author: HARPER, C. J.

text:
    PADGITT BROS. CO. v. DORSEY.
    (No. 882.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1918.)
    1. Depositions <@=>107(7) — Failure to Pile Objections — Poem op Taking.
    Objection to depositions, because not under oath, could not be made at time of introduction fof answers in evidence, where no written objection was filed at least a day before the ease was called for trial, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3676, requiring objection to be so filed when directed to the matter of form of taking the deposition.
    2. Appeal and Error <@=>683 — Bill op Exceptions — Pailxtee to Separate Inadmissible Evidence.
    An assignment of error that court erred in admitting deposition in evidence over objection that answers were immaterial and irrelevant will be overruled, where bill of exceptions failed to separate the admissible evidence from that which was inadmissible.
    3. Trial <@=>83 (2) — Reception op Evidence-Objections — Grounds.
    An objection that evidence is irrelevant and immaterial is insufficient, it being necessary to state how or why the testimony is irrelevant or immaterial.
    4. Trial <@=>295(5) — Instruction—Construction as a Whole.
    In seller’s action for price, where buyer, in cross-action, sued for damages because of inferior quality of goods, an instruction authorizing a recovery for plaintiff upon finding that goods were delivered as alleged and not paid for, “unless you find for defendant on his cross-action,” held not to preclude a recovery for seller, when viewed together with charge as a whole.
    Appeal from Midland County Court; J. M. De Armond, Judge.
    Action by the Padgitt Bros. Company against H. B. Dorsey. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    H. A. Beaverton and Garrard & Baker, all of Midland, for appellant.
    Jno. B. Howard and Clay Cooke, both of Pecos, for appellee.
   HARPER, C. J.

This suit was instituted by Padgitt Bros. Company against H. B. Dorsey upon verified open account of goods, wares, and merchandise sold to' defendant from March 1, 1916, to April 18, 1916, in the sum of $404.58.

This is the second appeal in this case; the former opinion reversing it is to be found in 194 S. W. 1124, to which we refer for a more general statement of the issues.

The defendant at the last trial denied under oath that the account was just and true, and further pleaded that the goods enumerated in the verified account had been received by them-, but that they were worthless, and therefore plaintiff should not recover.

' By cross-action alleged that, because the goods enumerated in the account sued on, together with other goods enumerated and attached as an exhibit theretofore paid for, all of which did notj come up to the samples exhibited and upon which the contract of sale was based, as high grade French calfskin, he had suffered damages in the sum of $782.93, and prayed judgment for said last-named sum.

The plain tiff in answer to the cross-action filed general demurrer, general denial, and specially denied that the sale was made by samples, nor had they given any warranty; that defendant had an opportunity to inspect the goods; that Dorsey knew that the goods were not manufactured by plaintiff; that therefore the rule of “caveat emptor” applies;. that they were to furnish French calfskin so long as it could be had, and then American calfskin.

Tried by jury, and verdict rendered for $153.25 in favor of Dorsey; and, from the judgment entered for said amount, this appeal.

The first assignment, urging that the answer was subject to general demurrer, is overruled, because we see no reason to recede from our former holding.

The second is that the court erred in admitting, over the objection of plaintiff, the depositions of Raymond Johnson. The bill of exceptions simply shows that the answers were objected to: First, because “they were not under oath; second, were immaterial and irrelevant.” As evidence that the answers were not under oath, the appellant cites the jurat of the officer which reads;

“Personally appeared before me E. 0. Boyd, notary public in and for Culberson county, who acknowledged that he signed the above paper as his own act and deed.”

Article 3676, Vernon’s Sayles’ Civil Statutes, provides:

“When a deposition shall have been filed in the court at least one entire day before the day on .which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing” filed with notice to opposing party, and “shall be made and determined at the. first term of the court,” etc.

The bill of exceptions does not show that this statute has, been observed; so, having concluded that the first objection is directed to the matter of form of taking the deposition, it is untenable as an objection made at the time of introduction of the answers in evidence. If the objection had been made by motion, as provided by statute, appelleé might have been able to show that the witness was in fact sworn and have the jurat amended as to form, or to retake the depositions, and this is evidently what the statute intended to provide for.

The second — immaterial and irrelevant — is addressed to all of the witness’ answers. Some of them were relevant and material; so, since the bill does not separate the admissible from the inadmissible evidence, the assignment must be overruled. Lester v. Hutson, 167 S. W. 321; Jamison et al. v. Dooley et al., 98 Tex.(206, 82 S. W. 780. Besides, the objection that the evidence is “irrelevant and immaterial” is insufficient even in criminal cases. Whittle v. State, 43 Tex. Cr. R. 408, 66 S. W. 771. The reasons for the objection should distinctly show how or why the testimony is irrelevant or immaterial.

The sixth complains of the following portion of the court’s charge:

“If you believe that the goods * * * were sold to -defendant by the plaintiff at the defendant’s own instance and request on or about the dates mentioned in plaintiff’s petition, and that defendant has not paid for same, then you will find a verdict for the plaintiff for such an amount as you may find duo on said account, unless you find for the defendant on his cross-action as hereinafter charged.”

The' proposition is that it precludes a recovery for plaintiff on parts of the account which are not controverted. The whole of this charge must be construed together, bearing in mind all the while the pleadings of the parties.

The court followed the above charge with, in effect, the following:

“ * * * If you believe the plaintiff sold to defendant the goods mentioned in the evidence * * * representing that the uppers would be of a first-class condition and suitable for the service for which it was understood they were to be used, and that the defendant relying upon such representations paid for them, * * * and you shall further believe that they were of an inferior grade and worthless, then defendant would be entitled to recover on his cross-action such an amount of damages sustained as a direct consequence of such failure. (Here follows a charge upon latent defects, etc. Then the charge is:) If you find that the uppers were of any value, then you will determine their value,” etc.

By this charge the jury are only permitted to find for the defendant the loss he incurred by reason of the goods for which he had paid prior to the date of those mentioned in the verified account; so it,’seems clear that, the judgment being for defendant for $153.25, the jury have given plaintiff credit for all of the amount sued for, $404.57, and more, because -the defendant alleged and asked for damages in the sum of $783.73 and testified that he had in fact suffered actual damages in the sum of $1,187, That paragraph of the charge, complained of, when considered in the light of the succeeding one, and the whole of the general charge for that matter, is a peremptory charge for the plaintiff for all of the amount sued for, but to be offset by any damages found in favor of defendant upon his cross-action, and this has been done by the jury striking the balance in favor of defendant.

The third is that — ■

“The court erred in refusing to peremptorily charge the jury to find for plaintiff for $285.52, this being the amount of items in the account sued on which were bought on open account, were delivered, accepted and used, and were of the reasonable market value of said sum.”

The observations next above .apply to this assignment, in that the charge of the court permitted them to find for plaintiff the whole amount sued for.

The fourth assignment is that Jthe court erred in refusing the following special charge:

“You are charged that he becomes bound to pay the price and cannot complain if the quality of the goods are inferior when he accepts them after he inspects or has had an opportunity to inspect.”

And the fifth is that the court erred in refusing the following special charge:

“You are charged that the buyer cannot rescind the contract of sale without returning the goods sold, unless said goods are wholly worthless.”

The charge in this case is that the goods were rotten, worthless, inferior, etc., and that the defect could not be detected by an inspection, but could only be discovered by actual wear, etc., and the court’s general charge is sufficiently comprehensive to cover the pleadings and evidence of both parties.

Finding no error in the record, the cause must be affirmed. We, however, add that if there has been technical error, which we in no wise concede, the cause has been twice submitted to a jury and the facts found against appellant in both instances, and in view of the fact that the pleadings and evidence would in our opinion justify a much larger verdict, and that there must be an end to litigation, we feel justified in invoking Rule 62a (149 S. W. x) in support of this affirmance.

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


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    SECURITY REALTY CO. v. CRITCHETT.
    (No. 885.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1918.)
    1. Appeal and Error @=273(2) — Scope — Defects in Pleading — Necessity of Ruling Below.
    Objection that complaint in broker’s action against his associates for share of commission failed to allege fraud in securing release given by him is available only on an action of the court on special exception to the pleading, in the absence of which no question is presented on appeal.
    2. Damages @=157(4) — Interest as Damages — General Relief.
    Where broker sued associates for share in commission fraudulently concealed from him, and asked general relief, interest, being allowable as part of his damages, was properly included in the judgment, which did not exceed the amount sued for.
    3. Judgment @=251(1) — Conformity with Pleadings.
    Where broker sued on parol contract for one-half of commission collected by defendants from one party to an exchange, and defendants alleged the contract was for one-third of the commission collected from the other party, judg-inept for one-third of the commission from, the latter was within the pleadings.
    4. Brokers <©=>86(1) — Actions for Commission — -Evidence.
    In broker’s action against associates for share of commission fraudulently concealed, evidence held to sustain finding that parol contract entitled him to one-third of such commission.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by J. C. Critehett against J. R. Ellis and Robert L. Morris, doing business .as the Security Realty Company. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    In this suit, J. O. Critehett, plaintiff, sued defendants, J. R. Ellis and Robert L. Morris, a real estate firm, doing business under the firm name of Security Realty Company, to recover the sum of $1,625, alleged to be the unpaid balance of one-half of commissions claimed to be due him in an exchange of properties between J. R. Riordon and C. E. Kellogg. Kellogg owned a farm or ranch in the valley near Clint, Tex., and listed the property with Critehett for sale or exchange. Critehett listed the property for sale or exchange with E'llis & Morris, and alleges that said listing was on an agreement that, if the property was sold or exchanged, any commission realized would be equally divided between himself and Ellis & Morris. Ellis & Morris effected an exchange of properties between Riordon and Kellogg, and collected as commissions the sum- of $750 from Kellogg and the sum of $2,744 from Riordon. On representation by Ellis & Morris that they had received as commissions the said sum from Kellogg, and that they had received no commissions from Riordon, Critehett executed and delivered to Ellis & Morris a receipt in full satisfaction, discharge, and release, for $250, in settlement of all commissions due him.
    On special issues submitted, the jury found: That at the time of the exchange of the properties it was the agreement of Critehett and the firm of Ellis & Morris that Critehett should share in the commission to be paid by both parties to such exchange; that Critchett’s share of such entire commission was to be one-third; that Critehett was not entitled to recover oné-half of the commissions paid by Riordon and Kellogg by reason of a custom existing in El Paso at the time of said exchange of properties; that it was not the agreement between Critehett and Ellis & Morris that Critehett should only share in such commission as might be paid by Kellogg, in the event of an exchange of Kellogg’s property; that neither Critehett nor his attorneys, nor the attorney representing Kellogg in the ex-' change of properties, knew at the time the receipt for $250 (being one-third of the Kellogg commissiorO was executed (in full settlement of the commissions) that Ellis & Mopris had received commissions from Rior-don.
    The issue tendered by Ellis & Morris in their pleading, and upon which they offered evidence, was that Critehett should receive one-third of the commission on the sale or exchange of the Kellogg property, but denied that there was an agreement to divide commissions on sale or exchange of property for the Kellogg property. On the verdict of the jury the trial court rendered judgment in favor of Critehett for $914.80, being the unpaid one-third of the commissions received from Riordon, with 6 per cent, interest thereon from the 3d day of June; 1916, the date of the exchange of the properties. Prom that judgment appellants take this appeal.
    Ponder S. Carter and E. M. Whitaker, both of El Paso, for appellants.
    U. S. Goen, of El Paso, for appellee.
   WALTHALL, J.

