author: RICE, J.

text:
    HOUSTON & T. C. R. CO. v. WALSH.
    (No. 5543.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1915.
    Rehearing Denied Feb. 2, 1916.)
    1. Judgment &wkey;>256 — Special Findings — Inconsistency.
    In an action for destruction of a growing crop, which plaintiff claimed resulted from defendant’s failure to properly safeguard its oil tanks, so that during a rainstorm the oil escaped destroying his crop, the jury found in answer to special questions that the rainstorm was extraordinary and unprecedented and could not have been anticipated, and that the rainfall and high water was not an act of God. Held that, as the first finding showed that the rainstorm was an act of God and was inconsistent with the others, a judgment for plaintiff could not stand, and a mistrial should have been entered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446 — 454; Dec. Dig. <&wkey;>256.]
    2. Damages <&wkey;221 — Measure — Geowing Ceops.
    In an action for destruction of 10⅜ acres of growing spinach, where the jury specially found that only 5 and a fraction acres had been destroyed, it is improper for the court to assess damages on the basis of the destruction of the entire crop.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. &wkey;221.)
    3. Negligence <&wkey;63 — What Constitutes— “Act of God.”
    In an action for damages for allowing oil to escape from a tank during a rainstorm and sweep over plaintiffs land, the rainstorm, if it was unprecedented and could not have been foreseen, must be deemed an act of God within the rule excusing one for damages resulting from the act of God.
    [Ed. Note. — For other cases, see Negligenc'e, Cent. Dig. §§ 80, 81; Dec. Dig. &wkey;o63.
    For other definitions, see Words and Phrases, First and Second Series, Act of God.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by C. W. Walsh against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and G'arrett & Garrett, of Austin, for appellant. Hart & Woodward, of Austin, for appellee.
   RICE, J.

In the fall of 1913 appellee was engaged in growing spinach for the Northern and Eastern markets, and had planted a patch of 10⅛ acres of spinach in the vicinity of appellant’s track, and within a short distance of where the same crossed the public road leading from the city of Austin to Del Valle. At this point appellant maintained three oil tanks for the storage of oil, two above and one underground, the first two just a short distance from the track, and the latter underneath it. On the 3d of December of said year, while this crop of spinach was in a flourishing condition, and gave promise of producing a large yield without additional labor, the city of Austin and vicinity was visited by a heavy rainstorm, which, it is alleged, destroyed said crop by washing the waste oil which had collected on the ground about the first two tanks, as well as that in the underground tank, over and across the land upon which the same was growing. This would not have happened, ap-pellee claims, but for the negligence of the appellant in failing to so safeguard said tanks as to prevent the escape of oil therefrom or water from flowing therein.

Appellant specifically denied each act of negligence charged against it, and further set up that the loss of the crop was not due to any act of negligence on its part, but was brought about "by an act of God, in this: That the storm was unprecedented, and it had no reason to expect or anticipate such a tremendous cloud-burst or downpour of rain, which completely deluged and overflowed defendant’s track at said place, and therefore no human intelligence could have foreseen and provided against it by reasonable diligence and foresight.

The case was submitted to the jury on special issues, and in response thereto the court rendered judgment in favor of appel-lee for the sum of $1,560, with 6 per cent, interest from date, from which judgment this appeal is prosecuted. After the jury had returned their answers to the questions submitted to them by the court, appellant presented its motion requesting that the verdict be set aside and a mistrial entered on the ground that the findings of the jury in answer to the issues submitted to them were so indefinite, confusing, conflicting, and uncertain that the court could not intelligently render a judgment thereon. This motion was overruled by the court and is the basis for the second assignment of error.

It is contended on the part of the appellant that, when a case is submitted to the jury on special issues, and their findings thereon are not only inconsistent, but contradictory and in direct conflict with the judgment rendered thereon, it cannot be sustained. We agree with appellant in this contention. The findings of the jury in answer to questions 19, 20, 31, 32, 35, 36, 44, and 45 specifically found from the evidence that the rainfall in question both at defendant’s oil tanks and track and at appellee’s spinach field was extraordinary and unprecedented, such as had never before been known within the memory of living witnesses, and could not have been foreseen or anticipated, thereby establishing that said rainfall was an act of God under the law, and the jury found in answer to questions 22 and 63 submitted by the court, that said rainfall and high water was not an act of God, thus making the latter findings in direct conflict with and contradictory of the findings first set out. This being true, the court could not render judgment for either party upon the verdict, and was in error in refusing to grant appellant’s motion for a new trial. See Railway v. Jenkins, 172 S. W. 984; Brown v. Catrett, 45 Tex. Civ. App. 649, 101 S. W. 559.

In Railway v. Jenkins, the court holds that, where the findings of a jury are in conflict on a material issue, a judgment rendered thereon cannot be sustained.

In the case of Railway v. Smallwood, 171 S. W. 292, it is held that:

“When a special verdict has been returned, the trial court, in rendering judgment, cannot disregard a finding of the jury on a material issue, even though such finding has no support whatever in the testimony.”

In Scott v. Bank, 66 S. W. 485, Mr. Chief Justice Key, of this court, announces the same principle. See, also, Fant v. Sullivan, 152 S. W. 515.

If the rainfall which destroyed the crop by washing oil thereon was an act of God, and could not have been foreseen, and but for which such oil would not have reached appellee’s crop, appellant was entitled to judgment. This was a material issue upon which the jury found in appellant’s favor. The appellant had asked for judgment, based on said findings, which was refused. It then requested that the verdict be set aside and a mistrial entered on account of such inconsistent and conflicting findings, which was also refused. We think the court erred in failing to set aside the verdict for the reasons stated.

By its third assignment appellant insists that the court erred in rendering judgment for $1,560 on the ground that the same is not supported by, but is in conflict with, the evidence. The jury answered that only 5.23 acres of spinach was destroyed, whereas the judgment of the court is for 40 barrels per acre for the entire 10 acres at a price of $3.90 per barrel. We sustain this contention.

Appellant assigns as error the refusal of the court to instruct the jury as follows:

“The jury are instructed that, as applied to the facts in this case, an act of God, as that term is used in the court’s charge and issues submitted, means such a rainfall and high waters as was extraordinary and unprecedented, and such as had not been known or heard of before, and which a person of ordinary care and prudence, under the circumstances, could not have foreseen or anticipated.”

This charge should have been given, as it is in substantial accord with the authorities on this subject. See Railway v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Railway v. Fowler, 56 Tex. 452; Railway v. Parker, 50 Tex. 344; Railway v. Williams, 3 Ind. Ter. 352, 58 S. W. 571. See, also, Baltimore & Ohio Ry. Co. v. Sulphur Spring School District, 96 Pa. 65, 42 Am. Rep. 529; Coleman v. Railway Co., 36 Mo. App. 476; Railway Co. v. Pomeroy, 67 Tex. 502, 3 S. W. 722; Railway v. Holliday, 65 Tex. 512.

Tlie jury probably were, as claimed by appellant, confused and rendered inconsistent answers on account of the numerous special issues submitted; there being 63 in number. We suggest, in view of another trial, that, if the case is again submitted upon special issues, same be so condensed and reduced in number as to avoid this complaint.

For the reasons indicated, the judgment is reversed, and the cause remanded for another trial.
      c&^jFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    DAGGETT v. AVIS HARDWARE CO.
    (No. 8298.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 8, 1916.
    Rehearing Denied Feb. 5, 1916.)
    1. Appeal and Error <&wkey;843 — Review — Harmless Ebeoe — Sueitciency op Evidence.
    Where judgment was rendered against one defendant on the two theories of liability of agency and of partnership, the question on appeal, whether the evidence sustained the finding as to partnership, was immaterial where it did sustain the finding as to agency.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3331-334:1; Dec. Dig. <&wkey;> 843.]
    2. Principal and Agent <&wkey;123 — Liability op Principal — Scope op Authority..
    Evidence, in an action for supplies furnished, held to show that they were furnished on the defendant’s credit at the instance of his agent who acted within the scope of his authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. &wkey;> 123.]
    3. Evidence <&wkey;265 — Admissions—Entry In Books — Conclusiveness.
    The mere fact that the plaintiff in selling goods entered on the books an account as against a partnership did not change the liability of the defendant to whom in fact credit was alone extended, that being a mere circumstance explainable and not conclusive as against the plaintiff.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. &wkey;265.]
    4.Principal and Agent <&wkey;150 — Liability op Principal — Scope op Authority.
    A principal, whose agent secured credit for him when he was authorized only to draw upon the principal, could not complain or avoid liability for the credit extended, although the agent actually exceeded the authority given in order to further the principal’s business.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 556-563; Dec. Dig. <&wkey;> 150.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by the Avis Hardware Company, a partnership, against J. P. Daggett and another. Judgment for plaintiff on answers of the jury to special interrogatories, and defendant Daggett appeals.
    Affirmed.
    Carrigan, Montgomery & Brittain, of Wichita Falls, for appellant W. F. Weeks and Harry C. Weeks, both of Wichita Falls, for appellee.
   CONNER, C. J.

The Avis Hardware Company, a partnership composed of J. D. Avis and F. P. Avis, instituted this suit against J. P. Daggett and the Wichita River Oil Company, a partnership alleged to be composed of the said Daggett, E. T. Stevens, C. M. Coats, and others. It was alleged that between August and October, 1914, the partnership mentioned, through E. T. Stevens and C. M. Coats, had purchased from the plaintiff certain goods, wares, and merchandise, as shown by an itemized account attached to the petition as an exhibit; that there remained due and unpaid upon said account a balance of $403.86, for which recovery was sought. By a second count the plaintiff alleged that, if they were mistaken as to whether the partnership existed between Daggett and others, as alleged, then on or about April 2,1914, the defendant John P. Daggett appointed E. T. Stevens and C M. Coats his agents to look after, superintend, and to purchase supplies for the drilling of an oil well in Wichita county, Tex., upon lands held under lease by the said Stevens, Coats and others, and that after-wards between the dates before alleged Stevens and Coats, acting by virtue of their said agency and authority from the defendant Daggett, had purchased from the plaintiffs for the use of Daggett the goods, wares, and merchandise described in the exhibit above referred to, promising to pay therefor the prices stated which were usual and customary, and the prayer was for a recovery for the aggregate amount as against the defendant J. P. Daggett. The defendant Dag-gett answered under oath denying both agency and partnership. The case was submitted to a jury on special issues. The issues were thus submitted and answered by the jury in the affirmative, as indicated:

“Gentlemen of the Jury: This case is submitted to you upon special issues, and upon your finding the court will render such verdict as he thinks the law warrants.
“Special Issue No. 1. Find whether the defendant J. P. Daggett authorized E. T. Stevens to purchase materials necessary to the drilling of the second well, and to bind the said J. P. Daggett to pay for them. Answer yes or no. Answer: Yes.
“Special Issue No. 2. If you answer special issue No. 1 in the affirmative, then find whether the said E. T. Stevens, in purchasing the materials herein sued for, acted within the scope of the authority given him by said J. P. Daggett. Answer yes or no. Answer: Yes.
“Special Issue No. 3. Did the said J. P. Dag-gett knowingly permit the said E. T. Stevens to buy materials on the credit of the said J. P. Daggett for use in said well? Answer yes or no. Answer: Yes.
“Special Issue No. 4. If you answer special issue No. 3 in the affirmative, then find whether the said E. T. Stevens acted within the apparent scope of - his authority in purchasing the materials herein sued for. Answer yes or no. Answer : Yes.”

The defendant Daggett asked the submission of the following further issue, which was given and also answered in the affirmative as indicated:

“You will say by your verdict whether or not Daggett was a partner in the Wichita River Oil Company. Answer yes or no. Answer: Yes.
“In connection with the above, you are charged that, before you can find Daggett a partner, yon must believe from the evidence that there was an agreement by which Daggett was to share in the profits and losses which might accrue out of the drilling contract made by the Wichita River Oil Company with Hankins and others.”

Upon the answers of the jury the court rendered judgment in favor of the plaintiffs against E. T. Stevens, J. F. Elliott, C. M. Coats, and J. P. Daggett for the amount sued for, and from this judgment the defendant Daggett alone has appealed.

Appellant by appropriate assignments and propositions attacks the several findings of the jury as above given, but in substance but two questions are presented. They are, whether the evidence supports the jury’s findings to the effect that appellant Daggett was a partner with others doing business under the name of Wichita River Oil Company, as alleged; or, if not, whether the evidence authorizes the findings to the effect that, in the purchase of the goods in controversy, E. T. Stevens was the authorized agent of the defendant Daggett. If the evidence supports either of these theories of the plaintiff’s suit, the other facts without dispute are such as to support the judgment. We think it apparent that, if the jury’s findings to the effect that E. T. Stevens in the purchase of the goods was acting with the actual or apparent authority given by J. P. Daggett has sufficient support in the evidence, then the issue of whether Daggett was a member of the partnership doing business in the name of Wichita River Oil Company is immaterial. At most, Daggett’s liability as a partner, as sought to be established in the first count of the plaintiffs’ petition, was on the theory that thereby he had impliedly authorized the acts of Stevens and other members of the partnership in furthering the partnership enterprise. We need not therefore scrutinize with great care the evidence tending to show that Daggett was a partner, as alleged, in view of the fact that a review of the evidence satisfies us that it is fully sufficient to support the plaintiffs’ recovery on the theory of an express authorization or agency.

In a general way, the evidence shows that the Wichita River Oil Company owned an oil and gas lease on a large body of land near Wichita Falls; that the company had ■sold to one Hankins and associates of Qua-nah, Tex., 100 acres out of said land, and had contracted with them to put down a well 1,000 feet deep on the 100 acres so sold. For this the oil company was to receive $2,-750, of which §2,500 was put up in a hank and trust company of Wichita Falls to be paid to the oil company when the well was •drilled to the specified depth. The oil company, in order to carry out the drilling contract, had ordered drilling machinery which had been shipped to them at Wichita Falls, and for which it was necessary to pay before unloading; that,_ being without the means to do this, the oil company, acting through one or more of its partners, applied to J. P. Daggett for assistance. He finally agreed to, and did, furnish the necessary money by giving, with the oil company, a promissory note for $1,500 to one of the banks, in consideration of which the oil company transferred to Daggett a one-fifth interest in the oil lease remaining after the sale of the 100 acres, and to secure the payment of Daggett’s obligation to the bank pledged the $2,550 which had been deposited as stated. It further appears that the oil company began the drilling of the well on the 100 acres sold to Hankins, and associates, and, after the well had been drilled to a depth of about 800 feet, it became so “jammed” or choked as that it had to be abandoned. Mr. Daggett was notified, and he came to Wichita Falls and contracted with one Copeland to drill another well in order to obtain the $2,500 originally deposited by Hankins and associates.

At this point we will quote some of the testimony. C. M. Coats, who was a member of the partnership composing the Wichita River Oil Company, testified, among other things, as follows:

“The Wichita • River Oil Company did not make a contract with anybody to drill another well after the first well was drilled down to 800 feet and lost. They had nothing to do with the drilling of the other well, only to help manage the work. I undertook to do the work for the interest I had in it. O. F. Copeland drilled the first 500 feet of the second well. Mr. Daggett paid for it and furnished the money to buy the materials that were used by Copeland in drilling this well. * * * Mr. Daggett furnished all the money that was furnished for the drilling of the second well. * * * I had a conversation with Daggett. I was out trying to sell stock. He said, T am just sitting here shivering, listening any minute for Stevens to make a draft on me for a cable and wire to finish this well.’ The Wichita River Oil Company did not finish the well. The company did not furnish any materials that were used in drilling the second well that I know. * * * Mr. Daggett said, T am just shivering, expecting a draft at any time to pay for this wire cable.’ The old one was about worn out when they started the second well.”

E. T. Stevens, another member of the firm, testified as follows:

“The first well was drilled between 700 and 800 feet; it was lost. That $1,500 was spent and a little more by the time that well was down 800 feet. Other arrangements were made after the first well was ruined with reference to drilling another well. We got a fellow to drill a well for $750. Mr. Coats telephoned Mr. Dag-gett to come up here. I met him at the Marion Hotel. I told him we had to do something toward drilling another well to save what money we had in it, to save that $2,500, and I told him we could get this fellow Copeland to dig it for $750, a thousand feet, and he signed a contract with him for $750. Mr. Daggett signed the contract. * * * The Wichita River Oil Company had not employed anybody to drill a second well before Mr. Daggett got Mm. I superintended the drilling of the second well. Mr. Daggett gave me a check for $100 and told me to be as saving as I could. He said times were mighty hard, and he wanted me to run it as cheap as I could; and I did. X don’t know whether Mr. Daggett put me in charge of it or not. I went in charge myself is how it was.. I only talked with Mr. Daggett up to that time. I had never managed anything for the company. Mr. Daggett told me he wanted mo to take charge of it. He told me if I would take it and run it he would put up the money to carry the thing through. He put up the money. I drew on Mr. Daggett for $250 when we got 500 feet. I also drew on him for numerous cheeks, for $1,100, somewhere along there. He paid every one of them. The $1,100 I drew on him for was all spent on the well for things to keep things going, implements, tools, and everything else that was needed toward drilling the well; $250 for labor, for fuel, hardware, and materials. He paid for them. I bought this stuff from the Avis Hardware Company. This hardware and material was used on the second well. * * * Mr. Daggett told me to draw on him for what I needed — when X needed any money, and be as saving as I could. He said I should go and buy the material, and I did as I was instructed as near as I could. I drilled the well down a thousand feet. Mr. Daggett drew the money from the bank, the $2,500. After that I did not drill any more. I did not do anything further after Mr. Daggett got the $2,500 from the bank. X did not consult Mr. Elliott, R. .X. Dillard, or any of the other partners in the Wichita River Oil Company and call on them to put any money toward the drilling of the second well. When I went to get a new cable, or some fuel, to be used in the drilling of the second well, I did not take the matter up with the other partners. I drew on Mr. Daggett for the money. None of the materials which I bought through the Avis Hardware Company were to be furnished by Copeland. Mr. Daggett made the contract and signed the same with Copeland to do that drilling, and Copeland was to get his money from Mr. Daggett. Mr. Elliott, Mr. Coats, and Mr. Coats as manager of the company, had nothing to do with it — the actual signing of that contract. * * * There was no other contract between Daggett and myself other than the contract which he made with me to go ahead and be as sparing with money as I could because times were hard, and when any materials were needed to go and buy them and draw on Mm for the money. Mr. Daggett did not come to me and say, ‘Listen, I am going to loan the company some money.’ He said he was going ahead and complete the well. He said he was into it and would have to stay with us and furnish the money. He said it looked pretty hard, but he would have to do it.”

E. P. Avis, one of the plaintiffs, testified:

“I drew upon Mr. John Daggett for all of that bill of goods. He did not pay it. He paid part of it by draft. He paid $79.20. I drew on him at the request of Mr. Stevens. The draft was not paid the first time it was sent down there. I do not know of my own knowledge why it wasn’t paid, or never learned from Mr. Daggett why it wasn’t paid, or never learned from Mr. Daggett why it wasn’t paid the first time it was sent. It was paid later, I presumed by Mr. Daggett; the draft was drawn on him. Later there was a conversation with Mr. Dag-gett over the phone with reference to it. I-Ie said over the telephone that it looked like the well was costing him a whole lot of money, and he expected to be in Wichita Palls in a day or two and would take it up with us.”

Appellant, himself, testified, among other things, as follows:

“The first money I let them have X expected to get back out of the $3,500. When that money was used and the well was down to about 800 feet, they notified me that the well was spoiled, and I came up here. When I came up here, they had a man at the hotel, and they said he would drill a well a thousand feet deep. They had ■ not prepared any written contract when I got here; they had the agreement all made before I got here. Mr. Coats and Mr. Stevens had gotten him and had found out how much he would be willing to drill the well for, provided a responsible man would sign the contract with Mm. The other man signed it and I signed it. * * * I signed that contract for $750 in order to get that $2,500, or that $1,000 that was in the bank to the Wichita River Oil Company’s credit. * * * The only way I had to get out of this proposition was to furnish the money for the last well, the $750, in order to get the $2,500. * * * X never authorized Mr. Stevens to buy anything except his tools and water. * * * X told him I would take care of his tools and oil. He drafted me for a cable. If he ever said anything about that, I don’t know it, except when he drafted against me; he said the cable was broke and he would have to have a new cable. He bought it from the Avis Hardware Company and drafted against me for that and I paid it.”

J. D. Avis, another one of the plaintiffs, testified:

“My name is J. D. Avis. I live in Wichita Palis, i have known Mr. Stevens, I suppose, as much as 25 years. I judge that I have known Mr. Coats about 2 years. I have known Mr. Daggett something like 20 or 25 years. At the time these materials were purchased through the Avis Hardware Company, I was actively connected with the Avis Hardware Company. The first knowledge that I had of this transaction was when Mr. Coats and Mr. Stevens came to the store and asked Piner, my son, to get these supplies for them. Piner refused to do so, and they waited until I came down to the store and told me that John Daggett was financing the proposition, and Mr. Coats and Mr. Stevens told me this when I came down to the store, and asked me if I would get these supplies for them, and I asked them who was to pay for them. They told me that John Daggett, at Pt. Worth. I said, ‘Yes, I will get them for you.’ I had known John Daggett for a good many years, and I told them that whatever supplies he would want, why he could get them. That was told me on two or three different occasions. X asked them those questions two or three times. At that time I didn’t know where the well was. I knew it was somewhere up the river. They got these supplies that are stated in that account. I was to buy the goods at the wholesale prices. They said Mr. Daggett didn’t want them to draw on him for this money now — or they didn’t want to draw on him. They wanted to get as much time as they could. They wanted 60 days, and, to use their language, that ‘John said that money matters were tight, and they would like to hold this off as long as they could.’ I told them I was satisfied I could get it so as to give them 60 days, and as long as there was no profit in it to me they allowed me 10 per cent, for purchasing and handling the goods. I had to stand for the goods myself, that is, the Avis Hardware Company did, at the Continental Supply Company, and I think there was a small bill at the National Supply Company, a hundred dollars, or something like that, if I remember correctly. * * * j charged these goods on my books to the Wichita River Oil Company. I think X understood these gentlemen were the managers of the Wichita River Oil Company.”

The evidence quoted in our judgment sufficiently supports the findings of the jury in answer to special issues 1 to 4, inclusive. The mere fact that the goods on the books of the plaintiff company were charged to the Wichita River Oil Company, instead of to John P. Daggett, does not overcome our conclusion. This fact was but a circumstance tending to show that credit was extended to the oil company, as appellant insists, rather than to J. P. Daggett. But this inference is explainable and overcome by the evidence tending to show that the plaintiffs inferred that Daggett was a member of the oil company partnership, and the further specific evidence to the effect that the plaintiffs refused to sell or procure the goods in question upon the credit of any other person than that of appellant, himself. The evidence authorizes the conclusion that appellant’s relation to the drilling of the second well was something more than that of one who was merely loaning money to the Wichita River Oil Company for the purpose of completing the well. He alone entered into 'the contract with the driller; he alone purported to assume the responsibility of payment for the drilling; he alone made selection of Stevens to superintend the work; to appellant alone Stevens seemed to have reported and held himself responsible.

Appellant insists that the authority extended to Stevens was to “draw” for such money as was needed. Thus far it does not appear that Stevens’ authority is questioned, but if Stevens in the prosecution of the work undertaken, and in the effort to serve his master, Daggett, “because times were hard,” secured the credit exténded by the plaintiffs, Daggett cannot be heard to complain, even though Stevens in so doing may have exceeded the specific authority given him. It will hardly be necessary, we think, to cite numerous authorities in support of this proposition, but it may not be amiss to refer to at least one with some particularity. In the case of S. B. Burnett v. Nick Oechsner, No. 3096 (not for publication), in this court, it appears that one Williams was in charge of the appellant’s ranch in Wichita county, Tex.; that the appellee Oechsner had some hogs that became troublesome; and that Williams a number of times penned the hogs, and as often notified appellee, but though appellee took them away he did not keep them up, as was the custom in the neighborhood, but permitted them to run at large. Burnett, upon being informed by Williams that the hogs were eating up the corn, instructed Williams to keep them out, but did not “give him any special instructions further than to keep them out.” Later, upon another trespass on the part of the hogs, Williams caught them and hauled them from appellant’s ranch in Wichita county, Tex., over into the Indian Territory, about 25 miles from Oechs-ner’s residence, and unloaded them there at Burnett’s hog ranch. In appellee’s suit to ■recover the value of the hogs thus converted, we held, in an unpublished opinion, that Williams was acting within the scope of his authority, and in furtherance of Burnett’s business, and that therefore Burnett was liable for Williams’ acts. In ease No. 7646 of Sam Hunt v. A. Oayton (not for publication), we made a similar ruling, as will be seen from the unpublished opinion in that case. See, also, Greer v. First Nat.. Bank, 47 S. W. 1045; Reid Auto Co. v. Gorsczya, 144 S. W. 688; Mechem on Agency, § 740; Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517.

The conclusions noted, we think, sufficiently dispose of all the assignments of error.

They are, accordingly, overruled, and the judgment is affirmed.
      i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOODY et al. v. CHESSER et al.
    (No. 8300.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 18, 1916.
    Rehearing Denied Feb. 5, 1916.)
    1. Appeal and Error >&wkey;1057 — Harmless Error — Exclusion of Evidence.
    Error, if any, in excluding evidence offered by plaintiff to prove a fact admitted by defendant, is not prejudicial to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199, 4205; Dec. Dig. &wkey;1057.]
    2. Appeal and Eeeob <&wkey;1062 — Harmless Eeeoe — Submission of Special Issues.
    Where, in an action by the trustees of a school district against former trustees and a private bank which had received funds of the district and paid the same out on warrants of the former trustees, it was admitted that the funds were paid out on warrants, not approved by the county superintendent, and the jury found that the funds were paid out for the benefit of the district, refusal to submit special issues seeking to elicit the amount of money received by the bank on account of the district from all sources and whether the money had been paid out on warrants approved bj the county superintendent was not reversible error in view of the admitted facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    3. Schools and School Districts <&wkey;95— Funds of Districts — Liability of Bank and Former Trustees.
    Where a private bank receiving money of a school district paid the same out on orders of the trustees of the district for the benefit of the district, and the bank and the trustees acted in good faith, the mere fact that the orders were not approved by the county superintendent as provided by Rev. St. 1911, art. 2756, did not authorize the district to recover the money at the suit of new trustees.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 218-222, 277, 278; Dec. Dig. &wkey;ffi5.]
    Appeal from District Court, Knox County; J. A. P. Dickson, Judge.
    Action by J. A. Moody and another against Louis Chesser and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    See, also, 173 S. W. 917.
    James A. Stephens, of Benjamin, for appellants. D. J. Brookreson, of-Benjamin, for ap-pellees.
   CONNER, C. J.

J. A. Moody and W. A. Brown, as the present trustees of common school district No. 3 in Knos county, instituted this suit against the First Bank of Truscott, a partnership doing a banking business alleged to be composed of Louis Chesser and others, and against N. J. Allen, S. B. Maddox, and others, who it was alleged had theretofore been the duly elected, qualified, and acting trustees for the same school district, to recover specified sums of money ranging from $410.65 to 73 cents, and aggregating a total of $977.55. In substance, the petition charged that said former trustees had collected fhe said sums of money and deposited the same to their credit in the said First Bank of Truscott, and that thereafter they had drawn out and appropriated the same upon checks or vouchers without the approval of the county superintendent. It was charged that said money constituted part of the school fund of the district named, and that said withdrawal and use by the defending trustees was unlawful. The prayer therefore was that the plaintiffs might have judgment recovering the sum stated.

The defendants answered by certain demurrers not necessary to be noticed and by general and special denials, and further specially answered that all the money collected by them or any of them while they were acting as trustees of school district No. 3 was paid out by them for the special use and benefit of the school district, except $94.40 that was on hand at the termination of their services and which was surrendered and delivered by them to their successors in office, and that if there was- any irregularity in the manner in which said money, or any of it, was paid out, which was not admitted but specially denied, the same did not result in harm to the district, but that, on the contrary; the district received the full benefit of all of the money belonging to it ever handled by the defendants, or any of them, and that such money was expended by them for lawful purposes in the management, equipment, and maintenance of said school district.

The case was submitted to a jury upon the following special issues:

“First Special Issue. What amount of money was received from all sources by the Bank of Truscott from the trustees of the Truscott school district; or from any other source, if any, for the use of said school district?
“Second Special Issue. What amount of money was expended by the board of trustees of the Truscott school district that had been deposited for the use of said district in the Bank of Truscott?
“Third Special Issue. Did the Bank of Trus-cott or the board of trustees of the Truscott school district pay out any of the funds of said school district for any purpose other than for the benefit or use of the school of said district? If so, what amount, and to whom?
“Fourth Special Issue. Did the Bank of Trus-cott pay to the trustees of the Truscott school district all of the money received by it for said school district?
“Fifth Special Issue. Did the Bank of Trus-cott pay out any of the funds of the Truscott | school district deposited with it without authority from the trustees of said district?"

To which the jury returned the following answers:

“To the first issue we answer: Nine thousand, six hundred forty-two and to/100 dollars ($9,642.70j.
“To the second issue we answer: Nine thousand, six hundred forty-two and 80/ioo dollars ($9,642.80).
“To the third issue we answer: No.
“To the fourth issue we answer: Yes.
“To the fifth issue we answer: No.”

Upon the answers of the jury so given the court rendered its judgment in favor of the defendants, and the plaintiffs have appealed.

As we interpret the record, appellees question only the expenditure of the sums of money specified in their petition and for which a recovery was sought, it appearing that other sums comprehended within the verdict of the jury were expended in the building of a new sehoolhouse and in other ways about which there seems to be no controversy. Wliat therefore we say in our disposition of the appeal must be understood as relating alone to the sums of money mentioned in the plaintiffs, petition.

Appellants’ first assignment questions the court’s ruling in refusing to admit what is designated as “debit slips and checks and vouchers” of the defendant bank, ranging from $272 to $3 and aggregating $407.57. The record discloses that an auditor had been appointed to state the account between the school district and the bank, and the auditor had reported the items referred to as proper debits against the school district, and it appeared in the evidence that the debits or checks had been entered and paid by the bank upon the order of the school board, and the money used for “seats,” presumably for the new sehoolhouse which had been bruit, for freight, on account of taxes, etc., and the debit slips were offered by the plaintiffs, as shown by the bill of exception taken to the court’s ruling, as “tending to prove that said money was expended without the approval of the county superintendent of Knox county.” We find no error in the court’s ruling in this respect, inasmuch as the defendants in open court “admitted that all of the moneys expended as shown by the auditor’s report were expended without the approval of the county superintendent." We fail to see in what way the court’s ruling operated to the prejudice of the plaintiffs, in view of the admission referred to and of the fact that it otherwise appears that the several sums specified in the several debit slips or checks offered were paid out by the bank upon the order of the old school board. The first assignment is, accordingly, overruled.

The second assignment is directed to the court’s refusal to submit special issues • seeking to elicit the amount of money received by the First Bank of Truscott on account of school district No. 3 from all sources, and whether said money had been paid out on vouchers or warrants approved by the county superintendent. But in view of the admitted fact that the sums of money for which the plaintiffs sued in this action were not so paid out, and in view of the findings of the jury already given, we think there can be no reversible error predicated upon the action of the court in this respect. The assignment will, accordingly, be overruled without further detailed notice.

The third assignment questions the verdict and judgment on the ground that the uneontroverted evidence shows that the money in question for which a recovery is sought belonged to school district No. 3, and that it had been paid out without the approval of the county superintendent, and we think this presents the vital question in this case.

The evidence shows that school district No. 3 had issued bonds in the amount of $8,000 for the building of a new sehoolhouse, and which sum of money had been appropriated for that purpose; that of the amounts specified in the plaintiff’s petition the sum of $410.65 had been received by defendant trustees as the proceeds of the sale of the old sehoolhouse; that a further sum of $50 had been received by them as rent for the school building, and a further sum of $25.08 as a rebate on the shipment of school seats. The other sums specified in the plaintiffs’ petition had been received by the old trustees under the following circumstances, to wit: A special tax had been levied upon the property in the district for the purpose of maintaining a school therein for the current year, which tax had, using the language of one of the witnesses, been “killed” by the issuance of an injunction. Thereupon the residents of the district agreed among themselves to severally donate for the purpose stated such sum as they would have been required to pay had the tax levied not been interrupted. These several sums, together with the sum received from the sale of the old sehoolhouse and rent, as stated, were all placed in the First Bank of Truscott by the old trustees, and that bank entered upon its books the aggregated sum to the credit of the school district. From time to time thereafter during the course of the year, it seems that the old trustees, as occasion required, would draw checks upon this fund which were paid by the bank, and the jury not only finds, but the evidence is undisputed, that all of the cheeks so drawn and all of the sums so used by the defending trustees were paid out and appropriated in the way of school seats and (presumably) in payment of school teachers’ vouchers, etc., for the benefit of school district No. 3; .that is, all of said aggregated amount, except the sum of $94.40, which remained on hand to the credit of the district. This sum of $94.40 was later paid out upon the check of the new board and by the new board deposited in the county depository to the credit of the district. There is evidence tending to show that the vouchers issued to the school teachers had the approval of the county superintendent. But it is not clear in the record just what part of the aggregated sum was thus paid to teachers during the period that the defending trustees were managing the district, but it is certain that the remaining sums, and for the purposes of this suit we will say all sums, were paid out upon the orders or checks of the old board of trustees without the county superintendent first having approved them. It indeed appears that the balance of $94.40 referred to was drawn out and deposited in the county depository for the benefit of school district No. 3 without the formal approval of the county superintendent, although one of the witnesses testified to the effect that he was present and consented thereto.

In prescribing the duties of a county superintendent, it is provided, among other things (see Revised Statutes 1911, art. 2756) that:

“The county superintendent shall approve all vouchers legally drawn against the school fund of his county.”

And appellants cite several cases including Kleinsmith v. Northcut, 56 S. W. 557, and Bodystun v. Rockwall County, 23 S. W. 541, in aid of the proposition that the requirement of the statute above quoted is mandatory. In a general way it must, of course, be so implied from the terms of the statute; but upon an examination of the eases cited it will be found for the most part that they were cases where the funds paid out were so paid by a county treasurer or depository and where the particular fund in question had been either paid out for an unlawful purpose or in some way misappropriated. But no case has been cited that, as we think, supports appellants’ contention of liability in this case. County treasurers and county depositories occupy an official or quasi official relation to the county, or school districts, as the case may be. Their duties with relation to these funds belonging to the county or district are specifically written in the law, but it is to be observed that in- the case of the bank now before us no official relation existed whatever. It was a mere private bank that upon tender received certain money which was deposited to the credit of common school district No. 3 by the direction of the depositors., Ordinarily, this would but create the relation of a debtor to the persons making the deposit, and ordinarily payments upon the proper checks or orders of such persons would be authorized. True, in case of deposits as here, and if it was made to appear that the bank so receiving such fund paid it out, even to the depositors, with knowledge that the same was to be misapplied or misappropriated, a liability in favor of the real owner of the fund might arise. But such is not true here. Here, it is undls-puted tliat every dollar of tlie money deposited by tbe old trustees of tbe school district was by them drawn out and applied for the benefit of the district. The good faith and bona fide purpose of the parties is in no way questioned. It appears that the reason why the approval of the county superintendent was not sought was because the parties viewed the sum so deposited, particularly the sums arising from donations of the citizens of the district, as gratuities of a character not requiring the county superintendent’s approval. It is not pretended that the county superintendent could or would have refused his approval of the expenditure of any sum whatever that was expended by the old trustees. Upon what principle of justice, therefore, can it be said that the new trustees, who sue alone as the representatives of the school district, should be permitted to recover in this action, when, as found by the jury and as shown by the undisputed evidence, the school district has in fact received the full benefit of all sums specified in the plaintiffs’ petition? For aught that the record shows, the $94.40 included within the amount deposited by the old trustees is now in the hands of the county depositary subject to the order of the very plaintiffs in this suit. The demand of the plaintiffs may be within the letter of the law, as Shylock’s was within the letter of his bond; but clearly, as we view the facts, it is not within the spirit of the law.

All assignments are, accordingly, overruled, and the judgment is affirmed.
      <gss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    JOSEY et al. v. BEAUMONT WATERWORKS CO.
    (No. 36.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 14, 1916.
    Rehearing Denied Feb. 10, 1916.)
    1. Waters and Water Courses <&wkey;206 — Public Water Supply — Liability to the Public Because oe Franchise.
    The possession of a franchise by the defendant, permitting it to lay a water main in the city’s streets and furnish water to its citizens, did not, irrespective of other considerations, give a right of action in favor of a citizen for failure to furnish water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. ⅞⅝=206.]
    2. Waters and Water Courses <&wkey;194 — Public Water Supply — Contract—Duty to Keep Private Line in Repair.
    Where the defendant water company was under contract with the plaintiffs to furnish them water for fire protection through their private pipe line, there being nothing in the contract, either written or verbal, which would tend to show that the defendant had any duty to perform with reference to the maintenance in good repair of said private pipe line, the duty of maintaining it in good repair was on the plaintiffs.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 280; Dec. Dig. &wkey;194.]
    3. Customs and Usages <&wkey;13 — Explanation op Contract — Water Supply.
    Where the plaintiffs, under a contract with defendant water company were supplied with water for fire protection through a private pipe line, which it was plaintiffs’ duty to keep in repair, the defendant’s practice of voluntarily notifying its patrons-of defects or leaks in their lines did not constitute a custom which would be read into the contract, and the defendant was not guilty of negligence in failing to notify the plaintiffs of the break in the line.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 25, 26; Dec. Dig. <&wkey;>13.]
    4. Waters and Water Courses <&wkey;206 — Failure to Furnish Water — Remote Consequences.
    Where the defendant shut off the water which it was supplying to the plaintiffs for fire protection through a private pipe line, because of plaintiffs’ failure to keep the pipe in repair, and a fire occurred which the plaintiffs were unable to check 'because of the lack of water, it could not be said that the defendant’s failure to notify the plaintiffs that the water had been shut off was the proximate cause of the damage caused by the fire.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. «&wkey;206J
    Appeal from District Court, Jefferson County ; W. H. Davidson, Judge.
    Suit by J. E. Josey and others against the Beaumont Waterworks Company. From a judgment for the defendant, plaintiffs appeal.
    Affirmed.
    This suit was instituted by the plaintiffs (appellants) against the defendant (appellee) to recover the value of their buildings and other property located in the city of Beaumont, which were destroyed by fire on September 7, 1913, which plaintiffs alleged were of the reasonable value of $77,032.18. After the evidence was all in, the court instructed the jury to find for the defendant, and the jury returned a verdict for the defendant, upon which the court rendered judgment for the defendant. Plaintiffs duly objected in writing to the court’s charge before it was given to the jury, and requested that the cause be submitted to the jury, which objections and request were overruled, and refused by the court, to which the plaintiffs took a bill of exceptions. Plaintiffs in due time filed a motion for new trial, which motion was by the court overruled, and plaintiffs excepted and gave notice of appeal, and in due time filed their appeal bond and perfected their appeal to this court.
    By their third amended original petition filed on the 5th day of September, 1914, upon which petition the case was tried, the plaintiffs alleged that on the 7th day of September, 1913, they were engaged in the retail and wholesale feed business in Beaumont, Tex., and had and owned certain buildings of the value of $10,686.89; that plaintiffs had in their business machinery, mills, etc., of the reasonable value of $21,070.30; office furniture of the value of $610, and goods, wares, and merchandise on hand of the value of $44,665. They further alleged that they owned said property in 1910, and on or about the 15th day of July of that year they entered into a contract with defendant, under and by virtue of which they would furnish the pipe and build a three-inch line from defendant’s water main to their property, and defendant would connect said line with its water main and furnish plaintiffs water for fire protection until further notice. ■ Plaintiffs further alleged that if they were mistaken in the date said contract was entered into, then they say that for two years prior to January 13, 1912, defendant furnished them water for fire protection, and that on said date they paid defendant $72 for services which had been furnished them through their line to their buildings for private fire protection, and then entered into an agreement with defendant, by virtue of which they would pay $9 per quarter, or $3 per month, and defendant would furnish them water in their line for said private fire protection until they were notified by defendant that said services would be discontinued ; that said service was to be paid for either monthly or quarterly in advance or at the end of the period for which the service was rendered, or at such time and in such manner as defendant might render its bill to plaintiffs; that water should be furnished so as to protect plaintiffs’ property against loss by fire, water being furnished through said private line, and permitted to remain therein and not cut off without notice to plaintiffs. They further alleged that if they were mistaken in said express contract, then there was an implied contract that water should be furnished in plaintiffs’ private pipe line until such time as plaintiffs were notified by defendant that such contract would be discontinued, which contract arose by virtue of the dealings between plaintiffs and defendant, in that plaintiffs, with the knowledge and consent of defendant, built the private line, so as to secure water from defendant’s main for private fire protection to their buildings; that defendant connected the same with its water main, and for four years prior to the loss of plaintiffs’ property, permitted water to remain in said private fire line for the purpose of furnishing water to protect plaintiffs’ property against loss by fire, rendering bill for such service at the rate of $3 per month, which bills were rendered at irregular times; that plaintiffs had paid for such service at the time of said fire; that at the time defendant disconnected or cut off said water it had money on hand sufficient for said purpose, and that by virtue' of dealings between said parties, it became the implied understanding tha.t said water would remain until plaintiffs were notified that the same was to be discontinued. Plaintiffs further allege that whether or not there was an express or implied contract, it was the duty of defendant to notify plaintiffs if it cut off the water from said private fire line; that it was its custom to so notify users of its water of any bad condition of the pipe or any leaks or breaks therein, and that plaintiffs knew of said custom, and relied thereon in their dealings with defendant, and said custom became a part of the contract between plaintiffs and defendant; that plaintiffs fully complied with their part of said contract with defendant, but defendant, on or about the 7th day of December, 1913, without notice to plaintiffs, cut off plaintiffs’ private fire line, and excluded water therefrom, and on September 7, 1913, a fire occurred which destroyed all of plaintiffs’ property, of the value alleged in their petition; that defendant failed to notify plaintiffs that water had been cut off from the private fire line, which it was its duty so to do, and the failure to so notify plaintiffs was the direct and proximate cause of the loss sustained by plaintiffs; that if there had been water in said line at the time said fire originated, the fire could have been extinguished, and said property saved; that plaintiffs did not know that the water had been discontinued from their private fire line until after said fire had been discovered, and they attempted to extinguish the same, and discovered for the first time that the water had been cut off from their buildings, and thereby, they had no means of extinguishing the same, causing the loss of their entire property, which would not have resulted but for the breach on the part of defendant of its contract with the plaintiffs to maintain said water in the pipe line of plaintiffs until they had been notified that it had been discontinued.
    The defendant, after denying the allegations made by plaintiffs, alleged that it was its custom to furnish water only upon a written contract, and that if any contractual relation existed between plaintiffs and defendant, same rested upon said written contract, a copy of which is attached to defendant’s answer. Defendant denied that it was its custom to notify owners of pipe lines of any bad condition of their pipe, but it admitted that it usually did so as a matter of accommodation, and in cases where it believed that the owner did not know of such defect, and that such notification was not given as a legal duty, but simply as one of ordinary courtesy. Defendant further alleged that under the terms of its franchise with the city of Beaumont, it was required to keep a- certain amount of pressure in its pipes, and that no other service should be allowed to interfere therewith, and that it was the duty of plaintiffs to keep their private pipe line and equipment in good order, and that plaintiffs did not do so, and at the time of the fire said line was burst and open, and incapable of use, and the fire chief of the city of Beaumont required that water be cut off from said pipe line, in order to keep it from interfering with water pressure in tlie city hydrants. Defendant further alleged that at the time of the fire which destroyed plaintiffs’ premises and contents, same were insured in various insurance companies set out in defendant’s answer; that since said fire, plaintiffs had settled with said insurance companies, and each had paid plaintiffs the amount of insurance called for in said policies, and each policy contained a provision that the company should be subrogated to the extent of any payment made to or rights of recovery by the insured for loss resulting, and such rights should be assigned to the company by the insured on receiving such payment; that the insurance companies were now owners of the plaintiffs’ cause of action, and by virtue thereof plaintiffs are not entitled to recover said amount.
    Plaintiffs filed their supplemental petition, in which they denied the facts alleged by defendant in its answer, and affirmatively alleged that if their pipe was burst and open at the time of the fire, it was without their fault, and they were not advised of such condition, and if such condition existed, it was known to defendant, and not known to plaintiffs, and defendant concealed from plaintiffs the fact that said pipe line was out of order, and disconnected the water therefrom, and withheld said knowledge from plaintiffs, and the plaintiffs did not know that said line was broken, or that water had been discontinued therefrom. Plaintiffs further allege that after the filing of this suit they had settled with various insurance companies, but that plaintiffs retained the right to prosecute the suit, and that each company waived the right of subrogation.
    It is contended by the appellees that they were relieved of the performance of the contract with plaintiffs, by the plaintiffs rendering the contract incapable of performance by their failure to provide a pipe line to convey the water to plaintiffs’ buildings, and, that the contract being rendered impossible of performance by plaintiffs, said failure absolved the defendant from any further obligation.
    Greer, Nall & Bowers, of Beaumont, for appellants. Smith, Crawford & Sonfield, of Beaumont, and L. A. Carlton, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   BROOKE, J.

(after stating the facts as above). The pipe line was erected by the plaintiffs. It was a private line owned by them, and, so far as the record shows, it was broken through no fault of the defendant. Therefore the question arises whose duty it was to keep the said pipe line in repair. If it was the duty of the appellee to keep the line in repair and by its negligence in the premises the said line became broken, it would be liable. It is not alleged, neither was it proven, that there was any verbal or written contract by which the appellee agreed, or that any duty rested upon it, to keep the said line in repair, and plaintiffs in this case are not contending that they have any right of action by virtue of any duty owing them as members of the public, arising from the franchise held by the defendant from the city of Beaumont.

The fact that the Waterworks Company have had a franchise in the city of Beaumont permitting it to lay a main in its street and furnish water to its citizens would not, from that alone, give a right of action in favor of a citizen, on account of the failure to furnish water. As it was held in the case of House v. Houston Waterworks, 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532, a water taker has no such right.

In their petition the appellants allege that the company agreed and contracted to furnish the water, but they do not allege that it agreed either to keep their private line in repair, or agreed in said contract to notify them in case it should become defective. In the case of Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288, the water taker installed a service, stock box, and other appliances through which water was conducted through the main line of the company to its premises. The stock box was faulty in construction, and some third party received an injury therefrom. The question of who was liable for this injury turned on the point as to whose duty it was to maintain the stock box in proper condition. It' was held that the water taker received his water at the street main, and that all the appliances used in conducting the current to the premises, beginning at the street main, were owned by and were under the supervision of the water taker, and that he, and not the company, be liable for any injuries that were caused by the faulty condition. The case of Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 Atl. 1003, was one wherein negligence was claimed by reason of the fact that the gas company had turned gas through a defective line with knowledge of the fact that it was defective. The question of whether or not it was the duty of the gas company to repair the line came up, and it was said:

“To make the defendant company answerable in damages for failure to repair or inspect the service line from the curb to the property of plaintiff, it was necessary to allege: First, a duty in these respects; and, second, a violation of that duty. The duty to inspect was not charged, and the duty to repair the service line from the curb to house was not sustained by the evidence; ‘but, on the contrary, the contract between the parties placed the duty of repairing this service line upon the owner, or perhaps the occupier of the premises. It certainly cannot be gainsaid that in an action to recover damages on the ground of negligence, the ‘burden is on plaintiffs to show that defendant had a duty to perform in the first instance, and that by reason of failure to perform that duty the injuries resulted.”

In the case of Ellis v. Birmingham Waterworks, 187 Ala. 552, 65 South. 805, suit was brought against a water company by a water taker, alleging injury on account of failure to furnish water. The court said:

“The allegation that the defendant wantonly or intentionally failed to furnish water and water pressure cannot change the result as to stating a cause of action. If there was no legal duty owing by the defendant water company to the plaintiff to furnish water and water pressure, the failure of which is complained of, then a wanton or intentional failure to so furnish will not change the legal rights of the parties.”

Further, the court said:

“The omission to act, however willful, is not an answerable wrong unless there is a legal duty to aet. (Italics ours.) Wantonness, as has been said by this court, is the conscious failure by one charged with a duty to exercise due care in the discharge of that duty.”

There being nothing in the contract in the instant ease, either written or verbal, which would tend to show that the appellee had any duty to perform with reference to the maintenance in good repair of said private pipe line, we are constrained to believe, and to so hold, that the duty of maintaining the same in good repair was upon the appellants. Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288; Kosmak v. City of New York, 117 N. Y. 361, 22 N. E. 945; Leonhardt v. City of New York (Sup.) 109 N. Y. Supp. 24; Vinton Roanoke Water Co. v. City of Roanoke, 110 Va. 661, 66 S. E. 835; State v. Gosnell, 116 Wis. 606, 93 N. W. 542, 61 L. R. A. 33; Tobin v. Frankfort Water Co., 158 Ky. 348, 164 S. W. 956; Dublin Electric & Gas Co. v. Thompson, 166 S. W. 113; Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 Atl. 1003.

It is practically without dispute that about two weeks before the fire occurred which destroyed the building and contents, there had been an earlier fire in the hayhouse, which was destroyed, and that said private water line was at that time broken, and that by the burning of the building and hay therein down on the hydrant rising from said private line in the center of the building and extending about as high as a man’s head above the floor, the said fire had broken off a part of the pipe line, and that the hose attached to the line at the time of such earlier fire was used by and under the personal direction of one of the plaintiffs. The facts further show that water flowed from this break in large volumes and was plainly visible; that this’earlier fire occurred in plain daylight; that plaintiffs were both there; and that those directing the fight against the fire knew that the line was burst from seeing it, and observing the effect on the water pressure. The facts further show that plaintiffs had cleared off the premises where the building burned and had taken away the broken hydrant and section of pipe, and partially rebuilt the burned building, and it is contended by the appellee that appellants knew, or that by the use of ordinary care would have known, that their line was broken. The facts further show that on account of said private line being broken at the time of the first fire, the water, under the direction of the fire chief, was cut off from the private line to prevent its free flow from destroying the pressure in the city’s mains, thus lessening their efficiency in putting out fires. The appellants, however, contend that, at the time of the making of the contract, if a contract was made, it was the custom of appellee to notify its patrons of any leak and damage in their lines when the same occurred, and appellants say that, by reason of the fact that appellee failed to give notice to them of the damage to the said private pipe line, the injury occurred, and the damage resulted, as aforesaid; that had the defendant followed the custom and told plaintiffs that the burning of the old hayhouse down on the hydrant had broken off a section of the pipe, or that said pipe was out of repair, then plaintiffs would have fixed the line in time to have prevented the damage of the next fire, and they allege, and there is proof, that they did not know of such damage. It will be noted that in their petition appellants allege that appellee agreed to furnish water, but they do not allege that either appellee agreed to keep their private line in repair or to notify them in case it should become defective. They simply claim that the company owed them a duty to tell them that the line was broken, not based on any private contract obligating the company to give such notice, but the contention is that it was the duty of the water company, aside and apart from any contract that existed between them and the waterworks company, arising from such custom.

It has been said that custom or usage would not make contracts, and that proof thereof can only be resorted to as showing the meaning of words used, and custom will not be allowed to create an obligation, inconsistent with the obligations that follow from an application of the general principles of law. In this case the Waterworks Company was furnishing water from its main line, to be taken through plaintiffs’ private line into their plant. Under the law the duty was upon the plaintiff to care for its private line and keep the same in good repair; there being nothing in the contract, as alleged by the plaintiffs, creating any obligation on the part of the Waterworks Company to do so, unless it arose from this alleged custom to notify owners of damages to their pipes. If it could be shown that the Waterworks Company made a practice of notifying water takers of defective connections, we cannot see how a failure to notify in this particular case would have created an obligation where none otherwise existed. We think the testimony shows that ordinarily the Waterworks Company would call the attention of water takers to faulty or defective connections, but the record shows no case in which the Waterworks Company notified a water taker who owned a private line that the private line was broken. A custom to notify of defects, if it could be read into the alleged contract in this case, would only be a voluntary one on the part of the appellee, and ordinary care would only be required of it in the observance thereof, and it is shown in this case, outside of the fact of the appellants being present at the burning of the hay-house in the first instance, and that they had cleared oft the premises where the said house was burned and taken away the broken hydrant, that the appellee the next day after the hayhouse burned, sent its service man to notify the plaintiffs that the water was shut off, but for some reason this message was not delivered. That the water was shut off on account of the broken pipe cannot be questioned. Mr. Elether, manager of Waterworks, testified:

“I cut the water off because the pipes were broken, and if it had not been bursted I would nót have cut the water off.”

In the case of Barnard v. Kellogg, 77 U. S. (10 Wall.) 383, 19 L. Ed. page 987, it is said:

“It is to be regretted that the decisions of the courts, defining what local usages'may or may not do, have not been, uniform. In some judicial tribunals there has been' a disposition to narrow the limits of this species of evidence, in others to extend them, and on this account mainly the conflict in decision arises. But if it is hard to reconcile all the cases, it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office' of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it. See Notes to Wrigglesworth v. Dallison, 1 Smith’s L. Cas. 670 (Doug. 200); 2 Pars. Cont. § 9, p. 635; Taylor, Ev., p. 943, and following. ‘Usage,’ says Lord Lyndhurst, ‘may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.’ Brackett v. Royal Exch. Ass. Co., 2 Crompt. & J. 249. And it is well settled that usage cannot be allowed to subvert the settled rules of law. See note to Smith’s L. Cases, supra. Whatever tends to unsettle the law and make it different in the different communities into which the state is divided, loads to mischievous consequences, embarrasses trade, and is against public policy. If, therefore, on a given state of facts, the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they cannot be changed by any local custom of the place where the contract was made. In this case the common law did not, on the admitted facts, imply a warranty of the good quality of the wool, and no custom in the sale of this article can be admitted to imply one. A contrary doctrine says the court, in Thompson v. Ashton, 14 Johns. 317, ‘would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sales of chattels.’ ”

Also the ease of McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121, in which the court said:

“But beyond this, usage or custom cannot make a contract when the parties themselves have made none. National Bank v. Burkhardt, 100 U. S. 686, 692, 25 L. Ed. 766; Thompson v. Rigs, 5 Wall. 663, 679, 18 L. Ed. 704; Tilley v. County of Cook, 103 U. S. 155, 26 L. Ed. 374. And the defendant did not claim that technical or trade terms had been used, to which a peculiar meaning, requiring explanation, attached (Seymour v. Armstrong, 62 Kan. 723, 64 Pac. 612; Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866), or that the contract was ambiguous or indefinite or silent upon any matter (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444), or that the intention of the parties could not be ascertained from the language they employed. McCulsky v. Klosterman. 20 Or. 108. 25 Pac. 366, 10 L. R. A. 785. This is the only proper function of usage or custom. Barnard v. Kellogg, 10 Wall. 383, 390, 19 L. Ed. 987. Therefore the evidence sought to be introduced was irrelevant and immaterial.”

In support of our views see, also, McGahan v. Indianapolis Natural Gas Co., 140 Ind. 335, 37 N. E. 601, 29 L. R. A. 355, 49 Am. St. Rep. 199; Pike v. Railway Co. (C. C.) 39 Fed. 255; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; Sickles v. Railway Co., 13 Tex. Civ. App. 434, 35 S. W. 493; House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Ellis v. Birmingham Waterworks Co., 187 Ala. 552, 65 South. 805; Hone v. Presque Isle Waterworks Co., 104 Me. 217, 71 Atl. 769, 21 L. R. A. (N. S.) 1021; Morton v. Washington L. & W. Co., 168 N. C. 582, 84 S. E. 1019; German Alliance Ins. Co. v. Home Water Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000; Allen & Curry Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 South. 980, 68 L. R. A. 650, 104 Am. St. Rep. 525, 2 Ann. Cas. 471.

The failure, therefore, of appellee to furnish water to appellants was brought about and caused by the negligence of appellants to keep their private line in repair. If said private line had been in a good state of repair, the testimony is conclusive that the water supply would not have been cut off. The failure, therefore, of the appellant to provide such pipe line rendered the alleged contract with reference to furnishing water impossible of performance. In this case we hold that there was no legal obligation resting upon the appellee to tell the plaintiffs that their line was open. Therefore the ap-pellees would not be liable for damages that might have been averted had it notified plaintiffs of the broken line, and they had in turn fixed it. We also are unable to see how, even if there had been a duty to notify and a failure to perform it, under the facts of this case it could be said it was the proximate cause of the injury. Mere notice to appellants would not have prevented the fire. The want of water was caused by a broken water line. We fail to understand how the failure to notify of the broken water line was the proximate cause of the injury.

It follows from what has been said, and we hold, that the private line was owned by tile plaintiffs; that it was their duty to keep it in repair; that the damage to said pipe line was not caused by any negligence on the part of the appellee; that the failure to mend the said line caused the appellants’ loss and that the contract entered into, as alleged, by and between appellants and ap-pellee to furnish water through said private line, was rendered incapable of performance by the negligence of appellants in failing to fix and keep in repair the said private line. El Paso & S. W. Ry. Co. v. Eichel, 130 S. W. 922, 940; Gravity Canal Co. v. Sisk, 43 Tex. Civ. App. 194, 95 S. W. 724, 726; McConnell v. Corona Water Co., 149 Cal. 60, 85 Pac. 929, 8 L. R. A. (N. S.) 1171, 1174; 6 Ruling Case Law, 943, § 324; S. Tex. Tel. Co. v. Huntington, 121 S. W. 242, 247, 248; Davis v. Yates, 1 White & W. Civ. Cas. Ct. App. § 265; Wright v. Meyer, 25 S. W. 1123; Loudenback v. Tenn. Phos. Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402, 406; Rice v. Fidelity & Deposit Co., 103 Fed. 427, 433, 43 C. C. A. 270; King Bridge Co. v. City of St. Louis (C. C.) 43 Fed. 768, 10 L. R. A 826, 828; Notes, 30 L. R. A. 39; Hood v. Raines, 19 Tex. 400, 404; Fresno Mill Co. v. Fresno Canal Co., 126 Cal. 640, 59 Pac. 140; 3 Elliott, Contracts, §§ 2044, 2038 ; 6 Euling Case Law, p. 1005, § 369, p. 1012, § 374.

Appellants were not relieved from this responsibility by the fact that in many eases the Waterworks Company notified its patrons of the defects in the line, and it follows that the lower court did not err in instructing the jury to find for appellee. Each and all of the assignments of appellants have been considered, and they are all overruled, the record has been carefully gone over, and we believe that the action of the lower court was justified, and, finding no error therein, the case is in all things affirmed.

It is so ordered.
      <@z^For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    JOHNSON v. ATLAS SUPPLY CO.
    (No. 8295.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 8, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1. Pleading- <§=»214 — Demurrer—Eeeect.
    In considering a petition against which demurrer is urged, the court must, as required by rule 17 for the district and county courts (142 S. W. xviii), accept the allegations of the petition as true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. <S=>214.]
    2. Negligence @=32 — Injuries to Persons — Trespassers — Invitees — Liability oe Owner.
    While an owner of property is not bound to guard against injury to a mere trespasser, he must exercise ordinary care to guard against injury to persons on his premises by invitation.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. <®=?32.]
    3. Negligence <®=o32 — Injuries to Persons —Invitees—Liability.
    The owner of property is under the same liability for failure to guard against injuries reasonably to be contemplated to implied invitees as to express invitees.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. <®=>32.]
    4. Negligence <S=o39 — Attractions to Children — “Implied Invitation.”
    An “implied invitation” to plaintiff, a boy 8 years old, to come upon the premises cannot be drawn from the fact that the owner maintains thereon things ordinarily in existence and use, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, and the like, or even an attractive maiden or daughter of about the same age as plaintiff.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. <®==»39.
    For other definitions, see Words and Phrases, First and Second Series, Implied Invitation.]
    5. Negligence ⅞=>111 — Injuries to Persons —Implied Invitation — Things Attractive to Children.
    A petition seeking recovery for injuries to a minor alleged that the defendant kept upon its premises oil well supplies, casings, iron wheels, which could be turned and rolled about the premises, and steam and gas engines and pumps, containing wheels and levers, which could be and frequently were turned and worked by the plaintiff, and a large number of great pulley wheels standing in a row in an upright position, of extremely heavy weight, and that there was about the premises of defendant a girl of about the age of plaintiff, with whom he was accustomed to play. Held, that the allegations were sufficient to present the question of an implied invitation, and the petition was not subject to demurrer.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 182-184; Dec. Dig. <S=»111J
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by Homer Johnson, by his father and next friend, S. Johnson, against the Atlas Supply Company, a corporation. From a judgment dismissing the action on plaintiff’s refusal to amend after sustaining a demurrer to the petition, plaintiff appeals.
    Reversed and remanded.
    E. W. Napier, of Wichita Falls, for appellant. John C. Kay, of Wichita Falls, for ap-pellee.
   CONNER, C. J.

Appellant, Homer Johnson, a minor about 8 years old, by his father and next friend, S. Johnson, instituted this suit against the Atlas Supply Company, a corporation, to recover damages for personal injuries. The court sustained a general demurrer to the plaintiff’s, petition, and, the plaintiff having declined to amend, the suit was dismissed, and from the judgment of dismissal this appeal has been prosecuted.

Omitting formal allegations and first stating in a general way, it was alleged in the petition that the defendant corporation was engaged in the oil well supply business m Electra, Tex., and there maintained a large warehouse; that for several months prior to the date of the plaintiff’s injury he had re sided, together with his father, about one block from the warehouse; that the defendant corporation kept on and about the platform of the warehouse great quantities of well supplies, etc. It was specifically alleged:

“That during the times aforesaid the defendant company kept on and about the platform of said warehouse great quantities of oil well supplies, consisting of oil well casing, iron wheels of various kinds and sizes, which could he turned and rolled about the premises by children of the age and size of plaintiff, and also steam and gas engines and pumps, and many other kinds of machinery, and one small engine, which stood inside said warehouse, containing many wheels and levers, that could be and frequently were turned and worked by the plaintiff. That among other things on said premises were a- large number of great pulley wheels standing in a row, one against another, in an upright position, before the passageway and in close proximity to the main entrance of said warehouse, being in such position that persons walking in and out of said warehouse were compelled to pass within a few inches of said wheels. That said wheels were made of solid iron, weighing approximately 415 pounds each, and being about 36 inches in diameter, and about 4 inches across at the outer edge. That said wheels were not braced or supported in any manner, and were in such condition that the slightest jar or movement would cause them to fall out across said passageway.
“That for at least six months prior to said 26th day of December,, the defendant and its employés kept upon said premises a little girl, who resided in the immediate neighborhood theropf, by the name of Virginia Cole. That said Virginia Cole was upon said premises the greater portion of every day during said time, and was on this date, by the invitation and design of said defendant and its said employés. That said Virginia Cole, who was of the same age of the plaintiff, was a sweet-tempered, companionable little girl, and was very kind and friendly toward the said Homer Johnson. That they had played upon said premises together many times prior to said date, and had become very good little friends and playmates, as to all of which the defendant was fully apprised. That defendant encouraged the plaintiff’s visits as heroin alleged by their kind treatment, and did, on all of said occasions, invite the plaintiff there to play.
“That by reason of the location and surroundings of said premises, and by reason of the fact that the defendant kept thereon the tools, machinery, and appliances aforesaid, and by reason of the presence of the said Virginia Cole as above set forth, and by reason of such invitations, said premises were unusually attractive to the said Homer Johnson and other childx-en of his age who resided in the neighborhood thereof as a place to play, and were well calculated to attract and did attract such children and the said Homer Johnson on all of the times above mentioned, all of which was well known to the defendant. That said premises, by reason of the loose and careless manner in which said machinery and supplies were kept, and especially by reason of the loose and careless manner in which said pulley wheels were piled, were extremely dangerous and unsafe for children of the age of plaintiff to be about, and of this the defendant was at said time and long prior thereto fully informed.
“That on said 26th day of December the said Homer Johnson, by reason of the attractiveness and said invitations by reason of the friendly relations that existed between him and the said Virginia Cole as aforesaid, went to said warehouse, as was his custom, for the purpose of amusing himself by playing with the said Virginia Cole upon and with said machinery and appliances. That upon his arrival there he and .the said Virginia Cole began playing upon said premises, climbing about said machinery and rolling and turning said wheels. That they had been so playing about one hour, when the said Virginia Cole secreted herself behind said row of pulley wheels. That the said Homer Johnson started past said wheels, and just as he was opposite or in front of the same, she sprang out from her hiding place, and, in so doing, brushed against the foremost of said wheels, thereby causing the same to fall on the said Homer Johnson, causing the injury hereinafter complained of.
“That by reason of his tender age and inexperience the plaintiff, Homer Johnson, was wholly ignorant of the dangerous condition of said premises, and of the loose and careless manner in which said wheels were piled, and he did not know, nor did he have any reason to suspect, that said wheels would or were likely to fall; and he did not think or know, nor had he any reason to believe, nor did he have sufficient discretion, capacity, or intelligence to appreciate or understand, that he was exposing himself to any danger of any character in playing upon said premises or being about said wheels. That the defendant well knew that the said Homer Johnson and the said Virginia Cole, and many other little children of their age, were in the habit of playing on said premises as aforesaid; and the defendant and its employés knew well at that time that they were so playing, and knew the great danger to which they were exposed; but they took no precautions whatever to avert said danger¡ and gave no warning or notice to said plaintiff that he was in any danger.
“That said wheel, being almost as tall as plaintiff and of enoz-mous weight, fell on top of the said Homer Johnson and pinned him to the platform, where he remained unable to move until the employés of the defendant company came out and removed the wheel. Said wheel, in falling upon his body, bruised and crushed his body and limbs, causing him great physical pain and suffering. The hub of said wheel, the same being made of iron, fell on the right leg of the plaintiff below the knee, crushing and lacerating the same and tearing the flesh entirely away from the bone, leaving an ugly and dangerous wound. Said wheel, in so falling upon the plaintiff as aforesaid, so crushed and bruised and lacerated the muscles, leaders, and nerves of said limb as to leave it in a state of partial paralysis. That he has continuously suffered great pain from said wound since said time, and will continue to suffer therefrom throughout his lifetime.”

Other allegations need not be set out, as they relate only to the quantum of damages claimed, which was in amount within the jurisdiction of the court.

We think the court erred in its ruling on the general demurrer. In considering the petition against which the demurrer is urged, its allegations must he accepted as true. See rule 17 for the district and county courts (142 S. W. xviii); Robinson v. Collier, 53 Tex. Civ. App. 285, 115 S. W. 915; Whaley v. Thomason, 41 Tex. Civ. App. 405, 93 S. W. 212. So treating the petition, it undoubtedly exhibits an invitation to the plaintiff to premises upon which were negligently stored and kept dangerous machinery and substances by reason of which the child was injured. While an owner of property is not bound to so keep or handle his property as to guard against injury to a mere trespasser, ⅛ is yet true that he must exercise ordinary care in this respect to guard against injury to a person on his premises by invitation, express or implied. The law will not imply anticipation by the owner of an appearance or presence of a trespasser upon his premises, and hence he owes no duty to care for his protection, and where no duty exists negligence cannot arise. But it is otherwise as to a licensee. It is also otherwise as to one whose presence through invitation is to be expected. As to him or her, thus upon premises of another, the law imposes the duty of ordinary care on the part of the owner to so use his premises and property as to avoid injury that may be reasonably contemplated.

It is perhaps to be implied from the petition that the invitation to the child in the present case was express. But appellant admits in his brief that it cannot be so proven, and seeks to uphold the sufficiency of the petition on the theory that the machinery and other things were of such peculiar attractiveness to a child of the plaintiff’s age as to amount to an invitation on appellee’s part within the meaning of the turntable cases. In cases where the invitation is express, there seems no difficulty. An application of the principle follows proof of an expressed invitation; so, too, will the court apply the rule of care stated on proof of an implied invitation, for in this respect there can be no difference in principle between express and implied invitations. In both cases alike the rule of care stated is to be applied on proof that an invitation was in fact extended.

As indicated, however, by our Supreme Court in S. A. & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S. W. 28, the difficulty in cases where an implied invitation is relied upon is to determine just what state of facts is legally sufficient to establish the alleged implied invitation. Such conclusion is not to be drawn from the fact that the person against whom complaint is made maintains upon his premises things ordinarily in existence and use, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks’ and the like, or even, as we should perhaps add, an attractive maiden or daughter. To admit that an invitation may be implied from attractions such as these would be, as said in the case already cited, “contrary to reason, lead to vexatious and oppressive litigation, and impose upon owners such a burden of vigilance and care as to materially impair the value of property and seriously cripple the business interests of the country.” Railway v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Bep. 856; Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. See, also, M., K. & T. Ry. v. Moore, 172 S. W. 568; M., K. & T. Ry. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825. But in the same case it was further said:

“Where, however, the owner maintains upon his premises something which on account of its nature and surroundings is especially and unusually calculated to attract and does attract another, the court or jury may infer that he so intended and hence invited Him. Where one exhibits on his own land, near where children are likely to be, pictures or unusually attractive machinery, etc., he can expect no other result than that it will appeal to the known instincts of a child of immature judgment and cause him to venture thereon, just as the dog was drawn into the baited trap by the scent of meat.”

It is upon the principle so stated that the turntable cases rest. See Evansich v. G., C. & S. F. Ry., 57 Tex. 123; Ry. v. Simpson, 60 Tex. 106; Railway v. Stout (by the Supreme Court of the United States) 17 Wall. 657, 21 L. Ed. 745. These cases proceed upon the theory that turntables are of peculiar attractiveness to children, and must be so known to be by those who maintain them, and hence that places where it may be reasonably expected that children of immature age, by habit of play or otherwise, will be brought within the zone of its attractions, the turntable should be so secured or guarded as to prevent injury to a child; or rather ordinary care in this respect must be exercised by the owner if he would avoid lia- . bility. The principle of the turntable cases has been applied to other cases of similar character. Thus, in Hogan v. Bailway Co., 148 S. W. 1166, it was held by the Court of Civil Appeals for the First District that the issue of an implied invitation was raised by evidence tending to show that a machine, “something like a coffee mill,” as one or more of the witnesses described it, operated by a crank, cogs, and wheels, had been placed and left by the defendant company in an unguarded place upon a pile of lumber or railroad ties some three or four feet high, and that children, including the one injured, had been in the habit for some time of playing with and about the machine.

The case now before us, as alleged, seems equally as well brought as the case last cited. The machinery described in the petition under consideration seems of a character as well calculated to attract a playing child as a turntable, or as the machine described as a “coffee mill.” The allegations relating to an attractive little girl can certainly not be said to lessen the force of other allegations. Indeed, this added attraction, known to exist, as is alleged, while within itself doubtless insufficient to afford a basis of recovery, yet may be said to emphasize the duty of the company to exercise the proper degree of care to guard the children from, injury that might reasonably have been anticipated. So that, on the whole, as it seems to us, the questions presented in the petition were for the jury to determine as questions of fact.

We conclude that the judgment must be reversed, and the cause remanded.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes