author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WOLDERT GROCERY CO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1914.
    Rehearing Denied Jan. 22, 1914.)
    1. Injunction (§ 26*) — Multiplicity op Suits.
    Whether a court of equity will enjoin actions at law to prevent multiplicity of suits is controlled by no fixed rule, but each case depends upon its own particular facts.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    2. Injunction (§ 26) — Gbounds — Multiplicity op Suits.
    Before several actions at law will be 'enjoined in order that the controversies may be determined in a single suit, it must appear that the different suits may be determined by the settlement of one or more issues of law or of fact common to them all.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24 — 49, 54-61; Dec. Dig. § 26.]
    3. Injunction (§ 26*) — Gbounds — Multiplicity op Suits.
    Where a shipper instituted in a justice court 17 different suits against the initial carrier for injuries to 17 different shipments of fruit shipped from different points to different consignees on different dates to different destinations, and passing over the lines of several different carriers, such carrier could not, to prevent multiplicity of suits, enjoin the prosecution of such suits, though the consolidation of the suits would spare it great inconvenience and expense.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24rAQ, 54-61; Dec. Dig. § 26.]
    4. Injunction (§ 118) — Petition — Suppi-ciency — Multiplicity op Suits.
    Where the petition in a suit to enjoin the maintenance of several actions against the initial carrier for damage to several interstate shipments, though stating that it performed its legal duty in connection with the transportation, failed to negative the negligence of connecting carriers for whose dereliction the federal statute made plaintiff liable, it was fatally defective.
    [Ed. Note. — Eor other eases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Application for injunction by the St. Louis Southwestern Railway Company of Texas against the Woldert Grocery Company and another. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Marsh & Mcllwaine, of Tyler, for appellant Price & Beaird, of Tyler, for appellees.

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

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

   HODGES, J.

This is an application for an injunction filed by'the appellant in the district court of Smith county, seeking to restrain the Woldert Grocery Company and S. C. Halverson, a justice of the peace, from the further prosecution of 17 different suits theretofore filed by the Woldert Grocery Company in the justice court of Smith county, The petition alleges, in substance, that the appellant is a railway corporation, with its principal office in Tyler, Smith county, Tex.; that the Woldert Grocery Company is a private corporation, with its' place of business in the same city; that S. C. Halverson is a justice of the peace in and for precinct No. 1 of Smith county, Tex., and resides in the city of Tyler. It is further alleged that on the 23d day of September, 1913, the Woldert Grocery Company instituted in the justice court before Halverson 17 separate and distinct suits against the appellant, numbered consecutively from 533 to 549, and that in each of those suits citation had been issued and served upon the appellant. The cause of action, as set out in the citation in suit No. 533, is as follows: “For loss and damage sustained by plaintiff to Elberta peaches shipped by plaintiff from Gresham, Tex., to Iron City Produce Company, Pittsburg, Pa., July 23, 1912, in car Erie No. 61023 over defendant’s road. Plaintiff asks judgment for said sum of $110.15 with 6 per cent, interest thereon from July 23, 1912, together with an attorney’s fee of $10.” The cause of action in each of the 16 cases following is stated in similar language, but showing different shipments on different dates to different points and, in most instances, to different consignees. The petition then proceeds as follows:

“(5) Plaintiff further shows to the court that the said defendant, Woldert Grocery Company, in each of said suits is seeking to hold this plaintiff liable for damages claimed by him in said respective suits under what is known as the ‘Carmack Amendment,’ this plaintiff being the initial carrier in each of said shipments; that said shipments were interstate shipments, and, in reaching their destination out of the state of Texas, moved over the lines of a number of railroad companies, connecting .carriers with this plaintiff ; that plaintiff handled each of said shipments with proper dispatch and care, and if said losses occurred, as alleged by defendant, Woldert Grocery Company, then plaintiff shows that the damage was not caused by it, but that such damage was caused by its connecting carriers over whose line of railway the respective shipments moved in reaching their destinations; that under the law, plaintiff has the right to recover over against its connecting carriers such damages, if any, as may be recovered against it in said respective suits by defendant Woldert Gro-. eery Company, and to this end it has a right to make all of its connecting carriers, each being a railroad company with agents representing it in this state, parties defendant to said respective suits; that, in order to do this, it will be necessary for it to incur great expense, and that it will be put to much trouble and harassment in so doing.
“(6) That all of said railway companies are proper parties and can be made such in this one suit, and thereby the rights of all said connecting carriers be determined in one action; that each and all of defendant’s said claims or demands, if any, against this plaintiff accrued prior to the filing of said respective suits; that all of said claims and demands can be settled by one suit; that said 17 suits were instituted against it by said Woldert Grocery Company for the purpose of vexing, harassing, and needlessly embarrassing plaintiff in the preparation of its defense to said respective suits.
“(7) That said Woldert Grocery Company, defendant, is seeking to recover an attorney’s fee of $10 in each of said suits, except the last two numbered ones, when, in truth and in fact, as before alleged, all of its claims accrued prior to the institution of said suits on said 23d day of September, 1912, and therefore it is only entitled to recover one attorney’s fee, if any, against this plaintiff, in that each and all of its claims have accrued prior to the institution of said suits.
“(8) That each and all of said 17 shipments were interstate shipments, and in reaching their destination were transported over the lines of a number of railroad companies ; that, in order for plaintiff to make its proper defense and show that it is not liable for the damage, if any, suffered by the property so transported, it will be necessary that it take the depositions of a large number of resident and nonresident witnesses, by whom it will prove that the respective shipments were properly cared for in transit; that they moved with proper dispatch, and that, if damaged in transit, the damage was not occasioned by any fault of plaintiff or its connecting carriers; that, in order for it to do this, it will be necessary for it to trace the respective shipments from the time it moved them until their arrival at point of destination; that a large number of the shipments were handled in whole or in part by che same people; that in one suit it will only be necessary to take the depositions of these respective witnesses one time to establish its defense, while in the separate suits it will be necessary to take their depositions a large number ofl times. As an example of the worry, harassment, and expense to which plaintiff will be put if defendant Woldert Grocery Company should be permitted to prosecute its said separate suits, plaintiff shows that, of the 17 shipments, 14 of them were by plaintiff, in keeping with the said defendant’s instructions, delivered to its connecting carrier, St Louis, Iron Mountain & Southern Railway Company at Texarkana; that, in order for it to show when said respective shipments reached said point, the time it delivered said shipments, the time of delivery to its connecting line, the disposition of the car while in the Texarkana yards and as to the condition of the contents of the car, it will be necessary that it take the depositions of its agent and other employés by whom the cars were handled at that point 14 times, while, if defendant should be required to set up his different causes of action in this proceeding, it will be only necessary to take the depositions of said witnesses the one time; that a like condition will prevail if defendant be permitted to prosecute its 17 separate suits in respect to the taking of the depositions of the agent and other employés of its said connecting carrier at Texarkana, by whom said several shipments were handled, and so on throughout the whole transportation or transit of the respective cars.
“(9) Plaintiff further shows that the said 17 suits cannot be consolidated in the justice court, for the reason that, while the demands separately are within the jurisdiction of that court, the aggregate amount of the respective claims exceed the jurisdiction of that court
“(10) That each and all of the claims and demands sued on by defendant Woldert Grocery Company in its said 17 suits in the justice court can be adjusted in this suit and thereby a multiplicity of suits be avoided ; that, unless the defendant, Woldert Grocery Company, be restrained, it will proceed to prosecute each of its said suits in the justice court, and that plaintiff will he forced to expend much money in the defense of said suits; that it will be compelled to have attorneys to represent it in each of said suits; that it will be forced to expend much money in the way of costs and otherwise in defending said suits; that the amount thus required to be expended by it will exceed in value the sum of five hundred ($500.00) dollars, as it is informed and believes, and on such information and belief it alleges that the amounts that it will be unnecessarily required to expend in the defense of said suits will be the sum of five hundred and fifty ($550.00) dollars; that, as before set out, plaintiff is the defendant in the said suits and the defendant, Woldert Grocery Company, is plaintiff in each of said suits; that the amount sought to be recovered by the said defendant, Woldert Grocery Company, against plaintiff in all of said suits aggregates the sum of two thousand one hundred forty-two and 17/100 ($2,142.17) dollars.
“(11) That to permit said defendant to prosecute said suits will cause plaintiff to incur unnecessary costs and expense; that it will put it to much unnecessary worry and harassment in the defense of said suits.”

The petition was sworn to by one of the appellant’s attorneys.