(after stating the facts as above). The first assignment of error is to the refusal by the court “to give to the jury special requested charge 1” and quoting the verbiage of the ground upon which the special charge was requested, as found in their motion for a new trial. The record shows a request for peremptory instruction for appellants, which the court overruled. The court was not in error in overruling the request for' peremptory instruction for appellants. The assignment is overruled.

The second assignment asserts error' in rendering judgment against appellants on the ground that the pleadings, while showing that the matters in controversy had been compromised and released in full by appel-lee, “no allegations of fraud sufficient to authorize the court to set aside the release were made by the plaintiff in his pleadings, in that he failed to allege that the false statements, if any, were material, were relied on by him, and that he believed them to be true,” and asserted the proposition that in order to set aside the release executed, the petition must contain such allegations.

Without quoting the verbiage of the .petition, we think it good as against a general- demurrer. Appellants pleaded a general demurrer and no special exception to the petition. The grounds of error in the assignment could be made available under the circumstances here shown only on an action of the court on special exception to the pleading. The assignment not showing any action of the court on exception to the pleading it presents no ground of action for this court.

Appellee did not sue and pray for interest, but did pray for general relief. The judgment rendered does not exceed the amount sued for. The court allowed legal interest from the date of the exchange of properties.

The third assignment claims error in allowing the interest. In this, we think there was no error. Interest to which appellee was entitled is awarded as a part ot his damages, and -not as interest eo nomine, and the amount recovered does not exceed the amount sued for. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Island City Sav. Bk. v. Sachtleben, 67 Tex. 420, 3 S. W. 733; Schulz v. Tessman et al., 92 Tex. 488, 49 S. W. 1031; Morris v. Smith, 51 Tex. Civ. App. 357, 112 S. W. 130; Ry. Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054. Appellee sued upon an express parol contract to recover onelialf of the unpaid balance of the commissions collected by appellants from Riordon, on the exchange of the properties. Appellants admitted that there was a contract between appellants and appellee for a division of commissions on 'amount collected from Kellogg, and alleged that appellee’s portion was to be one-third and not one-half, and denied that there was a contract for a division of commissions collected from Riordon. The jury found that the agreement covered the Riordon commissions, and that appellee’s share of such entire commission was one-third, and not one-half. The court rendered judgment for one-third of the Riordon commissions. By appellant’s fourth assignment, it is urged that the judgment for one-third of the commission has no basis in the pleading, and that to render judgment for one-third of the commission is fundamental error. The judgment is well within the pleadings and the verdict. The assignment is overruled.

It is claimed the jury’s finding that Critchett’s share of the entire commission was one-third is not supported by the evidence. Critchett testified in substance that he listed the Kellogg property with Ellis for sale or exchange; that in response to a request that Ellis state distinctly the way in which commissions were handled in case of a trade, Ellis went over the statement as to customary commissions, and that in the Kellogg cáse the division of the commission would be in the ordinary way. Critchett’s evidence does not show what Ellis stated the customary division of commissions was; that later Ellis said:

“Get hold of Kellogg; I have got a fine apartment house, and there is 5 per cent, commis'sion in it for us.”

He got Kellogg, and the exchange was made. The evidence shows that on several occasions, and to different parties, Ellis & Morris denied that they had received any commissions from Riordon. One of the parties to whom they so claimed was Critehett’s attorney, who went to them in an effort to effect a settlement of commissions between them and Critchett. It was admitted of record that they had received as commissions from Riordon, on the exchange of the apartment house for the Kellogg property,. the amount above stated. Witness Stevens testified that it was customary under the circumstances stated, in the absence of an agreement, “to split all commissions 56-50,” and that the same rule applied in case of exchange as in sale. We think the evidence is sufficient to sustain the finding.

Finding no error, the case is affirmed.
      ©=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§ss>For other cases see same topic and KEY-NUMBBR m ail Key-Numbered Digests and Indexes


author: HALL, J.

text:
    CUDAHY PACKING CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 1339.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1918.
    Rehearing Denied Dec. 4, 1918.)
    1. Pleading <§=3210 — “Speaking Demurrer.”
    A demurrer to a petition alleging facts not found in the petition is a “speaking demurrer,” and should be overruled.
    [Ed. Note. — For other definitions, see Words and Phrases. First and Second Series, Speaking Demurrer.] ‘
    2. Appeal and Error <®=^719(4) — Assignments of Error — Fundamental Error.
    An improper overruling of a general demurrer to a petition presents fundamental error, and should be considered upon an appeal, whether raised by tbe assignment or not.
    3. Carriers <§=332(2) — Live Stock — Limiting Time for Bringing Action — Waiver.
    The provision of a valid interstate live stock shipment contract that suits to recover for injury or delay to shipments must be begun within 91 days thereafter cannot be waived by a carrier.
    Appeal from District Court, Shackelford County; Joe Burkett, Judge.
    Suit by the Cudahy Packing Company against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment sustaining exceptions to the petition, plaintiff appeals.
    Judgment rendered dismissing tlié cause.
    New, Miller, Camack & Winger, of Kansas City, Mo., J. A. King, of Albany, and Moses & Rowe, of Ft.. Worth, for appellant, Cudahy Packing Co.
    Moses & Rowe, of Ft. Worth, for Cattle Raisers’ Ass’n of Texas, as amici curite.
    Scott & Brelsford, of Eastland, W. L. Morris, of Albany, and A. H. McKnight, of Dallas, for appellee.
   HALL, J.

Appellant packing company .brought this suit against the appellee railway company and its receiver March 31, 1916, to recover damages on five separate shipments of cattle made from Ft. Worth, Tex., to Kansas City, Mo., in April, 1912, and in February, 1913. The petition charges that a written contract was made at the time of each shipment, and that appellant complied with all the terms and conditions of said contract, except that particular term which required the shipper, in the event of injury or damage, to file suit within 91 days after the accrual of his cause of action. The petition contains five counts, and except as to.the date of shipment, number of eattlé, and other facts de•scriptive of the particular shipment declared upon, said counts are substantially in'the ■same language. The receiver presented his plea in abatement, and was by the ruling of the court dismissed from the suit. This* appeal is from the action of the trial court in sustaining two certain exceptions to paragraphs 16, 17, and 18, in each of the. five counts. These- paragraphs are as follows:

