author: McKENZIE, J.

text:
    LASTINGER et al. v. TOYAH VALLEY IRR. CO. et al.
    (No. 330.)
    (Court of Civil Appeals of Texas. El Paso.
    May 28, 1914.)
    1. Pleading (§ 214) — Demurrer—Effect.
    A general demurrer admits the truth of the allegations of a petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    2. Constitutional Law (§ 81) — Police Powbe — Governmental Regulations.
    Property which receives a right or privilege from the government and is used in dealing with the public is a legitimate subject for reasonable governmental regulations.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 148; Dee. Dig. § 81.]
    3. Waters and Water Courses (§ 261) — Irrigation Ditches — Control.
    Both at common law and under Rev. St. 1911, art. 5002, providing for the formation of corporations to construct irrigation ditches, that such corporations may make contracts for the sale of permanent water rights, that all persons owning or holding a possessory right or title to land adjoining any canal or ditch, who shall have secured a right to the use of water, shall be furnished with water in accordance with the terms of his contract, that surplus water not contracted to others shall be furnished to such persons at reasonable and just prices, and that, in case of drought, the water shall be divided among all consumers pro rata, it is the duty of an irrigation company, regardless of contract, to furnish to those in possession of land, water necessary for the irrigation of crops, and the company is liable for damages caused by its failure.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dee. Dig. § 261.]
    4. Waters and Water Courses (§ 261) — Irrigation Companies — Contracts.
    Where an irrigation company contracts with a landowner to furnish water, the contract is presumed to have been made in contemplation of Rev. St. 1911, art. 5002, providing that water shall be furnished to the owner or possessor of land which can be supplied, and hence the tenant in possession may recover damages suffered by the company’s failure to furnish water according to contract.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.]
    Appeal from Reeves County Court; H. N. McKellar, Judge.
    Action by E. G. Lastinger and another against the Toyah Valley Irrigation Company and others. From a judgment dismissing the petition, plaintiffs appeal.
    Reversed and remanded.
    Hefner & Coolie, of Pecos, for appellants. Ross & Ilubbard, of Pecos, for appellees.

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

   McKENZIE, J.

Appellants, E. G. Last-inger and G. W. Gathings, Jr., sued appellee Toyah Valley Irrigation Company and J. G. Love, receiver of said irrigation company, in the county court of Reeves county, for damages to their crops for failure to furnish water for irrigation. Upon trial a general demurrer was sustained to plaintiff’s petition. Plaintiffs refused to amend, and the cause was thereupon dismissed by the trial court. From the judgment of dismissal* plaintiffs have appealed.

Plaintiff’s petition is substantially as follows:

“(2) That, at the times hereinafter mentioned, one D. A. Gathings was the owner of certain lands situated in the arid portion of the state of Texas; by reason of insufficient rainfall, irrigation is beneficial and necessary for agricultural pursuits.
“(3) That Toyah creek is a natural water course in Reeves county, Tex., in that it is a running and flowing natural stream of water, having- a well-defined channel with banks and bed, and furnishes a sufficient quantity of water to supply the lands riparian to it and its natural channel with a reasonable quantity of water for irrigation and for domestic purposes; that said Toyah creek runs through said lauds, * * * and said lands are riparian to said stream and entitled to share proportionately in all the waters flowing therein for domestic and agricultural purposes,
“(4) That said defendant Toyah Valley Irrigation Company is organized under the laws of the state of Texas as an irrigation company for the purpose of constructing, maintaining, and operating canals, ditches, flumes, feeders, laterals, reservoirs, dams, lakes, and wells, and of conducting and transferring water to all persons entitled to the same for irrigation, and is a common carrier for hire of the waters of Toyah creek to all of the riparian lands entitled to water from said stream for irrigation, and has constructed over, across, and upon said lands above-described canals, ditches, and laterals for the purpose of conveying waters of said stream to the various lands entitled thereto, including the lands hereinabove described.
“(5) That heretofore, to wit, on or about June 1, 1908, the said D. A. Gathings, the owner of said land above described, made and entered into a certain water contract with the defendant Toyah Valley Irrigation Company, a substantial copy of which is hereto attached, marked Exhibit A, and made' a part hereof by this reference, whereby, in .consideration of an annual rental at the rate of $1.50 per acre per annum for each 65,340 cubic feet of water per acre annually, defendant company bound itself to carry and deliver to said lands above described annually the pro rata share of the water of Toyah creek to which said lands were entitled, estimated and represented in said contract to he 65,340 cubic feet of water for each and every acre of land therein described. Said contract further provides that said Toyah Valley Irrigation Company shall properly maintain find enlarge its ditches from time to time as shall be necessary to furnish the flow of a sufficient amount of water to irrigate all the lands that it undertakes to deliver water to, the deliveries to be made in regular turn, and that said irrigation company may contract to deliver water to other persons,' but in that event the water shall be delivered to each person in regular turn, and that such water contracted to be delivered belongs to said land by reason of its riparian character, and said contract constituted and formed a valuable appurtenance or easement running with said land, to the benefits and provisions of which plaintiffs became entitled under and by- virtue of their lease contract hereinafter set forth.
“ (6) That relying upon said contract and the duty and obligation of the defendant company, as a common carrier of water for hire, to deliver to said lands the full pro rata share of the waters of Toyah creek to which said lands were entitled, as provided in said water contract, plaintiffs in the spring of 1911 entered into a verbal lease contract with the said D. A. Gath-ings, whereby plaintiffs agreed to lease and did lease from the said D. A. Gathings said lands above described for the said year 1911, together with all the rights of the said D. A. Gathings under and by virtue of said water contract above described, and immediately entered into possession of said lands and said rights, and by reason thereof the defendant company became bound to furnish to plaintiffs said water in accordance with its said agreement and contract.
» That, under the terms of said lease contract, plaintiff agreed to properly plant, cultivate, water, harvest, and market the crops grown upon said lands and to account to the said D. A. Gathihgs for one-half of the alfalfa and millet and one-third of the maize to be produced upon said land during said year 1911; said plaintiffs to receive one-hálf of said alfalfa and millet and two-thirds of the maize produced thereon.
“(7) Plaintiffs further allege that they and the said D. A. Gathings have at all times complied with the said water contract, have erected and maintained laterals for the reception and distribution of water thereon, and have at all times paid and tendered payment for said waters to the defendant company in accordance with the provisions of said contract; and, relying upon the provisions of said water contract and the legal duties and obligations of the defendant company, plaintiffs in the said year 1911 prepared said lands for cultivation and cultivated same, as hereinafter fully appears.
“(8) That plaintiffs in the spring of 1911, in farmerlike manner, prepared said lands and planted thereon the following crops: [We omit description of crops planted.] That said crops would have produced had defendant company complied with its said contract and its legal duties and obligations, and delivered water according to the terms thereof, the following yields: [Statement omitted.] That by reason of the failure and refusal of the defendant company to comply with its said contract and duty, as hereinafter’ alleged, said crops only produced as follows: [Statement omitted.] That by reason of the default and failure of the defendant company in the performance of its obligations, as hereinafter specifically alleged, the yields of said crops were depreciated in the following amounts: [Statement omitted.] That the market value of said crops at the time and place same would have been harvested and in the community same would have been raised was as follows: [Statement omitted.] That the additional expense that would have been incurred by plaintiffs in cultivating, irrigating,, harvesting, and marketing said crops, had - the defendant furnished water for their raising, as it was in duty bound to do, would have been as follows: [Statement omitted] — leaving a net loss and damage to plaintiffs, by reason of the acts of the defendant company, of $592.89.
“(9) Plaintiffs show that defendant company did not carry out and perform its said contract or its duties and obligations thereunder and under its common-law and statutory duty as a common carrier of water for hire, but failed and refused to deliver to plaintiffs in their turn, or to the land hereinabove described in its turn, the water to which they and their said lands were legally entitled during the year 1911, and only delivered a portion thereof, and wrongfully discriminated against plaintiffs and wrongfully appropriated and converted their water, as hereinafter more specifically alleged, and by reason thereof caused the damage and injury to plaintiff, hereinabove set forth.
“(10) That on or about July 30, 1911, the defendant, by its agent and manager, informed plaintiffs that the defendant company would not furnish them their pro rata part of the waters of Toyah creek in their turn, and would not furnish water for their alfalfa crop but would permit them to' water their maize only, and would thereafter furnish them water in case there should be a surplus after supplying the other users of water, and so informed the lessor of plaintiffs D. A. Gathings. That plaintiffs continued to cultivate said crops and to protest and complain of said threatened action of the defendant company, and informed said defendant that such discriminatory action on its part would ruin their crops in ease there should not be water delivered to them in their turn for irrigation. Plaintiffs allege that the defendant company delivered water to them in their turn on or about July 31, 1911, but only permitted them to water one crop of maize on the said 19 acres above set forth, and refused to permit them to water the young crop of maize on the 14 acres above set forth, and refused to permit them to -water the said crop of alfalfa; that it was their turn at said time to water all of said crops, but defendant, though it permitted other landowners similarly situated to water their entire crops in their turn, wrongfully discriminated against plaintiffs and refused to permit them, to water all of their crops; that it again became plaintiffs’ term to water all of their crops within three or four weeks thereafter, to wit, on or about August 20, 1911, and their said crops aforesaid required an irrigation for their preservation and cultivation on or about said time and at their regular turn, but defendant failed and refused to deliver any water to plaintiffs thereafter until on or about September 14,1911; that said time was during the heat of summer and at a time when said 'crops required the water for their preservation; that between said August 20, 1911, and September 14, 1911, on account of the neglect, failure, and refusal of defendant company to furnish water for irrigation, plaintiffs’ said maize crops became almost entirely destroyed and the cutting of alfalfa damaged, as he^pinabove specifically set forth; that thereupon plaintiffs, seeing that further labor upon said crops would be practically fruitless, as no crops could he raised thereon in view of the action of- said irrigation company, after harvesting such millet, maize, and alfalfa as was produced thereon, left said land and surrendered same to their lessor, D. G. Gathings. Plaintiffs further show that their pro rata share of the water of said Toyah creek for the year 1911 amounted to approximately 24 acre inches for each acre of said land, or 87,120 cubic feet per acre, but defendant wrongfully withheld, appropriated, and converted and refused to deliver to plaintiffs their pro rata share of said- water, but only delivered to plaintiffs approximately one-half thereof, to wit, 12 acre inches, of 43,-560 cubic feet per acre, although it delivered to other water users under its ditches, of equal' right and similarly situated with plaintiff, the full pro rata amount, or 24 acre inches, and vyrongfully discriminated against plaintiffs, both in the quantity of water delivered to them and in times at which said was delivered.
“(11) That all of said crops hereinabove described would have been harvested and marketed on or before December 1, 1911; that, by reason of the premises, plaintiffs have been damaged by the acts of the defendant company in the sum of $592.89, with interest thereon from December 1, 1911, at the rate of 6 per cent, per annum. * * * ”