It does not appear from the record before us that any answer to this petition was filed by either the Woldert Grocery Company or Halverson, but we gather from the recitals in the judgment rendered that the district judge set the petition down for a hearing and upon that hearing refused to grant the writ. There is no statement of facts indicating that any testimony was heard at that time, and it will therefore be assumed that the court refused the application solely because of the insufficiency of the facts alleged.

The extent to which courts of equity will go in enjoining actions at law for the purpose of preventing a multiplicity of suits can be determined by no fixed rule. Each case apparently is made to depend upon its own peculiar facts. As stated by the court in Hale v. Allison, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380: “Gases in sufficient number have been cited to show how divergent are the decisions on the question of jurisdiction. It is easy to say it rests upon the prevention of a multiplicity of suits, but to say whether a particular case comes within the principle is sometimes a much more difficult task. Each case, if not brought directly within the principle of some preceding case, must, as we think, bo decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested, and the result which would follow if jurisdiction should be assumed or denied; these various matters, being factors, to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will practically prevent a multiplicity of litigation and will be an actual convenience to all parties, and wifi not unreasonably overlook or obstruct the material interests of any. The single fact that a multiplicity of suits may be prevented by this assumption of jurisdiction is not in all cases enough to sustain it. It might be that the exercise of equitable jurisdiction on this ground, while preventing a formal multiplicity of suits, would nevertheless be attended with more and deeper inconvenience to the defendants than would be compensated for by the convenience of a single plaintiff; and, where the ease is not covered by any controlling precedent, the inconvenience might constitute good grounds for denying jurisdiction.”

Mr. Pomeroy in volume 1 (3d Ed.) § 245, undertakes to enumerate all the possible conditions under which a court of equity will interfere by injunction with actions at law or take cognizance of them in order to prevent a multiplicity of suits. He says: “(1) Where, from the nature of the wrong, and from the settled rules of the legal procedure, the same injured party, in order to obtain all the relief to which he is justly entitled, is obliged to bring a number of actions against the same wrongdoer, all growing out of the one wrongful act and involving similar questions of fact and of law. To this class would belong cases of nuisance, waste, continued trespass, and the like. (2) Where the dispute is between two individuals, A. and B., and B. institutes or is about to institute a number of actions either successively or simultaneously against A., all depending upon the same legal questions and similar issues of fact, and A. by a single equitable suit seeks to bring them all within the scope and effect of one judicial determination. A familiar example of one branch of this class is the case where B. has brought repeated actions of ejectment to recover the same tract of land in A.’s possession, and A. finally resorts to a suit in equity by which his own title is finally established and quieted, and all further actions of ejectment by B. are enjoined. (3) Where a number of persons have separate and individual claims and rights of action against the same party, A., but all arise from some common cause, are governed by the same legál rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as coplaintiffs, or one of the persons suing on behalf of the others, or even by one person suing for himself alone. The case of several owners of distinct parcels of land upon which the same illegal assessment or tax has been laid is an example of this class. (4) Where the same party, A., has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as codefendants.”

The facts of this case more nearly approximate what the author in the above quotation styles the second class. In order for any given ease to come within that class, it should appear that the different suits which are sought to be restrained may be determined by the settlement of one or more issues of law or of fact common to them all.

It then becomes proper for us to analyze the case presented in this appeal and determine whether or not it falls within the definition of any of those cases of which equity will take cognizance. The facts embraced in the petition which are material to be considered in disposing of the appeal may be summarized as follows: The Woldert Grocery Company claimed damages against the appellant for injuries to 17 different shipments of fruit. To recover those damages 17 different suits were instituted. These cargoes of fruit were shipped from different points to different consignees on different dates and at different destinations, passing over the lines of several different carriers. It thus appears that the suits are each based upon separate and distinct transactions or contracts of carriage. So far as the pleadings of the Woldert Grocery Company show, the liability of the appellant may be based upon its own negligence or that of its connecting carriers. It is claimed by the appellant that it performed its duty in transporting the various shipments with proper care and dispatch, and that the injury, if any, occurred on the line of some one or more of the connecting carriers. As a ground for the interposition of a court of equity, it is alleged that all of .the suits may be tried in one; that to permit them to be separately prosecuted in the justice court would require the appellant to incur considerable expense in taking the depositions of a number of witnesses to prove the facts necessary to exonerate it and its connecting lines from liability. '

The question then is: Do these facts call for the interposition of a court of equity? It may be stated at the outset that such courts will not issue a writ of injunction to restrain numerous actions at law merely for the purpose of making it more convenient to the defendant in those actions to test his liability. One who owes a debt and refuses to pay it cannot resort to a court of equity for the purpose of having his liability determined in one action instead of in a number. Jones v. Harris, 90 Ark. 51, 117 S. W. 1077; Vandalia Goal Co. v. Lawson, 43 Ind. App. 226. 87 N. E. 47; 1 Pomeroy, Eq. Jur. § 250, and cases cited in notes.

While in this case the appellant’s petition does state that it had performed its legal duty in the transportation of the goods alleged to have been damaged, it does not negative the negligence of its connecting carriers, for whose dereliction the federal statute makes it liable. In this respect the petition is defective. An application for a writ of injunction in such cases should show affirmatively that the applicant is clearly entitled to the relief sought, and in order to do this the petition must negative every reasonable inference that might be drawn from the facts stated which would justify the refusal of the writ. Gillis v. Rosenheimer, 64 Tex. 243; Nussbaum v. Bell County, 97 Tex. 92, 76 S. W. 432; Cotulla v. Burswell, 22 Tex. Civ. App. 329, 54 S. W. 615; City o£ Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459. .

Appellant relies upon tlie case of Ry. Co. v. Dowe, 70 Tex. 5, 7 S. W. 368. In that case the suits sought to be restrained had not been instituted, but were threatened simply. The petition alleged that the threatened suits were based upon a number of time checks which had theretofore been issued by contractors and for which the railway company was in no way responsible. It was also shown that some of the suits had already been prosecuted to judgment against the railway company in the justice court, and facts were alleged indicating that the justice of the peace had acted arbitrarily, denying the railway company the rights to which the law entitled it, and further that each of the suits threatened, as well as those which had previously been prosecuted, were for $20 and less.

In this case the facts are materially different. Here the suits sought to be enjoined are actually pending. Citations have been served. Each one of the shipments which is made the basis of a separate suit involves a separate transaction or contract of shipment. If all of the suits were combined in one, which it may be conceded is possible under our practice, there would be no simplification of the issues either of law or of fact. The plaintiff: would then still be under the necessity of proving his damages in each particular instance with as much certainty as if it were a separate suit, and the defendant would also be compelled to meet with a separate defense each separate cause of action. In the Dowe Case there was, according to the petition, but one question involved, and 'a 'determination of that question would have been decisive of all of the threatened suits. Such is not the case here. If, for instance, the first suit instituted were decided adversely to the plaintiff, it would furnish no precedent for a determination of either the issues of law or of fact involved in any of the remaining suits. Hence there is an absence of that identity or similarity of issues of law or fact which is generally referred to as justifying a court of equity in restraining the prosecution of a multiplicity of actions at law. Another feature which distinguishes this case from that of Ry. Co. v. Dowe is this: There all of the suits which had been brought, as well as those which were threatened, involved ainounts of $20 and less, and for that reason no appeal could be prosecuted to the county court. In disposing of that case, the Supreme Court seemed to regard that feature as a strong reason why a court of equity should give the relief sought. It is in effect held that the absence of the power to appeal and have the essential questions tried before a tribunal presided over by persons well informed in the law should be regarded as a hardship entitling the complainant to some relief. In the case here under consideration, all of the suits, except two, are for amounts which will enable either party to prosecute an appeal to the Court of Civil Appeals. It has been held that this condition alone is sometimes sufficient cause for refusing to enjoin a multiplicity of actions at law. T. & P. Ry. Co. v. Kuteman, 79 Tex. 467, 14 S. ‘W. 693.

It is urged by counsel for appellant, as the principal reason for desiring a consolidation of these suits in one, that it will be more convenient and less expensive to take the testimony necessary. to present its defenses to the different complaints. This alone could hardly be considered as sufficient reason for issuing the writ prayed for in actions already commenced. The mere fact that the appellant might be enabled to save some costs or be spared some inconvenience by embracing in one set of depositions all of its testimony instead of having to take as many different sets as there are suits does not appeal to the equitable powers of the court. It may be conceded that the same employés handled all of the shipments in controversy, and are able to testify concerning all the facts necessary to establish the appellant’s defenses, although this fact is not even alleged; it would still be necessary to take their depositions as to each separate shipment occurring at different times. The fact that one witness may be cognizant of all the facts concerning all of the shipments does not make those facts the same. They are just as distinct and separate as if they were separately within the knowledge of different individuals. The usual and common expenses for taking depositions, we know as a matter of law, are taxed as a part of the costs and must be paid in the end by the losing party. It is not alleged by the appellant in this instance that the Wold-ert Grocery Company is insolvent, or that it is attempting to prosecute those suits under pauper’s affidavit. There is nothing alleged from which it can be inferred that if cast in the suit that company will not be able to pay all of the costs that may be adjudged against it.

It is further claimed that the connecting carriers for whose negligence appellant is sought to be held responsible are proper parties, and that a consolidation of the suits is desired for the purpose of bringing them into court. If those carriers are proper parties and as such should be brought into that litigation, they are.as much within the reach of process from the justice court as from any issued from the district court.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. COOPER.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1914.
    Rehearing Denied Jan. 15, 1914.)
    1. Appeal and Eeeoe (§ 1068) — Haemless Eeeoe — Insteuctions.
    Any error in an instruction authorizing a finding of negligence in a railroad passenger’s action for personal injuries by the sudden jerking of the engine, when the uncontroverted evidence showed that such movement was only the ordinary movement of the train, was harmless to defendant, where the uncontroverted evidence also showed that it was guilty of negligence in furnishing a defective seat to the passenger, which directly resulted in the injury; the instruction submitting the two grounds of negligence being in the disjunctive, and it being presumed that the jury did not base its finding for plaintiff on a ground not supported by the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    2. Tbial (§ 296) — Insteuctions.
    Any error in submitting as negligence, in a passenger’s action for personal injuries, a sudden jerk of the engine, when the evidence showed that the movement was not unusual, was not prejudicial, where the court also charged that the jury could not find for plaintiff with respect to the manner of operation if the movement of the train was only such as was necessarily incident to its operation in the exercise of due care.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Fannin County ; Ben H. Benton, Judge.
    Action by D. C. Cooper against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The appellee, Mrs. Cooper, was a passenger on appellant’s train, and when nearing the station of Ambrose the seat in the coach occupied by her alone at the time became, by reason of a jolt or movement of the train, suddenly displaced in such manner as that she was let downward and came violently in contact with the wooden braces or under framework of the seat, and was thereby grievously injured. She sues for damages, alleging negligence on the part of appellant (1) in failing to fasten the bottom of the seat in the coach so that it would not become displaced, and (2) in the movement or operation of the train in causing it to make sudden jerks. The appellant answered by denial, contributory negligence, and assumed risk. The verdict of the jury was in favor of appel-lee.
    The evidence shows that the seat was constructed to accommodate two people at the time, with a bottom seat or cushion resting upon the framework or legs, but a distinct and movable piece, and with an upright back piece and arm rests on the sides. This particular seat, as constructed, had crosspieces underneath that were too short to allow the cushion to fit close upon the supports or framework, which gave the seat, or cushion too much play at the base, with the result that the seat would easily fall downward at the rear end into the framework beneath. It appears that a jolt or sudden movement of the train resulting from slackening speed for the station caused the seat to be suddenly displaced and the rear end of it to fall out of proper position downward into the framework or legs. While it appears that there was a jolt or sudden movement of the train at the time, such jolt or movement of the train conclusively appears to have been only the ordinary and usual jolt and movement of the train under careful operation. The evidence warrants the findings of fact that appellant was guilty of negligence proximately causing injury to appellee in failing to fasten the bottom of the seat so that it would not become displaced as pleaded in the petition, and that appellee was not guilty of contributory negligence, and the amount of the verdict is warranted by the evidence.
    Head, Smith, Hare, Maxey & Head, of Sherman, and Alex S. Coke, of Dallas, for appellant. Cunningham & McMahon, of Bon-ham, for appellee.

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

   LEVY, J.

(after stating the facts as above). [1] The second and third assignments, here disposed of together, predicate error upon the third paragraph of the court’s charge so far as it authorized a finding by the jury of negligence upon “or by causing the engine pulling the train on which plaintiff was traveling to make a sudden jerk.” The objections made to such instruction are (1) that it charged upon an issue not made by the evidence, and (2) was upon the weight of the evidence in assuming the fact that the engine was caused to make a sudden jerk. The answer to the objections must be, we think, that under the facts of this case the error must be held necessarily harmless and without any injury resulting to appellant. And, in view of the want of any injurious effect upon appellant shown by the evidence, rule 62a (149 S. W. x) would be applicable, and the error would not afford a proper ground for reversal of the judgment. The .uncontroverted evidence showed that appellant was guilty' of negligence in furnishing for a passenger a seat of the character and condition the seat in question was. And the uncontroverted evidence showed that- the jolt or movement of the train was only the usual and ordinary movement of a train carefully operated. And the jolt or movement of the train was but a mere incident in the falling of the seat. As the evidence making the conclusion of facts in these respects was uncon-troverted, it is believed that it should properly be assumed that the jury, as men of average mind and fairness of conduct, would rest a verdict upon uncontroverted facts rattier than upon a finding wholly unwarranted by the facts. And the instruction given by the court was, as seen, in the disjunctive, which authorized the jury to find upon the one ground proven by uncontroverted facts.

Besides, the special charge given at the request of appellant operated to relieve the court’s charge of any injurious effect upon appellant upon the grounds complained of. The special charge pertinently instructed the jury that they could not return a verdict against appellant as to the manner of operation of the train, where the jerk or move! ment of the train was only such as was necessarily incident to the operation of the train in the exercise of care.

The fourth assignment predicates error upon the paragraph of the court’s charge on the measure of damages. We do not think the charge improperly authorizes a recovery for any damages not sued for or not inflicted by the negligence of appellant. Ry. Co. v. Brown, 16 Tex. Civ. App. 93, 40 S. W. 614.

We have considered the first assignment, and do not think it sufficiently affords ground requiring reversal.

Believing as we do that there is no error of sufficient importance to authorize the overturning of the judgment, the same is affirmed.


text:
    MATTHEWS et al. v. PERMINTER et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1913.)
    1. Sheriffs and Constables (§ 123) — Liability on Bond — Failure to Return Execution-Return to Attorneys.
    Where a deputy sheriff returned an execution to the attorneys of plaintiff in execution, pursuant to their directions, the deputy or his principal would not be liable under Rev. Civ. St. 1911, arts. 3775, 3777, as for failure to return an execution; the attorneys having power to control it.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 230-235; Dec. Dig. § 123.]
    2. Sheriffs and Constables (§ 122) — Liability on Bond — Payments on Execution.
    That a deputy sheriff, after the return of an execution unsatisfied, agreed with the judgment debtor that a debt owed to the debtor by the deputy should be applied by him in payment of the judgment would not make the sheriff liable for failure t,o pay over money collected on execution, though the deputy did not apply the debt pursuant to such agreement; the agreement for applying the deputy’s debt to the judgment being purely personal.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 224-229; Dec. Dig. § 122.]
    Appeal from Shelby County Court; Edgar W. Hooker, Judge.
    Action by A. L. Perminter and others against S. H. Matthews and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Davis, Davis & Davis, of Center, for appellants. S. H. Sanders, of Center, for appel-lees.

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

   LEVY, J.

This is a proceeding brought under articles 3775 and 3777, R. S. 1911, against J. B. Burns, as sheriff of Shelby county, and the sureties on his official bond, and S. H. Matthews as a deputy sheriff, for neglecting to make return of an execution, and for failing and refusing to pay over money collected under an execution. Judgment was rendered by the court for the amount of principal, interest, and costs of the execution and the statutory penalty against the sheriff and his official sureties.

The appellants by their assignments of error challenge the judgment as being contrary to the law and the evidence. It appears from the testimony that on April 14, 1910, Elmo Harris recovered a judgment against Ed. Kennon and others in justice court of precinct 2 of Shelby county for the sum of $57.00 and costs. An execution was issued by the justice of the peace on November 30, 1910, and the same was delivered to the attorneys for the plaintiff in execution on December 2, 1910, who in turn mailed it on the same day to S. H. Matthews, deputy sheriff. The attorneys for the plaintiff in execution at the time of mailing the execution directed Matthews by letter to return the execution to them if after search no property of the defendants in execution, subject to execution, be found. Matthews received the execution in due course of mail the next day. After diligent search he was unable to find property of the defendants in execution subject to levy and sale, and, as directed, returned the execution to the attorneys mentioned, with a statement of his failure to find any property. The writ was returned to the attorneys by Matthews within several days after December 2, 1910 — the exact date not given — and such attorneys received the same and lost it, and it was never returned to the justice court by them. These facts above are undisputed.

As it clearly appears that the deputy sheriff, Matthews, returned the execution promptly to the attorneys of the plaintiff in execution, as by them directed to be done, it is not believed that the officer, or the sheriff as his principal, could be held in default of any legal duty in this ease as to render himself liable to the plaintiff in execution in respect to failure to make return of the execution to the justice of the peace. The attorneys for the plaintiff in execution, by virtue-of their employment in the case, had power to direct and control the execution, and the officer was justified in obeying their directions as authorized agents of the plaintiff in execution. Therefore it must be said, we think, that the first count in the motion against the sheriff is not sustained.

The next or second ground in the summary motion, of failing and refusing to pay over the money collected under an execution when demanded, is not, we think, under all the facts proven, sustained so as to make the sheriff and his sureties legally liable therefor. Considering all the facts proven, the conclusion of fact must be made, we think, that Matthews as deputy sheriff never collected any money under the execution before returning the same to the attorneys for the plaintiff in execution. It does appear, however, from the facts that after the execution was returned Matthews and Ed. Kennon agreed that a debt of $90 owing Kennon by Matthews should be applied by Matthews in payment and satisfaction of the judgment against Kennon in favor of Harris. But this was purely a private agreement between Kennon and Matthews, and not an official act of Matthews that would hold the sheriff liable. To hold the sheriff and his sureties liable the money must have been collected by the deputy under and by virtue of the execution. Matthews individually might be liable in suit to the plaintiff on his promise to pay the amount of the judgment for Ken-non had he been sued individually for such amount; but, inasmuch as he was not sued except officially, the court could not here determine his individual and private liability. And besides, the amount of his private liability, being $57 and interest, would he below the jurisdiction of this court on appeal.

As the evidence does not warrant a judgment against the sheriff and his bondsmen, the judgment is reversed, and the cause remanded.


author: HODGES, J. W. H.

text:
    MARSHALL & E. T. RY. CO. v. KILLINGSWORTH et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1914.
    Rehearing Denied Jan. 22, 1914.)
    1. Railroads (§ 465*) — Erras — Proximate Cause.
    Where a clinker from a railroad engine set fire to combustible material on the right of way, which without the interposition of any other cause than the natural elements, was subsequently communicated to logs on adjoining land., sparks from which set fire to a barn, the leaving of the combustible material on the right of way was the proximate cause of the burning of the barn.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1690-1693; Dec. Dig. § 465.]
    2. Railroads (§ 481) — Fires — Relevancy— Similar Matters.
    In an action against a railroad company for setting fire to a barn containing a quantity of corn, evidence as to the time certain corncribs observed by a witness consumed in burning, offered to show that, had there been as much corn in the barn as claimed, it would have required a longer time for it to burn, was properly excluded, as it related to a distinct and independent collateral fact, necessitating the determination of collateral questions.
    [Ed Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    3. Railroads (§ 484) — Fires—Questions fob Jury.
    A clinker from a railroad engine set fire to combustible material on the right of way, which spread to the grass and rubbish on the north side of the track in the vicinity of a barn, the owner of which extinguished the fire. It also spread to the adjacent land on the south side, where it set fire to some logs, sparks from which that night set fire to the barn. Held, that whether the owner of the barn was negligent in failing to extinguish all the fire in that vicinity was a question for the jury, and hence the court properly refused to charge that, if the owner could have extinguished the fire by ordinary effort, and at moderate expense, it was his duty to do so.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.]
    4. Railroads (§ 484) — Fires—Question lor Jury.
    Where a clinker from a railroad engine set fire to combustible material on the right of way, which spread to- adjoining lands, and burned a barn, whether the adjoining owner was contributorily negligent in having combustible material on his land was a question for the jury, and hence an instruction that, even though the railroad company was negligent in leaving combustible material on the right of way, if plaintiff’s land was also covered by such material, to find for the company, unless it started the fire by some other negligence, was properly refused.
    [Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 1740-1746; Dee. Dig. § 484.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by W. H. Killingsworth and another against the Marshall & East Texas Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones and J. H. T. Bibb, both of Marshall, for appellees.

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

   HODGES, J. W. H.

Killingsworth and the ¿Etna Insurance Company filed this suit in the court below against the appellant, asking for damages for the destruction by fire of a building called a “commissary” and its contents. Killingsworth was the lessee of a large plantation lying along on the north side of the appellant’s right of way in Harrison county near a station called Eagleton. There was a large building on this farm, situated near the railway track and depot, in which was stored a quantity of corn and syrup. In March, 1911, this building and its contents were destroyed by fire. The testimony supports a finding that the fire originated from what is called a “clinker,” which had been dropped on the railway track from one of appellant’s engines as it passed that point. The “clinker” ignited some combustible material which had been left upon the track, and from there the fire spread to the adjacent land on the south side. The flames passed over the track to the north side, and ignited the grass and rubbish in the vicinity of the destroyed building. The fire at that place, however, was subdued some time before night; it having been discovered by Kil-lingsworth and his employés. It had also ignited some oak logs lying on the south side of the railway track a short distance from the building above referred to. About 11 o’clock at night this building was burned. The evidence indicates that the fire was communicated by sparks from the burning logs.

It is claimed that the court erred in the following charge: “That, if the defendant was guilty of negligence, in that it failed to exercise ordinary care to keep its roadbed and right of way reasonably free from combustible material that might be ignited in the ordinary operation of its trains, and which probably would result in fire being communicated to and destroying the property, and if the fire was so communicated, and destroyed the property, the plaintiffs would be entitled to recover, unless they were precluded from recovery by contributory negligence.” It is asserted that this was erroneous, because leaving combustible material on the right of way was not the proximate cause of the loss in this instance. That the fire originated from the burning clinker, and was subsequently communicated to the logs without interposition of any other cause than the natural elements, is supported by the evidence. Hence there can be no controversy about the existence of the fire in that locality being due to the facts referred to in the charge, and there is no basis for the contention that setting the fire in the combustible material on the right of way was not the proximate cause of the loss.

It is also contended that the verdict in this case is excessive,, and is not supported by the evidence, because it was shown that the building, according to its admitted dimensions, was too small to hold the quantity of corn which the jury .found had been destroyed. The testimony upon this issue consisted of experiments and trial measurements made by different parties, and which led to different conclusions as to the capacity of the building. We cannot say, as a matter of law, that the finding of the jury is without support.

The seventh error assigned complains of the action of the court in excluding the proffered testimony of W. R. Koon, offered by the appellant. The bill of exceptions shows that Koon would have testified as follows: “I saw two cribs of corn burned some years ago. One of the cribs had 300 bushels, and the other had 200 bushels. The corn was gathered in the fall, and was burned in March, and was about a week in burning up.” This testimony was probably offered for the purpose of sho'wing that, had there been as many bushels .of corn as the jury found from the evidence were destroyed, it would have required a much longer time for it to have been consumed. There was no error in excluding this testimony. It was but an effort to combat the proof offered by the appellees by distinct and independent collateral facts necessitating the determination of collateral questions. 1 Greenleaf on Evidence, §§ 51, 52; 11 Ency. of Evi. pp. 770-772. It wül be observed that Koon was not offered as an expert, in which his opinion was sought as to how long it would take a given quantity of corn to be consumed under such circumstances. He was merely undertaking to detail an independent occurrence which he claims to have observed upon a previous occasion.

It is claimed that the court erred in refusing to give the following special charge: “If the plaintiff saw the fire burning near the commissary on the afternoon and night before the house was burned, and if the plaintiff could have extinguished the fire by ordinary effort, and at moderate expense, then it was the plaintiff’s duty to have so extinguished the fire, and the railway company would have to pay for the labor and expense incurred in extinguishing the fire, if the fire was the result of the defendant’s negligence.” Had this charge been given, it would in effect have told the jury that the failure of Killingsworth to extinguish the fire was negligence per se. It was correctly refused. "Whether or not he was guilty of negligence in failing to extinguish all of the fire in that vicinity under the particular circumstances was a question for the jury to determine.

It is also claimed that the court erred in refusing to charge the jury, at the instance of the appellant, that, inasmuch as the plaintiffs had alleged that the fire was caused by the negligence of the appellant’s engine throwing sparks, they could not recover by showing that the fire started from some other cause. The allegations in the petition are sufficiently comprehensive to support a finding based upon the negligence resulting from leaving combustible material upon the right of way. They are not confined to the particular act referred to in this requested instruction. The charge was properly refused.

