text:
    SANITARY MFG. CO. v. GAMER.
    (No. 8767.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 26, 1918.
    Rehearing Denied March 2, 1918.)
    1. Principal and Agent @=>42 — Fact of Agency — Building Contract.
    Where a jobber handled for the manufacturer an order for water-closets of contractors to erect a schoolhouse, the' contractors were not the agents of the jobber after they had filed voluntary petition in bankruptcy.
    2. Appeal and Error @==>1058(3) — Harmless Error — Exclusion oe Evidence.
    If there was any error in excluding evidence of declarations of a claimed agent of defendant offered as res gestee, it was harmless, where the declarant himself testified as a witness to the same effect.
    3. Appeal and Error @=31058(1) — Harmless Error — Exclusion of Evidence.
    Where persons whose letters were sought to be introduced in evidence both testified in a general way to the same effect as the letters which were excluded, such exclusion of the letters, if erroneous, was harmless.
    4. Principal and Agent ⅞=1 — Fact of Agency — Building Contract.
    Neither the architect of a school building nor the superintendent of schools could be held to be the agent of a jobber, who took the order for water-closets of the contractors to build the school and handled it with the manufacturer.
    5. Appeal and Error @=736 — Assignment of Error — Multifariousness.
    An assignment of error which complains of two separate rulings of the trial court is multifarious, and will not be considered.
    6. Sales @=335©(1) — Performance — Sufficiency of Evidence.
    In an action by a manufacturer of water-closets against a jobber who handled the order of contractors to erect a school building, evidence held insufficient to show that the closets furnished the • contractors were the identical closets ordered by the jobber.
    7. Principal and Agent @=3115(2) — Bight to Bely on Agent’s Promise.
    A jobber who handled for a manufacturer of water-closets the order of contractors to erect a school building had the right to rely on the promise of the manufacturer’s agents that the same type of closets would be shipped to the contractors that the latter had agreed to take.
    8. Sales @=3363 — Issue.
    In an action by the manufacturer of water-closets against a jobber, the court properly submitted a special issue whether the jobber, at or before he ordered the goods from the manufacturer, knew that the latter had fixed a price to the customers, a firm of contractors, to erect a schoolhouse, since it was a material consideration, inuring to the jobber, that he should receive a reasonable profit on the transaction.
    9. Sales @=3363 — Question for Jury.
    In such action, the court properly submitted the issue as to whether a moving consideration to the jobber to make the order oí the manufacturer’s goods, without which he would not have handled it, was the belief that he could fix a higher price with the contractors, his customers, and thereby make a larger profit.
    10. Sales @=>124 — Duty of Buyer to Be-turn — Waiver by Seller.
    If a duty was owing by a jobber of plumbing supplies to a manufacturer of watez'-closets, on the jobber’s attempted rescission, of a contract to return the shipment of closets, or to place the same at the manufacturer’s disposal, it was waived by the manufacturer by its refusal to accept rescission.
    11. Sales @=3124t-Buyer’s Failure to Be-turn — Preclusion to Complain.
    The acts of a manufacturer of water-closets, in procuring contractors to erect a schoolhouse to use closets by furnishing special design brackets and appliances after the jobber who handled the order had rescinded, precluded the manufacturer from complaining of the jobber’s failure to return the closets.
    Appeal from District Court, Tarrant County; B. B. Young, Judge.
    Suit by the Sanitary Manufacturing Company against Charles Gamer. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Dedmon, Potter & Pinney, of Ft. Worth, for appellant. Oapps, Cantey, Hanger & Short, W. L. Evans, and David B. Trammell, all of Ft. Worth, for appellee.
   BUCK, J.

In 1911 Collins Bros, had the contract for installing the plumbing in the new high school building in the city of Tem-pie. The Sanitary Manufacturing Company of Hamilton, Ohio, through its traveling salesman, Martin Wys, called, on one of the Collins Bros., and, after investigating the specifications for the installing of toilets, submitted to said Collins Bros, certain photographs of the Hamilton Gem closets, and quoted him their prices thereon, which was 50 per cent, off the list or catalogue quotation, and secured his agreement to use the closets, the photographs of which had been exhibited to him. Thereafter Wys called on T. J. Mahoney, the local Dallas agent of Charles Gamer, the latter doing a wholesale plumbing supply business in Ft. Worth. Wys suggested to Mahoney that he (Mahoney) take the Collins Bros.’ order and handle the same, and that the Sanitary Manufacturing Company would give Gamer a discount of 50 per cent, and 8 per cent, off the catalogue price. The negotiations between Wys and Mahoney, resulted in Gamer’s agreeing to handle the transaction, and on May 10, 1911, Gamer made the following order for the goods:

“Ft. Worth, Texas, May 10, 1911.
“Sanitary Mfg'. Co., Hamilton, Ohio: Please ship to Collins Bros., Temple, Texas, articles enumez-ated below at prices named. Freight allowance. Yours truly, The Gamer Company,
“By Mummet.
“Order No. 2074. 11 Hamilton Gem closets, type F-24 No. S47, with automatic seats and weights. 19 Hamilton Gem closets, type F-18, No. S47, with automatic seats and weights. All seats plain oak finish.”

The closets were shipped October, 1911, and in the meantime the Sanitary Manufacturing Company had furnished to Collins Bros., upon request, measurements for “roughing-in” work preliminary to the installing of the closets. Upon receipt of the closets, on November 7, 1911, Collins Bros, wrote Gamer the following letter:

“Dallas, Texas, November 7, 1911.
“The Gamer Company, Ft. Worth, Texas— Gentlemen: The closets for the high school building at Temple have been received to-day, and we find from the roughing-in measurement that the factory sent us with our wall supports for the tanks, are going to come all wrong. They furnished us with a blueprint with detail exactly the manner in which the outfit should be set, and we have followed it closely. We find now that the tanks they have shipped miss our supports 7" too high for the backing strips that we placed in the plastered wall to carry the weight of these tanks. This is going to involve some expense that the factory should rightly bear. Wish you would notify them to that effect, as we propose to charge this item back to you, so that you may collect it from them. Yery truly yours, Collins Brothers, per J. B. Collins.”

By letter dated the following day, Collins Bros, complained that Gamer had charged them more than the price the Sanitary Manufacturing Company had made, stating that the latter had made them a net price of $32,-50 each, for the closets. On November 9, 1911, Collins Bros, wrote the Sanitary Mfg. Co. as follows:

“Dallas, Texas, Nov. 9, ’ll. The Sanitary Mfg. Go., Hamilton, Ohio — Gentlemen: Yesterday we were in receipt of shipment of closet outfits ordered through the Gamer Company for the Temple High School. Our man reports that there is one N. P. ball weight with stem, two 2" N. P. flush offsets, and eighteen pairs bottom brackets short. He also inclosed sketch showing the method in which he prepared the roughing-in behind the plastered walls to take care of the tank supports. We inclose you this sketch. We refer you to your sketch covering type E and type F of 18x24" wherein you show the closet screws in back of tank 15½" from center. You shipped tanks with lugs on the edge, and of course we will have to tear out all of this backing in order to get a support for the tanks. We do not care to be put to this expense and will be compelled to charge you back with same, and we ask you to send a fitting or bracket that will offer the same support instead of the one that we have arranged for. In any event express the shortage as soon as you possibly can, and advise us just what you can do in reference to these tank shortages. We are inclosing copy of this letter to the Gamer-Co. so they will be advised of our correspondence.”

On November 18th, by wire, first, then by letter, the Sanitary Manufacturing Company advised Collins Bros., that they had not been able to furnish the type of tank shown in the photographs, which had been exhibited by Wys at the time the order was made, but, owing to the necessity for prompt shipment, they had been forced to send an earlier and different pattern. In the letter, advice was given as to the most economical and efficient means of installing the fixtures received by the use of certain strips, etc. On November 15, 1911, the Gamer Company, under which name Charles Gamer was doing business, wrote the Sanitary Manufacturing Company the following letter:

“Gentlemen: We have your invoice dated October 19, 1911, covering material shipped to Collins Brothers, Temple, Texas. However, after having charged up this material, we received a letter from Collins Brothers stating that there would be a great deal of expense attached to the transaction, in view of the fact that the material did not agree with the specifications. They also advised us that you quoted them direct, and as there is absolutely no profit whatever for us in the transaction, to handle it at the price which they claim you made them, we must decline to handle this shipment, and are therefore returning you the invoice, and ask that you take the matter up direct with Collins Brothers.”

In reply to this letter, the Sanitary Manufacturing Company wrote Gamer, declining to release him from responsibility for payment, and thereupon Gamer renewed his refusal to assume any responsibility whatever in regard to the transaction, and referred the Sanitary Manufacturing Company to Collins Bros. Several letters and wires were passed between these parties, without effecting any change in the attitude of the Gamer Company. The closets were in fact installed, after the changes had been made as to the installation, which were rendered necessary by failure to ship the pattern used by Wys in securing the order. On November 20, 1911, Collins Bros, filed their voluntary petition in bankruptcy in the United States District Court at Houston. On November 22d, Collins Bros., “subject to the approval of the receiver in bankruptcy,” wrote the Sanitary Manufacturing Company, _ calling their attention to the failure to ship certain parts and attachments which were not included in the first shipment. These items were received by an employé of the receiver of Collins Bros., and later said receiver was paid in full by the school board of Temple for the closets.

In a suit by the Sanitary Manufacturing Company against Charles Gamer, judgment was sought for $887.50, which was alleged to be the list price of the 30 Hamilton Gem closets, less the 50 per cent, and 8 per cent, discount. Defendant denied liability, and pleaded that the plaintiff did not ship the goods ordered, but goods of a different kind and character, and that defendant rejected the substituted goods on their arrival and refused to accept same. He further pleaded that at the time defendant took over the order at the instance of plaintiff’s agent, Martin Wys, said plaintiff failed to inform defendant or defendant’s agent, Mahoney, that any special price had been quoted Collins Bros., but, on the contrary, stated that no price had been quoted Collins Bros. That defendant, under the custom and practice among factories and jobbing houses handling this character of goods, expected to make a profit of from 15 per cent, to 20 per cent, above the price paid the factory. That if he had known that the plaintiff had quoted Collins Bros, the price of 50 per cent, discount, he would not have accepted the order; that this fact was fraudulently concealed by plaintiff from defendant, and as soon as defendant learned thereof, he notified plaintiff that he would no longer be bound by said contract and agreement. The cause was tried on special issues, and judgment was rendered for defendant, and plaintiff has appealed.

Appellant’s first assignment complains of the exclusion of certain proffered testimony of its witness, Martin Wys, detailing a certain conversation alleged to have occurred between Wys and one of the Collins Bros. It is urged that Collins Bros, were the ap-pellee’s agent for receiving the shipment, and that any statement made by said Collins was admissible for the purpose of showing that the closets were in fact received, made satisfactory to the school board, and paid for by it. To sustain this assignment, appellant cites several authorities, including Cooper v. Britton, 74 S. W. 91, Standefer v. Aultman et al., 34 Tex. Civ. App. 160, 78 S. W. 552, both by this court, and Mechem on Agency, § 714. In the cited section, Mr. Mechem says:

“The statements, representations, and admissions of the agent, made in reference to the act which he is authorized to perform and while engaged in its performance, are binding upon the principal in the same manner and to the same extent as the agent’s-act or contract under like circumstances, and for the same reason. * * * But it is obvious from this statement of the rule that not every statement, representation, or admission which the agent may choose to make is binding upon the principal. In order to have that effect, the statement or admission must have been made: (1) In respect to a matter within the scope of his authority. The term ‘authority’ as here used has the same significance which it has in reference to the agent’s act or contract. If, therefore, the statements, representations, or admissions offered in evidence were made by one who either had no authority at all, or had no authority. to represent the principal in the matters concerning which they were made, they are not admissible against the principal. (2) So the statements, representations, or admissions must have been made in reference to the subject-matter of his agency. * * * (3) And the statements, representations, or admissions must have been made by the agent at the time of the transaction, and either while he was actually in the performance, or so soon after as to be in reality a part of the transaction. Or, to use the common expression, they must have been a part of the res gestae. If, on the other hand, they were made before the performance was undertaken, or after it was completed, or while the agent was not engaged in the performance, or after his authority had expired, they are not admissible. In such a case they amount to no more than a mere narrative of a past transaction, and do not bind the principal. The reason is that, while the agent was authorized to act or speak at the time and within the scope of his authority, he is not authorized, at a subsequent time, to narrate what he had done or how he did it.”

The portions of the deposition of J. B. Collins, to the exclusion of which this assignment is directed, were as follows:

“I have had a conversation with Mr. Collins, of the firm of Collins Bros. On the last conversation — I have had several conversations with him — he told me that the job was practically completed, and that the fixtures had been sent, and he had received the brackets and put up the fixtures' and everything was in fine working order. * * * The last conversation I had with Mr. Collins was in Dallas, and that was the latter part of February, 1912. At that time I did not know that the materials shipped were not in accordance with his specifications that had been figured. I knew there were some controversy, but I had not seen the fixtures. As far as I know, there was no difference between the goods that were ordered and those shipped; as far as I know the identical goods were received and shipped that were ordered. I had a conversation with Mr. Collins about the time the goods were received by him, and that in the latter part of November, 1911. In that conversation he told me the goods did not fit his roughing-in measurements, and that he had rougked-in for tanks with bottom lugs. I talked with Jack Collins about this controversy before I last talked with Mr. Gamer. I had not learned from him what the disnute was about, and he had not told me. Mr. Collins said he wrote in for bottom brackets, and when he put in his studs, he put them in for the bottom brackets.”

The evidence shows that Collins Bros, filed their voluntary petition in bankruptcy on November 20, 1911, and on November 22d, they wrote appellant company, “subject to the approval of the receiver,” that they had not received “the flush offsets and other parts that we wrote you about some time since.” We hardly think, under the' circumstances, that Collins Bros, should be considered as the agents of the appellee llore at the time the alleged conversation was had between one of them and the witness Wys. But even if such testimony was improperly excluded, no material error is shown, in that said Collins testified in the case and used language and stated facts to the same purport and effect as that used in the conversation with Wys, which was excluded. Said witness testified:

“It is a fact that we received these goods that have been described and installed them in the Temnle High School Building, and the trustee has been paid in full for them, and the reason for nonpayment to the Gamer Company was that our concern failed. As to the items that remained undelivered on Nov. 22, 1911, I will say that there were a number of small items, such as brackets, flush ells and ball weights that were afterwards delivered by express and received by our Mr. Walker, who was then in the employ of the receiver.”

We think no reversible error is here shown. If there was any error in excluding the declarations offered as res gest® it is harmless, since the declarant himself testified as a witness to the same effect. Railway Co. v. Cornell, 29 Tex. Civ. App. 596, 69 S. W. 980, affirmed in 97 Tex. 634, without opinion. See Railway Co. v. Lumbley, 56 Tex. Civ. App. 418, 120 S. W. 1050.

We therefore overrule appellant’s first assignment, and also the second, which presents the same character of alleged error. J. F. Kimball, superintendent of the Temple schools, and also Gus Clark, superintendent for architects, whose letters were sought to be introduced, both testified in the case, and in a general way to the same effect as were the letters from them, which were excluded. Moreover, we do not think that under any circumstance either the architect or superintendent of schools could be held the agent of appellee.

We sustain appellee’s objection to the consideration of the third assignment on the ground that the said assignment complains of two separate zmlings of the trial court, and is therefore multifarious. Moreover, independent of the question of multifariousness, we are of the opinion that no error is presented.

The fourth assignment, directed to the failure of the court to give a peremptory instruction, is overruled. We do not think the evidence sustains the appellant’s contention that the closets furnished Collins Bros, were the identical closets ordered by appel-lee. It is true that certain of appellant’s witnesses testified that the pattern or type of closets, the photographs of which were shown Collins Bros., did not differ in name or numbering or lettering from the pattern which was in fact shipped, but it is found in evidence that the ones shipped differed in style, and in respect to shape and place of the lugs and attachments, etc., from the ones the photographs of which were shown Collins Bros., and which constituted the sub-jedt-matter of the contract between appellee and appellant. The fact that the appellant company had two .different types of closets described in the same way would not make said two types the same closets. Appellee had the right to rely on the promise of appellant’s agents that the same type of closets would be shipped to Collins Bros., which the latter had agreed to take. Appellant in its letters, and in the testimony of its witnesses, acknowledged that there was a difference in said two types, and Collins Bros., declined to accept from appellee the shipment, as a full compliance of the contract, on the ground that the pattern shipped was different from that ordered, and required extra expense to install.

We also overrule appellant’s fifth and sixth assignments, directed to the submission of certain issues, because, as we believe, the contention of appellant that the patterns sold and' thus shipped were identical is not sustained by tbe record.

We are further of the opinion that the court did not commit error in submitting special issue 3a, to wit:

“Did Charles Gamer, at or prior to the time he ordered the goods in question from the plaintiff company, know that the plaintiff had fixed a price to Collins Bros, on said goods?”

