text:
    TEXAS CENT. R. CO. v. McCALL et al.
    (No. 600.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 11, 1914.
    On Motion for Rehearing, May 16, 1914.)
    1. Appeal and Error (§§ 215, 263) — Questions ReVIEWABLE — INSTRUCTIONS—OBJECTIONS — Waives.
    Where no objection was made and no exception taken to a charge, as required by Acts 33d Leg. c. _59,_the giving of the .charge must, as required by Rev. St. 1911, art. 2061, as amended by such act, be regarded as approved, and appellant cannot complain thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314. 1516-1523, 1525-1532; Dec. Dig. §§ 215, 263.)
    2. Appeal and Eeeoe (§ 562) — Record — Statement op Facts.
    Under Rev. St. 1911, arts. 2068, 2070, and district court rules 72-74 (67 S. W. xxv), prescribing the manner of preparing statements of facts, instruments or parts of them bearing on a question presented should be copied into the statement of facts, and the original instruments should not be attached to it.
    . [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499; Dec. Dig. § 562.]
    3. Estoppel (§ 58) — Prejudice to Carrier— Condition Repoet op Shipper.
    A carrier not misled nor induced to refrain from doing any act, the performance of which would have placed it in a better condition, cannot rely on estoppel to bind a shipper of live stock to conditioh reports signed by him.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. § 58.]
    4. Evidence (§ 265) — Transportation op Live Stock — Condition Reports — Conclusiveness.
    Statements in stock condition reports signed by a shipper as an accommodation to the conductor, and without having been read, and only to indicate that the shipment had reached the terminus of the carrier’s line, are not binding on the shipper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.J
    On Motion for Rehearing.
    5. Carriers (§ 177) — Carriage op Live Stock — Damages—Liability.
    The object of. Rev. St. 1911, art. 1830, subd. 25, providing that, where freight has been damaged in transit over two or more railroads, the damage shall be apportioned among the railroads, is to relieve the shipper of the burden of proving the damage accruing on each line, and the initial carrier is liable for all damage, and an apportionment is necessary only as between the carriers.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.]
    6. Carriers (§ 218) — Carriage op Live Stock — Limitation op Liability — Validity.
    A statement in a contract for the shipment of live stock that the condition of the cars and bedding was satisfactory, did not relieve the carrier from liability for failure to properly bed the cars; otherwise the stipulation would limit the common-law liability of the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    Appeal from Fisher County Court; L. C. Miller, Judge.
    Action by J. S. McCall against the Texas Central Railroad Company and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Spell & Sanford and W. W. Ñaman, all of Waco, and Chas. C. Huff, of Dallas, for appellant. Jno. W. Woods, of Rotan, L. H. Mc-Crea and L. B. Allen, both of Roby, and Douthit & Smith, of Sweetwater, for appellee.

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

   HALL, J.

Appellee, McCall, instituted tliis suit against appellant and the Texas Pacific Railway Company to recover damages growing out of a cattle shipment from Rotan, Tex., to Ft. Worth, Tex. It was alleged that on account of negligent handling and the manner in which the ears were bedded by the Texas Central Railroad Company at point of origin, and on account of the negligent delay and the jerking and jarring of the cars in transit over the lines of both companies, plaintiff was damaged in the sum of $840.

The Central Company answered generally, and specially that the plaintiff entered into a written contract with it, by the terms of which he agreed he would be estopped from denying the condition of the bedding, as shown by the condition report signed by himself.

By supplemental petition, plaintiff denied the execution of the condition report, and pleaded further that, if he signed the report, it was done only as an accommodation to the conductor, and without plaintiff’s having read the same, and for the purpose only of indicating that such shipment had reached the terminus of said company’s line, and for no other purpose, intent, or reason.

The Texas & Pacific Company, by special answer, alleged that the cattle were shipped under a written contract for through carriage; that they received the same from the Texas Central Company at Cisco for transportation to Belt Junction, where the shipment was delivered to the Ft. Worth Railroad Company.

Upon a trial before a jury there was a verdict and judgment in the sum of $250, with interest and costs of suit.

The first assignment of error is predicated upon the third special charge requested by the Texas & Pacific Company and given by the court, referring to the duty resting upon the Texas & Pacific Company in the movement of said shipment on the first regular train passing through Cisco in the direction of Ft. Worth. No objection was made and no exception taken to this action on the part of the court, as required by Acts 83d Leg. c. 59, p. 113, and, under article 2061 of that act, the giving of such charge must be regarded as approved by appellant. Q., A. & P. Ry. Co. v. Galloway, 165 S. W. 546.

The eighth and twelfth assignments, as contained in the motion for new trial, are submitted by appellant together as his second assignment of error, and refer to the condition report, which is signed by appellee, McCall, and which states that the bedding in the cars was good. The statement of facts in this case has attached to it, as exhibits, two condition reports, three bills of lading issued by the Texas & Pacific Railway Company, and three issued by the Texas Central Railway Company, which show to be the original bills upon which the cattle were transported. This method of preparing a statement of facts is not in accordance with rules 72, 73, and 74 of the district court (67 S. W. xxv) and articles 2068 and 2070, R. S. 1911. These papers, or such parts of them as bore upon the questions presented, should have been copied into the statement. The contracts were not attached- as exhibits to the pleadings, and the proper practice in such cases is clearly stated in Byers et al. v. Thacker et al., 42 Tex. Civ. App. 492, 94 S. W. 138/.

We have, however, considered the statement of facts in connection with the assignments, and we find that appellant offered no testimony to prove that by reason of the statement contained in the condition report with reference to the bedding, that it was misled and induced to refrain from doing •any act, the performance of which would have placed it in a better condition, and there is therefore no estoppel.

We think, further, the conditions under which appellee, McCall, signed this report would not have the effect of making the statement binding upon him. M., K. & T. Ry. Co. v. Gober, 125 S. W. 383; Mo. Pac. Ry. Co. v. Ivey, 79 Tex. 444, 15 S. W. 692; Mo. Pac. Ry. Co. v. Fennell, 79 Tex. 448, 15 S. W. 693; St. L. etc., Ry. v. Turner, 1 Tex. Civ. App. 625, 20 S. W. 1008.

The judgment is affirmed.

On Motion for Rehearing.

The appellant insists that we erred in refusing consideration of its first assignment of error, and in disposing of the same upon the ground that no exception was taken by appellant to the motion of the court in giving the special charge requested by the Texas & Pacific Railway Company, and insists further that, if the rule prescribed by the statute quoted is to be enforced against it, then, because the statute provides that the special charges, shall be “submitted to opposing counsel for examination and objection,” as provided by amended article 1973, Vernon’s Sayles’ Ann. Civ. St. 1914, and because the record shows this special charge was not submitted to appellant’s counsel, we should consider the assignment. We have inspected the pleadings, and find no issue or contest of any character between appellant and its connecting carrier. Neither of the carriers in this case asked that the damages, if any, be apportioned. Fly, J., in G., H. & S. A. Ry. Co. et al. v. Young & Webb, 148 S. W. 1113, held under the laws of 1899, p. 214 (Statutes of 1911, art. 1830, subd. 25), providing, where freight has been damaged in transit over two or more railroads that the damages shall be apportioned among the railroads, that the object of the act is to relieve the shipper of the burden of proving the damages accruing on each line, the initial carrier being liable to him for all damages, and the apportionment being necessary only as between the two carriers, and uses this language: “It is a matter to be adjusted between them, and, if it bas not been satisfactorily done, they should not complain of ap-pellees, but assail each other.” While they filed separate answers, their position is the same as if a joint fight had been made by the railway companies against plaintiff’s right to recover. There is nothing in the pleadings of the carriers to indicate that either was opposing the other, and the statute does not therefore apply. Our conclusion from an examination of the record is that the matter of apportionment of damages between the defendants was not an issue and if we should admit that the court erred in giving the charge in question, appellant cannot be heard to complain.

