author: CONNER, C. J.

text:
    JOHN E. MORRISON CO. v. BUTLER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 24, 1913.)
    1. Chattel Mortgages (§ 235) — Debts Secured — Future Advances.
    A chattel mortgage to an employment company stated that it was given to secure a note for $200, and for any additional goods furnished during, the year. At its date the mortgagor owed the company nothing, but thereafter he contracted debts for supplies amounting to a little more than $200. On November 23d of the same year, he paid the account in full. The company’s manager testified that the mortgage was given to secure the payment for supplies to be thereafter furnished, and that he would have released -the chattel mortgage when the account was paid if the mortgagor had requested it Thereafter the mortgagor, before the last of the year, purchased additional goods on credit. S'eld, that the mortgage, construed in the light of the surrounding circumstances, did not secure the credit given after the first indebtedness was fully paid.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 496-499, 507; Dec. Dig. § 235.]
    2. Appeal and Error (§ 1029)' — Harmless Error — Party Not Entitled to Reliee.
    Where a substituted trustee seized property under a chattel mortgage which had been fully satisfied, error committed, in an action for conversion of the property, in restricting the powers of the trustee under the mortgage, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4035, 4036; Dec. Dig. § 1029.]
    Appeal from District Court, Young County; P. A. Martin, Judge.
    Action by W. A. Butler against the John E. Morrison Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Arnold & Arnold, of Graham, for appellant. L. C. Counts, Kay & Akin, of Graham, and Marshall Spoonts, of Ft. Worth, for appellee.

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

   CONNER, C. J.

Appellee sued the appellant company to recover both actual and exemplary damages for the conversion of two mules, and succeeded in securing a verdict and judgment for $757.50.

The seizure, if unwarranted, was under circumstances amounting to a conversion, and the principal question presented is whether the seizure was authorized by the terms of the mortgage under which the seizure was made. It is undisputed that on March 1, 1910, appellee executed and delivered to the appellant a mortgage in the usual form upon the mules in question, and upon certain other property not 'involved in this controversy, the material provision of which is as follows: “This conveyance is intended however as a trust for the better securing of the John E. Morrison Co. of the county of Young and state aforesaid in the payment of the following indebtedness to wit: One certain promissory note of the same date as this mortgage for $200.00 due Oct. 1, 1911, with interest from maturity signed by W. A. Butler for all farm implements, wagons, buggies, etc. and for any additional goods furnished this year and bearing interest at the rate of 10% from maturity. Under payment of which said promissory note and account according to its face and tenor being well and truly made then in such case this conveyance is to become null and void and of no further force and effect.” It is further undisputed that at the time of the execution of the mortgage ap-pellee was not indebted in the amount of the note specified, but that he from time to time secured supplies amounting in all to something more than $200, and for which appellee fully paid on November 23, 1911. On November 28th thereafter appellee again began procuring various supplies, the account for which ran from November 28, 1911, until January 20, 1912, amounting to $32.83, of which $21.30 was for goods furnished during 1911. The seizure in question was for the purpose of enforcing the collection of this account of $32.83. The trial judge construed the mortgage as not affording any. justification for the seizure of the mules, and in effect peremptorily instructed the jury that the seizure constituted a conversion.

If the mortgage in this ease is broad enough in its terms to secure the payment of that part of appellant’s account running from November 28, 1911, to January 1, 1912, then the court’s charge was erroneous, as was also the court’s action in refusing appellant’s special charge presenting this view. See Freiberg et al. v. Magale, 70 Tex. 116, 7 S. W. 684; Bullard v. Stewart, 46 Tex. Civ. App. 49, 102 S. W. 174. We conclude, however, that the trial court properly interpreted the mortgage, and committed no error in the particulars mentioned. Reading the terms quoted in the light of the undisputed evidence, the mortgage means that supplies were to be furnished and security given to the extent of $200 as evidenced by the note. No indebtedness existed at the time of the execution of the note and mortgage. W. P. McCracken, appellant’s general manager at the time, testified: “When he (appellee) made this mortgage to us I agreed to advance him $200 worth of supplies to run him the year. I did not agree to let him have any more. * ⅜ * If Mr. Butler’s account had not been as great as his note, I would have credited his note with the difference. I turned his note and account over to him, when they were paid. It is very seldom that a man calls for a release to a mortgage. At the time Mr. Butler made this payment on November 23, 1911, that fully settled everything Morrison had against him. I would have given Mr. Butler a release for his mortgage if he had asked for it.” Under these circumstances the note but fixed the limit of the credit agreed upon, and the terms “note” and “account” in the mortgage were evidently used interchangeably for the same thing. The payment of the note shown, therefore, discharged the security given for its payment, in the absence of a new agreement, which was not shown, and this effect was not changed by the mere fact that appellee thereafter during the same year was advanced a few other articles; the mortgage not in terms being made to secure such additional advances, as was the case in the authorities above cited. See Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; Hale v. Baker & Rice, 60 Tex. 217; Solinsky v. Natl. Bank, 82 Tex. 244, 17 S. W. 1050; McDowell v. Jones Lbr. Co., 42 Tex. Civ. App. 260, 93 S. W. 476. The court therefore, as before stated, did not err in giving the peremptory instruction. See Crawford v. Thomason, 53 Tex. Civ. App. 561, 117 S. W. 181; Crouch Hardware Co. v. Walker, 51 Tex. Civ. App. 571, 113 S. W. 163. The first and second assignments of error are accordingly overruled.

The only remaining assignment complains that the court, by reason of circumstances not necessary to mention, erred in restricting the power of the substitute trustee, who made the seizure to the sale of the mules. But if we are correct in our conclusions disposing of the first and second assignments of error, it is evident that this action of the court was immaterial. For, the mortgage having been discharged, no authority for his appointment existed, nor could power thereafter have been conferred by virtue of the mortgage.

No complaint is made of the amount of the judgment, nor of the imposition of exemplary damages, and the judgment is accordingly affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    BOMAR et al. v. MUNN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 28, 1913.)
    1. Brokers (§ 46) — Right to Commissions— Exclusive Agency — Sale by Owner.
    Whatever be the right of plaintiffs to a commission, if they were given the exclusive “right” to sell land, for a period of a year, and during that time it was sold by the owner, through his efforts alone, they, if only given the “exclusive agency” to sell it for that time, are not, in the case of such a sale by him, entitled to a commission, in the absence of a special contract therefor.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 47; Dec. Dig. § 46.]
    2. Brokers (§ 85) — Action for Commissions —Evidence of Efforts and Expenses.
    In an action by brokers for a commission, on the theory that under their contract they were entitled to it, though the sale was made by the owner, evidence of efforts made by them to sell and expenses incurred by them in so doing is inadmissible.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    3. Appeal and Error (§ 928) — Record-Presumption.
    The record containing no charge, and the transcript being certified to contain a true and correct copy of all the proceedings had in the cause, as they appear on file and of record in the clerk’s office, it cannot be presumed any instruction, eliminating the effects of prejudicial evidence improperly admitted, was given.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.]
    4. Trial (§ 240) — Argumentative Instructions.
    Requested instructions, being argumentative in form, are objectionable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by W. E. Munn and another against L. H. Bomar and another. Judgment for plaintiffs. Defendants appeal.
    Reversed and remanded.
    Stephens & Miller, of Ft. Worth, for appellants. A. J. Clendenen, of Ft. Worth, for appellees.

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

   DUNKLIN, J.

L. H. Bomar and George W. Riddle, defendants, have appealed from a judgment rendered in favor of W. El Munn and F. L. Portwood, plaintiffs, for commissions claimed by the plaintiffs, as real estate brokers for the sale of certain property owned by the defendants. The cause of action asserted by the plaintiffs was, substantially, that for a valuable consideration paid by them the defendants gave them the exclusive right for the sale of the property for a period of one year; that plaintiffs had expended labor and money in endeavoring to find a purchaser; and that during the life of the contract for exclusive agency the defendants sold the property to one Dr. Tate, to whom plaintiffs had previously shown the property. Plaintiffs introduced evidence tending to prove the contract alleged. There was neither pleading nor proof of the amount of money expended by plaintiffs nor of the value of their services rendered in their efforts to procure a purchaser for the land, nor did plaintiffs allege that their services were the efficient cause of the sale.