Certainly it, was a material consideration, inuring to appellee, that he should receive a reasonable profit on the transaction. Appel-lee’s testimony was to the effect that appellant’s salesman Wys expressly denied having quoted a price to Collins Bros., that it was the custom for the manufacturer to give the jobber a copy of the quotation which he had made to the jobber’s customer, and that it was not the custom for the manufacturer to quote the jobber and then quote the customer without the jobber’s knowledge; that where the manufacturer does not advise the jobber that the customer has been quoted, the jobber can rely on the fact that no quotation to the customer has been made; that in agreeing to handle the transaction, appellee relied on the custom to the effect that Collins had not been quoted, and that if he had known that Collins had been quoted a price at 50 per cent, discount on the list price, he would not have handled the transaction at all; that he could not make any profit out of the transaction at the difference between the discount to him, the appellee, and the discount to Collins Bros.

This defense was specially pleaded by defendant, and we are of the opinion that it was properly so, and that the evidence made it a question for the jury. We are further of the opinion that the court committed no error in submitting to the jury the issue as to whether one of the moving considerations to appellee to make the order of appellant’s goods, and without which he would not have handled same, was the belief that he would he able to fix a higher price for said goods with Collins Bros, and thereby make a larger profit for himself. Therefore we overrule appellant’s seventh and eighth assignments, and also the ninth, which complains of the submission of the issue of whether or not appellee, immediately upon learning that the price of the goods in question had been made by plaintiff to Collins Bros, rescinded the contract with appellant by notifying it that he would no longer he held by same. If a duty was owing by appellee to appellant, upon the former’s attempted rescission of the contract, to return the shipment, or to place the same at appellant’s disposal, it was waived by appella'nt by its refusal to accept such attempted rescission. Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414; 2 Black on Rescission and Cancellation, § 623, p. 1438. In the section referred to, Mr. Black says:

“Thus, where a seller clearly declares to a buyer his intention to insist on the sufficiency of a machine sold to him, and refuses to accept its return in any way, the buyer need not, pursuant to the contract, return it to the place where it was received, as a condition precedent to his right to rescind for breach of warranty. Such a refusal to accept a return of the property may be made out from any act or declaration which demonstrates that a formal offer to return it would be fruitless.”

We think, moreover, appellant’s acts in procuring Collins Bros, to use the goods by furnishing special designed brackets and appliances, after appellee had rescinded, precludes it from complaining of a failure to return. Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Plotner & Stoddard v. Markham Warehouse & Elevator Co., 122 S. W. 443; Merrifield v. McClay, 72 Or. 90, 142 Pac. 587; Strauss v. Fur. Co., 76 Miss. 343, 24 South. 703.

All assignments are overruled and the judgment is affirmed.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <®=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    CLAY et al. v. ATCHISON, T. & S. F. RY. CO.
    (No. 803.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1918.
    Rehearing Denied March 14, 1918.)
    1. Statutes <®=>1 — Penal Statutes — Extraterritorial Effect.
    Penal statutes authorizing recovery of a penalty imposed at the suit of a private individual have no extraterritorial effect, and cannot be made the basis of a suit in another state.
    2. Death <§==>34 — Statutes—Enforcement in Other State. .
    Despite Acts 35th Leg. c. 156, as to the situs of suits based on tofts committed in foreign states and countries, a widow could not sue a railroad in Texas for death of her husband in a crossing collision in New Mexico, under Code N. M. 1915, § 1820, providing that whenever any person shall die from any injury occasioned by the negligence of any servant while managing a train, etc., the employer shall forfeit and pay the sum of $5,000, which may be sued and recovered by the husband or wife of deceased, since the recoverable sum is allowed as a penalty, and the Texas statute does not apply to causes of action arising in other states under statute awarding a penalty rather than damages.
    3. Courts <§=95(2) — Foreign Statute — Construction.
    The Court of Civil Appeals of Texas is not at liberty to place an interpretation upon the laws of New Mexico different from that adopted by the courts of that state.
    4. Railroads <§=>229 — Employer’s Liability — Railroads — Constitution oe New Mexico.
    New Mexico Const, art. 20', § 16, and article 22, § 2, providing that it shall be unlawful for any railroad corporation knowingly and willfully to use and operate any defective car or locomotive, and that the railroad shall be liable to any employé injured through defect in any car, locomotive, or attachments, etc., relate exclusively to employés of railroads, and have no application in the case of other persons injured or killed' through the negligence of a railroad.
    5. Statutes <S=»158-7Repeals by Implication.
    Repeals by implication are not favored.
    6. Courts <⅜=>95(2) — Repeal—Carrying Forward oe Section — Holding oe Court.
    Where the Legislature of another state has carried forward in every compilation of laws since its original enactment a section of an act, and subsequent acts relied on as repealing it were all in force and before the Supreme Court of the other state when it decided a case against repeal, the section is still in force.
    7. Death <§=>11 — Death by Wrongful Act.
    At common law, no action would lie for an injury resulting in death, and the Legislature of a state could grant by statute or withhold any right of action.
    8. Constitutional Law <§=>208(6) — Unjust Discrimination — Imposition oe Differing Liabilities for Death Negligently Caused.
    The Legislature of a state, without unjustly discriminating against any of the parties affected, could impose on railroads a penalty in a fixed sum in 'cases of persons negligently killed who were not employés, which sum should be.recoverable, regardless of the amount of damages actually sustained, and, as to employés, give a right. of action for damages actually sustained, and make persons and corporations other than those operating a railroad liable for all damages actually sustained by reason of a negligent killing.
    Appeal from District Court, El Paso County; Ballard Coldwell, J.udge.
    Suit by Mrs. L. H. Clay, wherein John L. Dyer, administrator and personal representative of the estate of L. H. Clay, deceased, intervened against the Atchison, Topeka <& Santa Fé Railway Company. From judgments of dismissal, plaintiff and intervener appeal.
    Affirmed.
    Jno. L. Dyer and Geo. E. Wallace, both of El Paso, for appellants. Terry, Cavin & Mills, of Galveston, and Turney, Culwell, Holliday & Pollard, of El Paso, for appellee.

      Vernon’s Ann. Civ. St, Supp. 1918, art. 7730½.

   Statement of Case.

HIGGINS, J.

L. H. Clay was killed November 22, 1915,- in New'Mexico by a collision with a locomotive of appellee at a railroad crossing. He was not an employe. Mrs. Clay, Ms widow, brought this suit in the district court of El Paso county, Tex., to recover $5,000 damages alleging that her husband’s death was caused by the negligence of appellee’s employe operating the locomotive. Thereafter John L. Dyer, administrator and personal representative of the estate of the decedent, intervened and sought to recover damages in the sum of $30,000, on account of the death of Clay. He also alleged negligence on the part of defendant and its employes operating the locomotive which struck the deceased. Exceptions were sustained to both petitions, and on April 13,1917, the suits were dismissed. The laws of .New Mexico upon which the plaintiff and intervener base their cause of action are set up in their petitions. The plaintiff based her suit upon section 1820 of the 1915 codification of the laws of New Mexico. This was originally section 1 of a law of the territorial Legislature enacted in 1882 (Laws 1882, c. 61). This law reads:

“Section 1. Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant or employs, whilst running, conducting or managing any locomotive ear, or train of cars, or of any driver, or of any stagecoach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stagecoach, or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employs, engineer or driver shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stagecoach or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars ($5,000.00), which may be sued and recovered: First, by the husband or wife of the deceased: or second, if there he no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit,. and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivoi’. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not a negligent defect or insufficiency.
“Sec. 2. Whenever the death of the person shall be caused by a wrongful act, neglect or default of another, and the act or neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.
“Sec. 3. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 1 of this act, and in every such action the jury may give such damages, not exceeding five thousand dollars ($5,-000.00), as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue, and also having regard for the mitigating or aggravating circumstances attending such wrongful act, neglect or default.”'

Tire petition of the intervener showed the enactment of this law, and that the first, second, and third sections thereof became sections 230S,' 2309, and 2310, respectively, of the Compiled Laws of 1884. Intervener’s petition shows additional legislation and constitutional provisions, as follows: In 1891 the Legislature enacted this law:

“.Section 1. Section 2309 of the Compiled Laws of New Mexico of 1884 be and the same is so amended as to read as follows, viz.:
“ ‘Sec. 2309. Whenever the death of a persoi; shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act or neglect or default is such as would, if death had not ensued, have entitled the party injured to-maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death 'of the person injured.’
“Sec. 2. Section 2310 of the Compiled Laws-of New Mexico of 1884 he and the same is hereby amended so as to read as follows, viz.:
“ ‘Sec. 2310. Every such action as mentioned in the next preceding section shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall' not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be-distributed as follows: First. If there be a surviving husband or wife, and no child, then to-such husband or wife; if there be a surviving husband or wife and a child or children or -grand-children, then equally to each, the grandchild or grand-children taking by right of representation ; if there be no husband or wife,, but a child or children, or grand-child or grandchildren, then to such child or children and grand-child or grand-children by right of representation ; if there be no child or grand-child,, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.’
“Sec. 3. All acts and parts of acts in conflict with this act are hereby repealed, and this act shall take effect and be in force from and after its passage.” Laws 1891, c. 49.

