text:
    HENSON v. BAXTER et al.
    (No. 7902.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 21, 1914.)
    1. Appeal and Error (§ 1032) — Harmless Error — Admission of Evidence.
    Even if questions to witnesses, in an action by lessors against a lessee for failure to cultivate in a proper manner, as he had agreed— was the land properly cultivated? was it neglected? how much cotton would have been produced on the land planted in cotton if it had been properly cultivated? — were improper, as calling’ for conclusions on a mixed question of law and fact, still, under Court of Civil Appeals rule 62a (149 S. W. x), putting on appellant the burden of showing that error in the course of the trial was such a denial of rights as was calculated to and probably did cause an improper judgment, allowing the questions, and admitting the -answers, that in the opinions of the witnesses the farm was not properly cultivated, but was neglected, and, if properly cultivated, would have produced more cotton than it did, is not ground for reversal; the witnesses testifying to the facts on which their opinions were predicated, from which their conclusions necessarily followed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.]
    2.Landlord and Tenant (§ 136) — Action for Improper Cultivation — Evidence.
    Proof of the amount of cotton raised on the land during the year following that for which it was leased is properly admitted, ’in an action by lessors against the lessee for failure to properly cultivate, as agreed; it being shown that the conditions for producing such a crop were as favorable during the first year as during the second.'
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 487-489; Dec. Dig. § 136.]
    3. Trial (§ 253) — Instructions — Ignoring Issues.
    Defendant’s requested instruction, in an action by lessors against the lessee for failure to cultivate in a proper manner, as he had agreed, that no damages could be allowed for the part of the crop that died after it came up is erroneous in eliminating the issue of it having died of defendant’s negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Trial (§ 260) — Instructions — Repetition.
    A requested instruction substantially covered by the court’s charge need not be given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    5. Landlord and Tenant (§ 15Ó) — Injury to Reversion — Liability oe Tenant.
    A lessee having removed portions of a windmill on the premises to prevent one of his employes using it, and an effort of some one to use it in that condition causing it to break, the lessee is liable to the lessors for the cost of repairing it.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 536, 538, 544-548, 555, 556; Dec. Dig. § 150.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by J. H. Baxter and others against P. R. Henson. Judgment for plaintiffs, and defendant appeals.
    Affirmed.

      Scarborough & Hickman, of Abilene, for appellant. Cunningham & Oliver, of Abilene, for appellees.

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

   DUNKLIN, J.

J. H. Baxter and others, plaintiffs in the trial court, leased a farm to P. R. Henson, defendant, for the year 1911. In this suit plaintiffs sought damages for the alleged failure of defendant to cultivate the farm in a proper manner, as he had agreed to do, and for negligently injuring a windmill situated on the farm. From a judgment against him, the defendant has appealed.

Plaintiff introduced several witnesses who were experienced farmers, and who had observed the manner in which the farm had been cultivated, and propounded to them substantially the following questions, to be answered according to the opinions of the witnesses, respectively: Was the farm properly cultivated? Was it neglected? 1-Iow much cotton would have been produced on the 140 acres planted in cotton if the land had been properly cultivated? In response to. those questions, the witnesses stated in effect that in their opinions the farm was not properly cultivated; that it was neglected: and that, if the land planted in cotton had been properly cultivated, it would have produced more cotton than was raised thereon by Henson. To each of those questions and the answers thereto, defendant objected, upon the ground that the questions called for the conclusions of the witnesses upon a mixed issue of law and fact, which was the specific issue submitted to the jury, and the determination of which was exclusively the province of the jury.

The decision of our Supreme Court in H. & T. C. Ry. v. Roberts, 101 Tex. 418, 108 S. W. 808, is the leading authority cited in support of the assignment of error now under discussion. That was a suit for damages for negligent delay in a shipment of cattle, and upon the trial a witness who was an experienced shipper was permitted, over appellant’s objection, to give his opinion as to “what is a reasonable time within which to transport a train of cattle from Llano to Fairfax when they are transported with ordinary care and diligence? ” It was held that the question called for a conclusion of the witness upon a mixed question of law and fact, and therefore was improper. The decision was upon a certified question by the Court of Civil Appeals, and in the certificate from the latter court the following occurs: “The question was properly raised by an assignment of error, was material, and from the record it possibly influenced the verdict of the jury.”

Reverting to the present case, we are inclined to the opinion that the questions shown above were designed to elicit the opinions of the witnesses upon the issue whether or not the land was cultivated in a good farmerlike manner, and that they were so understood by the witnesses in responding thereto. But it is unnecessary to determine that' question, for we are of the opinion that, even though it should be held that the questions and answers come within the rule announced in Ry. v. Roberts, still the error in admitting them would not require a reversal of the judgment in view of rule 62a (149 S. W. x). As shown in the case last cited, it was stated in the certificate to the Supreme Court that the testimony there admitted “possibly influenced the verdict of the jury.” That decision was rendered before the adoption of rule 62a, and under the old rule as established by a long line of decisions to the effect that an error would be presumed to be harmful in the absence of a showing to the contrary by the party in whose favor it was committed. Under rule 62a' the burden is upon appellant to show that an error complained of was such a denial of the rights of appellant as was calculated to cause and probably did cause the rendition of an improper judgment in the case.

The witnesses in the present case all testified to the facts upon which their opinions, admitted over appellant’s objections, were predicated, and, from those facts so detailed, the conclusions given necessarily follow that the cotton was not cultivated in a workmanlike manner. Those facts were chiefly that appellant permitted weeds to grow between the rows of cotton almost as high as the cotton, and that the crop grown upon the land was considerably inferior to cotton grown the same year on adjoining land of practically the same quality.

Nor do we think that there was error, as urged by the second assignment, in permitting proof of the amount of cotton grown on the same land during the year 1912, as other testimony was introduced which tended to show that the conditions for producing such a crop during the year 1911 were practically as favorable as those prevailing during the year 1912, if not more so.

By one proposition submitted under this assignment -it is insisted that evidence of amount of rents realized in 1912 was improper, for the reason that there was no proof that the prices of cotton during that year were the same as during the previous year. A sufficient answer to this is that the testimony set out in the bill of exceptions made the basis of the assignment was confined to the amount of cotton raised during the year 1912, and contained no reference to the prices realized therefrom. >'

Complaint is made of the refusal of appellant’s requested instruction, in effect, that no damages could be allowed for that portion of the crop' that died after it came up. The instruction was erroneous in eliminating the issue whether or not such loss of the cotton was due to negligence of appellant. Furthermore, the defense there suggested was substantially covered by the court’s charge.

It is insisted, further, that the court erred in refusing another requested instruction which was a summary instruction to allow no damages for injury to the windmill on the farm. This assignment must be overruled for, according to appellant’s own testimony, he removed certain portions of the mill to prevent one of his employés from using it, and an effort of some one to use it in that condition caused the mill to break, and, according to the testimony of one of appellees, it cost some $18.50 to repair such breakage.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    AMICABLE LIFE INS. CO. v. KENNER et al.
    (No. 5269.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.)
    1. Appeal and Error (§ 569) — Statement of Facts — Paeties Signing.
    It was not necessary for certain defendants to sign the statement of facts, where their interest was not affected by the appeal, and appellant does not complain of the judgment as to them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.]
    2. COEPOKATIONS (§ 82) — REPRESENTATION BY Agent.
    Where defendant’s agent received money for it on a stock subscription, defendant was liable for the money in its agent’s hands, and hence was liable for its return, if the contract under which the money was paid required its return in certain contingencies, which happened.
    [Ed. Note. — For other cases, see Corporations. Cent. Dig. §§ 2S5-295; Dec. Dig. § S2„J
    3.COEPOEATIONS (§ 76) — STOCK — SUBSCRLPtion Conteacts — Repudiation.
    Where notes given for corporate stock were attached to and made a part of the subscription contract, the rejection of the notes, together with the failure to deliver the shares to the person contracting for them, justified him in concluding that the subscription contract had been rejected.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 197-209, 213-218; Dec. Dig. § 76.]
    4.Principal and Agent (§ 169) — Authority op Agent — Estoppel to Deny.
    One who authorized another to make contracts as agent for the sale of corporate stock cannot deny the agent’s authority to make the particular contract made, where it ratified the form of the contract, and sought to recover on it in a cross-action, when sued to recover payments made under it.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 636, 637; Dec. Dig. 169.]
    5.Corporations (§ 88) — Stock—Subscription Contracts.
    Where a stock subscription contract provided that $5 a share should be paid in cash to the corporation’s agents as compensation for their services in procuring the contracts, the corporation could not object that the agents accepted a less sum from the purchaser, except- that, in case of the rejection of the contract, it was .bound to return the,sum accepted by the agents under the provision of the contract requiring the return of the amount paid in case the contract was rejected.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 337-364, 425-428; Dec. Dig. § 88.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by E. B. Kenner against the Amicable Life Insurance Company and others, in which defendant named filed a cross-action. From a judgment for plaintiff against the defendant named and another, it appeals.
    Affirmed.
    Spell & Sanford and W. W. Ñaman, all of Waco, for appellant.' Stewarts and J. E. Quaid, all of Galveston, for appellees.

