author: JACKSON, J.

text:
    HOFFMAN v. COCHRAN COUNTY et al.
    No. 3914.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Tom Garrard and Lockhart & Brown, all of Lubbock, for appellant.
    Durwood H. Bradley and Burton S. Burks, both of Lubbock, and Loyd R. Kennedy, of Morton, for appellees.
   JACKSON, J.

This suit was instituted by the appellant, Mrs. Hoffman, a widow, against the appellee Cochran county and the members of the commissioners’ court, to recover the sum of $2,-000, with interest, evidenced by four warrants of equal amounts issued through the commissioners’ court to H. W. Rice in part payment for certain road machinery sold and deliv.ered by him to the county.

The appellee answered by general demurrer, general denial, and pleaded that the contract was made for the purchase of the machinery on August 15, 1925; that the warrants issued therefor were not payable out of the current funds, but created a debt payable out of future revenues and no provision was'made at the time the contract was executed to pay interest and create a sinking fund to discharge the warrants at maturity.

At the close of the testimony, in response to a peremptory instruction, the jury rendered a verdict in favor of the county, and judgment was rendered ' in compliance therewith and' the case is in this court for review.

The record discloses that on the 15th day of August, 1925, at a regular term of the commissioners’ court, with all members present, after due advertisement, the county accepted the proposal of H. W. Rice to sell it certain road machinery for the consideration of $5,050, to be paid in warrants payable annually, bearing 6 per cent, interest payable semiannually, no warrant to mature later than ten years. The proposal and contract were entered on the minutes of the court, in which it is provided: “It is further ordered that in payment for said machinery so purchased from said H. W. Rice, there shall be issued to said Rice interest bearing county warrants drawn against the road and bridge fund of Cochran County. Said warrants shall bear interest from date hereof at the rate of 6% per annum, payable semi-annually on Eeb. 15th and Aug. 15th of each year. Said warrants shall be of the denominations and mature as follows:” (Then follows a description enumerating ten warrants for $500 each and one for $550 and the maturity of each.)

It is then stated in the order: “And there is hereby appropriated out of the constitutional tax levy of 15⅜ on each $100.00 valuation of all taxable property in Cochran County for the year 1925, for the purpose of paying the interest on said warrants and creating a sinking fund to mature same at maturity and there .shall be each and every year hereafter during the time any of said warrants are outstanding, a tax levied sufficient to pay the interest on said warrants and create a sinking fund to mature same when they shall mature.”

On September 14, 1925, at a regular session of the commissioners’ court, with all members present, the court entered and had spread on the minutes an order stating, in substance, that the commissioners’ court had theretofore determined the advisability and necessity for the purchase of the machinery, had duly, advertised for bids, reciting such advertisement, had determined that the bid of H. W. Rice was the lowest and best bid received, and that the court had entered into a contract with Rice for the purchase of the machinery for the price of $5,050, payable in road warrants, with interest at the rate of 6 per cent, per annum,, payable semiannually, giving the denominations of the warrants, their date and maturities, and that said contract had been •duly considered, and continues:

“Wherefore, it is ordered by this court that said contract be ratified and approved and said contract is here and now ratified, confirmed, approved and adopted and this court declares said contract to be the act and contract of the court and of Cochran County and shall have effect according to its tenor and purport.
“It is further ordered that H. W. Rice, having furnished said grading machines in accordance with the terms of its contract and the grading machines having been inspected by this court and found in all respects satisfactory, and it having been determined by the ■court that said machinery is well worth the price agreed upon and that Cochran County has received full value and consideration for the price to be paid, it is hereby accepted by said commissioners court; and
“It is further ordered that in accordance with said contract, interest bearing warrants of Cochran County, Texas, be issued, numbered consecutively one to ten inclusive, shall be in denominations of $500.00 each, except warrant No. 10,- which shall be for $550.-•00, aggregating the sum of $5,050.00.
“They shall be dated Aug. 15, 1925, and shall mature serially as follows: $500.00 Aug. 15 in each of the years. 1926 to 1934 inclusive, $550.00 Aug. 15, 1935.”
“They shall bear interest at the rate of 6% per annum from date until paid, interest payable Feb. 15,1926, and semi-annually thereafter on Aug. 15 and Feb. 15th of each year,” etc.
The order then provides for the issuance of the warrants with interest coupons, the execution and the form thereof, which stipulates; “And it is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the issuance of this warrant have been properly done, happened and performed in regular and due time, form •and manner as required by law and that the total indebtedness of said county, including this warrant, does not exceed any constitutional or statutory limitation; and that provision has been made for the levying of taxes annually for the payment of the principal ■and interest in this warrant and all other warrants of this series as they respectively mature.”

Following the form, this order provides:

“It is further ordered that a special fund to be designated ‘Special Road Warrant Fund’ be and the same is hereby created and the County Treasurer is hereby ordered and directed to open an account with such fund, to which fund shall be credited all taxes levied for the payment of principal and interest of this series of warrants as well as the moneys appropriated for said purpose and no claim -or warrant other than warrants and coupons of the above series of warrants, shall be paid out of said fund.”
“That to create said fund for the payment of the principal and interest of said warrants at maturity, a tax of 3⅛⅜⅛ on each $100.00 valuation of taxable property in said Cochran County out of the constitutional 15⅜ road and bridge tax shall be annually levied, assessed and collected, or so much thereof as shall be necessary.until all of said warrants and the interest thereon shall have been fully paid and said tax of 3½⅜ is here now levied for the year 1925 and for each succeeding year or so much thereof as may be necessary for said purpose while said warrants or any of them are Outstanding; it is further ordered that should the said tax of 3⅜‡ be insufficient to pay the whole of the principal and interest maturing any one year, -to and inclusive of the final maturities of said warrants, then the commissioners court of said county shall compute and ascertain what rate of tax, based upon the latest approved tax rolls of said county, shall be necessary and sufficient to fully raise and produce the amount of principal and interest maturing in said year and the rate of tax so found necessary shall be levied, assessed and collected for said year at the time other county taxes are levied, assessed and collected and the proceeds thereof shall be placed in said special fund above named and the Treasurer shall not honor any warrant or order upon said fund for any other purpose.”

This order is signed by the county judge and the four commissioners.

The record discloses that the appellant is the owner of warrants 4, 5, 6, and 8; that the county had defaulted in the payment thereof; that the county received the machinery, a part of which it sold for money, and the remainder of which it still has in its possession.

The agreed price of the machinery was $5,050, and the enumeration in the order of August 15th of ten warrants for $500 each (two of which were to mature on August 15, 1931) and one, the eleventh, for $550 to mature August 15, 1935, aggregated $5,550 as the price of the machinery; and the language “to mature same at maturity,” and “and creating a sinking fund to mature same when they shall mature,” are obviously errors, and the commissioners’ court had the authority to correct the minutes to eliminate such errors by the order of September 14th thereafter.

“Commissioners’ courts in Texas are courts of record, and as such have control over their own records. They have inherent power to correct and amend such records and the same can be altered or changed only by the order of such court itself.” Mecom v. Ford, 113 Tex. 109, 252 S. W. 491, 497.

The power of the commissioners’ court to issue the warrants for the purchase of the machinery is not questioned, but appellees contend that, in the order of August 15th, “no specific amount is appropriated for 1925” and no provision, for “a sinking fund of at least 2%” is made “to care for the principal and interest of the debt.”

The provisions of such order heretofore set out provide, in effect,' that an appropriation is made out of the constitutional tax levy of 15 cents on the $100 valuation for 1925 for the' purpose of paying the interest on the warrants and creating á sinking fund to pay the warrants as they mature, and there shall be each and every year while the warrants are outstanding a tax levied sufficient to pay the interest on the warrants and create a sinking fund to pay them as they mature.

In Bassett v. City of El Paso, 88 Tex. 168, 30 S. W. 893, 894, the Supreme Court, discussing the question here involved, said:

“Neither of these constitutional or statutory provisions requires in express terms the levy of a fixed rate or tax, to be collected each year during the life of the bonds, without reference to the different sums that would be annually raised thereby. * * *
“The language and purpose of these provisions seem to be satisfied by an order providing for the annual collection by taxation of a ‘sufficient sum to pay the interest thereon and create a sinking fund,’ etc., though it does not fix the rate or per cent, of taxation for each year by which such sum is to be collected, hut leaves the fixing of such rate for each successive year to the commissioners’ court or city council. To so construe these provisions as to require, at the time the debt is created, the .levy of a fixed tax, to be collected through a long series of years, without reference to the unequal ‘sums’ that would in all probability be realized therefrom, instead of the collection annually of a certain ‘sufficient sum’ to pay the annual interest and create the sinking fund required by law, would be doing violence to the language used, and authorize, in cases where values rapidly increase, the extortion from the taxpayers of large amounts of money in excess of the amount necessary to satisfy the interest and principal of the bonds, and this,' in time, would invite municipal corruption and extravagance. If it had been intended to require the actual levy of a tax at the time the debt was created, different and apt language for that purpose would have been used.”

See, also, Mitchell County v. City National Bank of Paducah, Ky., 91 Tex. 361, 43 S. W. 880, 881; W. L. Pearson & Co. v. Hutchinson County (Tex. Civ, App.) 52 S.W.(2d) 515 (opinion on motion for rehearing).

■ In the order of September 14th a tax of 3 ½ cents on each $100 valuation or so much thereof as is necessary was levied and ordered collected for the .year 1925 and for each succeeding year while the warrants are outstanding, for the purpose of paying the interest on the warrants as it accrued and' creating a sinking fund to discharge said warrants at their respective maturity.

In our opinion the order of August 15th is' not void for failing to provide for a tax to-pay the interest and create a sinking fund to pay the warrants on their maturity as required by article 11, § 7, of the State Constitution.

If we are correct in this conclusion, the warrants sued on were valid and enforceable,’ and the court should have directed a verdict in favor of appellant instead of in behalf of the county.

The judgment is therefore reversed, and is here rendered for the appellant.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    CITY OF SAN ANTONIO et al. v. TEAGUE, et al.
    No. 9094.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1932.
    Rehearing Denied Nov. 30, 1932.

      T. D. Cobbs, Jr., W. C. Davis, and Jack Davis, all of San Antonio, for appellants.
    T. H. Ridgeway, of San Antonio, for ap-pellees.
   SMITH, J.

This appeal turns upon the question of the constitutionality of an ordinance of the city of San Antonio, requiring wholesale dealers in fruits and vegetables to obtain a permit from, and pay a license fee of $50 to, the city as a condition to the operation of such business. At the instance of 'twenty-five such dealers, the district court enjoined the enforcement of said ordinance, which contains the following provisions:

“1. That it shall be unlawful for any person, partnership or corporation to maintain and operate an establishment for sale at wholesale of fruits and vegetables within the corporate limits of the City of San Antonio, Texas, without first obtaining a license therefor, and payment of a license fee.
“2. The word ‘establishment’ used in this ordinance shall mean the place, either temporary or permanent, including any vehicle, railroad car, lot stand, room or building, where or ¾ which any person, partnership or corporation subject to this ordinance, shall sell or show for sale, fruit or vegetables.
“3. That every person, partnership or corporation, before opening, maintaining and/or operating such an establishment for the purpose stated shall make application for each establishment maintained and operated, upon a blank to be furnished by the License and Dues Collector and in which application the applicant shall give the following information: Address, number of establishments maintained and operated, nature of business, method of distribution used, whether it be selling direct from a store room, railroad car or other vehicle or from a vacant lot or stand, or otherwise.
“4. That upon filing said application with the License and Dues Collector ancl paying the lácense and Dues Collector a license fee of Fifty Dollars for each and every establishment maintained and operated, said License and Dues Collector shall issue a license or licenses to said applicant to operate said establishment or establishments. The fee specified herein may be paid in quarterly installments of $12.50 each. The license shall expire on the 31st day of May after issuance.
“5. Any person,’ firm or corporation who may violate this ordinance shall be guilty of a misdemeanor and upon conviction' thereof shall be fined in any sum not less than $10.00 nor more than $100.00.
“6. Persons, partnerships and corporations engaged in commerce with foreign nations and among the several states and with the Indian Tribes, subject to regulation by the Congress of the United States, and persons, partnerships and corporations engaged in agricultural pursuits, who in person or by agent sell fruit and vegetables grown by such, and who are exempt from payment of occupation tax under the Constitution of the State of Texas, shall be exempt from the payment of the fee and issuance of the license; but if any exemptioner chooses to have a license issued for identification, the License and Dues Collector will issue the same without cost upon satisfactory proof.
“1. This ordinance shall not be construed to repeal any of the health, sanitary or food ordinances of the City of San Antonio, but shall be cumulative thereof.
“8. The fact that the present ordinances of the City of San Antonio are inadequate, and the fact that many establishments are now plying their trade without a license, the fact that fruits and vegetables are now being sold at wholesale in the City of San Antonio, which are inferior in quality, unfit for human consumption, mixed in grade and sold as of a higher grade, the fact that fruits and vegetables are now being stored, kept packed and sold in wholesale establishments which, are kept in insanitary conditions and therefore dangerous to the health of the public, and the fact that the health of the citizens of San Antonio needs protection, creates an emergency; and the rule requiring the reading of ordinances on three several days, is hereby suspended; and this ordinance is declared an emergency ordinance and shall take ■effect from and after its passage and approval.”

The power relied upon by the city as authorizing the enactment and enforcement of the ordinance arises from the following provision of the charter of the city:

“Section 99. To license, regulate and' inspect ail ’ trades, professions, occupations, callings and business carried on in said City whenever and wherever the Commissioners shall deém such regulation, inspection and license necessary or proper for the good order, public health, public safety or general police regulation of said City, and charge license and inspection fees therefor, and such fees shall not be construed as occupation taxes; and for any purpose relating to the business or affairs of the City, to examine or cause to be produced and examined all books, papers, and records of any person or corporation doing any public utility service, and of persons and corporations holding franchises from the City, to take testimony and compel the attendance and examination, under oath of witnesses, and to annul and forfeit such franchise or privilege should any officer, agent or employee of any such corporation or franchise holder refuse to produce such books, papers or records, or give testimony.”

The city raises the question of the jurisdiction of the district court, as a* court of equity, to restrain the enforcement of a criminal ordinance. We are of the opinion that under the powers of the equity courts, which powers are being constantly if not wisely widened by judicial construction, those courts have jurisdiction to grant the relief accorded appellees in this case only where the ordinance attacked is void upon its face, and the threatened enforcement thereof will necessarily work instant and substantial and irreparable injury to material vested rights of the parties complaining. Surely in every other situation the whole controversy ought to be relegated to courts of law, upon which rest the constitutional power and duty of construing, upholding, and enforcing or striking down and nullifying criminal laws. Ex parte W. W. Sterling, decided by Supreme-Court oi Texas, October 1, 1932, 63 S.W.(2d). 294, 295. In the able and far-reaching opinion of Judge Leddy, for the Commission of' Appeals, in that case, it is said: .

“Courts of equity are not concerned with-the enforcement of criminal laws. Courts-of law are created for this purpose. Courts of equity are concerned only with the protection of civil property rights. Therefore, when -a court of equity issues an injunction which operates to stay the hand of law enforcing officers, its primary purpose is not to enjoin the criminal proceeding. That is merely incidental to the main ground upon which equity jurisdiction protects vested property rights from threatened and irreparable injury. Such jurisdiction is exercised solely with reference to the effect of the enforcement of a void law upon^ vested property rights. Winn v. Dyess (Tex. Civ. App.) 167 S. W. 294; Ex parte Castro, 115 Tex. 77, 273 S. W. 795; State v. Clark, 79 Tex. Cr. R. 559, 187 S. W. 760; Jones v. Whitehead (Tex. Civ. App.) 278 S. W. 305; City of Breckenridge v. McMullen (Tex. Civ. App.) 258 S. W. 1099.
“Under the well-established rules of equity jurisprudence, it is clear that the district judge was without authority to issue the writ of injunction to prevent the enforcement of the law regulating the operation of motor-trucks upon the highways of this state unless the petition for such injunction clearly showed the existence of two facts, viz.: First, that such law is uncbnstitutional and void;. second, that its enforcement constitutes a direct invasion of a vested property right of the complainants. Davis & Farnum Mfg. Co. v. City of Los Angeles, 189 U. S. 207, 23 S. Ct. 498, 490, 47 L. Ed. 778; In re Sawyer, 124 U. S. 200, 8 S. Ct. 482, 31 L. Ed. 402; Box v. Newsom (Tex. Civ. App.) 43 S.W.(2d) 981.”

AVe are of the opinion that the ordinance-is not void upon its face, nor does the attack thereon in this case warrant its nullification by a court of equity.

Under now familiar construction, a municipal corporation in the class embracing-San Antonio may do anything 'specifically or-by necessary implication authorized in its charter, so long as such action is not in contravention of constitutional or statutory provisions.

It is contended by appellees that the purpose, or at least the effect, of this ordinance, is to impose an occupation tax upon appel-lees ; that it is not merely a regulatory measure, with 'the incidental imposition of a license fee. It is conceded by the city that it has not the power to impose an occupation tax upon appellees; but, on the other hand, it is contended by it that the ordinance is-regulatory only, and well within the police power of the city.

It is now well settled that, in the exercise of lawful powers, in imposing purely regulatory restrictions upon persons and commerce, thd governing board of the municipality has the power to determine the reasonableness as well as the necessity of such regulations propounded by that body, and its discretion in such matters is conclusive and may not be set aside by the courts, except in extreme situations not evident in this case. City of San Antonio v. South Trunk Co. (Tex. Civ. App.) 13 S.W.(2d) 401.

The business of storing, distributing, ■and selling fruits and vegetables is peculiarly subject to regulation by municipalities, and we believe to that end it is within the powers exercisable by the governing board of the city of San Antonio to require all such dealers to first obtain a permit from the proper authority before entering upon such business. It is so provided in the quoted charter provision, and certainly is not in contravention of any constitutional or statutory provision to which our attention has been called.

In this case the city commissioners, in the exercise of their discretion, determined that the regulation of such business had become necessary in the city, for apparently sound reasons set out in the emergency clause of the ordinance hereinabove quoted. Certainly it is not for this court, no more than for the court below, to gainsay the. facts or question the existence of the conditions recited in the ordinance, or to substitute the court’s judgment for that of the commissioners in such a purely administrative governmental matter. We cannot say, and least of all as a matter of law, that the commission■ers acted beyond their wide powers in such matters, which are so clearly within administrative, and obviously without judicial prerogative.

The ordinance was enacted in furtherance -of the obligation of the city to exercise every reasonable power to protect and preserve the health of its inhabitants, iri which connection it was shown in the city’s answer “that prior to the enactment of the above ordinance, many establishments were plying.their trade without a license, and fruits and vegetables were being sold at wholesale in such establishments in the City of San Antonio, some of which were of an inferior quality and unfit for human consumption, were mixed in •grade, and sold as of a higher grade, and owing to the further fact that fruits and vegetables were being stored, kept, packed and sold in wholesale establishments and in trucks, wagons, stands and stalls, which were kept in insanitary conditions and were therefore dangerous to the health of the public, and as a result thereof, the health of the Citizens of San Antonio needed protection.”

Appellees contend that the fee exacted of them under said ordinance amounts to an occupation tax; it being conceded that the city is without the power to impose an occupation tax upon appellees and those similarly engaged. We conclude, albeit with some hesitation, that the contention is not sustained by the ease made, to the extent of showing such abuse of the administrative discretion of the commissioners as to require -courts of equity to interfere therewith. Han-zal v. City of San Antonio (Tex. Civ. App.) 221 S. W. 237. This court cannot gainsay the implied findings of' the commissioners, upon which the ordinance was enacted, that, as expressed in the city’s answer: “That the imposition of a license fee of Fifty ($50.00) Dollars upon all persons, partnerships and corporations engaged in the sale of fruits and vegetables at wholesale, is a reasonable fee for engaging in such occupation, and said Fifty ($50.00) Dollars fee or the collection thereof, from each and every one engaged in the sale of fruits and vegetables at wholesale, would not and could not be in excess of the amount of money appropriated and necessary for the proper regulation, inspection and supervision of public health measures and the enforcement of the above ordinance by the governing body of the City of San Antonio and its agents and employees.”

Assuredly these findings, if true, as we must assume them to be, fully warrant the imposition of the license fee fixed by the commissioners. It is but just that the businesses which render sanitary and health regulations necessary, should bear their proportionate share of the burdens and expenses of such regulations, and the record does not justify the trial court or this court in saying the governing body has placed an unfair share thereof upon appellees and their fellows.

Appellees attack the ordinance upon the contention that it is rendered discriminative and invalid by certain exemptions incorporated therein apparently in deference to well-recognized, clearly defined, and sometimes frankly far-fetched prohibitions against interference with interstate ■ commerce. We overrule this contention.

We conclude that the ordinance is not shown to be invalid, and that the trial court erred in taking jurisdiction and granting the injunction. Accordingly,'it is ordered-that the injunction be dissolved and the bill therefor dismissed, at the cost of appellees in both courts.


text:
    TURCO PRODUCTS, Inc., v. NOBLES.
    No. 3913.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Kimbrough & Boyce, of Amarillo, for appellant.
    Cooper & Bumpkin, of Amarillo, for appel-lee.
   JACKSON, J.

The appellee, H. A. Nobles, instituted this suit in the district court of Potter county, Tex., against the appellant, Turco Products, Inc., duly and legally incorporated under the law's of California, to recover certain commissions for the alleged sale of a carload of appellant’s products.

The appellee alleged that about the 21st of August, 1931, he was employed by the appellant as its distributer for the sale of household products in certain territory in the state of Texas and that by the terms of such employment appellant agreed to pay him certain commissions on the products he sold for it. That he sold, or caused to be sold, under such agreement, a carload of appellant’s products to Walker-Smi& Grocery Company of Brownwood, Tex., and that by reason of .such sale and employment he had earned the sum of $1,180.67 as commissions.

That after the sale was consummated it was confirmed by appellant, and appellee was furnished credit memoranda, which he attached to his petition as exhibits, “by the terms of which the defendant admitted its indebtedness to plaintiff” in the aggregate sum of $1,180.67.

That the contract of employment was partly verbal and partly in writing, and that by reason of the premises he was entitled to recover the sum sued for.

The appellee had a writ'of attachment issued and levied on certain property belonging to appellant which it replevied, giving as surety on its bond the ¿Etna Casualty & Surety Company.

The appellant answered by general demurrer, numerous exceptions, general denial, and alleged that under the terms of the agreement with appellee, he was to be appointed' distributer of its products in certain territory in Texas, provided he sold one 60,000# carload of products within sixty days and one 60,000# ear or more each sixty days thereafter, the sales to be made to A-l jobbers only on condition that they discount ten days from date of invoices. That a contract for a period of years was to be executed on the territory when the first order had been delivered and paid for and appellant was satisfied that appellee would push its products wdth the Texas jobbers. That appellee never sold a carload of appellant’s products, but induced it to ship' a carload thereof to Walker-Smith Grocery Company of Brownwood, on the representation that he would sell the contents of the ear quickly. That he failed to properly work the territory and disposed of but a part of the contents of the car, for which appellant received $579.27, of which amount appellant paid out $577.13 as freight. That appellant was compelled, at the request of Walker-Smith Grocery Company, to take possession of the remainder of the contents of said car, which necessitated that it send' representatives to Texas at its own cost and expense to dispose of such remainder. That the credit memoranda attached to appellee’s petition were voluntarily sent to him, which was appellant’s usual and customary method of keeping its books and did not evidence the amount due appellee for commission, as the freight and other expenses were to be deducted therefrom and the commission was payable after appellant received pay for its-oarload, of products, all of which appellee knew.

There was but one issue submitted by the court, in response to which the jury found that after the shipment of the ear in question to Walker-Smith Grocery Company, the ■appellee used reasonable efforts to sell such products.

On this finding judgment was rendered that appellee recover from appellant and the .Etna Casualty & Surety Company, as surety, $1,003.33, with interest thereon from January 1, 1932, at the rate of 6 per cent, per annum and costs, from which judgment this appeal is prosecuted.

The appellant assails as erroneous the special issue submitted by the court, because the reasonable efforts of appellee to sell the products was not an issue made by the pleadings and would not sustain a recovery for appellee. ⅞

The cause of action alleged by appel-lee was ex contractu and not ex delicto, and he was therefore required to show that he had sold a carload of products to Walker-Smith Grocery Company in compliance with the terms of his contract of employment and the use of reasonable efforts to sell such products would not authorize him to recover and it was error to submit such issue to the jury. Pecos & N. T. Ry. Co. v. Amarillo Street Railway Co. et al. (Tex. Civ. App.) 171 S. W. 1103.

The appellant presents as error the action of the trial court in refusing to submit at its request whether the carload of products shipped to Walker-Smith Grocery Company by appellant was shipped to it on account of t ho sale thereof or was shipped to it on consignment for sale.

The statement of facts consists of more than 260 pages of oral and deposition testimony and exhibits, and we do not deem it necessary to set out the evidence which raises the issue that the shipment of the carload of Turco products to Walker-Smith Grocery Company was made on consignment rather than on a sale, but content ourselves with stating that after an investigation of the record we think it manifest that the issue was presented by the evidence and should have been submitted to the jury.

Appellee contends that appellant, not having pleaded fraud, accident, or.mistake, is not entitled to contradict or explain the credit memoranda, though he concedes" that appellant was entitled to credit for a freight charge not disclosed by such memoranda.

“Generally speaking, anything said by a party may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts afterwards asserted by him in pleading or in testimony. * * * The rule * * * applies to admissions or declarations against interest contained in written instruments, such as deeds, wills, contracts, promissory notes, letters, pleadings, affidavits, claims for damages, proofs of death under an insurance policy, railroad folders, statement made to a commercial agency, or in an application for membership in a fraternal order.” 17 Tex. Jur. 555, § 230.

“Ordinarily admissions or declarations against interest are not conclusive, but are subject to contradiction or explanation by the party against whom they are offered. * ⅜ * A party may deny that he made admissions claimed to 'have been made by him, and parol evidence is admissible to explain documents introduced as admissions without pleading fraud, accident or mistake, when such documents do not vest, pass or extinguish any right in litigation, but are used merely as evidence of the fact and not as evidence of a contract or right.” 17 Tex. Jur. 575, § 239.

The appellant by numerous assignments attacks the action of the court in overruling its demurrer and exceptions to plaintiff’s petition.

These assignments will not be discussed because, if they present error, the petition can and doubtless will be amended on another trial.

The judgment is reversed, and the cause remanded;


author: O’QUINN, J. LAWHON, J.

text:
    McNEEL v. TEXAS &, N. O. R. CO.
    No. 2261.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1932.
    Rehearing Denied Nov. 30, 1932.

      0. A. Lord and John D. McCall, both of Beaumont, for appellant.
    E. J. & ,C. T. Duff and Lamar Cecil, all of Beaumont, for appellee.
   O’QUINN, J.

Suit by Mrs. McNeel to recover $5,000 in her own right, and as next friend to recover for James McNeel, her minor son sixteen years of age, the sum of $10,000, damages alleged to have occurred by reason of the negligence of the appellee railroad. The several acts of alleged negligence were fully and adequately pleaded.

Appellee answered by general demurrer, general denial, and specially that the injuries of plaintiff James McNeel were the direct and sole result of his own negligent acts, fully setting forth the acts relied upon. Appellee also specially answered that appellant James McNeel was guilty of contributory negligence, which was the proximate cause of his injuries, specifically setting out the several matters asserted to constitute his contributory negligence.

The case was tried to a jury, but at the close of the evidence, the court, at the request of appellee, instructed the jury to return a verdict for defendant, appellee, which they did, and judgment was accordingly entered. Motion for a new trial was overruled, hence this appeal.

The facts show that appellee owned a railroad extending from the city of Beaumont to the town of Sabine, in Jefferson -county, Tex., passing through the Spindletop oil fields some five miles south of the city of Beaumont. That said railroad had a switch track extending from its line of railway at a point

about one mile north of the Spindletop oil fields eastward to the Magnolia refinery. That said switch track crossed a public road1, which extends from' the city of Beaumont southward to the Spindletop oil fields, continuing in a southerly direction to the city of Port Arthur and the town of Sabine, and which public road is an extension of what is known as Highland avenue in the city of Beaumont. That Highland avenue is a paved road with smooth hard surface out as far as Spindletop oil fields, and from thereon to Port Arthur is shelled. This road or-highway is extensively used both day and’ night by automobiles, trucks, and other vehicles, and has been so used for many years. The road or highway crosses the switch track, a few hundred yards north of the Spindle-top oil fields almost at right angles — the-highway at said crossing running practically north and south and the switch track east and west. The switch track was for the purpose of serving the oil fields, and usually operated but one train a day, that being at about 7:30 or 8 p. m. On September 13, 1930, at about 8 o’clock at night, the railroad servants were backing from the west a string of freight cars along the switch track eastward and across the public road crossing at a rate of about six miles per hour, and appellant James McNeel was riding with one W. L. Hargraves in an automobile which approached the crossing going south just about the time the first freight car was passing over the road crossing. Hargraves was: driving his own car, a Whippet Pour coupé-with rumble seat. He and his- two sons, and James McNeel, Wm. McNeel, and -Edward Asbury — six of them — three in the front seat and three in the rumble seat, were-going fishing, to what is known as McPaddin-Beach on the Gulf. coast. James McNeel wag riding in the rumble seat on the right side — the direction from which the train was-approaching. Hargraves saw the freight ears on the crossing when he was seventy-five feet to one hundred feet from the crossing. He was driving forty miles per hour.. I-Iis lights burning all right and his brakes-operating all right. When he saw the freight cars on the crossing he put on his brakes and turned to the left — he was driving on the right side of the highway — east to avoid' hitting the freight car, and ran off into a ditch, causing the injuries complained of. The highway consisted of paving in the center and gravel on the sides. The paved part was about eighteen feet in width. Har-graves testified that he was going forty miles an hour and that the freight cars were moving pretty slowly when he saw them. When asked if after the accident the locomotive bell was ringing he said that he did not hear it; that he was not listening for the Kell; that he was not listening “for anything” before or after tlie accident. On cross-examination lie was asked:

“Q. When you saw that' car what did you do? A. 1 applied my brakes.
“Q. State whether or not they become effective and took hold when you applied them that day. A. They did, yes, sir.
“Q. What was your judgment as to whether you could bring your automobile to a stop and not strike that car, that box ear? A. I did not know whether I could or not..
“Q. What was your judgment as to that, your best judgment on it? A. I do not think I could, I tried to.
“Q. As you approached there and saw the ear, you applied your brakes, then what did you do with your car? A. I pulled to the left hand side of the road.
“Q. Why? A. So if the train did stop I might be able to go around the end of it.
“Q. And if it didn’t stop, what? A. It didn’t stop, so I took the ditch.
“Q. State whether the railroad train stopped or not. A. It did not.
“Q-. Were you able to bring your car to a stop in the highway and not strike that ear? A. No, sir. .
“Q. What did you do with your automobile? A. I turned it in the ditch.
“Q. Where was the ditch, on which side of the highway? A. The one I turned into was on the left hand side.
“Q. What did your car strike when it went to the bottom of the ditch, if anything? A. It struck a culvert that goes under the railroad for drainage.
“Q. If you had not turned into the ditch, what would your car have done? A. It would have hit this railroad car. ⅜
“Q. Was there any way to avoid hitting it, except to take the ditch? A. No, sir.
“Q. State whether there was any light on the end of that train? A. No sir, I did not see any.
“Q. Was there a man on the back end of that car passing into the highway? A. No, sir.
“Q. State whether or not there was any person stationed there at the highway to Pilot or guide that train across the highway? A. No, sir.
“Q. State whether or not there was any sparkler or anything of that kind on the end of that train. A. No, sir, there was no sparkler on if.
“Q. State whether or not there were any men on that train, and if there were, where were they? A. There were some men standing up in this car about probably half way of the car.”
And again:
“Q. Now you said you thought if the train stopped you would run around the end of it, that’s the reason you cut to the left? A. I did, yes, sir.
“Q. Why did you expect the train to stop? A. I thought maybe, when I first seen it, I thought maybe it was fixing to stop.
“Q. Why did you expect the train to stop when you were not going to stop? A. I did not expect them, I turned over in case they did stop I would go around.
“Q. In other words you could not stop but wanted the train to stop and if it did you would go around? A. In case I could not, I thought maybe if they stopped, I could go around.”
And again:
. “<⅞. So, after discovering the train 100 ft. away, you put on the brakes in emergency, you slid your wheels that distance, you got off the pavement and down into the ditch? A. I did not say I skidded 100 ft.
“Q. You put them in emergency from the beginning, didn’t you? A. I never got hold of the emergency.
“Q. You were doing your best to stop, weren’t you? • A. Yes, sir.”

In answer as' to how fast he was running, he answered:

“We were running about 40 miles when we seen this train.
“Q. You continued at that speed until this train came into your vision? A. Yes, sir.
“Q. You think you were 75 or 100 ft. when you saw the train? A. Something like that, yes, sir.
“Q. Then you were going, well, were you looking for a train? A. No, sir.
“Q. Were you watching for a train? A. No, sir.
“Q. Did you look up to the west and east of you to see if a train was coming? A. I was looking straight down the highway.
“Q. Isn’t it a fact you were not looking, were not paying any attention and not trying to see anything until it actually moved upon the road, isn’t that a fact? A. No, I was looking down the highway and when it got on the highway I seen it.
“Q. There was nothing between you and that car to keep you from seeing it, if you had been looking, was there? A. If I had been looking at the tank I might have seen it, but I was looking down the highway.”

In testifying as to how the train appeared to approach the crossing, and his seeing same, he was asked:

"Q. Well, if it didn’t, what’s your explanation you didn’t see it as it moved from behind that tank? Your headlights were burning, you were 75 ft. away, your headlights would operate so it would illuminate the sides.? A. That car was about the color of the highway.
“Q. But when the train moved out there and all that time, what kept you from seeing it? A. Well, it was ,iust about the color of the highway, didn’t show up much.”

Appellant James McNeel testified that he was sixteen years old. That he was a guest riding with Hargraves going fishing. That the automobile was going at about forty miles an hour at the time it approached the crossing. That he was riding in the rumble seat on the right-hand side. That when the automobile was within 75 or 80 feet of the crossing he got a glimpse of the freight car backing onto the paved part of the highway. That he did not see the freight ear until after Hargraves put on the brakes. That he saw neither a light nor any person on the end of the freight car backing onto the crossing. He said that he had been familiar with the crossing, driving over it for some three years, but that he had never before seen a train on the switch track. That ho was on the side from which the train was coming. That if he had been looking he could have seen off to his right, but that he was not looking. That he knew the track was there and that there was a sign at the crossing reading: “Railroad Crossing Lookout for Cars.” That he had nothing to do with the driving of the automobile and did not say anything about it to Hargraves. That he never thought anything about the railroad. That he did not consider it any of his business about how the car was driven. That the lead freight car had gotten all the way ■across and the second car had the crossing blocked when the train stopped. That he did not hear any whistle and that he did not listen for the whistle, and that if the whistle had been blown 80 rods from the crossing it would not have made any impression upon him. In answer to the question, “State whether or not you saw this freight train before the happening, before your car went off into the ditch,” he answered: “Well, when he put on the brakes, well, I think I got a glance of the freight train backing up there somcwhores around two or three ft. from the pavement.” And when asked whether he saw it before or after the brakes went on, he said, “I seen it after the brakes went on.” He further stated he had never seen any train on that switch track before.

As this judgment was upon an instructed verdict, we shall not quote any of the testimony of the appellee’s servants in charge of the train, though much of it was without dispute.

• The verdict was directed and the judgment entered upon the theory that appellant was guilty of contributory negligence as a matter of law. Appellants strongly insist that such is not the case, but that whether contributory negligence appears is a question of fact for the jury, and that it was error for the court to instruct the verdict.

Contributory negligence ordinarily is a question of fact for the jury. But when the evidence is such that but one reasonable conclusion can be drawn from it, then the question is one of law for the court. The undisputed evidence, as reflected above, shows that when the automobile in which McNeel was riding as the guest of Hargraves was within some 75 to 100 feet of the crossing, approaching same at right angles and traveling forty miles per hour. Hargraves discovered the freight car slowly backing upon the highway — at the edge of the paved center of the road. He makes no pretense that he had kept any sort of lookout for trains, but in fact admits that he did not do so, but was looking straight ahead down the highway, neither looking nor listening. Upon seeing the freight car on the crossing he put on his brakes, and, though he was on the right-hand side of the road, turned to his left. He did this, he says, because he thought the train might stop and he could run around the end of the train, but when the train did not stop, he, in order to avoid colliding with the freight car, continued to the left and ran into a ditch where his car turned over and the injuries were received. The train was moving very slowly, not more than six miles per hour. Hargraves said he ran about 75 or 100 feet while the train was going about 18 feet. Hargraves for years had been perfectly familiar with the highway and the switch track and the crossing. He admits he did not listen for a train — was not thinking about a train. He says: “No I was looking down the highway * * * qnd paying no attention to anything else, and when it got on the highway I seen it.” It was a clear night and the auto headlights were burning brightly.

My associates say that under the 'holding in the Trochta Case (Tex: Oom. App.) 218 S. W. 1038, and other decisions following same, we cannot say, under the evidence, that Hargraves, the driver of the automobile, was guilty as a matter of law of such negligence as would defeat him for a recovery for damages, if any, suffered by him, but that the question was one of fact for the jury. The writer cannot agree to this conclusion. It is my opinion that under the above-stated facts coming from the driver of the automobile and appellant McNeel themselves, all reasonable minds can arrive at but one conclusion, and that is that the driver of the automobile, Hargraves, was utterly lacking in the exercise of due care, in fact of any care, for his own safety and those with him in the automobile, and was, therefore, guilty of such negligence as would, as a matter of law, defeat him in the recovery of any claim for damages he might assert in the premises. Texas Mexican R. Co. v. Hoy (Tex. Com. App.) 24 S.W.(2d) 18; Robinson v. Houston Belt & Terminal Ry. Co. (Tex. Civ. App.) 23 S.W.(2d) 894; Murphy v. Milheiser (Tex. Civ. App.) 30 S.W. (2d) 586 (writ refused); Missouri-Kansas-Texas R. Co. v. Cheek (Tex. Civ. App.) 18 S.W.(2d) 804 (writ'dismissed).

The testimony of appellant McNeel showing that he exercised no care for his safety, and that he was perfectly familiar with the crossing, and was aware of the speed and manner in which the automobile was operated at the time and place, and that he acquiesced in same, we think agreed that whatever of negligence, under the circumstances, of which the driver of the automobile, Hargraves, was guilty, should be and is imputable to appellant James McNeel. Texas Mexican R. Co. v. Hoy (Tex. Com. App.) 24 S.W.(2d) 18, 20; Murphy v. Milheiser (Tex. Civ. App.) 30 S.W.(2d) 586 (writ refused). It being the opinion of the writer that Hargraves, the driver of the car, was guilty of contributory negligence as a matter of law, and that such negligence is imputable to appellant McNeel,' the judgment should be affirmed.

In accordance with the views of my associates that the question of contributory negligence was one for the jury, and that the court erred in directing the verdict, the judgment will have to he reversed .and the cause remanded, and it is so ordered.

Reversed and remanded.

LAWHON, J.

In order that our reasons for reversing and remanding this case may be a little more fully stated, we will briefly summarize the evidence and apply the facts, as we.understand them, to the only issue involved in this appeal.

As already stated in the opinion of Associate Justice O’QUINN, the switch track in question was used only one time each day. The driver of the automobile, Har-graves, and McNeel, one of the plaintiffs, both testified that although they had been over the crossing numerous times, they had never seen a train on this track before. The locomotive was backing and pulling a string of twenty-three freight cars in front of the locomotive and pushing two cars on the back from the west towards the crossing. The evidente raises the issue that there was no light on the end of the train as it entered the highway and no one was there to give signals or to pilot the train across the road. In fact, the evidence raises the issue that no signals or warning of any kind were given, so that persons using the highway would know that a train was preparing to cross. There was some evidence by the. defendant that one man, or possibly two, were on the train with lighted lanterns, but, as the verdict was instructed, we must consider the evidence in its most favorable light from the standpoint of the injured party just before and at the time of the accident, rejecting all evidence favorable to the defendant. Barron v. Houston E. & W. T. R. Co. (Tex. Com. App.) 249 S. W. 825.

The automobile in which McNeel, the injured party, was riding approached the crossing from the north and the driver saw the end of the train just about the time it reached the edge of the pavement. Mc-Neel, the injured party, says it was within about '2 or 3 feet of the pavement. Both parties give the distance from the crossing at the time the train was seen at from 75 to 100 feet. The driver immediately applied his brakes and made every effort in his power, according to his testimony, to stop the automobile and avoid a collision with the train. He says, as we interpret his testimony, that he did not believe he could stop before the crossing was reached, but tried; he thought the train might stop before the freight car entirely crossed the pavement and in that event he thought he could go around the end of the train. The train did not stop so he ran into the ditch on the left-hand side of the highway in order to avoid a collision. He went to the left as he had no chance to get around the right end of the train on account of the long, string of freight cars. He states that if he had not gone into the ditch he would have hit the train. The place of the accident was outside the city limits of Beaumont and forty miles an hour was not an unlawful rate of speed. The driver testified he was looking straight ahead and did not look to the right. The driver also testiijed that the ear at the end of the train was about the same color as the pavement. As it was dark at the time, .this fact would be an additional explanation as why he did not see the train sooner. It was a question of fact for the jury, under the evidence in this case, as to the distance from the crossing the driver and injured party should have commenced exercising some care to discover whether a train was about to cross the highway. Barron v. Houston E. & W. T. R. Co., supra, and eases therein cited.

It is now too well settled to admit of argument that it is not contributory negligence, as a matter of law, for a person to fail to stop, look, and listen before going upon a railroad track. It is contended that the driver of the automobile was guilty of negligence which Contributed to the accident in failing to look to the west of the highway. He says he,was watching the road ahead. It is our opinion that in keeping a close lookout ahead, under the facts and circumstances of this case, his conduct was more in keeping with the conduct of a careful man than a careless man. In any event, we believe it was an issue for the jury. We think our conclusions are supported by the following authorities: Trochta v. M. K. & T. Ry. Co. (Com. App.) 218 S. W. 1038; Lancaster v. Browder (Tex. Com. App.) 256 S. W. 905; Freeman v. Galveston, H. & S. A. R. Co. (Tex. Com. App.) 285 S. W. 607; Barron v. Houston E. & W. T. R. Co., supra; and many other cases of libe holding not necessary to cite.

The cases relied on to support the instructed verdict are not, in our opinion, in point as applied to the facts of this case. In Robinson v. Houston Belt & Terminal Ry. Co. (Tex. Civ. App.) 23 S.W. (2d) 894, the accident took place within the city limits of the city of Houston. The plaintiff, Robinson, ran his motorcycle into a moving train which was across the highway. We gather from the opinion that the track on which the train was moving was a main line track of the company. We should think it would he negligence for a person to run into a train blocking a paved street.

In the case of Texas Mex. Ry. Co. v. Hoy (Tex. Com. App.) 24 S.W. (2d) 18, it was held that it was contributory negligence, as a matter of law, to drive an automobile into a tank car which was standing on the main line of the railroad company blocking one of the principal thoroughfares of the city of Laredo. It was shown that the injured party was thoroughly familiar with the railroad crossing and knew that trains ■or cars might be using or occupying the same at any time of the day or night. These facts, we think, are materially different from the evidence in the, case under consideration.

In Murphy v. Milheiser (Tex. Civ. App.) 30 S.W.(2d) 586, the injured party was riding in an automobile traveling eighty miles an hour on the highway between Galveston and Houston. This speed was maintained for about twenty-five or thirty miles before the ear turned over. The injured party, was suing the owner and driver of the car for his negligence in traveling at this excessive rate of speed. There was no question raised in this case that the speed was not the cause, of the accident and, as the rate of speed was a violation of the law, it was negligence per se. The injured party was familiar with driving automobiles and knew that the ear was being driven at eighty miles an hour and made no protest. The court there properly held that the negligence of the driver would be imputed to him and that he was guilty of negligence, 'as a matter of law, in not protesting.

In Missouri-Kansas-Texas R. Co. v. Cheek (Tex. Civ. App.) 18 S.W.(2d) 804, a man driving a team of young mules parallel to the highway, his wagon being loaded with hay, sued the railroad company for damages caused by one of its trains frightening the team and causing them to run away and overturn the wagon. The driver was on top of the load of hay and he was. injured. The act of negligence was that the engineer caused an unusual and unnecessary emission of steam and noise, which was calculated to frighten the team driven by the plaintiff. On defensive issues of negligence on the part of the plaintiff the jury found that the plaintiff was guilty of negligence in driving a team and wagon upon the highway at the place in question and loaded in the manner it was loaded; that the plaintiff was guilty of negligence in failing to stop the team and get off the wagon when he discovered the train approaching; and that the negligence of the plaintiff in these respects caused or contributed to his injury. The jury found-the railroad company guilty of negligence, and notwithstanding the findings that the plaintiff was guilty of contributory negligence, the trial court entered judgment against the defendant for $4,000. There was no statement of facts, but the case was appealed solely on the riuestion that under the verdict of the jury judgment should have been rendered for the defendant. The Court of Civil Appeals necessarily sustained that contention.

The case of Texas & N. O. Ry. Co. v. Adams (Tex. Civ. App.) 27 S.W.(2d) 331, is relied upon by appellee in its brief to sustain the judgment herein appealed from. The opinion in that case was written by Associate Justice O’Quinn of this court. In that case the driver of an automobile ran into a locomotive while it was backing' its engine and tender across a public road, preparing to make a coupling with freight cars standing on. the west side of the crossing. .The testimony showed that the headlight of the locomotive was burning and that several lights in the engine cab were also burning; that there was an electric red light with an electric wigwag at the crossing and fire was flashing from the oil pan of the engine. The plaintiff testified that he saw the lights of the engine when he was about 250 yards from the crossing and that he could have seen the locomotive on the crossing when he was at least 200 feet from the track. The headlights of his car were burning and there was nothing to keep him from seeing the locomotive at the crossing. He says that he did not actually see it until he was ten feet away. Even under this state of facts the majority of the court was of the opinion that the plaintiff was not guilty of contributory negligence as a matter of law, Judge O’Quinn being the only member of the court who thought the trial court should have instructed a verdict for the defendant on that issue. The case was reversed and rendered because all members of the court were agreed that no actionable negligence on the part of the defendant was shown.

The plaintiff in the ease under consideration alleged negligence on the part of the defendant railroad in failing to have a flagman on the end of the train and in moving the train into the highway without being able to observe that persons using the highway were approaching the crossing, and failing to have any light, fusee, or sparkler at the end of the train, and other acts of negligence, alleging that the defendant used no precaution to warn people using the highway that a train was about to cross. The evidence was sufficient to raise an issue as to one or more of these acts of negligence alleged, and that such negligence was the proximate cause of the injury.

Believing that the issue of contributory negligence was one for the jury, we, therefore, are of the opinion that the judgment of the trial court should be reversed, and the cause remanded for a new trial.


author: LESLIE, J.

text:
    CONNELLEE et al. v. MAGNOLIA PETROLEUM CO.
    No. 926.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1932.
    Rehearing Denied Dec. 2, 1932.

      Anderson, Orr & McCord, of Port Worth, for appellants.
    Conner & McRae, of Eastland, for appellee.
   LESLIE, J.

This suit was instituted by Earn T. Connel-lee and others June 7,1930, for the value of oil alleged to have been taken from the plaintiffs’ land under a lease contract executed by the plaintiffs in favor of the Magnolia Petroleum Company. The defendant interposed various defenses, among them general denial and res adjudicata. The trial resulted in an instructed verdict in favor of the defendant, and from a judgment thereon this appeal is prosecuted.

The wrong charged to the defendant is that it took the plaintiffs’ oil without paying therefor under the one-eighth royalty provision of the- lease. More specifically, the plaintiffs’ theory as alleged is that the defendant, by making use of a mechanical device known as a vacuum pump, took out of the wells on plaintiffs’ land the lighter, more volatile and more valuable portions of the oil, and thus depleted the supply which would or- could have been produced naturally, and also decreased the gravity of the oil left in the ground, thereby making it heavier and in a condition that a large part of it could never be recovered. In other words, plaintiffs take the position in this suit that, whatever casing-head gas the defendant is entitled to under the lease for the sum of $25 per well per annum, the same at most would be merely the amount of casing-head gas that would have “flowed naturally” from said wells, and not the amount of such casing-head gas as was produced by the vacuum pump. It was alleged that the amount of such casing-head gas produced naturally would have been less than 5 per cent, of the amount which was taken by the vacuum pump, and that the defendant fraudulently confused and mixed said products and became accountable to the plaintiff for all the oil and/or gasoline produced by said vacuum pump, and that the plaintiffs were entitled to á one-eighth part of said production, or the value of such an amount, thus produced.

The defendant claimed title by purchase of all the oil, gas, and casing-head gas in place, as well as when recovered and brought to the surface. Its plea of res. adjudicata was based on another suit between the same parties, and growing out of their respective rights and duties under the covenants of the same lease here involved, and which these plaintiffs executed and delivered to the defendant on October 29, 1917. The former suit, its issues and final result appear to have been fully pleaded by both plaintiffs and the defendant on the trial of this case. The plaintiffs proceeded on the theory that the pleadings, judgment, etc., on the former suit disclosed that the instant one was based upon a separate and different cause of action and therefore not subject to the plea of res adjudicata, and the defendant offered the same upon the theory that the same issues of facts and law between these litigants were adjudicated in the former suit and resolved against the plaintiffs, and that, if said issues were not directly involved in the former suit, they were directly incidental to and connected with that catise of action and could and should have been pleaded and determined therein.

The original suit was filed December 15, 1924, later tried, and judgment rendered in favor of the defendant, Magnolia Petroleum Company. An appeal was prosecuted to the Court of Civil Appeals, and the judgment of the trial court reversed. 279 S. W. 597. Error was prosecuted to the Supreme Court, and that court reversed the judgment of the Court of Civil Appeals in an opinion to be found in 11 S.W.(2d) 158. After the original opinion by the Supreme Court, defendants in error made a first and second motion for rehearing, in each of which an opinion was also written by the Supreme Court, and they are to be found in 14 S.W.(2d) 1020, and 20 S.W.(2d) 758. By reference to these opinions a history may be had of the original suit, as well as a clear statement of its object and purimse. In these opinions will also be found the provisions of the oil and gas lease out of which this litigation grows. The statement of facts contains several hundred pages, and it would not serve a useful purpose to undertake to set out in this opinion a detailed statement of the issues and the testimony presented hy this record.

For convenience, and to facilitate a ready understanding of the opinion,- two or three brief provisions of the oil and gas lease will be quoted. Among other considerations to be hereafter noticed, .the lease recites that the grantors, plaintiffs in this suit, for a consideration of $7,620, “granted, sold and conveyed” to the grantee, defendant herein, “all the oil, gas and other minerals in and under the following lands,” the same being described, as well as the interest of each plaintiff therein. With the other rights and privileges under the lease went the “right to enter thereon, open mines, drill wells, lay pipelines and erect all structures and appliances necessary or convenient in searching for, producing, earing for, storing and removing any oil, gas or other minerals found thereon,” etc. The lease further provided, in usual form, that, when the grantee completed a well that was a “producer of oil or gas, * * * this grant shall remain in force for the full term and period herein provided, without the payment of any other sums of money or other things than the royalty herein agreed upon and specified; namely, l/8th of all oil produced and saved, to be delivered free of charge into tanks or pipelines to the grantors’ credit; for each well producing gas only, sold or used off the premises, $200.00 per year; for casing-head gas when sold or used off the premises, $25.00 per year for each well, the payment for gas to be made quarterly in advance; for all other minerals, l/Sth of the net profit thereof.”

The plaintiffs’ right of recovery for defaults alleged in this suit rests primarily on the one-eighth oil royalty provision above. In an answer to the defendant’s plea of res adjudicata, the plaintiffs contend specifically that this action is solely for the oil produced in the easing-head gas by the use of the vacuum pump, and that their right to such oil as was so produced was not considered litigated or determined in the former suit between these parties.

By reference to the pleadings in the former suit, and a careful reading of the opinions rendered therein by our Supreme Court, it is at once apparent that the object of that suit was to recover as for oil under the one-eighth oil royalty clause such amount or the value thereof of the g’asoline recovered by manufacturing process from the casing-head gas produced and saved from the wells drilled by the defendant on plaintiffs’ lands. In the former suit the gasoline claimed to be oil was taken from the casing-head gas as a whole, and our Supreme Court held, on the facts of the former case, that the Magnolia Petroleum Company, defendant here, was, under the terms of the lease, the owner of and entitled to the casing-head gas, together with all of its Constituent elements, including the modicum of oil carried by it in a vaporous form. That the plaintiffs, having parted with the casing-head gas for a valuable consideration, they are not entitled to recover a one-eighth of the gasoline manufactured from such gas as damages, or the value of that amount of such manufactured product. In other words, that court refused to construe the lease contract between the parties to require the lessee, defendant here, to credit lessors, plaintiffs here, with one-eighth of the gasoline manufactured out of casing-head gas, inasmuch as the oil and gas lease in specific terms provided that the lessee should have the same for the payment of $25 per year per oil well.

So much for the former suit. What have we in this one? The plaintiffs have narrowed their original contention. Based upon the holding of the Supreme Court that under the terms of the lease the lessee became the owner of the casing-head gas and the element of oil therein, the plaintiffs here contend that such right of ownership in such oil would be limited to that quantity Nof oil that would “flow naturally” from such wells in casing-head gas, and would not extend to that larger and excessive amount of oil contained in said gas produced by the fraudulent use of the vacuum pump. For this latter, or so-called excessive amount of oil so produced, plaintiffs seek to recover the one-eighth under the oil royalty provision, or the' value of that amount. In other words, regarding gasoline as oil, the object of recovery in the first suit was oil contained in the entire production of casing-head gas, which, in view of plaintiffs’ contentions, it may bo said was composed of two quantities: (1) That which would have “flowed naturally” in such gas; and (2) that additional and excessive amount produced by the use of the vacuum pump. It was the aggregate of these amounts that was involved in the original suit, but the plaintiffs now institute this suit and seek recovery in some manner based upon the second or excessive amount of oil found in the casing-head gas and attributable to the use of the vacuum pump. ^From the foregoing it is apparent that the issues presented and the rights litigated in the instant suit were necessarily involved, litigated, and adjudicated in the former suit. This is as true as the axiom that the whole is equal to the sum of its parts and greater than any one of them. It is evident that the plaintiffs now seek to recover something not emitted from the first suit, but embraced therein, and if there be any difference in the pleadings it consists in the fact that in the instant case it is alleged in specific terms that the excessive amount of oil in casing-head gas was produced by the vacuum pump, concerning the use of which no allegation was made in the first suit.

We are all the more persuaded that the above conclusions are correct in view of the facts that the two suits involved (1) the same parties; (2) the same lands; (3) the same lease; (4) the same royalty provisions relating to the one-eighth oil royalty; (5) the same royalty provision relating to casing-head, gas as such; (6) the pleadings in each case charge that casing-head gas is oil or has elements of oil; (7) the pleadings in each case charge the defendant oil company with, wrongfully appropriating the oil contained in the gas; (8) its failure to account to plaintiffs for same, or the value thereof; and, (9) in each case the plaintiffs claim to be the owners of the oil and/or gasoline and the one-eightli thereof.

Also, it will be observed that in the firmer suit it was alleged that the defendants perpetrated the wrongs and conversions by the unauthorized use of a gasoline manufacturing plant, and in the instant ease that the conversion was effected by the fraudulent use of a vacuum pump in connection with the manufacturing plant. The exact substance was involved in each instance, and the means of effecting the conversion being different, as alleged, would be immaterial and would not change the cause of action.

From these and other phases of the litigation it is evident that both suits are for the recovery of the value, of oil alleged to belong to the plaintiffs, and which oil had been taken from the oil welté in the form of casing-head gas, ahd alleged to have been converted or appropriated by the defendant without accounting therefor under the provisions of the one-eighth oil royalty clause of the lease. Such being the case, defendant’s plea of res adju-dicata should have been sustained. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.(2d) 526, and authorities therein cited.

The principle of res adjudieata or estoppel by judgment as applied to this case is well illustrated in the opinion in Baltimore Steamship Co. v. Phillips, 274 U. S. 316, 47 S. Ct. 600, 602, 71 L. Ed. 1069. There an injured minor sued for damages alleged to be due for various specified acts of negligence. Trial resulted in a judgment that the accident and resulting injury were not due to the negligence alleged, but were due “to the grossly negligent way in which dunnage was taken out of the hold.” Hence recovery was denied ; the true grounds of negligence not having been alleged. Subsequently a suit was' brought in which all the grounds of negligence were alleged. The original decree was set up as res adjudieata. On the trial in the lower court the plea of res adjudieata was overruled on the ground that the second suit was based upon “a different cause of action.” In disposing of the appeal in the second suit, the court used this language:

“Here the court below concluded that the cause of action set up in the second case was not the same as that alleged in the írr&t, »e-cause the grounds of negligence pleaded were distinct and different in character; the ground alleged in the first case being the use of defective appliances, and in the second, the negligent operation of the appliances by the officers and co-employees. Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex. A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not. result in. multiplying the causes of action. ‘The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. “The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.” ’ Chobanian v. Washburn Wire Co., 33 R. I. 289, 302, 80 A. 394, 400 (Ann. Cas. 1913D, 730).
“The injured respondent was bound to set forth in his first action for damages every ground of negligence which he claimed to exist and upon which he relied, and cannot be permitted, as was attempted here,'to rely upon them by piecemeal in successive actions to recover for the same wrong and injury.”

This language is applicable to the facts and issues of the instant case, especially so since it is the plaintiffs’ theory that this suit is separate and distinct from the former one. We do not interpret the opinion of the Supreme Court (20 S.W.(2d) 758, 759), as suggesting that the plaintiff had another and different cause of action than that being considered. However, that opinion does clearly indicate that, in the prosecution of the former suit, the plaintiffs’ petition was “lacking in the essentials necessary to set forth a cause of action for recovery because of the use of the vacuum pump in producing oil from the leased premises.” Evidently a ground of recovery, or element of damages attributable to the use of the vacuum pump, was omitted from the former suit Whicheyer it be, tbe record discloses that the plaintiffs have, at all times, been aware of the use being made by the defendant of the vacuum pump in producing oil and gas from said wells. That fact existed at the time of filing the former suit, and continued to exist apparently down to the time of the trial of the present one. Under such circumstances it is believed that this element of damage or ground of recovery should have been set up in the former suit, for, as said in Stark v. Starr, 94 U. S. 477, 485, 24 L. Ed. 276, “A party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to •be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.”

Eor other authorities see Nichols v. Dibrell, 61 Tex. 541; Carson v. McCormick Harvesting Mach. Co., 18 Tex. Civ. App. 225, 44 S. W. 406; Kirberg v. Missouri State Life Ins. Co. (Tex. Civ. App.) 30 S.W.(2d) 663.

Eor the purposes of this suit, and in view of the terms of the lease and the judgment of the Supreme Court in the former appeal, the gasoline produced from the casing-head gas under this lease is not oil in the sense that it would come under the one-eighth oil royalty provision of the lease, l'et it is the right to the oil element, or a portion thereof contained in such gas, that is the gist of the contention in both suits, and which the final judgment in the former litigation decreed to be in the lessee.

If we pass from a consideration of the plea’ of res adjudieata and consider the contention that the defendant fraudulently undertook to produce by means of the vacuum process the plaintiffs’ oil disguised as casing-head gas, that contention must be viewed in the light of the provision of the lease granting the defendant the right to enter on plaintiffs’ land, to “erect all structures and appliances necessary or convenient in searching for, producing, ⅜ ⅜ * and (removing any oil, gas or other minerals found therein.” These rights being expressly granted, the defendant would incur no liability in using them, among them the vacuum pump, unless it used them in a negligent manner or for the purpose of perpetrating, a fraud on the plaintiffs. As we read this record, and the plaintiffs’ brief as well, no contention is made that the vacuum pump was negligently used to the hurt of the plaintiffs. Neither do they contend that the use of it actually made by the defendant was “inherently fraudulent,” or fraudulent as a matter of law. The instrumentality is not complained of, but, as indicated, the way of its use is challenged as fraudulent in the instant case.

Under the terms of the lease it must be conceded that the defendant had the right to use any and all reasonable means of producing oil, gas, and other minerals called for in the lease. There is no proof that the vacuum pump is not such means. Certainly it had the right to use improved methods in producing them, provided they were reasonably and not fraudulently used. Eurther, it conclusively appears that the use of the pump greatly enhanced the production of oil from plaintiffs’ wells, as well as casing-head gas. There is no evidence of probative force that any other method could have been employed in the production of the oil with advantages and profits equal or greater to lessors and lessee. Under the terms of the lease, the lessee had the undoubted right to stimulate the production of both oil and gas, and the only duty resting upon it was to pay the consideration promised therefor in the lease, the terms of which our Supreme Court has declared to be plain and free from ambiguity. In this state of the testimony, the use of-the vacuum pump under the circumstances cannot be condemned as fraudulent as a matter of fact, and on this phase of the case the instructed verdict was correct; and it is correct for another and more apparent reason: There is no evidence of the amount of crude oil (to which plaintiffs would have been entitled to one-eighth) by which the use of the vacuum pump depleted the crude oil left in the oil formation, and which would have been recovered (in the absence of the use. of the vacuum pump), by some other process. Nor is there any evidence of the value of such amount of oil in the alleged condition of lowered gravity superinduced by the use of a pump.

Plaintiffs have alleged and proved the amount and value of gasoline produced from the casing-head gas. Although this belonged to the defendant, its value as a manufactured or refined product would be no proof of the value of the crude oil alleged to have been converted or depleted in amount and in gravity, and to which the plaintiffs would have been entitled to the one-eighth, or the value thereof. The amount of such gasoline might be a circumstance bearing upon the amount of crude oil removed as a part of the casing-head gas by use of the vacuum pump, but it would not, standing alone, which it does, prove such amount. Proof of the amount of gasoline so extracted and its value did not furnish sufficient evidence of re--eoverable damages, and on that phase of the case the instructed verdict was authorized.

There are several assignments in the brief based upon alleged errors of the trial court in the exclusion of testimony as complained of in bills of exceptions 2 to 11, both inclusive. Tlie bills failed to disclose what the answers of the respective witnesses would have been, and for that reason we are unable to determine the materiality of the proffered testimony. For that reason no error is shown, and the assignments are overruled. 3 Tex. Jur., p. 470, § 331, and authorities cited.

Another assignment is based on the court’s exclusion of certain testimony by the witness Clark. He first testified that he knew of a process known as the “repressure method,” and, on being asked to explain the same, the court refused to permit him to do so. In the absence of a jury, and for the purposes of the bill, he explained same as a method of re-establishing in the oil-producing horizon the gas pressure that had been exhausted by the depletion of the gas in the same. That it was a method of bringing back the condition which existed in the producing sand as it was in the original state. That gas is foz'ced into what is termed a “key well,” which is not producing oil, and thence into the formation to restore original conditions in the same. He then stated that he had had “access to records of property” that was operated under vacuum, but which was later changed to the repressure method, and that the gasoline content while operating under vacuum was 6 gallons per thousand cubic feet of gas, and that when the repressure method commenced to show results, the gas coming from the wells had only a content of 2 gallons per thousand, and that the production of crude from “the properties was materially increased” by the use of the represSure method. That the recovery under that method greatly “exceeded the production by use of vacuum.” That such observations were made by the witness about 1927.

Although the correctness of an instructed verdict is before us, there appears to be no error in said action of the trial court. In reaching this conclusion, the excluded statement of the witness vyd! be taken as having been admitted and true for the purpose of disposing of this question. It will therefore be considered independently and in connection with the other testimony in this record. If it had any value whatever, it was upon the issue of fraud, and, considered in that connection, the instructed verdict was nevertheless correct, for the plaintiffs’ case, as hereinbefore shown, falls short of being a case of fraud based upon the alleged use of the vacuum pump. Neither does the testimony establish any element of damage which is essential to a fraud case, and in any event the action of the court in excluding the testimony would be immaterial if we are correct in holding that the defendant’s plea of res adjudicata should be sustained. The exclusion of such testimony, if error at all, is harmless.

The controlling questions raised by the assignments have been considered and disposed of, as above indicated. The others become immaterial, in view of the conclusions reached. -

For the reasons assigned, the judgment of the trial court will be affirmed.


author: PEDPHREY, C. J.

text:
    UNIVERSAL CREDIT CO. v. WILLIAMS.
    No. 2723.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 10, 1932.
    A. T. Folsom, of Wink, for appellant.
    V. S. Gary, of Wink, for appellee.
   PEDPHREY, C. J.

This is an appeal from the county court of Winkler county from a judgment rendered therein on December 26,1931.

It appears that the term of court at which the case was tried ended on the same date, and that the appeal bond herein was not filed until January 21, 1932.

The terms of county court, unless increased by the commissioners’ court of the county, shall continue for only three weeks, article 1961, as amended by Acts 1929, 1st Called Sess., c. 48, § 2 (Vernon’s Ann. Civ. St. art.' 1961), and article 1962, Revised Statutes, and, in order to perfect an appeal from a judgment of a court where the term continues only three weeks, appeal bond must be filed within twenty days after the expiration of the term. Article 2253, R. S., as amended by Acts 1927, c. 15, § 1 (Vernon’s Ann. Civ. St. art. 2253).

The bond herein having been filed more than twenty days after the expiration of the term, this court has no jurisdiction, and the appeal must be dismissed.


author: WALKER, C. J.

text:
    TEXAS & N. O. R. CO. v. DAVIS.
    No. 2279.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 10, 1932.
    Lamar Cecil, of Beaumont, and Stevens & Stevens, of Houston, for appellant.
    H. A. Maynard, of Liberty, and E. E. Davis, of Beaumont, for appellee. '
   WALKER, C. J.

This case originated in the justice court of Liberty county, and is before us on a second appeal from the judgment of the county court of that county awarding appellee judgment for $50 as the value of two cows killed by appellant. On the former appeal, T. & N. O. Railway Co. v. Davis, 26 S.W. (2d) 1106, to which we refer for a full statement of the nature of this suit, the issue was the ownership of these cattle, and, though that issue in the lower court was found in favor of ap-pellee, we reversed the judgment and remanded the cause for a new trial on the ground that the verdict was without support in the evidence. The same proposition is presented on this appeal, but a careful review of the statement of facts convinces us that appellee has sustained his claim of ownership.

Under article -2065, the lower court erred in adjudging the costs of the county court against appellant. In justice court, ap-pellee recovered judgment, for $150 as the value of his cattle, but in county court his judgment was reduced to $50. Under the provisions of article 2065, R. C. S. 1925, appellant was entitled to recover the costs of the county court, except upon a showing of good cause for taxing it otherwise, under provisions of article 2066. The record in this case fails to disclose “good cause.” T. & N. O. R. R. Co. v. Davidson (Tex. Civ. App.) 24 S.W. (2d) 75; Hall v. Ellwood (Tex. Civ. App.) 34 S.W.(2d) S92.

Appellee was awarded interest on the value of his cattle, as fixed by the jury, at the rate of 6 per cent, per annum from the 22d day of August, 1928, the date his cattle .were killed. The cattle were killed at a point where appellant’s right of way was fenced, under the provisions of article 6402, R. C. S. 1925. Under the construction given by our courts to this article of the statute, appellee was entitled to interest only from the date of his judgment. I. & G. N. Railway Co. v. Barton, 93 Tex. 63, 53 S. W. 1117; St. Louis Southwestern Ry. Co. of Texas v. Chambliss, 93 Tex. 62, 53 S. W. 343; Fort Worth & R. G. R. R. Co. v. Chisholm (Tex. Civ. App.) 146 S. W. 988; St. Louis & Southwestern Ry. Co. of Texas v. Post (Tex. Civ. App.) 220 S. W. 129.

Appellee’s cross-assignment against the verdict of the jury fixing the value of his cattle at $50 is overruled. The evidence would have sustained a judgment for a much larger sum, but the issue was submitted to the jury, arid its finding should not be disturbed.

Reformed and affirmed.


author: ALEXANDER, J.

text:
    HAKE et al. v. DILWORTH et al.
    No. 1402.
    Court of Civil Appeals of Texas. Waco.
    Dec. 9, 1932.

      Nat Harris, S. J. T. Smith, and Sleeper, Boynton & Kendall, all of Waco, for appellants.
    John McNamara and J. W. Spivey, both of Waco, for appellees.
   ALEXANDER, J.

This action was brought by Anna L. Hake, individually and as independent exefiutrix of the estate of T. M. Dilworth, deceased, and Mrs. Marion Lucenay, against Tom G. Dil-worth and the Southwestern Bell Telephone Company, for an injunction, restraining said defendant Tom G. Dilworth from using certain fictitious names in conducting and advertising his business as an abstractor of land titles in the city of Waco and to restrain the Southwestern Bell Telephone Company from listing said defendant Tom G. Dilworth’s business as conducted under said fictitious names in the telephone directory iinder the telephone number of the said Tom G. Dilworth. The plaintiffs alleged that T. M. Dilworth, deceased, during his lifetime owned and operated an abstract plant in the city of Waco under the names of “McLennan County Abstract Company” and “The Waco Abstract Company” ; that said business had been extensively advertised under said names and that the right to the exclusive use of said names in the operation of said business was a valuable asset; that Anna L. Hake and Mrs. Marion Lucenay, two of the plaintiffs, and Tom G. Dilworth, one of the defendants, were the ehildi-en and heirs at law and sole equal dev-isees under the will of T. M. Dilworth, deceased, and that the said Anna L. Hake was the independent executrix of the estate of the said T. M. Dilworth, deceased; that, after the death of the said T. M. Dilworth, said executrix as such had taken charge of said estate and continued to carry on the business of said abstract business so belonging to said estate under said fictitious names, and had fully complied with the law by filing in the office of the county clerk of McLennan county an affidavit showing that she as such independent executrix was the owner of the “Waco Title Company,” “McLennan County Abstract Company,” and “The Waco Abstract Company.” The plaintiffs further alleged that the defendant Tom G. Dilworth was engaged in the business of operating another and different abstract plant in the city of Waco, and that on or about the 29th day of March, 1932, said defendant fraudulently and for the purpose of deceiving the public and diverting the abstract business from the abstract plant so operated by said executrix and for the purpose of acquiring said business himself had filed in the fictitious name records of McLennan county an’ affidavit in which said defendant claimed to be the owner of and entitled to use the names of the “Waco Title Company,” “McLennan County Abstract Company,” and “The Waco Abstract Company,” and had erected at the door of the place where his abstract business was conducted a sign advertising his business as conducted under said fictitious names, and was preparing to advertise said business in the telephone directory of the city of Waco and to have the same listed therein under the telephone number and address of said business, and that said defendant would continue to so advertise his business under said fictitious names and to divert the trade belonging to plaintiffs from the abstract plant so operated by them unless he was restrained from doing so.

This suit was cause No. 32166 on the docket of the trial court. Prior to the time of the filing of this suit, the defendant Tom G. Dil-worth had filed in the same trial court .a suit against Mrs. Anna Hake, individually and as independent executrix of said estate, in which the said Tom G. Dilworth as plaintiff in said suit had alleged that he had the exclusive right to use the fictitious names of “T. M. Dil-worth Abstract Company,” “McLennan County Abstract Company,” and “The Waco Abstract Company” in conducting and advertising his business as an abstractor in McLen-nan county, and that the defendants in said suit were using said names in conducting the business of the estate of T. M. Dilworth, deceased. He prayed for an injunction restraining the defendants in said suit from using said names. The defendants in said suit answered by a general demurrer and a general denial, and asserted the right of said executrix to use said fictitious names in advertising the abstract business so conducted by the said Anna Hake as executrix of said estate. Upon a trial of that case before a jury, the jury found that the said Mrs. Anna 1-Iake, individually and as executrix of said estate in the use of said fictitious names in the manner alleged by the plaintiffs, was not calculated to mislead the public generally nor to cause the public to confuse their business with the business so conducted by the said Tom 6. Dil-worth. Thereupon the court in said cause No. 32106 entered a judgment for defendant denying the injunction as therein prayed. The plaintiff in said cause No. 32106 duly appealed to this court, and the same is now pending herein.

Upon the presentation of the petition in the case here under consideration to the trial court, said court, without any answer having been filed therein, concluded that it was without jurisdiction to hear and determine the question involved because the same question was involved and had been determined in said cause No. 32106 on the docket of said court, styled Tom Dilworth v. Anna L. Hake et al., and, as a consequence, of its own motion, proceeded to dismiss the petition in this suit. The plaintiffs appealed.

The trial court concluded, and so certifies in its order dismissing the petition for injunction herein, that it did not have jurisdiction to hear and determine the question involved herein because the same questions were involved in said cause No. 32106 now pending on appeal in this court. It is apparent, therefore, that the trial court has dismissed the petition without adjudicating or determining the merits thereof. In this we think the court was in error. Upon the presentation of the petition herein, the trial court had the right to pursue either one of two courses in the exercise of its original jurisdiction. It could have accepted the petition and either granted or refused the temporary writ without hearing the evidence, or it could have set the ease for hearing, and, after hearing the facts, could have either granted or refused the injunction, as warranted by the facts. Since the trial court has not exercised its original constitutional jurisdiction to act on the merits of the petition, we do not deem it proper for this court at this time to determine whether or not the court should have granted or refused the writ. This is a matter which should be first determined by the court of original jurisdiction.

Since the case must be reversed and remanded for another trial, we deem it proper for this court to express an opinion on the question of whether the judgment in said cause No. 32106 disposes of the issues here involved. The record in said cause No. 32106, styled Tom Dilworth v. Anna Hake et al., is now on file in this court; an appeal having been duly prosecuted. Under the authorities it seems we are authorized to take judicial notice of the contents of said record.' Cochran County v. Boyd (Tex. Civ. App.) 26 S.W.(2d) 364; Jones v. Osbolt (Tex. Civ. App.) 46 S.W. (2d) 422; Cocke v. Wright (Tex. Civ. App.) 23 S.W.(2d) 449; Ætna Insurance Co. v. Dancer (Tex. Com. App.) 215 S. W. 962. We have examined said record, and in our opinion the judgment in cause No. 32106 does not dispose of the issues here involved. In that case the defendant therein, plaintiff in this cause, did not file a cross-action to recover the exclusive right to use said fictitious names nor seek injunction restraining said Tom Dilworth from in any wise using such names nor otherwise request affirmative relief. In that case judgment was for the defendant, and the plaintiff was denied the right to enjoin the defendant from using said fictitious names. The right of the plaintiffs herein to restrain the defendant from using said fictitious names was not raised by the pleadings in the former action, and could not therefore have been litigated therein. Pishaway v. Runnels, 71 Tex. 352, 9 S. W. 260. It was not necessary for the defendant in that case to prove her exclusive right to the use of said names in órder to defeat the action as brought by said plaintiffs.

Counsel for appellant in their argument before this court insists that this court should issue an injunction restraining the defendant from using said fictitious names, effective until the mandate can issue and the trial court again acquire jurisdiction over the subject-matter. Appellant has not, however, filed in this court any independent written application for such injunction. The case is presented to this court solely on the transcript from the trial court. We are not authorized to exercise such extraordinary authority on the record as presented. Moreover, we would not feel justified in exercising such extraordinary authority in this case should such an application be presented. An appellate court will sometimes issue an injunction to hold the matter in status quo in order to preserve and protect its jurisdiction over the subject-matter, but it will not grant a temporary writ of injunction merely for the purpose of preventing damages that would otherwise flow to a litigant pending appeal to this court. Madison v. Martinez (Tex. Civ. App.) 42 S.W. (2d) 84, par. 2, and authorities there cited. To exercise such right in this ease would in part accomplish the purpose of the suit, and would, in effect, be reversing and rendering the case before the merits have been passed on by a court of original jurisdiction. The question of whether or not the injunction should be issued is primarily for the court of original jurisdiction.

The judgment of the trial court is reversed, and the cause remanded for a new trial.