author: PLEASANTS, C. J.

text:
    TEXAS & N. O. R. CO. v. WILLIAMS et al.
    (No. 6850.)
    (Court of Civil Appeals of Texas. Galveston.
    June 3, 1915.
    Rehearing Denied June 30, 1915.)
    1. Adverse Possession <&wkey;68 — Claim of Right.
    To sustain a plea of title in a donor by limitation of 10 years, one who tools possession of land by parol gift must show that such donor held the land under a claim of right.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. <&wkey;> 68.]
    2. Adverse Possession <&wkey;85 — Sufficiency of Evidence.
    In trespass to try title, evidence held insufficient to sustain finding for defendants that the holding was under claim of right, so as to establish title by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. &wkey;85.]
    3. Adverse Possession &wkey;>114r — Defenses— Burden of Proof.
    In trespass to try title, the burden is on defendants, setting up title by limitation, to prove their plea by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. <&wkey;114.]
    4. Evidence <&wkey;582 — Testimony on Former Trial — Proof._
    On second trial of an action, where a witness on the former trial was dead, and a certified copy of the statement of facts upon the former appeal was introduced to show such witness’ former testimony, the stenographer at the first trial testifying at the second that he took down the witness’ testimony at the first trial, and was satisfied he took it down correctly, but could not remember what it was, and did not know that the testimony embodied in the statement of facts was a correct reproduction of the testimony as taken down by Mm, he having lost his notes, it not being shown that the statement was made up from the stenographer’s notes, or how or by whom it was prepared, such statement of facts was inadmissible as evidence of the witness’ former testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2419-2423; Dec. Dig. &wkey;>582.]
    5. Evidence &wkey;>576 — Testimony on Former Trial — Grounds for Admission.
    On second trial of a case, the testimony of a witness on the first trial, since deceased, is admissible on behalf of either party, when properly proved.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2401-2405; Dec. Dig. &wkey;576.]
    6. Evidence <§=^>582 — Testimony on Former Trial — Proof.
    One who heard a witness, since deceased, testify at a former trial, may be utilized to prove the former testimony for the purposes of a second trial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2419-2423; Dec. Dig. &wkey;582.]
    7. Continuance <&wkey;29 —Absence of Witness.
    Where, on second trial, the plaintiff is refused permission to prove the testimony of a witness on former trial, since deceased, by a certified copy of the statement of facts on appea.1 succeeding such former trial, if he was not prepared to prove such former testimony in a prop-. er manner, he might, on the ground of surprise, have been granted a continuance to obtain proper evidence of the former testimony.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 95; Dec. Dig. 4&wkey;29.]
    8. Appeal and Error <&wkey;837 — Review—Inadmissible Evidence.
    Where the trial court improperly admitted a statement of facts on former appeal to prove the testimony on former trial of a since deceased witness, the appellate court will consider such witness’ testimony as embodied in the statement in determining whether the verdict was against the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274^3277, 3289; Dec. .Dig. &wkey;837.]
    9. Appeal and Error <&wkey;1177 — Disposition —Inadmissible Evidence.
    Where verdict was for the plaintiff, and defendants appealed assigning error to the improper mode of proof of a deceased witness’ testimony, on former trial, and the evidence other than that objected to was insufficient to sustain the verdict, the appellate court, after sustaining the objection to the evidence, would not reverse, and render judgment for defendant, buit would remand the case for new trial, that plaintiff might make proper proof of the material facts which the record showed could be properly proven.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4694, 4606-4610; Dec. Dig. <&wkey;>1177.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by the Texas & New Orleans Railroad Company against George Williams and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    See, also, 52 Tex. Civ. App. 217, 114 S. W. 877.
    Hightower, Orgain & Butler, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. John B. Warren, of Houston, and W. R. Blackshear, of Jasper, for appellees.
   PLEASANTS, C. J.

This is an action of trespass to try title, brought by appellant against appellees. The suit was originally against George Williams, Henry Williams, C. E. Slade, and the Lemon Lumber Company, and involved the title and possession of a 640-acre survey in Jasper county, known as “T. & N. O. Ry. Survey, section 7.” Plaintiff also sought to recover damages from the Lemon Lumber Company and C. E. Slade for cutting and removing timber from said land. All of the defendants, except Henry Williams, disclaimed title. He answered by plea of not guilty and specially pleaded title to the whole of said survey under the 10-year statute of limitation.

This is the second appeal of the case. Upon the trial from which the first appeal was prosecuted the court instructed a verdict for plaintiff for the land, and submitted to the jury the question of damages for cutting timber therefrom. This judgment was reversed by the Court of Civil Appeals for the Third District; the opinion of the court on that appeal being found in 52 Tex. Civ. App. 217, 114 S. W. 877 et seq. Upon the second trial, defendant Henry Williams having in the meantime amended Ms answer, and only claiming title to 160 acres, the southeast quarter of said section, the cause was submitted to a jury, and a verdict and judgment were rendered in favor of defendants.

In order to sustain his plea of limitation of 10 years, it was necessary for defendant Henry AVilliams, who took possession of the land upon the suggestion and under parol gift of his father, George Williams, of his claim thereto, to show that said George Williams held adverse possession of 160 acres of said survey under a claim of right. The evidence adduced upon this issue was, in substance, as follows:

In 1894 George Williams purchased from Bert Simmons his improvements, which consisted of a small dwelling house and crib, and a field of about 12 acres. These improvements were situated partly on section No. 7 and partly on school section No. 10, which lies south of and adjoining section No. 7; the house and the greater portion of the field being on section No. 10. After his purchase George Williams took possession of the place. He did not know at this time on what section his improvements were situated. He made application as actual settler to purchase from the state 160 acres of section No. 10, and had it surveyed by Capt. Kellie on October 23, 1897. This survey showed that about 3 acres of the 12-acre field were on section No. 7. After this survey was made he told his son, defendant Henry Williams, he could have his claim upon section No. 7, and if he would settle on it he might acquire a home of 160 acres. Following this gift and advice, Henry built a house on section No. 7, and has held possession and asserted a claim to 160 acres thereof continuously since he took possession in 1897. This suit was brought on September 13, 1906. Henry Williams testified that his father said he claimed 160 acres on section No. 7, but does not say when his father first told him that he claimed land on section No. 7. He also testified that, when his father first moved on the place purchased from Simmons, he did not know on what section his improvements were situated, but said he thought they were on section No. 7.

J. R. Williams, a brother of defendant Henry Williams, testified that in 1895, in contemplation of his approacMng marriage and his desire to acquire a home, he suggested that he would build a house and settle on section No. 7, near his father’s place, but his father objected, and stated that he claimed the land and did not want any one to live that close to him. He further testified:

"As to when it was my father told me he claimed 160 acres of section 7, will say I can’t give you! any dates on that. I will say it was in 1897 or 1898. I remember when Oapt. Kellie came down there and ran the division line between section 7 and section 10. As to whether or not that was the first time that line was run, and the purpose of running' it was to locate my father’s 160 acres in the northeast corner of section 10, which was school land, will say I don’t know whether that was his business or not: he came down there and located the line. My father had him run that line. It is a fact that my father told me that he claimed 160 acres on section 7 after Capt. Kellie ran that line. As to whether or not he ever told me that before Capt. Kellie ran that line, will say I have no recollection; my recollection is not clear on that. * * * As to how much land he said he was claiming in 1895, will say he said he was claiming that land. He didn’t say how much. As to whether or not he never said anything about 160 acres, will say I do not have any recollection of his specifying any land.” “Question. Now, Mr. AVilliams, I asked you a while ago if youi ever heard your father claim 160 acres of land on section 7 before he made his application to the state; what do you say about that? Answer. He didn’t make any claim before he made his application to the state. Yes; he made it. I-Ie made it before he made his application to the state. I don’t recollect his making the claim before Capt. Kellie ran that line there. As to whether or not he told me he didn’t make it before Capt. Kellie ran the line, will say he didn’t know where it was at before he run the line.”