In the compilation of the laws made in 1897, section 1 of the act of 1882 became section 3213, and the second and third sections, as amended in 1S91, became sections 3214 and 3215, respectively. In 1915 the laws of New-Mexico were again codified, and in this compilation sections 3213, 3214, and 3215 of the previous codification became sections 1820, 1821, and 1823, respectively. The only changes in the last codification are minor ones as to verbiage, and in no material way do they affect the meaning. In 1893 the Legislature enacted a law of which section 5 became section 1824 of the 1915 compilation. The same reads:

“Sec. 1824. Railroad’s Defective Equipment— Duty of Employés. Sec. 5. It shall be unlawful for any railroad corporation knowingly and willfully to use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective, or shops or machinery and attachments thereof which are in any manner defective, which defects might have been previously ascertained by ordinary care and diligence by said corporation.
“If the employé of any such corporation shall receive any injury by reason of such defect in any car or locomotive or machinery or attachments thereto belonging, or shops or machinery and attachments thereof, owned and operated, or being run and operated by such corporation, through no fault of his own, such corporation shall be liable for such injury, and upon proof of the same in an action brought by such em-ployé or his legal representatives in any court of proper jurisdiction, against such railroad corporation for damages on account of such injury so received, shall be entitled to recover against such corporation any sum commensurate with the injuries sustained: Provided, that it shall be the duty of all the employés of railroad corporations to promptly report all defects coming to their knowledge in any such car or locomotive or shops or machinery and attachments thereof to the proper officer or agent of such corporation and after such report the doctrine of contributory negligence shall not apply to such employé.”

Section 16, article 20, of the Mexico Constitution reads:

“Every person, receiver or corporation owning or operating a railroad within this state shall be liable in damages for injury to, or the death of, any person in its employ, resulting from the negligence, in whole or in part, of said owner or operator or of any of the officers, agents or •employés thereof, or by reason of any defect or insufficiency, due to its negligence, in whole or in part, in its cars, engines, appliances, machinery, track, roadbed, works or other equipment. An action for negligently causing the death of an employé as above provided shall be maintained by the executor- or administrator for the benefit of the employé’s surviving widow or husband and children; or if none, then his parents; or if none, then the next of kin dependent upon said deceased.
“The amount recovered may be distributed as provided by law. Any contract or agreement made in advance of such inquiry with any em-ployé waiving or limiting any right to recover such damages shall be void.”

Section 2 of article 22 of the Constitution reads:

“Until otherwise provided by law, the act of Congress of the United States, entitled ‘An act relating to liability of common carriers by railroad to their employés in certain cases,’ approved April twenty-second nineteen hundred and eight, and all acts amendatory thereof, shall be and remain in force in this state to the same extent that they have been in force in the Territory of New Mexico.”

In 1893 the Legislature enacted chapter 28, which has been carried forward in all subsequent compilations of the laws and is now in force. This chapter reads:

“An Act for the Protection and Relief of Railroad Employés, and for Other Purposes, S. C. B. 28; Approved February 17, 1893.”
Contents.
“Section 1. Railroads liable to employés for damages to the person in certain contingencies.
“Sec. 2. Unlawful to use defective locomotives, cars and machinery. Employe injured in consequence, railroad hable: Provided.
“Sec. 3. Actions brought under section 2310 of Compiled Laws as amended in 1891.
“Be it enacted by the Legislative Assembly of the territory of New Mexico:
“Section 1. Every corporation operating a railway in this territory shall be liable in a sum sufficient to compensate such employé for all damages sustained by any employé of such corporation, the person injured or damaged being without fault on his' or her part, occurring or sustained in consequence of any mismanagement, carelessness, neglect, default or wrongful act of any agent or employé of such corporation, while in the exercise of their several duties, when such mismanagement, carelessness, neglect, default, or wrongful act of such em-ployé or agent could have been avoided by such corpoi'ation through the exercise of reasonable care or diligence in the selection of competent employés, or agents, or by not over-working said employés or requiring or allowing them to work an unusual or unreasonable number of hours; and any contract restricting such liability shall be deemed to be contrary to the public policy of this territory and therefore void.
“Sec. 2. It shall be unlawful for any such corporation knowingly and willfully to use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective, or shops or machinery and attachments thereof which are in any manner defective, which defects might have been previously ascertained by ordinary care and diligence by said corporation.
“If the employé of any such corporation shall receive any injury by reason of such defect in any car or locomotive or machinery or attachments thereto belonging, or shops or machinery and attachments' thereof, owned and operated, or being run and operated by such corporation, through no fault of his own, such corporation shall be liable for such injury, and upon proof of the same in an action brought by such em-ployé or his legal representatives, in any court of proper jurisdiction, against such railroad corporation for damages on account of such injuries so received, shall be entitled to recover against such corporation any sum commensurate with the injuries sustained: Provided, that it shall be the duty of all the employés of railroad corporations to promptly report all defects coming to their knowledge in any such car or locomotive or shops or machinery and attachments thereof to the proper officer or agent of such corporation and after such report the doctrine of contributory negligence shall not apply to such employé.
“Sec. 3. Whenever the death of an employé shall be caused under circumstances from which a cause of action would have accrued under the provisions of the two preceding sections, if death had not ensued, an action therefor shall be brought in the manner provided by section 2310 of the Compiled Laws of New Mexico, as amended by chapter XLIX of the Session Laws of 1891 of New Mexico, and any sum recovered therein shall be subject to all of the provisions of said section 2310 as so amended.”

The intervener’s petition avers that the foregoing are all of the statutory and constitutional provisions of New Mexico pertaining to injuries resulting in death. The petition then sets out the “repealing and saving clauses of the codification of 1915.” If any portions thereof could have any possible pertinency, it is the following:

“The provisions of the foregoing sections taken or adopted from existing statutes, shall be construed as continuations thereof, and not as new enactments. * * *
“All acts and parts of acts of a general and permanent nature, not contained in this codification, are hereby repealed, but this act shall not revive any act or portion of an act repealed by them.”
Code 1915, p. 1665.

Opinion.

The question which first arises in determining the sufficiency of Mrs. Clay’s petition is as to the nature of section 1820 of the codificatioh of 1915 upon which she predicates her cause of action. Penal statutes, authorizing a recovery of the penalty imposed at the suit of a private individual, have no extraterritorial effect, and cannot be made the basis of a suit in another state. Adams v. Railway Co., 67 Vt. 76, 30 Atl. 687, 48 Am. St. Hep. 800. This is a well-settled principle of law. This very statute has been considered by the courts of Kansas, held to be penal, and recovery denied thereunder in a suit brought in Kansas. Dale v. Railway Co., 57 Kan. 601, 47 Pac. 521. A statute of Missouri precisely the same in every material respect was held to be penal by the St. Louis Court of Appeals. It is so considered by Associate Justice Hawkins of the Supreme Court of Texas. See opinion rendered by him on refusing writ of error in Railway Co. v. La Londe, 184 S. W. 498. See, also, Eakin v. Scott, 70 Tex. 445, 7 S. W. 777; Adams v. Railway Co. supra. The language of section 1820 clearly discloses that the recoverable sum- is allowed as a penalty, and that it is not a compensatory statute. Upon this view it follows that the court did not err in sustaining the exception to Mrs. Olay’s petition. In this connection it is urged that chapter 156, Acts 35th Legislature of Texas, authorizes the maintenance of a suit in this state upon a cause of action arising in New Mexico under the section. This act of our Legislature was not in effect at the time the exceptions were presented and the judgment rendered in the court below. Furthermore, it relates to causes of action arising in other states and countries under statutes awarding damages compensatory in their nature. We do not construe this act as applying to causes of action arising in other states, under statutes of those states awarding a sum of money as a penalty, rather than as compensatory damages.

