loaded car. O. G-. Houser, brakeman, testified as follows:

“The engine was on the south end of those cars and we were shoving them north. Before we shoved them in there 1 went to that car that was being loaded with cotton seed cake. There were some parties in that car at the time. I went to the side of the ear where the men were working inside of the car and told them that we were coming in to switch the mill and to get out of the car. They got out of the car. After that I went south and got up on top of the cars that we were shoving in there. Yes, I went down then to bring the ears in. The men got out of the car and the last I saw of them they were sweeping the scales. When I went up to bring those cars in; I did not know whether they had gotten back into the car or not. When I was on the top, just before the cars came in, I saw the brakeman give the slow signal for the engineer to slow up. After I notified the men, I suppose I went something like 100 feet south of the scales and got on top of the cars. When I got up on top of the cars and the cars were moving against that car, I did not know whether these men had gotten back into the car again or not; I thought there was no one in the car at all.”

The only evidence, as it seems to us, upon which could be predicated a finding of the jury that the defendant company had knowledge that the plaintiff and other employés of the oil company were in the loaded car at the time its switch engine backed other cars into it, is the testimony of Mr. Porter, the superintendent, as follows:

“I couldn’t tell whether the railroad employés knew those boys were in the car or not, but at the mills where I have been it has always been done; for the last 10 years I have been doing the same thing, placing the men in the cars to hold the cake, but whether these men, or the other railroad men, knew that the men were in there, I couldn’t say, and don’t know on this occasion whether they knew these men were in there, but I am practically certain that 90 per cent, of them do — it was the custom of doing that.”

It will be seen that even though it might reasonably be held that such testimony raises the presumption of knowledge on the part of the switching crew that it was customary for those engaged in loading ears with oil mill products, to stay in the car when the coupling was made, yet in this case an employs of the railroad company had come down to the car and notified the employes of the oil mill company that switching was to be done, to get out of the car, and they did get out, and, so far as the record discloses, the last time they were seen by any employs of the railroad company, they were on the outside of the car. We feel under the conditions of this record that there is not sufficient evidence to sustain the allegation of negligence on the part of defendant’s employés, and that appellant’s fifth assignment of error, in which it urges error to the action of the trial court in failing to grant a new trial on the eighth ground set up in its motion, should be sustained. Such ground is as follows:

“The verdict of the jury is contrary to the law and evidence in this: The evidence shows without conflict that plaintiff, Claude E. Sconce, upon the occasion of his alleged injury, was notified and warned by defendant’s brakeman, and had actual notice, that other cars were about to be run into and against the car in question; that after receiving this notice and having this knowledge, and when said other cars were being backed in and were running toward the car in question, and were within 50 feet of the same and still running, plaintiff, without the knowledge of defendant, or any of its employes in charge of said incoming cars, re-entered said car when it was about to be struck, and when the impact came he was hurt and injured, if at all— these facts being established by the evidence, the jury erred in not rendering their verdict in favor of defendant.”

Since this case will have to be reversed for the reasons indicated, it will not be necessary for us to discuss or pass upon appellant’s other assignments, but in passing it may be well to suggest that we do not feel that the trial court erred, as contended in appellant’s second assignment, in refusing to give a peremptory instruction for defendant on the ground that the evidence showed, without conflict, that plaintiff was guilty of contributory negligence in re-entering the car at the time he did. Taking into consideration the fact that he had been working in this employment only a few hours, and his youth and inexperience, we believe that the question of contributory negligence vel non was one of fact for the jury and not of law. And in sustaining appellant’s fifth assignment, we do so because of an utter absence in the record of evidence to show that appellant’s employés in charge of said switch engine and train had any knowledge of the presence of the plaintiff in said car at the time of said impact, or that they had any knowledge of such facts as would have put a reasonable person on notice of his presence or probable presence in said car.

For the reason's given the judgment is reversed and the cause remanded.
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