Ben Hollis, for defendant, testified that be beard George AVilliams say in 1S96 at a logrolling wbicb took place in tbe spring of that year, that be claimed 160 acres on section No. 7, and that the railroad company would have to show him that tbe land was not bis, and that be was prepared to pay tbe costs. This witness also testified that in 1896 George AVilliams told him that be bad given defendant Henry AVilliams bis claim on section No. 7.

Hamp Gentry testified, for defendant, that George AVilliams told him that be bad given Henry AVilliams 160 acres of land, but does not remember wbat section be said tbe land was on, and that tbe best of bis recollection is that it was in tbe fall of 1893 that George AVilliams told him this.

This is all of the testimony tending to show that George AVilliams ever claimed 169 acres, or any quantity, of land on section 7 outside of bis inclosure, wbicb, as before stated, only embraced a few acres on said section. None of this testimony was adduced upon tbe first trial. George AATlliams himself testified on that trial, and, having died before tbe second trial, plaintiff, over tbe objection of defendants, introduced in evidence a certified copy of his testimony as it appears in the statement of facts filed in the Court of Civil Appeals on tbe former appeal of this case. This testimony is as follows:

“I am the father of the defendant Henry AVilliams. I know where this land is; that is, the land in dispute, section 7. It is the southeast corner of section 7. Henry AVilliams has a dwelling house and a barn and some land on section 7, that is cultivated, and has been cultivated for 12 years. He has about 12 acres of cultivated land on this section, I think; never measured it. The 12 acres are right along on the line of section 10. Part of this land has been cultivated 13 years. It was cultivated when I bought it from Bert Simmons. I gave Henry my claim to the land. After I bought it, I had it cultivated and cleared some, up to the time I gave it to Henry Williams. I did not have the land surveyed right then. I bought a piece of school land, and when I had Capt. Kellie to survey it, it took in a part of section 7. [It was shown that witness bought the northeast quarter of section 10, which was a school land section, and lay directly south of section 7, and that same was surveyed for him by Capt. B. I. Kellie on October 23, 1897.] When the first survey was made there, it cut off 2% acres, and when surveyed again it cut off about 12 — something like that. The present survey cut off about 12 acres of section 7. I said that as long as I kept the land I kept it in cultivation. Since I gave it to Henry, he has been cultivating it ever since. I am 70 years old, and have lived on section 10 for 12 years. As to who I purchased from, will say I bought the improvements from a man named Simmons. Section 10 at that time was public land. It belonged to the state of Texas, school land. As to whether or not I purchased section 10, will say only one-fourth of it, a quarter. Capt. Kellie surveyed that land 6 or 7 years ago. Up to that time I did not know where the line ran between sections 7 and 10. I did not know where the lines ran between sections 7 and 10, and 6 or 7 years ago was the first time I discovered that I had in cultivation about three acres belonging to section 7. * * * The first survey was made by Capt. Kellie 6 or 7 years ago. That was the first time that I knew I had encroached on section 7 at all. That is the first time that my son Henry knew that I had encroached on section 7. I gave this land to my son, Henry Williams, as soon as I found the survey cut off a piece of land. I told him that, if he wanted to go on there and take the place, he could have it. As to whether or not I told him he could have three acres, will say I told him he could get a home there maybe; probably get a home.” “Question. Tell this jury, under your oath, is it not a fact that you gave to Henry Williams all you had encroached on section 7, T. & N. O. Railroad Company, Jasper county? Answer. That is all I had to give him. Question. I thought so. At that time, 6 or 7 years ago, you gave Henry Wiliams only 3 acres on section 7? Answer. I gave him my interest, and I told him that maybe, if he would stay there long enough, he would get a home. I say that 6 or 7 years ago was the first time that I knew I encroached on section 7, T. & N. O. Railroad Company. I say that Capt. Kellie was down there about 6 or 7 years ago. I don’t really know how long after-wards before the other two surveyors came down there and ran the lines between 'section 7 and 10; 2 or 3 years, will say; that will come somewhere in the neighborhood of it. The other surveyors were McMahon and Bean. It is a fact that McMahon and Bean drew the lines further south. According to Capt. Kellie’s lines, I had encroached on section 7 about 3 acres. When McMahon and Bean came in there, they drew the lines a little further south. According to their lines, about 12 acres was over on section 7. McMahon and Bean came there, and corrected that survey, and straightened it up, and McDonald ran the line where McMahon and Bean did. That was further south, and encroached about 12 acres. I assess my land for taxes. I never rendered my land on section 7, T. & N. O. Railroad Company, for taxes. I cannot tell you whether Henry has or not. I have never paid any taxes on section 7, T. & N. O. I did not know I encroached 2 or 3 acres on this other section until 5 or 6 years ago. I say that. I swear that. I gave him these 3 acres 5 or 6 years ago, and told him he might get a home; that is correct. * * * When I bought out Simmons, I bought his improvements. I paid him $75 for it; traded him a horse. I bought him out 12 or 13 years ago; 13 years ago next fall; 1894 is the very date. I bought him out in 1894. I had nothing to do with the cutting of this timber.”

Under an appropriate assignment of error the appellant assails the finding of the jury in favor of defendants upon the issue of limitation, on the ground that it is so against the overwhelming weight and preponderance of the evidence that it is clearly wrong and should have been set aside by the trial court. We think the assignment should be sustained. Without considering the testimony of George Williams, reproduced from the statement of facts upon the former appeal, the testimony offered by defendants to show a claim by George Williams prior to the time Kellie made the survey in 1897 to any land on section No. 7 which was not within his inclosure is so indefinite and contradictory that it is doubtful whether, if standing alone, it is sufficient to sustain a finding that said Williams claimed 160 acres on said section. When all of the testimony is considered, it is clear to us that the verdict is wrong, and the jury in arriving at such verdict ignored the rule which placed the burden upon the defendants to establish their plea of limitation by a preponderance of the evidence. Willis v. Lewis, 28 Tex. 185; Zapp v. Michaelis, 58 Tex. 270; Railway Co. v. Somers, 78 Tex. 440, 14 S. W. 779; Railway Co. v. Wilson, 60 S. W. 438; Roberts v. Agnew, 103 S. W. 1178.

Appellees insist that, in passing upon the question of whether the verdict is so against the great weight and preponderance of the evidence as to require a reversal of the judgment, we should not consider the testimony of George Williams upon the former trial of this cause, because the certified copy of the statement of facts upon the former-appeal was not admissible in evidence to show what the testimony of George Williams was on the former trial, and his testimony upon that trial was not otherwise shown. We agree with appellees that the copy of the testimony of George Williams as it appears in the statement of facts upon the former appeal, certified to by the clerk of the Court of Appeals in whose custody the statement of facts now is, was not admissible as evidence of the facts testified to by said witness on the former trial. Dwyer v. Rippetoe, 72 Tex. 532, 10 S. W. 668. There is no statute which makes a certified copy of a statement of facts evidence of the contents of such statement. George Williams having died before the second trial, his testimony upon the former trial was admissible on behalf of either party on the second trial; but that testimony could not be properly shown by - a certified copy of the statement of facts prepared and filed in the appeal from the judgment on the first trial. The stenographer upon the first trial testified on this trial that he took down the testimony of George Williams upon the first trial and was satisfied he took it down correctly; but he did not remember what his testimony was and did not know that the testimony copied in the statement of facts was a correct reproduction of the testimony as taken down by him. He had lost his notes taken on the trial, and had no way of determining whether the statement of facts contained a correct copy of the witness’ testimony. It was not shown that the statement of facts was made up from the stenographer’s notes, or how or by whom it was prepared. We think proof of these facts, and that the statement was in substance the testimony of the witness, was necessary to make the statement of facts on the appeal admissible as evidence of what the witness testified on the first trial. Dwyer v. Bassett, 1 Tex. Civ. App. 513, 21 S. W. 621. The original statement of facts not being obtainable, its contents could only be proven by an examined copy. The learned trial judge first ruled that a certified copy was not admissible, and then withdrew his ruling and admitted the copy. We think his first ruling was correct.

It does not follow, however, that because the testimony of the witness upon the former trial was not proven in a manner authorized by law that we should not consider it for any purpose. The testimony of the witness upon the former trial was most material, and, if proven in a proper way, was clearly admissible. If the trial court had ■sustained appellees’ objections to the introduction of the certified copy, plaintiff! might have proven what the testimony was by a witness who heard Williams testify, and, if not prepared to make the proof at that time, might have, on the ground of surprise, been permitted to withdraw the case from the consideration of the jury and continue same, and thus had an opportunity of obtaining proper evidence of the testimony of the witness upon the former trial.

It seems to us that it would be unfair to plaintiff, after the trial court has admitted the evidence, for us to refuse to consider it in determining the question of whether the verdict was against the evidence. If the verdict had been for the plaintiff, and defendant had appealed and assigned error in the admission of this evidence, and the evidence other than that objected to was insufficient to sustain a verdict for plaintiff, we would not, after sustaining the objection to the evidence, reverse and render judgment for defendant, but would remand the cause, in order that plaintiff might have the opportunity of making proper proof of the material facts which the record shows could be proven upon another trial, and we think upon the same ground of fairness we ought to consider the ■ whole of the material evidence submitted to the jury, in order to determine whether the verdict is sustained by the evidence.

We do not think this holding is in conflict with the opinion of our Supreme Court in the case of Henry v. Phillips, 105 Tex. 466, 151 S. W. 533. In the case cited, certain facts were shown by the evidence which the court held immaterial and incompetent to prove any issue in the case, and, though not objected to, should not be considered for any purpose by the appellate court.

The testimony of George Williams on the former trial was competent and most material upon the issue involved in this case, and, if no objection had been offered as to the manner in which proof of that testimony was made, there could be no question that it should be given full consideration. If defendant had made no objection to this testimony, and judgment had been rendered for plaintiff thereon, and defendant had appealed, we certainly would not be authorized to reverse the judgment on the ground that there is no evidence to support it. The objection in this case is not to the relevancy or competency of the facts proven, but to the manner or method of proving the facts, and for this reason this case is distinguishable from the case cited.

For the reasons before stated, we are of opinion that the judgment of the court below should be reversed, and the cause remanded; and it has been so ordered.

Reversed and remanded.
      <S=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUDDLESTON.
    (No. 1487.)

    (Court of Civil Appeals of Texas. Texarkana.
    July 1, 1915.
    On Rehearing, July 3, 1915.)
    1. Assault and Battery <&wkey;13 — Sele-De-eense — Civil Cases.
    The law of self-defense and the stage of the difficulty at which self-defense ceases are the same in civil cases as in criminal prosecutions, except as to the degree of proof.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 11; Dec. Dig. &wkey;>13.]
    2. Trial <&wkey;296 — Abstract and Concrete Instructions.
    That an instruction merely defines self-defense is not ground of complaint; another instruction having correctly applied the law to the issue of self-defense as a justification or the act of defendant’s brakeman.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 290.]
    3. Carriers &wkey;>283 — Assault on Passenger.
    A carrier is liable for intentional assault on a passenger by a brakeman not justified or excused by the circumstances.
    [Ed, Note. — For other cases, see Carriers, Cent. Dig. §§ 1119-1124, 1140, 1141; Dec. Dig. <@=>283.]
    4. Carriers <&wkey;321 — Assault on Passenger —Self- DeFEN SE — INSTRUCTIO NS.
    There being evidence, in a passenger’s action for assault and battery by defendant carrier’s brakeman, that, though the passenger struck the first blow, the brakeman was then within striking distance, attempting to make an assault on him with a dangerous weapon, an instruction requiring the finding, as a condition to a perfect right of self-defense by the brakeman, that, when he assaulted plaintiff, plaintiff was making an assault on him, which had not been provoked by bis wrongful conduct, was proper.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. @=^321.]
    5. CaRrieks <&wkey;320 — Assault on Passenger -Self-Defense — Question fob Jurt.
    Whether defendant carrier’s brakeman, claimed to have assaulted a passenger in self-defense, used no more force than was reasonable, under the circumstances, is a question for the jury on conflicting evidence.
    [Ed. Note — Eor other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. <®=>320.]
    On Rehearing.
    6. Trial <&wkey;260 — Instructions Covered by Others.
    Defendant’s refused requested instruction as to recovery of damages, the direct result of plaintiff’s wrongful and negligent conduct, held, under the evidence, sufficiently covered by its requested instruction given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260J
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by J. E. Huddleston against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    This is an action by appellee, a passenger, against appellant company, for damages resulting, as alleged, from insulting and abusive language and an assault and battery upon him by appellant’s passenger brakeman. The defendant as a defense, pleaded that the plaintiff by his own negligence and insulting language and wrongful and violent conduct to the brakeman brought about and provoked the assault proximately causing the injury, and also that the brakeman, under the circumstances, acted in self-defense. The verdict of the jury was in favor of plaintiff.
    Appellee was a passenger for appellant’s outbound passenger train, and the brakeman on the train was on duty at the time near the platform or steps of the coach, assisting passengers to the coach and examining their tickets. The evidence is undisputed that appellee was intentionally struck upon the head, jaw, and shoulders by the brakeman with an officer’s “billy” held around his wrist with a strap, which is described as .being of walnut or black locust wood, between six and eight inches long, the handle leather covered and the outer end leaded. There is a wide difference, however, between the parties as to the occurrences at the time of and just preceding the commission of the assault. Each party, under the evidence, claims that the other was the aggressor, and that the assault which led to the conflict was by him. According to the evidence in appellee’s behalf, the ultimate facts appear that appellee, his son, M. F. Chestnut and son, and T. A. Brewer constituted a fishing party en route to Spirit Lake, a station on appellant’s road.
    The party came to the depot at Texarkana about 7 o’clock a. m., and the train was about ready to depart. Mr. Brewer and the two boys, with the luggage, went directly to the train, and appellee, and Mr. Chestnut went into the ticket office to buy the tickets for the party. The brakeman at the platform of the coach refused permission to Brewer and the two boys to enter the coach without tickets, as required by the rules of the company. Brewer then stood near the steps of the coach, stating to the brakeman that two of the party would be there in a moment with the tickets. After purchasing the tickets, ap-pellee and Chestnut came to the coach. As appellee was approaching the coach, and near to it, he said to Brewer, “Why haven’t you fellows got on with the baggage?” and Brewer answered, “Hurry up for God’s sake, with the tickets, so we can get on.” Brewer then attempted to get upon the first step of the coach, and the brakeman abruptly pushed him back and said, “By God, you can’t get on until you show your tickets!” Appellee at the moment said, “That is no way to treat a white man;” and the brakeman, turning, said: “What the hell have you got to do with it? That’s my business.” Appellee replied, “Nobody is going to beat their way on the train.” The brakeman answered, “That is my business, to see that you don’t get on; and you need not get so damn gay about it.” Appellee replied, “There is nobody getting gay, and you need not be so smart, either.” Mr. Chestnut then handed the tickets for all the party to the brakeman, who looked at them and handed them back to Mr. Chestnut; and, then pointing his _ finger at appellee, said, “By God, you shali not get on at all.” Appellee replied, “Watch me and see me get on,” and proceeded to go upon the steps of the car, a minnow bucket in one hand and fishing rods in a ease in the other hand. Immediately as the appellee mounted the first step, the brakeman, standing slightly to the left or east of the first step, took hold of the rail on the coach with his left hand, and in an angry mood reached his right hand to his hip pocket and began to pull therefrom an officer’s “billy.” Mr. Brewer, standing by the brakeman’s right side at the time, believing it was a pistol, grabbed the right hand of the brakeman and attempted to prevent his drawing, the billy, and at the same time hollered to appellee, “Look out, Jim, he is going to shoot you.” Appellee at once turned his head around; and seeing the brakeman actually drawing something from his hip pocket, and the effort of Brewer to prevent it, immediately dropped the luggage in his hands, turning kicked the brakeman in the mouth, and then quickly jumped into the árms of the brakeman, as he said, “for the purpose of keeping the brakeman from shooting.” The brakeman then forcibly struck appellee ,a number of times over the head, jaw, and shoulders with the “billy.” Appellee, during the time lie was being struct, resisted the attach and finally grabbed the brakemun’s throat with Ms hand, when, by this time, sufficient bystanders interfered and stopped the affray. Appellee had no weapon at all. The proof shows that the brakeman was over 6 feet tall, weighed 175 pounds, and was a powerful man'. Appellee was a much smaller man. The brakeman testified as follows:
    “When Mr. Brewer came up X stopped him and asked Mm for his tickets, .and he said a man was coming- with them; and presently Mr. Chestnut and Mr. Huddleston came up together and showed me the tickets. The first thing-was, Mr. Brewer said, ‘For God’s sake, show this son of a bitch the tickets before he has a fit,’ or something like that. I told Mm I was there to inspect tickets and had to see them before he got on the train. Mr. Huddleston walked up and said, ‘You think you are a damn smart son of a bitch.’ I had not said a word to him, and had noil asked him for his ticket. I said, ‘No, I ain’t a smart son of a bitch, but I am working- for a living, and I was going to see his ticket before he got on the train.’ Then he said, ‘Damn you, I am going up; do you see me?’ And he got up on the step. Mr. Chestnut showed me the tickets after Mr. Huddleston got up on the step, and I said, ‘I have seen the tickets, and he could go on in and sit down.’ Then he (Huddleston) wheeled around on the steps and kicked me in the mouth. It cut my lip clear through and knocked two teeth loose. My lip bled a whole lot. I reached for him when he kicked me, and I made the remark, ‘Here is whore I clean you;’ then we engaged in a fight. I did not pull my billy before he kicked me in the mouth, and made no effort to pull it, and had no idea of pulling it. * * * I had never seen Mr. Brewer prior to the time he came up there, and had never seen Mr. Chestnut and Mr. Huddleston, and there was not a bit of feeling between us before that time. They were perfect strangers to me.”
    The jury settled the conflicting evidence as to the aggressor in favor of appellee. And, in view of the conflict respecting the occurrence of the assault, this court would have to take the verdict of the jury. The verdict comprehends the finding of fact, which is here adopted, that the brakeman, without justification and wrongfully, assaulted and committed a battery upon appellee, inflicting injury upon him while a passenger. The evidence fairly warrants the amount of the verdict.
    Class, Estes, King & Burford and C. A. Wheeler, all of Texarkana, for appellant. Mahaffey & Thomas, of Texarkana, for appel-lee.

       writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

In exoneration of any liability for the brakeman’s act, the appellant claimed, both in its answer and proof, that whatever injury appellee sustained was inflicted by the brakeman in the legal and reasonable defense of his own person from an attack made by appellee on him. And the court’s charge in the third paragraph defined, and in the fourth paragraph applied to the facts of the case, self-defense, in justification of the brakeman. As both the second and third assignments of error complain of this portion of the charge, they may be here considered together. It is first objected that a mere abstract statement relating to the law of self-defense, as applied in criminal cases, is improper and prejudicial. The law of self-defense and the stage of the difficulty at wMch self-defense ceases are the same in civil cases as in criminal prosecutions, with the exception that the strict rule of evidence applicable to the degree of proof in a criminal prosecution, which must exclude reasonable doubt, is not extended to civil actions. March v. Walker, 48 Tex. 372. It is not thought that a reversal of the judgment is warranted upon the ground that the instruction was but a definition, if the court, in applying the law to the issue of self-defense as a justification of the act of the brakeman, did so correctly. The instruction is as follows:

“Now, if you find from the evidence that the defendant’s said brakeman, did, at the time and place alleged by the plaintiff, make an assault on the person of plaintiff, but further find from the evidence that, at the time such brakeman did so, the plaintiff was making or was about to make an assault upon the said brakeman, which had not been provoked by the wrongful conduct, if any, of said brakeman, and which, viewed from the standpoint of such brakeman and no other, reasonably caused him to believe he was in danger of suffering death or bodily injury at the hands of the plaintiff, and the brakeman made the assault, if any., upon the plaintiff for the purpose of defending himself from what reasonably appeared to Mm to be danger of death or bodily injury at the hands of the plaintiff, and such brakeman used no more force than to him at the time appeared reasonably necessary to his defense, then and in the event you so find you will return a verdict for the defendant.”

The giving of the instruction is objected to by appellant upon the grounds: (1) That the liability for assaults on passengers is based on negligence; and (2) that it limited the right of defense by tbe brakeman to (a) an assault or threatened assault by appellee “wMch had not been provoked by the wrongful conduct, if any, of said brakeman,” and (b) the use “of no more force than to him at the time appeared reasonably necessary to his defense”; and (3) the undisputed evidence shows such misconduct and violent conduct of the passenger as to preclude his recovery.

First, in this case it is not contended that the battery of the brakeman was not intentional, but a mere casualty. In that case, if the battery was not intentional and purposed, the defendant therein is guilty of no wrong, save his negligence, and the plaintiff could not recover at all without showing a want of ordinary care on the part of the defendant. The difference between such case and the instant one is substantial and vital. Here the brakeman intentionally and purposely perpetrated the battery. If intentionally done, it was not negligently done. And, in cases where the injury is caused by intentional violence inflicted upon the person, the plaintiff’s right of recovery would he measured by the rule of whether or not his assailant was justified or excused by all the-circumstances In committing the act. Croft v. Smith, 51 S. W. 1089. A corporation is liable for an assault and battery when its agent in committing it was performing some act within the limits of his authority, but without justification or excuse, or with excessive force. 1 Cooley on Torts (3d Ed.) 202; Dillingham v. Anthony, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753.

And next, measuring the right of the brakeman to self-protection as a justification, the court left to the jury to find whether or not the assault of the appellee, which the brakeman was claiming to resist, had been “provoked by the wrongful conduct, if any, of the said brakeman.” The instruction in legal effect is that a plea of self-defense cannot be sustained where the defendant was the aggressor and provoked the encounter in which the battery was committed. At the trial it appeared that the appellee struck the first blow. But it was claimed by appellee that the brakeman was the aggressor, and that his assault, which led to the conflict, was in consequence of an attack being made upon him by the brakeman. And there is evidence going to sustain appellee’s contention that the brakeman was actually attempting to make an assault upon him with a dangerous weapon, and within striking distance, when he kicked him to prevent the attack. In such evidence the issue was in the case of menace by overt act on the part of the brakeman, and therefore the court did not err in requiring the jury to find, in order to a perfect right of self-defense, that the brakeman was free from wrong in occasioning or producing the necessity which required his action. And neither did the court err, it is thought, in leaving to the jury to find whether or not the force used was reasonable. Whether or not the force used was reasonable is a question of fact to be determined from the evidence by the force used at the time and the circumstances of the occasion and the nature of the act done. The issue, we think, was made by the circumstances. And it is not thought that the evidence was so far one way as to warrant the ruling, as a matter of law, that the misconduct or violent conduct of the appellee was so far a wrongful act as to preclude a recovery.

We have considered the remaining assignments, and think they should be overruled. The issues made by the evidence were correctly submitted in the court’s charge and the special charges given at the request of the appellant.

The judgment is affirmed.

On Rehearing.

A ground, among others, set up for reconsideration by this court, is the refusal of the trial court to give the following instruction:

“You are instructed that the plaintiff cannot recover damages that are the direct result of his own wrongful and negligent conduct. In this case, if you find from the testimony that the difficulty between the plaintiff and the brakeman was occasioned by wrongful conduct on the part of the plaintiff (that is to say, if the difficulty was provoked by the plaintiff and the damages sustained by him were the direct consequences and result of such provocation), then the plaintiff cannot recover, and your verdict, in such event, should be for the defendant.”

The point made now, as in original consideration, in respect to the refused instruction, is in line with the case of Railway Co. v. Gerren, 57 Tex. Civ. App. 34, 121 S. W. 905, that, if the plaintiff provoked the difficulty and brought about the rencounter, the company would not be responsible. It is thought, though, as before considered, that the following special charge requested by appellant and given to the jury by the court sufficiently, under the evidence, covered the idea of such refused charge, viz.:

“If from the testimony you believe that, after the plaintiff had gotten to the platform of the coach and had passed the brakeman Knox, he (the plaintiff) turned, without provocation at that time, and addressed to said Knox a vile and insulting epithet and kicked him in the mouth, and that not until he was so kicked did the said Knox strike or offer to strike the plaintiff, and that a difficulty followed in consequence of the plaintiff’s kicking Knox under the circumstances and in consequence of an effort on the part of Knox to prevent the plaintiff from kicking him again or striking him, then the plaintiff cannot recover in this case for the damages, either physical or mental, he sustained in consequence of the said difficulty.”