Appellant further insists that we erred in-overruling the eighth and twelfth assignments. We were misled by appellant’s brief in calling the paper referred to in this assignment a condition report, and by considering it as such. This paper, which appellant sought to plead as an estoppel, is its blank form No. 112. The upper half of it is an order for ears; .the lower half, as filled out, is termed “agent’s record,” and is a brief statement of the date when the cars were ordered by wire and when they were received. It further gives the hour when the shipper was notified to load, when his cattle were penned, when the loading commenced, when it was finished, states that the condition of the ears and bedding was good, that they were bedded with sand, and, oppposite this question, “Were cars bedded to satisfaction of shipper?” is written “Yes.” Following this is: “I certify the above statement is correct.” This is signed: “J. S. McCall, Shipper in Charge. L. M. Smith, Agent T. C. R. R. Co.” — in the order named. At the bottom of this form is a note of instructions to agent with reference to the making of this record, directing that it be filled up in duplicate, mailing duplicate to trainmaster, and further instructing that, when shipments have been loaded and forwarded, all messages shall be attached to the original and sent, along with the duplicate of the contract covering the shipment, to the general freight agent of appellant. Section 11 of the bill of lading, and which was pleaded by appellant, provides that the shipper shall furnish reports to the conductor of the train at the end of -each division as to the condition of the cattle, and shall be estopped from denying the truth of such reports. We find attached to the statement of facts the statement referred to in this section of the contract, but. the instrument first above described is clearly not this condition report, and appellant has not faithfully briefed the case in this particular. Court of Appeals rule 31. The paper under discussion is not a part of the contract of shipment. No consideration is expressed in it, and none can be implied. The statement therein that the condition of the cars and bed was good and satisfactory, even if it was a part of the contract, would not relieve appellant from liability. G., C. & S. F. Ry. Co. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 767; S. A. & A. P. Ry. Co. v. Dolan, 85 S. W. 302. It is admitted in the motion that the duty to properly bed the ears was primarily upon appellant. The record shows that McCall had no knowledge of the contents of the paper when he signed it, and that he had not seen the bedding in the ears. If we admit that McCall had inspected the bedding and had expressed himself as being satisfied with it, nevertheless, if thereafter the bedding proved to be insufficient, he would not be estopped from setting up that fact. We further think, too, that ff this statement, which seems to be nothing more than an “agent’s record” for the information of his principal, had been by proper reference made a part of the shipping contract, its effect would tend to limit the common-law liability of appellant, and it would for that reason be void. G., H. & S. A. Ry. Co. v. Silegman, 23 S. W. 298. We are at a loss to know why this paper should have been offered or admitted in evidence. It has no more binding effect upon appellee, McCall, than any other private communication between appel lant’s “agents and officers, and the fact that his signature appears thereon does not alter the rule.

The motion for rehearing is therefore overruled.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    JOHNSON et al. v. MANSFIELD.
    (No. 6531.)
    (Court of Civil Appeals of Texas. Galveston.
    April 5, 1914.
    Rehearing Denied May 7, 1914.)
    1. Specific Performance (§ 105) — Diligence — Excuse.
    Plaintiff in 1904 entered into a written agreement, whereby in consideration that plaintiff and W., who were brokers, would obtain land at a low price, defendants agreed to purchase it and to give plaintiff and W. an undivided one-half interest therein for $1,500 ox-, when the proceeds of the timber cut or land sold to others amounted to $1,500, a deed of their interest would be executed to plaintiff and W. Defendants settled with W. and sold a part of the land to him for a price in excess of $1,500, and plaintiff on discovering- the fact, in 1910, sued for specific performance, and tendered $750 in payment for his one-fourth interest. Held that, as it necessarily required time to establish sawmills and to cut and sell the timber, plaintiff was excused from not sooner seeking a performance of the contract.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 325-341; Dec. Dig. § 105.]
    2. Specific Performance (§ 97) — Action-Tender.
    In such case, plaintiff, on a showing that defendant had settled with W. and sold land to him for a price in excess of $1,500, had the right to maintain a suit for specific perfoi-mance as to his undivided interest without any tender; and, even if a tender was necessary, his "tender of $750 at the trial was sufficient both as to time and amount to entitle him to maintain •a suit.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 286-298; Dec. Dig. § 97.]
    8. Specific Performance (§ 12) — Right of Action — Joint Interest.
    In such case, plaintiff did not lose his right to the specific enforcement of a conveyance to the extent of his interest under the contract, merely because W. by accepting a settlement from defendant could not he properly joined as •a party plaintiff.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 26-28, 37; Dee. Dig. 12.]
    ■4. Evidence (§ 444) — Parol Evidence-Consideration of Conveyance.
    An obligation to convey lands, independent •on its face, may be shown by parol evidence to be dependent upon a consideration not expressed in the obligation or instrument declared on.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. § 444.]
    5. Contracts (§ 212) — Time foe Perform- ' ance — Reasonable Time.
    Under an agreement, whereby, in consideration that plaintiff would obtain land at a low price, defendants were to purchase it and to convey an interest to plaintiff and another for $1,500, or when sales of timber and land equaled that amount, but not providing any time in which it should be performed,, a reasonable time was implied, to be determined under all the facts and circumstances.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 944-955; Dee. Dig. § 212.]
    6. Specific Performance (§ 6) — Right of Action — Mutuality of Obligation.
    In such case, it was not essential to the validity of the contract or to plaintiff’s right to enforce specific performance thereof that there should be a reciprocal obligation or mutuality of remedy; plaintiff having performed his part by procuring the land at the price set.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 9-11; Dec. Dig. § 6.] ■
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by H. P. Mansfield against J. S. Johnson and others with cross-plea by defendants. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, and Jones & Jones, of Houston, for appellants. Stevens •& Stevens, 'of Liberty, for appellee.

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

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

   McMEANS, J.

H. P. Mansfield brought this suit against J. S. Johnson, Z. S. Johnson, and E. J. Waldron to enforce specific performance of an alleged contract for the conveyance of certain land. He alleged that on January 15, 1904, he conveyed two tracts of land in Liberty county to appellants Johnson, and that the Johnsons at the time executed the agreement on which he sued, by the terms of which they agreed to convey to plaintiff and defendant E. J. Waldron an undivided one-half interest in the land upon the payment by plaintiff and Waldron to the John-sons of the sum of $1,500; that the contract provided that the land could be sold by the Johnsons and that the timber thereon should be cut by them, and that when the Johnsons had cut a sufficient quantity of timber at the rate of $1.25 per thousand feet stumpage, or should have sold off any portion of the land, and the value of said timber cut at said price, or any part of said land sold as aforesaid, should at any time become equal to $1,500, then the defendants were to convey to plaintiff and Waldron an undivided one-half interest in said land, or a specific portion thereof that might be agreed upon in satisfaction of the undivided one-half interest of plaintiff; it being further agreed that the $1,500 could include the price of timber cut from said land or the proceeds of the sales of any portion of said land, and that all of said sum could be made alone by timber cut, at the price stated, or it might be made alone by the sale of any portion of the land. He further alleged that defendants erected a sawmill and cut timber from said land of the value of $i,500, at the rate specified, but that they refused to convey the land to plaintiff; that in 1906 the defendants made some kind of a settlement with the defendant Waldron by adjusting and compromising his claim, the exact terms of which were unknown to plaintiff, for which reason the said Waldron was made a party defendant, and it was prayed that he be required to answer and disclose what settlement was made by him with defendants Johnson. He further alleged that in 1906 he tendered to the Johnsons $750, and demanded that they convey to him an undivided one-fourth interest in said land in satisfaction of the contract. He further alleged that the moving consideration on the part of the said Johnsons in the execution of the instrument declared upon was that the plaintiff should procure the title of the lands described in his petition from T. P. Ayers, and that the plaintiff had performed his part of the said consideration and did procure the title from said Ayers. It was further alleged that the instrument declared upon had been executed in duplicate; one copy being retained by the defendants and one copy was kept by Ira P. Jones, Esq., to be held by him for all parties concerned, and it being understood and agreed that said instrument would not be recorded in order that the records might not' show the claim of plaintiff and Waldron, thus facilitating the defendants Johnson in making sales of the land. It was further alleged : That the defendants fraudulently concealed from the plaintiff the fact as to moneys realized out of the sale of said land and timber, and that the plaintiff did not ascertain until about the 1st day of January, 1910, that the defendants had realized $2,000 out of the.proeeeds of timber cut and sales of land. That the amounts acquired by said Johnsons were wholly within the knowledge of the said Johnsons, and plaintiff was unable to ascertain all of the facts in regard thereto until the first' day of January, 1910. Plaintiff further pleaded that if it be found that the defendants Johnson had not cut timber of sufficient value, at the rate named, to cover the interest of plaintiff in the land in accordance with the contract, that he stood willing and ready to pay into court such amount as would be sufficient to cover his pro ráta share of the land under the terms of the contract.

. The appellants answered by general denial, and pleaded that there was no consideration to support the contract sued on and total failure of consideration. They further pleaded : That the agreement set up was a gratuitous offer of a gift, and not binding. That about January 15, 1904, Ayers was the owner of lands described in the plaintiff’s petition, and the appellee Mansfi.eld and Waldron came to the defendants to get them to purchase the same for a consideration of $3,000 to be paid to Ayers. That Mansfield claimed to have authority from the owners of lands adjoining and nearly surrounding.the Ayers lands, and heavily timbered, and that he would sell the timber thereon to the said Johnsons. That the appellants were induced to buy the Ayers land for $3,000 and were willing to purchase the timber from Mansfield on the lands represented by him, and that Mansfield made a contract or conveyance of said timber to the appellants for himself and those he represented,‘and as a consideration for the contract from Mansfield and his constituents for the sale of such timber to the Johnsons the latter made an agreement by which, on being paid $1,500 by Mansfield and Waldron, they would convey to them an undivided one-half interest in the lands purchased from Ayers, and that two years was fixed as the limit of the time for such payment, and if said sum was not paid within two years the contract was to be of no further force or effect. That the only agreement made by the appellants is the one attached to their answer. That appellants never received anything of value for making said agreement. That it turned out that Mansfield was without authority from the owners to sell the timber to appellants, and that said contract was repudiated by many of his constituents, and that the same was wholly invalid and inoperative, and that by reason thereof the agreement made by the appellants to Mansfield and Waldron became inoperative and void by total failure of consideration. That the $3,000 paid for the Ayers land was the full value thereof and an adequate consideration for the conveyance. That the agreement from appellants to appellee and Waldron was a gratuitous donation based on no consideration and was a nudum pactum. That the appellants set up a sawmill on the land which they had purchased from Ayers through Mansfield and commenced to cut the timber which had been sold to them by Mansfield on the adjoining lands, and that immediately the owners forbade them to cut the 'timber and threatened them with lawsuits and injunctions and repudiated the contract and declared it not binding on them, and that appellee was es-topped by reason of his acts and representations as to his authority and right to convey the timber. That a large number of the owners had never given appellee any authority to bind them. That the appellee and Waldron, within two years from the making of said contract, abandoned all claim or right thereunder and renounced any right to the said agreement and made a rescission thereof and declared that they would neither rely upon nor insist upon it any further. That the appellee should not sustain said suit because of his laches, delay, and renunciation of ■ said ' agreement, and because- the lands sought to be recovered had become of great value with the timber thereon, and that said land was not of the value of $20 per acre, and because of such great increase in value of said land and the- large sums of money paid out by appellants in perfecting the title and defending litigation thereon, to which the appellee contributed nothing, it was now inequitable and unjust to the appellants for appellee to recover, and denied that the .deed from Ayers to Mansfield, or the deed from Mansfield to appellants, created a trust, and said deed was absolute, and that there was no reservation of title or interest in the land conveyed by Mansfield • to appellants, and that by reason of the lapse of more than four years since the execution of said agreement and said deeds, any trust was barred, and by cross-plea the appellants sought to have said agreement sued on declared of no further force or effect, and any cloud it cast upon their title to be removed, and for general, legal, and equitable relief.

Plaintiff dismissed as to defendant Wal-dron, and a trial before a jury resulted in a verdict and judgment for plaintiff, from which the defendants Johnson have appealed.

The evidence in the record justifies -the following findings of fact:

On January 15, 1904, a written agreement in duplicate originals was signed by appel--lants, but not by Mansfield and Waldron, one copy of which was delivered to Mansfield and the other retained by 'the Johnsons. One of the copies was caused to be recorded by the Johnsons in the deed records of Liberty county, after which both copies were lost. The material portion of the contract declared upon, omitting field notes, is as follows: “Know all men by these presents, that whereas, H. P. Mansfield -has this day conveyed to us, J. S. Johnson and Z; S. Johnson, of Liberty Oounty, Texas, those two certain tracts of land fully set forth in said deed of conveyance described as follows: First tract — A tract of (640) six hundred and forty acres of land- out of the Jose Dolores Martinez leagues Nos. (6) six and (9) nine. Second tract — All that certain tract of land containing (345) three hundred and forty-five acres and being part of league No. (9) nine of the J. D. Martinez Eleven league grant. And whereas, we have paid him, the said H. P. Mansfield, the sum of ($3,000.00) three thousand dollars each. And whereas, it is contemplated that we are to erect a sawmill upon the above mentioned and described land and to operate the same in cutting and sawing lumber from the timber thereon. Said mill which we contemplate to be erected on or by the 1st day of July, 1904, or sooner if possible. Said mill to be owned by the undersigned with all attachments and improvements that we may make on said land, pertaining to said sawmill to be owned by us and placed at our expense. And whereas, the said H. P. Mansfield and E. J. Waldron contemplate the reconveyance from us of an undivided one-half of said land to them, exclusive of said Improvements, mill and attachment on payment to us of the sum of ($1,500.00) fifteen hundred dollars. And whereas, it is contemplated that portions of said land may be sold at any time hereafter by us as well as timber off of it that may be cut into lumber: It is agreed that when the sales of any portions of said land or any amount of timber cut from said land at the rate of $1.25 per thousand feet stumpage shall amount to the sum of $1,500.00, then in such event we are to deed to the said H. P. Mansfield and E. J. Waldron a one-half undivided interest in said land or a specific portion thereof that may be agreed upon in satisfaction, of the undivided one-half interest of the said Mansfield. It is hereby agreed that the said amount of ($1,500.00) fifteen hundred dollars shall include the prices of said timber first cut off of said land or the proceeds of the sales of any portion of said land or the said ($1,500.00) fifteen hundred dollars may be made alone from the timber at the price of $1.25 per thousand feet stumpage or it may be made up from the sale of any portion of said tracts of land. It is understood and agreed by us that in case of any sales of any portion of said above-mentioned tracts of land we are not to sell the same for less than $40.00 per acre without the consent of all parties hereto in writing, but there is not restriction or limitation upon the maximum amount or price that we may receive for said land. When the said $1,500.00 above specified has been received by us, then we are to convey to the said H. P. Mansfield and E. J. Wal-dron or their heirs and assigns an undivided half of all of what remains unsold in said two tracts, and it is hereby specially agreed and understood that in making a partition or division of said tract of land we are to reserve to ourselves that portion of said tracts on which our said improvements may be placed, that is the improvements shall belong to us and the portion which we are to receive in said division shall be so laid off as to include our improvements. After the division of said tract of land as hereinbefore set out the timber on that portion which shall be set aside to the said H. P. Mansfield and E. J. Waldron shall be paid.for by us at the price of $1.25 per thousand feet stumpage to include all classes of timber that we may cut, but upon that portion of the land that is set aside and included in our portion we are to own the timber as well as the land* and we do not have to pay said price for said timber.”