The “Water Contract, Exhibit A,” referred to in the petition, is as follows:

“The State of Texas, County of Reeves.
“This indenture and agreement made and entered into this 1st day of June, 1909, by and between the Toyah Valley Irrigation Company, hereinafter called the first party, and D. A. Gathings, the second party, witnesseth:
“That in consideration of the faithful performance by the second party of his obligations hereinafter stated, the Toyah Valley Irrigation Company obligates and binds itself from this date to April 1st, 1957, to annually carry and convey through its main ditches in Reeves county, Texas, and to deliver to second party at various points to be designated by the Toyah Valley Irrigation Company and aecessable to the lands herein described, into lateral ditches constructed and maintained by second party, 65,430 cubic feet of water per acre for the irrigation of each acre of land hereinafter described ; the said water belongs to the land hereinafter mentioned and flows from the head spring- on Toyah creek, Saragosa springs and other sources and is to be delivered through the ditches controlled by the Toyah Valley Irrigation Company and into the lateral ditches of the second party; after said water leaves the ditches controlled by said irrigation company, it shall be carried, conveyed and -distributed ' by second party to the lands of second party by means of the lateral ditches constructed and maintained by the second party.
“The second party agrees to pay the Toyah Valley Irrigation Company for the annual delivery to him (the said second party) at said aecessable points to the lands of the second party of 65,340 cubic feet of water per acre for the irrigation of each of said acres of land of the second party, the sum of $1.50 for each acre annually, payable in advance as hereinafter stated, said annual charges of $1.50 per acre to be divided into two equal payments of $0.75 each,- both said payments to be made at the ofEce of said irrigation company at Balmor-hea, Texas, one payment of $0.75 to be paid in advance on the 1st day of June of each year for the period of time from June 1st to December 1st, and the other payment, of $0.75 to be paid in advance on the 1st day of December of each year, for the period of time from December 1st, to June 1st, said payment to be made during the full period of time from this date to April 1st, 1957, and the said mmual charge of $1.50 per acre is secured by statutory lien on the crops on said lands.
“The annual charge for the delivery of the water aforesaid shall be paid -by second party in advance as stated to the Toyah Valley Irrigation Company whether said water is or is not used, if said irrigation company offers to deliver said water, and this contract constitutes a continuous offer by said irrigation company to deliver said water until written notice to the contrary is given by said irrigation company to second party. Said water is not owned or claimed by said irrigation company, and if for any reason or from any cause there is a shortage of water said irrigation company shall have the right to pro rata said water flowing from the head springs of Toyah creek, Saragosa springs and other sources, among the parties entitled to said water in proportion in which they are entitled; and if there is a shortage of water the second party shall receive a pro rata rebate thereof to be applied as a credit in his favor on said annual toll, such rebate to be calculated on said basis of $1.50 for each said 65,340 cubic feet of water per acre per annum.
“The second party agrees to construct and maintain the necessary waste- ditches to convey back to the canal of said irrigation company, if feasible from an engineering standpoint, all the waste water that flows on the land of the second party. The second party shall be responsible for his waste water flowing, upon or in any manner injuring the property of any other person.
“The second party agrees to grant the necessary rights of way for all canals and ditches over his lands to said irrigation company, including right of way for such waste ditches as may be constructed by said irrigation company and the necessary roadways that may be necessary for the proper handling and distributing of water by said irrigation company.
“The second party obligates himself to conform to all rules and regulations established by said irrigation company and accept his water at the times designated by said irrigation company and to confine the use of said water to the irrigation of the land mentioned, in this contract, for the stock kept thereon arid for domestic purposes, and to promptly notify said irrigation company when he has received enough water at any time for the proper irrigation of lands entitled to said water. And second party obligates himself to avoid waste, and agrees that if he or any of his employés permit the same to be wasted or used for any purpose not named in this contract, said irrigation company may shut' off its supply and not permit the same to be used again until the regular turn of second party. Said irrigation company may contract to deliver water to other persons but, in such event water shall be delivered to each person in regular turn.
“The Toyah Valley Irrigation Company stipulates and agrees to properly maintain and enlarge its ditches from time to time as may. be necessary to furnish the flow of a sufficient amount of water to irrigate all of the land that it undertakes to deliver water to, the deliveries of water to be made in regular turns and under the rules and regulations made by said irrigation company. The manner of withdrawing and regulating the supply of water from the canals of said irrigation company shall be prescribed by said irrigation company and shall forever be under its control and management.
“It is expressly understood that the Toyah Valley Irrigation Company is a common carrier of water and that it has only undertaken to convey through the ditches controlled -by it to the land mentioned in this contract the water that such land is entitled to, which the second party has asserted to be 65,340 cubic feet of water per annum for each of the acres of land mentioned in this contract, and which said water the landowner claims to belong to said land, but in the event there is a shortage of water as hereinabove mentioned, then said irrigation company shall be required to convey through the ditches controlled by it to the land mentioned in this contract the proportionate part of t-he water to which said land is entitled.
“The land referred to in this contract to which the said irrigation company is to deliver water is described in Exhibit A, hereto attached and made a part hereof, the said exhibit being identified by the name of the parties to this contract being written thereon. * * * ”

The contract' appears to have been duly executed.

By the first assignment of error and the proposition thereunder, appellants submit that the petition states a good cause of action, and the trial' court erred in sustaining the general demurrer. Admitting the aver-ments of the petition to be true, as is required in determining its sufficiency upon the general demurrer, the allegations are sufficient to charge appellee irrigation company with being a public service irrigation corporation, created under and by virtue of the laws of the state of Texas. Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S. W. 575; Borden v. Irr. Co. (Civ. App.) 82 S. W. 461; Id., 98 Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640; Colorado Canal Co. v. McFarland & Southwell (Civ. App.) 94 S. W. 400; Id., 50 Tex. Civ. App. 92, 109 S. W. 435. As such, it is bound by law to perform reasonable duties and submit to reasonable restrictions. Weill on Waters (3d Ed.) § 1262.

Generally speaking, it may be said that property which receives a right or privilege from the government, and of which use is made in dealing with the public, becomes a legitimate subject for a reasonable governmental regulation. In Weill on Water Rights (3d Ed.) § 1247, it is said:

“The common law of public service agencies is, since Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, familiar, being, in general terms, that property devoted to the public service or use is affected with the publifc duty of performing reasonable service to all; that, to secure this end, rates and terms of service must be reasonable, and service is compulsory upon tender of a reasonable rate; that no unreasonable conditions may be required of consumers; that there must be no discrimination; that the courts will enforce these things, and it needs no statute to give them the power.”

Section 11 of the act of 1895 (Laws 1895, c. 23; article 5002, Revised Civil Statutes of Texas 1911) provides:

“Corporations may be formed and chartered under the provisions of this act and of the general corporation laws of the state of Texas, for the purpose of constructing, maintaining and operating canals, ditches, flumes, feeders, laterals, reservoirs, dams, lakes and wells, and of conducting and transferring water to all persons entitled to the same for irrigation, mining,, milling, to cities and towns for waterworks, and for stockraising, and for the purpose of building storage reservoirs for the collection and storage of water for the purposes before mentioned. All such corporations shall have full power and authority to make contracts for the sale of permanent water rights, and to have the same secured by liens on the land or otherwise, and to lease, rent or otherwise dispose of the water controlled by such corporation for such time as may be agreed upon, and in addition to the lien on the crops hereinafter provided for, the lease or rental contract may be secured by a lien on the land or otherwise. All persons who own or hold a possessory right or title to land adjoining or contiguous to any .canal, ditch, flume, or lateral constructed and maintained under the provisions of this act, and who shall have secured a right to the use of water in said canal, ditch, flume, lateral, reservoir, dam or lake, shall be entitled to be supplied from such canal, ditch, flume, lateral, dam or lake with water for irrigation of such land, and for mining, milling and stockraising in accordance with the terms of his or their contract: Provided, that if the person, association or corporation owning or controlling such water, and the person who owns or holds a possessory right or title to land adjoining or contiguous to any canal, ditch, flume or lateral constructed and maintained under the provisions of this act, fail to agree upon a price for a permanent water right, or for the use or rental of the necessary water to irrigate the land of such person and for mining, milling and stockraising, such person, firm, association or corporation shall, nevertheless, if such person, firm, association or corporation has or controls any water not contracted to others, furnish the necessary water to such person to irrigate his lands, and for mining, milling and stockraising, at such prices as may be reasonable and just: Provided, further, that, in case of shortage of water from drought, accident or other cause, the water to be distributed shall be divided among all consumers pro rata, according to the amount he or they may be entitled to, to the end that all shall suffer alike, and preference be given to none. The sale of the permanent water right shall be an easement to the land and pass with the title thereof; and the owner thereof shall be entitled to the use of the water upon the terms provided for in his or their contract with such person or corporation, or in case no contract is entered into, then at just and reasonable prices. Any instrument of writing providing a permanent water right shall be admitted to record in the same manner as other instruments relating to the conveyance of land.”

It was charged in the petition that the appellants have and are entitled to the pos-sessory right of the lands, this by virtue of being the tenants of D. A. Gathings, the owner of the lands; and it is aiso clear from the allegations of the petition that the land is so situated as to be entitled to the waters from the appellee’s canals. In Borden v. Irrigation Co., 82 S. W. 461, supra, in construing the last-mentioned article of the statute, it is there said:

“We think this section of the act (article 3125 of the Revised Statutes of 1895), when fairly construed, reserves in the public, or that portion of the public owning land adjoining or contiguous to an irrigation canal constructed and maintained under the provisions of said act, a definite right to the use of the water in such canal, and imposes upon the corporation such reciprocal duties to the public as to make such corporation quasi public in character, and charge it with a public trust. The clause in the second paragraph of the article, which gives the corporation the right to contract for the sale of permanent water rights, when considered with other portions of the article, should not be construed as authorizing the sale to any one person of a permanent right to more than his proportionate share of the water furnished by the canal. The article, when considered as a whole, evidences an intention on the part of the Legislature to prevent discrimination by the corporation in the sale and distribution of water, and expressly provides that, if the corporation and the landowner fail to agree upon the price to be paid for the water, the landowner shall nevertheless be entitled to the water at such prices as may be reasonable and just, provided the corporation controls water not contracted to others.”

Independent of the contract, then, we find that it is the duty of the irrigation company to furnish water to the parties in possession of the land for the irrigation of the crops, failing which, the irrigation company is liable for such damages as were suffered by reason of its failure to perform its obligations to the tenants of the land. This is made so by the statute, and we are of the opinion that it is so at common law, independent of the statute.

Appellants also contend that they are entitled to recover from appellee by virtue of the original contract, which the appellee irrigation company had entered into with their landlord, which contract is set out in full, as a part of the plaintiff’s original petition.

Appellees contend, on the other hand, that the appellants should not be permitted to recover upon the contract, because there is no privity of contract as between them. In construing the contract in question, we hold that when the appellee irrigation company contracted with D. A. Gathings, the owner of the land, it did so in contemplation of the statute, and the statute therefore became a part of the contract, and the tenants of the landlord, being in lawful possession of the land, by virtue of the terms of the statute, became privies with the irrigation company in the contract. Under the terms of the statute, it is the duty of the irrigation company to furnish water to the party in possession of the land, and, the .contract having been made when this statute was in force and effect, the statute became as much a part of the contract as though it had been specifically set forth therein. The statute itself authorizes the making of such contracts, and as to whether this contract gives the owner of the land a permanent water right need not now be decided.

The contract, as made, however, gives a lien upon the crops raised upon the land to secure the payment of the water rental; this irrespective of the parties who may cultivate the land. Other provision's of the contract, apparently, are in terms of the statute, and should be construed accordingly, taking the statute as a part thereof. To hold otherwise would render such contract of little practical value to the owner of land, when such lands áre entitled to the benefit of the water of the irrigation company, and would defeat the purpose and intent of the statute.

