author: BBOWN, C. J. HAWKINS, J.

text:
    PECOS & N. T. RY. CO. et al. v. THOMPSON.
    (No. 2370.)
    (Supreme Court of Texas.
    June 17, 1914.)
    1. Appeal and Error (§ 1094) — Writ op Error to Supreme Court — Beview oe Evidence.
    The Supreme Court, on writ of error to review a judgment of the Court of Civil Appeals affirming a judgment of the trial court, will not disturb the verdict, where there is sufficient evidence to support it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094.]
    2. Bailroads (§ 22) — Actions — Venue — Statutory Provisions — Co nstruction.
    The proviso in Bev. St. 1911, art. 1830, subd. 26, that a nonresident may sue a railroad company in any county in which the company operates its road, or has an agent, is an exception to the general provision that actions against railroad corporations shall be brought either in the county in which the injury complained of occurred or in which plaintiff resided at the time of the injury, and must be strictly construed ; anc] a plaintiff seeking the benefit thereof must prove that he was a nonresident at the time of the injury, and that he was a resident of some other state, territory, or country, and was, at the time of the accident, living outside the state.
    [Ed. Note. — Eor other cases, see Bailroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.]
    3. Bailroads (§ 22)— Actions — Venue — Statutory Provisions — Construction — “Besidence” — “Domicile.”
    “Besidence,” within Bev. St. • 1911, art. 1830, subd. 26, fixing the venue of actions against railroad corporations for damages for personal injuries, means living in a particular locality, and requires bodily presence as an inhabitant in a given place, as distinguished from “domicile,” which means living in a locality with intent to make it a fixed and permanent home; and one who has no residence elsewhere, but resides in Texas, by being bodily present in the state engaged as a laborer there, is not a nonresident.
    [Ed. Note. — Eor other cases, see Bailroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.

    Eor other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. S, p. 7188; vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642.]
    4. Bailroads (§ 22) — Actions — Yenue — Statutory Provisions.
    A laborer who loft his home and went from place to place in search of work, and working at short intervals, and who obtained work as a brakeman at a town, and who continued in such employment for something over a month up to the time of an injury, was either a resident of the state or a transient, and an action for the injury must be brought in the county in "which it occurred or in the county in which he resided at the time, as required by Bev. St. 1911, art. 1830, subd. 26.
    [Ed. Note. — Eor other cases, see Bailroads, Cent. Dig. §§ 46-50; Dee. Dig. § 22.]
    Hawkins, J., dissenting.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by W. C. Thompson against the Pecos & Northern Texas Bailway Company and another. There was a judgment of the Court of Civil Appeals (140 S. W. 1148) affirming a judgment for plaintiff, and defendants bring error.
    Beversed, and cause remanded, with directions.
    H. E. Hoover, of Canadian, Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for plaintiffs in error. Barrett, Jones & Yates, of Amarillo, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for defendant in error.

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

   BBOWN, C. J.

A plea to the jurisdiction of the district court of Boberts county was filed, claiming that the venue was properly in Potter county, was submitted to the jury by the trial court, and the issue was decided adversely to the defendant below. The plaintiff in error presented the issue on appeal to the Court of Civil Appeals for the Seventh District, and by that court also decided adversely, and the same question is now presented to this court.

In the trial court it was an issue of fact, but in this court it is an issue of law^— that is, this court must take the view of the evidence most favorable to the contention of the defendant in error; and, if there be sufficient evidence to support the finding of the jury, we will not disturb their verdict no matter what may be our view of the evidence.

We copy the statement of the evidence as it appears in the brief of defendant in error filed in this court, which follows:

“Plaintiff was born in Kentucky and, during bis childhood, was carried by his mother to Alabama, where, it is undisputed, both resided until June 20, 1908. Plaintiff is a laboring man, and the evidence indicates that before the last-named date he had had occasional employment away from home. He had worked as brakeman for the Bouisville & Nashville Bailway Company, running between Mobile and New Orleans, spending his time between the two places and partly in one and partly in the other, but keeping his home in the same little town near Mobile, and visiting it occasionally. His mother then and now owns a home in Alabama, which he says he gave her, paying the principal part of the purchase money, and he lived in the same town. He has two children, five and three years old, respectively, and two sisters, all in Alabama. The children are under the charge of his mother generally, but when he testified were with his sisters. He and his wife separated and were divorced in 1908, and on June 20, 1908, he left his home, leaving not only his children, but his bedstead, beds, chairs and parts of his clothes in the house. His intention when he left was to return when he made some money. ■ He gives the following account of his wanderings between June 20, 1908, when he last left home, and January 18, 191Ó, when he received the injury for which this suit was brought: He first went to Mobile; stayed there a day and night; thence to Meridian, Miss.; thence to Jackson, Tenn.; thence to Louisville, Ky., and stayed two nights, trying for work and failing; thence to Chicago, staying one day and night; thence to Minneapolis, Minn., staying three weeks, working for a motor company; thence to -, Minn., working in the harvest fields; thence to Fargo, N. D., staying until the last of January, 1909, working in harvest fields, in an elevator, and as switchman for the Northern Pacific; thence back to Minneapolis, staying two or three months, working for the same motor car company as before; thence, about April 1, 1909, to Haíleville, Okla., which is near Amarillo, staying- how long he did not remember, but working seventeen days for the Rock Island Railway Company. He says he does not remember what 'became of him after this, but he next worked for the Texas Oil Company, near Beaumont, commencing July 5, 1909. He was in the town of Beaumont for a while before and after working for the oil company, eating at restaurants and sleeping at different places, at no two the same night. He worked for the oil company from July to November, 1909, on a pipe line, beginning 3Ó miles, and quitting 100 miles, from Beaumont, and sleeping and eating in camp, without definite time of employment, but employed for as long as his services were wanted and he chose to stay.”
“When he left camp he stayed in Beaumont a week ‘rambling around,’ camping out and fishing part of the time, and sleeping and eating here and thjsre. He let his people know where he was and received letters from them at Beaumont. From Beaumont he went to Ft. Worth, applying for work at Somerville on the way. At Ft. Worth he was told that the Santa Fé was begging for men at Amarillo, and he went there and obtained a position with the defendant, after having applied in vain to the Ft. Worth & Denver City Railway Company. Speaking of these wanderings, he says it was a fact that during the time between his departure from Alabama and the time when he was hurt, he was ‘just floating around,’ getting a job whenever and wherever he could.”
“This brings us down to the time of his arrival at Amarillo, where he obtained employment December 5 or 6, 1909, and was hurt January 18th following. The employment was on what was called ‘the chain gang,’ and was as brakeman, having no regular job, but going when and where ordered. In getting the employment he had to give an address at which he could be found when needed, so as to be notified to go on duty, and gave as his address a-room in the Santa Fé Hotel. As a matter of fact, he did not regularly sleep in that room nor eat at that hotel, even when in Amarillo, but slept often in the caboose and in different rooms and places when he occupied rooms at all. His runs were between Amarillo and Clovis, N. M., and between Amarillo and Waynoka, Okla. He was sometimes in Panhandle, sometimes in Canadian, sometimes in Miami. Of the month and twelve days between his employment and injury he spent about ten days and seven to ten nights in Amarillo and about ten days in Waynoka, spending more time in the latter place than in the former, because of the longer lay-over there. He never had washing done in Amarillo, but did his own washing at Waynoka and Clovis. He mailed letters from any place at which he happened to be, and the only ones received were at Canadian and Clovis. He has sent money, to his mother since he left Alabama, some .as late as the morning of his injury. He had never voted since he left Alabama. In the application for employment, he gave Amarillo as his address, and never changed it, because he had none, and that could be his address as well as any other place. During this employment he was first at one place and then another, in Clovis, Waynoka, Canadian, Miami, and Panhandle, and could have gotten mail at either place. He never told people to address him at Amarillo. His headquarters were not at the Santa Fé Hotel all the time. He didn’t change the address given in his application, but notified the callboy where to find him. Told them at the Santa Fé Hotel. Was not at that hotel more than ten nights. He never stayed at any place long enough to acquire a home; had no headquarter’s at Beaumont or Amarillo. Canadian was as much headquarters as Amarillo; received orders there several times. I-Iad two layoffs ; one at Amarillo; one at Waynoka. Had no room, grip,-or trunk at Amarillo, and never called that place home. Kept his clothes in the caboose. He had formed and declared his purpose to quit.”

The venue in this character of cases is prescribed by the twenty-sixth section of article 1830, vol. 1, McEachin’s Digest:

“All suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in the state of Texas, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in’the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury; provided, that if the defendant railroad corporation does not run or operate its railway in, or through, the county in which the plaintiff resided at the time of the injury, and has no agent in said county, then said suit shall be brought either in the co.unty in which the injury occurred, or in the county nearest that in which the plaintiff resided at the time of the injury, in which the defendant corporation runs or operates its road, or has an agent; and provided, further, that, in case that the plaintiff is a nonresident of the state of Texas, then such suit may be brought in any county in which the defendant corporation may run or operate its railroad, or may have an agent; provided, that, when an injury occurs within one-half mile from the boundary line dividing two counties, suit may be brought in either of said counties.”

It will be seen from this provision of the statute that the venue, as a general rule of practice, is fixed in the county where the injury occurred or where the plaintiff resided at the time of the injury, if he had his residence in any part of the state. There are two provisos embraced in the statute under which suit may he brought in a county other than that in which the injury occurred. The second proviso accords to the plaintiff, who is a “nonresident of the state,” the right to institute such action in any county through which the railroad runs or operates a railroad, or may have an agent. This proviso is in the nature of an exception to the general rule prescribed by the statute for determining the venue of such suit, and, being an exception, it must be strictly construed. Lewis’ Sutherland Statutory Construction, vol. 2, § 352. Applying this rule of construction to the facts of this case, it devolves upon the plaintiff to prove that he was a nonresident of the state of Texas; otherwise he could not maintain his action in any county other than that in which the injury occurred'.

In this view of the case, it becomes unimportant to consider, the question of Thompson’s “residing” at Amarillo at the time of the injury; for, if he was not a nonresident of the state, no matter where he resided in the state, he must have filed his suit in the county where the injury occurred.

The inquiry to be made is: Do the facts of this case show that Thompson was at the time of the institution of this suit a nonresident of this state within the meaning of the statute quoted. I have carefully examined the authorities for a definition of the term “nonresident,” and have found them, to be uniform in holding that he was not such within the meaning of the law, in order to have the privilege of the exception to the general rule fixing the venue, which would give him the right to choose any county through which the railroad was operated, he must have been a resident of some other state, territory, or county that is he must be at the time “living” outside .of Texas.

“ ‘Residence’ means living in a particular locality, but ‘domicile’ means living in that locality with the intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place, and also an intention to make it one’s domicile.” Flatauer v. Loser, 156 App. Div. 591, 141 N. Y. Supp. 953; In re Newcomb, 192 N. Y. 238, 84 N. E. 950.

It follows logically and necessarily that a man who had no residence elsewhere but resides in Texas being bodily present in this state engaged in business as Thompson was, cannot be a “nonresident” of this state. Egener v. Juch, 101 Cal. 105, 35 Pac. 432.

If it be admitted that Thompson was as frequently and continuously at other places as he was at Amarillo, it does not affect the conclusion; for, whether he was a resident of Potter county or some other county in Texas, he was not a nonresident of the state. The fact that in the discharge of his duties he sometimes was out of the state cannot affect this question. Prom his own evidence there can be no doubt that he resided • — i. e. was bodily present — within the state of Texas and was engaged in business in this state at the time he was injured and at the time he instituted this suit.

The evidence is definite and undisputed; therefore it was the duty of the court that' tried this case to have transferred it on the plea of privilege to the county in which the injury occurred, which was Potter county; and, on the evidence adduced, the court should have charged the jury to so find under the undisputed evidence and the law.

It would not be good practice in this court to determine a question of law of this character, which leaves no fact to be found by the jury, and hesitate to apply it to the undisputed evidence, the plaintiff’s own statements. The most favorable conclusion for Thompson would be that he was a transient person, but that would not sustain his claim to choose the venue, because it is not within the proviso. A transient person must sue in the county in which the injury occurred.

As the case was presented on the trial in the district court, the special charge should have been given, but, under our conclusion as to the law, the issue presented by that charge becomes immaterial.

It becomes the duty of this court to enter the judgment which the trial court should have entered; and it is therefore ordered that the judgments of the Court of Civil Appeals and of the district court be, and the same are, hereby reversed, and this cause is remanded to the district court of Roberts county, with directions that the same he transferred to the district court of Potter county.

HAWKINS, J.

(dissenting).

I concur in the conclusion that for want of a proper charge as to what constitutes residence under R. S. 1911, art. 1830, subd. 26, relating to venue, the judgment of the Courts of Civil Appeals and that of the district court must be reversed, and this cause remanded to the district court for a new trial; but I cannot concur in directing the district court of Roberts county, in which this suit was filed, to peremptorily transfer it to the district court of Potter county.

The verdict of the jury upon defendant’s plea of privilege to be sued in Potter county, the county in which plaintiff’s injuries occurred, and in which defendants alleged plaintiff resided at the time he received said injuries, was adverse to defendants, and its effect was to sustain plaintiff’s contention that at the date of said injuries he was a nonresident of this state. Had said verdict upon said plea been rendered under a proper charge as to what constitutes residence under said statute, it would, I think, have been conclusive upon this court, inasmuch as it was sustained by the Court of Civil Appeals, and there is in the record evidence which, as I understand it, tends to support said verdict. Por a condensed statement of facts see the opinion of the Court of Civil Appeals in 140 S. W. 1148.

There was evidence tending to show, and which, I think, would support a finding by the jury, that, at the date of his injuries, plaintiff was not residing at Amarillo, within the meaning of said statute. Plaintiff testified, in substance, that he did not have a regular job in Amarillo, but was employed as a brakeman and was with a “chain gang,” his duties being to run from Amarillo to Clovis, N. M., and return, and from Amarillo to Waynoka, Okla., and return; was called onee to go to Roswell, N. M., but that order was canceled; by his directions had one letter come to him at Canadian, which we judicially know is the county seat of Hemphill county, Tex., and one at Clovis, N. M.; had some mail sent to him to general delivery at Amarillo; upon getting employment he had to give an address at which he could be found when needed, and gave as- such address a room in the Santa Fé Hotel, in Amarillo, because he had no address, and that could be his address the same as any other place; during the time he stayed at Amarillo he did not have a room there regularly; did not have a grip or trunk there; never called that his home; when he came to Amarillo he stopped there; sometimes stayed and slept in his caboose there; never did any washing in Amarillo prior to his injuries, but did his own washing at Waynoka and at Clovis; kept his clothes in his caboose and changed them to the other caboose whenever he changed cabooses; spent from seven to ten nights in Amarillo; slept one night there at the Union Hotel and several nights there in the caboose, and some nights at the Santa Fe Hotel there; -would just go in and ask them if they had a bed; if they did, would pay for it; some nights would be in a room with others, some nights in bed with some one; would not occupy the same room at the Santa Eg Hotel or other place in Amarillo that he occupied the night before; did not notify his employer of change of direction as to where he could be found, but did notify the eallboy where to find him; during the month and twelve days between the date of his employment and the date of his injury, he spent about ten days in Waynoka, more time than he spent in Amarillo, because of the longer lay-over at Waynoka; his headquarters were never in Amarillo, and you could say that Canadian was as much his headquarters as was Amarillo; he received orders several times in Canadian; he did not think the principal part of his work was out of Amarillo ; he worked as much out of Canadian as out of Amarillo; was eleven days between Canadian and Waynoka; during said month and twelve days he was laid off twice, once in Amarillo and once in Waynoka; on the latter occasion he had not gone to Waynoka on “chain gang” from Amarillo, but had gone there from Canadian and was laid off there; on the day before he was injured he had been to Clovis, and had come from there to Amarillo on the day of his injury. The evidence does not disclose what time had elapsed between the date of said injury and plaintiff’s stay at Waynoka or at Canadian.

The majority opinion says:

“The most favorable conclusion for Thompson would be that he was a transient person, but that would not sustain his claim to choose the venue, because it is not within the proviso. A transient person must sue in the county in which the injury occurred.”

My idea of this matter is that mere “bodily presence” in a county is insufficient to conclusively prove “residence” there; that “the the most favorable conclusion for Thompson,” based on his own evidence, is that, although he had worked for several weeks for the plaintiffs in error, he did-not stay at any one place meanwhile long enough or under circumstances such as to justify this court in saying, as a matter of law, that he was “residing” there, and that, as to said period of his employment, and even as to the entire period of his actual existence in the state of Texas, his movements were so transitory — he was to such extent a transient person — as to open the way for the jury to find, upon his testimony as to his family, his home, and his belongings in and his formed and expressed purpose to return there, that he “resided” in Alabama; that he was a nonresident of this state at the time of his injury. That is what I understand to be the effect of the verdict of the jury. I do not believe this court can properly say, as a matter of law, that thfere was no evidence to support said verdict. My understanding of said venue statute is that a man may have a legal domicile in another state and, at the same time, “reside,” within the meaning of said statute, within this state; and X think that phase of the case should have been presented, and should yet be presented, by the trial court to the jury.