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

   FLY, C. J.

E. B. Kenner sued appellant H. M. Baine & Co. and L. C. Gibbs to recover the sum of $250, an amount alleged to have been paid to Gibbs and Baine & Co. on certain shares of stock in the corporation. A receipt for the sum of $500 was copied into the petition, in which it is recited: “Received of Dr. E. B. Kenner, of Galveston, the sum of $500.00 as part payment for 100 shares of the capital stock of Amicable Insurance Company of Waco, Texas, as set forth in his subscription contract numbered same as this receipt and bearing even date herewith. Should said subscription contract be not accepted by said company, the amount paid as per this receipt will be returned, together with note settlement as per back of receipt.” The receipt was signed “H. M. Baine & Company, Fiscal Managers, by M. M. Leach, Secretary,” and countersigned by “L. C. Gibbs, Salesman.” Appellant interposed a plea of privilege, which was overruled, and- then answered that the money was not paid to nor received by appellant, but, if paid at all, was paid to H. M. Baine and L. C. Gibbs, and that only $250 was paid .to them by Kenner, and that neither Baine nor Gibbs were acting for appellant in receiving the money. Kenner dismissed as to Baine & Co., and their plea of privilege was sustained as to the cross-action of appellant, and judgment was rendered in favor of Kenner against appellant and Gibbs for $250.

Kenner and appellant agreed to the statement of facts, and it was approved by the trial judge. It was not signed by II. M. Baine & Co. or L. C. Gibbs, and Kenner seeks to strike out the statement of .facts because not signed by those parties. There is no complaint made by appellant of the judgment as to Gibbs and Baine & Co., and this appeal can in no manner affect their interest, and therefore there was no necessity for them to sign the statement of facts.

It was provided in the subscription contract that $5 of the $27.50' a share agreed to be “paid to H. M. Baine & Co., fiscal manage ers, in cash on date of this subscription, to be appropriated by them as compensation for selling and distributing the stock hereby subscribed for, and $22.50 per share to be paid at Waco, Texas. • * * * ” It was also provided in the subscription contract: “Said company alone has the right to accept or reject this subscription contract. If accepted, the amount of $5.00, specified above as paid in cash to H. M. Baine & Co., on date hereof, shall be considered as duly earned by them, and not to be refunded to me under any conditions. If rejected, total payment made on date hereon shall be returned to me.” The contract was negotiated with L. C. Gibbs, was signed by E. B. Kenner, and $250 was paid by Kenner to Gibbs for Baine & Go. H. M. Baine & Co. which was the style under which H. M. Baine was doing business, was the fiscal agent of appellant, and had the authority to receive the $5 per share and to solicit and receive subscription contracts. L. O. Gibbs was the agent for Baine, and was recognized as such by appellant.

Baine was acting for appellant in receiving the money from Kenner, no matter what, was to be done with the money when collected. Appellant could not evade its responsibility for the money on the ground that it never came into its hands. When it was placed in Baine’s hands, and when it was contracted that, under certain circumstances, it should be returned, it was contracted that appellant should return the money.

The testimony showed that the words making all of the three notes given by Kenner to Gibbs payable on March 12, 1912, were interlined by Gibbs without the knowledge or consent of Kenner. Appellant admits that Gibbs was its agent in making the contract, in which Gibbs took three notes payable to him, instead of to appellant.

The notes were attached to and made a part of the contract, and the rejection of the notes was a rejection of the contract. The rejection of the notes, taken with the failure to send the shares to Kenner, was amply sufficient to justify the latter in acting upon the conclusion that the contract had been rejected.

All the changes made in the contract by Gibbs were ratified by appellant, and it seeks in a cross-action to recover against Kenner on that contract. It cannot be heard to deny the authority of Gibbs to make the contract. The object of the provision in the contract that $5 a share should be paid in cash to its agents, and was to be their prop-, erty was to secure the agents their pay in cash. If they saw proper to take a less sum in cash, it did not concern appellant, except that it became liable, in case of rejection of the contract, for the return of a less sum of money. It is singularly inconsistent to contend in one breath that the contract was in-, valid because it was not the printed form, and in the next insist that it had accepted the contract, and that Kenner should be compelled to comply with its terms.

The judgment is affirmed. ,


author: RASBURY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. FARRIS.
    (No. 7133.)
    (Court of Civil Appeals of Texas. Dallas.
    April 18, 1914.
    Rehearing Denied May 9, 1914.)
    1. Carriers (§ 321) — Injuries to Passengers — Actions—Instructions — “Jerk” — “Lurch.”
    Where plaintiff testified that after the train had come to a stop, and he had arisen to alight, it was either backed up or jerked in some way, and that he was thrown against a seat and injured, the use in a charge on negligence of the terms “suddenly moved, lurched, and jerked,” used by the petition, was not erroneous, as any jerk is a sudden movement, and the word “lurch,” though it has specific reference to sidewise movements, is commonly used with, reference to any sudden movement, and the jury, in view of the common knowledge of the movement of trains, could not have been misled by the charge, although plaintiff did not testify in the precise language of the petition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.

    For other definitions, see Words and Phrases, vol. 4, p. 3811.]
    2. Appeal and Error (§ 1064) — Review— Habmless Error:
    Where a charge submitting to the jury the question of a railroad company’s negligence in suddenly moving its train,, which had stopped to allow passengers to alight, could not have misled the jury, its inexact use of language was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Charles F. Farris against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. T. I-I. Jackson, Walter Collins, and B. Y. Cummings, all of Hillsboro, for appellee.

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

   RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have resulted from the negligent operation of appellant’s train. There was a trial by jury resulting in a verdict for appellee for $1,500. Upon the verdict similar judgment was entered, from which this appeal is taken. Appellee’s, injury, was what the physicians Who testified termed a moderaté hernia, and the evidence supports the claim that it resulted from appellant’s negligence, and supports as well the amount of the verdict. In fact no attack is made upon those features of the case.

It is urged, however, that the court erred in refusing appellant’s special charge directing the jury to return verdict for appellant, because the evidence failed to show that appellant caused its train “to suddenly jerk and lurch,” as alleged by appellee, and that the case should be reversed because the court submitted that issue in the general charge. The precise point is that while appellee alleged that after the train reached Oorsicana and halted, and after he had arisen to disembark therefrom, appellant caused same “to be suddenly moved,” and caused same “to suddenly lurch and jerk,” and thereby caused the plaintiff to be thrown with great force and violence onto and against the back of one of the seats in said coach and injured as alleged, etc., the evidence, as mattter of fact, failed to support the • allegation' that the train “suddenly” moved, jerked, or lurched, notwithstanding which the court adopted the language of appellee’s petition and directed the jury to find for appellee if appellant “suddenly” moved the train and caused the same “to suddenly lurch and jerk,” if such acts were negligent, etc. Appellee’s petition did allege the acts of negligence just stated. His evidence in support of the negligent act so alleged, which was adopted by the jury, is in substance that as the train stopped he arose to disembark from the train, placing one hand on the back of a car seat, reaching with his other hand for his “grip,” and as he did so “the train either backed up or jerked some way and threw me against the corner of the seat.” And again, on cross-examination; he said that, as he reached for his grip, “the train either backed up or started up, I could' not tell definitely which.” Such is the evidence, and, while the evidence does not show that appellee used either the word “suddenly” or “lurched” in his testimony, we nevertheless conclude that the use of these terms in the court’s charge does not constitute reversible error. The substance of the court’s charge is that the train suddenly moved, lurched, and jerked, while the substance of the evidence is that the train jerked some way forward or backward and threw appellee against the wall. We can see no possible harm in the use of the words “suddenly moved and lurched,” instead of the word “jerked,” as used by appellee in testifying, since, obviously, there could not be a jerk of the train without a movement thereof, and it can hardly be intelligently maintained that the use of the word contributed one way or the other to the result. Nor could there be a jerk of the train that was not sudden, since to jerk a thing is to give it a short, sudden thrust, push, or to strike it with a short quick motion. So it is with the use of the word “lurch,” which, to the ordinary mind, has reference to a sudden movement, although it has specific reference to sidewise movements. We are convinced, however, that the jury in determining the issuable facts in the case were not misled by the use of the terms complained of. We can hardly conceive that ordinarily intelligent men, such as the jury trying the case are presumed to have been, having, as they must have had, common knowledge relating to train jerks, resulting from backward and forward movement, dealt in any niceties concerning its specific meaning as applied to the court’s charge.