What has been said in considering the first assignment of error disposes of the other two assignments. We are of the opinion that the general demurrer should have been overruled, and accordingly this cause is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. MARTIN BROS.
    (No. 335.)
    (Court of Civil Appeals of Texas. El Paso.
    May 21, 1914.
    Rehearing Denied June 11, 1914.)
    Judgment. (§ 106) — Default—Failure to Reply — Eeeeot.
    Under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, providing that, if any special matter of defense shall be pleaded by defendant, plaintiff shall answer each paragraph, admitting or denying it, or denying knowledge or information sufficient to form a belief, and that any fact so pleaded and not denied shall be taken as confessed, where, in an action against a. carrier for delay in transportation of cattle, plaintiff did not reply to the allegations of the answer that the delay was due to an accidental blocking of defendant’s road by a wrecked train without its fault or negligence, that the cattle were in better condition when they reached their destination, due to the carrier unloading, feeding, and watering them, than they would have been had they gone through in the usual timé, that they brought a better price than they would have brought had they reached their destination without delay, and that the carrier exercised due care and diligence to guard against the delay, and to secure the safety of the cattle, defendant was entitled to judgment by default: since the matters pleaded, if true, defeated liability, and, their truth having been confessed, defendant was not required to produce proof thereof.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. § 106.] •
    Appeal from Ector County Court; E. V. Graham, Judge.
    Action by Martin Bros, against the Texas & Pacific Railway Company. • From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Jno. B. Howard, of Midland, and W. L. Hall and R. S. Shaphard, both of Dallas, for appellant. Frank Judkins, of Odessa, for appellees.

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

   HARPER, C. J.

Martin Bros, a firm composed of W. A., and E. S., and John I. Martin, appellees and plaintiffs below, filed this suit in the county court of Ector county against the Texas & Pacific Railway Company, appellant and defendant below, for the sum of $400, and interest at the rate of 6 per cent, from December 17, 1912, damages for injuries alleged to have resulted from the shipment of 71 head of grown cattle and 211 head of calves from Metz, Tex., to Ft. Worth, Tex. Said injuries and damages alleged to have resulted from the negligent delays upon the part of appellant, in their transportation.

Appellant answered by general exception, and by special exception, general denial, and specially answering that they especially denied all matters and things alleged in paragraph 6 of appellees’ first amended original petition, and in that connection answered under oath, viz.: That the appellees did tender to the appellant six cars of cattle, and that said cattle were received by said appellant at Metz, and were loaded into the cars of appellant about 9:30 p. m., December 14, 1912, at said Metz station, and that they were speedily transported over the line of appellant’s railroad until the cattle reached Baird, without any unnecessary delays or rough handling. That the cattle left Metz at 12:45 a. m., December 15, 1912, and reached Baird on the same date at 3:25 p. m., which run was a reasonably good run, and that there were po delays, except such as were necessary and attendant upon. the transaction of its business. That upon said December 15th, at about 7 a. m., one of the appellant’s passenger trains was derailed and wrecked, without any fault or negligence upon the part of appellant, at or near Chautauqua, a station upon its line a few miles east of Baird, and that by reason of said wreck the main line of appellant was blocked, and it was unable to move trains until the same was cleared, which was done as soon as could have been done, with unusual dispatch and quickness, and that said wreck was an accident and unavoidable, and was not caused by any fault or negligence of appellant. That, when appellees’ cattle reached Baird, appellant’s main line was blocked, and that it would necessitate many hours to clear said line, and that your appellant unloaded appellees’ cattle in its stock pens at Baird, and had the same fed, watered, and rested, in good and sufficient pens. That there were a great number of cattle being transported to market in their yards at Baird, and that as soon as the line was cleared the cattle of the appellees were reloaded and shipped out with dispatch, and reached Ft. Worth, their destination, at 9:55 p. m., December 16, 1912. That the appellees entered into a contract with this appellant, and a stipulation in said contract was as follows:

“Fifth. That the said shipper, for the consideration aforesaid and hereinafter stated, hereby assumes and releases said carrier from risk, injuries, or loss which may be sustained by reason of any delay from the transportation of said stock, caused by any mob, strike, threatened or any actual violence to person or property from any source, failure of machinery or cars, injury to track or yards, storms or floods, escape or robbery of any of the said stock, overloading cars, fright of animals or crowding upon one another, or any and all other causes, except negligence of the carrier. Such negligence shall not be presumed.”

That said contract was .valid, and that appellant never agreed to transport said cattle for any certain market or for any certain time, but did agree to transport said cattle with ordinary dispatch. That the cattle were transported with dispatch, and were not delayed and not retained in its cars for any unnecessary time, and that the delay caused by said wreck was an accident, and was through no fault or acts of negligence upon the part of this appellant, or any of its servants, agents, or employés, and could not have been avoided by any degree of care whatever.

That the said cattle were reloaded and shipped out of the Baird pens with dispatch and as quickly as could be done under the circumstances, and that all cattle which were delayed or held in the pens at said Baird by reason of said wreck reached their destination in time for the market of the 17th, and that the said market of the 17th was as. good, or better, than the market of the 16th, the day the cattle would have reached said market if they had not been delayed by said wreck. That the delay was inevitable, and was caused by a wreck, without any negligence upon the part of the appellant, and that appellant was not liable for any shrinkage in said cattle, and that the cattle were in better condition when they arrived at their destination, by reason of the fact that they had been fed, watered, and rested at Baird, than they would have arrived at Ft. Worth without the rest and feed at Baird. ->

Appellees replied by supplemental petition as follows:

“Plaintiffs except to defendant’s answer herein, and say the same is insufficient in law, and constitutes no defense, and they pray judgment of the court.”

The case went to trial on November 22, 1913, and on the same date resulted in a verdict and judgment in favor of appellees for $400, and interest at the rate of 6 per cent, from the dajte of the judgment. From said judgment the Texas & Pacific Railway Company has appealed.

Appellant’s first, second, and fourth assignments charge that the trial court erred: (1) In refusing its special instruction to return a verdict for defendant; (2) in overruling motion for new trial, based upon two propositions, viz.: The defendant having pleaded specially that the delay in the shipment was caused by unavoidable accident, and the plaintiff not having answered by admitting or denying same, as required by article 1829, Rev. Civ. Stat. 1911, as amended by Acts of 33d Legislature, c. 127, p. 256, same is taken as confessed; and, the plaintiffs having based their right to recover solely upon alleged delays at Metz and Baird, and the uneontradiet-ed testimony being that the delay at Metz was due solely to plaintiffs, and the delay at Baird to an unavoidable accident, plaintiff was not entitled to recover.

In causes filed prior to the time this act went into effect, article 1829, Rev. Civ. Stat. 1911, imposed a general denial for plaintiff of special matters of defense pleaded by defendant unless expressly admitted (M., K. & T. Ry. Co. v. Gober, 125 S. W. 383; Postal Telegraph Cable Co. v. Harris, 56 Tex. Civ. App. 105, 121 S. W. 358), except article 1828, Rev. Civ. Stat. 1911, provides that:

.“When the defendant sets up a counterclaim against the plaintiff, the plaintiff may plead thereto under the rules prescribed for the pleadings of defensive matter by the defendant so far as the same may be applicable; and whenever, under such rules, the defendant is required to plead any matter of defense under oath, the plaintiff shall in like manner be required to plead such matters under oath, when relied on by him.”

Article 1829.(11), supra, as amended, provides that, if any special matter of defense shall be pleaded by the defendant, the plaintiff shall be required to answer each paragraph, either admitting or denying the cause, or denying that he has any knowledge or information thereof sufficient to form a belief; and any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed.

From the foregoing it may be seen that, while heretofore the plaintiff’s allegations were taken as confessed, unless denied by defendant, enabling a judgment by default, the statute, as revised, simply puts the defendant in the same position or attitude of the plaintiff under the law as it formerly was; i. e., unless plaintiff denied the special matters of defense pleaded by defendant, the defendant takes judgment by default as to such matters, because plaintiff, in failing to deny, has confessed the truth of the allegations. The question to determine is: Has the defendant' pleaded any “special matter of defense?” Defendant in its answer pleaded: (1) That accidental blocking of its road by wrecked freight train, which was not caused by any fault or negligence of the carrier; (2) that the cattle were in better condition when they reached their destination than they would have been had they gone through on the usual time; (3) that they brought a better price on the 17th than they would have brought had they reached their destination in time for tlie market of tlie 16th; (4) and, further, that it exercised due care and diligence to guard against the delay, and to secure the safety of the cattle.

It is well settled that, if the matters pleaded were true, the defendant will not he held liable for the delay in the delivery (G., C. & S. F. Ry. Co. v. Levi, 76 Tex. 341, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45); and, since the effect of plaintiff’s failure to deny, as required by statute, is to confess the truth of the allegations, the defendant was not required to produce any proof of the allegations in order to avail itself of such defenses.

The other assignments complain of the action of the court in refusing to give certain special charges requested by appellant.

The general charge of the court was sufficient upon the points raised in the special charges requested; so the assignments are overruled.

For the reasons given, the cause must be reversed and remanded for a new trial, and it is so ordered.


author: JENKINS, J.

text:
    MODERN BROTHERHOOD OF AMERICA v. JORDAN.
    (No. 5371.)
    (Court of Civil Appeals of Texas. Austin.
    May 20, 1914.)
    1. Witnesses (§ 268) — Cross-Examination— Scope and Extent.
    Where, in an action upon a benefit certificate, the defense being that insured in her application falsely stated that she had never had a certain disease, defendant had introduced a physician showing that he had treated her for the disease,' it was proper to permit plaintiff to show on cross-examination that she completely recovered from the disease in a few days.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    2. Evidence (§ 501) — Opinion Evidence.
    Where, in an action upon a benefit certificate, defendant had shown that the insured had had an attack of malaria, contradicting her statement to the contrary in her application, plaintiff, her husband, was properly permitted to testify that, in his opinion, she recovered in a few days; he stating the facts upon which the opinion was based.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.]
    3. Insurance (§ 818) — Mutual Benefit Insurance — Action on Policy — Evidence.
    In an action upon a benefit certificate, defended upon the ground that the insured falsely stated in her application that she had never had malaria, evidence that insured completely recovered from the attack within a few days was admissible upon the issue whether the false statement was material to the risk.
    . [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.]
    4. Insurance (§ 723*) — “Material to the Risk.”
    “Material to the risk,” as used in Rev. St. 1911, art. 4834, providing that all benefit certificates shall be uneontestable on account of any statement or representation made by the applicant, unless such representation shall be “material to the risk,” means any fact concerning the health, condition, or physical history of the applicant which would naturally have influenced the insurer in determining whether to issue the certificate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.]
    5.Insurance (§ 819) — Mutual Benefit Insurance — Action—Evidence.
    In an action upon a benefit certificate, evidence field not'to show that a false statement made by insured in her application that she had never had malaria was material to the risk.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    Appeal from District Court, Madison County; S. W. Dean, Judge.
    Action by Albert T. Jordan against the Modem Brotherhood of America. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Sparrow & Page, of Kansas City, Mo., and J. M. Brownlee, of Madisonville, for appellant. E. A. Berry, of Madisonville, and Hill & Elkins, of Huntsville, for appellee.

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

   JENKINS, J.

This suit was brought by appellee to recover upon a beneficiary certificate issued to his wife, Nancy J. Jordan, for $1,000 by the appellant. From a judgment in favor of appellee, the appellant has appealed, and assigned error as hereinafter indicated. The ease was tried before the court without a jury, and, at appellant’s request, the court filed findings of fact and conclusions of law as follows:

“Findings of Fact.
“ (1) The defendant is a mutual benefit order, and has a local lodge at George, in Madison county, Tex.
“(2) On the 21st day of November, 1911, Mrs. Nancy J. Jordan then the wife of the plaintiff herein, and residing' at George, in Madison county, Tex.,- made her application to the proper officers of the local lodge of the defendant order for admission thereto as a beneficiary member thereof, and, in pursuance to her said application, and after compliance with the rules and regulations and the constitution and bylaws of the defendant, and the regulations of said local lodge at George, the said Mrs. Nancy J. Jordan, was duly received and initiated as a member of said local lodge at George, and on the 22d day of December, A. D. 1911, there was issued under the hand and seal of the defendant, the Modern Brotherhood of America, by T. B. Hanley, Supreme President, and E. L. Balz, Supreme Secretary, and Charlie O. Martin, president of the local'lodge, and Erna Roth-enberg, secretary of the local lodge, benefit certificate No. 320827, for the principal sum of $1,000 in favor of the said Mrs. Nancy J. Jordan while in good standing in the fraternity, and payable to Albert T. Jordan after the death of the said Mrs. Nancy J. Jordan,
“(3) That on January the 5th, 1912, Mrs. Nancy J. Jordan ,died at George, in Madison county, Tex., and left surviving her Albert T. Jordan, her husband, and plaintiff herein, and at the time of her death the said certificate was payable to the said Albert T. Jordan, plaintiff herein, and was in full force and effect, and that said Nancy J. Jordan was in good standing in said society.
“(4) After the death of the said Nancy J. Jordan, the said Charlie C. Martin, president of the local lodge at George, applied to the said Balz, Supreme Secretary, for blanks on which to make out proof of loss, and the same were furnished and the said proof of death made and forwarded to the said Balz, Supreme Secretary, in compliance with the- rules and regulations of the defendant.
“(5) After receiving the said proof of loss, the said Balz brought the same before the proper officers of the defendant order, and wrote to plaintiff herein, Albert T. Jordan, that the defendant order denied liability on said certificate, the said denial of liability having been made prior to the institution of this suit.
“(6) The application of the said Nancy J. Jordan is dated November 21,' 1911, and was made a part of the benefit certificate above referred to, issued to her, upon which plaintiff now sues_, and certain questions were asked in said application and the medical examiner’s report attached thereto, and were made a part of the certificate, and among other warrants contained in said application were the following: ‘I declare and warrant that I am, to the -best of my knowledge and belief, in sound bodily health and physical condition, and that the above statements, together with the statements and answers made and to be made by me in other parts of this application, are literally true. I further agree that any untrue statement or answer, or any concealment of fact, intentional or otherwise, in this application, shall forfeit the rights of myself and my beneficiary or beneficiaries to any and all benefits to be derived from my membership in said society.
“(7) I find that question 8 is as follows: ‘Have you ever had any of the following diseases ; answer “Yes” or “No” opposite each; if “yes,” state the date, duration, and severity of the illness.’ Under this question are enumerated some 30 diseases, beginning with appendicitis, and ending with venereal disease, and, among others, malaria is included. To each of these questions concerning diseases, the applicant answered ‘No.’
“(8) I find that question 16 is as follows: ‘When and by what physician were you last attended and for what complaint?’ and that the answer was as follows: ‘Have not had one, only in confinement.’
“ (9) I find that the applicant warranted the exact literal truth of the answers to all of the questions asked, and agreed that the said answers, together with the by-laws, rules, and regulations of said Modern Brotherhood of America, should form the sole basis of contract between her and the said Modern Brotherhood of America.
“ (10) I find that in the latter part of August or first part of September, precedihg the signing of said application and the issuance of said ■certificate, that the applicant was taken with a chill, and was attended by Dr. Joe Rogers, who visited her once at the instance of her husband, Albert T. Jordan, and prescribed for her, and that she was,completely cured of said illness. The said Dr. Joe Rogers made a superficial or cursory examination to locate the trouble, and pronounced it malaria, but as to whether he announced to the said Nancy J. Jordan that her trouble was malaria there is no proof.
“(11) I find that malaria is very prevalent, is easily cured, and, in fact, nearly always cured, and completely, cured when any one is affected with it.
“(12) After the applicant, Mrs. Jordan, had the chill above referred to, she attended to all ■of her household duties, picked from 150 to 200 pounds of cotton per day during the months immediately following said trouble, and, up to the 1st of January, was apparently well, and, as the testimony shows, merry; that there was no apparent trouble with her at any time until ■on the morning she was taken with the fatal malady, which was about the 1st of January, 1912. On said morning she went out to get a bucket of water, had already attended to her household duties, and came in to her husband, who was then ill, and announced that she was not feeling well, and in a few minutes was taken with a chill and became unconscious. Dr. Hayes was immediately called in, and' pronounced her trouble congestion. Dr. Hayes is an old physician and examined her blood to see if there was any evidence of ursemic poisoning, and in said examination of the blood did not detect any uraemic poisoning, nor' malaria, and it was his opinion and diagnosis that her congestion was of the brain, and was eauséd by the kidneys, liver, and other organs not performing their proper functions, and causing an engorgement of the blood in the brain. He did not pronounce her trouble malaria, and did not, after his examination of the blood, believe it to be malaria, though he did not examine the blood specifically for malaria. He examined it for urasmic poisoning.
“(13) Dr. Joe Rogers testified by deposition that he was called in to see Mrs. Jordan, made a superficial and cursory examination, and thought her trouble was uraemic poisoning, due to malaria, though he made no examination of the blood, and did not prescribe for her, as another physician had been called in first, and was not present when he was in the room where said Mrs. Jordan was, and he did not undertake to say that her trouble was malaria. Dr. Rogers further testified that from reports made to ■ him and the history of the case that the applicant, Mrs. Jordan, was completely cured of the illness for which he treated her, which he says was in August, 1911.
“(14) Dr. Day testified that the only way to discover malaria in doubtful cases was by testing the blood.
“(15) I find that the incorrect answers given to questions 8 and 16, as above enumerated, were immaterial, in view ■ of the complete cure of the trouble she had in August, 1911, and that the trouble she had in August, 1911, did not in any wise contribute to her death, and I find that the said incorrect statements were immaterial.
“Conclusion of Law.
“I find, in view of the failure of the defendant to show the materiality of the answers, by reason of which they seek to avoid the payment of the certificate sued upon, and the showing made by the plaintiff to the contrary, that the plaintiff is entitled to recover, and that the policy is not avoided by the immaterial and incorrect answers given to questions 8 and 16, and therefore the plaintiff is entitled to recover the amount of said policy, less interest.
“To which findings of fact and conclusion of law, both the plaintiff and defendant excepted, and in open court gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas.”

The findings of fact are unnecessarily full, inasmuch as the court states, to some extent, the evidence upon which the findings were made. The court’s findings of fact are sustained by the evidence, for which reason we adopt them as our own.

Opinion.

Appellant assigns error upon the admission of the testimony of Dr. Rogers, witness for appellant, given in answer to cross-interrogatory as follows:

“Q. If you treated this party, Nancy J. Jordan, in August, 1911, for biliousness or malaria, did you cure her of this ailment or disease? Ans. I never saw Mrs. Nancy J. Jordan, except the one time in August, 19ll, until January, 1912, but from the reports I got the following few days after I did see her in August, 1911, she was cured oí that attack of malaria. I don’t know what her condition was following the attack in August, 1911, as I never saw her, but my opinion is she was cured of that attack.”

It was the contention of appellant that the certificate sued on was void, by reason of the statements made in her application, as shown by the sixth, seventh, and eighth findings of fact, supra, and the further fact that said statements were false. In support of this contention, appellant proved by Dr. Rogers that he attended Mrs. Jordan in the latter part of August, 1911, and treated her for malaria. Appellee sought to prove by said cross-interrogatory that Mrs. Jordan recovered from this attack. One of the grounds for appellant’s assignment of error to this testimony is that it appears that Dr. Rogers based his opinion upon hearsay; that is, upon the report made to him by Mrs. Jordan’s husband. It appears from the record herein that' the reports referred to were that she appeared to be better for the next few days, at which time she was up and apparently well. We take it that Dr. Rogers’ opinion was based partly on these reports, which are shown to have been true, and partly upon his diagnosis and prognosis made at the time he visited her. This testimony tended to establish the fact that Mrs. Jordan recovered from the attack of malaria for which Dr. Rogers-treated her, and was admissible.

Appellant also assigns error upon the admission of the testimony of appellee to the effect that his wife got well from said attack; the objection being that he was not a physician, and therefore his opinion as to her recovery was not admissible. He stated the facts upon which he based his opinion, granting that his statement that she got well was only an opinion. He said that she was in bed but a few days; that she never had another chill; that she was merry and joyous, attended to her household duties, and picked cotton all fall. It is well settled that a nonexpert witness may give his opinion as to testamentary capacity and sanity, and we see. no reason why he should not do so as to recovery from a disease shown to be common in the neighborhood where he lives, the objective symptoms of which are so prominent as they are in chills and fever, and which the medical testimony in this case shows is easily cured, when not chronic.

One of the objections to the testimony of each of the witnesses above named was that it was immaterial whether or not Mrs. Jordan recovered from the attack of malaria for which Dr. Rogers treated her, inasmuch as she stated in her application that she had not had malaria, and had not been treated by any physician, except in confinement, and that these statements were untrue. If the false statements were material to the risk, the certificate was void ab initio; and in such case it would be immaterial that she recovered from the attack of malaria, and died from some other disease. United Benev. Ass’n v. Baker, 141 S. W. 543; Mystic Circle v. Hansen, 153 S. W. 353; Murphy v. Prudential Ins. Co., 205 Pa. 444, 55 Atl. 22. But the evidence that Mrs. Jordan recovered from the attack referred to was admissible upon the issue as to whether or not .the false statement as to this matter was material to the risk.

It seems to be the contention of appellant that, as the representations as to her previous sickness and being attended by a physician were declared in the application to be warranties, and as they confessedly were untrue, no recovery can be had. This was the law as to all insurance policies prior to the enactment of article 4959, R. S., and it was the law as to fraternal insurance prior to the enactment of article 4834, R. S. Hutchison v. Ins. Co., 39 S. W. 325. It was to relieve against the injustice arising from this rigid rule of the common law that the articles above referred to were enacted by the Legislature of this state.

Article 4834, R. S., reads in part as follows:

“All benefit certificates shall from the date of their issuance be noncontestable on account of any statement or representation made by said applicant for membership, either in his application or otherwise, or his medical examination, unless such representation shall be material to the risk assumed; and the burden of proof shall be upon the defendant to affirmatively establish such defense.”

What is meant by “material to the risk”?

“The authorities which we have been able to find agree upon a definition of this term * * * substantially as follows: ‘Any fact concerning the health, condition, or physical history of the applicant, which would naturally have influenced the insurance association in determining whether or not it would issue the certificate.’ ” Mystic Circle v. Hansen, 153 S. W. 352.

A material risk is any previous affection which might reasonably have been considered a menace to the prolongation of the life of the insured, and that, had it been revealed, the application would have been rejected. Benev. Ass’n v. Baker, 141 S. W. 543.

One reason why applicants for insurance are asked by what physician they were last treated, or have been treated within a given time, and for what disease or diseases, is that the insurance company may consult such physician and obtain from him a statement as to the nature of the disease and his opinion as to recovery. Had Mrs. Jordan stated that she had been treated for malaria by Dr. Rogers in August previous to making her application in November, and had the agent of appellant consulted Dr. Rogers, and had Dr. Rogers stated what he testified to in this case, viz., that he visited Mrs. Jordan only one time, and from the reports received from her husband it was his opinion that she entirely recovered from that attack, would such information probably have caused the rejection of her application? We think not, especially in view of the facts shown by the record that malaria of this character was very common in that county, was easily cured, and that Mrs. Jordan had for some three months been in apparent good health, able to do her household work, pick cotton, and remain in good spirits.

There are some diseases of such known in-curability and fatal character as would be known to all men, nonprofessional as well as medical men, to be material to the risk of insurance, such, for instance, as tuberculosis, cancer, and syphilis, but East Texas chills and fever do not come in this category. ■ Article 4834 places the burden of proving the materiality of the false statement upon the defendant. No physician was called to prove that the sickness for which Dr. Rogers attended Mrs. Jordan did in any probability endanger the prolongation of her life, and no evidence was offered to show that any insurance company would probably have rejected her application had it known the facts in reference to such sickness.

Einding no error of record, the judgment of the trial court is affirmed.

Affirmed.


author: KEY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. HUMPHREY.
    (No. 5379.)
    (Court of Civil Appeals of Texas. Austin.
    May 20, 1914.)
    Railroads (§ 413) — Injuries to Animals on Tracks — Liability.
    • Where a railroad company whose line separated the farms of relatives established gates so as to afford access between the two farms which were separate inclosures belonging to different owners, it was the duty of the company to exercise proper care to keep the gate closed; hence one whose mule strayed through the open gate and was killed on the right of way may recover from the railroad company.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig. § 413.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by F. C. Humphrey against the International & Great. Northern Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Fisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. Nunn & Love, of Georgetown, for appellee.

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

   KEY, C. J.

This is an appeal from a judgment rendered by the county court of Williamson county in favor of appellee and against appellant, for the value of a mule killed by one of appellant’s trains. The mule was killed on appellant’s right of way, which was fenced, and appellant contends that the testimony wholly fails to show that it was guilty of any negligence. The mule escaped from the plaintiff’s premises; entered a field belonging to a Mr. Westberg, and passed out of that field through an open gate in appellant’s right of way fence, and onto- the railroad track, where it was run down and killed by a passenger train.

The controlling issue submitted by the trial court to the jury was whether or not appellant was guilty of negligence in permitting the gate in its right of way to be open. Counsel for appellant contend that the gate was placed there for the benefit of the adjoining owner, and therefore that no duty rested upon it to keep the gate closed. It is provided by statute in this state that railroad companies shall be liable for. the value of all stock killed or injured by the locomotives and ears used in operating their railways, provided, however, that if the road be fenced, the company shall not be liable unless it is made to appear that the injury resulted from a want of ordinary care on the part of the company. It is also provided by statute that if a railroad fences its right of way, it may be required to make openings or crossings through its fence and over its roadbed every iy2 miles; and it is further provided that if such fence shall divide any inclosure, at least one opening shall be made in the fence within such inclosure. Construing these statutes, our courts have held that, unless railway companies fence their rights of way they are liable absolutely for live stock killed or injured by passing trains, and that when they fence their rights of. way the law requires them to maintain the fence in such condition as to be reasonably sufficient to prevent live stock from entering upon the railroad track, with the exception, however, that if the railroad runs through and divides an inclosed tract of land, and gates are placed in the right of way fence for the benefit of the owner or occupants of the land so inclosed, then no obligation rests- upon the railway company to keep the gate closed.

In this case the proof shows that the railroad right of way and the railroad track ran through two farms, one belonging to Mr. Westberg and the other either to his mother or his brother, and indicates that they all lived together in a residence on the farm belonging to the first-named Westberg. However, instead of the proof’s showing that the railroad divided an inclosure, it shows that the two farms were separate, and also shows that the gate in question was located between two public road crossings, not more than a mile apart. As to why the gate referred to and the one opposite it in the right of way fence on the- other side of the railroad .were placed there, the testimony is very meager, but indicates that perhaps it was done for the benefit of the Westbergs, in order that they might have easy access to and from their respective farms. But the fact remains that the two farms not only belonged to different owners, but were not within the same inclosure, and for this reason we hold that it was the duty of the railroad company to exercise proper care to prevent the gate from being- open on the occasion in question, and the evidence supports the finding of the jury that such ordinary and proper care was not exercised; and therefore we rule against appellant on the controlling question in the case. Ry. Co. v. Wilson, 124 S. W. 132, and Ry. Co. v. Lee, 135 S. W. 694, and authorities cited in both cases.

All the questions presented in appellant’s brief have received due consideration, and our conclusion is that the judgment should be affirmed; and it is so ordered.

Affirmed.


author: RICE, J.

text:
    OWENS v. FIRST STATE BANK OF BRONTE.
    (No. 5344.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.
    Rehearing Denied June 3, 1914.)
    1. Banks and Banking (§ 154) — Actions by Depositor — Evidence.
    In an action by a depositor who claimed that a balance was due him from a bank, where the bank claimed that it had properly charged his account with the amounts claimed, evidence showing the depositor’s connection with an oil company, and that the amounts were charged in connection with the oil company’s business, is admissible to explain such charges.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-533; Dec. Dig. § 154.]
    2. Banks and Banking (§ 154) — Deposits— Conversion.
    In an action by a depositor who claimed that a bank had converted funds belonging to him, the bank may show the depositor’s connection with the partnership, in whose behalf it paid out the funds, to corroborate its contention that the payments were authorized.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-533; Dec. Dig. § 154.]
    3. Appeal and Error (§> 1170) — Review-Harmless Error.
    Under court rule 62a (149 S. W. x), the improper exclusion of evidence will not justify a reversal, where it would not have affected the result.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    4. Evidence (§ 314*) — Hearsay—Wbat Constitutes.
    Where the members of a firm, at a conference, agreed that one partner should order machinery, a partner present at the conference may testify that the machinery was ordered for the firm; the matter being within his own knowledge and not hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.]
    5. Trial (§ 252) — Instructions—Applicability to Evidence.
    Where an issue is supported by evidence, it is proper for the court to charge thereon.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. f§ 505, 596-612; Dec. Dig. § 252.]
    6. Trial (§ 296) — Instructions — Error Cured by Others.
    In an action against a bank for money which a depositor claimed was wrongfully paid out, a charge that the depositor had the burden of proving his case, was not misleading and did not improperly place the burden of proof on him, where the court charged that the bank had the burden of proving its affirmative defenses of payment with authority and ratification.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from.District Court, Coke County; J. W. Timmins, Judge.
    Action by B. T. Owens against the First State Bank of Bronte. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. C. Merchant and Thomas & McCarty, all of San Angelo, for appellant. Blanks, Collins & Jackson, of San Angelo, for appel-lee.

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

   RICE, J.

This suit was brought by appellant against appellee to recover $548.75 claimed as a balance due him from it, alleging that during the years 1908, 1909, and 1910, he had an account with said bank, during which time he had deposited to his credit therein several thousand dollars, but had prior to August 30,1910, checked it all out except that amount; that on August 30, 1910, appellee had charged him with $500, on October 25, 1910, had made a like charge against him for $25, and on November 16th had charged him with $23.75, all of which were made without his authority; that but for which appel-lee’s own books would show that it was indebted to him in said sum sued for; that on May 8, 1912, he drew a draft on said bank through the Farmers’ & Merchants’ Bank & Trust Company of Sweetwater for said amount, payment of which was refused.

Appellee answered by general denial, and specially denied that it owed appellant anything, and averred the facts to be that prior to August 30, 1910, appellant and J. B. Reilly, then cashier of said bank, W. A. Anderson, and one Weaver formed a partnership, known as the Owens Oil Company, to prospect for oil at Edith, each subscribing $500 to said company; that said company purchased certain machinery which had been consigned to it by the seller, with draft drawn through appellee attached to bill of lading; that this machinery could not be removed from the railroad depot until said draft was paid; that appellant authorized Reilly, appellee’s cashier, to pay $500 thereon out of his funds at the bank and charge same to him, which he did, crediting the oil company therewith and debiting Owens’ account with said amount; that the other items were paid out for expenses connected with the operation of said oil company’s business by appellant’s direction, and that said bank was in no way interested in said oil company; that,'in addition to such express authority, appellant was estopped from setting up said demand against appellee because it had furnished him statements of his account, showing such charges had been made, and he had ratified the same by acquiescing therein.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted. The facts show that appellant had an account with ap-pellee, as alleged, but also showed that he had entered into said partnership, participated in the ordering of said machinery as well as the management and operation of the affairs of said company, and had subscribed $500 thereto; that he expressly authorized appellee’s cashier Reilly to charge him with each of said items above set out; and that he was cognizant of the fact that said charges had been made against him and acquiesced therein, whereby he ratified same.

It is contended on the part of appellant, by his first three assignments, that the court erred in permitting appellee to show his connection with said oil company, as well as his participancy in the management thereof, on the ground that the same was immaterial and irrelevant. These assignments are overruled. Said evidence was admissible in explanation of how the charges came to be made by the bank against appellant. Besides this, since appellant had charged the bank with conversion of said fund, it had the right, in corroboration of its contention that the same had been paid out by his express authority, to show that said fund had been paid to said oil company for his benefit.

While the court may have erred in refusing to permit appellant to show that in the spring of 1911 he had arranged to file suit against appellee for the items sued for herein, still we do not believe that this would constitute reversible error in the state of the record, since, in our opinion, it did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. See rule 62a (149 S. W. x) for the government of this court.

It was not error, as contended by appellant, to permit Reilly to testify that the machinery had been ordered for the Owens Oil Company, because he stated that all the parties concerned. had a conference before Weaver went to San Antonio, in which it was agreed that the same should be ordered by him for the company. These facts were matters within the witness Reilly’s own knowledge, and not hearsay; hence the fifth assignment is overruled.

There was ample evidence on the subject of acquiescence and ratification. We therefore overrule the several assignments of appellant complaining that the court erred in charging upon this subject.

We do not think any error was committed by the court in' its charge on the burden of proof. After stating that the plaintiff must prove his case by a preponderance of evidence, the court gave a special charge at the instance of appellant, to the effect that the burden of proof was upon appellee to establish its defense, viz.: That said payments were made by the authority of plaintiff, or that he had ratified same, and that unless defendant had established such facts of payment or ratification, by preponderance of the evidence, to find for the plaintiff. We do not think the jury could have misunderstood or been misled by this charge. Hence we overrule those assignments urging that the court improperly placed the burden of proof upon the plaintiff.

Believing that the evidence amply sustains the verdict and judgment, and finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.


text:
    KIDD v. SPARKS.
    (No. 5361.)
    (Court of Civil Appeals of Texas. Austin.
    May 6, 1914.
    Rehearing Denied June 3, 1914.)
    1. Mortgages (§ 38) — Deeds as Mortgages —Evidence—Sueeiciency.
    Evidence held to show that a deed absolute in form was, in fact, a mortgage.
    [Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.]
    2. Mortgages (§ 87) — Absolute Deeds as Mortgages — Evidence—Admissibility.
    On the issue whether a deed absolute in form is, in fact, a mortgage, the grantor may testify whether the deed was executed to secure a debt, but may not state that he did not intend to execute a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action by J. R. Sparks against W. M. Kidd. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. Critz & Woodward, of Coleman, for appellee.

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

   KEY, C. J.

J. R. Sparks brought this suit against W. M. Kidd in the county court of Coleman county, to recover the sum of $425, alleging that it was a balance due upon an agreed consideration for the sale of certain lots in the town of Talpa, in that county, conveyed by Sparks to Kidd by deed dated October 27, 1911.

In his answer the defendant, Kidd, denied that he owed the plaintiff anything, and alleged that the deed referred to was, in fact, a mortgage, and was given for the purpose of securing an indebtedness from Sparks to him, the consideration being $250 owing by Sparks to Kidd upon a promissory note, and $21 due upon an open account and Kidd’s agreement with Sparks to permit him, on the faith of the deed, to purchase goods, wares, and merchandise from Kidd, and that it was the understanding between the parties that when Sparks paid all of Ms indebtedness then owing and subsequently to accrue, that Kidd would reconvey the property to Sparks. He also disclaimed any title to the land.

Plaintiff, Sparks, filed a supplemental petition, specially denying the facts alleged in Kidd’s answer.

The ease was submitted to a jury upon special issues, and the jury found: (1) That the deed referred to was made for the purpose of securing an indebtedness from Sparks to Kidd; (2) that at the time of the execution of the deed it was agreed between the parties that the consideration was to be $750; and (3) that it was provided by written agreement executed at the same time that the plaintiff, Sparks, should have the right to repurchase the property within one year, for the consideration of $750. Upon those findings the court rendered judgment for the plaintiff for $425, and interest thereon from the 1st day of January, 1912, at the rate of 6 per cent, per annum, and the defendant, Kidd, has appealed.

Overruling all the other assignments of error, we sustain assignment No. 3, which, in substance, assails the verdict as being contrary to, and unsupported by, the testimony; appellants contention being that the evidence shows that the deed was executed for the purpose of securing indebtedness from appellee to appellant, and that appellant never became indebted to appellee in any sum as a consideration for the execution of the deed. After careful consideration of the statement of facts, we have reached the conclusion that appellant’s contention is correct, and that the verdict ought not to be permitted to stand. The testimony of the defendant, Kidd, was clear and specific to the effect that the deed was executed for the purpose of securing the amount which Sparks then owed him upon a $250 note, and upon an open account, and in order to obtain further credit at Kidd’s store, and that he never promised to pay Sparks anything, and that, the written instrument executed at the same time, which, by mutual agreement, was subsequently destroyed, was executed for the purpose of showing that Sparks was entitled to have the property reconveyed to him upon the payment of his indebtedness to Kidd, and that he still held the $250 note against Sparks. As a witness on the stand, Sparks made two or three general statements to the effect that it was the understanding that he was to have the right to buy the property back within a year’s time by paying a certain sum. But, while he stated that his indebtedness to Kidd at the time the deed was executed was part of the consideration for the deed, he admitted that he did not demand from Kidd the $250 note which he had given for the greater portion of that indebtedness, and the note was produced and put in evidence by Kidd. Sparks also admitted that over two months after the execution of the deed, and at a time when he now claims Kidd was indebted to him-in the sum of $425, he executed a note to Kidd for the sum of $250, due October 1, 1912, and executed a chattel mortgage on certain horses and on his entire crop on 95 acres of land.

In Harrison v. Hogue, 136 S. W. 118, the court says:

“It seems. clear that, where the consideration of a deed is a pre-existing debt, unless it is shown that the debt, to the extent of such consideration, is extinguished and the evidence of it surrendered, the instrument will be declared to be a mortgage.”

So we hold that the conduct of Sparks in not demanding the surrender of the $250 note, which he now claims he paid when he executed the deed, and his subsequent conduct in executing another note to Kidd for $250 and securing the same by a chattel mortgage, at a time when, he now claims, Kidd was owing him $425, are so utterly inconsistent with that contention as to render his evidence in support thereof incredible and untrustworthy.

Error is assigned upon that portion of the court’s charge which instructed the jury that the burden was upon the defendant Kidd to show that the deed referred to was intended as a mortgage. We' are not disposed to sustain that objection, but suggest that, upon another trial, the court frame its charge upon that subject in conformity with the suggestion of the Supreme Court in Howard v. Zimpelman, 14 S. W. 59.

We also suggest that, instead of permitting the plaintiff to testify that in executing the deed he did not intend to make a mortgage, the court require the witness to state what was done and said at that time. However, we hold that it is permissible for the grantor in an instrument which purports to be a deed to state whether or not it was executed for the purpose of securing a debt, as that is the true test of whether or not such an instrument will be given effect as a mortgage.

For the reason given, the judgment is reversed, and the cause remanded.

Reversed and remanded.