While it is alleged in the petition that plaintiffs were employed by the defendants as their agents and brokers for the purpose-of selling the property, and that plaintiffs were given “the exclusive right for the period of one year thereafter to sell said land, and upon a sale thereof plaintiffs should receive 5 per cent, of the selling price as commission”; yet in subsequent portions of the petition the contract of employment is designated as one of “exclusive agency” to sell said lands. If the contract of employment was that of exclusive agency only, then, in the absence of special contract to the contrary, the defendants would have the right under the law to sell the property, themselves, without incurring any liability to plaintiffs for commissions. Of course, if defendants agreed with plaintiffs not only to give them the exclusive agency for the sale of the land, but also to pay them a commission upon any sale by whomsoever made, then such a contract would render the defendants liable even though the efforts of the plaintiffs were not the procuring cause of the sale. Evidently counsel for appellees proceeded upon the theory that, if the plaintiffs were given “the exclusive right" to sell the land for the period of one year, then defendants would be liable for the commission, even though the property was sold through their efforts alone. Whether or not this contention is correct it is not necessary for us to decide, since no assignment has been presented by appellants raising the question; but we have deemed it expedient to moot the question, in view of another trial.

By their first four assignments complaint is made of the admission of the testimony of the plaintiffs showing the efforts made and the character of expenses incurred by them to sell the property. We are of the opinion that in those rulings reversible errors were committed, since, even under plaintiffs’ own construction of their petition, such testimony was not pertinent to any material issue presented and was calculated to prejudice the rights of defendants.

The record before us contains no charge given by the trial judge to the jury. Attached to the transcript is a certificate from the clerk of the trial’ court that the transcript contains a true and correct copy of all the proceedings had in the cause as the same appears on file and of record in his office. No motion has been made before us suggesting a diminution of the record and showing that a charge was given by the trial judge, and was, omitted from the record. Hence .we must accept the certificate of the clerk as correct. It follows from this that we must assume that no instruction was given by the trial judge to the jury; and therefore no presumption can be indulged that the trial judge may have give instructions to the jury which eliminated any harmful effects to appellants from such testimony.

The requested instructions, the refusal of which is complained of in the fifth and sixth assignments of' error, we think were objectionable as being argumentative in form, and hence properly refused.

Appellant L. H. Bomar and his wife both testified that during the summer, and at a later date than the date of the contract upon which plaintiffs’ petition is predicated, plaintiff Munn entered into a contract with Bomar or agency for the sale of the property in controversy, the terms of which, according to the testimony of these two witnesses, were materially different from the contract alleged in the plaintiffs’ petition. Apparently upon the theory that this, contract was a novation and substitute for the original contract alleged in the plaintiffs’ petition, if the same was in fact made, appellants requested an instruction submitting the same as a complete defense to plaintiffs’ suit. To the refusal of this instruction appellants have assigned error. In reply to this assignment, appellees call attention to the fact that this new contract, if made, was not pleaded by the defendants, and therefore insist that, notwithstanding the proof offered tended to show that it was in fact made, such proof could avail appellants nothing. It will be unnecessary to discuss the merits of this assignment, as the pleadings may be different upon another trial.

For the errors indicated, the judgment is reversed, and the cause remanded.


text:
    WESTERN UNION TELEGRAPH CO. v. RICHARDS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1913.
    Rehearing Denied June 21, 1913.)
    1. Telegraphs and Telephones (§ 68) — Actual Damage — Remoteness — Failure to Deliver — Damages—Mental Distress.
    Mental distress, arising from defendant’s negligence in failing to deliver a telegram, re-suiting in plaintiff’s being required, in a strange city, to permit the burial of bis wife’s remains with money donated by persons charitably inclined, constituted actual damage, which was not too remote to sustain a recovery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    2. Telegraphs and Telephones (§ 37)— Messages — Failure to Deliver — Defenses.
    Plaintiff’s wife having died in a strange city where plaintiff was without money or friends, plaintiff’s father telegraphed, authorizing M. to draw on him for money to be used for plaintiff’s benefit in providing a funeral. The telegram was not delivered, and plaintiff was compelled to permit his wife’s remains to be buried as the subject of charity. Held, that the fact that the telegram was addressed' to M., and not to plaintiff, was no defense to defendant’s liability to plaintiff for failure to deliver the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.] •
    3. Telegraphs and Telephones (§ 71) — Ex-cessiveness — Failure to Deliver Message.
    Plaintiff’s wife having died in a strange city, where plaintiff had neither friends nor funds, plaintiff’s father wired M. to furnish plaintiff money to be used for the burial of his wife’s remains. The message not having been delivered, the remains were buried as the subject of charity. Meld, that a verdict allowing plaintiff $600 for mental anguish was not excessive.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. § 71.]
    Appeal from Taylor County Court; F. A. Bledsoe, Judge.
    Action by Chas. Richards ánd others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, and N. L. Lind-sley, of Dallas, for appellant. W. T. Potter, of Merkel, for appellees.

       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

   CONNER, C. J.

This suit was filed on the 4th day of April, 1912, to recover damages alleged to have been sustained by appellee on-'account of appellant’s failure to seasonably deliver a telegram authorizing Claude Miller, to draw money for the use and benefit. of appellee. The petition alleged that R. F. Richards, appellee’s father, who resided in Merkel, Tex., sent the telegram to Claude Miller, who, together with appellee, was living in Houston, Tex., which authorized Claude Miller to go to the Lumbermen’s. National Bank of Houston and draw on a national bank of Merkel for $25 for the use and benefit of appellee. It was also alleged that the wife of appellee had died of spinal meningitis, and that the money was needed for the purpose of burying appellee’s wife; that appellee was a stranger in Houston, without means, of all which appellant had full notice;' that because of appellee’s failure to receive the money in time, he was compelled to unreasonably delay his wife’s funeral, and finally to suffer the burial of his wife by charitable organizations of Houston, whereby hé endured great humiliation and mental distress. Appellant answered by general demurrer, which was overruled, and also by general denial. The case was tried before the court without a jury, and resulted in a judgment in appellee’s favor for the sum of $600.

Appellee’s petition is not subject to general demurrer for want of an allegation of actual damage, nor because the damages alleged are too remote, as asserted in the first proposition under the first assignment of error. Mental distress such as alleged, naturally arising as a consequence of a negligent failure to deliver a telegram, constitutes actual damages in this state; and, even though such distress may not be first in sequence, if it is a natural consequence of a failure to deliver, and one of which the telegraph company has special notice, as alleged in this case, then the damage is not too remote in a legal sense for recovery. See Stuart v. W. U. Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623; W. U. Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385.

Nor is the petition demurrable on the ground that it appears therefrom that the relief intended ,to be afforded by the transmission of the telegram was in a sense dependent upon the act of a party other than the beneficiary. Nothing in the petition shows that Claude Miller, to whom the telegram was addresed, would have failed to draw the money as directed, or to deliver it as intended to appellee. On the contrary, it is expressly alleged that he would have done so, and in considering the demurrer the fact is to be so assumed. The fact then that the telegram was addressed to Claude Miller, and that he was to primarily act, presents no such contingency as will defeat a recovery. See W. U. Tel. Co. v. Lyman, 22 S. W. 656; W. U. Tel. Co. v. Gossett, 15 Tex. Civ. App. 52, 38 S. W. 536, in which writ of error was refused. The first assignment and all -propositions thereunder are accordingly overruled.

There is no merit in the contention that, because the subject-matter of the telegram was the transmission of money, the damages claimed were too remote. As alleged, and as shown by the evidence, the consequences were easily within the contemplation of the parties, and in such cases whatever may be the subject-matter of the telegram, a breach of the contract for due submission and seasonable delivery gives a right of action for the proximate results. W. U. Tel. Co. v. Sheffield, 71 Tex. 570, 10 S. W. 752, 10 Am. St. Rep. 790; W. U. Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385; Martin v. W. U. Tel. Co., 1 Tex. Civ. App. 143, 20 S. W. 860; W. U. Tel. Co. v. Williford, 2 Tex. Civ. App. 574, 22 S. W. 244.

The evidence undoubtedly sustains the material allegations of appellee’s petition. Tlie fact that the decent hurial of appellee’s wife was accomplished by the aid of two charitable women of Houston, without an affirmative showing that they were acting for charitable organizations, can make no difference. The material, distressing fact was that the wife’s body of necessity was treated and buried as a subject of charity, and that the husband was deprived of contributing those last testimonials of love so naturally prompted by the circumstances. These results were in no wise altered, nor the mental distress thereby occasioned in any wise lessened, by the further fact that appellee received thé money after it was too late to apply as intended, and later used it for other purposes. Appellant’s third assignment is accordingly overruled.

The final complaint is that the judgment is excessive, but in this, too, we must differ from appellant’s contention. The evidence shows that appellee was moneyless, in a strange city; that he was sorely grieved over the death of his wife, with an infant child left in his care; that as a result of gross negligence on the part of appellant’s servants he failed to receive in due time the money that he otherwise would have received, and was compelled to suffer many hours because of his inability to properly care for the inanimate form of his wife, and finally to have her buried as the pauper is buried. Nothing in the evidence indicates that in assessing the damages the trial court acted under the impulse- of passion or prejudice, and many eases might be cited where, under circumstances no more painful, verdicts of equal or greater amount have been sustained. W. U. Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843; W. U. Tel. Co. v. Stephens, 2 Tex. Civ. App. 129, 21 S. W. 148; W. U. Tel Co. v. Russell, 12 Tex. Civ. App. 82, 33 S. W. 708; W. U. Tel. Co. v. Cooper, 20 S. W. 47.

We conclude that all assignments of error must be overruled, and the judgment affirmed.


author: SPEER, J. CONNER, C. J.

text:
    HARRIS v. TODD.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1913.)
    1. Exemptions (§ 4) — Extent — Construction op Statutes.
    The statutes creating exemptions from execution and other forced sales for debt receive a liberal construction.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 4; Dec. Dig. § 4.]
    2. Exemptions (§§ 45, 57) — Property Exempt — Pool Tables — “Apparatus” — “Trade or Propession.”
    The proceeds of an insurance policy on' four pool tables are exempt from garnishment, the pool tables coming within the designation “apparatus,” and the business of running a pool hall being legitimate, and a “trade or profession,” within the exemption law (Rev. Civ. St. 1911, art. 3785, par. 5).
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61, 79; Dec. Dig. §§ 45, 57.

    For other definitions, see Words and .Phrases, vol. 1, pp. 439, 4:40.]
    Conner, C. J., dissenting.
    Appeal from Young County Court; E. E. Hall, Judge.
    Action by C. B. Harris against R. M. Todd. From judgment for defendant, plaintiff appeals.
    Affirmed,
    Arnold & Arnold, of Graham, for appellant. L. C. Counts, Kay & Akin, of Graham, and Marshall Spoonts, of Ft. Worth, for appellee,.

       For other oases see same topic an4 section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   SPEER, J.

The question presented for determination on this appeal is whether or not the proceeds of an insurance policy upon four pool tables, belonging to appellee, a married man, and used by him in the operation of a pool hall in the town of Graham, are exempt under the statutes from a writ of garnishment sued out by appellant. Paragraph 5, article 3785, Revised Statutes 1911, reserves to every family, exempt from attachment, execution, and every other species of forced sale for the payment of debts, “all tools, apparatus and books belonging to any trade or profession.”

In determining whether or not the exemption is to apply in any case, we must bear in mind that the settled policy of the courts in this state is to adopt a liberal rule in the construction of such statutes.

The question to be determined presents a" dual aspect: First, are the pool tables “tools” or “apparatus”; and, second, is the business of running a pool hall a “trade” or “profession.” The ease of Green v. Raymond, 58 Tex. 80, 44 Am. Rep. 601, illustrates the scope of the terms “tools” and ^‘apparatus,” if it does not define them. It is there said: “The terms used, and especially the word ‘apparatus’ is strikingly apt, a generic term of the most comprehensive signification. The trade or profession of Raymond was that of editor and publisher of a weekly newspaper. What tools and apparatus belonged to that trade or profession? It is the printing press, type, cases, etc., and not alone the pair of scissors, bottle of ink, and goose-quill pen of the editorial department. The apparatus belonging to the trade of a publisher must of necessity include the press, type, cases, etc., which are essential to the conducting of that business. The blacksmith could as well dispense with his anvil and hammer, the shoemaker with his awl and last, 'the farmer with his plow and hoe, as could the publisher dispense with his press, type, and cases; and yet all of these are exempt as belonging to these respective trades. So, in our opinion, are the press, type, cases, etc., of the publisher exempt as belonging to his trade.” See, also, St. Louis Type Foundry v. International Live Stock Printing & Publishing Co., 74 Tex. 651, 12 S. W. 842, 15 Am. St. Rep. 870; Cone v. Lewis, 64 Tex. 333, 53 Am. Rep. 767; Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710. In the case last cited our Court of Civil Appeals for the Third District held that an iron safe, used by an insurance agent in his business, is an apparatus and tool within the meaning of the statute in question. An examination of the statute will disclose that the exemption is not confined to such tools and apparatus as are necessary to any trade or profession, but rather includes all tools and apparatus belonging to any trade or profession. A proper observance of this distinction will, we think, explain the apparent conflict in the conclusions announced in some of the cases. A typewriter, belonging to a physician, and used by him in the practise of his profession, has been held not to be exempt. Massie v. Atchley, 28 Tex. Civ. App. 114, 66 S. W. 582. So of a soda fountain used by its owner in the business of a confectioner (McCord-Collins Co. v. Lazarus, 50 S. W. 1048), and a buggy and harness used by a land, loan and insurance agent in his business (Cates v. McClure, 27 Tex. Civ. App. 459, 66 S. W. 224). But these cannot properly be said to belong to the respective trades or professions of the owners claiming the exemptions. In the present case, if the pool tables are “tools” or “apparatus” undoubtedly they belong peculiarly to the business of one engaged in running a pool hall. We think, under the liberal rule indicated by our decisions, the tables are included in the generic and comprehensive term “apparatus,” and there remains only to be considered whether or not the business of appellee is a “trade” or “profession.” The case of Betz v. Maier, already cited, is especially luminous on this point. The authorities are there reviewed at great length, and the conclusion reached that the words “trade” and “profession” include the business of an insurance agent. As already seen, our Supreme Court has held them to include the business of publisher of a newspaper. The business of running a pool hall is legitimate and licensed by law. We have no doubt but that one engaged in that business is following a “trade” or “profession” within the meaning of our exemption statute. Therefore, we hold that the trial court committed no error in deciding for appellee. The evidence does not show such abandonment of the tables as would forfeit appellee’s right to his exemption.

The judgment is affirmed.

CONNER, C. J.

(dissenting). The writer Is unable to concur in the conclusions of the majority. In .his opinion the clause of .the exemption statute quoted by them has been given a latitude never originally intended by the Legislature, and not to be justified by the rule of liberal construction properly given such statutes. We have a general law which declares that words shall be given their ordinary signification, except in certain cases not here applicable. See Revised Statutes, article 5502. The words “trade,” “profession,” “business,” “employment,” “occupation,” “tools,” “apparatus,” “implements,” “furniture,” “instruments,” and the like, have differing and well-understood meaning, and the Legislature must have meant something by the limitation so carefully and plainly made. If it had been intended to include every person engaged in any character of business, employment, or avocation, why was it not so stated? Or if intended to protect any and every character or species of property why use restricted terms? Why not have used general terms, clearly comprehending every kind of property used in any way, in any avocation or employment?-* But in neither case was this done. The statute under consideration in terms extends its protection only to “all tools, apparatus and books belonging to any trade or profession.” To include the running of a “pool room” and resorts of like kind among the “useful trades” or “professions” requires a very pronounced stretch of liberality in the use of the English language, and to go yet further and say that the “pool table” is a “tool” or an “apparatus” seems like a perversion of terms or judicial legislation. A tool or apparatus is generally understood to be an instrument or set of instruments used by a tradesman, or by one pursuing the duties of a profession. But the keeper of a pool room merely permits others to use his tables for a stated hire, as does the livery stable keeper his carriages, or the transfer man his automobiles. I cannot think it probable that the Legislature intended to exempt from the payment of all debt, however just, these and innumerable other things that might be mentioned, which are used in the multiplied avocations of men. Nor do I think the latest expression of our Supreme Court supports any such conclusion. See Simmang v. Penn Fire Ins. Co. 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846, where it was held that the dishes, chairs, tables, and other furniture used by a restaurant keeper were not exempt under the statute now under consideration. A number of other authorities from other states of like effect might be cited, but which for want of time will not be reviewed. I now content myself merely with the foregoing brief statement as a reason for nonconcurrence with the majority.


author: HARPER, C. J.

text:
    CO-OPERATIVE VINEYARDS CO. v. FT. STOCKTON IRRIGATED LANDS CO.
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1913.
    Rehearing Denied June 26, 1913.)
    1. Eminent Domain (§ 10) — Power—IRRIGATION CORPORATION.
    An irrigation company has the power of eminent domain, and may exercise the privileges of public service corporations with respect to irrigation projects, whether incorporated under the direct provisions of Rev. St. 1895, art. 704, subd. 6, or under art. 642, subd. 23, authorizing the creation of private corporations for irrigation purposes, etc.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 35-48; Dec. Dig. § 10.]
    2. Eminent Domain (§ 10) — Irrigation Companies.
    An irrigation company which has not taken water from streams in which the public has any interest, but only distributes water arising from lands owned exclusively by it which do not touch the lands of others except persons holding under it, cannot exercise the privileges of public service corporations with respect to irrigation projects, .including the power of eminent domain.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §,§ 35-48; Dec. Dig. § 10.]
    3. Waters and Water Courses (§ 288) — Irrigation — Damage—Liability.
    The fact that a corporation is exercising the powers of a public service irrigation corporation is immaterial upon its liability for damage to land or crops by negligent seepage or flooding of water from its streams.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 288.]
    4. Deeds (§ 170) — Restrictions.
    A grantor may incorporate such restrictions in his deed to the land as are not against public policy.'
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 450, 535, 536; Dec. Dig. § 170.]
    5. Waters and Water Courses (§ 288)— Restrictions — Injuries to Land Conveyed — Validity of Release.
    Where a deed provided that vendee waived all claims which might accrue for damage by reason, of seepage or overflo-w from vendor’s irrigation canals, vendor would not be liable for damages caused from such source in the absence of gross or willful negligence by him causing damage to the land.
    [Ed. Note. — For other eases, see Waters and Water Courses, Dee. Dig. § 288.]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by the Co-operative Vineyard Company against the Ft. Stockton Irrigated Lands Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    R. D. Wright, of Ft. Stockton, and W. W. Johnson and Geo. M. Shelton, both of Hamlin, for appellant. Howell Johnson, of Ft. Stockton, Harkless & Histed, of Kansas City, Mo., and J. F. Woodson, of El Paso, for ap-pellee.

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

   HARPER, C. J.

This suit was brought by the Co-operative Vineyards Company against the Ft. Stockton Irrigated Lands Company to recover damages for injuries to its 300-acre vineyard occasioned by seepage' and overflow from defendant’s irrigation canal.

Plaintiff alleged: That the defendant is a private corporation, duly incorporated under the laws of Texas, and also an irrigation public service corporation, with powers of eminent domain, engaged in carrying water through its ditches from Comanche creek for distribution upon different lands, including the 300-acre tract described, which plaintiff alleges it owns, together with a perpetual water right privilege as a part of the land. That Pecos county is in the arid portion of the state where rainfall is insufficient for agriculture, necessitating irrigation. That the defendant constructed ditches and laterals upon its (defendant’s) property, and conducted water through same for the purpose of irrigating its lands, as well as the lands of plaintiff, and that the water in said ditches was at all times in the control of the defendants. That in 1910 defendant turned into said ditch such an amount of water that the plaintiff’s premises were flooded by seepage and overflow, and that said premises continued to be flooded, with no means of drainage, until they became wet, marshy, and the alkalies appeared upon the surface, and destroyed and seriously injured plaintiff’s vineyard growing thereon. Defendant answered that plaintiff’s lands were originally owned by defendant, and that upon the sale of said lands the purchaser entered into the following contract: “And said party of the second part (vendee) for himself, his heirs and assigns, also hereby waives any and all claim or claims which might hereafter arise or accrue to him or them for loss or damages by reason of seepage, leakage, breakage or overflow, from said canals, fliimes, or laterals belonging to said party of the first part.” That said agreement was a part of the consideration for the sale of the said land by defendant. That none of the canals or ditches touched any of the lands of the public, but all were upon the lands of defendant company. That it had never appropriated any of the lands of the public, but gets its water from its own lands from springs thereon. Further denied that it is an irrigation public service corporation, but alleges it is a private corporation, not authorized to exercise the power of eminent domain, not using any public waters and irrigating no lands except its own, or that sold under the contract plead.

The trial court found the facts to be:

“(1) That on May 6, 1910, defendant sold to W. S. Whaley the land in controversy and evidenced said sale by deed which contained the following covenants, viz.: ‘(1) The party of the first part, its successors and assigns, is to furnish and deliver water through its canals. * * * (2) The water to be used for irrigation and domestic purposes only. * * * ’ (3) Relates to delivery, withdraw-mg and regulating supply. ‘(4) The party of the second part agrees to take and use * * * and pay for * * '* water and maintain its ditches. * * * (5) It is stipulated that » * * if for any cause beyond the control of the party of first part, the full amount of water cannot be furnished, * * * party of first part shall not be liable therefor. * * * (6) The said party of the second part for * * * self * * * heirs or assigns, in consideration of the agreements herein entered into on the part of the said party of the first part, hereby grants a right of way free of charge across the land herein described, for the necessary canals and laterals and waste water ditches of the party of the first part, said first party, its successors or assigns, to at all times have entire charge and control of such canals and laterals and all water carried through them, and said party of the second part, for himself, his heirs and assigns, also hereby waives any and all claim or claims, which might hereafter arise or accrue to him, or them for loss or damage by reason of seepage, leakage, breakage, or overflow from said canals, 'flumes or laterals belonging to said party of the first part, either upon the lands hereinbefore described, or any other tract or tracts of land, owned by said party of the second part, anything in state statutes, law, or custom to- the contrary notwithstanding.’.
“(2) June 7; 1910, Whaley 'executed' written assignment of said'' contract to the Et. Stockton Irrigation Vineyards Company, and said company, in turn, assigned to the plaintiff herein.
“(3) December 21, 1912, said Irrigated Vineyards Company and stockholders assigned all causes of action to the plaintiff.”
(4) (Relates to improvements of premises.)
■ "(6) The High Line ditch extends from Comanche creek some five or six miles to plaintiff’s premises, and is one of the main ditches used by defendant in distributing water to the different lands under its irrigation system, and was constructed prior to. the making of the original contract with Whaley, and along where the ditch parallels plaintiff’s premises for a distance of about 400- yards, by reason of the condition of this ditch, a large quantity of water has continually escaped (by seepage and overflow) from the ditch, a great portion of which has kept portions of plaintiff’s land saturated with water, and has caused the water plane to rise and alkali to appear; that this condition of the ditch was local to the place near plaintiff’s premises.
“(7) The court finds that the defendant was guilty of' negligence in the maintenance of its said ditches from the summer of 1910 to the time of the filing of this suit.
‘‘(8) The court finds that the negligence of the defendant was the proximate cause of the plaintiff’s injuries, and that the injuries first manifested'themselves in the spring of 1911, and since that time have increased until the time of the filing of this suit.
“(9) The court finds that the plaintiff was not guilty of. contributory negligence.
“(10) The name of this corporation is ‘Ft. Stockton Irrigated Lands Company.’
“ ‘(2) The purpose for which this corporation is formed is as follows: The construction, maintenance and operation of dams, reservoirs, lakes, wells, canals, flumes, laterals and other necessary appurtenances for the purpose of irrigation, navigation, milling, mining, stock raising and city waterworks, and to hold, purchase, sell, mortgage or otherwise convey such real and personal estate as the purposes of the corporation shall require.’
“(11) The defendant, in 1909, purchased a tract of land comprising about 52,000 acres-located in Pecos county, Texas. There is located on this land a large spring producing-a stream called Comanche creek, which originates within the tract. The water furnished by these springs is sufficient to irrigate about 10,000 acres of land. Comanche-creek rises wholly within the tract of 52,000-acres, and the water never leaves the same. Shortly after the purchase of this land, the-defendant, at an enormous expense, dug its. main canals about seven miles in length, and also incidental canals, laterals, etc., through a portion of this tract of land; laid out roads, rights of way for canals and ditches, and platted and laid out about 7,000 acres of the land into blocks of denominations of 10 acres each, furnished a suite of offices, in Ft. Stockton, Tex., provided two automobiles kept in constant use in showing its. land to home-seekers, published literature advertising the advantages and productiveness, of the soil on their said tract of land, with, the water covenant thereto for irrigation, and advertised for sale a large portion of said tract as subdivided into such tracts as purchasers would choose to buy. These-lands were advertised extensively throughout the country, both in Texas and in other-states.
“Defendants sold to about 75 purchasers-traets of said land under said irrigation system; said sales all being made under contracts, copies of which were introduced in. evidence in this cause by the. plaintiff, and said contract, both for the purchase of the-land and perpetual water right, are alike in form, and contain the same provisions as-the ones under which plaintiff holds title to the land and water covenant. These contracts were made at different times since-about the first of the year, 1910, until this-time, and a great number of the purchasers, erected homes and improved their land and have been cultivating same, raising different, crops; planting fruit trees and practically all the purchasers have improved their tracts- and have been using the water under this irrigation system, paying the maintenance-, fee for keeping up their ditches, and defendant has been delivering the water which the purchasers acquired under their deeds, through its canals, as provided in the deed to the perpetual water right. Ever since the construction of the ditch defendant has been engaged in an effort to sell more of the unsold portions of the land under their irrigation system.
“Defendant hás never appropriated any public water, and has never exercised the right of eminent domain, unless it should be held that the purchasing of the 52,000 acres of land with the water thereon would Be held to be an appropriation when applied.to irrigation by defendant, as shown by the facts in this ease.
“Before the irrigation system was put in about the year 1909, this land was not worth more than about $10 per acre, but after having been put under the system of irrigation was worth, with the perpetual water right under said contract, about $100 per acre. In other words, the land is worth only about 10 per cent, without the perpetual water right referred to of what it is worth with the perpetual water right. The court furthef finds that the defendant never sells any of its water, except to parties who buy its lands, and then only as a part of the land sale contract. The contract in question for the sale of the lands and perpetual water right was voluntarily and for a valuable consideration entered into. None of the defendant’s ditches or canals cross any public lands or property nor lands of any other party, but pass over and along lands exclusively owned by this defendant. That it gets its water from no public waters or sources; that there are no riparian owners, other than the defendant itself who' have any right, natural or artificial. Pecos county is in the arid portion of the state where rainfall is only about 12 inches per year and insufficient; and irrigation is necessary and beneficial for agriculture.
“(12) The court finds that the said premises of the plaintiff are seriously and permanently injured from negligence in permitting seepage and overflow during the. past two years, by reason of which the plaintiff has suffered substantial damages, and the court expressly finds that the evidence furnishes a sufficient basis for estimating the extent and amount of the said damages; but the court refuses to find the extent and amount thereof, and the only reason why the court so refuses to find on the amount of the damages suffered during the past two years is for the reason that the court has concluded as a matter of law, which appears in its conclusions of law, that the injuries and damages are expressly provided against in the contract of purchase, and cannot be recovered by reason of that provision in the contract. .
“(13) The court finds that the plaintiff is not delinquent in the payment of any of the purchase money installments, or the maintenance fee, provided in the contract, and that there has never been any default.”

There is no statement of facts in the record, so the findings of fact of the trial court must be adopted by this court.

The appellant in its five assignments of error suggest only one question for the consideration of this court, viz.: Is the waiver contained in the deed and contract above quoted, “ * * * party of second part * * ⅜ waives any and all claims which might accrue to him * * ⅜ by reason of seepage, ⅜ * ⅜ overflow, from said canals, * * * ” a valid and binding covenant to the extent that it bars a recovery by plaintiff, as a matter of law?

The defendant has the power of eminent domain, and is authorized to exercise the privileges of public service corporations in the matter of irrigation projects, whether incorporated under subdivision 6, art. 704, Revised Civil Statutes of 1895, or under subdivision 23, art. 642, Revised Civil Statutes (Cotulla v. La. Salle Water Storage Co., 153 S. W. 711), but under the findings of fact it has not undertaken to do so, nor is it in a position to do so since it does not take any water from streams in which the public has any interest, but, on the other hand, only distributes water which rises on lands owned exclusively by it and in flowing do not touch the lands of any person except those holding under defendant.

However, we fail to see how the fact that a corporation may be exercising the powers of a public service irrigation corporation has any bearing on the question of injuries to lands or crops occasioned by negligent seepage or flooding thereof. If the defendant was exercising the powers and privileges of a public service irrigation corporation, and this action was for damages for failure to furnish water to lands entitled to it, we would have a different question to deal with.

The right of an owner of land upon sale thereof to put such restrictions in his deed as shall not be against public policy is unquestioned in this state. Jeffery v. Graham, 61 Tex. 481; Granger v. Kishi, 139 S. W. 1002; Moore-Cortes Canal Co. v. Gyle, 36 Tex. Civ. App. 442, 82 S. W. 350.

The deed under which plaintiff de-raigns title is the charter of his rights, and defendant’s liability to it must be measured by its terms. Appellee could sell its land or not, as it pleased, and upon such conditions as it saw fit, and appellant in accepting the title with the covenant in the deed from ap-pellee “that the vendee waives any and all claims which might hereafter accrue for loss or damage by reason of seepage, leakage or breakage, or overflow from said canals, flumes or laterals of the vendor,” could not acquire a possessory right in the land inconsistent therewith; and, there being no claim that appellee was guilty of any gross or willful negligence, there could be no liability for damages occasioned in the manner alleged by appellant.

The judgment of the trial court is therefore affirmed.


author: RASBURY, J.

text:
    R. G. ANDREWS LUMBER CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Dallas.
    March 22, 1913.
    Rehearing Denied June 28, 1913.)
    1. New Trial (§ 44) — Misconduct of Jurors — Ground.
    A new trial will be granted where a juror receives testimony from a secret and unlawful source because every litigant is entitled to a fair and impartial trial.'
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dec. Dig. § 44.]
    2. New Trial (§ 44) — Grounds — Misconduct of Juror — What Constitutes.
    In an action against a railway company for the negligent firing of plaintiff’s sawmill, a new trial should be granted where one subpoenaed by defendant, but used as a witness by plaintiff on an immaterial matter, privately told a juror that some of plaintiff’s witnesses were not telling the truth, that plaintiff’s watchman did not ordinarily stay at the sawmill as he testified, and that the swab he claimed he was using in the boiler flues -was wooden and not iron, the watchman having testified that the fires were out, and he was swabbing the boiler, when he discovered that the mill was ignited, and that he found his swab after the fire; such evidence being upon material facts, and being concealed by the juror might well have influenced him.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dee. Dig. § 44.]
    3. Appeal and Error (§ 978) — Review —New Trial — Discretion of Trial Judge.
    Under Rev. Civ. St. 1911, art. 2021, providing that, where there is a motion for new trial on account of the misconduct of the jury and the misconduct be proven, a new trial may, in the discretion of the court, be granted, the determination of the trial court as to the allowance of the new trial is not conclusive, so that the matter cannot be reviewed on appeal in the absence of an abuse of discretion, the effect of the statute merely being to allow the trial court discretion in refusing a new trial where the misconduct was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3866-3870; Dec. Dig. § 978.]
    Error to District Court, Wood County: R. W. Simpson, Judge.
    Action by the R. G. Andrews Lumber; Company against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for defendant, and, plaintiff’s motion being overruled, it brings error.
    Reversed and remanded.
    J. H. Beavers, of Winnsboro, Jones & Jones, of Mineóla, and Harris, Suiter & Britton, of Quitman, for plaintiff in error. Alex. S. Coke, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for defendant in error.

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

   RASBURY, J.

Plaintiff in error sued defendant in error for damages resulting from the destruction by fire of the sawmill of the plaintiff in error, consisting of machinery and buildings, together with certain lumber then on hand and belonging to defendant in error. It was alleged that the tracks of defendant in error are in proximity to the sawmill of plaintiff in error, and that in operating its engines over its tracks defendant in error by permitting the escape of sparks therefrom set fire to the sawmill and lumber and damaged same as alleged in the petition. Trial before jury resulted in verdict followed by judgment for defendant in error. No appeal was taken from the judgment so entered, but within the time and manner provided by law plaintiff in error removed the ease here by writ of error. After verdict in the court below motion for a new trial was presented; one of the grounds urged being the misconduct of the jurors who decided the case. The misconduct of this juror and the criticism of the court’s charge are the only errors assigned, and for that reason we have not stated the pleading.

The first assignment in our oviin language and in substance, so far as sustained by any evidence, is that the court erred in refusing to set aside its judgment and the verdict of the jury for the reason that, after the jury had been sworn and impaneled and heard evidence from both sides, one of the jurors discussed the case with one of the witnesses, and received evidence and statements prejudicial to plaintiff in error.

To clearly understand the point here raised, it is necessary to state that Jerry Lee, night watchman for plaintiff in error, and Claude Dodgen, its superintendent, had testified to a state of facts which would have sustained a finding in favor of plaintiff in error. Stirrell Bates had been subpoenaed and was present at the trial as a witness for defendant in error. At an adjournment of court, while the trial was in progress, from a Saturday until Monday, counsel for defendant in error advised Bates that they did not intend to use him as a witness and excused him, but directed him to first call upon counsel for plaintiff in error, and ascertain if they desired him as a witness. He remained during trial, and was placed upon the stand by the plaintiff in error. Judgment was entered November 28, 1911. On December 7, 1911, a hearing upon the facts was had upon that part of the motion for new trial alleging misconduct by the juror and argument on the motion as a whole, and whereupon the court refused a new trial and overruled the motion.

The facts adduced upon trial of the motion in relation to the misconduct of the juror was in substance as follows: Stirrell Bates testified that he lived in East Winns-boro and was present on trial of the case at Quitman, 'the county seat; that he became acquainted with J. D. Fox, one of the Jurors, for the first time during the trial of the case; that during an adjournment of court from Saturday to Monday he and Fox procured a conveyance and driver from Crof-ford’s livery stable in Quitman and journeyed together to Winnsboro; that on the following Sunday night Fox called for him in his buggy, and they returned together to Quitman; that nothing was said relative to the ease on Saturday, except that when going from Winnsboro to East Winnsboro and while passing the sawmill, which had been destroyed by the fire, he casually pointed out to Fox where several of the witnesses in the ease lived; that when in proximity to one of the sawmill sheds he pointed to a car on the railway track, saying that was the place “they say” the fire was set, but that Fox replied that he knew all about it, had heard enough about it to know every foot of the ground; that nothing more was said on that occasion; that he next saw Fox on the following Sunday night when they together returned to Quitman, where they arrived Monday morning at 7:30 o’clock, having lost their way twice in returning to Quitman; that he again, on the journey back to Quitman, referred to the case and mentioned the negroes who were witnesses in the case, and inquired of the juror if Jerry Lee got “tangled up” or “scared” while on the stand, to which the juror replied that Jerry “made it through all right,” but that “that negro preacher, John Harris, got ‘tangled up,’ so that he could not tell which way he lived from Garman’s gin;” that he may be mistaken, but it “seems” that Fox asked him what he thought about the case, and he “believes” he told him he did not know because he had not heard the evidence, but that, if “they” all swore like Claude Dodgen, “they” would beat the “railroad” ; that Claude Dod-gen “told a lie” about the flue swab; that he told the juror that he knew what the boiler flue swab was made of (Dodgen having sworn it was made of iron) because he had been fireman at the sawmill, and that it was made of wood; that he also told the juror of going to the sawmill on an occasion prior to the date of the fire and finding Jerry ’Lee, the night watchman of plaintiff in error, absent (Jerry Lee had testified, among other things, that he left his flue swab which was of iron in the flue when he discovered the fire, and found it there after the fire, and that he inspected the sawmill at stated periods during the night of the fire, and was in both respects corroborated by Claude Dodgen); that after their conversation witness and the juror agreed not to say anything about what took place, to just consider it talk; that the defendant in error paid him for the time he lost at $2 per day and allowed $1.50 per day for board and $6 for conveyance from Quitman to his home, etc.

J. D. Fox, the juror, testified that he met Bates while the case was being tried, and went from Quitman to Winnsboro and back with him as detailed by Bates; that he can recall nothing being said about the case while going; that after they got to Winns-boro he and Bates went down the railroad track on their way to East Winnsboro, but he does not remember Bates pointing out where certain negroes lived who were witnesses in the case; that he does not think he and Bates said much about the case coming back; that he saw George Green in Quitman the second day after the verdict was rendered, but does not remember telling Green that Bates talked “a right smart” about the case, but does remember telling Green that Bates was a “right” talkative little fellow, but that, if he talked about the case, he did not remember it; that he did not remember Bates telling him of going on a former occasion to the sawmill and finding Jerry Lee away; that, if Bates did make • uch statement, he cannot now recall it; that, if he told Green such things when Green talked with him, his memory was fresher then than now; that he does not know that the “sorter sulled” on Green after talking with him a while, and refused to tell what took place between witness and Bates, that he, Bates, told him about “that flue-business”; that he told Bates what he heard on the outside would not affect him; that he asked Bates what he thought about the case; that he would not say Bates said Dodgen swore a lie, but he did say it was not as Dodgen told it; that when he asked Bates what he thought about the case he said, “I don’t know, (but) if they all swear like Claude Dodgen they will beat it, or we will beat it,” and that Claude had sworn a lie about the flue cleaner; that he did as little talking as he could do, that Bates volunteered the information, and that witness asked for and wanted no particulars about it, and that it had no weight with him; that he and Bates had breakfast together on their arrival in Quit-man, and divided the expense of the team to Winnsboro; that he is not sure, but it “seems that Bates did ask him if Jerry Lee ‘got tangled up’ in testifying,” but does not remember whether he replied to the question or not; that he believes he did ask Bates what he thought about the case; and that that was the only question he asked Bates.

George Green testified that he went to see Fox, the juror, at his home, and that before doing so he had seen Bates and received some information from him; that he told Fox that plaintiff in error was going to make application for a new trial; that he, Fox, was a juror in the case, and had driven to Winnsboro and hack with Bates, a witness in the case, and that he had a statement from Bates that Fox and Bates had talked about the case, and that he could save Fox a trip to Quitman if he would just “open up” and tell all that was said; that Pox started out by saying he could not remember just what was said, but that there was a “good deal” said; that he then said, “ ‘Mr. Pox, did Bates tell you that Claude Dodgen swore a lie about that flue swab?’ and he said, ‘Yes, I think he did;’ and I said, ‘Well, don’t you know he did?’ and he said, ‘Yes, he told me that he told a lie about the flue swab;’ ” that he asked Pox if Bates did not tell him about going to the sawmill and finding Jerry Lee absent, and he admitted that he did; that he then asked Pox if he did not ask Bates what he thought about the case, whereupon Pox hesitated, and said his recollection was bad and that he was sleeping, and that the court had charged the jurors not to talk about the case, and that he did not want to get mixed up with the court, and refused to answer further questions. Clarence Browning testified that he heard the conversation between Green and Pox, and heard Pox admit that Bates told him that Dodgen swore a lie, and heard him also admit that Bates told him of finding Jerry Lee absent from the sawmill.

Prom the foregoing testimony it is clear that the juror Pox did discuss the merits of the case with the witness Bates, and did receive information from Bates concerning the credibility of two of the witnesses who had testified in the case to facts material to plaintiff in error’s right to recover. The juror was told that on a previous occasion Jerry Lee was absent from his duties as night watchman. This was a material matter, since Lee had testified that he was present in and about the sawmill and made regular visits of inspection over the plant the night the -fire was set, and that he would have discovered the fire if occasioned from any source other than by sparks. To prove that he was in the habit of remaining away "from the mill when he should have been there attending to his duty as night watchman would tend, of course, to weaken the force of what he says he did on the night of the fire. Claude Dodgen corroborated Lee both as to his attending to his duties and the circumstance of leaving the swab in the boiler flue. This latter statement by Dodgen was said by Bates in his conversation with Pox to be a lie, for the reason that the swab was made of wood, and could not have withstood the fire. This was alike a contradiction of a material circumstance in the case, since Jerry Lee had testified, in effect, that the fire could have ■ been set only by sparks, since the fire in the engine was out and had been out long enough for the boilers to cool sufficiently for him to “swab” them out, and that he was engaged in that duty when he discovered the fire and corroborated such statement by testifying that he found his “swab” in the boiler flue after the fire.

The decisions, however, do not place the interference by the courts with jury verdicts upon the ground that the juror has received testimony from a secret and unlawful source which tends to dispute and contradict the facts introduced by either litigant in a lawful manner upon trial, but, on the contrary, place it upon the high ground that, all litigants are entitled to a fair and impartial trial by jury and that essentially and in the very nature of things a juror who does not recognize the impropriety of discussing the merits or demerits of a casein which he has been sworn as a juror with witness or litigant is in no sense a fair and' impartial juror. An inspection of the testimony in the instant- case affords no explanation of Bates’ purpose in persisting in-discussing the case, nor who, if any one, he was seeking to serve or injure. He was in the employ of the plaintiff in error after the fire and was used by plaintiff in error as a witness on an immaterial matter. He was also subpoenaed on trial by defendant in error as its witness, but was discharged by defendant in error without being placed on, the stand after being paid his legitimate expenses. He also in the conversation with the juror Pox denounced the witnesses of plaintiff in error. It is enough to say of him-that he flagrantly and intentionally abused the proprieties, and must have known he was doing so, since he makes no claim of innocence on that- score. This conclusion is further attested by the fact that he must have disclosed what took place between him and Fox, notwithstanding they agreed it should be confidential, since the record fails to show that Pox did so and none other knew the truth about it. It is not, however, so much the offending person who discusses the case with the juror that courts are concerned about as it is the effect and influence that such discussion may consciously or unconsciously exert upon the juror whose sworn duty it is to be fair and impartial. There seems but one course for the juror to-pursue in such cases in order to maintain,, in the light of the decisions, his fairness- and impartiality, and that is to report at. once to the trial judge the attempt of any one to discuss the case with him or that he thoughtlessly and in ignorance of such matters has done so himself. Such a course would mark the fact that the juror still maintained his fairness and impartiality, and. would likely in most cases be an end of the matter. But to maintain silence on such questions, and to only concede the fact when it cannot be concealed, comports poorly with the high standard of conduct demanded by the responsible office -of juror. It is perhaps often true that such discussion has no effect on the juror; in fact, there is in the instant case nothing to show that the juror was affected by what Bates said, or influenced the other jurors. Indeed, the juror has declared the discussions had no influence with him; but such facts and claims are material,. if at all, in rare cases, since, as forcibly said in one of tbe cases cited below, “if a practice of tbis character was permitted to go unchallenged, it would be difficult to draw the line and say when it should cease, and the best policy to pursue is to prevent it altogether. It is impossible in cases where questions of this kind arise to determine whether harm or injury or improper influence resulted and an effort to ascertain the truth in that respect would be altogether speculative.” Marshall v. Watson, 16 Tex. Civ. App. 127, 40 S. W. 352; Railway Co. v. Schroeder, 25 S. W. 306; Railway Co. v. Matthews, 28 Tex. Civ. App. 92, 66 S. W. 588, 67 S. W. 788; Palm v. Chernowsky, 28 Tex. Civ. App. 405, 67 S. W. 165; Goar v. Thompson, 19 Tex. Civ. App. 330, 47 S. W. 65; Lawson v. Levy, 57 S. W. 54; Albers v. Railway Co., 36 Tex. Civ. App. 188, 81 S. W. 829; Railway Co. v. Dickens, 54 Tex. Civ. App. 637, 118 S. W. 612; Palmer v. State, 121 Tenn. 465, 118 S. W. 1022.

It is contended, however, by defendant in error that under the provisions of the Act of the Legislature of 1905, p. 21, art. 2021 (R. S. 1911), when the trial court has heard the testimony upon a demand for a new trial because of misconduct of a juror and has denied same, his act is final, unless an abuse of discretion' is shown. In short, that by said act the granting of a new trial on such grounds is wholly within the discretion of the trial court. ' The construction placed upon this statute by this court in relation to the discretion of the trial judge is that, 'when he has heard' the testimony, he may, though misconduct be shown, either refuse or grant a new trial, rather than that his action may not in any respect be revised. Railway Co. v. Blalack, 128 S. W. 706. It is conceivable that cases of misconduct might arise which resulted in no material harm to the complaining party, but which would at the same time, under the statute, be misconduct, and because of which, in the absence of any discretion vested in the trial court, the verdict would have to be set aside under the naked provisions of the statute. The purpose of the statute in our opinion is to confer upon the trial judge the authority and provide a method of inquiring into any alleged misconduct of jurors; a practice statute, in other words, enabling the trial court to investigate alleged misconduct of the jury, and by such means preserve to litigants the fair and impartial trial guaranteed by law, rather than to confer upon him a hard and fast discretion free from review by appellate courts, and that at all times in determining whether a new trial should be awarded the issues should be adjudged in the light of the welLsettled decisions of this state in such matters.

We conclude that the court below erred in refusing plaintiff in, error a new trial because of misconduct of the juror Eox, and its assignment of error in that behalf should be sustained.

We overrule plaintiff in error’s second assignment of error, assailing the charge of the court, for the reason that an inspection of the court’s charge shows a fair and correct submission of all issues raised by the pleading and evidence of plaintiff in error, and we do not think the criticisms of same require a discussion of the charge.

The judgment of the trial court is reversed, and the cause remanded for another trial.


author: SPEER, J.

text:
    RENSHAW v. ARNETT.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 21, 1913.)
    1. Appeal and Error (§ 1043) — Harmless Error — Party Not Entitled to Relief.
    Under Court of Civil Appeals Rule 62a (149 S. W. x), providing that no judgment shall be reversed unless it. is calculated to produce, .and probably did produce, an erroneous judgment, a refusal to restrain the collection of a special tax for a school district alleged to-be illegal will not be reversed, where the statement of facts does not show that plaintiff was a resident of, or property owner in, the district.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. § 1043.]
    2. Schools and School Districts (§ 107)— Taxation — Injunction—Parties.
    Under Rev. Civ. St. 1911, art. 2822, making school districts bodies politic and corporate with power to sue and be sued, it was necessary to join the district as a party to a suit to restrain the collection of a special tax levied for a school district.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.]
    Appeal from District Court, Wise County; J. W. Patterson, Judge.
    Suit by ¾. A. Renshaw against M. A. Ar-nett. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, for appellee.

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

   SPEER, J.

This is an injunction suit brought by appellant to restrain appellee, as tax collector of Wise county, in the collection of a special school tax in common school district No. 80 in said county. As a ground for relief the complainant alleged certain irregularities in the manner of making the levy. The' case was tried without a jury resulting in a judgment denying the relief sought.

The assignments presented complain of the trial court’s findings of fact and of his conclusions of law, even if those findings be permitted to stand. We shall not pause to consider the merits of these assignments, however, since in no event would we reverse the judgment of the district court for an error unless .from the record it appears that such error was calculated to produce, and probably did produce, an erroneous judgment. Rule 62a (149 S. W. x). There is a statement of facts in the record, but an examination of it fails to disclose that appellant was a resident of, or property owner in, the district affected by the levy complained of. It is not shown, in short, that his rights in any manner whatever would be interfered with by the collection of the taxes sought to be enjoined, or in fact that he had any interest whatever in the subject-matter of the suit.

Besides, it appears that common school district No. 80, which by statute (Revised Statutes 1911, art. 2822) is made a body politic and corporate with power to sue and be sued, was not a party to the proceedings. Such district, affected materially as it necessarily would be by enjoining the collection of the taxes belonging to it, was a necessary party to any judgment that might be rendered. Bradford v. Westbrook, 39 Tex. Civ. App. 638, 88 S. W. 382; Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Biggs v. Lee, 137 S. W. 138.

The judgment of the district court is affirmed.


author: PRENDERGAST, J.

text:
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge. Jack Anderson was convicted of unlawfully selling intoxicating liquors, and he appeals.
    Reversed, and cause ordered dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for unlawfully selling intoxicating liquor, a felony. The indictment in this case was found by the same grand jury and under precisely the same state of facts as in the cases of Woolen v. State, 150 S. W. 1165, and Mayfield v. State, 151 S. W. 303. The question was properly raised and saved in the lower court and presented in this. The question was so fully stated and discussed in said cases, it is unnecessary to further state or discuss this case. The indictment being void, the judgment is reversed, and the cause ordered dismissed.


text:
    DAWSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Appeal from Gonzales County Court; J. W. Holmes, Judge. Perry Dawson was convicted of an aggravated assault and battery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault and battery. There is no statement of facts in the case. In the absence of a statement of facts, appellant raises no question which we can consider. The judgment will be affirmed.


author: DAVIDSON, P. J.

text:
    JOYCE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge. W. T. Joyce, alias Hottie Joyce, was convicted of theft, and appeals.
    Affirmed.
    C. E: Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for the theft of divers and sundry pistols, amounting in value to $190 as charged. Three grounds of the motion for new trial complain that West-moreland was not corroborated by legal and competent evidence tending to connect defendant with the commission of the offense, was not sufficiently corroborated as required by law, and because the court erred in defining the law of accomplices. The evidence is not before us, and there are no bills of exception in the record. The charge on accomplice testimony seems to be sufficient. The allegations criticis-ing the charge are of the most general nature and point out no defect. However, the charge seems to be in conformity with the decisions.' The judgment is affirmed.


text:
    MANGUM v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Appeal from District Court, Angelina County; L. D. Guinn, Judge. Howard Mangum was convicted of assault with intent to commit rape, and appeals.
    Affirmed.
    Wright, Jordan & For-tenberry of Lufkin, and A. M. Campbell, of Groveton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an assault with intent to rape a little girl between seven and eight years of age. His penalty is fixed at two years in the penitentiary. The sole question is raised only by the motion for new trial, which complains that the evidence is insufficient to sustain the verdict. It would serve no useful purpose in this or any other case to recite the evidence. We have carefully read and considered it, and have reached the conclusion that, the evidence is sufficient to sustain the conviction. In addition to-our careful study and consideration of this evidence, a jury of fair and impartial men, before a fair and impartial trial judge, heard all this evidence, and saw the witnesses, their manner of testifying, and their manner of examination. The jury found him guilty, and the judge sanctioned the verdict. Under the circumstances, we do not feel authorized to disturb the verdict. The judgment is therefore affirmed.


text:
    Ex parte MENDLOVITZ.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge. Philip Mendlovitz was arrested on a charge of rape. From an order refusing bail, he appeals.
    Reversed, and bail granted.
    Jno. T. Duncan and L. D. Brown, both of La Grange, and Lane, Wolters & Stor-ey, of Houston, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Relator was arrested on a charge of rape, and tried in the district court before the district judge on a writ of habeas corpus. He was refused bail by the district judge. A review of the testimony leaves us under the impression and with the conviction that this is a bailable case, and that the court erred in remanding relator to custody. Therefore the judgment is reversed, and bail is granted in the sum of $3,000. Upon giving bond in the above sum in the terms of the law, the officer having relator in custody will release him. Reversed, and bail granted.


text:
    NEWBERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied June 27, 1913.)
    Appeal from Johnson. County Court; J. B. Haynes, Judge. Albert Newberry was convicted of violating'the local option law, and be appeals.
    Affirmed.
    W. B. Peatherstone, of Cleburne, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of violating tbe prohibition law in Johnson county, and his punishment assessed at a fine 9Í $25 and 20 days’ imprisonment in the county jail. There is no statement of facts in the case. No question is raised which we can review and decide without a statement of facts. The judgment is therefore affirmed.


author: RICE, J. _

text:
    GULP, C. & S. F. RY. CO. v. McGINNIS et al.
    (Court of Civil Appeals of Texas. Austin.
    June 4, 1913.)
    Appeal from District Court, Bell County; John D. Robinson, Judge. Action by Mary J. McGinnis, administratrix, for the benefit of herself and others, against the Gulf, Colorado & Santa Pé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Ca-vin & Mills and A. H. Culwell, all of Galveston, for appellant. Winbourn Pearce, of Temple, and A. L. Curtis, of Belton, for appellee.
   RICE, J. _

This case was affirmed at the last _ term of this court, and motion for rehearing overruled (see 147 S. W. 1188), and writ of error refused by the Supreme Court. Thereafter a writ of error was granted by the Supreme Court of the United States, since which time said court, by an opinion delivered April 7. 1913 (228 U. S. 173, 33 Sup. Ct. 426, 57 D. Ed. —), has reversed and remanded the case to this court for further proceedings consistent with its opinion therein. While said opinion only held that there was error in our holding in one particular, still it is clearly inferable therefrom that it was the intention of that court to reverse the entire case, suggesting that the evidence might be different on the issues at the next trial, for which reason we conceive it to be our duty to conform to such ruling, and to direct that the whole case be reversed for another trial de novo; and it is so ordered. Reversed and remanded.


author: KEY, C. J.

text:
    GULP, C. & S. F. RY. CO. v. STRIBLING.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.
    Rehearing Denied June 25, 1913.)
    Ap-Appeal'from Llano County Court; A. H. Willber, Judge. Action by W. P. Stribling against the Gulf, Colorado & Santa Pé Railway Company. Judgment for plaintiff, and defendant appeals..
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and W. B. Garrett, of Austin, for appellant. J. H. McLean", of Llano, for appellee.
   KEY, C. J.

Prom a judgment rendered by the county court in favor of appellee and against appellant for $377.76, for damages to two shipments of cattle, this appeal is prosecuted. The main contention urged in this court is that the evidence fails to show unreasonable or unnecessai'y delay and rough handling of the cattle, as alleged by the plaintiff. We cannot assent to that contention, and hold that the verdict is supported by testimony. We also hold that the assignments complaining of the action of the trial court in giving an instruction requested by appellee and refusing one requested by appellant are without merit. This disposes of all the questions presented in appellant’s brief, and leads to an affirmance of the judgment. Affirmed.