Aside from what we have said, and conceding technical error in the charge, it is not reversible under the rule now in force, which forbids reversal 'upon such matters, unless it shall appear that the error amounted to such denial of appellant’s rights as was reasonably calculated to and probably did cause the rendition of an improper judgment.

The judgment is affirmed.


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. PENNINGTON et al.
    (No. 5252.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.
    Rehearing Denied May 6, 1914.)
    1. Pleading (§ 182) — Denial—Statute.
    Under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, providing that any fact pleaded by the defense which is not denied by the plaintiff shall be taken as confessed, it is unnecessary for plaintiff to traverse allegations in the answer which are the mere converse of those in the petition; the purpose of the statute being merely to simplify trials by rendering it unnecessary to introduce evidence to prove immaterial issues conceded under the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 387, 388; Dec. Dig. § 182.]
    2. Railroads (§ 344) — Crossings—Contributory Negligence.
    Untraversed allegations in the answer, in an action for wrongful death at a crossing, that the headlight of the train which struck deceased’s wagon was reflected from the ground and buildings, but that he did not stop, look, and listen, do not show him to have been guilty of contributory negligence, where it did not appear that those reflections could have been distinguished from the reflections from other engines on sidings, for, unless there was something to put deceased on guard, his failure to stop, look, and listen would not be contributory negligence.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1107-1112; Dee. Dig. § 344.]
    3. Pleading (§ 412) — Waiver of Objections —Want of Reply.
    Where defendant proceeded to trial as if issue had been properly joined upon all allegations in the answer, the objection that the defense pleaded was admitted because uncontroverted, was waived, and could not be raised after an adverse verdict.
    [Ed. Note. — For other eases, see Pleading, Cent..Dig. §§ 1387-1394; Dec. Dig. § 412.]
    4. Railroads (§ 350) — Crossing Injuries-Jury Question.
    In an action for wrongful death of one run down at a railroad crossing, the question of his contributory negligence held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]

      5. Railroads (§ 346) — Crossing Accidents —Contributory Negligence — Burden oe Prooe.
    In an action for wrongful death of one run down at a crossing, the burden of establishing deceased’s contributory negligence is upon the railroad company, and does not shift upon its establishing a prima facie case; but the company is entitled to have the jury consider all the evidence on that issue, whether introduced by it or plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.]
    6. Evidence (§ 157) — Best Evidence — Admissibility.
    In an action for wrongful death, a witness who had sufficient acquaintance with deceased to estimate his earning capacity may testify as to his estimates, where they were not based upon any books, and it did not appear that deceased kept any books showing his earnings.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460-470; Dec. Dig. § 157.]
    7. Death (§ 99) — Actions—Excessive Damages.
    An award of $20,000 damages for the wrongful death of a husband and father, 29 years old, who enjoyed good health, was kind and considerate, and at times earned as much as $60 a week, less expenses, in hauling freight, was not excessive; it appearing that he devoted his earnings to the upkeep of his family, consisting of his wife, who was 29 years old, and four children, ranging in age from 1 to 8 years.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    8. Parties (§ 75) — Objections — Time for Making.
    In an action by a widow for the wrongful death of her husband, an objection that she was not entitled to sue for any damages sustained by his parents should be raised upon the filing of the petition, showing that the suit was also on behalf of the parents; it not appearing that they were under any disability whatsoever.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 115, 116, 167; Dec. Dig. § 75.]
    9. Constitutional Law (§ 43) — Death (§ 9) — Due Process of Law — Deprivation of Property Without.
    As Rev. St. 1911, art. 4699, authorizing any one of the parties entitled to bring an action for wrongful death for the benefit of all, is part of the act providing for actions for wrongful death, and gives not only the widow and children of one wrongfully killed but his surviving parents a right of action, the surviving parents cannot complain that to permit the widow to maintain the action for their benefit, without making them parties, will deprive them of their rights without their day in court, contrary to the constitutional inhibition against deprivation of property without due process, for the right to sue for wrongful death is inseparable from the remedy, and a party cannot accept one and attack the other.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41. Dec. Dig. § 43; Death, Cent. Dig. § 11; Dec. Dig. § 9.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by Mrs. Ola Pennington and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston. Claude Lawrence, of Uvalde, and W. B. Teagarden, of San Antonio, for appellant. Winbourn Pearce, of Temple, A. L. Curtis, of Belton, and Martin & Martin, of Uvalde, for appellees.

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

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

   MOURSUND, J.

Mrs. Ola Pennington, for herself, her four minor children, and the parents of her deceased husband, J. L. Pennington, sued appellant for damages, alleged to have resulted to them by reason of the death of said J. L. Pennington, who was killed on May 14, 1913, by one of appellant’s trains, on a road crossing near Uvalde, while crossing same with his wagons and teams. It was alleged that said crossing is situated about 300 yards west of 'defendant’s passenger depot at Sansom, which is called “Uvalde,” and within the yard limits of the company' where it maintains its main track and four other tracks; that the road crossing the tracks at said place is a public road extending from Uvalde to Rock Springs, and is frequently traveled by the public at all times of the day and night; that the crossing is dangerous, in that, approaching the same from either direction, the view of the track and of an approaching train is obstructed, so that it is difficult to see the approach of a train in entering upon said crossing; that the defendant, in the exercise of ordinary care, would and should have maintained a flagman at and near said crossing to warn persons about to enter said crossing of the approach of trains, but the defendant carelessly and negligently failed and refused to maintain a flagman at such crossing, and adopted no means for the protection of persons passing over said crossing. It was further alleged that on or about May 14, 1913, defendant had carelessly and negligently placed its cars for a long distance in either direction from said crossing on one of its tracks passing over said crossing, and lying north of its main track, and also on other tracks lying south of its main line track, and had negligently and carelessly stopped and placed some of said ears, especially those lying upon the track north of the main line track upon said public road and crossing, so that the same was blocked, and room was barely left between said cars for the passage of one wagon, and so that a person, approaching from the north, and going towards Uvalde, could not see the approach of a train from either direction, and especially could not see the approach of a train from the west; that at said time J. L. Pennington was engaged in hauling freight between Rock Springs and Uvalde, and at that particular time was traveling said road with several wagons attached together, drawn by several teams, and was riding the horse on the left-hand side nearest to the front wagón, and was going towards Uvalde; that about dusk he approached said crossing, and, his view being obstructed, as aforesaid, he could not see the approach of the train, and in the exercise of ordinary care, failing to see or hear the approach oí any train, he drove between the cars of defendant which were placed hpon the side track lying north of its main line track, and as he entered upon said main line track was struck by a delayed fast passenger train of the defendant, which was approaching from the west, and sustained serious injuries from which he shortly thereafter died; that defendant, its agents and employes in charge of said train carelessly and negligently ran said train over said public crossing, while the view of the approaching train was obstructed, at an excessive rate of speed, and carelessly and negligently failed to give any warning or signal by ringing the bell or blowing the whistle, or otherwise, of the approach of said train, and had carelessly and negligently cut the steam off, so that the train was running noiselessly onto and upon said crossing; that the negligence of the defendant as alleged was the proximate cause of the injury and death of Pennington. It was further alleged that Pennington sustained his injuries without any fault or negligence on his part. The remaining allegations related to the age, occupation, character, and earnings of the deceased.