“(16) Plaintiff further states that this suit was not instituted within 91 days after the happening of the injuries, delay or delays,' complained of, as undertaken to be required by said contracts or bills of lading, for the reason that the defendant, the Missouri, Kansas & Texas Railway Company of Texas, clearly and1 ex-, pressly waived the bringing of suit within said timo, and by its conduct, -as hereinafter set forth, prevented and made it possible for plaintiff to institute said suit, and has estopped itself from setting; up as a defense any alleged failure of plaintiff to comply with said provision of said contracts; that, after giving notice and filing the claims of the loss and damage to said shipment, as hereinbefore set forth, the above-named authorized agents of said defendant, the Missouri, Kansas & Texas Railway Company of Texas, received and investigated said claims, as hereinbefore stated; that, upon receiving said claims as aforesaid, both the defendant, said the Missouri, Kansas & Texas Railway Company of Texas, and said Missouri, Kansas & Texas Railway Company, its .connecting carrier, investigated said claim on its merits for a long period of time, and beyond the 91 days’ limitation contained in said contract; and during said 91 days’ period said freight claim agent of defendant and said Missouri, Kansas & Texas Railway Company verbally promised and assured plaintiff that said claim would be paid as soon as the matter could be arranged, and which promise was relied upon by plaintiff, said claim agent being one H. Bier-man, and that during the course of said investigation the freight claim agents of both said railroads had conferences with the traffic manager of this plaintiff on the merits of said claim, and had such conferences long after the expiration of said 9l days’ period mentioned in said contract, and that in said conferences no question whatsoever was raised by either of said freight claim agents as to the failure to bring suit within 91 days, and no objection was made by either of said freight claim agents to said claim that suit was not brought within said 91 days clause set out in said shipment contracts ; that during one of said conferences, and after the expiration of said 91 days, said freight claim agent made an offer of settlement of the said claim to plaintiff, which offér was declined by plaintiff, and that thereupon said claim was declined by said defendant, the Missouri, Kansas & Texas Railway Company of Texas, and said Missouri, Kansas & Texas Railway Company, solely on its merits, and was not declined because of the failure of plaintiff to bring suit thereon within said 91 days. Plaintiff further states that the defendant and its general officers - repeatedly recognized the right of the aforesaid agents to waive said 91-day clause, and have themselves waived said provision of said contract by heretofore repeatedly paying said claims, both to the plaintiff and others, where suit had not been brought within 91 days, and' after the expiration of that period, and have heretofore, and until within a very recent' time, held out to this plaintiff that it was necessary that suit should be so brought in order to have the same settled or paid by said railroad companies; that during all said time it was-the general and constant custom of said carriers to receive claims of all shippers, including those of plaintiff, whether filed within said. 91 days period or not, and whether suit had been filed thereon or not during said period, and to decide them solely upon their merits, and utterly ignore said clause, and to pay claims of all shippers without regard thereto and after the expiration thereon, even though suit had not been filed on such claims within said period.
“(17) Plaintiff further states that said defendant, the Missouri, Kansas & . Texas Railway Company of Texas, or its duly authorized agents, after having received the notice of said claim, and after the same was filed with them, retained and held the papers and documents* furnished and contributed by this plaintiff for the investigation, consideration, and determination of said claim long after the expiration of said 91 days, and without which this plaintiff was unable to institute this suit, and during all the time the same were held, considered said claim, and negotiated with this plaintiff for a settlement thereon, and offered to compromise in settlement thereof, as hereinbefore alleged, after the expiration of said 91 days, and said defendant withheld, neglected, and refused to return the same until after said 91 days, and did not return such papers so furnished and contributed by plaintiff until long after the expiration of said 91 days, and never at any time declined said claim because of any failure of plaintiff to bring suit thereon within said 91 days, but declined said claim solely because plaintiff was unwilling to accept the amount offered by the said defendant and its said connecting carriers, at all times considering and entertaining said claim solely upon its merits; that said papers and documents of plaintiff contained all its original papers, and all the information pertaining to said shipment, and plaintiff could not bring this suit without the use thereof, and, by reason of their being so held and not returned to plaintiff, it was impossible for it to bring this suit within said 91 days, or until the return thereof, and plaintiff was prevented from so doing by reason -thereof; that during said 91 days period plaintiff demanded that defendant said Missouri, Kansas & Texas Railway Company either pay said claim or return said claim papers as aforesaid, but said claim agent H. Bierman, who was claim agent for defendant, stated that said claims would be paid, and then and there refused to return said papers to plaintiff.
“(18) That by reason of all the foregoing conduct of said defendant, the Missouri, Kansas & Texas Railway Company of Texas, and said Missouri, Kansas & Texas Railway Company, its connecting carrier, by their own acts and wrongdoing, prevented this plaintiff from bringing suit within said time, and have waived the provision and requirement of said contracts in regard to bringing suit within 91 days on said claim, and said defendant, the Missouri, Kansas & Texas Railway Company of Texas, is now estopped from setting up as a defense any alleged failure of plaintiff to comply with any of the terms of said contracts requiring suit on the claim herein sued on to be brought within 91 days after the happening of the injuries, delay or delays, complained of herein.”

The exceptions sustained by the-court are as follows:

. “(c) Defendant further specially excepts to 'paragraphs 16, 17, and 18 of the first count in plaintiff's petition, where plaintiff, fey alleging that defendant and its agents had negotiated with reference to a settlement or compromise of this claim, both before and after the expiration of said 91 days, and had not declined payment of the claim, because suit was. not brought within 91 days, and had waived said 91-day clause by having heretofore paid claims where suit had not been filed within 91 days, and had held out to plaintiff that it was not necessary that suit should be brought in order to have the same set-tied by tbe railroad company, and, further, that defendant was estopped from setting up the 91-day clause by reason of the fact that the defendant had retained plaintiff's claim and papers, and that plaintiff was thereby prevented from filing suit within 91 days. Defendant excepts to each and all of said allegations because the facts alleged, if true, do not set up a legal waiver or estoppel; because it is not alleged in what manner the defendant had held out to plaintiff that it was not necessary that suit should be brought within 91 days, and because former custom and dealing, if true as alleged by plaintiff, is not sufficient to constitute a waiver of the express terms of the written contract pleaded by plaintiff, and because, further, it is not alleged that plaintiff was misled by any act of the defendant, and it is not alleged that the claims and data filed with defendant wore the only and sole originals by reason of the retention of which plaintiff had no other data on which to predicate a suit within the 91 days, or that said data or claims were demanded or refused, and because it is not alleged that plaintiff’s agents had the authority under said written contract to waive its express provision with reference to bringing the suit within 91 days from the happening of the alleged injury, and for the further reason that defendant could not waive said stipulation. Wherefore defendant prays judgment of the court as to the sufficiency of said paragraphs from 16 to 18, inclusive, in the first count of plaintiff’s said petition, and of this it prays judgment of the court and for costs.”
“(e) Defendant further specially excepts to said first count in plaintiff’s said petition, for because, under the contract of shipment alleged by plaintiff, it is expressly provided that no suit shall be maintainable on the cause of action involved in said count unless the same shall be instituted within 91 days after the happening of the injuries, delays, or delay complained of, and it affirmatively appearing in the allegation of said petition that more than 91 days, to wit, nearly three years, hgd elapsed between the date of the injuries claimed by plaintiff in said count and the filing of this suit, therefore said cause of action is forever barred, and of this defendant prays judgment of the court and for costs.”

None of the contracts which form the basis of the suit were made exhibits to the petition, nor were their terms and stipulations, except the limitation clause, set out or declared upon. It does not appear that the appellant executed the contracts in consideration of a reduced freight rate, but the case is hriefe(d upon the assumption that the terms limiting the carrier’s common-law liability rest upon' a sufficient consideration. We do not assert, in the light of recent decisions by the United States Supreme Court, that a consideration is necessary to support the limitation clause in a carrier’s contract for the shipment of live stock, but will proceed upon the theory that the contracts in question are valid in that particular.

Exception (e), last above set out, alleges facts not found in the petition, and, being for this reason a speaking demurrer, should have been overruled.

The court’s ruling on exception (e) raises no question necessary to he considered, save in so far as it sustains appellant’s contention that the facts alleged in the three paragraphs of the petition attacked “do not set up a legal estoppel,” and “defendant could not waive said stipulation.” In this particular the exception was a general demurrer. The other objections urged in the exception to the three paragraphs of the petition are properly grounds for special exception. As said in Porter v. Burkett, 65 Tex. 383, “what does it avail a plaintiff to fortify his petition against a special exception, when the court, in effect, holds that if he does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.” It was not necessary for the petition to set up the limitation clause in the various contracts, as that was a • matter to be alleged by appellee in defense; but having declared upon it, together with such facts as in the opinion of the pleader constituted a waiver of the stipulation and created an estoppel, the question of the validity of the clause could be raised by demurrer. Appellant insists that we consider the principal question, whether properly raised by the appellant’s pleadings or not, which may be stated by quoting the third proposition under appellant’s third assignment of error, as follows:

“The facts alleged by the appellant in paragraphs 16, 17, and 18 of its petition are sufficient in law to estop the appellee from availing itself of the 91-day limitation clause, even if same and all facts from which limitation could be found affirmatively appeared in appellant’s petition.”

. The validity of this clause, and the question as to whether or not the carrier could waive its right to insist upon it, or by the conduct of its officers and employes be estop-ped from pleading it as a matter of defense, was raised by the general demurrer, and, the court having overruled the general demurrer, such ruling presents fundamental error, and should be considered by this court, whether raised by assignment or not. Since the petition set up the clause, and attempted to avoid its effect by facts tending to show waiver and estoppel, we think the court should have sustained the general demurrer, because the Supreme Court of the United States, which is the tribunal having final authority on all matters growing out of interstate shipments of freight by common carriers, has declared that the limitation clause cannot be waived. While this holding is at variance with the decisions of many of the state courts, the Supreme Court of the United States having spoken definitely the matter is no longer open for debate. This court, in an opinion by Chief Justice Huff, in the case of Chicago, Rock Island & Gulf Railway Co. v. Shroyer, 197 S. W. 773, after discussing the federal decisions at some length, both in an original opinion and in an opinion on motion for rehearing, declared that the effect of a waiver of the limitation clause would permit discrimination between the parties, and allow by indirection what the carrier could not do directly; and followed the holding of the federal court In Honston, East & West Texas Railway Co. v. Houston Packing Co., 203 S. W. 1140, Chief Justice Hightower, of the Ninth Court of Civil Appeals, arrived at the same conclusion, holding that the Interstate Commerce Commission had no authority to authorize an interstate carrier to waive the stipulation with reference to notice of claim for loss. We refer to these decisions, and to the decision of the Supreme Court of the United States cited therein, and deem it unnecessary to prolong the opinion by any further discussion of the issue. Believing that appellant will not be able to allege any facts which will enable it to avoid the effect of the bar, judgment will be here rendered sustaining the general demurrer and dismissing the action.

Judgment rendered; cause dismissed.