Passing now to the sufficiency of inter-vener’s petition, it appears that in 1903 the Supreme Court of New Mexico in a suit by the administrator of the estate of Juan Leyba, deceased, against the appellee herein (Leyba not being an employé), held that section 1 of the act of 1882 was applicable in such cases. Romero v. Railway Co., 11 N. M. 679, 72 Pac. 37. It seems to this court that this holding was correct. But, if we were inclined to dissent therefrom, we would not feel at liberty to place a different interpretation upon the laws of New Mexico from that adopted by the courts thereof.

Intervener asserts that section 1 of the original act has been repealed by the constitutional provisions copied above, citing in support of this contention Railway Co. v. La Londe, 173 S. W. 890. These constitutional provisions relate exclusively to employés, and have no application in the case of other persons injured or killed through the negligence of a railroad. In the La Londe Case, it was stated that section 3213 (section 1, Act of 1882) was repealed by section 16, article 20, of the Constitution. But in that case La Londe was an employé, and the statement indicated was made upon that state of facts. There is no conflict between section 1 of the act of 1882 and the constitutional provisions pleaded by intervener, except as to employés, and the former was not repealed by the latter, except as to employés.

Intervener further contends that said section 1 was repealed by the subsequent statutory provisions quoted. There is no direct repealing statute, and if a repeal has been effected, it is by implication. Such repeals are not favored. There is no irreconcilable or unavoidable repugnancy between the various acts except as to employes. The Legislature of New Mexico does not consider that section 1 of the act of 1882 has been repealed in toto, for it has been carried forward in every compilation of laws since its original enactment. The acts relied upon by intervener were all in force and before the Supreme Court of New Mexico when the Romero Case was decided. That court held as indicated above. So we do not see how it can be successfully asserted that section 1 of the original act is not still in effect and the governing statute in the present case.

There is no merit in the remaining contention of intervener, as set forth in this proposition:

“There is a presumption in favor of the constitutionality of a statute and when a statute is susceptible of two constructions, one of which supports it and gives it effect and the other renders it unconstitutional and void, the former will be adopted even though the latter may be the most natural interpretation of the language used. Sections 1821 and 1823 of the codification of the laws 'of New Mexico of 1915, can only be held constitutional and not viola-tive of the federal Constitution as denying the equal protection of the laws, by treating and regarding section 1820 of the codification of the Laws of New Mexico of 1915, and section 1 of the act of 1882, as abrogated, void and repealed; otherwise, said sections 1821 and 1823 would not be within the scope of the Fourteenth Amendment to the Constitution of the United States, because it imposes upon natural persons and all corporations other than carriers a more onerous liability than it imposed upon carriers and is not supported by any just classification in relation to acts in respect to which the classification is proposed, and would be_ arbitrary and without any reasonable basis for classification.”

At common law, no action would lie for an injury resulting in death. The action rests upon statutory provision. The policy of a state in this respect is vested in its Legislature. It was competent for that body, if it saw fit, to withhold any right of action. If it saw fit, it could impose upon railroads a penalty in a fixed sum in cases of persons negligently killed who were not employes, which sum would be recoverable, regardless of the amount of damages actually sustained, and as to employes give a right of action for damages actually sustained; also to make persons and corporations other than those operating a railroad liable for all damages actually sustained by reason of a negligent killing. We are not prepared tosay that such legislation would be unjust discrimination against any of the parties affected. If it is, it would be difficult to say against whom the discrimination exists. It would not seem to be cause for complaint upon the part of those in whose favor the right of action is given. They cannot complain because they are entitled only to the benefits in this respect which the Legislature seems fit to confer. If any one can complain of an unjust discrimination, it is those against whom the different liabilities are imposed. We therefore regard section 1820 of the 1915 compilation as being the one under which the only right of action accrued for the killing of L. H. Olay.

It therefore follows that the exceptions to the intervener’s petition were properly sustained: (1) Eor the same reason which precludes Mrs. Olay from recovery in Texas. (2) Because under section 1820 the right of action is in favor of the next of kin, and the administrator is not authorized to maintain the suit. Romero Case, supra.

Affirmed.
      <gz^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    SOUTHERN PAC. CO. v. STEPHENS.
    (No. 809.)
    (Court of Civil Appeals of Texas. El Paso.
    March 1, 1918.
    Rehearing Denied March 21, 1918.)
    1. Appeal and Error '⅜=>1050(1> — Review— PIakmless Error.
    The admission of opinion evidence on behalf of plaintiff was harmless, where later witnesses without objection similarly testified.
    2. Appeal and Error @=>690(6) — Opinion Evidence — Knowledge of Witness.
    A bill of exceptions which did not affirmatively show that a witness giving opinion evidence was examined as to whether ho was sufficiently informed upon the matters to express an opinion is insufficient to show error in the admission of that testimony, for the trial judge might have satisfied himself that the witness was qualified.
    3. Trial @=>89 — Opinion Evidence — Exclusion.
    Where a witness by his own admissions on the stand shows that he is not informed as to a matter concerning which he gave opinion testimony, such testimony should be stricken.
    4. Commerce @=>27(2) — Interstate Commerce — What Constitutes.
    A railroad company in breaking up interstate trains at a junction point within the state to facilitate delivery of shipments to other points within the state is engaged in interstate commerce, notwithstanding the interstate cars were to be delivered within the state, or at the terminal where the trains were broken up.
    5. Commerce @=>27 (5) — Interstate Commerce —Actions—Evidence.
    In an action by railroad employe who suffered injuries in California, evidence held, to show that at the time he received his injuries he was engaged in interstate commerce, and so his cause of action fell within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat 65 [U. S. Comp. St. 1916, §§ 8657-8665]), instead of the California Workmen’s Compensation Insurance and Safety Act (St. 1913, p. 279).
    6. Master and Servant @=>265(1) — Interstate Commerce — Actions — Burden of Proof.
    Where a railroad employe who received injuries while engaged in switching gave notice to the company to furnish the record showing the nature of the service in which the cars being switched at the time of the accident were engaged, the company has the burden, the employe having made out a prima facie case of injuries occurring while he was engaged in interstate commerce service, of showing that the injuries did not so occur.
    7. Trial @=>266 — Instructions—Propriety.
    Where the question of assumed risk was submitted by a special charge, the fact that a paragraph of the general charge required the jury to find for plaintiff, unless they should find for defendant upon some other paragraph of that charge, does not necessitate a reversal, although it is preferable practice to incorporate such special charges within the general one.
    Appeal from District Court, El Paso County; W. B. Ware, Special Judge.
    Action by James S. Stephens against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. I. Gilbert, of Los Angeles, Cal., and Beall, Kemp & Nagle, of El Paso, for appellant. P. E. Gardner, Geo. E. Wallace, and W. S. Berkshire, all of El Paso, for appellee.
   HARPER, C. J.

This suit was instituted by James S. Stephens against the Southern Pacific Company for damages for personal injuries. Eor cause of action he alleged:

“That while assisting in switching a string of cars then being made up into trains he was upon top of certain cars riding them to their destination, when without notice or warning the defendant’s employés negligently kicked another string of cars down the same track at an excessive and dangerous rate of speed, which struck the cars upon which plaintiff was riding with such force and violence as to cause him to fall to the ground and injured him; second, that defendant failed to maintain on such cut of cars a switchman or rider to control their movements; and third, if a switchman or rider was in fact on said cut of cars, he was guilty of negligence in not controlling their movement by use of the brake.”

Defendant answered that the court was without jurisdiction, because if plaintiff was injured as alleged by him, he was in tlie employment of defendant company in the state of California and not in Texas, and while engaged in intrastate commerce, therefore, his rights are controlled by the laws of California, or laws of the United States, and that at that time there was in force in California the Workmen’s Compensation Insurance and Safety Act (St. 1013, p. 279), under which act the Industrial Accident Commission has exclusive jurisdiction, and pleaded the various sections of the act. Plaintiff replied that the act was not applicable because he was engaged in interstate commerce, in that the cars he was engaged in switching were being mov.ed in interstate commerce; therefore the liability is governed by the federal Employers’ Liability Act. Submitted to a jury, and verdict and judgment rendered for $6,000", from which this appeal.

By assignments 1 to 6, inclusive, and by its twelfth, it is urged that the trial court •should have given a peremptory instruction for the defendant. The propositions are in various forms, but in substance they assert that the uncontroverted evidence shows that the accident occurred in California while the plaintiff was engaged in the service of the defendant as a switchman, and that at the time of the accident the cars upon which he was riding were being switched in intrastate commerce; therefore the Industrial Accident Board of said state had exclusive jurisdiction.

The evidence as to this point is largely, if not wholly, circumstantial, and since by a number of assignments appellant charges reversible error in admitting testimony, in the interest of time and space, we will discuss them together. The thirteenth to eighteenth assignments charge that it was error to permit plaintiff to testify over defendant's objections that the “bull ring” where the accident occurred in the yards of Los Angeles was used in interstate commerce, in that it was used to break up trains coming in from other states; in admitting evidence that there was a car of Ford automobiles in the string of ears being broken up and in the “bull ring”; in admitting evidence that there was a ear of granite in the train, and that California did not produce any such granite; that a car of machinery was in the string, and that California had no factory for such machinery; that there was a car of coal in the string, and that California had no coal mines, etc., because such testimony was irrelevant, immaterial, speculative; that it was a conclusion of the witness which he was not shown qualified to give, and that such matters did not tend to prove that plaintiff was injured while engaged in interstate commerce, etc.

As to the testimony concerning the use to which the “bull ring” was devoted, the defendant’s witness, Williams, engine foreman at the time of the accident, testified that it was used for switching trains that come in from New Mexico and Arizona. Jones, terminal trainmaster of defendant, testified that the “bull ring” was used to break up through trains coming from El Paso, and that all freight shipped out. of California from that point go through the “bull ring,” and the latter two witnesses testified without objection. So, if it be true, that the witness simply expressed an opinion which he was not qualified to express, the same fact appears 'in the record, and is not controverted. Norton v. Lea, 170 S. W. 267.

As to the other matters enumerated, we think there was no error because the bill of exceptions does not show that the witness was examined as to whether he was sufficiently informed upon the matters to enable him to express an opinion, and it may be that the trial court satisfied himself that he was. Hanover Fire Ins. Co. v. Huff, 175 S. W. 465. If the witness by his own admissions on the stand shows that he knows nothing about the matter about which he testifies, it is proper to exclude his testimony upon objections. G., H. & S. A. Ry. Co. v. Worth, 53 Tex. Civ. App. 351, 116 S. W. 365. But we do not think the record affirmatively discloses the latter to be the case in this instance. Besides, the specific reasons for the objections are more properly addressed to the weight to be given to the testimony than to its admissibility. In this connection we will dispose of the seventh, eighth, and ninth assignments, which urge that .the court erred in charging the jury that:

“When cars are transported by a railway company from one state into another, and until such time as said ears are delivered to the consignee, such cars are in course of transportation in what is known as interstate commerce, as that term is used in this charge; and where an employe of a railway company is engaged in assisting in moving or switching a string of cars, and there are one or more cars composing said string’ then being moved or switched which have been hauled into the state from a point outside of the state, and such cars have not been delivered to the consignee, then such employe while thus engaged in moving or switching such string of cars is in interstate commerce, as that term is used in this charge.”

For if the witness’ testimony was admissible, it was because it was concerning matters of fact constituting circumstances which tended to prove that the train which was being broken up by this man, as a switchman, was composed of cars then being used, or being prepared for use, in transporting articles of merchandise into or out of the state of California, or for delivery to consignees. The propositions under these assignments are to the effect that they are based upon an erroneous definition of interstate commerce, in that they charge that:

“If a train of cars being switched contains one or more, which have been hauled into the state from points outside of the state, and such had not been delivered to the consignee, then such employe while thus engaged in switching is engaged in interstate commerce,” no matter how long such car or cars had been in the yards.

The facts are sufficient, we think, to bring plaintiff’s case within the holding in Railway Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1134, Ann. Cas. 1914C, 156. That whilst the defendant company’s road at Los Angeles was engaged in handling both interstate and intrastate commerce, that in this particular part of the yards known as the “bull ring” both classes of freight were handled, but in so handling it—

“it was necessary that trains be broken up and the cars taken to appropriate tracks for making up outgoing trains as well as distributing cars containing interstate freight to its local destination, and that the interstate transportation was not ended merely because that yard was the terminal for that train, nor even because the cars were not going to points beyond.”

There is no evidence, it is true, as to the time any of the cars being switched had been in the yards, nor is there direct testimony as to how many cars bearing interstate commerce were in the train being broken up, but all the facts and circumstances in evidence, considered as a whole, are sufficient to justify the charges complained of and to support the verdict.

The defendant was given notice to furnish the record showing the nature of the service in which the cars-being switched, at the time of the accident, were engaged, and it failed to do so. It had the facts within its possession which would establish that none of the cars were used for interstate business, and that all were in intrastate service. So, plaintiff having made’a prima facie ease, it then devolved upon defendant to produce its evidence to the contrary, if it had any, which it has not done. Railway v. Glinn, 219 Fed. 148, 135 C. C. A. 46; Pullman Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 625. “The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged.” Railway Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1052, Ann. Cas. 1914C, 163. In this case we think the evidence justified the charge given, and sufficient to sustain the verdict of the jury.

The 10-11th assignments assail the eighth paragraph of the court’s general charge upon several grounds, allot which are passed on by observations above, except that it is urged that it excluded from the consideration of the jury the question of assumed risk submitted by a special charge, because it required the jury to find for plaintiff, unless they found for defendant under some other paragraph of this charge. It is not likely that the jury were, by this language, caused to overlook the special charge given, for, we take it, it was read to them at the same time the general charge was read, and they must have understood that it was in fact a part of the general charge. The better practice is to mark such special charges “given and made a part of the general charge.” But we do not find any such error as to call for a re-ver-sal of the case because of the matter complained of.

The nineteenth and twentieth urge that there is no evidence to support the judgment, that it is against the weight, etc., of the evidence, and .that the verdict is excessive.

Without further comment upon the evidence, we think it sufficient to support both the liability and the amount of the verdict and judgment. The assignments are overruled, and cause affirmed.
      i£=For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    McDANIEL v. CAGE & CROW.
    (No. 8769.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 12, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. Guaranty <®=>16(1) — Consideration.
    The extension of a note, or the release of security, is sufficient consideration for written guaranty of the note.
    2. Guaranty <®=»92(1) — Action — Question por Court — Consideration.
    In action on written guaranty of a note, where the evidence as to valuable consideration for the guaranty by extension of the note was in the main undisputed, the issue of consideration was one of law for the court.
    3. Guaranty @=>17 — Failure op Consideration.
    Where, in'consideration of written guaranty of note of guarantor’s deceased brother, the note-holder extended the note and waived a lien on deceased’s horses under the mortgage securing the note, which horses the guarantor’s son was to use in hauling to secure funds to pay the note, the consideration for the guaranty did not fail because the deceased brother’s administrator took possession of the horses.
    4. Attachment <§=>154^-Writ — Amendment.
    The rule allowing amendment of writs of attachment to remedy clerical errors does not permit correction of a clerical error in reciting in the writ an amount in excess not only of the amount recited in the affidavit, but also in excess of the jurisdiction of the court, for the amount recited in the writ is a jurisdictional allegation, and, if in excess of jurisdiction, renders the writ 'void, not only as to the excess, but in toto, and therefore incapable of amendment.
    ■ Appeal from Erath County Court; W. E. Bower, Judge.
    Suit by Cage & Crow against W. O. McDaniel. From judgment for plaintiff, defendant-appeals.
    Reformed and affirmed.
    G. O. Bateman, of Dublin, and R. L. Thompson, of Austin, for appellant. J. A. Johnson and P. L. Pittman, both of Stephen-ville, for appellee.
   BUCK, J.

This suit was brought by ap-pellees, a banking partnership, against appellant on the following guaranty:

“Cage & Crow, Bankers, Stephenville, Texas —Gentlemen: You are the owners of a certain note for $107.50, dated December 27, 1913, due October 1, 1914, signed by H. L. McDaniel and payable to the order of-⅛ together with interest from date, and for and in consideration of the extension of said note by you as agreed upon, which is to be paid by my son out of his wages for cotton seed hauling, and in such consideration I hereby guarantee you the payment of said note in full on January 1, 1915, or any balance that might be due on same at that time. Witness my hand at .Stephenville, Texas, this the 4th day of October, 1914. W. O. McDaniel. Witness: W. S. Watson.”

The evidence discloses that H. L. McDaniel, maker of the original note, was the brother of appellant, and that prior to the maturity of said original note and before the execution of the above guaranty, said H. L. McDaniel died. The original note was given to one B-. L. Hale for the purchase price, in part, of two horses and a wagon, and a mortgage to secure the note was given on said property and one bale of cotton. Subsequent to H. L. McDaniel’s death, his widow, appellant, and appellant’s son Gus, a minor-, agreed among themselves that the widow should sell and turn over to the son of appellant the horses covered by the mortgage, and that W. O. McDaniel and his son should assume the payment of the note to the bank, appellees here. The son should use the horses in hauling, and thereby earn money with -which to pay the note. After the execution of the guaranty by appellant, the administrator of the estate of H. L. McDaniel took possession, of the team, and they were sold. Appellees sued out a writ of attachment in the justice court, where this suit originated, •and under the writ the officer levied an attachment on five certain mules of the stated value of $425 as the property of appellant. One Chas. McLaren, the son-in-law of appellant, filed his claimant’s affidavit and bond, with W. H. Frey and John W. Frey as sureties, and recovered possession of three of the mules theretofore levied upon, and appellant replevied the other two.

The trial court instructed a verdict for plaintiff, and from a judgment in favor of plaintiff in the sum of $156.25, decreeing a foreclosure of the attachment lien as to three of the mules, the court finding that the other two were exempt property, the defendant has appealed.

We do not think there is any merit in the contention set forth in the first assignment that the trial court should have instructed a verdict for defendant on the ground that the evidence showed that the written guaranty sued on was executed by the defendant without any legal consideration therefor, or the contention made under the second assignment, to the effect that a peremptory instruction should have been given, because the undisputed evidence showed .the consideration, if any, had failed prior to the filing of the suit. Appellant cites no authorities under either of these assignments to sustain them, nor in fact, is any authority cited under any of appellant’s five assignments. The extension of a note, or the release of security, would be sufficient consideration in law. Bishop on Contracts (2d Ed.) § 38, and authorities thereunder; Rose et al. v. Railroad Co., 31 Tex. 49; James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743. Therefore we overrule assignments 1 and 2, and also 3, which urges that it was a question of fact for the jury as to whether the instrument sued on was supported by a valuable consideration. The evidence on this phase of the case being in the main undisputed, the issue became one of law for the court. The appellant testified:

“tie [meaning Gus, the son of appellant] kept the horses and handled and hauled with them until they took them. I stated here to the jury that I thought it would be all right for him to have the horses. I didn’t have any use for them, but I thought it would relieve the woman [meaning the widow of H. L. McDaniel]. Yes, sir; it would have been a benefit to me to have relieved the woman. I told you that I signed the agreement at the time I did sign it in order to get an extension of the time on the note.”

For the reasons given, we also overrule appellant’s fifth assignment, which urges that it was a question of fact for the jury as to whether the consideration for the execution of the instrument of guaranty had failed in whole or in part. The fact that subsequent to the execution of the written guaranty the administrator of the estate of H. L. McDaniel took the horses from appellant’s son could not affect the question of the sufficiency of the original consideration. Appellees having already extended the note and having waived their lien on the horses under the mortgage, which lien they had the right to assert as against the administrator, it cannot be reasonably contended that the consideration for the execution of the guaranty failed because the administrator thereafter took possession of the team. It is not a question as to whether or not the son was permitted to keep the horses, but the question is, Were appellees placed in a position different from that originally occupied by them? We think under the uncontroverted evidence that question must be answered in the affirmative.

Under the fourth assignment appellant urges that the trial court erred in overruling defendant’s motion to quash the writ of attachment, dated November 30, 1915, and in sustaining the motion of the plaintiff to amend said writ. The affidavit of plaintiffs below for the writ showed that the indebtedness claimed was $139.73, and the bond was made in double that amount, to wit, $280. The writ of attachment issued by the justice of the peace commanded the officer to attach “so much of the property of W. O. McDaniel * * * as shall be of value sufficient to make the sum of two hundred and seventy-nine and 46/100 dollars and the probable costs of silit.” Under appellees’ motion to correct the writ, it was alleged that the amount recited in said writ was a clerical error, and that in truth and in fact the amount should have been placed in said writ in the sum of $139.73. It has been held that clerical defects and errors in the writ may be amended so as to make it conform to the petition, where no third party is interested, or likely to be injured by the amendment. Porter v. Miller, 7 Tex. 468; Martin-Brown & Co. v. Milburn, 2 Willson, Civ. Cas. Ct. App. §§ 214, 215. Also that the writ of attachment may be amended by inserting the amount of plaintiff’s demand when omitted from oversight by the clerk. Munzenheimer v. Manhattan Cloak Co., 79 Tex. 318, 15 S. W. 389. In the last-cited case Chief Justice Stayton for the court said:

“Under the liberal rules as to amendment, even of writs of attachment, which have prevailed in this state, we are of opinion, however, that the court did not err, under the facts of this case, in permitting the writ to be amended as it was; and it may be that the levy should be given effect only from the time the writ was amended. When the officer levied the writ in this case there was no interference with the possession of the property, which was in his hands as sheriff by reason of levies of other writs, and no injury could result to appellants from the amendment. The writ was valid at least from the time it was amended.”

See, also, Bridges et al. v. Bank, 47 Tex. Civ. App. 454, 105 S. W. 1018. In 6 C. J. p. 189, it is said:

“A variance as to the amount of the claim affords no ground for setting aside the attachment where the amount stated in the writ is less than that demanded in the complaint or summons, for in such case defendant cannot be prejudiced, and where the writ and complaint corresponded, although the amount named in the affidavit was smaller, it was held that a motion to quash the writ was properly denied where plaintiff amended his bond to correspond to the larger amount. But a writ for an amount in excess of plaintiff’s claim is improper and voidable as to the excess.”

But in the instant case the amount recited in the writ is not only in excess of the amount recited in the affidavit, but is an amount in excess of the jurisdiction of the justice court. Statutes allowing amendments to writs of attachment relate only to such defects as would not render the process absolutely void. Where the writ is void, it is a nullity, and to amend in such a case would be to create a new writ, giving it a retroactive effect. Clawson v. Sutton Gold Mining Co., 3 S. C. 419; Whitney v. Brunette, 15 Wis. Cl. While our statutes do not specifically provide for the amendment of writs of attachment, yet the rule of decisions permits such amendments when the defect is one of mere clerical omission or oversight, as shown in the cases heretofore cited. The amount recited in the writ was a jurisdictional allegation, and since this amount was in excess of the justice court jurisdiction, we are of the opinion that the writ was void, not only as to the excess, but in toto. In Greer v. Richardson Drug Co., 1 Tex. Civ. App. 634, 20 S. W. 1127, it was held that where the affidavit for attachment and writ both stated the correct amount of plaintiff’s claim, the petition, which by mistake demanded a less amount, might be amended after the issue of the writ to support the attachment. In this connection Judge Head, speaking for the court, said:

“It will be noted that the amendment was of the petition, and not of the affidavit or writ of attachment.”

In that case, as in this, the error as to the amount was one which, in the absence of an amendment, would have affected the jurisdiction of the court. By the language used, it is evident that the court.did not wish to be understood as holding that a writ stating an amount beyond the jurisdiction of the court could be amended. While article 1824, V. S. Texas Civil Statutes, provides for the amendment of pleadings, yet, as before stated, there is no special statutory authority for the amendment of a writ. This distinction is recognized in Tarkinton v. Broussard, 51 Tex. 550. For an illuminating discussion of the subject of amendments as applied to attachments, see Sydnor v. Chambers, Dallam, Dig. 601. In the case cited in Drake on Attachments, § 284, it was held that where, by a slip of the pen in making out the writ, the command to the officer was to attach property to the value of $6 only, and with the consent of the defendant the writ was amended to read $600, that a subsequent at-tacher was not affected by the amendment.

For the reasons given, we are constrained to hold that the trial court erred in failing to sustain appellant’s motion to quash the writ. The judgment will be reformed so as to exclude therefrom the decree of foreclosure of the attachment lien. The judgment against appellant for the debt is affirmed. It follows that the judgment against the sureties on the replevy bond, to wit, W. H. and John W. Frey, must be set aside, inasmuch as their liability was dependent upon the sustaining of the trial court’s conclusion and judgment with reference to the amendment of the attachment writ, and its subsequent sufficiency and validity.