The defendant, on September 3Q, 1913, filed its answer, consisting of a general denial and a special denial, sufficient, under the provisions of chapter 127, Acts of the 33d Legislature (Reg. Sess.), to put in issue each allegation of the petition, and then pleaded that the train was operated in the usual and customary manner, and at the usual rate of speed; that the crossing was neither a dangerous nor much used one, especially after 6 o’clock p. m.; that, when the train was about 500 to 800 yards west of said crossing, the engineer sounded the whistle for the station, and for the crossing and semaphore board, and the bell was also* sounded for the crossing, and each of said warnings could readily have been heard by deceased by the exercise of ordinary care; that the engine had a brilliant headlight, which could have been seen from the crossing a distance of more than a mile, and at the time deceased approached the crossing the light from said headlight was reflected from the ground at the crossing and buildings and cars near the crossing, and was plainly to be seen, and, if he did not see this, he could have done so by the exercise of slight care; that the train was making the usual and customary noises of a large and heavy passenger train, which could have been heard for several hundred yards before it reached the crossing by listening with ordinary care, which precaution deceased did not take, or, if he listened, failed to heed what he heard and took the chances of getting across ahead of the train; that the view of the main line track to the westward was not obstructed by cars or other objects, except partially, and for a comparatively short distance near the crossing, and from his position as he approached the track, and at the proper times and places to look before going on the tráck, deceased could have, without difficulty, seen the train in ample time to have avoided it, in fact the train was in yiew of deceased’s position for 100 feet or more as he drove to the crossing, and he must have seen same, or by the exercise of slight diligence could have seen it, in ample time before driving on the crossing, but he negligently failed to do so, or else did not heed what he saw; that, if the view of the track was obstructed, then deceased could have readily heard the train and the signals and alarms given by it, and, if the rattle of the wagon and harness or anything else interfered with his hearing, could, with little inconvenience, have stopped, before going upon the crossing, at a place where he could see the track to the westward, and by so doing and looking and listening he could, without difficulty, and by the exercise of ordinary care, have both heard and seen the train and avoided the accident, all of which, under such circumstances, a person of ordinary care would have done, and which deceased failed to do, and, if he looked and listened, he failed to heed what he saw; that as a matter of fact deceased was riding one animal of six or eight hitched to two or more wagons, and the rattling of wagons and harness made much noise, which interfered with his hearing to some extent, and he deliberately and negligently drove upon the crossing directly in front of the train, without stopping to look and listen, and without looking or listening for an approaching train, and without exercising ordinary care and caution in any respect, when, by the exercise of any of these precautions or any other precautions such as a person of ordinary care would have exercised, he could have discovered the train in ample time to have avoided it; that in each of said matters deceased was guilty of negligence which caused or contributed to his death.

No replication was filed by plaintiffs. The trial resulted in a verdict and judgment against appellant for $20,000, as follows: Mrs. Pennington $8,000; each child $3,000; the parents nothing.

By the first assignment of error complaint is made because the court refused to give a peremptory instruction to find for defendant. The first proposition .asserts that the charge should have been given because of the failure of plaintiff to deny the allegations relied upon to show Contributory negligence. An examination of the pleadings discloses that almost all of the facts alleged by appellant as its basis for claiming that Pennington was guilty of contributory negligence were directly controverted in the petition, and issue was fully joined thereon. The allegation with respect to the headlight being reflected from the ground at the crossing and buildings and cars near the. crossing, and that it was plainly to be seen, is a new matter not contradicted in the petition. Issue was joined as to whether the train was visible by a person approaching the crossing, and as to whether it made a great noise, and whether the signals were given. The failure to stop, look, and listen cannot be said to show contributory negligence when disconnected from the allegations which are in issue. It was admitted that the train was delayed, and there was nothing to particularly put Pennington on guard, unless it was the reflection from the headlight. We do not think failure to see or be warned by the reflection, there being no allegation that it was the only headlight casting a reflection upon the crossing, or facts showing that Pennington could not in the exercise of ordinary care have taken it for the reflection of a headlight from an engine attached to some of the many ears alleged to have been on the tracks at and near the crossing, can be said to show negligence as a matter of law. We conclude that the facts not in issue considered alone fail to show contributory negligence as a matter of law, and that, had the ruling of the court been invoked upon the pleadings, and he had decided against appellant, -we would not reverse such decision. Article 1829, as amended by chapter 127, Acts 33d Leg. (Reg. Sess.), provides: “Any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed.” This, of course, only,applies to facts not already in issue by virtue of plaintiff’s allegations. To allege in affirmative language the converse of what plaintiff has alleged does not constitute new matter which must in turn be controverted. If the new facts standing alone do not show contributory negligence, the pleader could only take advantage thereof by objecting to evidence controverting same, and by having the court instruct the jury that such facts were admitted, should the same be material with respect to any issues submitted to the jury. The purpose of the Legislature in passing said law was to simplify trials by reducing the number of issues to be decided, thus shortening the trial, and obviating the necessity of calling witnesses to prove undisputed facts.

In this case appellant in no manner-sought to avail itself of any rights with respect to the facts stated in its answer which were not controverted until it filed a motion for a new trial. True, it asked for a peremptory instruction on the ground “that plaintiffs have wholly failed to show defendant liable for the death of J. L. Pennington under the law”; but thereby the court was not apprised of any contention that appellant claimed a judgment upon the pleadings. Nor in filing exceptions to the charge was the court informed that appellant contended the issue should not be submitted. Evidence had been introduced as if issue was joined on all the facts alleged. In view of all this appellee contends that appellant waived its right to take advantage of plaintiff’s failure to file any denial of the additional facts alleged by appellant. The general rule as announced in 31 Oye. p. 733, is as follows: “Failure to file any pleading which is necessary to form an issue, including a complaint, answer, or reply,, or otherwise failing to join issue properly or at all upon any or all of the allegations appearing in the pleadings, is deemed waived by voluntarily proceeding to trial as though issue was properly joined. Likewise, where the parties have voluntarily tried the case as if certain matters were in issue, neither will be permitted afterward to object that such matters were not properly put in issue by the pleadings.” Appellant relies upon the Kentucky cases of Railway v. Paynter’s Adm’x, 82 S. W. 412, and Railway v. Hibbitt, 129 S. W. 320. The Kentucky statute provides “that every material allegation of a pleading must, for the purposes of the action, be taken as true unless specifically traversed.” In one of the Kentucky cases, Gore v. Railway Co., 32 S. W. 754, some weight is given to a statute providing that judgments shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him. That statute appears to exclude the idea generally recognized that certain defects of pleading may be cured by verdict. We see no reason for adopting the Kentucky rule, and believe the general rule announced in Cyc. conduces to a fair trial, and will prevent litigants from taking up the time of the courts with experimental trials, relying upon saving themselves, if things go wrong, by urging that they should have had judgment upon the pleadings. Therefore we hold that, if defendant was entitled to a judgment upon the pleadings, it waived its right thereto, and we give such holding as an additional reason for deciding that appellant’s first proposition is without merit.

By the second proposition it is contended that the undisputed facts, both including and excluding those in the answer not traversed, show that Pennington’s death was due solely to his own negligence or at least to his contributory negligence. In deference to the verdict of the jury, the evidence being conflicting, we conclude that appellant was guilty of negligence proximately causing Pennington’s death in not giving the statutory signals for the crossing, and in placing its cars so as to obstruct the view of its main line track, so that a person approaching the crossing as Pennington did could not see the approach of a train coming from the west. We conclude, further, that Pennington was not guilty of. negligence proximately contributing to cause his death. We will not attempt to rehearse the evidence upon which these conclusions are based. At the time Pennington was killed three freight trains were waiting at Sansom for the passenger to pass, and at least two engines faced the crossing. The engines made much noise, while the passenger train had cut off steam and rolled along down grade with slight noise. Pennington drove very slowly, and it cannot be said, as a matter of law, that had he stopped he would have heard the passenger train.