It is believed that the motion should, in all things, be overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    TEXAS CITY TERMINAL CO. et al. v. THOMAS.
    (No. 6832.)
    (Court of Civil Appeals of Texas. Galveston.
    May 6, 1915.)
    1. Carriers &wkey;>406 — Carriage of Passengers — Baggage—Liability.
    Unless there is a through ticket or a through contract of carriage over the lines of two carriers, there is no joint undertaking or liability on the part of such carriers, and, where passage is had on separate tickets, one carrier cannot be held liable for loss of baggage by the other carrier.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1550-1553; Dec. Dig. &wkey;>406.]
    2. Husband and Wife (&wkey;203 — Married W omen — Actions—Aband onment.
    Where a husband so abused his wife that she left him and returned to her mother, he was guilty of abandonment, and she might thereafter, the two living apart, sue as a feme sole.
    [Ed. Note. — Por other cases, see Husband and Wife, Cent. Dig. §§ 280, 738, 740-747, 968, 969; Dec. Dig. <&wkey;>203.]
    3. Appeal and Error <&wkey;544 — Record — Bills of Exception — Necessity.
    Unless the denial of defendant’s motion for continuance is presented by an appropriate bill of exceptions, the matter will not, under rule 55 for district and county courts, be reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    4. Appeal and Ebbob <&wkey;553 — Bill op Exceptions — Necessity—Substitutes.
    A recital in the judgment that defendant excepted to the overruling of his application for a continuance will not take the place of a proper bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dec. Dig. <&wkey;>553.]
    5. Appeal and Ebbob <&wkey;>732 — Review—Assignments op Ebbob.
    An assignment that the court erred in overruling defendant’s motion for new trial is too general for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. <&wkey;> 732.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Mathilda Thomas against the Texas City Terminal Company and the Galveston-Houston Electric Railway Company. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered as to the Electric Company, and affirmed as to the Terminal Company.
    W. T. Armstrong and Chas. P. Macgill, both of Galveston, and Wilson, Dabney & King and Geo. A. Hill, Jr., both of Houston, for appellants. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.
   LANE, J.

This suit was originally instituted by appellee on the 28th day of February, 1914, against appellants, to recover the value of a trunk and its contents. In her original petition appellee alleges that she is a married woman, but is living in a state of separation from her husband, who refused to join her in the suit; that appellants are common carriers of passengers and baggage for profit, and operate a line of railroad and motor cars from Texas City to Texas City Junction, and from said junction to Galveston; that on or about January 21, 1914, she purchased a ticket from the defendant’s agent at Texas City, which entitled her to passage from Texas City to Texas City Junction over the railroad of the Texas City Terminal Company, and from thence over the line of the Galveston-Houston Electric Railway Company; that said ticket also entitled her to the right to have her trunk checked and transported by defendants from Texas City to Galveston; that the agent of defendants at Texas City told her that he would have her trunk safely transported by defendants and delivered to her at Galveston; that he wrote her name and destination on a card and attached the same to her trunk and told her that her trunk would be delivered to her on the following day; that her trunk was lost, to her damage in the sum of $302.

On the 13th day of March, 1914, the Texas City Terminal Company, hereinafter called terminal company, filed its answer and pleaded that it operated its line of railroad from Texas City to Texas City Junction; that it operates no railway between Texas City Junction and Galveston; that it sold no ticket to plaintiff for through passage to Galveston; that, if plaintiff’s trunk was delivered to it for transportation, it was transported by it to the junction, and there delivered to the Galveston-Houston Electric Company, and plaintiff’s trunk was not lost by it.

On March 17, 1914, the Galveston-Houston Electric Railway Company, hereinafter called electric company, filed its answer and pleaded in abatement: First. That plaintiff’s petition is insufficient in law, because it appears therefrom that plaintiff is a married woman, having a husband living, who has not abandoned her, and who is a necessary party to this suit, and therefore this suit should be dismissed. Second. That it is improperly joined as defendant with the defendant terminal company. That there is no joint contract or understanding as between said defendants as plaintiff alleged, but that it appears from plaintiff’s petition that each defendant entered into a separate and independent contract, if any, with the plaintiff, wherefore it prays that the suit be dismissed because of improper joinder of parties. Specially pleading, it denies generally the allegations of plaintiff’s petition, and, further answering, says that it operates a line of motor cars between Texas City Junction and Galveston. That it has no line of railway between Texas City Junction and Texas City. That it has never at any time entered into a contract with the terminal company, or any other company, for the carriage of passengers or baggage between the last-named points. That it never at any time received plaintiff’s trunk for transportation.

On April 8, 1914, the day the case was tried, plaintiff filed her first supplemental petition, alleging that her husband had abandoned her long prior to the institution of this suit, and that they have lived in a state of separation ever since her husband abandoned her, and that her husband refuses to join her in the suit, and that the property sued for is her separate personal property; that the two defendants are connecting carriers, and that the ticket purchased by her read for continuous passage, and entitled her to a continuous passage, with her baggage to Texas City Junction and from there over the line of the electric company to Galveston; that both companies were obligated to transport her and her trunk to Galveston on said ticket; that the agent who sold her the ticket was the joint agent of both companies; that since she filed her original petition, to wit, on March 25, 1914, two agents of the defendant companies delivered her trunk to her in,Galveston; that said agents fraudulently induced her to sign a release reciting that her trunk was received in as good condition as when delivered to the terminal company at Texas City, and releasing defendants from any liability whatever; that said agents told her the paper signed by her was only a receipt for her trunk; that they did not read said paper to her nor permit her to read the same; that when she opened her trunk she found the contents thereof badly damaged and almost worthless; that her trunk was also badly damaged — to her total damage in the sum of §209.

Both defendants claimed surprise by the new matters pleaded by plaintiff just before trial, insisting that an entirely new cause of action had been set up by plaintiff, and filed a motion for a continuance that they might have time to meet and refute said new cause of action so made by plaintiff’s supplemental petition. Whereupon the court refused said motion for continuance and gave defendants one hour to prepare for trial. Before the trial began, both defendants filed supplemental answers, alleging that on the 25th of March, 1914, plaintiff, upon receipt of her trunk and its contents, executed and delivered to each of defendants a full release, as follows:

“I. Mrs. Mathilda Thomas, have this day received one trunk and its contents belonging to me in good condition as checked out of Texas City by the Texas City Terminal Company to be transported to Galveston by the Galveston-Houston Electric Company, and I hei’eby release said Texas City Company, and Galveston-Houston Company, of all and every liability in the mat-
“Galveston, Texas, March 25, 1914.
“Mrs. J. A. Thomas.
“Witnesses:
“Chas. P. McGill.
“J. B. Farley.”

They also deny generally ana specifically the matters alleged by the various paragraphs of plaintiff’s supplemental petition, and deny that plaintiff was induced by misrepresentations to sign said receipt, but aver that, on the contrary, said release was read to her at the time she signed the same, and that she signed same with full knowledge and understanding of its contents and meaning.

The defendant electric company again repeated its allegation that the trunk of plaintiff never was in its possession at any time, and therefore it could not be held liable for any damage thereto, if any.

The case was tried before the court on the above pleadings, without a jury, and judgment was rendered for plaintiff for §209, from which judgment both defendants have appealed.