I think that, under the circumstances of this case, the proper practice would now be for the district court of Roberts county to submit anew to a jury, under a proper charge, the issue raised by said plea of privilege.


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    LANE et ux. v. KUEHN.
    (No. 2371.)
    (Supreme Court of Texas.
    June 10, 1914.)
    ■Judgment (§ 717

      ) — Conclusiveness — Mat-teks Concluded.
    A judgment for plaintiff in a suit to try title, in which plaintiff claimed under a deed of gift from her husband, and defendant claimed under a judgment and execution against the husband, which judgment was based upon the ground that defendant’s judgment against the husband was void, and did not determine the validity of the husband’s deed to plaintiff, was not res judicata of a subsequent action by defendant as a creditor of the husband, attacking the deed of gift to plaintiff as in fraud of creditors; the validity of the husband’s deed. to plaintiff not being in issue in the former action.
    TEd. Note. — For other cases, see Judgment, Cent. Dnr. 8 1248: Dec. Dig. 5 717.]
    Error to Court of -Civil Appeals of Sixth Supreme Judicial District.
    Action by Charles Kuehn against Joe Lane and wife. A judgment for plaintiff was affirmed by the Court of Civil Appeals (141 S. W. 363), and defendants bring error.
    Affirmed.
    W. T. Allen, of Henrietta, for plaintiffs in error. Taylor, Jones & Humphrey, of Henrietta, for defendant in error.

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

   BROWN, C. J.

The Court of Civil Appeals found and stated the following facts:

“Lot 18, block 2, in Oil City, Clay county, belonged to the community estate between Frank Kuehn and P'earl Kuehn, his wife. Frank Kuehn was insolvent, and among the debts he was unable to pay was one due to appellee. Under these circumstances Frank Kuehn gave to his wife and by a deed conveyed to her the lo.t mentioned. Afterwards appellee brought suit on the debt referred to, and recovered a judgment against Frank Kuehn. By virtue of an execution issued on this judgment, the lot was sold, and appellee and P. L. Kuehn were the purchasers at the execution sale. Afterwards Pearl Kuehn, then Pearl Lane, she having been divorced from her former husband, Frank Kuehn, and having married appellant Joe Lane, brought a suit against Frank Kuehn, appellee, and P. L. Kuehn to try the title to the lot. Her petition was in the form ordinarily used in an action of trespass to try title. Frank Kuehn answered her suit, disclaiming title. Appellee and P. L. liuehn answered it by a plea of not guilty. On the trial Mrs. Lane for title relied on the deed of gift to her from her former husband. Appellee and P. L. Kuehn offered evidence showing the deed of gift to be fraudulent and void as to' Charles Kuehn, the plaintiff in the judgment under which they claimed, and relied upon that judgment and their deed from the sheriff as proof of title in them. The court held the judgment to be void, ‘because it did not properly dispose of the parties’ to the suit in which it was rendered, and thereupon rendered a judgment in favor of appellant Pearl Lane. ‘Said judgment,’ it is recited in the statement of facts, ‘did not save or except from its adjudication any of the issues made in said cause, but declared in general terms that the said plaintiff (Pearl Lane) recover of and from said defendants the title and possession’ of the lot. Aft-erwards appellee recovered a valid judgment against Prank Kuehn on said debt, and had an abstract thereof registered as provided by law so as to create a valid lien on all real estate owned by said Prank Kuehn in Olay county. Claiming that the deed of gift from Prank Kuehn to his wife was void as to him, and therefore that the lien of his judgment attached to the lot as property belonging to Frank Kuehn, Charles Kuehn by a suit against Prank Kuehn, Pearl Lane, and her then husband, Joe Lane, sought a foreclosure of the lien he asserted. Prank Kuehn, it seems, did not answer the petition in this suit. Pearl Lane and her husband answered by a general denial, and set up the judgment rendered in favor of Pearl Lane in her suit against Prank Kuehn, appellee, and P. L. Kuehn as a bar to the relief appellee sought. This appeal is from a judgment in favor of appellee foreclosing the lien he claimed as prayed for, and directing a sale of the lot in satisfaction of his judgment against Prank Kuehn.”

Assuming, as seems to be admitted, that the first judgment recovered by defendant in error against Prank Kuehn for the debt was void, the judgment of the district court in the suit of Charles Kuehn against Pearl Lane and husband was correct; but it conferred no title on Pearl Lane, nor did it affect the right of Charles Kuehn to establish, his debt by a subsequent valid judgment. The void judgment did not affect the rights of the parties accruing under a subsequent judgment for the debt. The judgment of the district court here pleaded barred a recovery by Charles Kuehn under his purchase at a sale made under the void judgment, but did not adjudicate and bar his right under a valid judgment upon the same debt, nor did said judgment relieve the conveyance from Prank Kuehn the debts or to his then wife, Pearl Kuehn, of its infirmity as a fraudulent conveyance.

The judgment of the Court of Civil Appeals is affirmed.


text:
    LOGUE v. SOUTHERN KANSAS RY. CO. OF TEXAS.
    (No. 2354.)
    (Supreme Court of Texas.
    June 17, 1914.)
    1.Appeal and Error (§ 1177) — Determination and Disposition op Cause — Revebsal —Remand.
    The Court of Civil Appeals may reverse a judgment on the weight of the testimony, but, if the evidence, when considered in the light most favorable to the successful party, would sustain the judgment, it cannot render judgment, but must remand the ease.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dee. Dig. § 1177.]
    2. RailRoads (§ 72) — Location op Road and Stations — Contracts as to Location.
    The grantee of a tract of land upon which a railroad located its right of way and a station, was entitled to the benefit of any contract with his grantor for the permanent maintenance of the same thereon.
    [Ed. Note. — Por other cases, see Railroads, Cent Dig. §§ 168-178; Dec. Dig. § 72.]
    3. Railroads (§ 17) — Officers and Directors — Contracts as to Location of Road and Stations.
    Under Rev. St. 1911, art. 6445, vesting all the corporate powers of a railroad corporation in its board of directors, and article 6446, providing that the president shall perform such duties as the directors may require, the president could not contract for the maintenance of the road, its offices and station on certain land, in the absence of express authority from or ratification by the directors.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. § 17.]
    4. Railroads (§ 72) — Sales — Rights and Liabilities of Puechasees.
    A corporation purchasing a railroad was only charged with such burden or condition as attached by law, and no presumption could arise from the mere occupancy of land under deed that there was a private agreement with the president of the railroad that the road, its offices and station, should be permanently located thereon.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 168-178; Dec. Dig. § 72.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Jamos Logue against the Southern Kansas Railway Company of Texas. Prom a judgment of the Court of Civil Appeals (139 S. W. 11) reversing a judgment for plaintiff, and rendering judgment for defendant, plaintiff brings error.
    Affirmed.
    R. E. Carswell, of Decatur, R. R. Hazle-wood, of Amarillo, and Williams & Stedman, of Austin, for plaintiff in error. Terry, Cavia & Mills, of Galveston, and Madden, Trulove & Kimbrough and Prank M. Ryburn, all of Amarillo, for defendant in error.

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

   BROWN, C. J.

In order to place the case properly before the court, we will copy from the opinion of Chief Justice Ply:

“Appellee sued appellant for damages alleged to have accrued to him by reason of the depreciation in value of town lots and lands in and near the town of Washburn, in Armstrong county, Tex., the depreciation arising from the act of appellant in taking up its rails and discontinuing its road between Panhandle, in Carson county, and Washburn, and the construction of its road direct from Panhandle to Amarillo, leaving Washburn 6 miles off its line. It was alleged that in 1887 R. E. Montgomery was in possession of four sections of land; Nos. 62, 63, 98, and 99, which lay in such contiguity to each other as to substantially form a square, and a right of way was granted the Ft. Worth & Denver Railway Company across said sections, together with a depot ground about the center of the square, and also there was donated to the said railway company about 100 acres out of said square, the consideration being that the railway company would establish on said land its depot, which was done, and the station called Washburn; that afterwards the Panhandle Railway Company was incorporated to build a railroad from a point at- or near Washburn in a northeasterly direction to Panhandle, the charter thereof providing that it would establish and maintain its principal offices at Wash-burn; that said railway company entered into an agreement with Montgomery, by which, in consideration of the grant of right of way and depot grounds, it agreed to forever maintain its road, depot, and principal offices at Washburn; that the right of way and depot grounds were taken possession of, the road was constructed, and the depot established, and the same were used and occupied until the same was purchased by appellant under and by authority of an act of the Twenty-Sixth Legislature in 1899, and the same was taken possession of by appellant and operated as a part of its line until about April, 1898, when appellant wrongfully and willfully took up and removed its tracks from Panhandle to Washburn, and ceased to operate that part of its line, and permanently abandoned and discontinued the same. By the pleadings appellant was charged with knowledge of the contract of the Panhandle Railroad, but disregarded the rights of appellee which were obtained by his purchase on December 1, 1906, by all of the 4 sections of land owned at that time by Montgomery, together with all the covenants, rights, privileges, and appurtenances belonging or appertaining to the same; that when Montgomery laid off and platted the town of Washburn he included about 600 acres, consisting of about 5,000 lots, and published a map and plat, which showed the donations to the Panhandle Railway Company, and that it was replatted by appel-lee, who owned 1,603 acres of land out of the 4 sections, in addition to 5,388 lots, as shown by the map of Washburn; that said lots were worth, prior to the removal of the railroad, $30 each, and the acreage property $40 an acre, but by the removal the lots were reduced in value to $15 each, and the acreage property to $20 an acre, the total depreciation being $112,-970.
“Appellant answered by general and special demurrers, general denial,- and special pleas, which gave a history of the default of the Panhandle Railway Company in the payment of certain bonds, the foreclosure of a mortgage, a sale of the road and its properties and franchises to Edward Welder, and his sale on January 1, 1900, to appellant by virtue of the authority of an act of March, 1899, of the Legislature of Texas. It was further answered that by an act of the Legislature, of date Mai-ch 26, 1907, appellant had been authorized to take up and abandon' its track and road from Washburn to Panhandle, and a plea of limitations was also filed.”

The Court of Civil Appeals having reversed the judgment of the district court and rendered judgment for the railway company, it will be the duty of this court to, reverse that judgment if the testimony rendered by the plaintiff on that issue would be sufficient to sustain the judgment of the trial court. The rule is that the Court of Civil Appeals may reverse a judgment on the weight of the testimony, but that court cannot render judgment if the evidence, when considered in the light most favorable to the party in whose favor the judgment is rendered, would sustain the judgment of the trial court. In such case the Court of Civil Appeals must remand the case to the district court.

In order to test the correctness of the judgment of the Court of Civil Appeals under the rules stated, we will now state that portion of the evidence which is most favorable to the plaintiff in error, Logue.

R. E. Montgomery testified to the following facts:

“Montgomery swore that he donated depot grounds, right of way — about 154 acres — to the Pt. Worth & Denver and the Panhandle roads, and ‘the consideration was the building, establishment, and maintenance of both railways, with their depots and stations on my land, both companies taking possession of the land so donated and using it as they desired for railway purposes.’ He made a deed of the land donated to the Ft. Worth & Denver Road, but gave no deed to the Panhandle Road. He further testified: ‘I was one of the incorporators of the Panhandle Railroad and a stockholder and director of the company, and its charter provided that its railway should be built over my land, its depot erected, located, and maintained thereon, and that its principal office should be and remain there forever, and that was the understanding and agreement between us. I can’t tell what officers I had this agreement with as to the establishment and maintenance of the general offices or the building of the road, or the establishment of its station and depot on my land, but think it was with the president, who, I think, was J. P. Smith, Morgan Jones, and probably some of the other officers of the company named in the charter, but I do know that my agreement with them was that this road, with its depot, station, and principal place of business, should remain on the land that I donated forever, and I would not have donated this land for any other purpose, except a permanent one.’ ”

This evidence was contradicted by the witnesses of the railroad company.

The charter of the Panhandle Railway Company contains this statement:

“The principal business office of said corporation shall be located and maintained at Wash-burn, in the county of Armstrong, in the state of Texas.”

We find in the statement of facts a copy of the various acts of the Legislature which authorized the purchase of the Panhandle Railway by the Southern Kansas Railway Company, the defendant in error. The law also authorized the Southern Kansas Railway Company to take up the track of the Panhandle Railway from Washburn to Panhandle. We also find the following provision in the said law:

“The enactment of this law shall not preclude any person who may have a legal cause of action against said Southern Kansas Railway Company for damages, if any, occasioned by reason of the taking up and destruction of said track from prosecuting said cause of action in the proper cdurt having jurisdiction thereof.”
The foregoing 'states all of the evidence that we find in the record favorable to the plaintiff in error, and upon that evidence we will examine his right to a reversal of a judgment of the Court of Civil Appeals.

For the discussion of the question of law before us we will assume: First, that the plaintiff in error is entitled to recover from the defendant company whatever Montgomery could have recovered under the facts of this ease; secondly, we will assume that Montgomery made a contract with one or more of the directors of the Panhandle Railway Company, to the effect that the depot and principal offices of the corporation should be permanently established at the town of Washburn, in consideration of the granting of the right of way and depot grounds mentioned in the opinion. We deem it unnecessary to copy into this opinion the -statutory provisions which have already been either copied or so stated as to be understood.

Article 4367 of the Revised Statutes 1895 reads thus:

“Every, railroad company chartered by this state, or owning or operating any line of railway within this state, shall keep and maintain permanently its general offices within the state of Texas at the place named in its charter for the locating of its general offices; and if no -certain place is named in its charter where its general offices shall be located and maintained, then said railroad company shall keep and maintain its general offices at such place within this state where it shall have contracted or agreed or shall hereafter contract or agree to locate its general office for a valuable consideration ; and if said railroad company has not contracted or agreed for a valuable consideration to maintain its general office at any certain place within this state, then such general offices shall be located and maintained at such place on its line in this state as said railroad companies may designate to be on its line of railway. And such railroads shall keep and maintain their machine shops and roundhouses, or cither, at such place or places as they may have contracted to keep them for a valuable consideration received.”

That article was construed in Kansas City, Mexico & Orient Railway Co. v. City of Sweetwater, 104 Tex. 334, 137 S. W. 1118. Assuming that there was a contract made between Montgomery and the directors of the railroad company for the location and maintenance of the depot, offices, etc., in Wash-burn, then the case would come within the terms of that article, and in that case Logue would be entitled to all of the benefits of the contract made by Montgomery.

The right of the plaintiff in error in this case depends upon the two following articles of the statute:

“Art. 6445. All the corporate powers of every railroad corporation shall be vested in and be exercised by its legally constituted board of directors.
“Art. 6446. There shall be a president of the corporation, who shall be chosen from and by the board of directors, and such other subordinate officers as the corporation by its by-laws may designate, who may be elected or appointed, and shall perform such duties and be required to give such security for the faithful performance thereof as the corporation, by its by-laws, shall require.”

In terms which cannot be misunderstood the statute commits all of the powers of the corporation to a board of directors, and designates the president as an officer who has power from the board of directors to see that the orders or the directions of the directors are executed. Such president could not make such contract as is claimed in this case.

In the case of Kansas City, Mexico & Orient Railway Company v. City of Sweetwater, above cited, the question that is now before the court was presented, except that the claim was more strongly supported by evidence in that case than in this. In that case this court said:

“It will be observed that the statute places all authority of the corporation in the board of directors, and the power of the officers of the company depends upon the action of the board of directors in conferring authority upon them. The fact that McCaulley was vice president of the railroad company did not authorize him to make the contract in question; that power could only be derived from the board of directors. Yet we must keep in mind that it is not necessary that there should be express authority given, but whatever may be sufficient to justify the conclusion that the directors— that is, the authorized body of the railroad company — had conferred this authority upon McCaulley, or had, knowing of his having exercised it, approved or ratified it in any way, would be sufficient. Missouri, K. & T. Ry. Co. v. Faulkner, 88 Tex. 651 [32 g. W. 883]. It is claimed that, under the by-laws of the corporation, the vice president was authorized, in the absence of the president, to exercise such authority as was given to the president, but there has been nothing adduced, so far as we are able to find, which tends to show that the board of directors ever conferred such authority upon the president himself. There is no direct evidence of the giving of authority by any officer authorized to do so to McCaulley to make this contract, and we must now determine from the evidence whether there was such approval and ratification as will bind the company. Gulf, C. & g. F. Ry. Co. v. Jones, 82 Tex. 156 [17 g. W. 534]. McCaulley could not ratify his own acts. A binding ratification must be based upon the acts of those who could have conferred the power to do the act, and must rest upon a knowledge of the facts. The ordinance granting consent of the city did not express the consideration that the company should locate the machine shops, roundhouse and offices at gweetwater; therefore the use of the streets under that ordinance did not constitute a ratification of that which was not expressed in the ordinance, unless it is shown to have been known to the officers whose acts are relied upon as a ratification.”

We could add no force to the conclusion there announced by a repetition of the argument made in that case. However, we will show the contrast between the facts of the two cases, and the conclusion that the decision in the case must control this will necessarily follow. In that ease it was assumed that the president or vice president of the railroad company made a contract with gweetwater, by which it was agreed that, in consideration the city would give the railroad company permission to construct its lines upon a certain street, and operate its railroad upon that street, the railroad corporation agreed that it would construct its shops and maintain them at that place. The railroad company subsequently sought to remove the shops to gan Angelo, whereupon an injunction was sued out, and a judgment was rendered denying it the right to do so. The ease was brought by writ of error to this court, and the issue of law was distinct and clear as to whether the railroad company was bound by the contract of its president without ratification of the board of directors.

This court' held that the president had no authority to make such a contract, except under the direction of the board of directors, ‘and that the railroad company was not bound by his action, unless it was adopted and approved by the board of directors, or that the board of directors, knowing of this contract and its terms, ratified the said action, or that with such knowledge and the use of the street by the railroad company the board by its action .thereafter adopted such agreement made by its vice president. In that case the use of the street was open to everybody, and the trains operated upon it with the shop near by, but there was no knowledge of the contract or evidence that the terms of the contract had been brought home to the board of directors. The court said:

“We are of opinion that the railroad company is not bound by the alleged contract; that the use of the streets was not accepted as a consideration for the location of the offices, machine shops, and roundhouse at said city; and the city is not entitled to the injunction prayed for.”-

Prom the occupancy of the land under deed from Montgomery, no presumption could arise that a private agreement like this existed. The purchasing corporation was charged with notice of such burden or condition as attached by law. The writer would be unable to make this matter more satisfactory than is done by the quotation above. We simply add that the case before us has no facts upon which to rest its claim of a contract with the directors of the Panhandle Railway Company, without which no right was acquired by Montgomery against that company; therefore Logue has acquired no right against the defendant in error.

The judgment of the Court of Civil Appeals correctly administers the law of the ease, and it is therefore affirmed.


author: PHILLIPS, J.

text:
    PIERCE OIL CORPORATION v. WEINERT, Secretary of State.
    (No. 3182.)
    (Supreme Court of Texas.
    June 10, 1914.)
    1. Corporations (§ 651) — Foreign Corporations — Exclusion from State — Construction oe Statute.
    Under Rev. St. 1911, art. 7805, providing that _ when any foreign corporation has been convicted of a violation of the anti-trust laws, and its right to do business in the state has been forfeited, as provided in article 7802, no other corporation to which it may transfer its property and business, or which assumes the payment of its obligations may incorporate or do business in the state, a foreign corporation, incorporated to acquire, and which ‘purchased, took over, and assumed, the obligations of and carried on the business of a foreign corporation which had been, by final judgment, convicted of a violation of the anti-trust laws of the state, fined, and perpetually enjoined from transacting any but interstate business within the state, was prohibited from doing business in the state; the provision being intended to prevent the fictitious succession of a foreign corporation whose permit to transact its business had been forfeited, regardless whether the acquisition of its property and business took place before or after its conviction.
    [Ed. Note. — Eor other cases, see Corporations, Gent. Dig. §§ 2574, 2575; Dec. Dig. § 651.]
    2. Corporations (§ 636) — Foreign Corporations — Power to Exclude, Restrict, or Regulate.
    A foreign corporation’s transaction of other than interstate business within the state .is only a privilege, which the state may extend or withhold, and as to which it may prescribe the terms or conditions upon which it extends the right, and the corporation, seeking only a license which the state is not bound to give, is in no position to complain of the severity of its terms.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. § 636.]
    3. Constitutional Law (§ 82) — Ex Post Facto Law — Retroactive Operation — Foreign Corporations.
    Under Rev. St. 1911, art. 7805, providing that when any foreign corporation has been convicted of a violation of the anti-trust laws, and its right to do business in the state has been forfeited, as provided in article 7802, no other corporation to which it may transfer its property and business, or which may assume its obligations, shall be permitted to incorporate or do business in the state, no question of the attainder of property is involved, since no sale of its property is prevented; and since the purchaser of its property without its business is not excluded.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 149; Dec. Dig. § 82.]
    4. Corporations (§ 636) — Foreign Corporations — Extraterritorial Eeeect of State Anti-Trust Law.
    Such statute exerts no extraterritorial power, as it prohibits only acts attempted within the state even though the prohibition may operate because of acts done without the state.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. § 636.]
    Original petition for mandamus by the Pierce Oil Corporation against F. C. Weinert, Secretary of State.
    Refused.
    H. S. Priest, of St. Louis, Mo., E. B. Perkins, of Dallas, and N. A. Stedman, of Austin, for plaintiff. B. F. Looney, Atty. Gen., and C. M. Cureton, Asst. Atty. Gen., for defendant

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

   PHILLIPS, J.

The relator, Pierce Oil Corporation, is a Virginia corporation, chartered on June $21, 1913. It has heretofore made application in due form to the Secretary of State for a permit to do business in the state, tendering in that connection the anti-trust affidavit required by law, and all lawful fees. Upon his refusal to issue the permit it has filed this motion for leave to file its petition for mandamus to compel its issuance. On June 1, 1907, in a suit by the state in the district court of Travis county, the Waters-Pierce Oil Company, a foreign corporation chartered in Missouri, was by final judgment convicted of violation of the anti-trust laws of this state, for which a large fine was imposed, its permit to do business canceled, and an injunction issued perpetually enjoining it from transacting any but interstate business within the state. The relator was incorporated with the purpose of acquiring the property and business of the Waters-Pierce Oil Company, then conducting its business in Missouri, in other states and in the republic of Mexico; and shortly after its incorporation it purchased and took over from the Waters-Pierce Oil Company all of its property and business and assumed all of its obligations, which business it now owns and operates.

We do not find it necessary to determine whether the relator is but a corporate continuation of the Waters-Pierce Oil Company, and therefore subject to the injunction decreed against that company in the suit above referred to, one of the positions here advanced by the respondent as a ground for his refusal to issue the permit. The question is in our opinion plainly ruled by the statute (article 7805, R. S. 1911), which is as follows:

“When any foreign corporation has been convicted of a violation of any of the provisions of this chapter, and its right to do business in this state has been forfeited, as provided in article 7803, no other corporation to which the defaulting corporation may have transferred its properties and business, or which has assumed the payment of its obligations, shall be permitted to incorporate or do business in Texas.”

The Waters-Pierce Oil Company having been convicted of violation of th<j anti-trust law of the state embodied in the chapter of which article 7805 is a part, and its right to do business in the state having been forfeited, the relator, a foreign corporation to which it has transferred all of its properties and business, and which assumed the payment of all of its obligations then existing, comes directly within the statute, and is prohibited from doing business in Texas, unless, by construction, the statute is given an effect contrary to the meaning of its literal terms.

Several contentions are made by the relat- or in respect to the proper construction of this statute, all of which we have examined, but none of which we regard as sound. Among others, it urges, principally: (1) That the whole policy and purpose of the antitrust legislation of the state is only to prevent illegal combination in restraint of trade, and it was not the intention of this statute to exclude from the state an independent foreign corporation not a member of any such combination, which will afford competition in its lino, and is able to truthfully make the anti-trust affidavit required of foreign corporations under article 1315, and has done so, merely because it has acquired the properties and business, or has assumed the obligations of another foreign corporation once convicted under such laws and its permit forfeited, but which, at the time of the sale of its property and business, was free from any illegal alliance. (2) That under the proposition just stated the statute should be limited in its application to such corporations as constitute but a reorganizaion or continuance of the convicted corporation. And (3) that, regardless of any other view, the statute should be held to apply to only such transfers of the properties and business of the defaulting corporation as were made prior to its conviction. In connection with these general propositions it is also urged that, to hold the relator barred from the state because of its purchase, out of the state, of the properties of the Waters-Pierce Oil Company not situated within it, is, in effect, to attaint such property, and is likewise to give the statute an extraterritorial operation.

The transaction by a foreign corporation within the state of other than interstate business is only a privilege, which the-state may extend or withhold; it is not a right which the corporation possesses. The state is free, therefore, to prescribe the terms or conditions upon which it grants the authority. They may be rigorous, but the power of the Legislature to give them that character is undoubted ; and the foreign corporation, in seeking only a license which the state is under no obligation to allow, is in no position to complain of their severity. Its only alternative is to come within the conditions which the state has seen fit to impose. Taber v. Interstate B. & L. Ass’n, 91 Tex. 92, 40 S. W. 954.

The manifest aim of this statute was to prevent the fictitious succession in this state of a foreign corporation which had been adjudged an offender against the anti-trust law, and whose permit to transact its business had been forfeited. The Legislature had the right to select and provide any test which it deemed a proper one for determining that question, or to exclude from the state any corporation sustaining a given relationship to the convicted corporation. It might have enacted the statute in such terms as would deny the privilege of coming within its borders, for the transaction of their business, to only such corporations purchasing the property and business of a defaulting corporation as were but its continuation, or to only such as had made the purchase prior to its conviction. But no such qualification can be imposed by construction upon this statute in the face of its plain provisions. The statute very clearly evinces a purpose on the part of the Legislature to reject any inquiry by the officials of the state as to whether the corporation seeking the permit has any identity with the convicted corporation, and to provide, as the test of its right, simply whether it has acquired the properties and business, or has assumed the obligations of a foreign corporation previously convicted under the anti-trust law, and whose permit has been forfeited. The statute permits no inquiry beyond this. And no exemption from its operation can be predicated upon a condition which discloses the acquisition of the properties and business of such a defaulting corporation, or (he assumption of its obligations, by the corporation seeking the permit, regardless of whatever else may be shown in respect to its relationship. Language could not be plainer, and there is no room for a different construction. With the policy or wisdom of the statute this court has nothing to do. It is our duty to give effect to its provisions.

It is furthermore evident that the Legislature intended to make immaterial when the acquisition of the defaulting corporation’s properties and business took place, whether before or after its conviction, since the statute is silent upon that question. It merely provides that no foreign corporation shall be permitted to incorporate or transact business in Texas, to which the defaulting corporation “may have transferred its properties and business, or which has assumed the payment of its obligations,” which can only mean a corporation that has made such acquisition or undertaken such assumption at any time prior to its effort to so incorporate or transact business within the state. Necessarily the only concern of the statute in this respect is whether the corporation is under the disability it imposes, at the time it seeks to incorporate in Texas or transact its business in the state, no matter when it was incurred. That is the point of time, and the only point of time, to which it has reference in relation to the transfer of the defaulting corporation’s properties and business and the assumption of its obligations. The corporation comes under the disqualification of the statute, whenever such transfer is made or such obligations are assumed.

That similar language is employed in article 7802, relating to the acquisition of the properties and business of a defaulting domestic corporation, which, it is said, cannot transfer its property after its charter is forfeited as the result of such conviction, does not affect the question. That a corporation taking over the properties and business of a convicted domestic corporation could only come, for that reason, under the disability of that article, by a purchase made before the latter’s conviction, is of no force in determining the effect of this statute. It is perfectly plain that it is the transfer of the defaulting corporation’s properties and business which creates the disqualification under both articles; the time of the transfer is immaterial.

There is no question of the attainder of property involved. The statute makes no such attempt. Nor does it seek to prevent any sale by the convicted corporation of its property. A foreign corporation which buys merely the convicted corporation’s property is not excluded by the statute. It must acquire “its business,” as well, to be subject to its operation. The defaulting corporation, so far as affected by this statute, is left free to sell both. It is merely provided that a foreign corporation acquiring both cannot be permitted to incorporate or transact business in Texas.

The statute exerts no extraterritorial power. It does not prohibit anything done without the state, but only that which is attempted within the state. That its prohibition may operate because of acts done without the state does not impart to it an extraterritorial effect, or render it any the less a valid exercise of legislative authority over a subject within the jurisdiction of the state. As the state has the right to entirely withhold its permission for a foreign corporation to transact business within its limits it is within its power to provide that such permission shall be denied for such cause as it may prescribe, whether based upon acts within the state or out of it. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645.

The motion is refused.


author: FLY, C. J.

text:
    LISLE-DUNNING CONST. CO. v. McCALL.
    (No. 5278.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 13, 1914.
    Rehearing Denied June 17, 1914.)
    1. Appeal and Error (§ 997) — Questions REVIEWABLE — SUFFICIENCY OP EVIDENCE.
    The court on appeal, on reviewing the refusal of the trial court to direct a verdict for defendant, will consider the testimony and determine whether the evidence of plaintiff sustains the verdict for him, and, where it does so, it will not consider the conflicting evidence of defendant.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. § 997.]
    2. Appeal and Ebbob (§ 1003) — Verdict— Conclusiveness.
    A verdict sustained by any evidence will not be disturbed on appeal, though it may be against the preponderance of the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    3. Master and Servant (§ 279) — Injury to Servant — Negligence—Evidence.
    In an action for injuries to an employé struck by a rod of steel thrown from a car, evidence held to show negligence of the superintendent in permitting laborers to throw steel rods in the place where he had ordered the em-ployé to go, and where the superintendent knew, or should have known, the employé had gone.
    [Ed. Note — Eor other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.]
    4. Trial (§ 233) — Instructions—Preliminary Statement of Issues.
    While it may not be necessary to make a preliminary statement of the issues raised by the pleadings, it is not error for the court in its charge to state the issues by copying a part of the petition.
    [Ed. Note. — Eor other cases; see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.]
    5. Appeal and Error (§ 754) — Questions ' Reviewable — Instructions — Objections.
    Where no objection was made in assignment of error or proposition to the charge because of a repetition of the same matter in separate paragraphs, a suggestion of repetition under the head of “remarks” will not he entertained on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dee. Dig. § 754.]
    ,6. Master and Servant (§ 189) — Injury to ' Servano^-Liability of Master.
    Where a foreman had been superseded by a superintendent, who was a member of the employer, a firm, the negligence of the superintendent causing-injury to the foreman was the negligence of the employer, for which the foreman could recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.]
    7. Trial (§ 252) — Instructions—Evidence.
    It is not error to refuse charges not supported by any testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. Dig. § 252.]
    8. Master and Servant (§ 189) — Injury to Servant — Negligence—Evidence.
    Where the superintendent, an employer, directing the men in unloading from a car steel rods and a bar cutter, ordered an employé to go after timber and build a skid on the south side of car to unload the bar cutter, and then remained silent when he saw men preparing to throw steel rods on the south side, and a steel rod struck the employé, the liability of the employer did not depend on whether the superintendent gave the order to the men to change the manner of unloading the steel rods, because it was negligence for him to remain silent when he must have known that the em-ployé was on the south side of the car at the time the men threw steel rods on that side.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by J. A. McCall against the Lisle-Dunning Construction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, John L. Darrouzet, of Galveston, and John T. Garrison, of Houston, for appellant. Marsene Johnson,. Elmo Johnson, and Koy Johnson, all of Galveston, for appellee.

       For other cases see same topic and section NUMBJ2R 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.

Appellee sued to recover damages arising from injuries inflicted upon him through the negligence of appellant in permitting a steel rod to be thrown upon him from a car. It was alleged that appellee, an employé of appellant, was in charge of some men who were engaged in unloading steel rods from a car, that appellee had ordered them unloaded on a certain side of the car, when W. M. Fowler, the superintendent and a member of the firm, ordered the steel to be unloaded from the west end of the car, and instructed appellee to take men and get timbers and build a skid on the south side of the car to unload a bar cutter that was in the car; that he did so, leaving Fowler in charge of the men unloading the car, and on his return a rod of steel was thrown on him as he approached the south side of the car; that Fowler was in a position to see him, and negligently permitted him to be injured. The cause was tried by jury, resulting in a verdict and judgment for $3,000.

The first, assignment of error complains of the refusal of the court to instruct the jury to find for appellant, and requires an investigation of the entire testimony. Appellant gives undue importance to the testimony of its witnesses, seemingly losing sight of the principle that if the evidence of the witnesses of the appellee is sufficient to sustain a verdict, it will be given preference over countervailing testimony. It.does not, therefore, matter what the witnesses for appellant may have sworn, as the evidence of witnesses for appellee have been given full faith and credit by the jury, and if that testimony upholds the verdict, this court must and will sustain it. As representatives of the people in this government of and by the people, juries have been very properly given the right to determine all matters of fact in controversies between litigants, and no court has been, or should be, given the authority to interfere with their findings of fact. This must necessarily be the ease if the constitutional right of trial by jury is to remain inviolate. However much the verdicts of juries may be inveighed against, the historical fact remains undisturbed that there is greater protection to life, limb, and property in those countries where the trials of those rights are confided to men chosen out of the body of the people than elsewhere, and their errors are not more numerous than those committed by judges and courts. The voice of the jury, which is the voice of popular government, is usually heard on the side of justice and right, and therefore their verdicts have been sacredly guarded against attack from judges or courts, and they will not be disturbed if there is any evidence to sustain them, even though such verdicts may be against the preponderance of the evidence.

The evidence showed that appellee was in the employment of appellant as a foreman, and was engaged with some men in unloading steel rods to be used in building; that they were unloading the car at a certain part of the car, which, had high sides to it and no top; that Fowler, the superintendent of appellant, approached and ordered that the car be unloaded from the west end, and or-dered appellee to take some men and get timber and build a skid on the south side of the car in order to unload a certain bar cutter that was in the car with other rods of steel. Appellee took two men and went after the timber, leaving Fowler in charg;e of the men who were unloading the steel rods. Appellee and the men returned with the timber to the south side of the car, when a rod of steel was thrown over the south side, which struck appellee and broke his arm. Fowler was in tine car with the men who were unloading the car, and knew that appellee would return and be at work on the south side of the car. No one swore that Fowler ordered the laborers to throw the steel over the south side of the car, but immediately after the accident appellee asked Fowler why he had changed the plan of unloading and had the steel thrown out on the south side, and he replied that he had forgotten that appellee was - coming there and had to release the bar cutter by throwing out some pieces on the south side. There was testimony tending to show that Fowler saw, or should have seen, appellee when he was approaching the ear, and did not warn him of the danger. Fowler was in the car and looking in the direction from which appellee was coming, and could see him. The facts show negligence in Fowler in authorizing or permitting the laborers • to throw out steel in a place where he had ordered appellee to go, and where he knew, or should have known, he had gone. The first assignment,is overruled.

The second assignment of error assails the first paragraph of the charge because it copies a part of the petition in stating the issues which indicated to the jury that the court thought the matters alleged had been proved. There is no merit whatever in the assignment of error. The authorities cited have no bearing on the matter of which complaint is made. While it may not be necessary to make a preliminary statement of the issues raised by the pleadings, it has never been held that it was error to state the issues.

No objection was made in assignment or proposition to the charge because there was a repetition of the same matter in another paragraph, and the suggestion of such repetition, under the head of “remarks” will not be entertained.

The third assignment of error assails the tenth paragraph of the charge, on the ground that it presented certain issues not raised by the evidence. The issue as to Fowler being in a position where he saw, or could have seen, appellee approach the car, and knew, or should have known, that he was near the south side of the car is supported by the evidence. Ryall, appellee, Harper, and the two Greens swore that Fowler was standing in -the car facing appellee as he approached the car. Some of the witnesses swore Fowler could see appellee, and he knew that appellee would go to the south side of the car because he had ordered him to work there. If he forgot it, as he stated, it was negligence to have such a lapse of memory.

The fourth assignment of error is overruled. Appellee was not in charge of the men in the car at the time he was hurt, but they were under the direct supervision and control of the superintendent, who had sent appellee to perform another job. The superintendent changed the manner of unloading the car when he first came, and then changed it again, the latter change resulting in disaster to appellee. Appellee was a foreman, not a superintendent, as stated' by appellant, but he had been superseded in his duties by Fowler, who was the superintendent and a member of the firm or partnership which was sued, and which is the appellant herein.

The charge complained of'in the fifth assignment of error was unnecessary perhaps, but by no possibility could have been harmful to appellant.

The sixth, seventh, and eighth assignments of error are overruled. All are disposed of by our conclusions of fact.

The refused charges contained in the ninth, eleventh, and twelfth assignments of error were not supported by any testimony, and were properly rejected. Fowler admitted that the men acted under his orders in throwing the steel out on the south side of the car. He did not deny that the admission was made.

It is not material whether Fowler gave the order to change the manner of unloading or not. It was negligence for him to remain silent when he saw the employes preparing to throw steel out on the side where he had ordered appellee to go, and where he must have known that appellee was at the time. It follows that the court did not err in refusing the charge set out in the tenth assignment of error. That charge confined the jury to the question of whether Fowler gave the-order to the men to throw the steel rod that struck appellee. It would have been error to have so restricted the issues.

The judgment is affirmed.


author: FLX, C. J.

text:
    WHITED et al. v. JOHNSON.
    (No. 5290.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Mines and Minerals (§ 58) — Contract oe Sale — Validity.
    A contract of sale, of all the oil, gas, coal, sulphur and other minerals, in and under a described tract, that may be found by drilling and mining operations which may be conducted on the land, is a valid contract of sale, which the purchaser may not destroy by failing to drill or mine.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§.168, 169; Dec. Dig. § 58.]
    2. Mines and Minerals (§ 83) — Contract oe Sale — Construction.
    A contract by several persons for the purchase of all of the oil, gas, coal, sulphur, and other minerals, in and under described . land, that may be found by drilling and mining operations, is, as between the purchasers, joint and several, and each is liable for the contract price, and the vendor may sue all or any number of the purchasers for the price.
    [Ed. Note. — For other eases, see Mines and Minerals, Cent. Dig. §§ 212, 214, 215; Dec. Dig. § 83.]

      S. Appeal and Error (§ 880) — Party Entitled to Complain.
    AVhere purchasers of oil, gas, coal, sulphur, and other minerals in and under described land obtained the benefit of a partial payment of the price made by a copurchaser, he was the only person who could comi>lain of a judgment for the balance against the purchasers, including himself; and, where he did not appeal, the judgment would not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3500; Dec. Dig. § 880.]
    4. Evidence (§ 848) — Opinion op Court op Sister State — Requisites op Certipicate.
    The opinion of the Supreme Court of a sister state, not published as an opinion of the court, is admissible in evidence only as a record and judicial proceeding of the Supreme Court, and must be authenticated, as prescribed by Rev. St. U. S. § 905 (TJ. S. Comp. St. 1901, p. 677).
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §| 1861-1883; Dec. Dig. § 348.]
    5. Appeal and Error (§ 1050) — Evidence (§ 80) — Harmless Error — Erroneous Admission op Evidence.
    A contract which is valid in Texas is presumably valid in a sister state, so that the error in admitting in evidence an opinion of the sister state, not rendering the contract invalid, is not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050; Evidence, Cent. Dig. § 101; Dee.' Dig. § 80.]
    6. Mines and Minerals (§ 58) — Contract op Sale — Iíalidity.
    A contract of sale of oil, gas, coal, sulphur, and other minerals in and under described land sufficiently identifies the minerals.
    TEd. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 168, 169; Dec. Dig. Í 58.]
    Appeal from District Court, Harris County ; William Masterson, Judge.
    Action by Walter F. Johnson against A. D. Whited and others. From a judgment for plaintiff certain of the defendants appeal.
    Affirmed.
    J. S. Wheless and W. D. Gordon, both of Beaumont, for appellants. Hunt, Myer & Teagle, of Houston, for appellee.

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

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

   FLX, C. J.

Appellee sued A. D. Whited, W. T. McKallip, J. S. Putnam, Jr., Mars Mc-Léan, W. D. Gordon, Geo. W. Hooks, Geo. W. Newman, and E. M. Nutting, appellants, to recover of them a balance of $5,356 on a certain contract by which appellants bound themselves to pay to appellee the sum of $10,-000 for “all of the oil, gas, coal, sulphur and other minerals in and under” a certain tract of about 1,000 acres of land in De Soto parish, state of Louisiana, “that may be found by drilling and mining operations which may hereafter be conducted on said land with the right of ingress or egress at all times for the purpose of drilling, mining and operating for said minerals.” Appellants admitted the execution of the contract, but assailed its validity because it sought to convey a fee-simple title to oil and gas underlying the land, and it was also alleged that the land did not belong to appellee, and he had no right or authority to convey the minerals therein, and they asked for cancellation of the contract and a recovery of their money. The answer was made by all of the defendants except Putnam and Nutting, and it was alleged by the others that, Putnam being a relative of appellee, refused to defend. Judgment was rendered in favor of appellee for the sum of $4,883.94, as against all of the defendants except Nutting, who was not cited and was dismissed from the suit. This appeal is prosecuted by all of the defendants below,, except Putnam and Hooks.

Appellants admitted execution of the contract, and the evidence .showed that fact, and that they made payments on the contract and reduced it to the sum for which judgment was rendered. By the terms of the contract all of the oil, gas, coal, sulphur and other minerals in and under the thousand acres of land, the property of appellee, were sold, with the rights of ingress and egress, and all others necessary in order that appellants might obtain such minerals. We adopt the findings of fact of the trial judge.

There is no admission of appellee that all minerals were not included in the contract, and if there had been, it could not alter the plain terms of the contract. It does not matter that appellants were preparing to drill for oil; they bought all other minerals and could not destroy the contract by not digging for coal or sulphur. The contract was valid and binding in Louisiana, or any other state.

The finding of fact complained of in the second assignment of error is immaterial, and the assignment is overruled. It is based on the theory that the contract is invalid.

The contract between appellants, including Nutting and Putnam, and appellee was a joint and several one, and each one of them was liable for the whole amount to appellee. The dismissal of Nutting from the suit did not therefore entitle appellants to a credit for his proportion of the debt. Appellee could prosecute his action against all or any number of the payors named in the obligation. Appellants obtained the benefit of the payment made by Putnam, ana they have no cause of complaint, because not only did they profit by his payment, but he was made liable with them for the amount of the judgment. If any one has a grievance, it is Putnam, and not appellants.

Appellants and their associates considered the right to enter upon appellee’s land and explore for oil, gas, coal, sulphur, and other minerals worth the sum of $10,009, and if they have received nothing for their money, it is their fault in not putting down wells or sinking shafts, or their fault of judgment in buying rights which amounted to nothing. There is, however, no proof tending to show that the mineral rights were worthless; and, so far as appears from the record, there may be vast quantities of virgin oil underlying the surface of the land waiting to be brought to the surface, or inexhaustible mines ■ of coal, sulphur, and other minerals awaiting development. The judgment does not in any manner interfere with their rights in the land, but simply compelled appellants to comply with their contract and pay according to their •promise. There was no místate of fact in making the contract. Appellants wanted to buy certain rights in certain lands in Louisiana, and offered the owner a certain sum for those rights, which he accepted. They wish to breach their contract and evade payment of their obligations, and. the trial court very properly prevented them from so doing.

The decision of the Louisiana court was not proved as it should have been in order to be introduced in evidence. The decision was not contained in a bound volume of Louisiana reports. The certificate of the clerk does not show that the opinion is one rendered by the Supreme Court of Louisiana, but merely that the paper contained—

“a true extract from the record of the proceedings had in the First Judicial district court, for the parish of Caddo, in a certain suit wherein R. F. Wadkins was plaintiff, and Atlanta & Shreveport Oil & Gas Company was defendant, which record is on the files of this court under No. 19,315.”

If anything was ever done in the Supreme Court in connection with the case, the certificate of the clerk failed to indicate it. The opinion, not being published as an opinion of the court, could have been admitted only as a record and judicial proceeding of the Supreme Court of Louisiana, and as such should have been attested by the clerk of that court, with the seal of the court annexed, together with a certificate of the Chief Justice, that the attestation is in due form. U. S. Rev. St. § 905 (U. S. Comp. St. 1901, p. 677). No judge of the Louisiana court certified that the attestation was in due form, nor could have done so in view of the form of attestation. The opinion should not have been admitted in evidence, but it was immaterial as the court construed it not to render the contract invalid. We must presume that the contract which is valid and binding in Texas is valid and binding in Louisiana, as it should be in any country.

The case of Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304, and Ohio Oil Co. v. Indiana, 177 U. S. 200, 20 Sup. Ct. 576, 44 L. Ed. 729, cited by appellants, are not authority for the obscure proposition:

“The conveyance by the owner of land, of the oils and minerals beneath the surface of the land is not the conveyance of right, because such oil and minerals, not being susceptible of identification, are therefore not susceptible of sale.”

On the other hand, a lease of land for oil and gas boring was upheld in the first named case. We know of no decision of any court that holds that a sale of coal, sulphur, oil, gas, and other minerals.in certain land is not valid and binding. The identification of the minerals is that they are in or on a certain tract of land, and that is sufficient. This is fully sustained in the cited case of Ohio Oil Co. v. Indiana, and the notes thereto in Book 44, Lawyers’ Co-Op. Ed.

There is no error in the judgment, and it is affirmed.


author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. SHARPE.
    (No. 5298.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Evidence ($ 505) — Opinion Evidence.
    In an action by a shipper for injuries to two horses shipped over defendant’s road due to alleged rough handling, a railroad man who had handled many similar shipments was properly permitted to testify whether the horses were in a condition that horses would be if properly transported; he testifying in detail as to their condition, and basing his conclusion upon the facts detailed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2308; Dec. Dig. § 505.]
    2. Appeal and Erroe (§ 1053) — Haemless Eeeoe — Evidence.
    Error in admitting incompetent testimony was rendered harmless, where it was subsequently withdrawn, and the jury instructed not to consider it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dee. Dig. § 1053.]
    3. Appeal and Eerok (§ 213) — Submission op Issues — Necessity op Objections.
    An assignment of error complaining of the action of the trial court in submitting certain issues to the jury cannot be considered by the appellate court, where no objections were filed before they were given by the trial court, as expressly required by Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59.-
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1804^-1308; Dec. Dig. § 213.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by C. B. Sharpe against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Cobbs, Eskridge & Cobbs, of San Antonio, Wilson, Dabney & King; of Houston, and Texas Schramm, of San Antonio, for appellant. Fellbaum & Carter, of San Antonio, for appellee.

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

   CARL, J.

Appellee sued the International & Great Northern Railway Company for $950 damages for injuries alleged to have been caused to two race horses which he shipped from San Antonio to Crockett, Tex., on or about August 31, 1912. The grounds of negligence, by reason of which damage is claimed, are: (1) That they were unreasonably delayed at Palestine. (2) And that they were roughly handled. It is charged that by the rough, careless, and negligent handling the horses were—

“skinned, bruised, injured, and crippled about their heads, feet, limbs, groins, shoulders, and entire body, so that when they reached their destination they were in an ugly, emaciated condition, and were unfit for use or for sale at said place, and their market value at said place was greatly depreciated.”

It is also alleged that at the time the horses were shipped they were worth on the market $750 each, and on account of the injuries received by rough handling and delay they were not worth more than $250 each on the market when they reached Crockett. He placed his damages to the horses at $750, and alleged that he had been compelled to employ a veterinary to treat the horses, and that the reasonable value of his services and medicines is the sum of $150. The cause was tried by a jury on special issues, and, on the answers returned, the court entered judgment for $600.

The first assignment complains that the court erred in permitting the witness Bailey to testify whether or not the horses were in a condition that horses would be if properly transported, and were transported with ordinary care within a reasonable time; the objection being that it called for the conclusion of the witness. As to the qualification of Bailey to testify as an expert, it was shown that he began railroading in 1885, and was still in that business, and had been constantly since he began; that in such employment he had handled many shipments of horses of similar kind and cattle, where the distance was from 300 to 400 miles, and had observed the condition of horses upon their arrival at their destination. Bailey testified to the condition and injuries of the horses in detail upon their arrival, and other witnesses did the same. The testimony was amply sufficient to establish the injuries.

There might be some merit in appellant’s contention, if the evidence complained of as being a conclusion stood alone, without being based upon facts given in the witness’ testimony. But Bailey showed the condition the horses were in upon their arrival, and also showed a sufficient experience to qualify him as an expert in that line of work. It was not a mere conclusion not based upon facts given, but was an opinion based upon experience and facts. In True Bros. v. St. L., B. & M. Ry. Co., 143 S. W. 298, the court held that a qualified witness was held competent to testify or give his opinion as to the percentage of loss or shrinkage in a stock shipment, if the shipment were handled in the usual and ordinary way. And again in St. Louis & S. F. Ry. Co. v. Rich et al., 162 S. W. 1194, Chief Justice Conner held that a shipper of cattle of long standing, who was well qualified to give an opinion on that question, was properly permitted to testify what the shrinkage in weight of cattle would be on an ordinary run as usually made, without any bad treatment. This assignment is overruled and, since the second assignment deals with the same subject in another form, it is also overruled. See, also, St. Louis, B. & M. Ry. Co. v. Wood Bros., 147 S. W. 283.

The third assignment complains that the plaintiff was permitted to testify that, from his experience in shipping and handling horses on freight trains, 15 hours is not a reasonable delay; the objection being that it was a conclusion of the witness. After a colloquy between the attorneys, the testimony was withdrawn, and the court instructed the jury not to consider it. We overrule the as-, signment.

The fourth, fifth, sixth, and seventh assignments are overruled, because they complain of the action of the court in submitting certain special issues to the jury "; and the record does not show that any objections were filed to the giving of the same before-they were read to the jury as provided in article 1971, as amended by the Thirty-Third Legislature (General Laws of 1913, p. 113). The former practice of attacking the charge after the trial was over, and when the unsuccessful party would retire to the seclusion of his office, there to subject the charge to a microscopic examination for the purpose of discovering some means of extricating himself from the predicament in which the jury’s verdict placed him, led to the amendment of the law on that subject. Trial courts are the-forums in which the people’s rights are determined, and it is not to be expected that, the judge there, without time for careful examination of the law, at all times will be able-to determine what the courts have decided,, or to proceed with that precision which would preclude error. He is entitled to the-assistance and co-operation of counsel, to the-end that error may be avoided, and litigation terminated, without the necessity of appealing eases. And it is but fair to the trial court that lawyers in the case ask the charges they desire and make known their objections to those given before the trial has closed, and while the errors may be avoided, before the jury has deliberated and been discharged. So pressing did the Legislature-feel the need of such relief for the courts that article 1971 was amended in 1913, with the emergency clause attached. True, it did not receive the necessary vote to make it effective at once. Not having complied with, this article as amended, the appellant will not now be heard to complain. •

The eighth assignment is without merit,, and is overruled.

The judgment is affirmed.