The fifth, sixth, and seventh assignments relate to charges given and refused on the question of burden of proof upon the issue of contributory negligence. Complaint is made because the court gave plaintiff’s special charge No. 1, which placed the burden of proof upon defendant upon the issue of contributory negligence, but instructed the jury that upon said issue they should take into consideration all the evidence offered in the case, whether by plaintiff or defendant. Appellant excepted to the charge on the ground that under the facts of this case the burden should have been placed upon plaintiff to show that Pennington was not guilty of contributory negligence, or at least that special charge No. 3, offered by appellant, should have been given, as follows: “You are further charged that in this case, if, upon consideration of all the facts in evidence tending to explain the happening of the accident to J. L. Pennington, and showing his relationship thereto, you are of the opinion that it indicates that he was guilty of contributory negligence, then the burden would be upon the plaintiff to overcome by a preponderance of the evidence this condition, and to establish by a preponderance of all the evidence that Pennington was not guilty of any act or omission amounting to negligence that either caused or contributed to his death; and, if the plaintiffs have failed to sustain such proof, then they cannot recover in this case, and your verdict will be for the railroad company.”

The contentions announced in the propositions under assignments 5, 6, and 7, all relating to this matter, may be briefly stated as follows: (1) That the testimony necessary to show the circumstances under which Pennington came to his'death, and his relation to the happening of the accident, amply show prima facie that he was guilty of contributory negligence, and that this was still more manifest by the facts alleged by appellant, and not denied by appellee, for which reasons the burden should have been placed upon plaintiff. (2) If the court cannot say, as a matter of law, that a prima facie case of contributory negligence has or has not been made out by all the testimony necessary to show the cause of Pennington’s death, and his relation thereto, then the court, upon request, should direct the jury to determine whether or not a prima facie case of contributory negligence has thus been established, and, if so, the burden is on the plaintiff to overcome this, looking to all the testimony for the final solution of the issue. In support of its contentions, appellant cites the case of Railway v. Reed, 88 Tex. 447, 31 S. W. 1058; but the doctrine there announced, and followed in many cases, has no application here, because the charge given in this case was carefully worded so as not to leave any chance for the jury to be misled into believing that it could only consider the testimony introduced by defendant upon the issue whether Pennington was guilty of contributory negligence. This line of cases has no bearing upon the questions presented in appellant’s propositions. The contentions made by appellant have been urged in many cases in this state, and, while the existence of exceptions to the general rule that the burden of proving contributory negligence shall be placed upon the defendant in the charge of the court has been recognized in many cases (but generally held not applicable in such cases), we think it is now settled that no such exceptions exist as are contended for by appellant. H. & T. C. Ry. v. Harris, 103 Tex. 422, 128 S. W. 897; Railway v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386. See, also, note to Oklahoma City v. Reed, 17 Okl. 518, 87 Pac. 645, 33 L. R. A. (N. S.) 1188, for a very interesting and thorough discussion of this question; also Ohamberlayne on Mod. Law of Ev. c. XI. The assignments are overruled.

By the ninth assignment complaint is made of the admission of the testimony of the witness Young, which was the only testimony upon the very important question as to the earning capacity of the deceased. Young testified that he and Pennington were partners in the freighting business when Pennington first went into such business, but for some time prior to Pennington’s death the witness had no interest in the business ; that Pennington could carry from Uvalde to Rock Springs' about 10,000 pounds- as an average load, and received 60 cents per 100 for carrying same. He also testified as follows; “He made a trip a week; he hauled freight from here to Rock Springs; he freighted from here to Rock Springs all the time; he also hauled freight from Rock Springs back this way. The last month or two he hauled wool he had parts of loads from Rock Springs here all the time. The last month or such matter he had a- full load every trip I think; that is, about 10,000 pounds.” Upon cross-examination, permitted for the purpose of testing “the personal knowledge” of the witness, it developed that he did not know whether Pennington kept any books showing his earnings, but that the witness, being in the grain business, had a set of books from which he could tell what Pennington had hauled for the grain store, but that he also hauled for other people. The witness did not testify how much deceased hauled for the grain store. Objections were then urged by appellant to the testimony, and a motion made to strike same from the record. As the witness did not undertake to state what was shown by his boohs, and as his books, if produced, could not have shown what amount of freight was hauled by deceased in all, of what deceased’s earnings were, we may leave out of consideration the fact that the witness had books showing what deceased had hauled for him. Such statement did not indicate the existence of better evidence than he was able to give as to the entire earnings of Pennington, which was the only fact important to be determined. After the objection was overruled, the witness proceeded to state, without further objection, that the expense of making each trip was about $10; that the avérage freight rate was 00 cents per 100 pounds; that Pennington could make a trip in 6 days, and for a long time made a trip once a week; that a man can always ha.ul a full load from Uvalde to Rock Springs; and that for the last month Pennington freighted he had a load both ways. On cross-examination he testified that.Pennington had been freighting for about 6 or 8 months, that he had nine or ten animals and three wagons which he trailed together, hitching the teams to the leading wagon; that deceased owned three of the horses, while witness owned the remaining horses and two of the wagons, which he permitted deceased to use free of charge, but had the right to take them at any time. The question is whether, under the circumstances, error was committed in not excluding the testimony. It must be admitted that Young could only estimate Pennington’s earnings. He testified to facts which showed that he was qualified to make such estimate, and stated the facts upon which he based such estimates as he made. He was never asked to make a final estimate for any given period, nor whether the conditions of the roads and' weather affected the earnings; but we take it that no sensible jury would fail to make the allowances which the witness would have been bound to have made if asked the questions relating thereto. His testimony did not disclose or even indicate that better evidence could be obtained. He did not know whether Pennington kept any books. Appellant did not ask that witnesses be called to testify on the issue whether better evidence could be procured, and it is highly improbable that such was the fact. As it was not shown that primary evidence could be obtained, there was no error in admitting the testimony of Young. Chamberlayne on Mod. Law of Ev. § 479; Greenleaf on Ev. § 84; M., K. & T. Ry. v. Milam, 20 Tex. Civ. App. 688, 50 S. W. 417; Lewis v. San Antonio, 7 Tex. 313. In the case of Railway v. Brown, 16 Tex: Civ. App. 105, 40 S. W. 608, the court held that, even though books were kept, a witness could estimate a physician’s income if he did so independently of the knowledge he obtained from the books; but, as it is not shown in this case that books were kept, we are not called upon to pass upon the correctness of that opinion. The other objections to this testimony are also without merit', and the assignment is overruled.

There is no merit in the tenth assignment, which complains of the charge of the court, and the same is overruled.

The eleventh assignment, complaining of the verdict being excessive, is overruled. Deceased was 29 years old, a strong man, in good health, had always engaged in useful pursuits, and supported his family in a proper manner. His wife was 29 years old, and his four children’s ages ranged from 1 to 8 years. The testimony relating to his earnings has been hereinbefore stated. All of Ms net earnings were devoted to the .upkeep of his family. He was a kind husband and a man of good habits. T. & N. O. Ry. Co. v. Walker, 125 S. W. 103.

The twelfth assignment reads as follows: “The court erred in refusing to stop the trial upon defendant’s motion and suggestion until the father and mother of deceased could be made parties to the suit, when at the trial it was shown that they were living and laboring under no disabilities that would prevent them from suing for themselves in the action. They were necessary parties, and it was error to proceed with them.” The plaintiff sued for the benefit of Pennington’s parents, and no exception was urged by appellant on account of failure to make them parties to the suit. Mrs. Pennington testified that the parents were alive and in good mental and physical condition, laboring under no disabilities. Pennington’s father was present and testified. Appellant filed the motion described in the assignment, and contends that under the state and federal Constitutions the parents must be accorded their day in court, and that courts cannot lawfully proceed to pass judgment upon their rights, if necessary parties, until jurisdiction is obtained over them by process, and that the Legislature has no power to deprive persons of such right, and judgments rendered in disobedience of such rule are void as to such persons, citing article 1, § 19, of our state Constitution and the fifth amendment to the federal Constitution. If appellant wished to object to the bringing .of the suit by Mrs. Pennington for the benefit of her husband’s parents, the objection should have been made before going into trial. There was no allegation that such parties for whom she was suing were laboring under any disabilities, and the presumption obtained that they were fully capable of representing themselves, and appellant should not have waited until the evidence disclosed that fact, but should have raised the question at once. However, we do not care to rest the overruling of the assignment of error upon that ground, and will consider the objection upon its merits.

Article 4699 . of our Statutes (1911), which authorizes suits of this character to be brought “by all of the parties entitled thereto, or by any one or more of them for the benefit of all,” has been in existence for many years, yet we find no case in which the constitutionality thereof has been heretofore questioned. This statute has often been considered by our courts, and it is settled that a suit brought as this one was is a compliance with the statute. The parents need not be made parties to the suit, if it is brought for their benefit, as well as the benefit of the widow and children. S. A. & A. P. Ry. v. Williams, 158 S. W. 1171; Railway v. Mertink, 101 Tex. 165, 105 S. W. 485. In the case of De Garcis v. Railway Company, 90 S. W. 670, Justice Neill said: “However fraudulently one of the parties plaintiff may. act towards another for whose benefit the right of action is given, if such fraud is unknown, not participated in, nor connived at by the defendant, he is not called upon to protect the rights of the party whom a co-plaintiff, or the one who has brought suit for his benefit, would defraud. In no event can a party to a lawsuit be expected to go into the camp of his adversary and assist him in making out a case against himself.” The statute fails to provide for notice to the other parties by plaintiff, and the remedy given the parents is indeed the mere shadow, if they have no opportunity to prove what benefits they received from their son. The widow, even if cognizant of such benefits, would hardly make proof thereof and thus providé another distributee to share in the pecuniary benefits awarded largely upon a consideration of her husband’s earning capacity. The statute, therefore, is subject to criticism for not providing for some kind of legal notice to be served on those not bringing the suit, provided their whereabouts is known. But the question is whether such statute violates the due process of law provisions of our Constitution and the federal Constitution. The statute gives a remedy for a wrong for which the common law has failed to make provision, and prescribes the method in which the remedy may be invoked. We cannot separate the method from the remedy, and say that the remedy becomes a right which cannot be restricted by the method provided for invoking the same. The beneficiaries of the law must accept it as it stands, and cannot be heard to say they will reject part and accept part. If the remedy as provided is not as fair and just as it might be, or even if, in exceptional cases, it works out so as to amount to no remedy at all, still it is what the' law gives, and the beneficiaries must be satisfied therewith. It is not an analogous case to those in which laws are passed which injuriously affect vested rights. The statute is not subject to the objections made, and the assignment of error is overruled.

- The judgment is affirmed.


author: CONNER, C. J.

text:
    COMANCHE COUNTY et al. v. BURKS et al.
    (No. 7,865.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.
    Rehearing Denied March 4, 1914.)
    1. Counties (§§ 1, 47) — Acts of Commissioners’ Court — Liability.
    A county is by Rev. St. 1911, art. 1365, a body corporate and politic, and acts by the commissioners’ court, and the acts of the court, made in good faith within the scope or apparent scope of its authority, are the acts of the county.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 1, 55; Dec. Dig. §§ 1, 47.]
    2. Counties (§ 141) — Acts of Commissioners’ Court — Liability.
    Where a county in its corporate capacity commits a wrong in relation to property in which others are interested, the county, like any other corporation or like an individual, may be held liable.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 209; Dec. Dig. § 141.]
    3. Counties (§ 195) — Acts of Commissioners’ Court — Liability.
    A county which has, through the commissioners’ court, wrongfully diverted and appropriated the proceeds of a sale of school lands of the county is liable for the misappropriation.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 307; Dec. Dig. § 195.]
    4. Officers (§ 114) — Judicial or Quasi Judicial Capacity — Li ability.
    Officers to whom is committed the power of acting in a judicial or quasi judicial capacity are not personally liable for an honest,, though mistaken, exercise of their powers.
    [Ed. Note. — For other eases, see Officers, Cent. Dig. §§ 187-192; Dec. Dig. § 114.]
    5. Counties (§ 155) — School Lands — Proceeds — Investments—Validity.
    Under Const. art. 7, § 6, providing that lands granted to the several counties, and the proceeds of sales thereof, shall be held by the county as a trust for the public schools, and that the proceeds shall be invested in bonds of the United States, or state, or counties, and that the counties shall be responsible for all investments, the commissioners’ court of a county, in investing the proceeds on a sale of county school lands, acts in a judicial or quasi judicial capacity, and the county is responsible for investments made.
    [Ed. Note. — For other- cases, see Counties, Cent. .Dig. §§ 223-225; Dec. Dig. § 155.]
    6. Counties (§ 183) — School Lands — Proceeds — Investments—Validity.
    The proceeds of a sale of school land of a county, required by Const. art. 7, § 6, to be invested in a specified class of bonds, may not be diverted to the general purposes of the county, and bonds issued by the county therefor, and bonds so issued are invalid.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 275-281, 283, 284; Dec. Dig. § 183.]
    7. Counties (§ 155) — School Lands — Proceeds — Liability.
    Under Const. art. 7, § 6, making a county responsible for all investments of the proceeds of a sale of its school lands, a county is responsible for proceeds, regardless of the form or the legality of an investment attempted to be made by the commissioners’ court.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 223-225; Dec. Dig. § 155.]

      8. Counties (§ 196) — School Lands — Diversion of Proceeds — Parties Entitled to Sue.
    In the absence of any statute on the subject, an action by the treasurer and superintendent of schools of a county, and officers of independent school districts of the county, and citizens in their individual right, against the county and the commissioners’ court, to ascertain the amount of proceeds of school lands which had been diverted, and to compel the commissioners’ court to make a levy to the amount of the diversion, and thereby enforce the trust imposed on the county, is maintainable, though some of the plaintiffs are not entitled to sue.
    [Ed. Note. — For other cases, see Counties, Cent Dig. § 308; Dee. Dig. § 196.]
    9. Limitation of Actions (§ 11) — Limitations in Favor of County.
    The duty of a county to make proper investments of the proceeds of a sale of its school lands, as required by Const. art. 7, § 6, is of a public nature and pertains to governmental affairs, within the rule that limitations are not available in such cases.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. § 11.]
    10. Limitation of Actions (§ 102) — Enforcement — Limitations.
    An action against a county to enforce the trust imposed on it by Const. art. 7, § 6, providing that county school lands and the proceeds of a sale thereof shall be held by the counby in trust for the public schools of the county, is not barred by limitations, though the county wrongfully diverted the proceeds, but did not repudiate the trust.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 494-505; Dec. Dig. § 102.]
    11. Counties (§ 213) — Actions—Presentation of Claim for Allowance — Necessity.
    Rev. St. 1911, art. 1366, providing that no county shall be sued unless the claim relied on shall have been presented to the commissioners’ court for allowance, and the court shall have neglected to allow the same, does not apply to an action to enforce the trust imposed on a county to hold county school lands and the proceeds on a sale thereof in trust for the benefit of the schools of the county.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 342, 343; Dec. Dig. § 213.]
    12. Counties (§ 213) — Actions—Presentation of Claims — Minutes of Commissioners’ Court.
    Where the demand sued on was presented to the commissioners’ court, but it refused to grant relief, the mere failure of the clerk to enter the proceedings on his minutes did not prevent an action against the county on the demand, though Rev. St. 1911, art. 1366, provides that no county shall be sued, unless the claim shall have been presented to the commissioners’ court, and it shall have refused to allow the same, and though it was the duty of the clerk to enter the proceedings on his minutes.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 342, 343; Dec. Dig. § 213.]
    13. Counties (§ 161) — County Funds — Interest.
    A county diverting the proceeds of the sale of its school lands is properly chargeable with interest on the misappropriated fund, whether the statute fixing the legal rate of interest is applicable or not.
    [Ed. Note. — For other- cases, see Counties, Cent. Dig. § 220; Dec. Dig. § 161.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by Jokkie W. Burks, Treasurer of Comanche County, and others, against Comanche County and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    M. L. Harris, of Comanche, and Wilkinson & Baugh, of Brownwood, for appellants. Goodson & Goodson, of Comanche, for appellees.

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

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

   CONNER, C. J.

This suit was instituted against Comanche county and the members of its commissioners’ court by Jokkie W. Burks, treasurer of Comanche county, joined by the superintendent of its public schools and by the officers and boards of trustees of several independent school districts of the county, and by a number of persons in their individual right as citizens.

The plaintiffs alleged in substance that, in accordance with the 'Constitution and laws of the state, there had been set aside to Comanche county, as a part of its permanent school fund, four leagues of land, which it was the duty of the commissioners’ court to sell and invest the proceeds thereof as collected in interest-bearing securities, as provided in the Constitution, for the benefit of the public free schools of the county; that, under the terms of the Constitution, the principal from the sale of such lands constituted the permanent fund, and the interest derived therefrom constituted the available fund. It is further alleged that prior to November 28, 1891, the commissioners’ court sold the land so granted to Comanche county, but instead of investing the proceeds of the sale in securities, as provided by the Constitution, from time to time had diverted portions thereof and appropriated the same to the general purposes of the county, at the same time issuing what was termed “bonds of Comanche county” for the several sums so appropriated bearing 6 per cent, interest; that from one to ten of such bonds, inclusive, had been so issued stipulating for the payment by Comanche county to the permanent school fund of the county the several sums so appropriated, with interest thereon at the rate of 6 per cent', per annum. It was further alleged that a further diversion of the funds to the amount of $237.25 had been made by the action of the commissioners’ court in appropriating that amount for other unauthorized purposes. It was further alleged that an auditor had been appointed to state the account against Comanche county, who had reported that thé total amount of said unauthorized appropriation was $12,346.52, and that the interest accrued thereon to June 2, 1913, at the ráte of 6 per cent, per annum, aihounted to the sum of $11,649.68. There are further allegations of the petition to the effect that, within the limit allowed by the Constitution and laws, the commissioners’ court could add to its tax levy a sum sufficient to' realize, during a series of years, a sum necessary to restore .'the unauthorized appropriations, and the prayer was for a decree fixing the amount of the permanent school fund which had been so diverted with interest, and for a mandamus compelling the commissioners’ court to make the required levy.

The trial was before the court without a jury. He has filed conclusions of fact which we adopt, and upon which he entered judgment fixing the total amount of permanent and available school fund due by Comanche county at $20,695.59, with interest thereon from the date of the judgment at 4 per cent, per annum, from which judgment this appeal has been prosecuted.

It is first insisted that the court erred in overruling appellant’s general demurrer. The contentions are that the petition on its face shows an unlawful and an unauthorized appropriation of the county’s permanent school fund on the part of the commissioners’ court, and that the county cannot be made responsible for the wrongs of its officers. It 'has been frequently held that in certain cases a county cannot be held liable in damages for the wrongs or negligence of its officers. Heigel v. Wichita County, 84 Tex. 392, 19 S. W. 562, 31 Am. St. Rep. 63. But this rule of nonliability is not of universal application. See McQuillan on Municipal Cor. vol. 6, § 2605, citing numerous cases where the rule has been limited. And we are of the opinion that the principle invoked has no application in this case. Counties, by the express terms of our statute (R. S. 1911, art. 1365), are bodies corporate and politic and act by and through the commissioners’ court, composed of the county judge and of the commissioners from the several commissioners’ precincts provided by the law. The acts of the commissioners’ court, therefore, in good faith performed within the scope, or apparent scope, of the powers committed to it under the Constitution and laws, are the acts of the county and n'ot of the individual members composing the court.

And where counties in their corporate capacities, as contradistinguished from their individual officers, commit a wrong in relation to property in which others are interested, the county, like any other corporation or individual, may be held liable. Thus in Watkins v. Walker County, 18 Tex. 586, 70 Am. Dec. 298, Walker county was held liable at the suit of the owner of certain lands in damages for timber taken from the land by an overseer of roads to repair a highway. In the course of the opinion it was said: “The duty of providing highways for the use of the public has been confided to the counties. The overseers of roads are the legally constituted agents of the counties from which they receive the appointment, and, what they do in the proper and necessary exercise of the authority conferred upon them, the county, in its corporate capacity, is responsible for.” The principle announced in the case just cited was affirmed in the later case of Hamilton County v. Garrett, 62 Tex. 602. In Baker v. Panola County, 30 Tex. 87, our Supreme Court affirmed the right of Baker to recover from the county taxes illegally assessed against him and paid under protest. And in Boaz v. Ferrell, 152 S. W. 201, this court held to the effect that Jones county was liable for certain state taxes wrongfully deposited with its county treasurer by a tax collector.

So here, if Comanche county has wrongfully diverted and appropriated funds of which the plaintiffs were the beneficiaries and as to which they have the right to herein complain, as we shall later have occasion to affirm, then we think Comanche county, rather than the several members of its commissioners’ court, as is insisted, must be held liable. As further illustrating this conclusion, we cite the case of Gaines v. Newbrough, County Judge, 12 Tex. Civ. App. 466, 34 S. W. 1048, by this court, in which it was held that a county judge, commissioners’ court, and sheriff were not personally liable in a suit for damages for false imprisonment by virtue of the execution of a writ by the sheriff, regular on its face, but which the members of the commissioners’ court, in a mistaken exercise of a judicial act in fining the plaintiff for contempt, had ordered to be issued. So also in Wright v. Jones, 14 Tex. Civ. App. 423, 38 S. W. 249, also by this court, and in which writ of error was denied, it was held that members of a county commissioners’ court were not liable in a civil action to one whose property had been wrongfully taken by the tax collector in pursuance of an order of the commissioners’ eourt to collect a tax levied by them in a district which had erroneously been determined to be within their jurisdiction.

The principle of the cases last noted may be said to be dependent upon the very generally recognized rule that officers, to whom have been committed the power of acting in a judicial or quasi judicial capacity, cannot be held liable for an honest, though mistaken, exercise of their powers. The further pertinent inquiries, therefore, arise as to whether the members of the commissioners’ court, in diverting the funds, as alleged, were in the exercise of a judicial function, and whether Comanche county may be held liable as herein sought.

Section 6, art. 7, of the Constitution, so far as applicable, provides: “All lands heretofore or héreafter granted to the several counties of this state for educational purposes, are of right the property of said counties respectively, to which they were granted, and title thereto is vested in said counties; and no adverse possession or limitation shall ever be available against the title of any county. Each county may sell or dispose of its lands, in whole or in part, in manner to be provided by the commissioners’ court of the county. * * * Said lands and the proceeds thereof, when sold, shall be held by said counties alone as a trust for the benefit of public schools therein; said proceeds to be invested in bonds, of the United States, the state of Texas, or counties in said state, or in such other securities and under such restrictions as may be prescribed by law; and the county shall be responsible for all investments; the interest thereon and other revenue except the principal, shall be' available fund.” A reading of this section of the Constitution makes it manifest, it seems to us, that the commissioners’ court of the county, in making an investment of the proceeds therein specified, must act in a judicial or quasi judicial capacity. The county for which they act holds the proceeds as an express trust, and the investment thereof in the securities named in the Constitution or otherwise, as may be prescribed by law, necessarily involves an exercise of judgment and discretion. The counties also, by the express terms of the Constitution, are “responsible for all investments.” As alleged, and as shown in the court’s findings, the commissioners’ court from time to time appropriated to the general uses of Comanche county specified sums of the proceeds which had arisen from the sale of the county school lands.

Therefor, as also alleged and shown in the court’s findings, the commissioners’ court issued in a formal way what was termed “bonds of Comanche county,” bearing 6 per cent, interest. While the bonds so issued are doubtless invalid, as such, for want of any authority for their issuance, yet there is nothing in the record that indicates that the county judge and commissioners so issuing said obligations acted corruptly or in bad faith, and it seems more than probable that, in construing their authority to invest the proceeds “in bonds of the United States, the state of Texas, or counties in said state,” said court mistakenly concluded that the investment could be made in “bonds of Comanche county,” as well as of other counties. Of course if the bonds so issued could be upheld as authorized under the terms of the Constitution and by many legislative acts, then Comanche county would concededly be responsible, not only for the several sums so invested, but also for the interest at the rate therein specified.

But, regardless of the form or the legality of the investment attempted, it is undoubtedly true by the terms of the Constitution that Comanche county is “responsible for the investment.”

It is insisted, however, with much apparent force that the plaintiffs in this suit were not authorized to maintain the action; the contention being in substance that the state alone could do so. Again, referring to the section of the Constitution quoted, it will be seen- that the sovereign power of the state, as represented by the delegates of the people in convention duly assembled, expressly declared that the lands granted to counties for educational purposes “are of right the property of said counties, respectively, to which they were granted, and title thereto is vested in said counties,” and that “said lands and the proceeds thereof, when sold, shall be held by said counties alone as a trust for the benefit • of public schools therein.” If there is any other provision of our Constitution, or any legislative act which confers a like right or similar duty upon any other officer or department of the state, we have failed to find it; and the explicit declarations quoted leave.no room for the contention, it seems to us, that any other body, corporate or politic, in the autonomy of this state has either title to county school land, or can be held as trustees of the proceeds thereof.

In the recent case of Dubose v. Woods, 162 S. W. 3, by the Court of Civil Appeals for the Fourth District, it was held that resident citizens of Dunn county, who were qualified voters and owners of real and personal property therein, had sufficient interest to apply for mandamus to compel the commissioners’ court of that county to perform its duty in dividing the county in commissioners’, justice, and voting precincts.

In Dillon’s Municipal Corporations (4th Ed.) vol. 2, § 909, it is said that: “In respect of property held by municipal corporations in trust or clothed with public duties, equity has always asserted its jurisdiction to see that the trusts were observed and its public duties in respect of such property discharged.” And that while in England, and perhaps also in some of our states, a bill seeking the enforcement of such a trust must be filed by the Attorney General in behalf of the. beneficiaries, it is said further (in section 914) that in this country “the right of the property holders or taxable inhabitants to resort to. equity to restrain municipal corporations and the 'officers from transcending their lawful powers or violating their legal duties in any mode which will injuriously affect the taxpayers — such as making an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of corporate property, or levying or collecting void and illegal taxes and assessments upon real property” — has, without the aid of statute provision to that effect, been affirmed or recognized in numerous cases in many of the states. It is said to be the prevailing and almost universal doctrine on the subject; this rule of' right being expressly affirmed in Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070. The rule so stated, of course, would not apply in cases where the Legislature had prescribed a different method of procedure, but appellants have cited us to no law which devolves upon any public officer of this state the duty of instituting a suit to enforce a trust of the character under consideration, and we have found no such law. So that, irrespective of the contention in behalf of appellee that this suit is in effect a suit by the state, we think the plaintiffs, -or at least some of them, were entitled to maintain this action to enforce the trust undoubtedly devolved upon Comanche county by the terms of the Constitution. The plaintiffs comprehend, not only citizens of the county in their individual capacity, but also trustees of the independent school districts who are the beneficiaries of the fund, and the county treasurer and county superintendent, upon whom are imposed by law duties as to the proper distribution of the available fund arising from the interest from the permanent fund. It seems immaterial to us whether all of the plaintiffs were entitled to maintain the suit or not. It is to be remembered no individual recovery is sought, no judgment as such against the county is contemplated, but the action is purely one in equity seeking the issuance of a mandamus to require the county to fulfill its trust and restore the trust fund.

But it is said that the action is barred under both the two and four years’ statute of limitations. We think, however, there is nothing dn this contention. In a very important sense the duty of Comanche county to make proper investment of the proceeds of its school lands was of a public nature and such as pertains to governmental affairs. In such cases it is very generally held that limitation or laches is not available. See Delta County v. Blackburn, 100 Tex. 51, 93 S. W. 419.

Moreover, in the matter of the trust under consideration, we see no reason why the county should not be held to the same rules of law that are applicable to other trustees, and it is familiar doctrine that limitation will not run in favor of a trustee until after repudiation of a trust and notice thereof has been brought home to the beneficiaries. In the case before us it affirmatively appears from the court’s findings that Comanche county never repudiated the trust herein involved. On the contrary, at the time of the several appropriations referred to, it issued specific obligations, or what at the time evidently was thought to be such, for the repayment of the sums, taken together with interest as stipulated. No act of repudiation of any kind or character is pretended.

It is further insisted that the claim herein declared upon was never presented to the commissioners’ court for allowance, and ■that therefore the action cannot be maintained. Our statute on the subject (article 1366) reads: “No county shall be sued unless the claim upon which such suit-is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow the same, or any part thereof.” Compliance with this statute has many times been held to be necessary in order to maintain a suit against the county. But we are of the opinion that the statute has no proper application here. The suit is not by the plaintiffs, or any one of them, for the recovery of a debt or damages, but is one wherein the plaintiffs present to the court a prayer for the discharge of a duty imposed by the Constitution and laws of the state in behalf of the public free school fund.

Besides, the court finds that the complaint made in the plaintiffs’ petition was in fact presented to the commissioners’ court of Comanche county, and that, while the members expressed the conviction that the restoration sought should be made, the court refused to comply with the request of the petitioners on the ground that they doubted their authority to do so, in the absence of a decree of a court of competent jurisdiction so decreeing. It is insisted, however, that this action is not evidenced by any order of the commissioners’ court entered upon its minutes. Nothing, however, in the article quoted directs the entry of presentation and refusal to be entered upon the minutes or declares a penalty for failure to do so, and we think it would be extremely technical to now deny the relief sought in this case merely because the clerk of the commissioners’ court failed to enter the proceedings upon his minutes, though doubtless it was his duty to do so.

Several other questions are specifically presented which have been incidentally disposed of by what we have already stated, and we will therefore discuss but one further assignment.

The judgment fixes the total amount of the permanent school fund of •Comanche county that had been unlawfully converted as alleged at $12,583.77, to which the court added interest thereon from a date named in the judgment to the date of the trial at the rate of 4 per cent, per annum; the total interest so allowed amounting to $8,111.82. It is earnestly insisted that interest was not allowable; the theory of the contention being that the interest in its nature is but damages which are not recoverable because of the rule hereinbefore discussed of nonliability of a county for the wrongs or negligence of its officers. We feel that this contention must also be overruled. It is true that it may be well doubted whether our statute, fixing the legal rate of interest at 6 per cent, per annum, has application, but we think the court’s action in imposing interest should, under the circumstances, be upheld on general principles. Thus in Lewin on Trusts, vol. 1, p. 338, it is said: “It may be stated as a general rule that, if a trustee be guilty of any unreasonable delay in investing the fund or transferring it to the hand destined to receive it, he will be answerable to the cestui que trust for interest during the period of his laches; and a trustee has been decreed to pay interest ev.en where it was not prayed by the bill, and, in a suit establishing laches, will be decreed to pay personally the cost up" to the hearing of a suit arising out of the laches.”

It is further stated in Perry on Trusts, vol. 1 (4th Ed.) § 468: “It is difficult to lay down any general rule that is equitable and applicable to all cases, as to the interest that trustees shall pay upon trust funds in their hands. In England, if trustees suffer money to remain in their own hands, or in the hands of third persons, or in bank for an unreasonable time, in addition to their liability for its loss during such delay, they will be charged with interest at the rate of 4 per cent.; but if the trustees are grossly negligent or corrupt, or improperly call in the money from a proper investment, and suffer it to lie idle, or if they use it in trade or speculation, or invest it in improper places, the court will charge them with interest at the rate of 5 per cent.; and, in certain special cases of misconduct, the court will order annual or semiannual rests, for the purpose of charging them with compound interest. In the United States there is no law by which different rates of interest can be applied to different degrees of negligence or misconduct; and the only question here is whether simple or compound interest shall be imposed. The general rules, so far as they can be dráwn from all the cases, are as follows: (1) If a trustee retains balances in his hands which he ought to have invested, or delays for an unreasonable time to invest, or if he mingles the money with his own, or uses it in his private business, or deposits it in bank in his own name, or in the name of the firm of which he was a member, or neglects to settle his account for a long time, or to distribute or pay over the money when he ought to do so, he will be liable to pay simple interest at the rate established by law as the legal rate, in the absence of special agreements.”

Appellees have made no complaint of the action of the court in fixing the interest allowed at the rate of 4 per cent, rather than at the legal rate prescribed under our statute, and, in view of the authorities cited, we certainly think, as before indicated, that appellants have no cause of complaint in this respect. '

We conclude on the whole that the court’s findings of fact should be approved, and the judgment affirmed.