Reformed and affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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author: HALL, J.

text:
    WESTERN UNION TELEGRAPH CO. v. GOLDEN et ux.
    (No. 1303.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.)
    1. Appeal and Error <®=v>743(]) — Assignments oj? Error — Form.
    An assignment of error containing no reference to the record, showing that the assignment was part of the motion for new trial in tlie court below, will not be considered.
    2. Appeal and Error <©=725(2), 737 — Assignments of Error — Form.
    An assignment which presents error in overruling defendant’s demurrer, both general and special, to the petition, is multifarious, uncertain, and too general to entitle it to consideration.
    3. Appeal and Error <©=3759 — Record on Appeal — Assignments.
    Under court rule 29 (142 S. W. xii), providing that assignments of error as presented in the brief shall be numbered from the first to the last, in tlieir consecutive order, and unless they are so numbered the court of Civil Appeals need not consider them, the court will not consider any assignment subsequent to the first where 3 is the next number after 1.
    4. Telegraphs and Telephones <©=365(1)— Action for Damages — Pleading.
    In an action against a telegraph company for failure to promptly deliver a death message, a petition alleging the language of the message, that plaintiff’s wife was the daughter of the deceased, referred to in the message, that, if she hail received it promptly, she would have been enabled to have attended the funeral, that defendant's servants knew or could have known plaintiffs place of residence, and that by reason of defendant’s negligence plaintiff was caused great pain and suffering, was good as against a general demurrer.
    5. Appeal and Error <©=3719(4) — Question for, Review — Special Exceptions.
    While the suggestion that a pleading is not good as against a general demurrer raises a question of fundamental error, the rule does not apply to objections raised by special exception.
    6. Appeal and Error <©=3742(3) — Assignments of Error — Sufficiency.
    A proposition under an assignment of error in an appeal by a telegraph company from a judgment against it for failure to deliver a death message, based upon the sufficiency of the petition, to the effect that in an action of this character 'the petition should formally disclose that defendant had sufficient notice of the peculiar circumstances affecting the damages from which both parties would reasonably have in Contemplation the injury which would ordinarily follow from a breach of the contract, is bad as being too general.
    7. Appeal and Error <©=743(1) — Assignments of Error — Sufficiency.
    A proposition under an assignment of error which is not a copy of any ground set out in the motion for new trial, and does not show by the record where it may be found, nor that any exception was taken to the ruling thereon, will not be considered.
    S. Appeal and Error <©=3991 — Assignments of Error — Sufficiency.
    On a telegraph company’s appeal from a judgment against it for failure to deliver a death message, an assignment of error which insists that the verdict is contrary to law and evidence, because it did not appear that addressee’s wife would have been able to catch a train to bring her to funeral, merely raises a question of fact and presents no error.
    9. Appeal and Error <©=3301 — Assignments of Error — Sufficiency.
    An assignment of error raising an issue not raised in a motion for a new trial will not be considered.
    Appeal from District Court, Hunt County; Win. Pierson, Judge.
    Action by C. N. Golden and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Flippen, Gresham & Freeman, of Dallas, and Neyland & Neyland, of Greenville, for appellant. Evans & Shields, of Greenville, for appellees.
   HALL, J.

C. N. Golden and wife sued appellant telegraph company to recover damages for failure to promptly deliver a telegram sent by Neal Townsend from Tenaha, Tex., to C. N. Golden at Greenville, Tex. The message was delivered to appellant’s agent at Tenaha September 9, 1916, at 9:50 o’clock p. m., and was not delivered to plaintiffs, it is alleged, until September 11th at 4 o’clock p. m. The language of the message is: “Mother died at 7 p. m.” It is further alleged that Mrs. Alice Golden, the wife of C. N. Golden, was the daughter of the woman designated as “mother” in the message. It is alleged that if Mrs. Golden had received the telegram promptly on the night of September 9th, she would have left Greenville on a train within a few minutes after its receipt, and would have arrived at Tenaha in time for the funeral of her mother, which took place in the afternoon of September 10th. It was further alleged that Neal Townsend was the brother of Mrs. Alice Golden, and that the defendant, its agents and servants, knew all of these facts, or could have known them by the exercise of ordinary care and diligence. It is further alleged that the plaintiffs have resided in Greenville for more than ten years; that C. N. Golden was, during the month of September, and for a long time prior thereto, engaged in business on the most prominent street in the city of Greenville; that their residence was at such time on a prominent residence street in the western part of town, and that they are and have at all times theretofore been well known to a great number of persons residing in Greenville; that the agents and servants of defendant, by the exercise of the slightest degree of care, could have found Golden and delivered the telegram to him within 30 minutes after the same was delivered to defendant’s agent at Tenaha; that, if said telegram had been delivered to C. N. Golden with reasonable dispatch, and in accordance with defendant’s contract and duty, Mrs. Golden would have left immediately for Tenaha; that she would have wired a reply to her brother that sho was going to take the first train out of Green-ville, and that the burial of her mother would have been postponed until her arrival at Tenaha; that when no telegram was received by her brother, Neal Townsend, and she did not arrive on the train of the following day, her mother was buried on the afternoon of ■September 10th. By reason of such negligence and carelessness plaintiff Mrs. Alice Golden was prevented from attending the funeral of her mother, and was caused to suffer great physical and mental pain, distress, etc. A trial resulted in a verdict and judgment in appellee’s favor in the sum of $500.

The first assignment of error is that the court erred in overruling all of the defendant’s demurrers, both general and special, to which the defendant at the time excepted, for that the allegations of the plaintiff’s petition did not show that the addressee and -plaintiff had a wife, and, if so, that she was expected to act on the information contained in the message sued on; the plaintiff suing for the benefit of his wife. Appellee objects to the consideration of this assignment, and, except in so far as it raises the issue of the sufficiency of the petition as against a general demurrer, the - objections are sustained. There is no reference in the assignment to the record showing that the assignment urged here was a part of the motion for new trial in the court below. Under the well-established practice this is a fatal defect. We have, however, referred to the amended motion for new trial, and find that the assignment presented in the brief is not a literal copy of the first ground for new trial contained in the motion. By reason of the fact that the addition or elimination of one word may change the entire sense and purport of an assignment, as presented in the trial court, the rule requiring that the assignments, as set out in the motion, must be literally copied into the briefs, and be the assignments urged here, has been adopted, and the time of the appellate court should not be consumed in comparing and determining whether or not a slight change in the verbiage of assignments has in any way modified the assignment as presented to the trial judge. The appellant has no right, under the rules, to insist upon one matter in the trial court and to urge altogether a different proposition here; nor should we be required to refer to the transcript in order to compare the assignments shown there with those presented in the briefs. There being no references to the record, we are not able to determine from a consideration of the assignments whether or not any exception was reserved to the ruling of the trial judge upon the demurrers.

The general rule is that an assignment which presents error in overruling defendant’s demurrers, both general and special, is multifarious, uncertain, and too general to entitle it to consideration. Salliway v. Grand Lodge, A. O. U. W., 164 S. W. 1041; Coons v. Lain, 168 S. W. 981; Watson v. Patrick, 174 S. W. 632; Dallam County v. S. H. Supply Co., 176 S. W. 796; Texas Mid. R. R. v. Cummins, 156 S. W. 542; Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii).

The next assignment, as contained in the brief, is numbered 3; there being no second assignment presented. Rule 29, governing Courts of Civil Appeals (142 S. W. xii) provides that the assignments as presented in the brief shall be numbered from the first to the last, in their consecutive order, and, unless they are so numbered, this court is not required to consider them. Petty v. City of San Antonio, 181 S. W. 224.

In so far as the first assignment challenges the sufficiency of the( petition as against a general demurrer, it has been considered, and a careful reading of the petition shows that it is sufficient. While the suggestion that a pleading is not good as against a general demurrer raises a question of fundamental error, the rule does not apply to objections raised by special exception. The petition alleges that Mrs. Alice Golden was the wife of the addressee of the telegram.

Under this assignment there are two propositions. The first is that the petition in an action of this character should formally disclose that the defendant had sufficient notice of the peculiar circumstances affecting the measure of damages from which both parties would reasonably have in contemplation the injury which would ordinarily follow from a breach of the contract. This proposition is so general that it does not comply with the rules, and if it presents any question for review, it is that the petition is bad on gen- | eral demurrer. The contention made by the second proposition under this assignment is that the plaintiff should have alleged the route Mrs. Golden would have taken and the railroad connection she would have made to reach Tenaha, the place where her mother was to have been buried, in order to give defendant notice, and that the court erred in sustaining special exception No. 6, urged to the petition by reason of this defect. If this proposition was intended as the second assignment instead of the second proposition under the first assignment, it cannot be considered, because it is not a copy of any ground set out in the motion for new trial, and does not, by reference to the record, show where it may be found, nor is it shown that any exception was taken to the ruling of the court upon exception No. 6.

Under the third assignment it is insisted that, even though the telegram had been delivered immediately, the addressee’s wife would have had less then 40 minutes within which to catch the train leaving for Tenaha, and therefore the verdict is contrary to the law and evidence. Mrs. Golden testified that she could and would have caught the train if the telegram had been received no later then 20 minutes before the train left Greenville. This assignment raises a question of fact only, and, if it were otherwise entitled to consideration, presents no error.

The fourth assignment raises the issue of contributory negligence. It is subject to the same objections as the first and third assignments and to the additional objection that no such issue was raised in the motion for new trial. As heretofore stated, the petition is good as against a general demurrer, and, there being no reversible error presented in the brief, the judgment is affirmed.
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