The contract introduced in evidence and relied upon by appellants Johnson is identically the same as the above, with the exception that to the clause providing for the payment of the $1,500 is added, “Within two (2) years from date, a failure to pay said sum of money shall forfeit and annul the contract.” Mansfield, in the court below, attacked this additional provision as a forgery. The evidence was sufficient to authorize the jury to find that the contract declared upon by the plaintiff was the true contract, and we so find. The jury was also warranted in finding that the appellants had made a settlement with Waldron for such interest in the land as he was entitled to by conveying to him an interest therein. The consideration entering into the execution of the contract between plaintiff and defendants seems to have been this: Ayers was the owner of the land, and Mansfield, a real estate dealer, was in a position to buy it from him cheaper than any one else, and, in order to purchase the land at the price at which Mansfield could buy it, the Johnsons agreed to give him and Waldron, who it appears was also trying to sell the land to the Johnsons, an undivided half interest therein: upon the payment to them of $1,500. It was contemplated that the Johnsons should cut and sell the timber, and that, when they sold $1,500 worth at the price of $1.25 per thousand feet stumpage, a deed conveying an undivided half interest should be made by the Johnsons to Mansfield and Waldron; and it was also contemplated that the Johnsons might sell a portion of the land, and, if a sufficient quantity should be sold to make the stipulated amount, then a deed should be executed to Mansfield and Waldron for an undivided half of the remainder. The evidence further warrants the conclusion that the Johnsons sold a portion of the land tc Waldron for a sum in excess of $1,500. At the time of -the trial Mansfield tendered tc the Johnsons $750 in payment of a one fourth interest in the land, but no tender o) any amount was made by him prior there to. This suit was not filed until April 19 1910, more than six years after the execution of the contract declared on.

Appellant under his first assignment of error, which sufficiently raises the point contends, in effect, that plaintiff Mansfield seeking specific enforcement of the contract, must show that he has performed or offered to perform the acts which formed the consideration of the undertaking on the part of defendants; and that the contract providing for the conveyance of a half interest to Mansfield and 'Waldron jointly, upon the payment by them of $1,500, is not complied with by Mansfield when he tendered only $750 and demanded a conveyance to himself of a one-fourth interest in the land, and that therefore he was without equity entitling him to a decree for any part of the land. This contention cannot he sustained. As before shown, tender of the $1,500 by Mansfield and Waldron was contingent upon the failure of the Johnsons to sell sufficient timber or land to make the sum of money stated. It was only in the event that this sum was not realized in this way that Mansfield and Waldron were required to make any tender. Necessarily it required time to establish sawmills, and to cut and sell the timber or to negotiate the sale of land, and this was a sufficient excuse for Mansfield not sooner seeking the performance of the contract. The testimony sufficiently shows that the John-sons sold land sufficient in value to realize the amount agreed upon, and this of itself rendered a tender upon the part of Mansfield and Waldron unnecessary. The testimony is sufficient to show, further, that the Johnsons settled with Waldron for his interest in the land, and, this being true, a suit for specific performance brought by him would have been wholly unauthorized and could have been defeated, had it been brought, by showing this fact. In these circumstances Mansfield had the right to bring and maintain this suit in his own behalf to compel the Johnsons to specifically perform the contract in so far as his undivided interest in the land is concerned. Certainly it was not requisite that Mansfield tender the entire $1,500, after Waldron had been settled with for his interest in the land. It is equally certain that Mansfield did not lose his right to specific enforcement of a conveyance to the extent of his interest under the contract merely because Waldron by accepting a settlement from the Johnsons could not be properly joined as a party plaintiff. To so hold would be in effect to declare that the Johnsons by specifically performing their contrast, as to Waldron’s interest, and thus putting it out of his power to maintain a suit for specific performance, had deprived Mansfield of the right to maintain an action to compel specific performance to the extent of his interest under the contract. Tillery v. Land, 136 N. C. 537, 48 S. E. 824; Townsend v. Blanchard, 117 Iowa, 36, 90 N. W. 519; Ward v. Walker, 159 S. W. 320. And even if a tender by Mansfield had been necessary, we think in the circumstances of the case the tender at the time of trial was sufficient both as to time and amount to entitle him to maintain the suit.

Appellants contend by their second assignment that the court erred in admitting in evidence, over their objection, the contract sued upon by plaintiff. The objections offered were: (1) That the contract failed to show any consideration to support it, (2) because it stated no time within which it was to be performed by defendants, and (3) because of the absence of reciprocal obligations or mutuality of remedy. The objections are not well taken. An obligation to convey lands, independent on its face, may be shown by parol evidence to be dependent upon a consideration not expressed in the obligation or instrument declared on. Younger v. Welch, 22 Tex. 419. Such consideration was shown by parol proof upon the trial. While the contract did not provide any time within which it should be performed, a reasonable time was implied, and since it was shown that the plaintiff had in part performed the consideration by procuring the land for defendants, and, further, that the defendants were cutting the timber and selling the land as they had a right under the contract to do, for the purpose of consummating the agreement, such reasonable time is to be determined under all the facts and circumstances. Under the facts of this case, it was not essential to the va^ lidity of the contract that there be reciprocal obligations or mutuality of remedies. Mansfield having in part performed the consideration by purchasing the land from Ayers for the Johnsons, and the contingencies upon which he had the right to have a conveyance to his interest having happened, by the sale of more than $1,500 worth of the land and by tendering into court the money, it. was immaterial that there was no provision in the contract entitling the Johnsons to maintain specific performance against Mansfield in ease they desired he should take the land and he refused to do so. Pomeroy on Cont. §§ 166, 168, 169, 170; 2 Pomeroy’s Equitable Remedies, §§ 770, 773.

It is contended by the sixth assignment that the judgment is against the great preponderance of the evidence, in that the evidence shows that the consideration for the execution of the written agreement has failed, because such consideration was that Mansfield should procure and sell to the Johnsons the timber upon lands surrounding that purchased from Ayers, and that he had failed to do so. This was pleaded by defendants and denied by plaintiff, and the issue thus formed was submitted to the jury, who upon sufficient evidence found against defendants in this regard. The assignment is overruled.