BOYCE, J., not sitting.
      ©rsFor other cases see same topic and KEY-NTJMBBR in. all Key-Numbered Digests and Indexes


text:
    QUANAH, A. & P. RY. CO. v. STEARNS.
    (No. 1386.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.)
    1. Railroads <@=>454(2) — Setting Eire on Right of Wat — Duty to Protect Landowner.
    If spark arresters used by railroad had proven to be inadequate during a high wind, it wai# its duty to secure better ones, or to use reasonable diligence to protect an adjacent landowner, from fire started by igniting grass and weeds on its right of way, in some other manner.
    2. Railroads <@=>456 — Setting Fires — Duty to Protect Landowner — Contributory Negligence.
    Where hot winds dried grass on railroad’s right of way, rendering it combustible, and, on account of velocity of wind, it was dangerous to attempt to burn it off¡ duty to plow or bum fireguards to protect adjacent lands rested on railroad rather than landowner.
    3. Railroads <@=>460 — Setting Fires — Negligence — Duty of Landowner.
    Landowner adjoining railroad’s right of way is not required to anticipate railroad’s,negligence in respect to setting fires, and has right to full enjoyment of his property for all lawful purposes, including growing of grass.
    4. Trial <@=>219 — Instruction — Definition of Market Value.
    In suit against railroad for damages by fire to lands adjacent to its right of way, though it would have been proper for the trial court to define “market value,” failure to do so was hot reversible error.
    5. Trial <@=>260(1) — Instructions — Repetition.
    Where the matters incorporated in a special requested charge were given to the jury in the general charge, the special charge was properly refused.
    Appeal from District Court, Motley Coutí-' ty; J. H. Milam, Judge.
    Suit by L. A. Stearns against the Quanah Acme & Pacific Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. P. Marrs, of Quanah, and G. E. Hamilton, of Matador, for appellant.
    T. .T. Bouldin, of Matador, for appellee.
   HALL, J.

The following statement by appellant of the nature and result of the suit, which is concurred in by appellee, is adopted:

“This suit was brought by the appellee, L. A. Stearns, against the appellant, Quanah, Acme & Pacific Railway Company, in the district court of Motley county, for damages in the sum of $742.50 to the grass, turf, and timber on two sections of land held by appellee under lease for. grazing purposes, situated in Motley county, which grass plaintiff alleged to have been burned by fire set out by defendant’s engine on or about the 15th day of July, 1916. Appellee alleged that appellant’s said locomotive was so defectively and improperly built and constructed and in such poor repair and so carelessly, negligently, and unskillfully managed by the agents, servants, and employés of appellant in charge thereof that sparks of fire escaped from said locomotive and set fire to the grass and other combustible material which appellant is alleged to have negligently and carelessly permitted to accumulate upon its right of way, and that said fire was thereby communicated to appellee’s land; that said land was covered with a heavy coat of grass of the reasonable market value of $1.00 per acre; that the damage to the timber and turf on said land is $112.50. Appellant answered, by general and special exception, which were by the court overruled, and alleged that all of its engines on the date the fire occurred were in good condition and equipped with the latest and most improved and approved spark arresters in general use; that same were in good repair on said date and were in charge of and operated by skilled and careful engineers in a proper manner; that the engine alleged to have set fire to appellee’s grass had been inspected immediately before and immediately after it went upon said run, and especially with reference to the condition of its spark arresters; and that the same was in good condition and skillfully and carefully operated. Appellant denied permitting combustible matter to accumulate upon its right of way, and alleged that during the four or five days just prior to the fire the grass and .weeds on its right of way had become dry enough to burn, but had been too green to bum prior to that time; that hot winds blowing during tbe last four or five days suddenly dried up and parched the vegetation, rendering them sufficiently dry to bum; that said winds made it unsafe for appellant to try to burn off its right of way; that it had attempted to do so only a day or two before the fire in question occurred and found that it was dangerous to attempt it; that it had been impossible after the grass became dry enough to burn for appellant to bum it off of its said right of way; that, if appellee suffered! the injury complained of, such injury was the result of appellee’s own negligence in failing to take.the precaution to burn or plough the fireguards where same appeared to be needed through his land. All of which dangers appel-lee well knew.”

A trial resulted in a judgment against appellant in the sum of $450.

The first assignment of erorr is that the court erred in sustaining plaintiff’s special exception to the appellant’s plea of contributory negligence. The proposition urged under this assignment is:

“Where the evidence shows that the owner of grass Mjew of the danger of its being set on fire by a railroad locomotive and could have prevented it by the use of ordinary care but did not, he is guilty of contributory negligence, and the same may be pleaded and proved by the defendant railway company as a bar to plaintiff’s recovery.”

This assignment presents this issue: Is the owner of a pasture adjacent to a railway guilty of contributory negligence when he fails to plough or burn fireguards to protect his grass when it is probable that fire, caused by sparks from passing locomotives, will ignite grass and weeds on a right of way and spread to the owner’s premises? Appellant seeks to excuse its apparent negligence in allowing dry grass and weeds to accumulate upon its right of way by the allegation that the hot winds for four or five days, immediately preceding the fire in question, had dried the grass and weeds, rendering them combustible, and that on account of the velocity of the wind it was dangerous to attempt to burn off the right of way during that period. If we admit that the high wind would excuse appellant’s failure to bum off its right of way, we are still unable to conclude that the duty to plough the fireguards in the exercise of ordinary care rested upon appellee rather than upon appellant. Appellee was in noi degree responsible for tire condition of appellant’s right of way, nor for the circumstances which prevented appellant from cleaning it off. If the spark arresters used by appellant had proven to be inadequate during such high wind, it was clearly its duty, to secure better ones, or use reasonable diligence in an effort to protect appellee in some other manner.

Appellant cites a number of cases where cotton and other- personal property, placed near the railroad by the owner, was burned and where he was denied a recovery. The case of St. Louis & Southwestern Ry. Co. v. Arey, 107 Tex. 366, 179 S. W. 860, L. R. A. 1916B, 1065, is also cited in support of the proposition. That is a case where plaintiff had permitted loose oat straw to accumulate in the loft and stalls of his barn and had left some windows of the barn open on the side nearest the railroad, in eonsequerice of which sparks from a passing locomotive set fire to the straw and destroyed his property. Discussing the question of contributory negligence of the plaintiff, the Supreme Court said:

“It is not a question of the lawful use by the owner of his premises; it is a question of his negligent use of them and the legal consequences of such use when it is directly responsible in whole or in part for injury to the owner’s property.”

No charge of negligent use of his property is made against appellee in this case, unless permitting grass to grow on his pasture lands is such negligence. He had not placed any property near appellant’s track, negligently or otherwise; his grass was there before the railroad was constructed, and his act in permitting it to remain and grow does not subject him to the charge of “rashly or purposely exposing it to the hazard.” The rule is settled that he is not required to anticipate the conrpany’s negligence and has the right to the full and free enjos'ment of his property for all lawful purposes. Ry. Co. v. Arey, supra.

Appellant also cites Ft. Worth & Denver Railway Co. v. Hapgood, 184 S. W. 1075, as supporting its proposition. The contributory negligence alleged in that case was the refusal of the plaintiff Hapgood to permit defendant company to burn fireguards on his land adjacent to the right of way until after the company had paid him the value of the grass necessary to be burned. The tridl court sustained a general demurrer to the plea, and the Second Court of Civil Appeals, speaking through Judge Dunklin, reversed the ruling. The extent of the holding in that case is that it was a question of fact whether or not the rejection of the company’s offer to burn fireguards on plaintiff’s land constituted contributory negligence. There is not the slightest intimation anywhere in the opinion that the court thought the duty rested upon Hapgood to burn the fireguards, but the court and the railway company seem to have both proceeded upon the idea that the law imposed that duty upon the railway company.

We think the correct rule applicable to the facts of this case is stated in 11 R. C. L. p. 972, §§ 28 and 29, as follows:

“ * * * The duty of one, where negligence is already committed and known to him, does not, however, imply a duty to anticipate and provide against such negligence, and an owner of property is not guilty of contributory negligence in not foreseeing and providing against the negligence of a railroad company in setting or allowing the escape of fire by which his property is injured or destroyed. Though contributory negligence on the part of the property owner is a defense, he is bound only to use such a degree of care as a man of ordinary prudence would have exercised under like circumstances, and he will not be deprived of redress against the railway company for its negligence by the fact that had he been more vigilant the injury might not have happened. * * * The weight of authority is, however, to the effect that a person owning land adjoining the right of way of a railroad company is not guilty of contributory negligence in failing to remove the combustible matter from his land or in farming thereon in the ordinary and usual way; such conduct on his part not preventing a recovery for fire set by the railroad. A person having property adjacent to the railroad is not bound to keep his property in such condition as to guard against the negligence of the railroad company, but every person has the right to enjoy his property in an ordinary manner, and, while one is charged with the duty of saving his property when he can do so, he is under no obligation to stand guard over it and continually watch it to protect it from the negligence of the railroad company. He may cultivate, build upon, and use his lands, or leave them in a state of nature, as he may see proper, and will take upon himself no other risks than such as are incident to the operation of the road in the exercise of proper care and vigilance by the company, and will nevertheless be entitled to remedy for injuries by fires arising from the negligence of the company in the construction or management of its locomotives or in the condition in which its track is suffered to remain. _ The distinction between the cases of the railroad company and that of the contiguous owner is obvious. The ■company uses a dangerous agent and must provide proper safeguards; the landowner does nothing of the kind and has a right to remain ■quiescent.”

We overrule the objections urged to the charge. While it was proper for the court to define “market value,” a failure to do so is not reversible error. The matters incorporated in special charge No. 1, refused by the court, were given to the jury in the general charge and should not have been repeated.

We think the evidence supports the verdict and judgment, and the judgment is therefore .affirmed.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: • HUPP, C. J.

text:
    BROWNE GRAIN CO. v. WALKER.
    (No. 1425.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1918.)
    1. Contracts <§==>15 — Creation—Acceptance.
    To make a contract there must be mutual assent, and the. assent must comprehend the whole proposition.
    2. Sales <§=>22 (2) — Offers—Effect.
    Where communication stating the terms on which goods may be ordered, is merely an invitation to enter into negotiations, an order given pursuant to its terms does not complete the contract.
    S. Sales <§=>22(4) — Otters—Acceptance.
    'Where defendant offered oats “even wt. bags for Dee. shipment” at a named price, and plaintiff ordered shipment “about the 17th day ■of November” of a car of oats “sacked 5 bu. to sack,” and one car December 1st and one car December 15th, the acceptance qualified the provisions, and there was no contract.
    4. Yenue <§=>21 — Residence of Dependants —Privilege.
    Where there was no written contract between the parties to be performed in the county where suit was begun and such county was not that of defendant’s residence, held, that under Rev. St. 1911, art. 1S30, the county court of such county was without jurisdiction.
    Appeal from Cottle County Court; W. O. Jones, Judge.
    Action by S. E. Walker against the Browne Grain Company, a partnership composed of O. V. Browne and E. P. Browne. Prom a judgment for plaintiff, defendant appeals.
    Reversed, with instructions.
    Abernathy & Abernathy, of McKinney, for appellant.
    C. O. Renfro, of Paducah, for appellee.
   • HUPP, C. J.

S. E. Walker instituted this suit in the county court of Cottle county, Tex., against the Browne' Grain Company, a partnership, composed of C. V. Browne and E. P. Browne, of Collin county, Tex., seeking to recover the sum of $900, on account of breach of an alleged contract of sale of three ears of oats, alleging in the petition that on or about the 11th day of November, 1917, appellee and appellants entered into a contract in writing, whereby appellants obligated and bound themselves to deliver ap-pellee three cars of No. 3 Northern oats, at Paducah, Texas, on November 17th, December 1st, and December 15th, respectively, said cars to contain 1,500 bushels of oats each, at the prices of 77 cents per bushel, delivered at Paducah. The appellants filed a plea of privilege to be sued in the county of their residence, which is in proper form, negativing a written contract to perform in Paducah, and further filed general and special answer in bar. The appellee Walker filed a reply to the plea of privilege, alleging that the suit was filed under exceptions of article 1830, subd. 5, R. G. S. The evidence taken upon the plea of privilege shows beyond controversy that the appellants, both O. Y. and E. P. Browne, reside in Collin county, Tex., and did so at the time of the institution of the suit and at all times since the filing of the same, and so resided at the time of the filing and hearing of the plea. They also show that they were partners under the firm name of Browne Grain Company, with their place of business at McKinney, Collin county, Tex. The only ground relied upon as fixing the venue in Cottle county is the fifth exception to article 1830, R. C. S., which provides that, where a person has contracted in writing to perform an obligation in any particular county, suit may be brought therein. The writing relied on is based upon letters which we quote below, or so much thereof as is deemed necessary:

“Brown Grain Co., Receivers and Shippers of Wholesale Grain Peed and Hay.
“Quotations Subject to Confirmation.
“Mr. S. E. Walker, Paducah, Texas — Dear Sii“ Referring to your letter of the 7th, we can make you some No. 3 White Oats, even wt. bags for Dec. shipment, at 77 cents delivered there. * * *
“[Signed] Browne Grain Co.”

To which the appellee replied:

“Browne Grain Co., McKinney, Texas — Gentlemen: Please ship me on or about the 17th day of November, one car number three (3) White Northern or Texas oats (Texas preferred) sacked 5 bu. to sack, good sacks, 77 cents delivered. Also book me for two cars same oats to be shipped as follows: One car Dec. 1st, one car Dec. 15, 1917, price 77 cents delivered Paducah, Texas, as per your letter this date, these orders will be taken care of, always in shipping me, make draft through the First State Bank here.
“Yours truly, ' S. E. Walker.”

The question is: Did this correspondence make a contract in writing to be performed at Paducah, Cottle county, where the suit was instituted? Our Supreme Court has. said:

“To make a contract there must be a mutual assent. The assent must comprehend the whole of the proposition; it must be exactly, equal to its extent and provisions, and it must not qualify them by any new matter.” Summers v. Mills, 21 Tex. 77; Walker v. Denison, etc., 178 S. W. 556; Ingham v. Cisco Oil Mill Co., 38 Tex. Civ. App. 608, 86 S. W. 630; Ry. Co. v. Columbus Rolling-Mills Co., 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 377; Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556; . Connell v. Nickey, 167 S. W. 313-320; Harmon on Contracts, § 71 et seq.; Page on Contracts, § 44 et seq.; Elliott on Contracts, § 36 et seq.

The “proposition,” if such it is to be termed, made by appellant, was to sell No. 3 oats at 77 cents for December shipment. The acceptance, was for one car at 77 cents shipped on or about the 17th of November; the other two cars December 1st and December 15, 1917. This acceptance, we think, was not “exactly equal in extent and provisions,” but “qualified them” by the “new matter.” Neither did the proposition as made authorize the acceptance of a shipment of oats in five-bushel sacks and good sacks. Appellants proposed to ship the oats in even weight bags. Now it is possible the appellants, in making the proposition, understood that they could not procure oats for November delivery or shipment and hence proposed for delivery in December, or that the price for November would. be different from that in December. They did not propose any day or any particular day in December, but a shipment and delivery in that month would have complied with their proposition. Magnolia Cotton Oil Co. v. Continental Oil Co., 183 S. W. 10; 35 Cyc. 177. Appellee’s acceptance required shipment for December to be on or before the 1st and 15th, respectively.

Again, the even weight sacks or bags were not specified in the proposition. If appellant could get only either two, three, four, or five bushel bags, they had the right to do so, and therefore have even weight bags. This privilege was left to them, but the acceptance required five bushel sacks, and, if the appellant did not have them or could not get that quantity'sacks, then they could not accept and would not have been authorized to ship in any other sacks, even if all such shipments had been in even weight bags.

On the letter, or proposition, and as a part thereof, it had the statement: “Quotation subject to confirmation.” It is insisted by appellant that this was a condition annexed to their proposition, which required confirmation of the acceptance before a contract would be consummated. If such was its effect, it would be a condition precedent necessary to complete a contract of sale. Under the facts introduced on the plea, .we do not undertake to determine what effect this notation had upon the contract. The correspondence, as shown by this record, apparently brings it within that class of cases where communications stating the terms upon which goods may be ordered, and which are regarded merely as an invitation to enter into negotiations, so that an order given pursuant to their terms does not complete a contract. If any part of it is left open for future agreement, a contract does not arise, and it would appear that such effect should. be given to the negotiations in this case. Brillhart v. Beever, 198 S. W, 973-975; Watkins v. Campbell, 100 Tex. 542, 101 S. W. 1078.

We have reached the conclusion that there was no written contract to be performed in Paducah, Cottle county, as shown by the evidence on the plea of privilege, and the trial court should have sustained the plea. Merchants’ Reciprocal Underwriters v. First Nat. Bank, 192 S. W. 1098, 1101, (3).

It is therefore the order of this court that the case be reversed, with instructions to the trial court that he sustain the plea and change the venue to Collins county, Tex., as required by the statute. The other assignments presented by appellants as to the correctness of the judgment of the trial court on the merits', will not be considered, as sustaining the plea of privilege ousts the court of jurisdiction over the person of the appellants, and no valid judgment could be rendered for any amount.

Reversed, with instructions.
      <§=3For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. HINNANT.
    (No. 6103.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.)
    1. Carriers <&wkey;228(5) — Live Stock — Actions —Evidence.
    In an action for damages for injuries to a shipment of cattle, evidence held insufficient to establish the alleged negligent rough handling and delay.
    2. Appeal and Error <@=31175(5) — Determination.
    In an action for injuries to a shipment of live stock, where plaintiff called all the witnesses, who knew anything about the accident, and the evidence was wholly insufficient to establish the railroad company’s negligence, a judgment for plaintiff should be reversed without remand..
    Error from Jim Hogg County Court; A. M. Brumfield, Judge.
    Action by Robert Hinnant against the San Antonio & Aransas Pass Railway Company and another. Erom a judgment for plaintiff, the named defendant brings error.
    Reversed and rendered.
    Kleberg & Stayton, of Corpus Christi, and T. Wesley Hook, of Kingsville, for plaintiff in error.
    H. H. Flowers, of Hebbronville, for defendant in error.
   ELY, C. J.

This is a suit for damages to a shipment of cattle from Bruni, Tex., to Kerr-ville, Tex., instituted by defendant in error, herein called plaintiff, against plaintiff in error; herein styled defendant, and another railway company. The cause was tried by jury, resulting in a verdict against James A. Baker, receiver of the International & Great Northern Railway Company, and the San Antonio & Aransas Pass Railway Company in the sum of $175 each, upon which verdict judgment was accordingly rendered. This writ of error is prosecuted by the last-named company alone.

The grounds of negligence alleged were rough handling and delay. The evidence discloses the fact that the shipment consisted of cattle from, a district afflicted by a drouth, and that they were in a thin and weak condition. The cattle were delivered to defendant at San Antonio, Tex., after having Ijeen transported by other railway companies from the point of shipment. Several were down in the cars when delivered to defendant, and it made up a special train with two locomotives in order to expedite the trip to Kerrville, the point of destination. While there was a delay of 40 minutes at one point, of 20 minutes at another, and 10 at another, there is no testimony to show that the cattle were not transported in the usual and reasonable time, and there was no evidence of any rough handling whatever. On the other hand, there was positive testimony to the effect that there was no unusual jolting or roughness in handling. The only two witnesses for plaintiff, who testified as to the way the cattle were handled after they were placed in the hands of defendant, did not testify to any rough handling, and only judged that it was rough, because some of the cattle fell down, and this might have amounted to proof, had the cattle not been in a starved and weak condition. The owner of the cattle admitted that- there had been a prolonged drouth in the vicinity from which the cattle were shipped, and that some of his cattle had died from the effects of the drouth. John Dinn testified that the cattle were in good shipping condition, but that the drouth was unprecedented. J. W. Hinnant, a brother of the owner, accompanied the cattle, and said they were in the condition stated by his brother. He testified that a number of the cattle were down in the cars when they reached San Antonio. There the transfer was made to defendant. He swore that there were many jolts and bumps, but did not testify that they were unusual.

The evidence utterly fails to show that defendant was guilty of negligence as alleged in the petition, but tends to show that the damages incurred were on account of the starved and weak condition of the cattle. The drouth-stricken cattle were too weak to stand the vicissitudes of an ordinary railroad journey, and succumbed, not on account of delay or negligent handling, but on account of their condition. The evidence totally fails to sustain the allegations, and while the plaintiff, in seeming anticipation of some such opinion by the court, asks that the case be remanded, so that he may show delay, we do not think that it should be done. Plaintiff had all the witnesses that knew anything about the ease, and we believe that the cause should be finally disposed of by this court.

The judgment is reversed as to the defendant by whom this writ of error was perfected, and judgment here rendered that plaintiff recover nothing by his suit against the San Antonio & Aransas Pass Railway Company, and pay all costs by it expended.
      <S=3For otter cases see same topic dnd KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    BROWN et al. v. LEVINGSTON.
    (No. 421.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1918.)
    Appeal and Error <@=>627(2) — Time for Filing Transcript — Order Refusing Injunction.
    Appeal from order refusing mandatory injunction will be dismissed; transcript not being-filed in the Court of Civil Appeals within 15 days after entry of record of the order, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644.
    Appeal from District Court, Orange County ; W. T. Davis, Judge.
    Suit by Mary D. Brown and others against S. W. Devingston. From an adverse order, plaintiffs appeal.
    Appeal dismissed.
    Holland & Holland, of Orange, for appellants. J. B. Bisland, of Orange, for appellee.
   KING, J.

This is an appeal from an order of the district judge for the First judicial district, entered in chambers, on the 25th day of June, 1918, refusing a mandatory injunction.

The transcript was filed in this court on the 12th day of July, 1918, more than 15 days after the entry of record of such order. It follows, therefore, that this court is without jurisdiction, under article 4644, Vernon’s Sayles’ Civil Statutes, and the appeal is accordingly dismissed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKIN'S, J.

text:
    MYRICK et al. v. FUTCH et al.
    (No. 5971.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1918.
    On Motion for Rehearing, Dee. 11, 1918.)
    On Motion for Rehearing.
    1. Sequestration <@==>29 — Action on Replev-in Bond — Showing op Title to Property.
    Defendants, in suit for title and possession of property seeking judgment against plaintiff and sureties on replevin bond conditioned to have property forthcoming to abide decision of court and filed after he procured issuance and levy, of writ of sequestration, did not need to show they were owners of the property sequestered, where evidence showed it was taken from their possession and had not been returned.
    2. Sequestration <@=>16 — Dismissal op Suit by Plaintiff — Judgment on Replevin Bond.
    Where plaintiff dismisses suit for title and possession of property, he fails to establish his right thereto, and judgment necessarily must be in favor of defendants against him and the sureties on his replevin bond filed after issuance and levy of writ of sequestration.

      Appeal from District Court, McLennan County; Geo. N. Denton, Judge.
    Suit by Storey Myrick against J. J. Futcb and others. From judgment for defendants against them, plaintiff and the sureties on his replevin bond, filed after he procured issuance and levy of writ of sequestration, appeal.
    Affirmed.
    Tom M. Hamilton and S. J. T. Smith, both of Waco, for appellants.
    W. L. Eason, of Waco, for appellees.
   Findings of Fact.

JENKIN'S, J.

The appellant Myrick sued the appellees for the title and possession of 936 bushels of cotton seed. This suit was instituted on February 14, 1917. At the time the suit was instituted, the appellant Myrick procured the issuance and levy of a writ of sequestration. The appellees failed to replevy within the 10 days allowed them, and, immediately after the expiration of the 10 days, the appellant Myrick filed a replevin bond with the sheriff. This replevin bond is dated February 26, 1917. The officer’s return shows that the cotton seed were delivered to appellant Myrick when the replevin bond was approved. All of these proceedings were had at the January term of court. The terms of court convene on the first Mondays in January, April, July, and October in each year, and may continue in session until the business is disposed of. Hence the appellees were not called on to answer until the April term of court. After obtaining possession of the cotton seed and before appearance day, the appellant Myrick caused an order of dismissal to be entered, which order is dated March 15th. The appellees McAnally and Wells answered on March 29th. The appellee Futch answered on April 2d. Appearance day was April 3d. The case was regularly called on appearance day, and was set for trial on May 11th. On this date, the appel-lees appeared and announced ready for trial, and the attorney for the appellant Myrick appeared in, court, but declined to announce ready for trial, and stated to the court that plaintiffs’ case had been dismissed, and that he appeared only for the purpose of backing up the order of dismissal, and, in that connection, declined to ask the court for a reinstatement of the case. The trial court judicially .found that the appellant Myrick did not desire to further prosecute his suit. The case was regularly tided and resulted in a judgment for the appellees for the sum of $1,500.

Opinion.

We affirm the judgment of the trial court herein on authority of Blum v. Gaines, 57 Tex. 139, and Hill v. Patterson, 191 S. W. 621, and authorities there cited.

Affirmed.

On Motion for Rehearing. „

Appellants in their motion for a rehearing insist that we erred in affirming the judgment of the trial court, for the reason that appellees did not show that they were the owners of the property sequestered. This was not necessary. The evidence shows that it was taken from their possession and had not been returned. Appellants’ replevin bond was conditioned that they would have the property “forthcoming to abide the decision of the court.”

Where the plaintiff dismisses his suit, he fails to establish his right to the property sued for, and therefore, necessarily, the judgment must be against him. For a full discussion of this subject, see Morris v. Anderson, 152 S. W. 677. See, also, Coward v. Sutfin, 185 S. W. 378, and Wandelohr v. Bank, 106 S. W. 415.

Motion for rehearing is overruled.

Motion overruled.


author: HUFF, C. J.

text:
    PANHANDLE & S. F. RY. CO. et al. v. TALMAGE.
    (No. 1415.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1918.)
    1. Commerce <@=>33 — Carriage oe Freight-Intrastate Shipment.
    Where a hay dealer at F., Tex., his distributing point, received by rail a carload of hay from A., N. M., and at F,, Tex., rebilled the shipment to his customer at M., Tex., and prepaid the freight, the shipment under the re-billing was intrastate.
    2. Carriers <@=>94(4) — Freight — Penalty eor Detention — Action eor Conversion.
    In suit against a railroad for conversion of a carload of hay, the evidence and verdict establishing the conversion, plaintiff cannot recover the 5 per cent, per month detention penalty prescribed by Rev. St. 1911, art. 6554, on the value of the hay up to the time of the judgment; the action for conversion being an election to treat title of the date of conversion.
    3. Trover and Conversion <@=>46 — Measure oe Recovery — Value oe Goods.
    In an action for conversion, the measure of recovery is the value of the goods on the date of the conversion.
    4. Common Law <§=>14 — Adoption by State —Conversion.
    The state of Texas having adopted the common law, though not the common-law form of action in trover for conversion, the Court of Civil Appeals must resort to the common law for the principles governing the tort of conversion.
    5. Carriers @=>105(1) — Carriage oe Freight —Damage from Delay or Detention— Measure.
    In an action against a railroad for damages to property shipped from delay or detention, the actual injury to the property is the measure of damages.
    6. Trover and Conversion <@=>13 — Right oe Action.
    When a wrong complained of amounts to a conversion, the injured party has the right to so treat it, and to sue for the value of the property.

      7. Teovee and Conversion '<@=»9(3) — Implication of Wrongful Act — Nondelivery.
    Conversion implying a wrongful act, mere nondelivery of property lawfully in possession will not constitute conversion, as there must be a demand and refusal.
    Appeal from Deaf Smith. County Court; Jas. A. Hughes, Judge.
    Action by Frank Talmage, Jr., against the Panhandle & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed and rendered in part.
    W. C. Reid, of Albuquerque, N. M., and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellants.
    W. H. Russell, of Hereford, for appellee.
   HUFF, C. J.

This action was brought by Talmage against the appellant Panhandle & Santa Fé Railway Company and other roads, as connecting carriers, for the value of a carload of hay, and for the statutory penalty of 5 per cent, per month of the value for detention of the hay. The jury found that the value of the hay on the 29th of June, 1914, was $164.64, and answered the following special issue: “Did the defendant willfully refuse to deliver said hay after its arrival at destination?” in the affirmative. We take this statement of the facts from appel-lee’s brief:

“On June 22, 1914, Frank Talmage, Jr., the appellee, was the owner of a car of alfalfa hay at Farwell, Tex., which he consigned to J. P. Hillard, on June 29, 1914. Hillard made demand for delivery, and it was refused. The transportation charges were all prepaid, and the carriers did not demand any additional charges; neither did any of them assign any reason for the failure to deliver the hay.
“Mr. Talmage learned of the failure to deliver, and sent his salesman, Mr. Smith, to Mauriceville, to try to learn what the trouble was and to effect delivery. Mr. Smith went to Mauriceville and took the matter up with the local agent at that place, who was the joint agent for the defendants, except the Panhandle & Santa Fé. This agent informed Smith that there seemed to be some difficulty between the various roads as to a division of freight, and the car was being held in order to determine the matter. He (Smith) then went to Beaumont, and also to Houston, and could never get any satisfaction, or any definite reason why the car was not delivered. Smith also testified, and it was undisputed, that the car was in front of Hillard’s warehouse with the door looked.
“Numerous letters and telegrams were exchanged between the various railway companies and Mr. Talmage, hut no delivery, was ever made, and it seems that the hay remained at Mauriceville till some time in January, when it was moved, probably to Houston, and sold for charges; but in the meantime the owner of the hay and the consignee were both trying to effect delivery, Mr. Hillard wanting the hay badly.
“Mr. Talmage expended a great deal of time and money in his endeavors to effect delivery, and lost a customer. The car could not be unloaded at any other place on account of the physical conditions.
“Plaintiff, Talmage, sued for the value of the hay, and alleged and proved that the carriers willfully and maliciously refused to make delivery, and asked for the statutory 5 per cent, per month penalty.”

The facts further show that this particular carload of hay was shipped by Talmage from Artesia, N. M., to Farwell, Tex., upon, a bill of lading to that point, and that after its arrival at Farwell he rehilled the shipment to J. P. Hillard, Mauricevile, Tex., and prepaid the freight. The facts further show that he was a dealer, and that his distributing point was Farwell, Tex., and after shipping his hay to that point he either unloaded and placed it in the warehouse, or reshipped it to his customers at other points, and that at the time he shipped this hay from Artesia it was not intended to go beyond Farwell, and to the consignee in a later shipment; but, as we gather from the evidence, he received the order from the consignee, and upon the arrival of the car entered into a new contract with the railroad, consigning it to the consignee, prepaying the freight therefor.

The court rendered a judgment for the value of the hay, as found by the'jury, and for the sum of $359.47, as penalty for detention of the, hay under the statute. The penalty recovered in this case is under article 6554, R. C. S., which reads as follows:

“In ease of the refusal by such corporation, or their agents, to take and transport any passenger or property, or to deliver the same; or either of them, at the regular appointed time, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit; and in the case of transportation of property shall in addition pay to such party special damages at the rate of five per cent, per month upon the value of same at the time of shipment, for the negligent detention thereof beyond the time reasonably necessary for its transportation: Provided, in all suits against such corporation under this law the burden of proof shall be on such corporation to show that the delay was not negligent.”

The first group of assignments and propositions assail the judgment of the court for the penalty, on the ground that the shipping contract was for an interstate transportation, and therefore the statute authorizing the recovery of a penalty had no application. Without discussing the question, we are inclined to believe this shipment intrastate, and for that reason overrule the various assignments. This case, as to the character of the shipment, we think governed and controlled by the rule announced in the following cases: Railway Co. v. Pace, 184 S. W. 1051; Railway Co. v. Taylor, 103 Tex. 367, 126 S. W. 1117, 1200; Railway Co. v. Texas, etc., 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540.

The next series of assignments present the proposition that the suit was for damages for the conversion of the hay, and that the evidence and the verdict of the jury established such conversion, and for that reason .the appellee could not recover the 5 per cent, per month on the value of the hay for its detention up to the time of the judgment. If this suit is for damages for con-' version, and the hay is shown to have been converted, and the jury so found, the assignments and propositions are well taken. The Court of Civil Appeals for the Second District, as we understand that court, so holds. M., K. & T. Ry. Co. v. Rines, 37 Tex. Civ. App. 618, 84 S. W. 1092. We believe the ruling in that case correct. It will not be denied, we take it, that the statute herein quoted gives the right to sue for damages and 5 per cent, special damages for the negligent detention of goods to the owner or shipper thereof. If the party is not the owner, or if the right to sue for the goods or damages to them has been parted with, then the penalty for their detention cannot be recovered by the shipper.

The shipper, where there has been a wrongful taking of the goods, does not necessarily lose the title to the goods, and he may sue for the goods; but, if he elects to sue for conversion, his recovery will be the value upon the date of the conversion. In this case that date is fixed as of June 29, 1914, by the pleadings and evidence, and the judgment is so rendered. Ripy v. Less, 55 Tex. Civ. App. 492, 118 S. W. 1084. Our Supreme Court, in discussing the distinction between the action of detinue and trover, says in many cases it is at the option of the plaintiff which he will pursue.

“ ‘The former asserts a continuing property in the plaintiff, and alleges the wrong to consist wholly in withholding _ the _ possession of his goods, from him, by their bailee; while the latter affirms that, although they were once the proper goods of the plaintiff, they have been made the goods of the defendant, and complains of the injury caused by this conversion.’ The distinction amounts to this: That by alleging detention the plaintiff makes himself owner, and by alleging conversion the defendant is made the owner; and the loss falling upon the owner, it must, in one suit be borne by the plaintiff, and in the other by the defendant. In detinue it is said that a jury is to find the present value ; that ‘great alterations may. happen m. the value of things demanded, pending the action; and the object of the action, so far as regards the things themselves, is to regain them, such as they are, or, if that may not be done, then their value.’ ” Porter v. Miller, 7 Tex. 468, 475.

We dte this case as illustrating the relation of the parties to the property in an action of trover for conversion.

Inasmuch as we have adopted the common law, though not the common-law form of action, we must resort tq¿ the common law for the principles governing conversion. O’Shea v. Twohig, 9 Tex. 336; Elder, etc., v. Railway Co., 105 Tex. 628, 154 S. W. 975. The statute authorizes the recovery of the penalty or special damages for “negligent detention.” Its phrasing excludes the idea that a recovery may be had when the action is for conversion. “A mere detention of another’s chattels, which rightfully come onto one’s possession, is not an actionable conversion.” 38 Cyc. 20-28.

If this was an action for damages for the property on account of delay or detention, the actual injury to the property would be the measure of damages. This suit is for “willfully failing and refusing to deliver the goods,” alleging, also, thát they should have been delivered on June 29, 1914, and seeks a recovery for their value as of that date; that appellants failed and refused to deliver, and still so fail, “and have on demand of plaintiff willfully and still willfully fail and refuse. to deliver said goods,” and, though often requested, fail and refuse to deliver the goods, or to pay the value thereof, or any part thereof — praying for a judgment for the damages, and for the statutory penalty. The evidence was confined to the value at destination on the date alleged, and it was shown that the delivery was demanded and refused; that the hay was then in good condition, and arrived at its destination within a reasonable time; that the car was at the warehouse of the consignee, but was locked, and the agent of the railroads refused to deliver the goods, though requested so to do. The action, we think, is for the value of the goods upon their conversion on the 29th day of June, 1914, and the facts show such conversion.

When a wrong complained of amounts to a conversion, the injured party has the right to so treat it, and sue for the value of the property. Crawford v. Thompson, 53 Tex. Civ. App. 561, 117 S. W. 181. This, we think, appellee clearly did in this case. The allegations and proof bring this case within the definition of conversion. France v. Gibson, 101 S. W. 536; McCarthy v. North Texas Loan Co., 101 S. W. 835; Railway Co. v. Patterson, 192 S. W. 585.

It has been held in this state mere delay in the transportation of goods is not conversion. Railway Co. v. Tyler-Coffin, etc., 81 S. W. 826. But, under such circumstances, there must be a demand and a refusal to deliver, in order to constitute a conversion. Conversion implies a wrongful act. A mere nondelivery will not constitute a conversion. Davies v. Railway Co., 62 Tex. Civ. App. 599, 133 S. W. 295; Elder, etc., v. Railway Co., 105 Tex. 628, 154 S. W. 986, 987. In this case a wrongful act was shown, and that demand for the goods was made and refused, both by the allegations in plaintiff’s petition and the evidence, and the jury so finds. Appellants, by their answer, also admit the conversion. Under this record the court was in error in rendering judgment for the special damages, $359.47.

The judgment will be affirmed as to $164.64, the value of the hay at the time of the conversion, with interest from that date to the rendition of the judgment; but for the special damages the judgment will be reversed, and here rendered, that the appellee take nothing by reason of his suit therefor, and that the costs of this appeal be taxed against the appellee.

Affirmed in part, and reversed and rendered in part.
      @=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: PHILLIPS, C. J.

text:
    VAUGHAN et al. v. SOUTHWESTERN SURETY INS. CO.
    (No. 3065.)
    (Supreme Court of Texas.
    Dec. 11, 1918.)
    1. Master and Servant <S=»388 — Workmen's Compensation Act — Beneficiaries — How Determined.
    Under Workmen’s Compensation Act 1913, § 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246kk), declaring that compensation shall be paid to legal beneficiaries to be distributed according to the law of descent, the beneficiaries as well as the apportionment must be determined by that law, and not by article 4698, Vernon’s Sayles’ Ann. Civ. St. 1914, governing recovery of damages for wrongful death.
    2. Constitutional Law <§=^70(3) — Judicial Function — Wisdom of Law.
    The wisdom of an act is not a judicial question.
    Error to Court of Civil Appeals of Ninth. Supreme Judicial District.
    Proceeding for workmen’s compensation by F. G. Vaughan and others against the Southwestern Surety Insurance Company, as insurer. From a judgment of the Court of Civil Appeals (195 S. W. 261) in favor of the insurance company, the plaintiffs bring error.
    Reversed and rendered.
    C. W. Howth, F. G. Vaughn, and W. A. Williams, all of Beaumont, for plaintiffs in error.
    McDonald Meachum, W. W. Meachum, Jr., AVoods, King & John, and Cole & Cole, all of Houston, and McDonald & Wayman, of Galveston, amici curise.
    Andrews, Streetman, Bums & Logue, of Houston, for defendant'1 in error.
   PHILLIPS, C. J.

In fixing the compensation to be paid for injury to an employee of a subscribing employer, sustained in the course of his employment and resulting in death, the Workmen’s Compensation Act of 1913 (Acts 83d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) omitted any express designation of the beneficiaries entitled to receive the compensation. It merely declared (section 8; art. 5246kk) that it should be paid to “the legal beneficiary” of the deceased employee, with a proviso in the'following language:

“Provided, that the compensation herein provided for shall be distributed according to the law providing for the ’distribution of other property of deceased.”

The question here is, how shall the beneficiaries in such cases be determined,- — by the law of descent and distribution, or the law governing the recovery of damages for negligent or wrongful injury resulting in death — the death injury statute, Article 4698?

The act was amended in this particular in 1917, Acts 35th Leg. c. 103, § 8a (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 15), by expressly naming the beneficiaries. This case arises under the original act.

The solution of the question is found in the proviso. It says that the compensation shall be distributed “according to the law providing for the distribution of other property of the deceased.” Interpretation can add nothing to the clearness of this language. It means the law governing the distribution of the decedent’s property, not a law authorizing the recovery of damages by certain kindred as their property. The only law ,we have regulating the distribution of the property of an intestate decedent is that comprised by our statutes of descent and distribution. That is plainly the law referred to. It-is, in effect, made a part of the act.

It is urged, however, that at all events the proviso only means that the compensation shall be apportioned according to that law, and that the beneficiaries among whom it is to be thus allotted are to be ascertained from the death injury statute. The act in no wise relates the subject to that statute by any express provision. If it determines the beneficiaries under the act, it is wholly by implication.

Upon what theory the death injury statute, to the exclusion of another relevant law, is for this purpose by mere implication to be read into the act, we have some difficulty in perceiving. If it be on account of any supposed analogy — and no other ground can well be advanced — it is to be observed that the act, in respect to injuries sustained by those to whom it applies, was intended to entirely supplant that statute as to all actual damages thereunder recoverable. Its purpose was to work in such cases a distinct change in the law. Its provision for the compensation allowed is founded upon a different theory. The compensation itself is determined by another method. Under the death injury statute, actual damages were not recoverable unless pecuniary loss to the plaintiffs was shown. Under the act, the compensation allowed the beneficiaries entitled is absolute, regardless of whether they have sustained any such loss.

With the entire scheme of the death injury statute in its application to all such cases thus entirely abandoned, in the absence of any express provision the reasonable presumption is that the Legislature did not intend it to govern the operation of the act in any particular. Certainly it should not, by mere implication, control its operation in this particular, as against a law to which the subject is by the act expressly related.

If the contrary be held and the beneficiaries be thus determined, no rule would be afforded for the apportionment of the compensation. The death injury statute is silent on the subject. All damages recoverable under it must be allotted by a court or jury. The law of descent and distribution, in such event, would have to be consulted for the apportionment, since the act, except in its reference to that law, makes no provision in that regard. Under such construction, the operation of the act would, in this one particular, be related to two other distinct laws, one for determining the persons- entitled to the compensation, and another the proportion of their respective shares. Under the terms of the act such a purpose is not to be imputed to the Legislature in its adoption.

Apart from these considerations, this construction denies to the language of the proviso its natural effect. Its plain requirement is that the compensation shall be distributed according to the law of descent and distribution. The clause contains no qualifying expression, and no limitation upon the full operation of such law is imposed. It therefore means that the distribution shall be in all respects in accordance with that law. A distribution could not be made “according to” that law unless the law were given full effect — not merely a part of it, but all of it. Giving it such effect, it necessarily determines not only the apportionment, but the persons entitled to the property.

In the face of the plain provision of the act we are not at liberty to speculate upon the intention of the Legislature in its enactment. Nor is it necessary that we attempt to reconcile any inconsistencies that its operation may entail. The wisdom of the act is not a judicial question. The argument that it may allow certain kindred of the deceased employee to share in the compensation who were denied any right of action under another statute, cannot prevail over its express terms. It may in this respect operate unfairly, but that was for the determination of the Legislature. As is said by a competent authority, the remedy for a harsh law is not judicial interpretation, but its amendment or repeal.

The judgments of the District Court and Court of Civil Appeals are reversed, and since the case is here upon an agreed statement, judgment will be rendered for the plaintiffs in error for the amount stipulated in the statement with legal interest.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J. HAWKINS, J.

text:
    ATCHISON, T. & S. F. RY. CO. v. STEVENS.
    (No. 3080.)
    (Supreme Court of Texas.
    Nov. 20, 1918.)
    1. Appearance <@=>9(2) — Filing of Defensive, Pleadings.
    Special appearance is unknown to Texas practice, and filing by a defendant of any defensive pleading, as a plea of privilege, and later an answer, though only to challenge jurisdiction, constitutes appearance and submission to jurisdiction of forum.
    2. Railroads <S=>33(2) — Action — Venue — Foreign Company.
    A foreign railway company is not suable in a county in which it has no agency or representative for injuries sustained by a nonresident occurring in another state.
    3. Railroads <@=>33 (2)— Action — Foreign Company — Yenue—Representatives.
    Agents of a subsidiary domestic railroad company having a principal office in a certain county were not representatives of the foreign railroad, owning majority of stock in subsidiary road, to render foreign company suable impersonal injuries in that county.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Suit by Ben Stevens against the Atchison, Topeka & Santa F'é Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed the judgment and remanded the cause (192 S. W. 304), and defendant brings error.
    Judgment of reversal affirmed, and cause remanded, with direction to transfer.
    Terry, Cavin & Mills, of Galveston, Tur-ney, Culiwell, Halliday & Pollard, of El Paso, and Jno. G. Gregg, of Galveston, for plaintiff in error.
    Geo. E. Wallace, P. E. Gardner, and W. S. Berkshire, all of El Paso, for defendant in error.
   PHILLIPS, C. J.

The suit was one by Stevens, a non-resident, for damages for personal injuries occurring in another State against the Atchison, Topeka & Santa F'é Railway Company, a foreign corporation. It was filed in the District Court of El Paso County and was tried there, with a judgment for the plaintiff as the result.

For service upon the defendant the plaintiff relied upon the due delivery of citation to W. R. Brown, R. F. Goering, Charles Wat-lington and F. O. Fox, described as its agents. Each as an amicus curiae by affidavit denied that he was such an agent. The court on hearing, held the contrary and ordered the defendant to appear and answer. Thereupon the defendant filed a plea of privilege and to the venue, denying that it was doing business in El Paso County or that it had any agent residing there, but admitting for the purposes of the plea that it was doing business in the counties of Potter, Hemp-hill, Galveston, Johnson and Cooke, and contending that it was suable in one of those counties if at all. The plea was overruled, apd later the defendant answered on the merits.

An extended argument has been presented by the Railway Company upon the question of the trial court’s jurisdiction under the service shown. In the state of the record, that is an immaterial question. A special appearance is unknown to our practice. The filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the forum. York v. State, 73 Tex. 651, 11 S. W. 869. The filing by the Railway Company of its plea of privilege and later its answer was an appearance, and eliminates from the ease any question of jurisdiction.

The real question in the case is one of venue. For the Railway Company to have been properly suable in El Paso County it was necessary that it have an agency or representative in that county. Under its plea it was shown not to have had an agency or representative there unless the Rio Grande, El Paso & Santa Fé Railroad Company, a Texas corporation having its principal office in El Paso, and being a part of what is known as the Santa Fé System, with the principal part of its capital stock owned by the Atchison Company, the defendant, is to be regarded as its representative, and certain persons who were agents of that company in El Pas.o are to be treated as its agents. Under a similar state of facts it was held by this court in Buie v. Railway Co., 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, that the parent foreign corporation should be held as doing business in Texas and as legally being in Texas through the instrumentality of the auxiliary corporation, and the agents of the latter its agents. But this ruling was expressly overturned by the United States Supreme Court, the final authority upon the question, in Peterson v. Railway Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841, as was recognized and stated by us in the later case of Railway Co. v. Cox, 106 Tex. 74, 157 S. W. 745.

The honorable Court of Civil Appeals was of the view that without express statement by this court the Buie Case should not be regarded as overruled as applied tó purely a question of venue of a suit against a foreign corporation, since the immediate question in that case was not one of venue, — a matter of State decision, but one of jurisdiction,— a Federal question. The United States Supreme Court in the Peterson Case held, however, under a state of facts practically identical with those in the Buie Case and in the present case, that the auxiliary corporation is not to be treated as the representative of the parent foreign corporation, nor are the agents of the former to be regarded as the agents of the latter. This was exactly the converse of the holding upon which the decision in the Buie Case was rested. If the holding in the Buie Case was incorrect as applied to jurisdiction over a foreign corporation, it was equally so as applied to the venue of a suit against such a corporation. As between the two questions we think it immaterial to which it related. The holding itself was overturned by the decision in the Peterson Case. That decision concludes the question here.

The Court of Civil Appeals reversed the judgment of the District Court and remanded the cause, but upon another ground. Its judgment of reversal will accordingly be affirmed and the cause remanded to the District Court with the direction to transfer it to the District Court of one of the counties named in’the defendant’s plea of privilege, as the plaintiff may elect.

HAWKINS, J.

(concurring). I concur, heartily, in the foregoing opinion, excepting only the final clause thereof, “as the plaintiff may elect.” That quoted language probably is harmless as applied to the case at bar, inasmuch as defendants, in their plea of privilege, ask to have the cause transferred to any one of five enumerated counties, as plaintiffi may elect; but, in so far as it may be understood or applied in practice as enunciating a general rule, it constitutes, it seems tome, an unwarranted invasion by this court of the province and function of the trial court as defined in R. S. art. 1832, which declares:

“If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein.”

The effect of that statute as applied to-cases of this character, wherein a railroad company legally is suable in more than one-forum, is, I think, to confer upon the trial court, rather than upon any party to the litigation, the right to determine to what court the cause shall be transferred; and, if that be correct, the matter is one which this court has no power or authority to control.

It is true that thus giving to the plaintiff the option of choosing the forum to which the cause is to be transferred has the practical effect of preserving his original right of selecting the tribunal in which his cause is to be tried, and that argument, if addressed to the Legislature, certainly would have force; but our above-mentioned transfer statute seems to me to treat the matter differently, and, to assume that, having filed his cause in an improper tribunal, the. plaintiff waived his statutory privilege of choosing the forum, and thenceforth the analogies carried by our other change of venue statutes, R. S. arts. 1911, 1912, 1913, 1914, and Code Cr. Proc. arts. 626, 627, 628, 629, 632, wherein, except as otherwise stipulated, the discretion and option of selecting the new forum to which the cause is to be transferred devolves upon the trial court, are more applicable.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes