text:
    TEXAS MOTOR COACHES, Inc., v. RAILROAD COMMISSION et al.
    No. 7869.
    Court of Civil Appeals of Texas. Austin.
    March 15, 1933.
    Rehearing Denied April 5, 1933.

      Cantey, Hanger & McMahon and R. K. Hanger, all of Fort Worth, C. W. Trueheart, of Longview, and E. O. Mather, of Port AVorth, for appellant.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Phillips, Trammell, Chizum, Price & Estes, Eugene Lary, and A. W. Dawson, all of Fort Worth, and George Purl, of Dallas, for appellee South Texas Coaches, Inc.
   BAUGH, Justice.

This is the second appeal of this case. The first appeal involved only the sufficiency of the pleadings. See 41 S.W.(2d) 1074. In December, 1930, the Railroad Commission granted to the South Texas Coaches, Inc., hereinafter designated as appellee, a certificate of public convenience and necessity to operate a motorbus line between Dallas and Fort Worth over what is known as the northern route, that is, a route north of the Trinity river, substantially parallel to the Bank-head highway, or state highway No. 1, or southern route, over which appellant then held a similar certificate. Appellant sought to set aside such certificate to the South Texas Coaches, Inc., and to enjoin its operation thereunder on the grounds, substantially, that no such public convenience and necessity was shown to have existed which would authorize the commission to grant such certificate, because the service furnished by appellant in that territory was adequate; that such operation would be competitive with appellant’s line, and would destroy its investment by cutting 'its income far below its cost of operation; that the highway over which such new line would operate was not of such type of construction and state of repair as would permit it; that, if such additional service between said cities were needed, appellant should be given opportunity to furnish it; and that the existing service furnished by appellant should be protected against ruinous competition.

Trial was to a jury, but, at the close of the evidence, the case was withdrawn from them by agreement, decided by the court, and all the relief sought by appellant was refused. From this judgment the'Texas Motor Coaches, Inc., has appealed.

Appellant’s first two propositions assert that the granting of such certificate or permit is unjust, unreasonable, and arbitrary as to it because the evidence showed that public convenience and necessity would not be served by granting same; and also because appellant was, under a certificate theretofore granted to it to operate over the southern route, already furnishing a satisfactory and reasonably adequate service between said two cities.

These contentions cannot be sustained. Appellant cites cases from other states defining what constitutes a public convenience and necessity and discussing the matter which the commission should take into consideration in so doing. It is obvious, we think, that the Legislature clearly intended that such determination should be based upon a public or community interest as distinguished from any private interest, or the interest of any group of private individuals; and that the term “public necessity” was used in a relative, and not in an absolute, sense.* Sections 3, 6, 7, and 8 of what is commonly known as the Motorbus Act (chapter 270, Acts 1927, 40th Leg., as amended by Acts 1929, 41st Leg., 1st O. S., chap. 78, § 3 [Vernon’s Ann. Civ. St. art. 911a, §§ 3, 6-8]) prescribe at some length what the Railroad Commission should take into consideration in determining these matters, and in the exercise of their discretion in granting or refusing such permits. Section 3 of said act (Vernon’s Ann. Civ. St. art. 911a, § 3) in effect provides that a public convenience and necessity exists requiring the issuance of such permit “when existing transportation facilities on any highway in this State do not pro-yide passenger service which the Commission shall deem adequate to provide the public convenience on such highway,” etc. Obviously it was the purpose of the statute to vest in the commission 'a broad discretion in ascertaining . and determining what facts should constitute adequate transportation facilities in any given case; and, unless that discretion is abused, the" courts will not disturb it. The courts will not decide whether, under the evidence offered upon a trial of such issue, had in accordance with the provisions made in the act, the court itself would grant or refuse a permit, but whether there •is substantial evidence to support the action of the commission in the premises. All these matters and numerous eases bearing thereon were discussed fully by this court in Railroad Commission v. Shupee, 57 S.W.(2d) 295, and further discussion here would be but a repetition of what was said in that case. The powers of the courts to set aside, and the degree of verity to be given to, the orders of the Railroad Commission within the scope of the authority delegated to it or imposed upon it by statute, were defined by our Supreme Court in Railroad Commission v. Weld & Neville, 96 Tex. 409, 73 S. W. 529, and Railroad Commission v. Galveston Chamber of Commerce, 105 Tex. 115, 145 S. W. 573; and the holdings in those cases have since been repeatedly reaffirmed and followed.

We shall not here undertake to summarize or restate the evidence in this case. The statement of facts discloses, in addition to maps, plats, and documentary evidence, the testimony of 45 witnesses, and comprises 555 pages. It discloses substantial evidence bearing upon all matters which the commission is directed by the statute to take into consideration. Appellant operated 17 schedules daily between said cities over highway No. 1, a direct route between said cities, running south of the Trinity river. The route over which appellee’s permit was granted was a distinct and separate route north. of the Trinity river running through some three or four towns and villages, and a developing rural area, substantially parallel to the southern route and varying from three to six miles from it, and served communities not served, nor offered to be served, by appellant. Appellee began operation about January 1, 1931, and at the time of the trial was carrying about 175 passengers daily, about half of whom were through passengers, and serving schools, residents, and industries advantageously in the intermediate area. The trial court found, upon sufficient testimony to sustain it, that, though appellant’s line furnished adequate service over its route, it was wholly unable to render the needed service over the northern route; and that, whatever the competition the northern route furnished to appellant, it was more than offset by the convenience and necessity of the public served over the northern route. These were all matters to be considered by the commission in the exercise of its discretion, and there was substantial evidence to sustain their finding thei*eon.

Appellant’s next proposition urges that the granting of such permit created ruinous competition on through traffic between said termini, rendered it impossible for appellant to secure a fair return upon its investment, and destroyed its ability to earn a reasonable return and at the same time maintain an adequate service.

The record discloses that appellant had made an aggregate investment in equipment of approximately $238,000 and that it had, operated at a loss of more than $55,000 since it began in 1927. Reduction of schedules and increase in fare had been granted to appellant by the commission because of diminished traffic and a growing deficit in its operation. Its contention is that it can furnish all of the service needed between Dallas and Fort Worth, and, but for the competition of appellee over the northern route, could operate at a reasonable profit. The finding of the trial court, however, sustained by evidence, was that the number of. persons carried by appellant between said cities after operation on the northern route began was greater than it was before such operation began. And that the- loss of revenues suffered by appellant as compared with that received in 1927 was due to other sources than to competition by appellee, e. g., railroads, in-terurbans, and increased use of private automobiles. The record also discloses that appellant’s line of motor-busses and the electric interurban between said cities were both owned and operated under the same management, along closely paralleling routes, serving the same territory. It may also be observed in passing that since the economic-collapse of 1929 all forms of transportation, as a matter of common knowledge, have been seriously curtailed and earnings diminished without regard to competitive agencies.

Neither an adequate return nor permanency of operation, however, is guaranteed to appellant under the law. Its use of the state’s highway for profit is only permissive, subject to cancellation as occasion may demand, and authorized only in so far as, and as long as, it meets a public need and convenience. The state can exclude it entirely from use of its highways, should public convenience and necessity demand it, even though such exclusion imposed a heavy loss upon such carrier. And, if public convenience and necessity require it, permit to operate over a different route between the same termini may be granted by the state, though such operation prove competitive to lines already established. The public need and convenience, and not the effect on existing carriers, is the matter of first concern, though the latter is undoubtedly a m'atter for the commission to take into consideration in granting such permit. Petersburg, etc., Ry. Co. v. Virginia, 152 Va. 193, 146 S. E. 292, 67 A. L. R. 931; 42 C. J. 688. The commission should, and is so directed by the statute, take into consideration the effect that granting competitive service between the same termini would have upon the continued ability of existing motorbus carriers to render and continue an adequate service, commensurate with public convenience and needs; and should so act as to protect the public interest. If public convenience and need outweigh, as the trial court and the commission found in this case that it did, the private interests of those already in the field, the latter become subservient to the former, and must abide the result, even though it involve financial loss. All these things, and the weight to be given them, were matters within the scope of the powers delegated to the commission to determine; and, unless the commission abused its discretion in the conclusions reached, the courts are not at liberty to set aside the result. Texas Motor Coaches v. R. R. Com. (Tex. Civ. App.) 41 S.W.(2d) 1074, 1078; R. R. Com. v. Shupee, supra; Mayor of Houston v. Houston St. Ry. Co., 83 Tex. 548, 19 S. W. 127, 29 Am. St. Rep. 679; section 5, art. 10, Texas Constitution. And this is true where the use of the same highway is involved. In the instant ease, however, the permit contested was over a distinct and separate highway serving in part at least a separate and distinct territory fr.om that served by appellant, and one which the trial court found could not be served by appellant in operating over the southern route.

Appellant’s next contention is that, if the service rendered by it between Fort Worth and Dallas were in fact inadequate, and additional service needed, it being ready, able, and willing to afford such additional service, the Railroad Commission should have granted it such opportunity, even over the northern route, instead of permitting a competitor to do so. Numerous eases from Illinois and Ohio are cited, announcing such general rule and holding that, where unnecessary competition to existing lines is authorized, added expense and ruinous competition usually result which ultimately add to the expense and inconvenience of the public; and that, since the state controls both the service and the rate, existing established ’carriers should be protected and given priority of opportunity to meet the public need. West Suburban Transp. Co. v. Ry. Co., 309 Ill. 87, 140 N. E. 56; Chicago Rys. Co. v. Commerce Com., 336 Ill. 51, 167 N. E. 840, 67 A. L. R. 938; Egyptian Transportation System v. L. & N. Ry. Co., 321 Ill. 580, 152 N. E. 510. In those states, however, as in Texas, the interests of the public are matters of paramount concern. The Texas Motorbus Act, § 6 (Vernon’s Ann. Civ. St. art. 911a, § 6), clearly enjoins upon the Railroad Commission the duty of taking into consideration, when a permit is applied for, existing transportation facilities on such highway, and not only the service being rendered, but that capable of being rendered, by such operators. This provision clearly contemplates that the rights of existing motorbus carriers should bo protected against competition so long and so far as consonant with the public need and convenience. If, however, the service rendered over one route or highway is not adequate to meet the needs of adjacent territory which must be served over another highway, though between the same termini, it was a matter peculiarly within the realm of the commission’s functions to determine whether such public convenience could be best met by an operator between said termini already in the field or by granting a permit to a competitor. The act itself, section 7 (Vernon’s Ann. Civ. St. art. 911a, § 7), clearly contemplates motor-bus competition with existing railroad and interurban lines in the same territory; and the Constitution of the state prohibits elimination of competition in the railway field. Section 5, art. 10. See, also, article 1, § 26, Tex. Const.; City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143; Texas Motor Coaches v. R. R. Com., supra, relating to monopolies as contrary to the Constitution.

In the instant case, however, there appears no offer and no disposition on the part of appellant, either before the Railroad Commission, or in the trial court, to furnish any added service in the territory affected by the grant of the permit attacked. It is clear that additional service, if given by it, over the southern route, would not afford a local service, which was 50 per cent, or more of ap-pellee’s business, on the northern route. Appellant’s contention was first that no additional service was needed; or, if it were, that it could furnish such service over the southern route. Its chief purpose, however, was clearly to eliminate competition, and secure more of the through traffic between the termini, not to afford additional service over another and different route between said two cities. If the commission had ordered it to furnish over the northern route the same service now afforded by appellee, it would undoubtedly have made the same protest it now presents here. It is therefore in no position to complain that the commission, after finding that a public necessity and convenience demanded additional service over sueh other route, granted such permit to ap-pellee, as it was clearly under the law authorized to do.

Appellant’s next contention is that the order granting the permit is void because it contains no findings of facts npon which it was granted. This contention is not sustained. We find nothing in the statute requiring that the commission set out in its order the facts on which such order is based. Appellant makes no contention here that it did not have full notice of appellee’s application, nor full opportunity to appear before the commission on the hearing and present its protest. Having complied with the law in these respects, the commission’s proceedings are presumed to have been regular; and the burden rested upon appellant to show by a preponderance -of the evidence that théy were not- Section 17, Motorbus Act (Vernon’s Ann. Civ. St. art. 911a, § 17). Absent a showing by appellant that the commission aid not comply with the law, and did not take into consideration the facts which the statute makes it their duty to consider, as stated in R. R. Com. v. Galveston C. of C., supra, a high degree of verity must be given their order. The test of the validity of the order, where entered after a hearing and consideration of the facts specified in the statute, is whether it is unreasonable, unjust, and arbitrary as to appellant, under the facts shown by the evidence upon the trial of the case.

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

Affirmed.


source: Caselaw Access Project

author: HICKMAN, Chief Justice.

license: Public Domain

text:
    LINDLEY v. EASLEY et al.
    No. 1098.
    Court of Civil Appeals of Texas. Eastland.
    May 24, 1932.
    Rehearing Denied May 5, 1933.
    Woodward & Coffee, of Big Spring, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.
   HICKMAN, Chief Justice.

Appellant instituted this suit in the district court of Fisher county as an action in trespass to try title; his petition containing the formal allegations of a suit in that nature. By agreement of the parties the case was transferred to Taylor county: The two counties are in the same judicial district. Appel-lee J. M. Easley and Walter Garter were named defendants, but the latter filed a disclaimer, and no questions pertaining to him are.presented. Where the term “appellee” is used, it will refer to J. M. Easley only. In his answer appellee pleaded not guilty, and by way of special plea alleged the following, in substance: That on January 6, 1925, he was the owner of the land in question and conveyed same to one J. F. Fraser, as a part of the consideration for which Fraser executed to him notes aggregating $4,900 secured by a vendor’s lien upon the land, and further secured by a deed of trust in which Henry James was named trustee; the notes being due serially from November 15, 1925, to November 15, 1930; that after the execution of said vendor’s lien notes appellee transferred them to one O. W. Gill, and thereafter Fraser reconveyed the land to. appellee, the latter agreeing that he would “take care of said notes.” Appellee further alleged that in May, 1925, Gill “desired the money on said notes, and in order to procure the money for the said Gill the defendant herein borrowed from C. D. Lindley * * ⅜ the sum of $3,330.00 by note dated June 2nd, 1925, due December 1st, 1925, with 10%,interest per annum from maturity”; that he executed to Lindley his note for $3,700, but received from Lindley the sum of $3,330 only; that $370 was added to the face of the note for interest for six months, and the note bore 10 per cent, interest from maturity. The answer further alleged that, in order to secure his personal-note to appellant, appellee “had the said Gill” transfer to the appellant as collateral three of the vendor’s lien notes executed by Fraser, being the last three of the series of notes, and aggregating approximately $3,700; that the loan procured from appellee by appellant was usurious, on account of which all payments theretofore made, both as principal and interest, should be applied as credits on the principal and no interest allowed thereon. Total payments aggregating $2,539.-65 were alleged, leaving a balance of approximately $800 remaining unpaid after applying all payments to the principal.

As a special defense to appellant’s action to try title, appellee alleged that, on or about the 8th day of July, 1931, D. R. Lindley, substitute trustee under the deed of trust executed by Fraser to Henry James, trustee, advertised the land in question for sale under the terms of the deed of trust, the sale to be made on the first Tuesday in August thereafter; that prior to the date of sale the appellee prepared a petition for an injunction against the sale, and the honorable district judge of Fisher county, who is also the judge of the district court in Taylor county in which this action was tried, granted his prayer for injunction upon his giving bond in the sum of $1,000, to be approved by the district clerk of Fisher county; that on the morning of the first Tuesday in August the bond was filed with and approved by said clerk and the injunction issued accordingly. It was alleged that, if he were mistaken about his allegation that the substitute trustee had notice of the issuance of the injunction before the land was actually cried off, he did have notice before the deed was executed to the purchaser. It was claimed that the deed made by the substitute trustee to the appellant, who was the purchaser at such sale, was void, -because made in violation of the injunqtion.

There was an alternative plea to the effect that the property was sold to appellant at the trustee’s sale for $1,500, and that, if same should be held valid, appellant would be due appellee the sum of approximately $800. The prayer was that the deed executed by the substitute trustee to appellant be canceled, set aside, and held for naught, and. alternatively that, in the event such sale be upheld, appel-lee have judgment against appellant for the difference between the balance owing by him to appellant and $1,500, the amount of appellant’s bid.

Appellant, by supplemental petition, after his general demurrer and general denial, alleged the execution of the vendor’s lien notes by Fraser-to appellee; that same were transferred and assigned by appellee to C. "W. Gill; alleged the transfer and assignment of the last three of said notes by Gill to appellant; alleged the terms of the deed of trust executed by Fraser to Henry James, trustee; ap-pellee’s default in the payment of the last note of the series,-and the sale by the substitute trustee at which he was the purchaser. He further alleged as an alternative plea that he was the owner of said vendor’s lien notes; that the last one was due and unpaid; that he had paid taxes on the land in the amount of $160.38, and in the alternative prayed for judgment for the principal, interest, and attorneys’ fees on said note, for the amount he had paid as taxes, and for a foreclosure of his vendor’s lien and deed of trust lien upon the land in question.

The case was tried before the court without the assistance of a jury, and judgment was rendered canceling the deed by the substitute trustee to appellant, decreeing that appellant take nothing by reason of his suit in trespass to try title, and further decreeing that the appellant, upon his cause of action set up in his supplemental petition, recover from the appellee $1,029.76, this amount consisting of a balance due by appellee to appellant as principal, interest, and attorneys’ fees, and for taxes. A foreclosure ot the vendor’s lien and deed of trust lien was awarded. The amount of the judgment was arrived at by treating the transaction as usurious and applying all payments made by ap-pellee to appellant upon the principal, and then adding thereto the amount which appellant had paid as taxes.

The first question for determination relates to appellant’s action in trespass to try title, and a determination thereof depends upon whether or not the court erred in canceling the deed executed by the substitute trustee to appellant. It is the admitted law that a sale made in violation of an injunction conveys no title to the purchaser, particularly if the purchaser is the one who violated the injunction. Ward v. Billups, 76 Tex. 466, 13 S. W. 308: Morgan v. Engine Co. (Tex. Civ. App.) 274 S. W. 255; 32 C. J. p. 374.

Appellant recognizes this rule of law in a case where the injunction is not void, but contends that the injunction relied upon by appellee was absolutely void, in that the order granting same required a bond in the sum of $1,000 only, and bond was given in that sum, whereas the law requires that in suits to enjoin the collection of a debt the injunction bond shall be fixed by the court in a sum at least double the amount of the debt sought to be enjoined. It is provided in article 4648, R. S. 1925, that: “If the injunction be applied for to restrain the execution of a money judgment or the collection of a debt, the bond shall be fixed in double the amount of such judgment or debt.”

The question of whether the injunction was granted to restrain the collection of a debt is one not easy to determine. But, assuming that it should be so classified, the failure to require a bond in a sufficient amount would not render the injunction void and authorize its disobedience with impunity. Miller v. Clements, 54 Tex. 351; Mansfield v. Ramsey (Tex. Civ. App.) 196 S. W. 330.

The second attack made by appellant upon the injunction is contained in his second proposition, as follows: “A temporary or preliminary injunction granted under the terms> of Arts. 4647 and 4648 of the Revised Civil Statutes is effective o'nly in and for the purposes of the suit in which it is granted, and such an injunction is of no force or effect and obedience to it cannot be enforced in any other court or in any other action in the same court; and the only proof in the case at issue being that a petition was presented to the Judge and an ex parte order granting an injunction against the sale by the trustee endorsed thereon, without notice or hearing, and thereafter such petition filed in the District Court of Fisher County and bond filed and approved by the Clerk of the District Court of Fisher County, and notice of such action given to the trustee who made the sale prior to the time of the sale, and no other action or hearing having been had in the District Court of Fisher County in respect to said injunction, such evidence did not show said sale to be void and did not authorize the District Court of Taylor County in the case at issue to enforce. obedience to said injunction or to treat such sale as void as in violation of such injunction.”

We overrule this contention. There is no showing that the suit in which the injunction was filed in Fisher county had been tried, but we do not believe that fact, or the further fact that, by agreement of the parties, this cause was transferred to and tried in the district court of Taylor county, should affect the validity of the injunction proceeding.

As a further claim that the injunction was void, appellant presents that the trial judge was without jurisdiction to grant it. The petition in the suit in which the injunction was granted alleged the residence of the substitute trustee to be in Howard county and the residence of appellant to be in Dim-mitt county. Article 4656, R. S. 1925, provides, in substance, that writs of injunction shall be returnable to and tried in the proper court of the county of the domicile of the defendant, and that, if there be more than one party against whom a writ is granted, it must be returned and tried in the proper court of the county where either may have his domicile.

In the case of Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., 262 S. W. 736, the Commission of Appeals, speaking through Judge Chapman, held that a suit for injunction could only be brought in the county in which the defendant had his domicile. On rehearing, in (Com. App.) 267 S. W. 688, the original opinion was modified. In the latter opinion it was stated that the original opinion was written under the impression that the suit was purely one for injunction. A .reconsideration led to the conclusion that the action was one in trespass to try title, to which the injunction was ancillary, • and it was accordingly held that in such cases the rule announced in the original opinion did not apply. Appellant stresses the fact that in the opinion in the case last above cited it was shown that the venue of the main cause of action was in the county where the suit was filed, and the opinions, taken together, are interpreted as holding that, even though a suit is not purely one for injunction, but the injunction is ancillary to its main purpose, the question of whether or not the injunction is void is dependent upon whether or not venue in the main cause of action was in the county in which the suit was filed. We cannot agree with this contention. It is a well-established rule that the provisions of article 4656 apply only in cases which are purely suits for injunctions. Where the injunctive relief is an-ciliary to tlie main purpose of tlie action, tlie provisions have no application. International & G. N. Ry. Co. v. Anderson County (Tex. Civ. App.) 150 S. W. 239, 248; Royal Amusement Co. v. Columbia Piano Co. (Tex. Civ. App.) 170 S. W. 278; Evans v. Hudson (Tex. Civ. App.) 216 S. W. 491.

In the instant case the injunction was ancillary to the main purpose of the suit. The district court of Fisher county had jurisdiction of the main cause of action asserted. No showing is contained in the record as to whether a plea of privilege was filed therein. The court’s jurisdiction to issue an injunction ancillary to the main purpose of a suit does not depend upon its having venue, as against a proper plea of privilege, of the cause of action to which the injunction is ancillary. It follows from what has been written that it is our conclusion that the trial court did not err in canceling the deed from the substitute trustee to appellant and decreeing that appellant take nothing by his suit in trespass to try title.

The other controlling question in the case relates to whether or not the transaction between appellant and appellee was usurious. This question is briefed by appellant under three propositions, but we think they may well be considered together. The facts disclose that Easley became indebted to O. W. Gill and assigned the vendor’s lien notes to him as collateral only. After the assignment, Fraser conveyed the land back to Easley. We are not advised of the amount of Easley’s indebtedness to Gill, to secure which the vendor’s lien notes were assigned. Gill desired a payment on the indebtedness owing him by Easley, and the latter made arrangements with appellant to procure a loan of $3,330, for which he executed his promissory note for the principal sum of $3,700, due six months after date, and bearing interest at the rate of 10 per cent, per annum from maturity. To secure'his personal obligation to appellant appellee caused GilLto transfer to appellant three of the vendor’s lien notes held by Gill as collateral. It is true that Gill got the $3,330, and that he executed the transfer of the notes and lien to appellant. It is further true that there was no usury in the vendor’s lien notes. If appellant had purchased these notes from Gill, the question of usury would not have been involved, but he did not purchase these notes. Instead he made a personal loan to appellee, and the vendor’s lien notes were assigned to him by Gill upon appellee’s direction as collateral only. This personal note bore a higher interest rate than the vendor’s lien notes, and was renewed from time to time. We think counsel for appellee have correctly analyzed the transaction in their brief in this language: “The transaction was the same in effect as if Easley had borrowed $3,330.00 from Lindley and had given a mortgage on the lands on which the collateral notes were a vendor’s lien to secure the $3,330.00.” While appellant in his supplemental petition sued upon the collateral note instead of the personal note executed by appellee, still the amount of his recovery could not exceed the real indebtedness owing to him, and the trial court did not err in limiting recovery to that amount.

Finding no error in the record, it is our order that the judgment of the trial court be affirmed.


text:
    C. D. LINDLEY v. J. M. EASLEY et al.
    No. 1099.
    Court of Civil Appeals of Texas. Eastland.
    May 24, 1932.
    Rehearing Denied May 5, 1933.
    Woodward & Coffee, of Big Spring, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.
   HICKMAN, Chief Justice.

This case and case No. 1098(Tex. Civ. App.) 59 S.W.(2d) 927, by the same style this day decided are companion cases. They were tried together in the lower court, and but one statement of facts is brought up on appeal. The only differences between the two cases are in the descriptions of the land involved, amounts and dates of notes, and amounts of payments. There is a stipulation in the transcript in this case, signed by the attorneys and approved by the trial judge, of which the following is a part: “In event the Court of Civil Appeals or‘Supreme Cour,t shall affirm the judgment of the trial court in said Cause No. 1381-b (No. 109S-in this court) it is stipulated and agreed that the Court of Civil Appeals or the Supreme Court shall also affirm the judgment in this cause.”

In accordance with that stipulation, it is ordered that the judgment of the trial court be affirmed.


author: STANFORD, Justice.’ ALEXANDER, Justice GALLAGHER, Chief Justice

text:
    COMMERCIAL STANDARD INS. CO. et al. v. CASTER.
    No. 1325.
    Court of Civil Appeals of Texas. Waco.
    March 30, 1933.
    Rehearing Denied May 4, 1933.
    D. A. Prank and W. Porter Bondies, both of Dallas, and M. D. Jones, of San Antonio, for appellants.
    H. Ci Carter, Randolph Carter, C. G. Carter, and P. J. Lewis, all of San Antonio, for appellee.
   STANFORD, Justice.’

This is a suit by Paul M. Caster against Frank L. Norton and Commercial Standard Insurance Company, defendants, brought to recover damages on account of personal injuries alleged, to have been received in a collision between a truck driven by the employees of the said Prank L. Norton on or about May 19, 1930, in which appellee, Paul M. Caster, lost his left arm, same being entirely torn from his body. Commercial Standard Insurance Company was joined as a defendant, plaintiff alleging that said company had issued a policy of liability insurance for the protection of defendant Prank L. Norton 'to the extent of $5,000 for damages resulting to one person from collision and that said contract inured to the benefit of plaintiff to the extent of another $5,000.

The cause was submitted to the jury upon the following special issues:

I. “Did the defendant or his employees cause or permit a boomer handle to protrude from the left hand side of the truck on the occasion in question?” To which the jury answered: “Yes.”
2. “.Was it negligence for the defendant or his employees to cause or permit the boomer handle to protrude from the left hand side of the truck, if you find such to be the case?” To which the jury answered: “Yes.”
In connection with question No. 2, and the following questions you are instructed, “neg: ligence is the failure to exercise ordinary care; and ordinary care is that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances.”
3. “Did such negligence, if any, directly cause the accident and any injury to the plaintiff, as alleged in the petition?” To which the jury answered: “Yes.”
4. “At the time of the accident did the defendant’s employee operate the motor truck in question upon its left side of the highway?” To which the jury answered: “Yes.”
5. “Was it negligence to operate the motor truck upon its left side of the highway, if you find such to be the case?” To which the jury answered: “Yes.”
6. “Did such negligence, if any, directly cause the accident, and any injuries to the plaintiff as alleged in the petition?” To which the jury answered: “Yes.”
7. “Did the defendant’s employee operate said truck so close to plaintiff’s automobile that the attachments on the truck struck plaintiff’s arm?” To which, the jury answered: “Yes.”
8. “Then dicl this constitute negligence?” To which the jury answered: “Yes.”
9. .“Did such negligence, if any, directly cause the accident and any injuries to the plaintiff as alleged in the petition?” To which the jury answered: “Yes.”
10. “Did the defendant’s employee cause or permit the chalk or block on the rear bolster to protrude out beyond the side of the truck?” To which the jury answered: “Yes.”
11. “Then did this constitute negligence?” To which the jury answered: “Yes.”
12. “Did such negligence, if any, directly causé the accident and injuries to the plaintiff?” To which the jury answered: “Yes.”

In all the remaining special issues the jury answered that the plaintiff was not guilty of contributory negligence. The court defined “contributory negligence,” “proper lookout,” and “unavoidable accident,” as follows:

“In connection with question No. 13 and the following questions, you are instructed that the term ‘contributory negligence’ as used in this charge means, ‘negligence on the part of the plaintiff' which directly contributed to cause the accident and the injury.’ ”
“In this connection, you are instructed that a ‘proper lookout’ is such a lookbut as an ordinary prudent person would keep under the same or similar circumstances.”
“In this connection, you are instructed that an ‘unavoidable accident’ is an accident not caused by negligence of either party.”
“If, in response to the foregoing questions, you have answered that the defendant’s employee was negligent, and that such negligence, if any, caused the injury to the plaintiff, and if you have also answered that the plaintiff was not guilty of contributory negligence, then you will answer the following question; otherwise, you need not answer the following question”:
No. 34: “What amount of damages, if any, would, if paid now, reasonably compensate the plaintiff, Paul M. Caster, for the injuries, if any, sustained by him which are shown by the evidence?” To which the jury answered: “$10,000.00.”

Upon the above findings of the jury, the court entered judgment in favor of plaintiff and against defendant Prank L. Norton for $10,000, $5,000 of which was assessed against both defendants jointly and severally, and $5,000 against Prank D. Norton alone. Motion -for new trial was duly filed and overruled, to which the defendants duly excepted and gave notice of appeal, and said cause is here presented to this court for review.

Opinion.

Under appellant’s first assignment of error it contends that the court erred in failing to define the terms used in 'Said charge and to give a proper definition of “burden of proof,” “preponderance of the evidence,” “negligence,” “proximate cause,” “unavoidable accident,” “sole cause,” and “directly caused.” This assignment of error is multifarious and is not entitled to be considered. A good assignment points out and identifies a single part of the proceedings, and, if an assignment asserts that the court erred in two or more different parts of the proceedings upon which arise different questions, it is multifarious and comes under the condemnation of the rules. The above assignment complains of seven alleged errors in one assignment. It violates the rule requiring each error relied upon to be expressly and distinctly specified and that no assignment shall express more than one specification of error. Karotkin Furniture Co. v. Decker (Tex. Com. App.) 50 S.W.(2d) 795; Cammack v. Rogers, 96 Tex. 457, 73 S. W. 795; Clarendon Land Investment Agency Co. v. McClelland Bros., 86 Tex. 187, 23 S. W. 576, 1100, 22 L. R. A. 105; Ferguson v. Washburn (Tex. Civ. App.) 4 S.W.(2d) 574, 575; Phœnix Furniture Co. v. Kay (Tex. Civ. App.) 10 S.W.(2d) 422, 424; Belt v. McGehee (Tex. Civ. App.) 9 S.W.(2d) 407; Myers v. Walker (Tex. Civ. App.) 8 S.W.(2d) 550; Jones v. Williams (Tex. Civ. App.) 14 S.W.(2d) 300 (writ refused).

While this assignment is clearly multifarious and the propositions thereunder are not entitled to consideration, yet we will briefly discuss same. It will be noticed that appellant contends it vyas the duty of the court to define “burden of proof,” “preponderance of evidence,” “proximate cause,” “unavoidable accident,” “sole cause,” and “directly caused.” Usually it is the duty of the trial court to instruct the jury upon whom the burden of proof rests, but it is never the duty of the court to define the term “burden of proof,” and the same may be said of “preponderance of evidence.” The court often instructs the jury, in effect, that their verdict should be based upon the preponderance of the evidence, but the court seldom, if ever, defines “preponderance of the evidence.” The court did not define the term “proximate cause” because said term was not used in the court’s charge. It was not necessary to define “sole cause.” The question of sole cause was not involved in this case. Neither do we think it was the duty of the court to define the term “directly caused,” in that such term is not a legal term and is so simple and clear in its meaning that it was not necessary for the court to undertake to define same. The 'court did define in this case, and correctly so, the terms “negligence,” “ordinary care,” “contributory negligence,” “proper lookout,” and “unavoidable accident,” and we think the court’s instruction defining all of these terms was correct.

In the case of Robertson & Mueller v. Holden, 1 S.W.(2d) 570, Judge Speer of the Commission of Appeals, said;

“While court need not define in its instructions, ordinary words of simple meaning, those terms which in law have a distinct fixed meaning which an ordinary person would not readily understand should, upon proper request, be defined under Vernon’s Ann. Civ. St. 1925, art. 2189, requiring explanations and definitions of legal terms in cases submitted on special issues.”

It is evidently true that the term used in the charge in the present case, “directly caused,” is as simple a term and as clear in its meaning as it could be made. This being true, it was wholly unnecessary for the trial court to define sqid term, or to attempt to do so. “Directly caused” or “directly caused the injury,” employs ordinary words of simple meaning — those which an ordinary person would readily understand. This being true, why should the meaning of the term “directly caused” be beclouded by a long complicated attempt to define what needs no definition? In fact, we think it very clear that instead of using the term, “proximate cause,” the court was correct in using the term “directly caused.” If the court had used the term “proximate cause,” and defined same as it is usually defined, which requires a very lengthy and complicated instruction, and in defining “proximate cause” had been required, to define also “new and intervening cause,” as included in “proximate cause,” the definition of said two terms would have been exceedingly complicated and difficult to understand, and doubtless would have required numerous instructions involving the definition of “proximate cause” and “intervening cause”; but by coming directly to the point, as the trial court did, and by using the term “directly caused,” rendered said term simple and easy to bq understood, and obviated the necessity of attempting to define something that needed no definition, and was about as clear as any term could be expressed. The term “directly caused” has been used by the appellate courts of this' and other states frequently in the place of “proximate cause.” In Meyer v. Milwaukee Electric R. & Light Co., 116 Wis. 336, 93 N. W. 6, 8, the Supreme Court of Wisconsin, said: “It is not essential that the negligence should be the direct cause of the injury. » ⅜ * It is apparent, however, that all of these imperfections or errors in the instruction are favorable to the appellant. They require the jury, in order to ascribe the injury to its negligence, to go further than the. law requires; hence they could not have been prejudicial to the appellant in bringing about the affirmative answer.”

In other words, in the ease cited, the Supreme Court of Wisconsin held that it was not error for the trial court to inquire if the negligence was “the direct cause” of the injury. To the same effect are the decisions in Alamo Iron Works v. Prado, (Tex. Civ. App.) 220 S. W. 282, 289 (writ dismissed); Missouri, K & T. Railway Co. v. Lyons (Tex. Civ. App.) 53 S. W. 96, 97 (writ refused); Galveston, H. & S. A. Railway Co. v. Averill (Tex. Civ. App.) 136 S. W. 98 (writ refused); and Texas & N. O. Railway Company v. Black (Tex. Civ. App.) 44 S. W. 673 (writ refused).

As said by the Court of Civil Appeals in Alamo Iron Works v. Prado, supra, “We do not, as said in Railway v. Oram [(Tex. Civ. App.) 92 S. W. 1029], supra, with respect to a failure to define proximate cause, see how the jury could have been misled by the failure to give a charge defining direct cause in this case. Direct cause needs no definition to define it, yet its meaning might be amplified; but we do not think the court erred in this ruling.”

This case was dismissed by the Supreme Court for want of jurisdiction.

In the case of Missouri, K. & T. R. Co. v. Lyons, supra, Judge Einley of the Court of Civil Appeals, said: “It is urged, first, that the use of the word ‘directly’ conveyed an erroneous impression, it being a stronger word than ‘proximately.’ We are cited to no case holding the use of the term ‘directly’ in such a charge to be error. * * * The term ‘directly’ is synonymous with the word ‘immediately,’ and in this sense denotes closeness of connection, next in order, etc. In 3 Rap. & M. Ry. Dig. p. 244, we find cited two West Virginia cases sustaining the use of the term ‘directly.’ Riley v. Railroad Co., 27 W. Va. 145; Cawley v. Railroad Co., 31 W. Va. 116, 5 S. E. 318. It is manifest that the jury could not have been misled by the expression.”

In the case just cited, a writ of error was refused by our Supreme Court.

In the case of Galveston, H. & S. A. R. Co. v. Averill (Tex. Civ. App.) 136 S. W. 98, at page 100, the court said: “There was no error committed by the court in charging that: ‘By proximate cause, as used in this charge, is meant the direct cause, without which the injury would not have happened.’ ”

In this case a writ of error was denied by our Supreme Court. In the case at bar there does not appear to be any suggestion of an intervening agency between the act and the result and if the defendant did the act, as found by the jury, the injury was the natural -and logical result thereof. The term “directly caused” was much more favorable to the defendant than would have been the term “proximately caused,” and wfe do not think the defendant has any right to complain. Appellant’s first and second propositions are overruled.

Under appellant’s propositions Nos. 3 and 3-A it is contended that the court committed error in the manner of submitting special issues. The record shows there were 12 special issues comprising four groups given to determine if appellant was guilty of negligence in any one of said groups. The jury found appellant was guilty of negligence in respect to the matters about which inquiry was made in each of said groups, and that such negligence directly caused, the injuries. Additional special issues were given to determine if appellee was guilty of contributory negligence in respect to the matters about which inquiry was made. In each of said last named issues the jury found appellee was not guilty of contributory negligence. It will thus be seen that all the issues, those establishing against appellant liability for damages, and those exonerating appellee from any contributory negligence, were given, fixing the rights and liabilities of the parties before the charge dealing with the amount of damages, if any, was presented to the jury. The charge is not open to the criticism made by appellant, D. & H. Truck Line v. Hopson (Tex. Civ. App.) 4 S.W.(2d) 1013; D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 601; Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423. The Lavallee charge .reads: '“If, in response to the foregoing issues, you have answered that the defendant’s employee was negligent and that such negligence caused the collision, and if you have also answered that the plaintiff was not guilty of contributory negligence, then you will answer the following question ; otherwise you need not answer the following question.”

To the same effect are the charges in the Hopson Case above referred to, and also the Longoria Case to which reference is made above. We have carefully examined the questions here raised and find that no error is shown in connection with the submission of special issues, as alleged by appellant. Appellant’s propositions 3 and 3-A are overruled.

Appellant's propositions 5 to 10, inclusive, will be considered together. We will not be able to consider all these propositions at length, but only briefly in the interest of brevity. The insurance policy, which had been issued to cover the truck involved in this accident and which was being operated as a motor carrier, was filed with the Railroad Commission for the protection of the public as required by law, and the insurance company was accordingly made a party defendant, in this suit. The statute under which the insurance policy was issued and filed with the commission is article 9111» of section 13, Vernon’s Annotated Civil Statutes, and the law provides that before any motor carrier can operate, he shall file with the commission a policy of insurance which obligates the insurance company to pay all judgments which may be recovered against the motor carrier, and such judgment must be paid by the insurance company “irrespective of the solvency or insolvency of the motor carrier.” The statute also provides that the insurance policies must be kept in effect at all times “so as to provide continuous and unbroken protection to the public having legal claims against such motor carrier.” The statute also provides that if the operator of the truck leaves the state so that he cannot be sued jointly with the insurance company and a judgment cannot be obtained against him, then the injured person can sue the insurance company alone without joining the truck operator and force the insurance company to pay the damages. In other words, the statute makes it clear that the insurance was for the protection of the public — that it was liability -insurance creating a direct and an enforceable obligation on the part of the insurance company — in favor of the insured person. The very fact that the law requires insurance shows per se that the Legislature considered it a matter of public concern, and that it was for the protection of the public, inuring directly to the benefit of the insured person. Further, the policy also provides that the insurance company will take entire charge of all claims and defend all suits and the evidence shows that the company is conducting the' defense of this suit, as provided by the policy. In this case a judgment has been obtained against the motor, carrier (Norton) and the appellants do not deny that the policy of insurance legally obligates the insurance company to pay said judgment as per the obligations of said policy. The insurance was required by law and it is inconceivable that the lawmakers in passing legislation to protect the lives and property of the citizens would require each injured person, in seeking recovery on the insurance given for his protection, to bring and maintain two successive suits instead of one. All such statutes and policies of insurance are construed most favorably to the public and beneficiaries, and most strongly against the insurer. Appellants do not cite a single ease holding that it was improper to join the insurance company in this case. In American Fidelity & Casualty Co. v. Williams (Tex. Civ. App.) 34 S.W.(2d) 396, 402 (writ of error denied -by Supreme Court), it is expressly held that it is .proper to join the insurance company upon a policy filed with the Railroad Commission by a motor car operator. To the same effect is the holding in 5 Tex. Jur. 580 and 622; American Indemnity Co. v. Burrows Hardware Co. (Tex. Civ. App.) 191 S. W. 574; Commercial Union Assur. Co. v. Preston, 115 Tex. 351, 282 S. W. 563, 45 A. L. R. 1016. Our construction of section 11 of the Motor Bus Act (article 911a) is to require the operators of such public service vehicles to procure liability insurance rather than indemnity insurance. The language of the section is, in our opinion,. clear upon that point. The Railroad Commission’s Order also requires liability insurance. 5 Tex. Jur. 661, 662. One of the leading Texas cases on this subject is American Auto. Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534 (writ refused), where it is held proper to join the insurance company in a suit against a service car operator, the insurance having been given under the requirements of a city ordinance. The Supreme Court denied a writ of error in that case and sustained a joint judgment against the service car operator and the insurance company. The rule has often been announced in Texas, that, “when two causes of action are connected with each other, or growing out of the same transaction, they may be properly joined, and in such suit all parties against whom the plaintiff asserts a common or an alternative liability, may be joined as defendants.” See Clegg v. Varnell, 18 Tex. 294; Love v. Keowne, 58 Tex. 191; Jones v. Ford, 60 Tex. 127. It was proper in this case for the insurance company and Norton to be joined as defendants. See Pickens v. Seaton (Tex. Civ. App.) 51 S.W.(2d) 1050; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662 (writ dismissed); American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, par. 3 (writ refused); Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423 (writ dismissed). These propositions from 5 to 10 are hereby overruled.

Under appellant’s thirteenth proposition it is contended that “it was entirely improper to allow the plaintiff’s counsel to state to the jury that issues Nos. 1 to 12 are the plaintiff’s issues, and that issues 13 to 33 present the questions as to whether the plaintiff was guilty of contributory negligence, and to answer the first 12 questions ‘Yes’ and the 13th on down through the 33rd ‘No,’ because thereby counsel informed the jury as to the effect of their verdict and the said argument was outside the record and improper.” There is nothing in the record to indicate that any part of the argument was outside the record, nor that any part of it was improper. In Dallas Railway & Terminal Co. v. Bankston, 51 S.W.(2d) 304, at page 310, the Commission of Appeals said: “Much latitude is allowed an attorney in presenting his client’s cause to the jury. Broadly speaking, counsel may exercise the right to advise the jury how, in his opinion, from the evidence, the issue submitted should be answered. He may specifically say issues from 1 to 20 should be answered ‘Yes,’ or issues from 21 to 35 should be answered ‘No,’ but it would be highly improper for counsel to appeal to the jury that if they wanted plaintiff or defendant to recover in the suit to answer the issues in a certain way.”

It will thus be seen that the case cited last above is directly in point, and, according to said holding of our Supreme Court through the Commission of Appeals, no error is here shown. This proposition is overruled.

We have carefully considered all of appellants’ propositions bearing upon the question of argument and do not think that any error is shown in any of them.

All of appellants’ propositions are hereby overruled and this cause affirmed.

ALEXANDER, Justice

(c&ncurring).

The most serious question in this case is that raised by the appellants in their second assignment of error. The court, in the first and second issues submitted to the jury, inquired whether a “boomer handle” was permitted to protrude from the side of appellant Norton’s truck, and, if so, whether the same was negligence. The third issue submitted was as follows: “Did such negligence, if any, directly cause the accident and any injury to the plaintiff, as alleged in the petition.”

By another group of questions the court inquired whether defendant’s employee operated the truck upon the left side of the road, whether this was negligence, and whether such "negligence directly caused the accident, etc., and by a third group the court inquired whether said employee operated the truck so close to plaintiff’s automobile that the attachments on the truck struck plaintiff’s arm, whether this was negligence and whether such negligence directly caused the accident or any injury to the plaintiff, etc. The jury answered each of said groups of issues in the-affirmative. Appellants objected to the submission of said third issue and to the similar issue in each of said groups of issues as follows:

“Said question submits an immaterial issue to the jury, — -the proper issue to submit being as to whether or not the said negligence was the proximate cause of the plaintiff’s injuries, and the giving of said special issue is prejudicial to the defendant.”

The court overruled said objection and did not submit in his charge any issue of whether either of said acts of negligence was the proximate cause of appellee’s injuries. The action of the court in overruling said objection constitutes the basis of -appellants’ said second assignment of error.

I am of the opinion that the court did nor err in so submitting the issues. The term “directly” is a stronger term than “proximate” and the court, by using the phrase “directly caused” instead of “proximate cause” as requested by appellants, placed a greater burden on the appellee than was required by law. If the appellee was willing to assume this extra burden, the appellants have no right to complain.

The appellants are apparently of the opinion that the court should have submitted the issue as to whether such negligence was the proximate cause of plaintiff’s injury and that such issue should have been followed by such definition of “proximate cause” as would have excluded any intervening agency and have required the jury to find that the injury sustained by plaintiff, or some similar injury, ought to have been foreseen as the probable result of the negligent act. The finding of the jury, however, that such negligence “directly caused” the injury to plaintiff excluded the idea of any intervening agency. Moreover, the evidence did not raise the issue of intervening agency and there was, therefore, no need for a charge thereon. Greer v. Thaman (Tex. Com. App.) 55 S.W.(2d) 519, par. 6. Whether or not the injury to plaintiff should have been foreseen was not material in determining whether or not the negligent act complained of caused the injury. Causation or whether or not an act caused a given result is not dependent on “foreseeability.” “Foreseeability” is material in determining the existence of negligence, for if one could not foresee that injury would result to another as the consequence of his acts, he would not'be guilty of negligence; but whether or not the injury could have been foreseen has nothing to do with the problem of whether the act complained of caused the injury. Whether or not a given act caused the injury complained of can be determined as well without knowing whether the result could have been foreseen as a probable consequence of the act as it could with knowledge of such act. See Texas Law Review, Vol. 1, page 240.

If the appellants desired to have the jury informed that the driver of the truck was not guilty of negligence in doing the things that he did, if he could not have foreseen or anticipated that injury would result therefrom, they should have requested the court to so charge the jury in connection with the definition of “negligence,” or should have objected to the court’s charge for the failure to so instruct the jury. The mere objection that the court failed to submit the issue of whether the defendant’s negligence was the proximate cause of the injury was not sufficient where the court submitted the issue as to whether such negligence was the “direct cause” of such injuries. Whether or not the defendant’s negligent acts directly caused the injury to the plaintiff was a material issue, and since the court submitted the same to the jury it was not necessary for the court to submit to the jury the issue of whether such negligent acts proximately caused plaintiff’s injuries.

I am of the opinion that none of the other assignments present reversible error, and I therefore concur in the affirmance of the judgment of the trial court.

GALLAGHER, Chief Justice

(dissenting).

I am not in accord with the majority of the court in their disposition of appellants’ second assignment of error. The trial court, in the first and second issues submitted to the jury, inquired whether a “boomer handle” was permitted to protrude from the side of appellant Norton’s truck, and if so, whether the same was negligence. The third issue submitted was as follows: “Did such negligence, if any, directly cause the accident and any injury to the plaintiff, as alleged in the petition?”

The jury answered each of said group of issues in the affirmative. Appellants objected to the submission of said third issue, as follows: “Said question submits an immaterial issue to the jury, — the proper issue to submit being as to whether or not the said negligence was the proximate cause of the plaintiff’s injuries, and the giving of said special issue is prejudicial to the defendant.”

The court overruled said objection and did not submit in his charge any issue of whether said act of negligence was the proximate cause of appellee’s injuries. The action of the court in overruling said objection constitutes the basis of appellants’ said second assignment of error. It is not understood that there is any contention that said assignment is not sufficient to invoke a ruling of this court on the issue presented therein. Neither is it understood that there is any contention that said objection was not sufficient under the rules of practice to require the trial court to amend his charge to meet the same, if appellants were entitled to such amendment. See St. Louis, S. F. & T. Ry. Co. v. Green (Tex. Com. App.) 37 S.W.(2d) 123, 125, par. 5, and authorities there cited.

The term “proximate cause” has been variously defined. We quote in this connection the definition given by our Supreme Court in the case of Gonzales v. City of Galveston, 84 Tex. 3, 7, 19 S. W. 284, 285, 31 Am. St. Rep. 17, as follows: “By ‘proximate cause,’ we do not mean the last act of cause, or nearest act to the injury, but such act, wanting in ordinary care, as^ actively aided in producing the injury, as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause, such as might reasonably have been contemplated as involving the result, under the attending circumstances. Eames v. Railway, 63 Tex. 664, 665; Jones v. George, 61 Tex. 353 [48 Am. Rep. 280]; Seale v. Railway, 65 Tex. 277, 278 [57 Am. Rep. 602]; Brandon v. Manufacturing Co., 51 Tex. 128; 1 Thomp. Neg. 144; 2 Thomp. Neg. 1100, § 12 and note; 1 Suth. Dam. 20, 22.” (Italics writer’s.)

Assuming that the submission of the issue of whether appellant Norton’s negligence was the “direct cause” of appellee’s injuries was sufficient on other phases of the definition above quoted, it is clear that it wholly failed to include the element of anticipation of possible injury as a result thereof. The importance of such element in determining the issue of proximate cause is forcibly stated by our Supreme Court, speaking through Chief Justice Phillips, in Galveston, H. & S. A. R. Co. v. Bell, 110 Tex. 104, 106, 216 S. W. 390, 391, as follows: “The test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act.”

The rule so announced is supported by a practically unbroken line of decisions of our Supreme Court and the Commission of Appeals. St. Louis, S. F. & T. Ry. Co. v. Green, supra, par. 4, and authorities there cited; Union Stockyards v. Peeler (Tex. Com. App.) 37 S.W.(2d) 126, 128, pars. 3 and 4; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 670, pars. 2 and 3, 27 A. L. R. 927; Payne v. Robey (Tex. Com. App.) 257 S. W. 873, 875, par. 2; Dallas Railway Co. v. Warlick (Tex. Com. App.) 285 S. W. 302, 304, par. 2; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 225, 38 S. W. 162; Gulf, C. & S. F. Ry. Co. v. Rowland, 90 Tex. 365, 370, 38 S. W. 756; International & G. N. R. Co. v. Walters, 107 Tex. 373, 377, 179 S. W. 854.

The majority opinions in this case hold that the action of the court in submitting whether appellant Norton’s negligence was the “direct cause”'of appellee’s injuries was more favorable to appellants than the submission of a proper issue of proximate cause would have been, and that appellants’ objection tS such submission was therefore without merit. The effect of such holding is to deny appellants the right to require as a condition precedent to liability herein, a finding of the jury that appellee’s injuries ought to have been reasonably anticipated as a result of permitting the boomer handle to protrude from the side of the truck.

In all the cases cited in the original opinion, the question under consideration seems to have been causal connection, rather than anticipation of resulting injury.

The jury found that several acts on the part of appellant Norton’s employees constituted negligence. In each instance the court submitted whether such negligent act was the •‘direct cause” of appellee’s injuries and like objection to such submission was made by appellants. The above discussion is therefore applicable in each such instance.

This case should, in the opinion of the writer, be reversed and remanded on appellants’ .second assignment of error.


author: BOND, Justice.

text:
    MORRISS-BUICK CO. v. DAVIS.
    No. 11201.
    Court of Civil Appeals of Texas. Dallas.
    April 1, 1933.
    Rehearing Denied April 29, 1933.

      Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for appellant.
    W. J. Rutledge, Jr., of Dallas, for appel-lee.
   BOND, Justice.

This suit was filed on May 19, 1931, in a district court of Dallas county by appellee, Wirt Davis, herein called plaintiff, against appellant, Morriss-Buick Company, a corporation, herein called defendant, to recover $2,-780, alleged to be due for the last two months rental on premises leased by plaintiff to defendant for a term beginning August 14, 1924, and ending August 14, 1929.

The contract is evidenced by a written instrument dated January 5, 1924, and the covenants therein, pertinent to this appeal, provide that the lease was for a term of five-years, to begin' at the date a building, which plaintiff agreed to construct, should be completed and ready for occupancy; that defendant was to pay the sum of $69,000, payable in installments of $1,050 cash, to cover the first month’s rent, $1,050 per month for the following 35 months, and $1,300 for the last 24 months; (by mutual agreement, the last installments were increased by $90 per month, due to' certain improvements made to the building), and that “(7) in the event the-building herein leased is n'ot completed and ready for. occupancy by May 1st, 1924, lessee agrees to accept the building when it is completed and * * * provided that should said building not be ready for occupancy by June 1, 1924, lessor shall pay liquidated damages at the rate of Six Hundred Fifty Dollars ($650.-00) per month or any fractional part there-, of.”

The building was completed and the lessee began occupancy on August 14, 1924, and paid all installments of rent, except for the last two months of said five-year period, which payments were refused, because of the failure of the lessor to pay the liquidated damages for the three and one-half months from May 1, 1924, to August 14, 1924.

Trial was had before the court without a jury and judgment rendered in favor of plaintiff against defendant, for the sum of $2,954.25, the amount, of the last two installments of rent, together with interest thereon from the date such payments were due at the rate of 6 per cent. Defendant appeals.

Defendant assigns error on the action of the court in overruling its application for continuance, based upon the absence of one Morriss, «president and general manager of defendant company, a witness for defendant, and whose testimony is alleged to be material to identify records of his company, and to testify as to their contents, which would tend to show “that the period of said term of said lease sued on began on or about September 16, 1924, in that the building was not completed until on or about said date, as provided by said lease, and that the payments were made for rentals as alleged in defendant’s first amended original answer filed herein, and particularly set out in paragraph III thereof, and that this defendant did not occupy said building beyond the period and term of said original lease of five years, and that the calculations heretofore made by defendant with respect to the date of the beginning and termination of said lease were due to mistakes inadvertently made, as set out in paragraph II of said answer.

The “records” which is alleged the absent witness would “identify and testify as to their contents” were not attached to the application or exhibited to the court. The court could hardly be expected to determine the importance of the “records” or the testimony of the absent witness “as to their contents,” by such general allegations. The records evidently would have shown their'importance and the contents thereof would have spoken for themselves. Their identity and contents dould hardly have been questioned. Notwithstanding the insufficiency of the allegations, the court heard evidence on the application and embodied its findings in the judgment of the court.

On the hearing, the record shows that it was a second application for a continuance, that the absent witness had no connection whatever with the defendant company until four years after the making of the lease contract, and no contention was made that the facts alleged could not be supplied from other sources.

It is an elementary rule of law that a motion for continuance, which is not the first application, rests within the sound discretion of the trial court; , accordingly, the trial court exercised that discretion and overruled the application. This court would not be warranted in setting aside the order of the court thereon unless an abuse of the discretion was clearly shown, which we think was not done in this case.

The defendant further assigns error to the action of the trial court in sustaining plaintiff’s special exception directed to paragraph IV of defendant’s amended answer and, in effect, holding that the claim embodied therein was, in law, a cross-action seeking to recover damages which occurred more than four years prior to the filing of such pleadings, and was accordingly barred by the four years’ statute of limitation.

Defendant filed its said amended answer on August 29, 1931, and said paragraph IV reads:

“For further special answer, if need be, this defendant would show unto the court that under the terms and conditions of said written lease sued on by plaintiff herein, it was provided that plaintiff should build on his said property, a certain business building. to be agreed upon, for the occupancy of defendant, lessee in said contract of lease, and it was expressly agreed and understood in said contract that the term of said lease should actually begin and operate from the date when said building should be, by plaintiff, duly completed and made in readiness for occupancy by defendant lessee, and that plaintiff expressly agreed that in the event plaintiff should not have said building in readiness for occupancy by June 1st, 1924, that the lessee would be entitled to charge against the plaintiff and the rentals due thereon liquidated damages at the rate of Six Hundred and Fifty ($650.00) Dollars per month, or any fractional part thereof, covering said time after June 1st, 1924, wherein the plaintiff shall have failed to complete said building and have the same in readiness for the occupancy of the defendant lessee. That said building was not completed and ready for occupancy until on or about September 16th, 1924, or for a period of three and one-half (3-1/2) months or approximately three and one-half (3-1/2) months after the date when plaintiff had contracted and •agreed to complete said building for occupancy and that thereby plaintiff became obligated under the contract, to permit an offset in liquidated damages to the amount of 3-1/2 months at $650.00 per month, or a total of Twenty-Two Hundred ($2200) Dollars; and defendant charges that the matter was carried along between the parties without application of said credit by the parties expressly, but the defendant,, within due time and before the completion of said contract and the final termination -thereof, did offset said $2200.00 against alleged rentals due by plaintiff under the terms of said lease. That by reason of the facts, circumstances and conditions of said contract as aforesaid, and the application of said liquidated damages, which plaintiff was obligated to allow against said rent, and the common account running between plaintiff and defendant, said rentals alleged to be due by the plaintiff have been absorbed and the defendant is entitled to have the same off-set and balanced as fully paid, by reason of the terms thereof. Wherefore, defendant prays that plaintiff take nothing by his claim, and that the defendant go hence without day and recover its costs in this behalf expended.”

Defendant’s contention is, that the said allegations do not set up a cause of action for affirmative relief, but that they merely assert the right to reduce plaintiff’s demand by reason of a breach .by plaintiff of covenants of the contract, on which the plaintiff’s cause of action is based.

The allegations in said answer are merely deductions which the defendant has drawn from the covenant in the lease contract, in which is stated “that lessor shall pay liquidated damages at the rate of Six Hundred and Fifty ($650.00)' Dollars per month, or any fractional part thereof” from jJíay 1, 1924, until the building was ready for occupancy. The covenants in the lease do not admit of the deductions that the lessee would be entitled to charge the liquidated damages provided therein against the rentals due under the lease contract. The answer quoted is an independent action in the form of a set-off, or counterclaim, seeking to recover damages based on a breach of the covenant which occurred more than four years prior to the filing of such answer, and is therefore barred by limitation. Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S. W. 434, 436; Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex. Civ. App. 61, 52 S. W. 629. In the case of Nelson v. San Antonio, etc., supra, the Supreme Court used this language: “The conclusion then is necessarily reached that if it was the subject of an independent action by the traction company against Nelson, and did not constitute payment to Nelson for any part of the contract made with the traction company, the statute of limitation would begin to run from the time each item of the claim against Nelson originated; and, if due and payable more than four years before the institution of the action by Nelson against the traction company, such claims of the traction company were barred by the statute of limitation.

We have examined the record carefully and believe that the rights of defendant’ were fully protected by a fair and impartial trial court. No error has been committed, either in overruling defendant’s application for a continuance, or the action of the court on plaintiff’s demurrers. Therefore, the judgment is affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    CITY OF WACO v. KILLEN et al.
    No. 1307.
    Court of Civil Appeals of Texas. Waco.
    March 30, 1933.
    Rehearing Denied May 11, 1933.
    John McGlasson, of Waco, and Geo. Morrow, of Dallas, for appellant.
    McClellan, Lincoln & Williams, of Waco, for appellees.
   ALEXANDER, Justice.

This is a second appeal of the same case. See (Tex. Civ. App.) 20 S.W.(2d) 409; Id. (Tex. Com. App.) 35 S.W.(2d) 134. The action was brought by Hazel Darnell against the city of Waco to recover damages for personal injuries alleged to have been sustained by her while riding in an automobile. Miss Darnell later married A. V. Killen, who joined with her in the prosecution of the suit. The plaintiffs alleged, in substance, that on the occasion in question Miss Darnell was proceeding southward on South Fifth street in the city of Waco in an automobile driven by Miss Clark, that Miss Clark turned the automobile to the left off of South Fifth street into Cleveland street in an easterly direction, and that in doing so the automobile struck a stump ,in Cleveland street, thereby inflicting the injuries complained of. It was alleged that the city was negligent in allowing the stump to remain in or near Cleveland street without providing some protection to prevent automobiles striking it. The city, among other things, alleged that the stump was not located within the street, but was situated on private property to the south of the street, and, further, that the injuries complained of were due to the negligence of Miss Clark in the operation of the automobile.

It was a material issue in the case as to whether or not the stump in question was located in Cleveland street or to the south thereof on private property. South Fifth street runs north and south, and Cleveland street runs east from South Fifth street to South Fourth street. It appears that many years ago Cleveland street was left open as an alley or street hy the adjoining property owners and that it was irregular in width. ' The north line thereof appears to have been straight and ran at right angle to Fifth street. The property on the south side of said street formerly belonged to Br. Sears. He built a crooked fence along or near the north line of his property and the south line of Cleveland street so as to leave the street or alley about 37 feet in width at the place where it intersected South Ftourth street and about 22½ feet in width where it intersected South Fifth street. In the fence line on the north side of the Sears property and the south side of Cleveland street, near South Fifth street, there was a bois d’arc tree to which the fence was attached. In 1918, the Sears property was sold and the fence removed, and some time thereafter the tree was cut down, leaving a large stump about 12 inches in height above the ground. Thereafter R. D. Roman, who had become the owner of the Sears property, prepared to build an apartment house thereon, immediately on the south side of Cleveland street and fronting on South Fifth street, but was stopped by the city officials on their claim that the ground on which- he proposed to erect the building included a part of Cleveland street belonging to the city. -The city engineer made a survey of the street and the adjoining property and prepared and filed a plat thereof with the city, showing Cleveland street to be of the uniform width of 37 feet from South Fifth street to South Fourth street. In order to make Cleveland street as wide a's indicated by the city engineer, it would have been necessary fox- the city to have included therein 14½ feet off of the north side of the property claimed by Roman at the intersection of South Fifth street, which would have placed the stump well within the stx-eet. There was evidence that after said survey was made the mayor and the four city commissioners went with Mr. Roman and viewed the property, and that they then and there agreed with each other on the street line, under the terms of which it was agreed that said street should be recognized as being 27½ feet in width from South Fifth street to the rear of the Roman property. In order to do this, it was necessary for the city to take part of the property claimed by Roman near the front of his lot on South Fifth street and for Roman to take a part of the property claimed by the city near the rear end of his lot. The effect of this agreement was to place the bois d’arc stump 2 or 3 feet inside of Cleveland street. At and prior to the accident in qxxestion the city maintained as the graded portion of Cleveland street a strip about 20 feet wide; the graded portion thereof lacking about 6 inches of going to said stump.

The trial was before a jury on special issues. The jury found (a) that the stump was not located north of or outside of the old fence heretofore referred to; (b) that in 1922 there was an actual bona fide dispute between the city of Waco and Roman as to the boundary line between Cleveland street and the Roman property; (c) that the city, through its commissioners, had an oral agreement with Roman fixing such boundary line; (d) that under such agreement the stump was located on the north of said line, or within Cleveland street, and not on private property ; (e) that the stump obstrxicted the, traveled portion of said street at the time of the accident; (f)' and the city had knowledge thereof; (g) and was negligent in permitting the stump to obstruct the street; (h) which negligence was a proximate'cause of the injuries in question; (i) that the stump was located in such close proximity to the traveled portion of the street that it affected the safety of those using the street for travel in automobiles; (j) and the city had knowledge thereof; (k) and was negligent in allowing the stump to remain so located; (1) which negligence was a proximate cause .of the injuries in question; (m) that it was negligence for the city to fail to erect a curb, guard, barrier, or railing at or near the stump, which negligence was the proximate cause of the injuries in question. The jury acquitted Miss Clark, who was driving the automobile, of all acts of negligence, and assessed plaintiff’s damages at $8,000. Judgment was entered for plaintiffs accordingly. The city of Waco appealed.

The appellant in its first assignment of error complains of a large part of the argument made by counsel for appellee in his closing argument to the jury. The argument complained of is too long to set out in the opinion. The substance of this argument con-siste'd of an attack upon the appellant and its attorneys because of their conduct in attempting to establish that Mrs. Killen was not in fact injured to the extent claimed by her, but was malingering. That portion of the argument most vigorously complained of, was as follows: “Then they put two moi-e hirelings out there, Gentlemen of the Jury. Think of that, you men of the South, you men of Texas, you men of McLennan County! Think about it, Gentlemen of the Jury! Would you believe in this community, under the circumstances which this case shows there was any reason for anything like that found in this record? while these folks are in, their home at night, eyes are peeping from the darkness watching them, watching their actions. I guess they had a little too much decency to tell you all they saw. Then they produce tliat as evidence Rere. They Rad tRat immaculate spy waiting out tRere in tRe lobby tRen but did not produce Rim. WRy? Because tRey Rad no jury in Rere tRat would believe them. Then they bring him in this time. TRey use Dr. AyneswortR, not as their reason but as their excuse.”

The plaintiffs claimed that Mrs. Killen received a deep cut in the left side of her neck, and that as a result thereof she had lost the use or partial use of her left arm. TRe evidence showed that the city, in an effort to establish that Mrs. Killen Rad not lost the use of her arm, employed two detectives to watch her. One of them with his family took a Rouse next door to the Killens, and the other one with his family took a Rouse immediately across the street. These detectives testified that, for the purpose of gathering evidence, they visited in the Kil-leen's Rome, played cards, and went for pleasure rides with them; that they Rad seen Mrs. Killen use the injured arm in playing cards, drying dishes, and lifting the baby. They testified that by raising the window shades in their own apartments they could see Mrs. Killen at work in and about her Rome, and that they Rad seen her use her left arm to a limited extent when no one else was around; that on one occasion they Rad seen her carry her purse under her left. arm. One of the detectives testified that while around home Mrs. Killen did not make any difference in the use of her two arms, but that when “she got away from Rome and in the sight of the public she went to acting like she could not use the arm.” Mrs. Killen while on the witness stand did not contend that she Rad lost the total use of her left arm. She demonstrated in the presence of the jury that she could use her arm to a limited extent. The testimony revealed that she had submitted to repeated examinations at the request of the appellant and that she Rad never refused such request.

We are of the opinion that the argument complained of was justified by the record. Counsel in his argument has a right to .discuss all of the facts in evidence. This includes the right to discuss not only the conduct and character of the witnesses, as revealed by the evidence, but the manner in which his adversary has conducted his case. Where one party, in order to defeat liability, undertakes an assault upon the character of the other party to the suit, the latter counsel has a right to discuss the tactics resorted to, and to demonstrate, if he can, from the evidence, that such assault was unwarranted. Jackson v. Jackson (Tex. Civ. App.) 35 S.W.(2d) 830; Russell v. Martin (Tex. Com. App.) 49 S.W.(2d) 699; Corn v. Crosby County Cattle Co. (Tex. Com. App.) 25 S.W.(2d) 290, par. 3; 38 Cyc. 1498.

TRe appellant complains of the action of the court in allowing several witnesses to testify with reference to the density of the population in the vicinity of Cleveland street and the amount of travel on said street. We are of the opinion that this evidence was admissible. Evidence of the amount of traffic on the street in question was material to establish the reasonable probability of some one being injured as the result of striking the stump in question and to establish the negligence of the city in failing to either remove the stump or provide a barrier to prevent automobiles striking the stump.

The appellant, by several assignments of error, complains of the action of the trial dourt in permitting the witness Roman to testify with reference to an alleged agreement between himself and the mayor and city commissioners as to the location of the line between his. property and Cleveland street. The appellant also complains of the action of the court in admitting in evidence excerpts from the minute books of the board of commissioners to the effect that the matter of acquiring property for the purpose of widening Cleveland street had been" referred to the city attorney. These same objections were presented on the former appeal and were determined adversely to appellant. See City of Waco v. Darnell (Tex. Civ. App.) 20 S.W.(2d) 409, par. 2. While this evidence was not admissible for the purpose of showing that the city was negligent in failing to widen the street, it was admissible for the purpose of showing that the land on which the stump was located had been dedicated by Roman for street purposes and that the city had accepted same and assumed jurisdiction thereof.

Issue No. 13 as submitted to the jury was as follows: “Do you find from a preponderance of the evidence that it was negligence on the part of the City of Waco not to erect a curb, guard, barrier or railing at or near said stump, prior to the accident in question?” To which the jury answered “Tes.”

The appellant contends that it was error to submit this issue to the jury, first, because the issue was upon the weight of the evidence and assumed that the city failed to erect a curb or -barrier at or near the stump; and, second, because there was no duty resting upon the city to erect such curb or barrier. The evidence was undisputed that the city did not erect any such curb or barrier, and the issue was therefore not upon the weight of the evidence. The evidence showed that the stump was within a few inches of the graded portion of the street. The jury found that it was in such close proximity to the traveled portion of the street that it affected the safety of those using the street. The Commission of Appeals upon the former appeal of this case held that one might recover for injuries caused by defects or obstructions outside of the street or traveled portion thereof if such defects or obstructions, by reason of their proximity to the street or traveled portion thereof, rendered it probable that such injuries might result by reason of such defects or obstructions. City of Waco v. Darnell (Tex. Com. App.) 35 S.W.(2d) 134, par. 6. Under the evidence we think it was a question of fact for the jury to determine whether or not said stump was in such close proximity to the used portion of the street as to endanger those using the street in a prudent manner and whether or not the city was negligent in failing to provide some protection to prevent striking said stump.

The court permitted appellees to introduce in evidence photographs of the scene of the accident taken -approximately three years subsequent to the date of the accident and after the stump had been removed. Ordinarily a photograph, in order to be admissible, must represent the scene substantially as it existed at the time the controversy arose and not as it existed after a change had been brought about. However, other photographs were introduced by both the appellant and the appellees without objection, reflecting the scene as it existed at the time of the accident, and there does not appear tó be any substantial difference between the scene as reflected by these photographs and that reflected by those complained of. We are of the opinion that the error, if any, in admitting this evidence, did not result in any substantial injury to the appellant.

We have considered all other assignments of error, and find them without merit.

The judgment of the trial court is'affirmed.


text:
    DALLAS HOTEL CO. v. RAITMAN.
    No. 11221.
    Court of Civil Appeals of Texas. Dallas.
    April 22, 1933.
    Martin B. Winfrey and Philip I. Palmer, both of Dallas, for appellant.

      Joe Utay and Haskell H. Cooper, botli of Dallas, for appellee.
   BOND, Justice.

Mrs. S. B. Raitman brought this suit against the Dallas Hotel Company, owner and operator of tbe Adolphus Hotel in the city of Dallas, for the value of a Fox fur neck-piece, alleged to have been taken without her knowledge or consent from the room assigned to her as a guest of the hotel, and that the hotel keeper was negligent in permitting some one to enter the.room during her absence and take said fur. The Dallas Hotel Company answered by general denial and especially alleged that, at the time appellee lost the fur neck-piece, if such loss occurred, it had a suitable lock on the door of the room occupied by its said guest, that its windows and transom were equipped with proper fastenings, and that it had house officers whose duties were to patrol the hotel to prevent disorder, check the baggage.about the hotel, except the guest room, and keep out all disreputable characters. The hotel also had employed a timekeeper and watchman, whose duty it was to examine all employees going in and out of the hotel to see that nothing belonging to the hotel, or its guests, was taken by them;' that, at the time of the alleged loss of the fur, as provided by article 4592, R. C. S., it kept and maintained in said hotel a metal safe or vault, in good order and fit for the custody of valuable articles belonging to its guests; and that it had complied with the provisions of such statute, to entitle it to the exemptions and liability limitation therein provided.

The ease was tried to a jury and, in response to special issues submitted, the jury found: (1) That the Fox fur neck-piece was taken from appellee’s room during her absence, without her knowledge and consent; (2) that the hotel company failed to use “extréme care and diligence” in protecting the fur, and that such failure was a proximate cause of its being lost; (3) that at the time of the alleged loss, there was a" metal safe or vault in good order and fit for the custody of articles enumerated in article 4592, R. O. S. 1925; (4) that the hotel kept suitable locks and, bolts, and proper fastenings on the entrances to the room occupied by the guest; (5f\hat the guest did not fail to exercise ordinary care in the protection of her fur piece; (6) that the hotel company was not guilty of the failure to exercise “ordinary care” in the protection of the fur piece; and (7) that the value of the fur piece was the sum of $400. On the findings of the jury, the court rendered judgment for appellee against appellant for the alleged value of the fur.

In the court below, appellant urged a motion for peremptory instruction, at the conclusion of appellee’s testimony, again at the conclusion of all the evidence, and before the submission of any special issues to the jury. The motions were overruled, and to the action of the trial court appellant presents proper assignments and pertinent propositions.

The sum and substance of the evidence in this case is to the effect that the loss of ap-pellee’s property was due to an unknown and unexplained conversion by some one, without fault, let, or hindrance of the hotel company. No fact of negligence is alleged in appellee’s petition which would admit of proof of any specific act of negligence on the part of appellant. The only allegation imputing negligence is that: “Said loss was a direct and proximate result of the negligence of defendant, in permitting some one to enter her room during her absence and take said fur.” There is no testimony in the record bearing on the issue that appellant “permitted some one to enter her room.” There is no intimation in the record that appellant failed to exercise the highest degree of care for the safety and welfare of its guest, and the protection of her property. The room was equipped with safety locks, and the windows and transom were provided with proper fastenings, officers were stationed in the bhilding to patrol the hotel and keep out all disreputable characters, and a timekeeper and watchman was employed to examine other employees going in and out of the hotel, to prevent loss of property. The door lock had but one key, which was delivered to the guest. On leaving the hotel, the key was delivered to the hotel clerk. The clerk and a house maid, who had pass-keys to all rooms, were the only ones with means to enter the room, and there is no evidence that either appropriated the fur, but to the contrary, the evidence established conclusively that they did not get it. It is uncontradict-ed that the lock on the door showed no signs of tampering, and that the door and transom were the only possible means of an unobtrusive entrance into said room.

The rule in this state is that a hotel keeper is liable for the loss of his guest’s property, but only if he -is guilty of negligence and such negligence be the failure to exercise the degree of care which a person of ordinary prudence would use under the existing circumstances. The greater the danger the greater is the care required; so that a very high degree of danger calls for a very high degree of care, which, in the instant case, amounts merely to ordinary care, in view of the circumstances.

In the case of Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218, in which an innkeeper was charged with negligence in failing to use ordinary diligence in taking care of property intrusted to him by his guests, and which was stolen, the court said: “He cannot excuse himself without showing that he has used extreme care and diligence in relation to the property lost.” In that case, the innkeeper was a hailee, intrusted with property for hire, and his position was controlled by the rule anent thereto. In the instant case, the jury found that the hotel company failed to use “extreme care and diligence in protecting appellee’s fur,” but was not guilty of the failure to exercise ordinary care in the protection of such property. In Galveston. H. & S. A. R. Co. v. Thompson (Tex. Civ. App.) 116 S. W. 106, 108, the court said: “While ‘ordinary care’ has no degrees, a man of ordinary prudence may be confronted with such circumstances as will, in the exercise of his prudence, induce him to use every means at his command to overcome the danger arising from them. Still what he would do, under such circumstances, would only be the exercise of ordinary care, and the failure of another under like circumstances to exercise the same care would be negligence.”

While a hotel keeper is due to exercise a high degree of care and diligence in protecting the property of its guests, yet t,he exercise thereof is merely ordinary care, and where the court properly defines “ordinary care” and submits an issue to the jury as to the use of ordinary care, it is improper to submit a special issue involving the use of “extreme care and diligence.”

However, a high degree of care — and even a degree of extreme care and diligence —in protecting the property of appellee is clearly established by the record. It is un-contradicted that the locks on the door, transom, and windows of appellee’s room were in proper condition, and that only the housekeeper of the hotel, and employees under her supervision, were allowed a pass-key to the rooms; that the timekeeper and watchman searched all of the employees of the hotel, except certain office employees, before they left the hotel building; that appellant provided a suitable safe for deposits of valuables of its guests; and that a number of house detectives were on duty at the time in question. No issue as to any degree of negligence on the part of the Dallas Hotel Company was raised by the evidence.

“The settled doctrine in this state is that negligence is a question of fact for the jury. It can only become a question of law when the facts and circumstances are such that but one reasonable conclusion can be drawn therefrom.” Dallas Hotel Co. v. Davison (Tex. Com. App.) 23 S.W.(2d) 708, 713. Therefore, since no evidence is in the record tending to show negligence on the part of appellant, and a reasonable interpretation of the record leads to the conclusion that courts could not differ as to the question of appellant’s freedom from such negligence, we conclude that the trial court was not justified in overruling appellant’s request for peremptory instruction to the jury to return a verdict in its favor.

Article 4592, R. C. S. 1925, has no application here; the statute does not impose a duty upon the hotel keeper, but was enacted for its benefit. “That provision has to do only with the liability of a hotel keeper for the loss of its guest’s property when there has been a full compliance with article 4592 by the hotel keeper as to the several safeguards therein required, and then through some other negligence on. the part of the hotel keeper, his servants or employees, the property is lost, which is not the case here.” Dallas Hotel Co. v. Davidson (Tex. Civ. App.) 12 S.W.(2d) 633, 637. It therefore becomes our duty to reverse and render the judgment of the lower court, and to render judgment for appellant, and it is so ordered.

Reversed and rendered.-