We will not prolong this opinion by a discussion of each of appellants’ assignments of error. We think it is sufficient to say that we have carefully examined all of them and find that no reversible error has been pointed out in either of them.

The judgment of the court below is affirmed.

Affirmed»


author: KEY, C. J. FURMAN, J.

text:
    ELLIOTT et al. v. CITY OF BROWNWOOD.
    (No. 4,730.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1911.
    Certified Questions Answered by Supreme Court May 6, 1914.)
    Death (§ 33) — Action tor Death — Liability.
    Under the statute authorizing an action for death 'by negligent act, .a municipal corporation is not liable for the death of a person caused by its negligence in maintaining its streets.
    [Ed. Note. — Por other cases, see Death, Cent. Dig. § 49; Dee. Dig. § 33.]
    Purman, J., dissenting.
    Appeal from District Court, Brown County ; John W. Goodwin, Judge.
    Action by Mary B. Elliott and others against the City of Brownwood. Prom a judgment sustaining a general demurrer to the petition, plaintiffs appeal.
    Affirmed.
    Certified question answered by Supreme Court in 166 S. W. 1129.
    A. S. Pisher and W. M. Allison, both of Georgetown, and Arch Grinnan, of Brown-wood, for appellants. C. L. McCartney, of Brownwood, for appellee.

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

   KEY, C. J.

This suit was brought by Mary B. Elliott, the surviving wife, and other relatives of Otho S. Elliott, seeking to recover damages from the cii;y of Brownwood on account of the death of Otho S. Elliott. The plaintiffs alleged in their petition that the defendant was a municipal corporation of more than 1,000 inhabitants, duly incorporated under title 18, c. 1, of the Revised Statutes of Texas. They predicated their cause of action upon alleged negligence of the defendant in reference to a certain street and bridge or culvert across the same, which street the defendant had opened up and was maintaining for the use of the public, and which bridge or culvert it had constructed across the street. It was alleged that on May 23, 1908, a heavy rain fell in the city of Brownwood and vicinity, which rain caused the timbers and boards of the bridge referred to to be severed from their fastenings and washed away, which resulted in a pit or trench about 6 feet deep and 20 feet wide in the street. It was further alleged that on May 26,1908, during the nighttime, and while it was very dark, Otho S. Elliott was passing along said street on horseback, without any knowledge of the absence of the timbers and boards of the bridge, and without any knowledge of the pit or trench referred to, and, without fault on his part, his horse fell or plunged headlong into said pit or trench, and as a result thereof Otho S. Elliott was killed. The petition contained all other averments necessary to show that the plaintiffs had a cause of action against the defendant, if the statute creating a cause of action in behalf of relatives when the death of one person is caused by the wrongful act of another person includes in the lattdr class a municipal corporation when the wrongful conduct charged against such corporation relates to acts done or omitted in opening or maintaining public streets within the limits of such corporation. The trial court sustained a general démurrer to the plaintiffs’ petition, and the latter have appealed and assign error upon that ruling.

The statute referred to was construed by this court in Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, in which it was held that the word “person,” as used in that statute, did not include a corporation. Although a writ of error was refused in that case, our Supreme Court, in Flemming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250, held that the statute was intended to include and render liable private corporations. In that case the Supreme Court said: “The reasoning in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455 [20 S. W. 1029], in which an application for a writ of error was refused by this court, is not in accordance with the view expressed in this opinion. That was a case of a municipal corporation, and is distinguishable from this case. In rejecting an application for a writ of error, we approve the result of the case as determined by the Court of Civil Appeals, but do not necessarily adopt the opinion.”

As a matter of fact the Ritz Case had another question in it; but the foregoing excerpt from the opinion in the Flemming Case indicates that the writ of error was refused upon the ground that the city of Austin was a municipal corporation, and therefore not within the puryiew of the statute creating a cause of action in favor of a surviving relative, when the death of one person is caused by the wrongful act, negligence, unskillfulness, or default of another. Ritz’s death was caused by a defective street.

After the Flemming Case was decided, the case of Searight v. City of Austin, 42 S. W. 857, which involved a similar question of municipal liability, came before this court In that case the deceased lost his life while working for the city upon one of its plectrie light towers, and this court affirmed the action of the trial court in holding that the municipality was not liable, and the Supreme Court refused to grant a writ of error. In that case this court said: “It was decided by this court in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, that such a suit would not lie against a municipal city corporation. The Supreme Court refused a writ of error in that case. In a later case the Supreme Court held that such a suit was maintainable against a private corporation (Flemming v. Loan Agency, 87 Tex. 238, 27 S. W. 126 [26 L. R. A. 250]); but, as we understand the court, it approved the result of the case decided by this court. The court distinguishes between a private and a municipal corporation. We believe the case last cited settles the law of the case at bar adversely to the appellants, and the judgment of the lower court is affirmed.”

In the case at bar counsel for appellants have presented a strong argument, and have cited cases in other jurisdictions construing statutes somewhat similar to ours, and holding that, when the facts alleged would have constituted a cause of action in favor of the deceased, if death had not resulted, such statutes create a cause of action against a municipality in favor of the beneficiaries mentioned in the statute; and, if that was an open question in this state, we might feel disposed to follow such authorities and hold that the petition under consideration states a cause of action. However, we regard the action of the Supreme Court in refusing a writ of error in the Ritz Case for the reason stated by that court in the Flemming Case, and the subsequent action of that tribunal in refusing a writ of error in the Searight Case, as having settled the question in this state.

Counsel for appellant have uited some other oases decided by our Supreme Court, none of which sought to recover damages for injuries, resulting in death, except City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519. But in that case it is apparent from the opinion of the court that whether or not the statute created a cause of action against a municipality for damages caused by injuries resulting in death was not presented or considered. Prior to 1892 many suits were maintained and judgments affirmed by the Supreme Court against receivers of railroads; but, when the question was raised as to whether or not the statute creating such cause of action included receivers, that court held that it did not, and stated that the affirmance of former judgments against such receivers, where the question was neither suggested nor considered, did not constitute adjudications of the question. Turner v. Croos & Eddy, Receivers, 83 Tex. 231, 18 S. W. 578, 15 L. R. A. 262. In the Barbour Case above cited and relied on by appellant’s counsel, the judgment of the trial court was not affirmed, but was reversed and remanded, and, as to the question of liability, the court merely said: “The question of the liability of a municipal corporation for damages for an injury resulting from neglect to keep its sidewalks and streets in repair has been considered in the case of the City of Galveston v. Posnainsky [62 Tex. 118, 50 Am. Rep. 517], decided at the present term, . * * * and for the reasons given, and upon the authorities cited in that case, we hold in this cáse that such a corporation is liable for such injury, in the absence of an express statute declaring the liability.” That quotation, taken in connection with the case therein cited, which was decided the day previous, shows that the court did not have in mind, consider or decide any question of liability based upon a statute creating a cause of action. In fact the last clause of the quotation, as well as the Posnainsky Case therein referred to, shows that the court had in mind the question of common-law liability, and not of liability created by statute law.

Counsel for appellant lay great stress upon the case of City of Galveston v. Posnainsky, 62 .Tex. 119, 50 Am. Rep. 517, wherein several general principles are announced and supported by authorities therein referred to, and in which Chief Justice Willie was disqualified, and the other members of the court held that a person who was injured, but not killed, by reason of the negligent failure of the city of Galveston to properly maintain a street could recover damages, resting such liability, not upon any statute, but upon,the common, law. That decision has been repeatedly followed, and, unless overruled by the Supreme Court, will continue as the rule of law in this state, although it is contrary to many decisions in other jurisdictions. And in White v. City of San Antonio, 94 Tex. 316, 60 S. W. 426, while seemingly conceding that the question was finally settled by the Posnainsky Case, Chief Justice Gaines said: “Since the public have a right to use the streets of a city, and they are for the benefit of the public at large, and not peculiarly for the interest of the corporation, it seems difficult to justify the holding under the general rule. 'However, the law is so settled in this state and very generally so settled elsewhere, either by statute or by judicial decision.”

Without questioning the authority of the Posnainsky Case, it is not considered amiss for the writer of this opinion to say that investigation made in this case has led him to doubt if the weight of authority supports that ease. Many of the cases on the subject were reviewed by Chief Justice Gray in Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, is an elaborate and forcible opinion, dealing with the question of municipal liability for damages sounding in tort; and it is shown in that opinion that many of the cases relied on in support of the proposition that such liability exists at common law were básed upon charters or statutes held to create such liability. In Hill v. Boston, supra, it is pointed out that Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485, which is quoted from in the opinion in the Posnainsky Case, was a case in which a city, not in the discharge of any public duty, was holding and dealing with property as its own, for its own benefit, and in the same was as a private owner might. As Hill v. Boston does not appear to have been cited by either the court or counsel in the Posnainsky Case, it is reasonable to suppose that it was overlooked. The Posnainsky Case is in conflict with City of Navasota v. Pearce, 46 Tex. 525, 26 Am. Rep. 279, in which it was held that the municipality was not liable to one who was injured by its; negligent failure to keep its streets in repair.

It is contended on behalf of appellant that a municipal corporation, as is shown in the Posnainsky Case, acts in a dual capacity, one governmental or public, and the other - in a sense proprietary of private, and that, when it acts in the former capacity, it cannot be held liable for the negligence or misfeasance of its officers or representatives, but, when it acts in the latter capacity, it can and should be so held. That proposition is followed with the further contention that, as it was settled in the Posnainsky Case that a municipal corporation in .opening and maintaining streets does not act in a governmental or public capacity, but acts for its own benefit, the statute creating liability when the death of one person is caused by the misconduct or negligence of another person should be so construed as to include a municipal corporation when the death results from its negligent failure to properly maintain a street. Our answer to that is that the Supreme Court has, in effect, held otherwise in the Ritz Case and the Searight Case, heretofore referred to.

In reaching the conclusion that the statute did not include a municipal corporation, we do not know, any more than may be inferred, what was in the- minds of the members of the Supreme Court. It may be that they failed to be impressed with the suggestions so forcibly urged by appellants’ csun-sel in this case, and it may be that they had doubts and regrets concerning the Posnain-sky Case, and were not willing to make it a predicate upon which to extend the liability of municipal corporations.

It is also-.worthy of note, and a circumstance of some importance in determining whether or not it was the legislative intent that the word “person” should include a municipal corporation, that, when the statute in question was first enacted, it had not been held by our Supreme Court that such corporations were liable at common law for damages resulting from failure to properly maintain streets; and outside decisions were in conflict upon that subject, and the court referred to has since that time rendered conflicting decisions upon it. Navasota v. Pearce, supra; Galveston v. Posnainsky, supra.

It has been held in this state that neither the state nor a county can be held liable at common law for the failure of either or both to properly maintain public roads, and it is impossible for the writer of this opinion to perceive any sound distinction between a county and a city in that respect. A street in a city is as much a public highway as a turnpike or dirt road not within the limits of a municipal corporation, and the maintenance of a street by a municipal corporation is as much the exercise of a public function as is the maintenance ■ of a public road by a county.’

For the reasons given, a majority of this court has reached the conclusion that the trial court ruled correctly when it sustained-the demurrer' to appellants’ petition, and its judgment is therefore affirmed.

Affirmed.

JENKINS, J., being disqualified, did not sit in this case.

FURMAN, J.

(dissenting). Adopting the statement of the case as set forth in the opinion of a majority of this court, the writer hereof is constrained to dissent from the conclusions reached by the court for the following reasons:

It was clearly decided in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, that, under clause 2, art 3017, of the Revised Statutes of Texas an action for damages would not lié against a corporation, and that the word “another,” as used in said clause 2, was intended to mean and did mean another natural “person,” and did not include an “artificial” person or corporation.. Which principle was later followed and reaffirmed in the case of Searight v. City of Austin, 42 S. W. 857, by this court; in which two cases writs of error were denied by our Supreme Court. It does not seem clear, however, that the precise question raised herein was raised in the Searight Case. It appears, then, from the face of the decision that our Supreme Court approved the principle laid down in the Ritz Case, and held that the word “person” and “another,” as used in said clause 2, art. 3017, are used and employed in their popular sense, and mean an individual and not an artificial person. In a later case, however, than the Ritz Case, viz., Flemming v. Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250, our Supreme Court modified the effect of the decision in the Ritz Case, and decided, in effect, that the word “another,” as employed in said clause 2, art. 3017, was not limited to natural persons only but did include private corporations, which construction has since been followed and reaffirmed in a number of cases, so that it may be justly assumed that the law is definitely settled in this state that, under said clause 2, art. 3017, of the Revised Statutes of 1895, an action will now lie against a private corporation when the death of any person is caused by its wrongful act, negligence, un-skillfulness, or default. It further appears, too well settled to admit of controversy, that a municipal corporation — a city, for example —acts in a twofold capacity.' “Certain functions are conferred upon it in the interest of the public at. large, and certain others for the peculiar advantage of its own inhabitants. For the unlawful acts of its officers in performing functions of the former class, the corporation is held, as a rule, not to be responsible; but, for their torts in discharging duties of a purely corporate character, the corporation is liable. White v. City of San Antonio, 94 Tex. 313, 60 S W. 426; City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517, and numerous eases therein cited.”

It is not deemed necessary in deciding this case to follow the reasoning of the various courts by which they have arrived at the conclusion that a municipal corporation — a city for example — is held liable for a failure to keep its streets, sidewalks, and bridges in repair. Suffice it to say, in the language of Mr. Justice Gaines in the case of White v. City of San Antonio, 94 Tex. 316, 60 S. W. 427, “as to the liability of cities for the negligence of its officers in opening and maintaining its streets there is some contrariety of opinion though it is held, as we think, by the great weight of authority, that they are so liable.” It would seem, then, that if a municipal corporation — a city for example— incorporated under the general laws of Texas, is to be held liable for damages for neglect of corporate duty in failing to keep its streets, sidewalks, and bridges in repair, it must follow that such duty appertains to it in its character as a private corporation, and the exercise of such duty is not a governmental function. •

Hence it is clear that it is the character, purpose, and object of the act done or duty neglected that determines whether a municipal corporation — a city — is or is not exempt from liability for wrongful acts or negligence causing injury, and not the mere fact of incorporation as a municipality vel non.

In the discharge of certain involuntary duties under the terms of its charter, an incorporated city may perform functions that are governmental and essentially public in character, and would enjoy immunity from liability for negligence in the performance thereof. While the same city may voluntarily assume optional duties under its charter that are essentially private in object, scope, and character, in which latter event such city would act in the capacity of a private corporation, and would be held responsible for damages resuitihg from its negligence, wrongfulness, or default as such, and could not and should not be permitted by the law to invoke, as a shield from liability for acts or "defaults committed in furthering its private interest, the mere fact that at the time of the act or default complained of it was also invested with other powers, functions, and duties essentially public. We understand that the reason for the rule exempting municipal city corporations from liability for acts or negligence of their officers is based on the theory that such corporation, while in the discharge of governmental functions, is a part of the state government, and as such may not be sued without the consent of the state; but when, in a particular case, the pleadings disclose that the act or failufe of duty complained of does not come within the purview of a governmental function, then the maxim that, when the reason for the rule fails, the rule also will fail applies.

If the act or omission of duty causing the alleged injury is shown by the pleadings to be of the class denominated as a governmental function, a different question would be before us; but where, as in this case, the petition specifically complains of an act and a failure of duty which our Supreme Court holds in repeated decisions to be of a character pertaining to private corporations, it would seem that the defendant, for the purposes of this case, has elected to act and did act as a de facto private corporation in erecting the bridge complained of, and in failing to keep same in repair, as alleged. And it is the opinion of the writer that the petition states a good cause of action, and that the demurrers addressed thereto in the district court of Brown county should have been overruled, and that the judgment of the district court of Brown county should be reversed, and this cause remanded for trial in said court.


author: BROWN, C. J.

text:
    ELLIOTT et al. v. CITY OF BROWNWOOD.
    (No. 2335.)
    (Supreme Court of Texas.
    May 6, 1914.)
    1. Death (§ 11) — Action fob Death — Common-Law Right.
    Under the common law, in force in the state until changed by Rev. St. 1911, art. 4694, damages were not recoverable for death by wrongful act.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.]
    2. Death (§ 33) — Liability — Municipal CORPORATIONS — * ‘ANOTHER. ’ ’
    Under Rev. St. 1911, art. 4694, authorizing an action for the death of any person caused by the wrongful act, negligence, unskillfulness, _ or default of “another,” a municipal corporation is not liable for the death of a person caused by its negligent failure to maintain its streets in a safe condition for travel.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.]
    Certificate of Dissent from Court of Civil Appeals of Third Supreme Judicial District.
    Action by Mary B. Elliott and another against the City of Brownwood. There was a judgment for defendant, rendered on sustaining a general demurrer to the petition, and plaintiffs appeal to the Court of Civil Appeals, which certified the facts to the Supreme Court. Question certified (166 S. W. 932) answered.
    Fisher & Allison, of Georgetown, and Arch Grinnan, of Brownwood, for appellants. C. L. McCartney, of Brownwood, and W. F. Ramsey and C. L. Black, both of Austin, for appellee.

      For other cases 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 of the Third Supreme Judicial District has certified the following facts to this court:

“In this case the plaintiffs seek to recover damages from the defendant, the city of Brownwood, on account of the death of Otho S. Elliott, the husband of one and the father of the other plaintiffs. They predicate their cause of action upon alleged negligence of the defendant in maintaining a certain street and bridge or culvert across the same. The trial court sustained a general demurrer to the plaintiffs’ petition. The latter appealed to this court, and we affirmed the judgment of the trial court; Special Associate Justice John M. Furman dissenting.
“A motion for a rehearing is now pending in this court, and we have granted a motion made by appellants to certify the question of dissent. As shown by the majority opinion, a copy of which is hereto attached and made a part hereof, it was held that a municipal corporation is not liable for injuries resulting in death, although such death may have been caused by such corporation’s negligence in reference to its streets; and that ruling was based upon what was said and done by the Supreme Court in Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029; Flemming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250; and Searight v. City of Austin, 42 S. W. 857. The views of the dissenting judge are stated in the opinion filed by him, a copy of which is also hereto attached and made a part hereof., The opinion of the majority of the court and the dissenting opinion clearly disclose the question of law as to which the dissent exists, and that question is hereby certified to the Supreme Court for decision.”

This question of law is presented by the facts. Is the city of Brownwood liable to appellants, in damages, for the death of Otho S. Elliott?

Prior to the enactment of article 4694, R. S. 1911, the common law was in force in Texas, and damages could not be recovered for the death of any one. The portion of said article pertinent to this question reads:

“An action for actual damages on account •of injuries causing the death of any person may be brought in the following cas-Qg* * * *
“2. When the death of any person is caused by the wrongful act, negligence, unskill-fulness, or default of another.”

The word “another” means “another person,” and it is claimed by appellants that a municipal corporation is a person within the meaning of the word “another,” person being understood; thus construed it would read “another person.”

The issue has been decided by this court in the following cases by refusing applications for writs of error: Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029; Searight v. City of Austin, 42 S. W. 857. In each case the Court of Civil Appeals held that damages could not be recovered against a municipal corporation when the injury resulted in death. Application was made in each case to this court for writ of error, which was refused. In the case of Searight v. City of Austin, the sole question presented to this court was by assignment of error distinctly claiming that the error consisted in holding that a recovery could not be had against a municipal corporation for death occasioned by its negligence. Able counsel with earnestness and ability urged upon this court the proposition that municipal corporations were embraced in the statute. This court could not have refused that application without passing upon and overruling the assignment. Since that decision was made, and application refused, it has been considered settled in this court.

We answer that there could be no recovery against the city of Brownwood on the facts stated.


text:
    FT. WORTH BELT RY. CO. v. JONES et al.
    (No. 2352.)
    (Supreme Court of Texas.
    May 20, 1914.)
    Master and Servant (§ 285) — Death of Servant — Questions for Jury.
    On evidence in an action for a switchman’s death by falling from a car upon its sudden stop to avoid striking an iron pipe, on the issue whether the pipe was placed on the track by the employes of the impleaded defendant, held, that the trial court did not err in peremptorily instructing a verdict for such defendant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.]
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Helen Jones against the Ft. Worth Belt Railway Company, which im-pleaded Armour & Co. Judgment for plaintiff and for Armour & Co., and defendant Railway Company appeals. Certified question from Court of Civil Appeals. Question answered in the negative.
    H. M. Chapman and Lassiter, Harrison & Rowland, all of Ft. Worth, for appellant. McLean & Scott, of Ft. Worth, for appellee Jones. Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for appellee Armour Co.

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

   BROWN, C. J.

The Court of Civil Appeals has failed to find and certify the facts as required by article 1619, Revised Statutes 1911, but refers this court to the opinions for the facts involved. Having received submission of the question, we will endeavor to state the facts. The question submitted is stated thus: “Whether or not, under the circumstances stated in said opinions and otherwise shown by the record, the trial court erred, as assigned by appellant, in peremptorily instructing a verdict in favor of appellee Armour & Co.”

The facts are so stated that we must copy the following in order to be sure of setting out all that is material. We copy from the opinion as follows: “Frank Jones was employed by the Ft. Worth Belt Railway Company as a switchman. On March 2, 1910, while serving in that capacity, he and Swope, another switchman, were stationed on the rear ear of one of that company’s trains. This train was backed in upon a switch track leading to Swift & Co.’s plant, thus placing the car upon which the switchmen were riding in front. While the train was thus moving, Jones and Swope discovered an iron pipe lying across the track ahead of them, and one or both gave to the engineer a signal to stop the train. In obedience to this signal, the train was stopped, or its speed checked, so suddenly that Jones fell upon the track in front of the car and was run over and killed. Helen Jones his widow, for herself and minor children instituted this suit against the Ft. Worth Belt Railway Company to recover damages as a result of the death of her husband, and, from a judgment in favor of plaintiff, the railway company has appealed.”