Believing, as we do, that a proper disposition of the third assignment of error of the appellant electric company will finally dispose of all the issues involving said company in this suit, we shall first dispose of said assignment, which is as follows:

“The undisputed evidence shows that the plaintiff's trunk and the contents thereof were never delivered to this defendant by the plaintiff or the Texas City Terminal Company, or any one else, and that said trunk was never in the possession of this defendant, nor did defendant contract to carry said trunk and the contents from Texas City Junction to Galveston, Tex., without the proper delivery thereof to this defendant at Texas City Junction, and its acceptance thereof, neither of which was done; and the undisputed evidence further shows that the plaintiff purchased two separate tickets, one from Texas City to Texas City Junction, via Texas City Terminal Company, and one from Texas City Junction to Galveston, via the line of this defendant, and that there was no joint contract or traffic agreement between the lines of the two defendants and no joint responsibility for the acts of each other. Wherefore defendant says that the court erred in rendering judgment against it. Defendant says that the judgment of the court is contrary to the law and evidence in this: The undisputed evidence shows that the entire damage, if any, to plaintiff’s trunk and contents, resulted while said trunk was in the possession of the American Express Company, a corporation, operating and doing an express business over the line of the Galveston, Houston & Henderson Railroad Company, and that said trunk was transported to Galveston, on the day that plaintiff shipped said trunk from Texas City, by said American Express Company, and that, on the day following, a postal notice of arrival was duly mailed by said American Express Company to plaintiff, and said trunk was never called for by plaintiff; and said trunk was never delivered to defendant Galveston-Houston Electric Railway Company, and was never at any time in its possession, nor at its junction with the Texas City Terminal Company, and the contract of carriage over the line of this defendant was a separate and independent contract, and there was no joint contract with the Texas City Terminal Company, or any one else, by reason whereof there should have been no recovery against this defendant, for the default, if any, of its code-fendant. Wherefore defendant says the court erred in rendering judgment against it.”

Where there is no through ticket or through contract for carriage over the lines of railway of two carriers, but passage is had on two separate tickets, evidencing separate contracts for carriage, there is no joint undertaking or liability on the part of such, carriers, and one cannot legally be held liable for the default of the other; and the undisputed evidence in this case being that the plaintiff purchased two separate tickets, one for transportation via the terminal company from Texas City to Texas City Junction, and one for transportation via the electric company from Texas City Junction to Galveston, and the evidence being undisputed that plaintiff’s trunk was never delivered to the electric company at Texas City Junction, or was ever in its possession, but was transported into Galveston by the American Express Company, operating over the Galveston, Houston & Henderson Railroad Company, it results that there can be no liability with the appellant electric company for the damages to plaintiff’s trunk and contents occasioned by the default of the American Express Company or the terminal company.

Assignment No. 3 being supported by the undisputed evidence, the trial court should have instructed a verdict for appellant Galveston-Houston Electric Railway Company. So believing, we bere reverse so much of tbe judgment of tbe court below as adjudged a recovery against tbe Galveston-Houston Electric Railway Company and render judgment for said company.

Having disposed of tbe appeal of tbe electric company, we will now take up and consider assignments of error of tbe appellant terminal company.

The first assignment found in the brief of appellant terminal company is:

“That the court erred in rendering judgment in favor of plaintiff, Mathilda Thomas, while suing as a feme covert without the joinder of her husband as a necessary party plaintiff, because the evidence offered by plaintiff in support of her allegations of grounds authorizing her to sue without the joinder of her husband fails to support such allegations.”

Tbe first proposition under tbis assignment is that tbe fact authorizing a married woman to sue alone must be proved as laid, just as any other fact.

In appellee’s supplemental petition she alleged :

“That her husband is not a necessary party to this suit, for this: That plaintiff was abandoned by her said husband long prior to the institution of this suit, and that the parties have lived in a state of separation ever since the time her husband abandoned her; that her husband has refused to join her in this suit; and that this suit is for the recovery of and damages to her wearing apparel and personal property.”

Tbe plaintiff testified on April 8, 1914, tbat on tbe 21st day of January, 1914, ber bus-band assaulted and slapped ber; tbat be slapped ber good, and for tbat reason, and because be would not support ber, she left bim on tbat day, and that she bad not seen nor beard of bim since she left bim; tbat be bad not contributed anything to ber support, but bad abandoned ber. She says she did not ask bim to join ber in tbis suit; that tbe property involved in tbe suit was ber wearing apparel and ber separate personal property.

Tbe trial court in his findings of fact finds that on tbe 21st day of January, 1914, appel-lee’s husband bad violently assaulted ber, and that she bad left bim with tbe express intention of not living with bim again, and bad gone to ber mother in Galveston with tbe intention to make that ber borne. We do not think under tbe fact findings of tbe court, and tbe testimony of tbe appellee, it can be said tbat appellee voluntarily abandoned ber husband, but, on tbe contrary, tbat be drove ber from their home. Tbe testimony of ap-pellee is undisputed, and, we think, was sufficient to sustain tbe allegation tbat ber bus-band bad abandoned tbe wife at tbe time suit was filed and trial bad, and therefore overrule appellant’s first assignment of error.

We think the court’s finding that the busband of appellee had violently assaulted her on tbe day she left bim, and tbat tbe separation was permanent, is supported by the evidence, and we therefore overrule tbe second, third, fourth, and fifth assignments of error.

The sixth assignment is as follows:

“The court erred in not granting defendant’s request for a continuance, and forcing this defendant to trial, for the reason that plaintiff filed a lengthy amended or supplemental petition by leave of the court at the time the case was called for trial, setting up an entirely new and different cause of action, in this, to wit: The sole cause of action set up in plaintiff’s petition was for the loss of a trunk and its contents, which issue this defendant was prepared to meet, whereas the amended or supplemental petition, some eight pages in length, filed by leave of the court at the time the case was called for trial, abandoned the issue of the loss of the trunk and its contents, and set up, as a cause of action, damages to the trunk and its contents, which cause of action was a surprise to this defendant which it was not prepared to meet.”

There was no bill of exception reserved by appellant terminal company to tbe action of tbe court in overruling its motion for continuance; and, in tbe absence of such exception, tbis court will not review tbe action of the court in so overruling said motion. See rule 55 for district and county courts (67 S. W. xxiv); Railway v. Crump, 110 S. W. 1013; Railway v. Bowles, 32 Tex. Civ. App. 118, 72 S. W. 451; Scalfi v. Graves, 31 Tex. Civ. App. 667, 74 S. W. 795.

A recital in tbe judgment tbat appellant excepted to tbe action of tbe court in overruling bis application for continuance is not sufficient to require tbe appellate court to review tbe ruling of tbe trial court. Campion v. Angier, 16 Tex. 93; Harrison v. Cotton, 25 Tex. 53; Simpson v. Texas Tram & Lumber Co., 51 S. W. 655. In the last-cited case it is said:

“The exception noted in the judgment * * * will not supply the place of a proper bill of exceptions.”

Appellant’s seventh assignment is “tbat tbe court erred in overruling tbe defendant’s motion for a new trial.” This court has uniformly held, and still bolds, tbat such assignment is too general to require consideration.

What has been said disposes of all tbe assignments of appellants, and we conclude tbat so much of tbe judgment of tbe trial court as is against tbe Texas City Terminal Company should be affirmed, and tbat so much of said judgment as is against tbe Galveston-Houston Electric Railway Company should be reversed, and tbat judgment should be bere rendered for said Galveston-Houston Electric Railway Company; and it is so ordered.

Affirmed in part. Reversed and rendered in part.
      ^s>For other cases see same topic and KBY-NUMBBR in all Key-Numbered Digests and Indexes

      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HEBERT et al. v. SCURLOCK et alt.

    (No. 6923.)
    (Court of Civil Appeals of Texas. Galveston.
    May 28, 1915.
    Rehearing Denied June 17, 1915.)
    1. Deains <S^>14 — Proceedings—Erections— Election Contest.
    Rev. St. 1911, arts. 2568-2571, 2573, 2576, 2577, give the commissioners’ court jurisdiction of a petition for the establishment of a drainage district, and the validity of the establishment of the district cannot be collaterally questioned in a contest over the validity of a bond election provided for by articles 2580 and 2581.
    [Ed. Note. — Por other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. <j&wkey;14.]
    2. Drains &wkey;>18 — Elections—Voters.
    Under Rev. St. 1911, art. 2580, declaring that only resident property taxpayers who are qualified voters of a drainage district shall be entitled to vote at bond elections, a qualified voter, who was in fact a property owner, is entitled to vote, though he is not shown by the tax rolls to be a property owner.
    [Ed. Note. — Por other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. &wkey;18J
    3. Appeal and Error <&wkey;1027 — Review — Harmless Error.
    The refusal of the court in an election contest to cast out alleged illegal ballots is harmless, where, if such ballots had been rejected, it would not have affected the result.
    [Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. &wkey;jl027.]
    4. Drains &wkey;>18 — Drainage Districts — Bond Election.
    Rev. St. 1911, art. 2581, requiring every person offering to vote in elections held to issue bonds by a drainage district to take an oath that he is a qualified voter and a resident taxpayer of the proposed district, is merely directory, and a failure to require such oath will not invalidate the election.
    [Ed. Note. — Por other eases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <&wkey;18.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Election contest by W. A. Hebert and others against Marvin Scurlock and another. From a judgment against contestants, they appeal.
    Affirmed.
    Lipscomb & Lipscomb, of Beaumont, for appellants. J. D. Wilkerson and Geo. D. Anderson, both of Beaumont, for appellees.

       Writ of error pending in Supreme Court.

   LANE, J.

Appellants instituted this suit against Marvin Scurlock and Robert Wilson, county attorney and county judge, respectively, of Jefferson county, Tex., to contest an election held for the purpose of determining whether or not a designated subdivision of Jefferson county should become a drainage district, to be known as drainage district No. 5. and whether the bonds of such district in an amount not to exceed $175,000 should be issued, to be paid by a tax upon the property within said district, said election being held under and by virtue of chapter 4, Revised Statutes 1911, relating to drainage districts.

Contestants allege in the first paragraph of their petition that they are resident citizens of Jefferson county, Tex.; that they reside within limits of the proposed drainage district No. 5 as fixed in an order of the commissioners’ court of Jefferson county, on June 8, 1914; that the election contested was held on the 2d day of July, 1914, and the result declared July 13, 1914, as being 92 votes in favor of and 34 against the establishment of said district;’ that in fact there were only 124 votes cast as shown by the poll list, and of these more than 34 were against creating said district.

By paragraph 2 it is alleged that the order for the election is void for the following reasons: Because the drainage district designated is not intended to be such a drainage district as is contemplated by law, as its establishment would not result in the benefits desired, but would result in injury to the properties of citizens of the county, far more than the sum of $175,000, the amount of the proposed bond issue; that the plan of drainage proposed would not empty the waters drained into the sea or into streams whose natural condition would carry off such waters without damage to lower owners, but said waters would be emptied into existing drain-ways which are insufficient to carry off the accelerated flow thus emptied into them, and would result in damage to property adjacent to said drainways, both inside and outside of said proposed district; that the persons whose properties would be thus damaged are without adequate means of protection or indemnity, and therefore the establishment of said district is in violation of the drainage law and of the Constitution of Texas and the fourteenth amendment of the Constitution of the United States, since it will deprive said property owners of their property without due process of law; that said proposed drainage is not to be so laid off as to benefit all the lands to be taxed for its maintenance, but chiefly and primarily is for the purpose of furnishing means of drainage for highly valuable lands not within said district; that by said proposed drainage some of the lands included in said district will be benefited and some of it will be damaged; that it is the purpose of those favoring the establishment of said district to discriminate against and to deny some of the owners affected the equal protection of the law; that said designated territory was so laid out as to include those favoring and excluding those opposed to the establishing of said district; that the effect of the creation of such district is to fix unjustly and without the consent of the owners of property discriminated against a lien upon their property without any corresponding benefit; that the proper survey and report as required by law was not made; that said proposed plan is impracticable and cannot be put in successful operation. There are many other similar allegations, but those already stated are sufficient to explain the substance of said paragraph 2.

Paragraph 3 of the petition is as follows:

“For all of the reasons stated in the foregoing paragraphs, which apply equally to the petition for election and to the said order of election, the contestants say the said petition was a fraud upon the rights of these contestants, and others owning property in said proposed district, and was illegal and void for illegality, and therefore the said order for election founded on same was illegal and void.”

Contestants also alleged that there was no sufficient notice of said election given; that 80 or more able-bodied persons were carried to the polling places by those interested in said election, and that those so carried voted for the creation of said district, and but for such acts the result of said election would have been different, or at least such acts made it impossible to ascertain the true result. It is further alleged that some persons who voted at said election did not reside in said district, and that others had not resided therein for six months next preceding said election; that of those who voted there were more than 30 who were not sworn, as required by article 2581, Revised Statutes; that about 20 of those who voted were not property taxpayers living within said district.

There are also further allegations of improper, illegal, and fraudulent acts which, if proven, would be legal cause for annulling said election.

Contestees excepted generally to paragraphs 2 and 3 of contestants’ petition, because -it appears from said paragraphs that the election was held and resulted in the establishment of said drainage district and no legal grounds for contest of the election are set forth therein, which exceptions were by the court sustained, and said paragraph^ wére stricken out. All other exceptions of contestees were by the court overruled.

Contestees, answering to the merits, specifically deny the wrongs alleged in each of the paragraphs of contestants’ petition.

Upon the foregoing pleadings the case was tried before the court, who, after hearing the evidence, rendered judgment against contestants. From such judgment contestants have appealed.

Appellants’ first assignment of error is as follows:

“The court erred in sustaining the exception numbered 2a in answer of contestees directed at section No. 2 and subdivisions A, B, C, D, and B thereof in contestants’ petition or written statement of their ground of contest.”

By article 2568, Revised Statutes 1911, it is provided that when the petition provided for by law, accompanied by the deposit ($200) provided for in article 2602, shall be presented to the commissioners’ court, said court shall set said petition down for hearing at some regular or special session of said court called for the purpose, and order the clerk of said court to give notice of the date and place of hearing by posting a copy of the petition and the order of the court thereon in five public places, etc. And by other articles of said chapter 4, it is provided:

“Art. 2569. Upon the day set by said county commissioners’ court for the hearing of said petition, any person whose land would be affected by the creation of said district may appear before said court and contest the creation of such district, or contend for the creation of said district, and may offer testimony to show that said district is, or is not, necessary, and would, or would not, be of any public utility, either sanitary, agricultural or otherwise, and that the creation of' such drainage district would or would not be feasible or practicable. Said county commissioners’ court shall have exclusive jurisdiction to hear and determine all contests and objections to the creation of such district, and all matters pertaining to the same; and said court shall have exclusive jurisdiction in all subsequent proceedings of the district when organized, except as hereinafter provided, and may adjourn hearing on any matter connected therewith from day to day; and all judgments rendered by said court in relation thereto shall be final, except as hereinafter otherwise provided.
“Art. 2570. If, at the hearing of said petition, it shall appear to the court that the drainage of such district is feasible and practicable, and that it is needed, that the drainage would be conducive to the public health, or would be a public benefit or a public utility, then the court shall so find, and cause its finding to be entered of record. * * *
“Art. 2571. After the hearing of the petition as provided for in articles 2569 and 2570, if the court should find in favor of the petitioners, for the establishment of a district according to the boundaries as set out in said petition, or as modified by said court, then the court shall appoint a cornpetent civil engineer. * * ”
“Art. 2573. The civil engineer shall, as soon as practicable, or within such time as may be directed by the county commissioners’ court, go upon the premises and land embraced within the district and examine the land intended to be drained and protected by levees, and shall locate the necessary canals, drains and ditches, laterals and levees, and make an estimate of the probable cost of making and completing each of them, and shall also designate the stream or streams and bayous necessary to be cleaned, deepened or straightened, and estimate the cost of each, and shall also estimate the probable cost of maintaining same per year, and shall at once make a detailed report of his work to the court.”
“Art. 2576. When such report of the engineer shall have been filed with the clerk of the county commissioners’ court, it shall be the duty of said court at its next regular or special session to set such report down for a hearing at some subsequent regular or special session. * * * At the hearing on said engineer’s report, any freehold taxpayer of said district whose lands may be affected by said drainage improvements, whether he be a resident of such district or not, may appear and object to any and all of said canals, drains, ditches and levees, for the reason that they are not located at the proper places, or that they are not sufficient in number or capacity to properly drain said territory.
“Art. 2577. If there should be no objection to said report, or if there should be objection thereto, and the court should find that the objections are not well taken, the report shall be approved, and the fact of such approval entered of recoi’d on the minutes of said court; but the commissioners’ court shall not be confined to the number of drains, ditches, canals or levees, or to the initial point or outlets of same, as located and shown by said report of the engineer, and may change the location of any of said improvements, or may add to the number of same or reduce the number of same, and order the engineer to locate any additional canals, drains, ditches or levees, which levees may be constructed for the purpose of conducting waters from the lands of said district, or to prevent the overflow of waters from streams or otherwise onto the lands of said district proposed to be drained, or otherwise in aid of said purpose, as directed by the court. * * * ”
“Art. 2580. The manner of conducting said election shall be governed by the election laws of the state of Texas, except as herein otherwise provided. None but resident property taxpayers, who are qualified voters of said proposed district, shall be entitled to vote at any election on any question submitted. * * *
“Art. 25S1. Every person who offers to vote in any election held under the provisions of this chapter shall first take the following oath before the presiding judge of the polling place wherein he offers to vote, and the presiding judge is hereby authorized to administer same: ‘I do solemnly swear (or affirm) that I am a qualified voter of * * * county, and that I am a resident property taxpayer of the proposed drainage district voted on at this election, and I have not voted before at this election.’ ”