The appellant requested the following special charge: “The jury cannot base their verdict on the ground that the defendant company was negligent in leaving combustible material on its right of way, if you find that plaintiff’s land was also covered with combustible material, unless you find that defendant started the fire by some other negligence.” The manner in which the fire burned indicated that there was not only combustible material upon the right of way of the appellant company but also upon the land under the control of Killingsworth. It may be assumed that Killingsworth might have been held responsible for culpable negligence in failing to take some precautions against the possible spread of fire from such a source; but that was a question for the jury, and the court was not authorized to- assume, as a matter of law, that, because ccim-bustible material from which fire might originate was on the right of way of the railway company, the presence of such material also upon the land of Killingsworth was sufficient to convict him of contributory negligence. It may be that a person of ordinary prudence would have taken no more precautions against the spread of fire than did Killingsworth. The court submitted the issue of contributory negligence in a manner that is not complained of.

The remaining assignments of error have all been considered, and are overruled.

The judgment of the district court is affirmed.


author: WILLSON, C. J.

text:
    HOUSTON OIL CO. OF TEXAS v. RAGLEY-McWILLIAMS LUMBER CO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1913.
    Rehearing Denied Jan. 22, 1914.)
    1. Appeal and Error (§ 527) — Record — Findings op Fact — Time of Filing.
    Where findings of fact were not filed within 10 days after the adjournment of the trial term, as required by Rev. Civ. St. 1911, art. 2075, the trial court has no power to thereafter make such findings, and findings made thereafter are not a part of the appellate record.
    [Ed. Note. — For other cases, see Appeal and Eirror, Cent. Dig. §§ 2381-2383; Dec. Dig. § 527.]
    2. Appeal and Error (§ 527) — Record — Findings oe Fact — Time op Filing — Waiver.
    If appellant, after requesting the court to make written findings of fact, agreed that they need not be filed within the statutory period, he thereby waived his right to have such findings made a part of the record, being charged with knowledge that they could not become a part of the record unless filed in time, but the burden is on appellees to show such agreement.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2381-2383; Dec. Dig. § 527.]
    3. Appeal and Error'(§ 715) — Record — Findings — Waiver—Evidence.
    Evidence held not to show that appellant agreed that the findings of fact requested need not be made within the time required by statute so as to waive his right to have them made and filed within that time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. .§§ 2964, 2965, 3273; Dec. Dig. § 715.]
    4. Appeal and Error (§ 1071) — Harmless Error — Filing op Findings.
    Where, in trespass to try title, the rights of the parties may have depended on whether a deed by an administrator passed title to the. grantee, and if so, whether defendants were innocent purchasers for value without notice of such conveyance, the trial court’s failure to make findings of fact within the statutory term so as to make them a part of the appellate record was prejudicial error, since, in the absence of such findings, the material questions arising could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 423AA239; Dec. ■ Dig. § 1071.]
    Appeal from District Court, Sabine County; W. B. Powell, Judge.
    Action by the Houston Oil Company of Texas against the Ragley-MeWilliams Lumber Company and others. From a judgment for part of the defendants, plaintiff appeals.
    Affirmed as to four defendants, and reversed as to the others.
    Hightower, Orgain & Butler and W. H. Davidson, all of Beaumont, and H. O. Head, of Sherman, for appellant. W. D. Gordon, of Beaumont, S. W. Blount, of Nacogdoches, and Goodrich & 'Lewis, of Hemphill, for ap-pellees.

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

   WILLSON, C. J.

The suit was to try the title to the northwest quarter of a league of land in Sabine county granted to A. E. C. Johnson and by him conveyed to A. A. Lewis. Appellant, plaintiff below, claimed, through mesne conveyances, under a deed dated March 7, 1843, from John Boyd, as administrator of said Lewis’ estate, to Wm. Clark, Jr. Appellees, defendants below, claimed under deeds made by heirs of said Lewis'. The trial was before the court without a jury, and judgment was rendered in favor of appel-lees.

Appellant requested the court to state in writing and file with the clerk the conclusions of fact found by him separately from the conclusions of law. The court did so, but instead of filing same with the clerk within 10 days after the adjournment of the term at which the cause was tried, as required by law (article 2075, R. S. 1911), filed them after the expiration of said 10 days. Appellant insists the court was without power then to file the conclusions; that for that reason they cannot be treated as a part of the record on this appeal; that, because they cannot, it has been deprived of a right conferred upon it by law (article 1989, R. S'. 1911), and therefore that the judgment should be reversed. It is settled, in accordance with appellant’s contention, that “after 10 days have elapsed from the adjournment of the court, the power of the trial judge to file conclusions of fact and law ceases.” Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Emery v. Barfield, 156 S. W. 311; Guadalupe County v. Poth, 153 S. W. 919; Scroggins v. Lumber Co., 138 S. W. 789; Ry. Co. v. Cameron & Co., 136 S. W. 74; Poulter v. Smith, 149 S. W. 279. It follows, in accordance with appellant’s further contention, that the conclusions in question are not entitled to a place in the record on this appeal, and hence cannot be considered by us for any purpose. Does it also follow that appellant therefore is entitled to a reversal of the judgment? Appellees insist it does not, because, as they contend is true, appellant’s counsel “agreed in open court to relieve the judge of the necessity of preparing and filing his conclusions of law and fact, and assumed to furnish him with tentative findings, and failed to do so,” and because, as they further insist is true, said counsel, after so waiving appellant’s right to have the judge prepare his findings, agreed that counsel for appel-lees might prepare same at his convenience, whereby he was led to believe that appellant had agreed to “waive the time of filing of the findings of fact and conclusions of law, and that same might be filed back.” If appellant, after requesting the court to state his conclusions in' writing, agreed same need not be filed within the time specified in the statute, we think it should be held to have waived its right to have the conclusions made a part of the record; for it was bound to know they could not be treated as part thereof if so filed.

But the burden was on appellees to show appellant so agreed, and we cannot say they have discharged the burden. If we look to the affidavits in the record, we find that appellant’s counsel deny having made such an agreement The statement of the trial judge qualifying the bill of exceptions presenting the matter, as to what occurred in open court, is as follows: “When the case was tried at Hemphill and the conclusions of law and fact were asked for by plaintiff, the court asked the counsel on each side to prepare tentative findings along the line it had indicated from the bench, and forward to him, and from them the court would make its findings. It was understood by the court that counsel for plaintiff and W. D. Gordon (counsel for appellees) would do this when they returned to Beaumont.” In his said statement said judge further says: “That after 10 days had expired in which to file the findings of law and fact as required by law, Mr. Gordon sent what he thought was the proper findings in the case to the court at Jasper, which the court adopted after adding some thereto. With the findings so sent by Mr. Gordon was a' letter saying it was agreed to let them be filed back within the 10 days from adjournment, and for me to instruct the clerk, and, acting on that advice, I had the clerk to file the findings as of April the 6th instead of the day on which he received them, which was more than 10 days after the adjournment of the court.” And further says: “That W. D. Gordon was inadvertently led to believe, and did believe, that plaintiff had agreed to waive the time of filing of the findings of fact and conclusions of law, and that the same might be filed back.” In this attitude of the record it is obvious we cannot say appellant waived its right to have the court prepare and file his conclusions within the time required by law. It follows the judgment should be reversed, because of the failure of the trial judge to discharge the duty the law devolved on him, unless it should be said that appellant was not thereby “probably prevented from making a proper presentation of the case to the appellate court.” Rule 62a for the government of Courts of Civil Appeals (149 S. W. x). In the record is a statement of facts, prepared by the judge after the parties had failed to agree on one, from which it appears a determination of the controversy between the parties may have depended on the answers made to two questions: Did the deed from John Boyd as administrator pass to Wm. Clark, Jr., the title in the estate of A. A. Lewis? If this question should have been answered in the negative, then the judgment rendered is right. If it should have been answered in the affirmative, it may be right or not, according to the answer which should have been made to this question: Did appel-lees occupy the position of innocent purchasers for value, without notice of the conveyance to Clark? If they did, then the judgment is right; otherwise it is wrong. Most of the assignments in appellant’s brief attack as erroneous the findings of fact and conclusions of law filed by the trial judge, which we have just determined we cannot treat as a part of the record. In other assignments appellant’s complaint is that the court erred in holding that the deed from Boyd as administrator to Clark “passed no title out of the Lewis estate.” In the absence of findings by the court, we cannot say he so held, for he may have held to the contrary and based his judgment on a finding that appellees were innocent purchasers. For that reason, if we felt called upon to pass on them, we would overrule these assignments. In the assignments remaining appellant complains that the court erred in holding appellees to have been innocent purchasers. For a similar reason, if we considered these assignments, we would overrule them. The result of this course, if pur-, sued, would be an affirmance of the judgment without a consideration by this court of the questions on which its validity depends. To avoid this, we think we should hold that the manner in which the appeal is presented probably is due, primarily, to the failure of the trial court to discharge the duty imposed on him by the statute, and for that reason reverse the judgment. This, accordingly, will be done, and the cause will be remanded for a new trial.

In the court below appellant dismissed its suit as to appellee J. H. Bell and took judgment by default against appellees W. C. Arnold, G. W. Nerron, and Price MeElroy. The judgment appealed from, in so far as it disposed of the controversy between appellant and said appellees, is not complained of here, and it was not the intention of this court to disturb it in that respect. Therefore the judgment rendered here will affirm the judgment of the court below in so far as it is in appellant’s favor against said appellees W. C. Arnold, G. W. Nerron, and Price MeElroy, and in so far as it is in favor of appellee J. H. Bell against appellant, and reverse it as to the controversy between appellant and the other appellees, and as to the controversy between certain of the appellees.


author: DUNKLIN, J.

text:
    BREWER et al. v. NEATHERLY et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.)
    Sales (§ 418) — Measure of Damages — Hate.
    In an action for breach of a contract to deliver cotton on or before November 20, 1912, at 10 ¾ cents a pound, where the seller on November 8th gave notice that it would not be delivered, and where the evidence showed that from the date of the contract the price had advanced, and was 12 i/ic cents per pound as late as November 12th, and still advancing, the market price on such date should be taken as a basis of estimating- the profits.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174^-1201; Dec. Dig. § 418.]
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    Action by M. G. Neatherly and others against J. R. Brewer and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita. Falls, for appellants. Mathis & Kay, of Wichita Falls, for appellees.

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

   DUNKLIN, J.

The only contention presented by the assignments of error urged- by appellants is that the judgment from which this appeal is prosecuted was excessive. The suit was by appellees against appellants for damages for breach of appellants’ four several contracts for the sale of cotton; the damages sought being tte difference between the contract prices and the market values of the cotton upon the dates when the same should have been delivered. There seems to be no controversy between the parties with respect to the amount of damages for the breach of the first three contracts, the only controversy relating to the amount of damages' for the breach of the fourth contract. According to that contract, 200 bales of cotton were to be delivered on or before November 20, 1912, and appellees were to pay therefor 10% cents per pound. The evidence shows without controversy that appellants notified appellees on November 8th that the cotton so contracted for would not be delivered. The evidence further shows that on November 8th cotton was worth 11% cents per pound, and that on November 10th it was worth 12 cents, and on November 12th was worth 12i/10 cents per pound. The evidence further shows that there was a steady advance in the price of cotton from October 28th, the date of the fourth contract, up until November 12th. Appellants have calculated the appellees’ profits upon the 200 bales of cotton covered by the fourth contract at the difference between the contract price and. the market price on November -8th. These profits added to the profits for the breach of the three preceding contracts would be less than the amount allowed by the court. Appellants further call attention to the fact that the price of cotton on November 20th was not proven, November 12th being the last date upon which quotations are given. As the price of cotton was steadily advancing, we are of the opinion that the market price on November 12th should be taken as a basis for estimating the profits that appellees would have realized upon the 200 bales covered by the fourth contract. Taking the market price on that date as a basis for estimating the damages for the breach of the fourth contract, and calculating interest at the rate of 6 per cent, per annum upon the amount of profits lost by appellees on account of the breach of each and all of the contracts, we find that the damages allowed by the court were not excessive. Accordingly, the judgment of the trial court is affirmed.

Affirmed.


author: RAINEY, C. J.

text:
    PERRY v. CHICAGO, R. I. & G. RY. CO.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1914.
    Rehearing- Denied Jan. 31, 1914.)
    Limitation of Actions (§ 55*) — Accrual of Action.
    In ease of a permanent obstruction causing permanent overflows, the landowner’s right of action for all damages past and future accrues at the completion of the obstruction, and hence, where a railroad company, either in 1909 or previously, constructed an embankment which caused overflows on defendant’s land, the statute of limitations then began to run, notwithstanding the railroad company’s promise to build culverts and sluices, and the landowner’s right of action for damages for the overflow is barred in two years; this being so, even though overflows were liable to occur only at long intervals and did not occur before action was begun. n
    [Ed. Note. — For‘other eases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by J. E. Perry against the Chicago, Rock Island & Gulf Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellant. Lassiter & Harrison, of Ft. Worth, and Bennett Hill and C. D. Hunt, both of Dallas, for appellee.
   RAINEY, C. J.

J. E. Perry brought this suit against the railway company to recover damages for the depreciation in the value of certain real estate, caused by the construction of its embankment, which obstructed the flow of water and permanently damaged the value of the land.

Defendant interposed a special exception, asserting that it appeared from the petition that plaintiff’s cause of action, if any, for said permanent injuries was barred by the two-years statute of limitations. This exception was sustained by the court below. The plaintiff refusing to amend, the cause was dismissed, and plaintiff appeals.

The sole question for determination is whether or not said action is barred by the two-years statute of limitation. The petition, as far as relevant to the solution of this-question, alleges: “Further complaining of the defendant, plaintiff represents that he is the owner of a certain tract and parcel of land situated in Carrollton, Tex., upon which he (the plaintiff) has resided for a number of years last past, and' upon which he now resides, and which is now and has for a number of years last past constituted his residence homestead, which said tract of land is well known to the defendant herein; that a number of years ago the defendant constructed its railroad and the necessary embankment thereof through Carrollton, near and adjacent to said property, and, instead of constructing and maintaining the necessary culverts and sluices as the natural lay of the land required for necessary drainage thereof, it so constructed and maintained, and has continued to maintain since such construction, the said culverts and sluices, so that its roadbed backed and held water upon plaintiff’s said land and overflowed the same; that prior to 1909 such overflows had been caused and produced upon said land in said manner, and the plaintiff, prior to 1909, gave the defendant notice thereof and settled and compromised with it for certain temporary damages resulting therefrom; that the defendant then and there assured the plaintiff that such damages were temporary and would not thereafter arise; and that the defendant would construct and maintain necessary culverts and sluiced for the necessary drainage thereof, as the natural lay of the land required; that the plaintiff relied upon such promises and assurances and believed that the same would be fulfilled; that for some time prior to 1912, to wit, during 1909, 1910, and 1911, and during the period that the plaintiff was so relying upon said promises, there was a severe drouth, by reason of which there was little or no, and less than the ordinary, rainfall upon the land belonging to plaintiff, and in the vicinity thereof, and by reason of which drouth, no water was backed and held on plaintiff’s land during said period by said roadbed; that during two or three periods of the spring of 1912, the exact' dates of which are now unknown to plaintiff, there was ordinary rainfall, and, by reason of the construction of said roadbed, and the lack of construction of the necessary sluices and culverts aforesaid, water was caused to back up and stand and overflow plaintiff’s said premises for several days, being so held by said embankment, which had been so constructed and maintained without the necessary culverts and sluices, and plaintiff’s said premises were permanently damaged thereby, as hereinafter-set out; that, during said period of 1909, 1910, 1911 and 1912, and after said rainfall, the defendant worked upon said roadbed and continued to cause and did cause plaintiff to believe that its said assurances and promises to remedy and correct said defective condition would be complied with, and did cause certain sluices and drains to be constructed, but said sluices and drains were not so constructed so as to drain said body of water and plaintiff’s said land, as the natural lay of the land required; that, on account of defendant’s said assurances and promises to remedy and correct said condition, and on account of the lack of rainfall and drouthy condition between 1909 and 1912, and on account of the defendant working upon said right of way, as aforesaid, plaintiff could not, and did not, know and discover that said defective condition had not been corrected until the year 1912, when, by reason of said embankment and said defective drainage, together with the rainfall, as hereinbefore set out, said premises were flooded, as hereinbe-fore alleged, and plaintiff’s said premises permanently damaged thereby; that, had plaintiff known thereof, he could not have instituted suit thereon prior to January 1, 1909, by reason of the promise of settlement which he made with the said defendant company for the said temporary damages to said land; and had he known thereof, he could not have instituted suit thereon during the years of 1909, 1910, and 1911, on account of there being no rainfall, which, together with said defective drainage, caused no damages to plaintiff’s property. Plaintiff further shows that by reason of said original construction of said roadbed, without the necessary culverts and sluices for the necessary drainage thereof, as the natural lay of the land requires, and by reason of the continued maintenance of said roadbed without the necessary culverts and sluices for the necessary drainage thereof, as the natural lay of the land required, and the maintenance of said roadbed during the spring of 1912, as aforesaid, without the necessary culverts and sluices for the necessary drainage thereof, as the natural lay of the land required, and by reason of the failure of the plaintiff to correct said defective condition during the periods of time that it has worked upon said roadbed, that during and after ordinary and usual rain overflows will continue to be so caused and produced by said roadbed, as so constructed, and the said defective construction and conditions, and the damages to said premises are permanent, and a permanent nuisance has been created upon i>lain-tiff’s land and upon its right of way adjoining and near said land by reason thereof, and all as the direct and proximate result of the unlawful and negligent acts of defendant as aforesaid; and that, by reason thereof, plaintiff’s said property has been damaged in the sum of $1,700. Plaintiff further shows that the market value of said property before the said damage was thus made and appeared to be permanent was $1,200 more than the market value of said property thereafter.”

We are of the opinion that the trial court did not err in sustaining the demurrer to the plaintiff’s petition on the ground that plaintiff’s cause of action was barred by the two-years statute of limitation.

The petition alleged that the overflows were caused by the construction of appellee’s embankment, which created a permanent nuisance, and which caused permanent damage to his land by creating a depreciation in its value. There is an allegation to the effect that the damage done to the land was settled for in 1909, showing that the embankment was constructed in that year or prior thereto, and there is no allegation that the overflow of 1912 created any new injury, from which additional damage resulted.

The rule as to when the statute of limitation begins to run in case of permanent injuries is thus stated in Cyc. 1455 (B): “In cases of permanent obstructions causing permanent overflows it is generally held that since all the damages for them, past and future, ordinarily can be presently estimated, they can and must be recovered in a ‘single action and, therefore, according to the rule previously stated, that the statute runs from the time when the obstruction is completed or made, permanent, in case its erection constitutes an actual wrong to plaintiff, or from the time when the injury is first sustained from the overflow in case the erection of the structure is not wrongful or invasion of plaintiff’s rights, or the completion of the obstruction may immediately result in the overflow, thus fixing the beginning of the statutory period, irrespective of whether the creation of the obstruction is actionable per se or not.’ ” This seems to be the rule in this state governing a recovery for permanent injuries to land. Railway Oo. v. Brown, SS Tex. Giv. App. 610, 86 S. W. 659. In the case last cited, the opinion in Rosenthal v. Railway Co., 79 Tex. 325, 15 S. W. 268, is quoted with approval, as follows: “The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that measure of damages which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when the nuisance is likely to be removed by any agency, the damages which have occurred only up to the time of the action will be aUowed; but, if the nuisance is permanent, and the injury constantly and regularly recurs, then the whole damage may be recovered at once. In a case like this, the resulting depreciation in the value of the property is the safest measure of compensation. Here it may be inferred from the evidence that the injury recurs upon each considerable rainfall, and continues during a-stage of offensive stagnation until the water evaporates. The defendants seem to have treated' the work as permanent, since they have failed, upon application, to make a culvert for the passage of the water; and we are of opinion the depreciation in the value of plaintiff’s property is the most certain measure of his damages for the injury.”

The foregoing excerpt is peculiarly applicable to the facts alleged in the plaintiff’s petition. The embankment being alleged to be permanent and no new or additional injury to said land other than depreciation of value, which we think was evident from the overflow prior to 1909, plaintiff’s cause of action for such depreciation in value of the land at least accrued when plaintiff’s land was first overflowed. That the full extent of the damages was not then known is immaterial, as it would not affect the running of limitation.

The judgment is affirmed.


text:
    HUGHES et al. v. HOWE GRAIN & MERCANTILE CO.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1914.
    Rehearing Denied Jan. 31, 1914.)
    Trade-Marks and Trade-Names (§ 93) — In- . junction — Grounds.
    Where in an action by the “Howe Grain & Mercantile Company” to enjoin defendants from using the name “Howe Grain Company” the evidence showed that plaintiff had been in business about 25 years at Howe, Tex., under its corporate name, that it was commonly known by the latter name, that for more than 20 years one defendant had been its general manager, that a considerable portion of its business was done under the latter name, that much of its mail and many drafts and checks intended for it came addressed and payable to such name, all of which facts were well known to such defendant, and that he organized for the purpose of engaging in the same business at the same place, a business to be conducted under the latter name, knowing that he would, and intending to, thereby acquire an advantage and thus cripple plaintiff’s business, plaintiff was entitled to the relief sought.
    [Ed. Note. — Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig.- §§ 10A-106; Dec. Dig. § 93.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by the Howe Grain & 'Mercantile Company against J. A. Hughes and others. From judgment for plaintiff, defendants appeal;
    Affirmed.
    McReynolds & Hay, of Sherman, for appellants. G. P. Webb and Wolfe, Wood & Haven, all of Sherman, for appellee.

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

   RAINEY, C. J.

There being no objection by appellee to the statement of the case made by appellants, the same is here adopted: “The Howe Grain & Mercantile Company, a corporation, appellee, filed this suit in the district court for the Fifteenth judicial district in Grayson county, Tes., on the 22d day of June, 1912, seeking to enjoin and restrain appellant J. A. Hughes and any other persons interested with him from engaging in business at Howe, Tex., as the Howe Grain Company. In its original petition on which the case 'was tried, appellee alleged that for many years prior to June 8, 1912, appellant J. A. Hughes had been employed by it as its general manager; during said time it had been engaged in business at Howe, Tex., its main business being the buying, selling, and shipping of feedstuffs, hay, etc., to its customers; that it received quotations from various and sundry persons and concerns, and received applications for the purchase of such commodities, and its business largely depended upon its good reputation among its patrons and upon its continuance to receive such quotations and applications for the purchase and sale of grain, hay, and feedstuff; that on June 8, 1912, appellant ceased to be its general manager, and thereafter, over its protest and in disregard to its right, advertised himself, either alone or in conjunction with other parties at Howe, Tex., as the 1-Iowe Grain Company, purporting to do a business similar to plaintiff, ⅜ * * that is, dealing in hay, grain, feedstuff, etc.; that the names were so similar that the public generally were unable to distinguish between 'the two; that a great deal of the communications which came to plaintiff’s office were addressed Howe Grain Company, had been so addressed in the past, and would likely be so addressed in the future; that appellant’s former connection with the business as its manager and thereby being familiar with its business would render the alleged deception more certain, and, if appellant should be permitted to continue business as the Howe Grain Company, he would virtually destroy appellee’s business, would reap for himself a reward that plaintiff had earned, and would have an unfair advantage in business, etc. Writ of injunction was prayed for and a temporary writ was granted by the judge of said court on June 22, 1912. Injunction bond having been filed by appellee as required by the order of said court, writ of injunction was issued on June 22, 1912. On July 1, 1912, appellant answered by: (1) General demurrer; (2) special exception that said petition was without equity and stated no cause of action, because the name Howe Grain Company, under which appellant had engaged in business, only contained a description of the nature of the business, and the location of same, and were not words subject to exclusive appropriation by appellee as a trade-name, but that appellee could not acquire the right to the exclusive use of the words the Howe Grain Company as a name. Appellants further answered by a general denial and by way of special answer pleaded: That it was true for a number of years appellant J. A. Hughes had been employed by appellee as its manager, and on or about the 8th day of June, 1912, said connection was terminated, that thereafter appellant J. A. Hughes and J. T. McCoy has formed a co-partnership for the purpose of engaging in the grain business under the firm name of Howe Grain Company. That appellant J. A. Hughes had for many years been engaged in the grain business, had become acquainted personally and in a business way with individuals, firms, and corporations engaged in said business over a large scope of territory in Texas and in other states. That by honest -business methods he had become favorably known to the public and grain dealers generally and had a reputation as an honest, conservative, and reliable business man, and a competent judge of grain, hay, and similar commodities, the grades thereof, etc. That the time of year when the most business is transacted in the grain business, and when the same is most profitable, is during June, July, and August, and the appellant J. A. Hughes having personal acquaintance with grain dealers throughout the country, began said business in the early part of June, 1912, for the purpose of taking advantage of the opportunity offered to do a profitable business during the season of 1912. That under the firm name of the Howe Grain Company, appellant had sent out many circulars, letters, and telegrams, etc., to grain dealers throughout a large scope of country seeking and giving quotations and prices on grain, grain products, etc., as was customary among dealers in such commodities. Said communications were sent for the purposei of obtaining orders and making sales of same, and to establish business relations. Also for the purpose of apprising the public generally and dealers in particular that appellant J. A. Hughes was no longer associated or connected with the Howe Grain & Mercantile Company, appellee, but had associated himself with J. T. McCoy and engaged in business as the 1-Iowe Grain Company; that by reason of his experience and reputation in business he could and would have established a large and profitable business relation, etc. That it was not true that appellant had ever represented to the public or to any one directly or indirectly that the Howe Grain Company was in any way connected or associated with appellant, the Howe Grain & Mercantile Company, nor had appellant by word, sign, or act sought to mislead or deceive the public, grain dealers, or individuals dealing with the Howe Grain & Mercantile Company, or to create the impression that appellants were in any way connected with said company. That appellee knowing of the business qualifications and reputation of appellant J. A. Hughes, and that he would be able to establish a profitable business, and desiring to conceal from the public and dealers the fact that appellant J. A. Hughes was no longer its manager, and desiring the impression to continue to exist among dealers that, in trading with appellee, they were dealing with J.

A. Hughes, and thereby obtain business which otherwise would have accrued to appellant, instituted this suit, and sought to restrain appellant from continuing in business as the Howe Grain Company. That said action was taken for the purpose of injuring, crippling, and destroying the business that appellant had begun and to prevent them from establishing their business until after the grain season of 1912 had expired. Appellant further pleaded that the words Howe Grain Company were merely descriptive of the place where appellants were engaged in business, the nature of the business transacted, and were not subject to exclusive appropriation by appellee as a trade-name. That the names Howe Grain & Mercantile Company and Howe Grain Company were essentially different, were dissimilar, and that no confusion of business would likely result from appellant engaging as the Howe Grain Company, nor had any damage been caused to appellee’s business thereby. But, if mistaken in this and in case the court should find that confusion might arise on account of the similarity in names, that appellants were willing, if permitted so to do by the court, to conduct their business as the Howe Grain Company, accompanied by a statement ‘not in any way connected with the Howe Grain & Mercantile Company’ or any similar expression that to the court might seem proper in the premises, if permitted by the court to continue business under that name. Appellant further pleaded a counterclaim for damages resulting from the suing out the said writ of injunction, and prayed that the same be dissolved for cost of suit, and for such ■other relief as they might be entitled to receive in the premises. The case was tried before a jury under the charge of the court, and, a verdict having been returned in appel-lee’s favor, judgment was rendered by the court on the 8th day of March, 1913, perpetuating the writ of injunction and against appellant for the cost of suit.”

Error is assigned to the action of the court in refusing to instruct the jury to return a verdict in favor of appellant. The propositions submitted, in substance, were that the words “Howe Grain Company” were not subject to the exclusive appropriation by ap-pellee as a trade-name; that something more than a similarity of names was necessary to establish unfair competition, which would warrant equitable relief by injunction, and that the undisputed evidence shows that appellant had not been guilty of any fraud, misrepresentations, or deceit to obtain unfair advantage of appellee, and the court should have given said instruction.

We conclude from the evidence that appel-lee had been in business for about 25 years at Howe, Tex., under its corporate name “Howe Grain & Mercantile Company”; that it was commonly known as the “Howe Grain Company”; that for more than 20 years appellant Hughes had been its general man-, ager; that a considerable portion of its business was done under the name of Howe Grain Company; that much of its mail and many drafts and checks intended for it came addressed and payable to the Howe Grain Company; that all of these facts were well known to appellant Hughes; and that with such knowledge he organized and established, for the purpose of engaging in the same business as that in which appellee was engaged at Howe, Tex., a business to be conducted under the name of Howe Grain Company, knowing that he would, and intending to, thereby unlawfully acquire an undue and undeserved advantage, and by so doing cripple and damage appellee’s business. The court did not err in refusing the special instruction to return a verdict in favor of appellant.

While appellee had not acquired such right to the words “Howe Grain Company” as to entitle it to hold such words as a trade-mark, yet we do think, under the facts and circumstances of this case, the adoption of such words as the name for the business established by appellants in the town of Howe was, in effect, such a fraud on appellee and the public as warranted the jury in finding a verdict in favor of appellee. The use of the words “Howe Grain Company” by appellants as a name in which to conduct their business, and coupled with the acts and conduct of appellant, was calculated to confuse and deceive persons of ordinary prudence, buying and trading with ordinary care, to believe they were in fact dealing with the Howe Grain & Mercantile Company, when, in fact, they were dealing with the Howe Grain Company. The court in its main charge sufficiently instructed the jury on this phase of the case, and no injury resulted to appellant in the refusal to give requested charge on this principle. The use of the name Howe Grain Company by appellants under the circumstances gave to them an unfair advantage in conducting their business, and in equity should have been enjoined, because, as was intended, it was a fraud and deception upon the appellee and thq.public. Alff v. Radam, 77 Tex. 530, 14 S. W. 164, 9 L. R. A. 145, 19 Am. St. Rep. 792; Scanlan v. Williams, 53 Tex. Civ. App. 28,114 S. W. 862; 38 Cye. 756.

Several errors are assigned complaining of the charge of the court and the refusal of requested charges. These assignments are overruled. The charge correctly and sufficiently applied the law to the facts and the special charges were either covered by the main charge or not appropriate, and no injury resulted in the refusal of the court to give them.

Several assignments of error are presented as to the admission of testimony. We think these assignments not well taken. The testimony admitted tended to explain the acts and conditions of the parties and was competent, or was not calculated to affect the verdict.

Error .is assigned to the remarks of counsel of appellee made to the court in the presence of the jury on the question of the admission of testimony offered in behalf of ap-pellee. The counsel had propounded a question to elicit certain testimony, which was objected to by appellants’ counsel. Appel-lee’s counsel was endeavoring to convince the court that said testimony was admissible and the remarks were in reference thereto, and we think there is nothing in said remarks of which appellants have just ground for complaint

The judgment is affirmed.


author: HIGGINS, J.

text:
    RANDALS v. PECOS VALLEY STATE BANK et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 11, 1913.
    On Rehearing, Jan. 15, 1914.)
    1. Appeal and Ebror (§ 742) — Assignments op Error — Propositions.
    Assignments of error unsupported by propositions as required by rule 30 (142 S. w. xiii), governing the briefing of cases, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    On Rehearing.
    2. Courts (§ 170) — County Courts — Amount in Controversy — Jurisdiction.
    A judgment of the county court foreclosing a chattel mortgage will be reversed where the petition fails to allege the value of the property upon which foreclosure is sought, so as to show it to be of an amount within the jurisdiction of the county court.
    [Ed. Noté. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.]
    Appeal from Reeves County Court; H. N. McKellar,. Judge.
    Action by the Pecos Valley State Bank and others against Ben Randals. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Ben Randals and Ben Palmer, both of Pecos, for appellant. Buck & Starley, of Pecos, for appellees.

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

   HIGGINS, J.

The Pecos Valley State Bank brought this suit, seeking recovery upon a certain promissory note executed by Melville A. Davis and R. T. Davis in the sum of $582.25, together with foreclosure of chattel mortgage liens upon certain personal property, the value of which was not stated in the petition.

Error is assigned to the failure of the court to sustain a general demurrer to the petition upon the ground that it was insufficient in failing to allege the. value of the property upon which foreclosure was sought, showing such value to be of an amount within the jurisdiction of the county court. It is the better practice to allege such value, but failure to do so does not subject the petition to general demurrer. Mangum v. Buffalo-Pitts Co., 131 S. W. 1196.

The remaining assignments of error are not entitled to consideration, because unsupported by propositions, as required by rule 30 (142 S. W. xiii), governing the briefing of cases. However, the record contains no statement of facts, and, in the absence of same, all possible questions which might be presented by the assignments would of necessity be overruled.

Affirmed.

On Rehearing.

In the original opinion it was held that failure to allege the value of the property upon which foreclosure was sought, showing same to be of an amount within the jurisdiction of the county court, did not subject the petition to general demurrer; This holding was based upon the opinion rendered by the Galveston Court of Civil Appeals in Mangum v. Buffalo-Pitts Co., 131 S. W. 1196. This was the only authority presented to the court upon the question, but upon rehearing appellant has called our attention to Stricklin v. Arrington, 141 S. W. 189, and Wilson v. Ford, 159 S. W. 73, decided by the Ft. Worth Court of Civil Appeals, in which it was held that it must affirmatively appear from the record that the county court had jurisdiction over the subject-matter of the suit. We also find the recent ease of Bates v. Hill, 144 S. W. 288, decided by the Galveston Court of Civil Appeals, where it was held that the jurisdiction of the county court over the subject-matter must be shown by the petition. This latter case does not refer to the former case of Mangum v. Buffalo-Pitts Co., but the two are in direct conflict, and the former must be considered as overruled by the latter. We regard the two cases by the Ft. Worth Court of Civil Appeals and the latter case by the Galveston court as stating the proper rule, and, since the petition in the instant case did not allege the value of the property upon which foreclosure of the mortgage lien was sought, there was therefore a failure to affirmatively show the jurisdiction of the court over the subject-matter of the suit, which necessitates a reversal.

The motion for rehearing is granted, and the cause reversed and remanded.