Omitting that which relates alone to the railroad company, we copy from the opinion as follows:

“The Ft. Worth Belt Railway Company in-terpleaded Armour & Co., alleging that the latter company placed the iron pipe in question upon the track, and that in so doing it was guilty of negligence; that the railway company was ignorant of the fact that the pipe was upon the track; that the negligence of Armour & Co. in placing the pipe upon the track was the direct and proximate cause of the accident; and by reason of such facts they prayed for judgment over against Armour & Co. in the event the railway company should be held liable to the plaintiffs for the death of Frank Jones. In obedience to a peremptory instruction by the court the jury returned a 'verdict in favor of Armour & Co. upon this plea over against it, and that instruction is assigned as error by appellant.

“H. D. Stephenson testified that he was employed by Armour & Co. as one of the millwright gang, and at the time of the accident was engaged with other employés in putting in concrete forms for the erection of the reservoir in the holes previously made by the excavations mentioned above; that he witnessed the accident and saw the pipe upon the railway track at that time. He further testified as follows: T was working with a foreman named Swodener. Kiehter was running the bull gang. His gang had dug those holes for these concrete forms, and some of the same gang were putting in the concrete. * * * There was no work being done there that I remember of in which any iron pipe such as I saw there was being used. I did not see any such pipe that was in use there. We were not using it. These other men and myself were working for Armour & Co. This cement business was part of a reservoir that Armour & Co. was putting in on their property.’

“W. S. Woodward, superintendent of transportation for the appellant, reached the place of the accident shortly after the accident and inspected the iron pipe in question. He testified as follows: ‘Now the reservoir is on the right-hand side as you are shoving into Swift’s plant, and these condensers as I call them are about 6 feet from the track; but I have no idea of the depth of them — may be 6 feet or 10 feet, or 12, or might be deeper. I should think they are probably 16 by 20 feet in size. I do not know how long this work of excavation had been going on at that particular place. Armour & Co. were doing that excavation, and the railroad had nothing to do with it. I should think, as near as I can remember, this work had been going on there generally, along that place where this pipe was picked up, about two weeks. * * * This pipe is a deal more rusty now than it was at that time. It was rusty at that time but not so rusty as it is now. In my judgment that pipe had been in use — it was an old pipe. * * * I will say that there was an embankment of dirt next to the rail on the west side, and the other side where this excavation was the dirt was piled on them. * * * The track was level, about 20 or 30 feet, or a little higher than the rail with the dirt; but it was south of where this excavating was, I should think about 20 or 30 feet as near as I can remember. * * * It was between 20 and 30 minutes after the accident before I got to the scene of it. The remains of the deceased were still there when I got there. They had not been removed. This pipe I testified about this morning was still there. At that time the pipe was not as rusty as it is now. It was rusty, but not as much as it is now. This is the same pipe that was there at that time. It did have the appearance of having been buried in the ground. There was no difference in the appearance of the pipe in the rust as to having been buried from one end to the other. The condition of the ground immediately west of the track, say from a point opposite the second pier from the south, or down to where we found this pipe, was that there was loose dirt piled right in here (indicating on the map heretofore referred to in this record). By “here” I mean between the pier and the railroad. 1 don’t remember about that being the south pier. I don’t remember nothing about those piers. I should think that dirt was piled up 2 feet higher than the rail, about that. At the point where it was 2 feet higher than the rail, I should think that was probably 3 feet from the rail, or about that, and it sloped down. That dirt did not interfere with the movement of the train, it was not over the rails. I suppose that dirt came out of the excavations that were dug for those piers, or foundations, rather. I don’t know how long it had been after these foundations had been dug and completed before the crew went to put in those boxes to hold the . concrete. * * * When I got there the pipe had been picked up by some one and was'lying up on a pile of dirt. It had been removed, and all I know about that being the pipe, you understand, is what I was told there. I do not know that that is the pipe they hit. When I got there it was generally understood that that was the pipe, and it was the one that was pointed out to me, and this is that pipe. There was no other pipe around there.’

“Referring to the railway track where the accident happened, the witness Woodward further testified: ‘This track at this place was no„t No. 9. It was Swift’s lead. It ran to Swift & Co.’s plant and the Southwestern Mechanical Company’s plant. In hauling stuff to Armour & Co. it would not come in over that track at all. In hauling out things from Swift & Co.’s plant, and also from the Southwestern Mechanical Company’s plant, it would come out over this track that we call “Swift’s lead.” You ask me if it is not a frequent occurrence in both Swift & Co.’s plant and in the Southwestern Mechanical Company’s plant that old iron is junked, and I answer you by stating that we call it scrapped. It is sold to the junk dealers here. It is hauled out there over this track out to the place where it is kept until they come and get it; coming from the Mechanical Company’s plant, or from Swift & Co.’s, you do come over that track. It is true that such pipe as this — that is true of such pipe as this frequently.’

“Ben Roy, a'steam fitter in the employment of Armour & Co. at the time of the accident, was talking to the foreman of the millwright gang as the train approached and witnessed the accident. He testified: ‘There was dirt piled up there on the west side of the track, from: a point • where this gentleman and I were standing when we saw this pipe on the track, between us and them. It was piled higher than the track. It was sloping down. The dirt sloped down; sloped down probably within 8 inches of the track. That dirt came out of those holes along there by the reservoir that they put this concrete in for the condenser. That was not on the rail. The only thing I seen on the rail was this pipe. * * * I was then in the employ of Armour & Co. I had business at the reservoir, or I would not have been there. I" had worked from that point to the top of the engine room. There was no work being done there, in which this pipe was being used, that I know of, or such pipe as I saw there at that time. I was a steam fitter, engaged in working around that place at that time. If there was any work being done there in which such pipe as this was being used, I do not know anything about it. I do not know of any one besides myself that was using it there, or why they would have it there. That piece of pipe which was shown me is not the pipe, in my judgment. The piece, of pipe I seen was a newer piece of pipe than that; but it was an old pipe, but not so rusty as that.’

“Upon the issue whether or not the iron pipe was placed upon the track by Armour & Co.’s employés, the foregoing is substantially the entire testimony introduced.

“The majority of this court are of the opinion that the testimony recited above, considered in connection with the failure of Armour & Co. to prove that no such pipe had been taken from the ground during the excavations, and the absence of any evidence showing the presence of any persons at the place of the accident, immediately prior thereto, other than the employés of Armour & Co., tended to support the affirmative of that issue, and that the court erred in peremptorily instructing a verdict in favor of Armour & Co.

“The writer, however, is unable to concur in this conclusion.”

The fact that Armour & Co.’s servants were at work near the track cannot furnish a basis for a presumption that they placed the pipe on the track. It did not rest upon Armour & Co. to prove that their servants did not place the pipe there, but the burden was upon the railroad company. A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved. “No inference of fact should be drawn from premises which are uncertain. Pacts upon which an inference may legitimately rest must be established by direct evidence, as if they were the facts in issue. One presumption cannot be based upon another presumption.” 16 Cyc. 1051; Mo. Pac. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324. No fact or circumstance was proved in this case which justifies the presumption that the pipe was placed upon the track of the railroad by any person under the control of Armour & Co.

The trial court did not err in giving peremptory instructions to the jury to return a verdict for Armour & Co.