. It is also provided by article 2620, Revised Statutes, that by complying with the conditions mentioned therein, the waters from a newly created district may be drained and emptied into a pre-existing drainway.

Contestants’ suit is a contest of an election, and the matters of inquiry should be confined to the acts directly involved in the holding of the election. Whether or not the petition for the drainage district was presented in good faith, and whether or not the commissioners’ court properly performed the discretionary duties imposed by law upon it, and whether or not said court erred in its judgment, are not proper matters of inquiry in this suit. County commissioners’ courts by law have exclusive jurisdiction to hear and determine all contests and objections to the creation of drainage districts, and all matters pertaining’ to the same, and these exclusive powers cannot be questioned in a suit brought to contest an election. The contest of an election is a special proceeding authorized by the statute, and the courts are limited in their investigation to such subjects as are specified in the law. Norman v. Thompson et al., 96 Tex. 250, 72 S. W. 62; Kilgore v. Jackson, 55 Tex. Civ. App. 99, 118 S. W. 819; Parker v. Harris County Drainage District, 148 S. W. 351; Wharton County Drainage District v. Higbee, 149 S. W. 381; Stinson v. Gardner, 97 Tex. 287, 78 S. W. 492.

In the ease of Parker v. Harris County Drainage District, supra, it is said:

“It is provided in section 3 of the Drainage Act of 1907 [Laws 1907, p. 79] that: ‘Said county commissioners’ court shall have exclusive jurisdiction to hear and determine all contests and objections to the creation of such district, and all matters pertaining to the same, and said court shall have exclusive jurisdiction in all subsequent proceedings of the district when organized, except as hereinafter provided.’ The broad powers here given the court are not limited in any of the particulars pertinent to the case here presented, by any other provisions of the act We might be prepared to admit that the power here conferred would not preclude an inquiry into the questions as to whether there was any petition for the creation of the district, or a petition with no signers, or that there was no notice at all given, or attempted to be given, of the various steps in the proceedings, or upon the question of the creation of a district totally different from that embraced in the petition. In such cases it might be said that the court was without power to take the first step in the proceedings, and that to impose a special burden of taxation upon the citizen or servitude upon his lands,_ by the creation of a district under such circumstances, would be to take his property without due process of law within the meaning of the federal and state Constitutions. But that is not the case here presented. There can, we think, be no question that the exclusive jurisdiction conferred upon the court authorized that body to determine whether the petition was void for failure to define the boundaries, whether it was signed by the requisite number of qualified persons, whether the notices called for during the proceedings had been properly posted, and whether the district as finally created conformed in its boundaries to that defined in the petition. If the provision referred to did not include these matters, then the broad language used must be so limited by construction as to rob it of all practical force. The exclusive jurisdiction to hear and determine all contests and objections to the creation of such, district, and all matters pertaining to the same does not admit of any construction so limited as to exclude the matters embraced in the contention of appellants. The only question that could be raised would be as to the constitutional authority of the Legislature to confer this jurisdiction upon the court. If they had such powers, then, the commissioners’ court, in the exercise of this exclusive jurisdiction, having decided all these questions, no other court has authority to' interfere with this exclusive jurisdiction.”

In the case of Wharton County Drainage District v. Higbee, 149 S. W. 381, it is said:

“None of the grounds set out were sufficient to authorize the injunction. This is a collateral attack upon the drainage district, which is a public or quasi public corporation. Parker v. Harris County Drainage District, 148 S. W. 351. * * * The invalidity of such a corporation cannot be collaterally attacked upon grounds of failure to comply with the provisions of the law with regard to its creation and organization by such proceedings as is here instituted for that purpose.”

In view of the statutes and decisions, quoted from and cited, we conclude that the action of the trial court in sustaining eon-testees’ exception to all of paragraphs 2 and 3 of contestants’ petition can no longer be seriously questioned, and we therefore overrule assignment No. 1.

Contestants’ second assignment, in effect, insists that before one is qualified as a voter at an election to establish a drainage district, he must be shown to be a property taxpayer by the tax rolls, although in fact he did own property subject to taxation, and that votes cast at the election in question by parties whose names did not appear on the tax rolls were illegal and should have been rejected, although they did in fact own property in said district subject to taxation.

Article 2580, Revised Statutes, provides that resident property taxpayers who are qualified voters of a proposed drainage district shall be entitled to vote at any election on any question submitted, and we are unable to find any authority to support the contention made by contestants in their second assignment In the case of Hillsman v. Faison, 23 Tex. Civ. App. 398, 57 S. W. 920, tlie court held that all persons who are qualified voters and live in the district may vote, if they own property subject to taxation, whether they appear on the tax rolls or not. It is not contended by contestants that the persons whose votes are challenged are not in fact property taxpayers, but that some of them did not appear on the tax rolls for either 1913 or 1914, and that others did not appear on the tax rolls of 1913, but only on the rolls of 1914, and still others who did appear on the rolls of 1913, but not on the rolls of 1914. If these contentions be admitted as true, such facts would not render votes cast by such persons illegal. We therefore overrule contestants’ assignment No. 2.

Contestants contend that the court erred in declining to east out the votes of Ash-worth, Ramsey, and Le Cour, as it was shown that they did not reside in the district at the time of the election. There is nothing in the record to show whether the court cast out said votes or not, but if it be conceded that he did not do so, such failure could not have changed the result of the election, and therefore if the court committed the error assigned, it would not be cause for reversal. We ■ overrule the third assignment.

’Contestants’ brief does not contain their fourth assignment, but their next assignment in order, as set out in their brief, is designated as the “fifth and other assignments,” and the contentions made are the same as under their second assignment, and are therefore overruled for the same reasons given for overruling said second assignment.

Contestants’ seventh assignment insists that the court erred in upholding the validity of the elections, because a great number of votes, greater than the legal majority, were received without swearing the voters as required by law. While article 2581, Revised Statutes 1911, set out in the first part of this opinion, does require that every person who offers to vote in any election held under the drainage law shall take an oath that he is a qualified voter, and that he is a resident property taxpayer of the proposed drainage district, before he votes, it has been uniformly held, we think, that the statute is directory only, and the failure to administer such oath as mentioned would not disfranchise a voter otherwise qualified. McKinney v. O’Connor, 26 Tex. 5; Stinson v. Gardner, 97 Tex. 287, 78 S. W. 492; Kulp v. Railey, 99 Tex. 310, 89 S. W. 958; Altgelt v. Callaghan, 144 S. W. 1166.

What has been said above fully disposes of .contestants’ eighth assignment, and it is unnecessary to repeat the same under this assignment.

This disposes of all of contestants’ assignments; and, as we find no such error committed by the trial court in the trial of this case as would justify or warrant a reversal of the judgment of the court below, such judgment is in all things affirmed.

Affirmed
      (§=offor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes