text:
    RAILROAD COMMISSION OF TEXAS v. SHUPEE.
    No. 7781.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    Rehearing Denied Feb. 1, 1933.

      James V. Allred, Atty. Gen., T. S. Christopher, Ass’t. Atty. Gen., and J. W. Wheeler, of Austin, for appellant.
    Hart, Patterson & Hart and Hardy Hollers, all of Austin, for appellee.
   BLAIR, Justice.

As preliminary and to avoid undue repetition oí the rules of law applicable it may be stated that this case and the cases of Railroad Commission et al. v. T. M. Winkle (Tex. Civ. App.) 57 S.W.(2d) 287; Railroad Commission v. T. M. Winkle (Tex. Civ. App. No. 7865) 57 S.W. (2d) 285; Railroad Commission et al. v. George A. Scott Truck Line (Tex. Civ. App.) 57 S.W. (2d) 293; Railroad Commission et al. v. Jacob T. Bradberry (Tex. Civ. App.) 57 S.W. (2d) 294; Railroad Commission et al. v. R. M. Rogers (Tex. Civ. App.) 57 S.W.(2d) 294, and Railroad Commission et al. v. Inter-City Forwarding Company (Tex. Civ. App.) 57 S.W. (2d) 290, involve the same or similar questions and are determinable by the same general principles of law. That is, in each appeal a particular order of the Railroad Commission relating to the right to use the public highways for the operation of either motor busses or motor trucks for hire is attacked as being either unlawful, or as being unreasonable and unjust to the complainant; and in each appeal there is involved either the construction of the similar appeal sections of the Motor Bus Act (section 17, Acts 1927, c. 270 [Yer-non’s Ann. Civ. St. art. 911a, § 17]) and the Motor Carrier Act (section 20 [Vernon’s Ann. Civ. St. art. 911b, § 20]) to determine the meaning of the term “unreasonable and unjust,” as used in the acts; or the application of the same general principle of law on which the court acts in determining on such statutory appeal whether the particular order of the commission complained of is “unreasonable and unjust” within the meaning of that term as used in the appeal sections of the acts, and particularly the application of these general principles of law in determining the sufficiency of either the pleadings or proof necessary to show that the particular order complained of is unreasonable and unjust as to complainant. We have, therefore, chosen this case, which will be referred to in each of the other appeals as the Shupee Case, in which to write the initial opinion; and the principles of law herein announced will be applied to the particular facts in each appeal where it is possible to do so.

This suit arose as an appeal by appellee from an order of the Motor Bus Division of the Railroad Commission denying his application for a “certificate of convenience and necessity” to operate a bus line between the cities of San Antonio and Fort Worth by way of certain intermediate towns and cities. The commission denied the certificate upon the sole ground that “a public necessity for such operation does not exist.” On his appeal to the district court appellee alleged that this order of the commission was unreasonable and unjust as to him, because “not sustained or justified by facts” adduced on the hearing of his application before the commission. And further, as particular facts showing a public necessity for the bus line and as establishing that the order was unreasonable and unjust as "to him, appellee alleged that in his application for the certificate he alleged in substance that two routes existed over which bus lines could operate between the cities of San Antonio and Fort Worth, the first route being through New Braunfels, San Marcos, Austin, Georgetown, Belton, Waco, Hillsboro, and other intermediate points; and that this route is a frequently traveled highway and upon which a number of bus lines now operate. That the second route, appel-lee’s proposed route, passed through Johnson City, Burnet, Lampasas, Hamilton, Walnut Springs, Caulk, Glenrose, Cleburne, and other intermediate points, having an estimated population of about 15,000 people. That ap-pellee’s application was accompanied by a plat or map delineating the lines of existing .transportation facilities over highways serving the said territory, with the names and addresses of the owners; and that his application set fórth a total lack of existing transportation facilities over said route and an inadequacy of service existing between the cities of San Antonio and Fort Worth. That there was a lack of transportation facilities between the intermediate points of the proposed route, and between the intermediate points and the termini cities; and that’thei proposed route would shorten by 20 miles the distance between the termini cities and was less frequently traveled, thereby saving traveling time, and rendering the proposed route less dangerous than the first route. And that the highways along the proposed route were in good condition and capable of being used by busses at all times of the year; and that he attached to his application a schedule of operation and rates which he alleged were reasonably adequate to meet the needs of the territory and compensate for the operations; and that there existed a public demand and desire for such operations.

Appellee further alleged that he. introduced evidence sustaining all of the aforementioned facts before the commission, and alleged that he proved on the hearing of the application •with respect to the necessity of the proposed, route, as follows: “* * * That said towns and communities and the officials of said counties are desirous of obtaining such service ; that the highways along said route are in good condition and capable of being used by busses ait all times of the year, that the use of said route will shorten the traveling time by bus between said cities of Fort Worth and San Antonio, and that traveling by said route will be less dangerous than by the route now used by bus lines between said cities.”

The commission answered by a general demurrer, which was overruled, and a general denial.

A trial to the court without a jury resulted in a judgment setting aside the order of tlie commission denying tlie permit as being “unjust and unreasonable” as to appellee; and enjoining tlie commission from interfering with appellee in the operation of the bus line over the route designated, except to regulate and supervise the operation as required •by the statutes; hence this appeal.

The commission contends that before appel-lee might vacate its order denying the certificate of convenience and necessity as being unreasonable and unjust, he was , required to both allege and prove specific facts showing that there was no evidence adduced on the hearing of his application to support the order denying the certificate; or that, having regard to the interests of both the public and appellee as the proposed carrier, it is so arbitrary as to be beyond the exercise of the reasonable discretion and judgment vested by the statutes in the commission to grant or deny any person or corporation the right to operate a bus line over the public highways of this state; and that the judgment of the trial court should be reversed because neither the pleadings nor the proof adduced on the appeal and trial de novo showed the existence of any such state of facts.

Appellee insists, however, that this proposition of appellant does not state the true principle on which the court acts in determining on such Statutory appeal whether the order of the commission denying the certificate was unreasonable and unjust as to him, because section 17 of article 911a authorized his appeal, and because its language, that the question on appeal “shall be tided and determined as other civil causes,” and that the 'trial “shall be de novo,” and that “the burden of proof shall rest upon plaintiff who must show by a preponderance of evidence that the decision w * * complained of” is “unreasonable and unjust as to him,” clearly gave the court on appeal general power and jurisdiction over all the acts of the Railroad Commission in its administration of the Motor Bus Laws, to try anew any appealable matter, and to substitute its own finding based upon a preponderance of the evidence adduced on the trial de novo for that of the commission. And based upon this construction of the appeal statute, it is the contention of appellee that he was merely required to allege on his appeal that in his application for the certificate to operate the bus line, he alleged, and on the hearing thereof before the commission proved, a public necessity for the proposed bus line; and to allege on the appeal and prove on the trial de novo by a preponderance of the evidence that a public necessity did exist for the proposed bus service; and that having so alleged and proved such facts, the order was therefore unreasonable and unjust as to him, and the court was authorized to reverse or set it aside. These contentions of appellee cannot be sustained.

If appellee’s construction of the appeal statute is erroneous, then all of his contentions or propositions are erroneous, because they do not present the ultimate question to be determined on this appeal. We are clear in the view that appellee has erroneously construed the statute; and we construe it :to mean that the court on appeal shall not interfere with the Railroad Commission or review its acts administering the Motor Bus Laws further than is necessary to keep it within the law, and to require that its orders shall be based upon evidence, and'not upon an arbitrary exercise of its discretionary power and authority. In such a review of the acts of the commission on appeal the ultimate question for the court to determine is the mixed question of law and fact as to whether the commission acted within its statutory power and discretion; and it is this ultimate fact issue which 'the statute requires that the plaintiff shall prove by a preponderance of the evidence on the appeal and trial de novo. As applied to this case this rule would require appellee to allege and prove by the preponderance of the evidence that there was no evidence to support the order denying his application for a certificate of convenience and necessity to operate the proposed bus line; or that, having regard to the interests of both the public and appellee as the proposed common, carrier for hire, it was so arbitrary as to be beyond the exercise of the reasonable judgment and discretion vested by the Motor Bus Laws in the commission to deny the certificate after a hearing.

In support of our construction of the appeal statute to mean that the court on such statutory appeal shall not interfere with the Railroad Commission or review its acts administering tlie' Motor Bus Laws further than is necessary to keep it within the law, and to require that its orders shall be based upon evidence, and not upon an arbitrary exercise of its discretionary authority, thereby rendering its acts unreasonable, it may be observed that the act vests in the commission the broad discretionary power and authority to issue an applicant a certificate of convenience and necessity to use the public highways ■ of this state for the operation of a motor bus line as a common carrier for hire only when and “if there exists a public necessity for such service.” The act further provides that in determining whether such public necessity exists for the bus line, the commission has “the power and authority, and it is its duty” to determine as the primary question involved whether the proposed use of the highways by applicant will unreasonably interfere with the use of such highways by the general public for public purposes, which inquiry may include the condition ánd state of repair of the particular highways, whether maintained by state or local authority, at whose expense future repairs are to be made, whether if nob maintained entirely by the state, it would, place too great a burden upon local authorities to maintain the highways with the additional traffic due to the operation of the proposed bus line, the uses to which the highways are already subjected by the general public, and any and all matters or things which might unreasonably interfere with the use of the highways by the general public. The commission shall also determine whether the services rendered or capable of being rendered by existing transportation facilities or agencies on such highways or the territory being served is reasonably adequate. The only limitation placed upon the commission’s power and authority in this respect is the limitation applying only to motor bus operations and found in section 7 of the Motor Bus Act (Acts 1927, c. 270 [Vernon’s Ann. Civ. St. art. 911a, § 7J), which provides that “the Railroad Commission shall have no power in any event to refuse an application for a certificate of convenience and necessity on the ground that there are existing railroad or inter urban railroad transportation facilities sufficient to serve the transportation needs of the territory involved.” And in addition to determining the administrative matters provided for in the aforementioned general provisions of the act, it further provides that the commission shall determine all matters and things required to be contained in the application for the certificate; and that the commission shall, after a hearing on the application, grant or deny the certificate as in its discretion and judgment may seem best and proper. And the appeal authorized by the act is only for a review of the order or decision complained of as to whether it is “unreasonable and unjust” as to the complaining party; that is, whether the commission has performed its administrative functions in accordance with the provisions of the Motor Bus Laws, and based its decision upon evidence adduced on the hearing, and not upon an arbitrary exercise of its discretionary power and authority. See chapter 270, Acts 40th Leg., p. 399, §§ 3, 6, 7, 8, 9, and 17, as amended by 1st Galled Session, 41st Leg.

It may also be further observed in this connection that the decisions of the courts are uniform in holding that the use of the public highways of this state for the operation of a motor transportation service as a common carrier for hire is a special or extraordinary use, enjoyed not as a matter of-right but as a special privilege which may be granted by the commission after a hearing on proper application, only when and “if there exists a public necessity for such service, and if public convenience will be promoted by granting said application and permitting the operating of motor (vehicles on the highways.” Ex parte Sterling (Tex. Sup.) 53 S.W.(2d) 294; Ex parte Phares (Tex. Sup.) 53 S.W. (2d) 297; Box v. Newsome (Tex. Civ. App.) 43 S.W.(2d) 980, 981; Stephenson v. Binford (D. C.) 53 F.(2d) 509; Texas Motor Coaches v. Railroad Commission (Tex. Civ. App.) 41 S.W.(2d) 1074, 1077.

Beyond question the statutes aforementioned give the Railroad Commission the broad discretionary power and authority to determine when and if a public necessity exists for the issuance of a certificate of public-convenience and necessity to operate a bus line over the public highways of this state. The term “public necessity” is not specifically defined in the act. However, the act vests the commission with the broad power and authority “to ascertain and determine under such rules and regulations as it may promulgate,” and after considering ail the statutory conditions and requirements aforementioned to grant an application for a certificate only when and “if there exists a public necessity for such service, and if public convenience will be promoted by granting said application,” thus showing how completely the sub-, jeet of public necessity for the operation of motor busses on the public highways has been placed within the discretionary power and authority of the commission. Woolf v. Del, Rio Transportation Co. (Tex. Civ. App.) 27. S.W.(2d) 874. There is nothing in the act which contemplates that the court on appeal shall review these purely administrative functions of the commission, and the appeal section of the act in question clearly limits the court on appeal to a review of the sole question of whether the order or decision complained of is “unreasonable and unjust” as to the complainant. In view of this broad discretionary power and authority vested in the commission to issue certificates of public convenience and necessity to operate bus lines over the public highways, it necessarily follows that appellee must allege in his petition on appeal the specific fact or facts on which he relied to show that in denying his certificate the commission either transcended its statutory authority or promulgated rules; ■ or that there was no evidence adduced to support the order; or that'the commission abused its discretionary power and authority, thereby rendering the order or decision complained of unreasonable and unjust as to him within the meaning of the appeal statute.

Appellee does not contend that he so alleged in his petition on appeal. He eon-, cedes that his allegations to the effect that there was no evidence to support the order, and that there was a total lack of transporta-, tion. facilities over his proposed route; and that the order denying his certificate was unreasonable and unjust as to him, are but com. elusions, and standing alone are not sufficient. Clearly the specific allegations of fact or facts do not meet the test aforementioned. The allegations as to. the inadequacy-of. existing transportation facilities, together with the map and plat delineating them and attached to the application as required by the act, show in themselves a reasonable basis upon which the commission could have determined the existing facilities reasonably adequate. The allegations that because the distance was shorter over the proposed route .than over the other existing route between the termini cities, and the proposed route was less frequently traveled and less dangerous does not show a public necessity, but a mere public convenience. Public convenience alone does not authorize the issuing of the certificate. There must be public necessity as well. To the same effect are the allegations with respect to existing transportation facilities between intermediate points on the route, and intermediate points and termini cities. In short, the specific allegations of the petition, viewed in their entirety, merely alleged facts upon which the application might have been granted; or question the soundness of the discretion or judgment of the commission in denying the certificate; but do not allege any facts showing an abuse of its discretionary power and authority by the commission. Or, stated another way, the allegations of specific facts merely seek to put the court in the place of the commission to try the administrative matter of refusing to grant the certificate of convenience and necessity anew as an administrative body, substituting its-findings, based upon a preponderance of the evidence adduced on the trial de novo, for those of the commission.

Because of the recent enactment of the Motor Transportation Laws, our courts have not heretofore decided the exact question presented here. But numerous decisions in other states having similar public administrative bodies and laws, and in the United States courts, support our above conclusion as to the insufficiency of appellee’s pleadings, and by analogy and on principle the decisions of our courts determining similar questions as to the administrative and discretionary functions of other similar public administrative boards or bodies also sustain our holding.

We will not attempt in this opinion to make.an exhaustive review of the legion of authorities which discuss the principle ; nor will we attempt to make an exhaustive statement of this now settled principle on which the court acts in determining on such statutory appeal whether the order of an administrative board or commission of the government is “unreasonable and unjust.” In brief, they hold that where the appeal statute merely authorizes a review by the courts of the order to determine whether it is unjust, unreasonable, unfair, arbitrary, discriminatory, etc., that such statute shows “the Legislature never intended that the court should put itself in the place of the commission, try the matter anew as an administrative body, substituting its findings for those of the commission.” State v. Great Northern R. Co., 130 Minn. 57, 153 N. W. 247, 248, Ann. Cas. 1917B, 1201, and cases cited. They further hold that the court “will not consider the expediency or wisdom of the order, or whether on like testimony, it would have made a similar ruling.” Interstate Commerce Commission v. Great Northern R. Co., 222 U. S. 541, 32 S. Ct. 108, 111, 56 L. Ed. 308, and cases cited. They also hold that “the findings of the commission are made by law prima facie true,” and that courts “ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience.” Illinois Cent. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 27 S. Ct. 700, 704, 51 L. Ed. 1128; Interstate Commerce Commission v. G. N. R. Co., supra; Producers’ Refining Co. v. Missouri, K. & T. R. Co. (Tex. Com. App.) 13 S.W.(2d) 679; Railroad Commission v. Bass (Tex. Civ. App.) 10 S.W.(2d) 586; Gilmore v. Straughan (Tex. Civ. App.) 10 S.W.(2d) 589; Railroad Commission v. Rau (Tex. Civ. App.) 45 S.W.(2d) 413; Railroad Commission v. Weld & Neville, 96 Tex. 394, 73 S. W. 529. And further, in the case of People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84, 113 N. E. 795, 796, Ann. Cas. 1916E, 1042, it is held as follows: “It was assumed perhaps, by the Legislature that the members of the Public Service Commissions would acquire special knowledge of the matters intrusted to them by experience and study. * * * jt was not intended that the courts should interfere with the commissions or review their determinations further than is necessary to keep them within the law and protect the constitutional rights of the corporations over which they were given control.”

The above case went to the Supreme Court of the United States, 245 U. S. 345, 38 S. Ct. 122, 124, 62 L. Ed. 337, and that court in affirming the decision of the Supreme Court of New York said: “These administrative commissions, with large powers, were called into existence, with an organization and with duties which peculiarly fit them for dealing with problems such as this ease presents, and we agree with the Court of Appeals of New York in concluding that the action of the Commission complained of was not arbitrary or capricious, but was based on very substantial evidence, and therefore that, even if the courts differed with the Commission as to the expediency ⅜ * * of the order they are without authority to substitute for its judgment their views of what may be reasonable or wise.”

In the case of Modeste v. Public Utilities Commission, 97 Conn. 453, 117 A. 494, 495, where the Public Service Commission granted a certificate to operate a jitney over a specified route, the court held as follows: “Where •an action of an administrative body involves only purely administrative matters, on a statutory appeal from such a body the court has before it only the question whether the body has acted illegally or has exceeded or abused its power; otherwise the body’s action, involving only an administrative matter, is final, and, in considering the question of exceeding or abuse of powers, the question as to whether its action was beyond its statutory powers or beyond its jurisdiction, or whether it had acted arbitrarily, as without notice and due hearing, are proper matters.”

In the case of Chicago Motor Bus Co. v. Chicago Stage Company, 287 Ill. 320, 122 N. E. 477, 478, the court said-: “Under Public Utilities Act, § 68, it is not sufficient to justify reversal of reasonable order of Public Utilities Commission made in lawful exercise of its powers, that court of review should be of opinion that order was unwise or inexpedient, but, to justify reversal on ground order was unreasonable, it must be arbitrary action not resting on reasonable basis for exercise of discretionary powers.”

Prom the aforementioned legal conclusions with regard to the ultimate question to be determined on statutory appeals of this character, the courts have uniformly held that the petition on appeal must allege the specific facts which show as a matter of law that the order of the commission either transcended its constitutional or statutory authority; or that there was no evidence to support the order; or that the commission abused its discretionary power and authority, thereby rendering the order unreasonable and unjust within the meaning of such an appeal statute.

In the case of Gulf, C. & S. F. R. Co. v. Railroad Commission of Texas, 102 Tex. 352, 113 S. W. 741, 747, 116 S. W. 795, where the appeal was from a rate fixed by the commission, the court held as follows: “It follows that the petition must contain allegations of such facts and circumstances as would, if true, authorize the court to adjudge the rate to be unjust and unreasonable as a matter of law.”

The same principle and test of sufficiency of a petition was applied in an action seeking to prevent the opening of a road by the Commissioners’ Court in the case of Schlinke v. De Witt County (Tex. Civ. App.) 145 S. W. 660, 665, where it is held as follows: “The allegations that the road was not necessary, and that a better and less expensive road could have been laid out, are not accompanied with any allegations showing that the court either grossly abused its power or transcended its authority, or neglected any requirement of law. * * * The petition questions the soundness of the exercise of the discretion of the court in laying out such road, but does not allege any facts showing an abuse of its power by the court. Nothing illegal is shown by these allegations.”

In the recent case of Cone Johnson v. James E. Ferguson, 55 S.W. (2d) 153, by this court, the petition seeking to enjoin the highway commission from exercising its discretionary power to estimate the probable revenue and to contract against that amount was held to be subject to a general demurrer for failure' to allege that such estimated revenue as to amount was such’ a palpable abuse of the discretion vested in the commission as to render its acts in that respect arbitrary or fraudulent. Like rulings have been made with respect to the discretionary power of the state superintendent of public instruction in his administration of the public school laws. State ex rel. Marrs et al. v. Abshier (Tex. Com. App.) 263 S. W. 263, and cases cited.

It may be further observed in this connection that the Motor Transportation Laws are largely patterned after the railroad statutes placing the railroads under the supervision and regulation of the commission. The only difference in the appeal sections of the two statutes is that the railroad statute provides that “the burden of proof shall rest upon the plaintiff who must show by clear and satisfactory evidence” that the particular decision, rate, etc., complained of is unreasonable and unjust as to him; while the motor transportation statute provides that “the burden of proof shall rest upon the plaintiff who must show by the preponderance of evidence” that the particular decision, rate, etc., complained of is unreasonable as to him. The manifest difference in these statutes is only as to the quantum of proof necessary on the respective appeals, and does not affect the principle on which the court acts in determining whether the order is unreasonable and unjust as to complainant, which rule is the same in each appeal. That is, each of these appeal statutes is construed with reference to the particular statutes to which each relates, and merely requires that the court must first judicially determine whether the complainant has introduced evidence of such probative force or value, or of such character or quantum, as will satisfy the statutory burden placed by each statute upon the complainant; and when the court has judicially determined such matter favorably to complainant, then to proceed with the trial of any fact issue as in ordinary trials on a preponderance of the evidence. Brackenridge v. Roberts, 114 Tex. 418, 267 S. W. 244, 270 S. W. 1001; Reinhardt v. Nehring (Tex. Com. App.) 291 S. W. 873; Carl v. Settegast (Tex. Com. App.) 237 S. W. 238, and Railroad Commission v. Galveston Chamber of Commerce, 105 Tex. 115, 145 S. W. 573, 580, where it is said:

“The foregoing statute so guards the commission from improper interference that the courts must regard its actions, when within the limits of its delegated powers, as being the result of a purpose to do justice between all parties, and as having resulted in just and correct action until it be shown by clear and satisfactory evidence to be otherwise. R. R. Commission v. Weld & Neville, 96 Tex. 409, 73 S. W. 529. The language ‘clear and satisfactory evidence’ limits the power of . courts in setting aside rates, etc., to cases in which it may be established by evidence which leaves no reasonable doubt in the judicial mind that the rate or rule is unjust and unreasonable. Willis v. Chowning, 90 Tex. 617, 40 S. W. 395, 59 Am. St. Rep. 842. It is .true that this attributes to the work of the Commission a high degree of verity; but it is the plain language of the law, and is no doubt a wise provision.

“It is.not, within the language nor the spirit of the law which authorizes the courts to review thénctioh of the Railroad Commission that any court should-investigate the methods adopted by the commission in fixing its rates, nor the motives or purposes which prompted such action. The result and its effect upon the rights of railroads and shippers mark the limit of judicial inquiry.”

So, in view of the aforementioned construction of like or similar appeal statutes to the one in question, and in view of the aforementioned principle on which courts act in determining the ultimate question to be decided on such appeals, we have reached the conclusion that the court erred in not sustaining the-general demurrer to appellee’s petition, because it failed to allege any facts showing an abuse of the discretionary power and authority of the commission to deny his application for a certificate to operate his proposed bus lines.

The evidence on the appeal and trial de novo was also insufficient to establish the order complained of to be unreasonable within tbe meaning of the appeal statute, when tested by the rule that the findings and orders of the commission are made by law prima facie true, and that the reviewing court on such statutory appeal cannot substitute its judgment for that of the commission and disturb its findings or orders where there is any substantial basis in evidence for them; or where its rulings are not capricious or arbitrary, but are, reasonable and lawful. 42 O. J. 692, and cases there cited. This rule would require appellee to prove on the appeal facts showing as a matter of law that a public necessity existed for his bus line, or to at least prove that the order denying its operation, because no public necessity existed for it, was without substantial foundation in the, evidence adduced on the hearing of the application before the commission. This he did not do.

The record shows that three public hearings were held by the commission on the application of appellee for the certificate of convenience and necessity to operate the proposed bus line, one at Fort Worth, another at San Antonio, and the last one at Austin. That on these hearings numerous witnesses gave opinions as to the existence or nonexistence of a public necessity for the bus line. That there was before the commission several petitions of citizens living on the proposed route in which they say that “there is now no direct bus line between our. respective cities to either Fort Worth or San Antonio, and in our opinion, one is badly needed to accommodate the travel.” Manifestly these opinions cannot be substituted for the opinion of the commission as to the nonexistence of a public necessity for the proposed route.

There was also in evidence before the commission a map and plat delineating the existing route and bus operations between the termini cities through Austin, Waco, and other intermediate points, and delineating bus operations which in some instances run over the same route proposed by appellee, and showing bus operations through most of the towns and villages on the proposed route which connect with the existing first route described at Austin and other points. There was no evidence that the services being rendered by the existing bus lines through Austin and other points were in any respect inadequate as to traffic between the termini cities; nor that the connecting bus operations through most of the towns on the proposed route were inadequate in any respect. At most appellee’s evidence both before the commission and on appeal merely showed that as between the termini cities his proposed route was some few miles shorter than the existing route through Austin, and that his route was less frequently traveled by the public, and from which fact he concludes that his proposed route would be less dangerous. Manifestly these matters merely show a public convenience for the proposed route, but not a public necessity for it. A public convenience alone does not authorize the issuance of the certificate, but there must also be a public necessity for the route within the meaning of that term as used in the statutes.

There was also some evidence before the commission and on appeal as to the state and repair of the highways over which the proposed bus line was to operate. Briefly, it showed some character of state designation of the entire route by the highway commission, but that only a part of it was entitled to state maintenance by the highway department, the remainder to be maintained by local county authorities through which the route passed. And while the evidence showed the proposed route passable at all times, it was admitted by appellee on his hearing before the commission that at least one part of the route was hard to negotiate by automobile in wet weather. A maintenance engineer for the state highway department testified that while the entire route proposed by appellee was well graded and passable at all times, still it had “sections of caliche that are hard formations, and sections of black dirt that get soft in wet weather * * * and cut up very badly”; and that there was very little hard-surfaced road on the entire route. Ap-pellee proposed to operate daily four eighteen passenger sedan coaches over the proposed route. This operation would in consequence add to the burdens upon these highways and would necessarily result in injury to them; interfere with their primary use by the public generally, endanger and inconvenience the public in their use of these highways; and would increase the tax burden for their maintenance. And as to the permanency of the proposed route, appellee showed the population of the intermediate towns over a distance of 317 miles to be about 15,000; and testified that in his opinion the traffic on the route would pay, but that' actual operation would establish this. No effort was made to show the probable traffic over the route; but the evidence shows it to be sparsely populated territory as compared with the first existing route through Austin, which parallels the proposed route at a distance not to exceed 100 miles at any point.

The evidence above detailed did not establish the existence of a public necessity for the proposed route as a matter of law. But manifestly it shows a substantial basis for the order denying the certificate upon the ground that no public necessity existed for the proposed service. Especially is this true when the evidence is viewed in the light of the fact that the power or authority thus exercised by the commission is administrative power or authority vested in it by the Motor B,us Act. In the enactment of these statutes the Legislature was faced with the necessity of adequately regulating motor bus traffic for hire over the public highways of this state in the interest of safety, convenience, and necessity of the public; and of protecting the highways for public use, and the maintenance of safe and dependable motor bus transportation over the public roads or highways. It therefore vested in the Railroad Commission the exclusive power to determine the administrative matter of when and if a public necessity exists for a proposed bus line. This necessity must necessarily be established from facts and circumstances existing in the territory to be served, the commission being required by the statutes to consider of prime importance the interest of the general public in the public highways; the declared policy of the state as to their use to carry on motor vehicle transportation by individuals or corporations for hire; the existing motor bus transportation facilities serving the particular territory; the state and repair of the particular highways; and whether the proposed operation will unreasonably interfere with the use of the highways by the public for public purposes. Upon these matters and facts the statutes provide that the commission shall draw its own conclusions and form its own opinions as to the existence of a public necessity for a proposed bus line; and that when it has so. found and, concluded, its order shall be final, except upon a showing on appeal that its order was tpirpa-sonable as to complainant within the meaning of the appeal statute as above interpreted. And as supporting this general rule for determination of the question of public convenience and necessity the authority, 42 C. J. 687, § 12, reviews the decisions in other jurisdictions and states the rule to be as follows:

“The convenience and necessity which the law requires to support the public service commission’s order for the establishment or extension of motor vehicle transportation service is the convenience and necessity of the public as distinguished from that of an individual or any number of individuals, and this is the primary matter to be considered in determining what constitutes such public convenience and necessity in a particular case, and the propriety of granting a certificate to that effect. The necessity for the proposed service must be considered as well as the added convenience thereof, although the word ‘necessity’ is not used in this connection in the sense of being essential or absolutely indispensable, but in the sense that the motor vehicle service would be such an improvement of the existing mode of transportation as to justify or warrant the expense of making the improvement.

“In determining what constitutes public convenience and necessity in a particular case, and the propriety of granting a certificate to that effect, the public service commission may properly take into consideration the element of danger involved by the use of heavy trucks and passenger cars on highways, the adequacy of the service rendered the same territory by other carriers, if any, and also the. ability of applicant adequately to render the service needed.”

We find no Texas decision construing this discretionary power and authority of the commission to determine after a hearing when and if a public necessity exists for a proposed bus line. Courts of other states have construed similar statutes to ours favorably to our above conclusions. And in view of this being the initial case discussing the questions presented, we take the liberty of quoting at length from some of these decisions.

In discussing similar statutes the Supreme Court of Florida held, in the case of Seaboard Air Line Ry. Co. v. Wells, 100 Fla. 1631, 131 So. 777, 783, as follows: “The purpose of the statute is not only to regulate the use of the public highways by motor vehicles for compensation, but, in order to conserve the public roads and the safety of the traveling public thereon, to exclude from the use of the public highways in the state any and all motor vehicles operaifeci for compensation, except such motor vehicles as are affirmatively shown to be required to serve the ‘public convenience and necessity.’ Public highways are maintained by taxation primarily for public use of individuals for themselves; and the use of such highways by motor vehicles for hire is permitted only when and as the ‘public convenience and necessity’ may require it. Public convenience alone does not authorize the issuing of a certificate. There must be public necessity as well.”

The Supreme Court of Ohio, in the case of Canton-East Liverpool Coach Co. v. Public Utilities Comm., 123 Ohio St. 127, 174 N. E. 244, 245, held as follows:

“The record discloses that all the territory has transportation service; that the additional service would be a convenience to occasional 'persons who might desire to travel from one point within the state to another point within the state — such a convenience as no doubt exists in every territory, along every public road, private road, and byway within the state.

“Of course, it must be conceded that every additional transportation service in every territory, where people live or where people go, may reasonably be expected to be at some time a convenience to some one, and probably to many; ’ and the Legislature must have known that any public transportation operation, anywhere within the state, would be a convenience to some degree to the inhabitants of its territory and to the persons desiring to go into or out of such territory. The Legislature, however, was not attempting to make a certificate to operate available to every one who might apply, but was attempting to regulate the number of operations, the places of operation, and the character of the operation; and so it provided that, before a certificate could issue, not only a convenience but a necessity for such operation should exist. Of course, by reason of the diversity of conditions existing in different territories, that which might be a necessity in one territory would be only a convenience in another. For instance, in a congested center where it is difficult to move the volume of traffic over available avenues, anything which tends by through or diverting service to speed the traffic, or relieve the avenues of a portion of the •burden of traffic, might in that situation be a necessity, but would not be a necessity at all in a less populous district.

“Perhaps it will not do to give to the word ‘necessity’ its literal meaning and hold that, before a certificate can issue, there must be an absolute requisite for a motor transportation service; but it must not be wholly devitalized by interpreting it as synonymous with convenience. Necessity, perhaps, in its reference to transportation facilities, may best be construed as contemplating a definite public need for a public transportation service in a territory where no reasonably adequate public service exists. It does not contemplate that every prospective customer may have a nonstop service from the point where he becomes a passenger to the point of his destination, nor that he may have an air line between such points, but only that the public generally, of every territory sufficiently populous to justify the maintenance of a public transportation, shall ¡have reasonably adequate service.”

The Supreme Court of Maine, in the case of Maine Motor Coaches, Inc., v. Public Utilities Comm., 125 Me. 63, 130 A. 866, 867, used the following language:

“In view of the well-recognized control over highways by the Legislature and of the public moneys spent in building permanent thoroughfares throughout the state, and the possible menace to public safety, and the rapid destruction of the roadbed by the operation of heavy, high-powered motor busses over them, the authority of the Legislature to prohibit the use of the public ways for such purposes cannot be doubted. * * *

“We are therefore of the opinion, in view of the general trend of legislation on this subject, that the legislative intent, as expressed in these several acts, was, instead of limiting the Public Utilities Commission in issuing such certificates to instances only where public convenience and necessity required, to vest in the commission a broader discretion, having in view not only the necessity and convenience, but the general welfare of the public.”

In the case of Eager v. Public Utilities Commission of Ohio, 113 Ohio St. 604, 149 N. E. 865, we find the following expression: “In this class of cases a party is entitled to bring his cause here for determination upon the weight of the evidence, and this court will inquire whether the finding and order of the commission lacks such proof as to render it unreasonable and unlawful, but it does not follow that, because all the evidence was offered by the party complaining, and each of his witnesses gave testimony that in his opinion public necessity and convenience required motor transportation service, thereby that fact was established. The public convenience and necessity, or lack thereof, is established by proof of the conditions existing in the territory to be served, and it is the function of the commission to draw its own conclusion and form its own opinion from the proof of the conditions in the territory, rather than from the consensus of opinions of witnesses upon the ultimate fact as to the existence or nonexistence of the public necessity and convenience.”

In accordance with our foregoing holdings, we reverse the judgment of the trial court setting aside the order of the commission complained of, and dissolve the injunction granted herein by the trial court.

Reversed and injunction dissolved.


source: Caselaw Access Project

author: GALLAGHER, Chief Justice.

license: Public Domain

text:
    TURNER v. COCHRAN.
    No. 1308.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1933.
    Rehearing Denied Feb. 23, 1933.
    Word & Word, of Meridian, for appellant.
    E. R. Pedigo, of Austin, for appellee.
   GALLAGHER, Chief Justice.

A full understanding of the issues involved in this suit will be facilitated by a brief statement of the transactions out of which it arose. W. A. York was on May 30, 1925, and had been for some time prior thereto, an officer and director of the First National Bank of Meridian. Appellant J. E. Turner and J. T. McConnell, A. S. Lomax, J. D. Hanna,. H. Wooley, and S. C. Barnes were also directors at that time. J. H. Woody had theretofore duly qualified as a director, but whether he was then serving as such or had resigned and abandoned such office is left by the testl-mony in doubt. Said York was then indebted to said bank in tbe sum of $3,000. It was tlien in straitened circumstances, and was advised or required by some supervisory authority to call said loan to York and collect the same in cash. Some of the directors seem to have been active in securing the liquidation of said York loan. On Hay 30,1925, said York, as principal, with the six directors then admittedly serving as such, as here-inbefore named, executed their joint and several promissory note to appellee, Mrs. J. A. Cochran, payable six months after date, in the sum of $3,000, with interest thereon until paid at the rate of 8 per cent, per an-num. Said note was delivered to appellee, and she paid full face value therefor. The money received from her was applied to the satisfaction and discharge of York’s indebtedness to the bank. Said bank was shortly thereafter closed. Nothing was paid on said note except a small amount of interest. Ap-pellee, shortly before it would have been barred by limitation, placed it in the hands of her attorney for collection. Apparently it was impossible to collect the same in full in cash. An agreement was therefore made and consummated by which the principal, York, conveyed, or caused to be conveyed, to appel-lee two houses and lots in the city of Waco, for which she allowed a credit on said note in the sum of $1,500. The deed or deeds to appellee were not introduced in evidence, but it appears from the testimony that she took the same subject to an indebtedness in the aggregate sum of $3,500. The remainder due on said note was then apportioned among the then solvent signers thereof. The amount apportioned to appellant for payment was $480.49. He did not question the correctness of such amount. He, however, apparently thought the property conveyed to appellee was undervalued or that the same would increase in value in the near future, and demanded that any profit realized out of said property should be applied in reduction or extinguishment of the amount so assessed against him. He thereupon executed and delivered to appellee an instrument in the form of a promissory note, as follows:

“$480.49 Meridian Texas,

“Oct. 21, 1929.

“On or before October 21st, 1931, after! date for value received, I promise to pay to the order of Mrs. J. A. Oochran, Four Hundred Eighty and 49/100 Dollars, at Meridian, Texas, with eight per cent interest per annum from date until paid. And in the event default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection or suit is brought on the same, or same is collected through the probate court, then I agree that an additional amount of ten per cent on the principal and interest of this note shall be added as collection fees. Excess netting above-. $1500.00 upon sale within two years of two houses and lots in Waco, shall be applied as credit on this as per contract attached.

“J. E. Turner.”

He also indorsed thereon the following:

“Meridian, Texas, Oct. 21, 1929. ‘

“This agreement is a part of note attached for $480.49 of even date due on or before Oct. 21, 1931; Mrs. Oochran is to take from W. A. York and wife a deed to Lot 2 in Block 3, and Lot 7 in Block 2, Anita Park Addition to Waco, Texas, crediting the original $3,000.00 note with $1,500.00; and it is agreed that Mrs. Cochran will keep the price of her equities in said two properties high enough in offering for sale for next two years that it will net enough above the $1,500.00 dollars to pay off this $480.49 note and she agrees to sell the same if J. E. Turner or his agent, or heirs, or legal representatives offers within two said years sufficient above' the $1,500.00 to pay off this $480.49 note, and her failure to so sell upon such offer will release further liability of J. E. Turner on said note.

“J. E. Turner.”

Said note was not paid at maturity, and appellee instituted this suit to recover thereon.

Appellee copied said note and indorsement thereon in her petition, and alleged that appellant failed and refused to pay same. She further alleged in that connection, in substance, that shortly after said settlement was consummated she discovered that, in addition to the sum of $3,500 as aforesaid, the Waco property was at the time it was conveyed to her further charged with valid liens to secure past-due interest, paving assessments, etc., in an amount in excess of $600; that the aggregate indebtedness against said property exceeded the value thereof; that the holders of such indebtedness were about to institute suits against her to foreclose their respective liens, and thus involve her in litigation and subject her to the costs and expense necessarily incident thereto without any hope of reimbursement; that she then stated the facts fully to appellant, and offered to convey the property to him absolutely, without compensation or reservation ; that she told him that, if he would not accept title thereto, she would be compelled, in protection of herself against further outlay and loss, to surrender the same to said creditors. She further alleged that appellant refused to accept such offer, and that she thereafter surrendered and conveyed said property to said creditors. She further alleged that she received nothing therefor, and that the $1,500 credit given by her on the! York note in consideration of the conveyance! of said property to her was a total loss.

Appellant answered by general demurrer, general denial, and a plea in confession and avoidance, the substance of which will be recited in connection with the issues of law hereinafter discussed. He also pleaded affirmatively that the action of appellee in surrendering and conveying the Waco property to the lienholders constituted a breach of the contract evidenced by said note and the in-dorsement thereon, and discharged him from further liability thereon.

The case was tried to a jury. Appellant presented his general demurrer, which was overruled. He then filed a written plea, in which he admitted that appellee had a good cause of action, except as the same might be defeated in whole or in part by the facts pleaded by him constituting a defense thereto. Based on said admission, appellant claimed and was accorded the right to open and conclude in adducing evidence and in the argument of the cause. The testimony introduced will be recited, so far as necessary, in connection with the issues of law hereinafter discussed. The court submitted a single issue, which issue and the answer of the jury thereto were as follows:

“Do you find from a preponderance of the evidence that plaintiff, Mrs. J. A. Cochran, offered to convey to the defendant, J. E. Turner, the two houses and lots in Waco before she deeded the same back to the parties who held the liens against them? Answer: Yes.” i

The court thereupon rendered judgment against appellant in favor of appellee for the amount of said note in the sum of $637.48, with costs of suit. Hence this appeal.

Opinion.

Appellant complains of the action of the court in overruling his general and special demurrers. He contends in. that connection, in substance, -that the effect of the indorsement on said note was to make the same payable only on the condition or contingency that appellee had held said property for the term of two years, and that it therefore devolved upon her to allege affirmatively that she had done so, and that, having admitted that she had surrendered and conveyed said property to the prior lienholders within such time, she not only failed to show her right to recover on said note, but further showed affirmatively that she was not entitled toi recover thereon. Appellant’s contentions invoke a construction of the language used in said note and indorsement with both instruments considered together. The trial court, by overruling appellant’s demurrers, construed said instruments contrary to appellant’s contention. In determining on appeal whether the construction of the trial court was erroneous, it is our duty to consider said instruments in the light of the circumstances under which they were executed by appellant and accepted by appellee, as disclosed by the allegations of both parties. Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935, 936, 937, par. 1, and authorities there cited; Ray v. Barrington (Tex. Civ. App.) 297 S. W. 781, 783, par. 1, and authorities there cited. The note sued on contained an unqualified and unconditional promise to pay the amount thereof to ap-pellee at the date specified therein. It, with said indorsement thereon, was tendered to appellee in satisfaction of appellant’s liability as a signer on the original $3,000 note and as his proportionate share of the amount to be paid by the sureties thereon. No question of appellant’s liability on said original note had been raised at that time. Appellant, or some one acting for him, selected the language used in the indorsement. Under elementary rules, such language must be construed most strongly against him and in favor of appellee. A construction which would result in injustice to either party should not be favored. Appellant incorporated in said indorsement two separate but related stipulations. The first was, in substance, that appellee would, in offering the property for sale before the maturity of the note, keep the price of her equities therein high enough to pay the full amount of such note, in addition to reimbursing her for the cost to her of said property. This stipulation certainly did not in terms require her, in order to prevent a foreclosure and enable her to comply therewith, to redeem such property from incumbrances unknown to either her or appellant at the time she accepted said note so indorsed. Her equities in said property being wholly without value, her surrender thereof to the lienholders without consideration, though evidenced by some form of conveyance, could not be construed to constitute a sale thereof. Neither can it be reasonably contended that appellant suffered any loss or damage therefrom. Her offer to immediately convey the property to him without consideration of any kind rebuts such contention. Appellant did not provide in such stipulation that a failure to comply therewith should forfeit appellee’s rights to recover on said note and discharge him from liability thereon. We construe said stipulation to be merely an independent covenant, a breach of which might be urged by appellant in reduction or extinguishment of his liability on said note as he might show damage resulting therefrom. 13 O. J. p. 567, § 53S, and authorities cited in notes 7 and 8; Id. p. 629, § 695, and authorities cited in notes thereto. The second stipulation was, in substance, that appellee should sell the property to appellant if he offered her a sufficient sum therefor to reimburse her for the $1,590 credit on the original note which she allowed in consideration of the conveyance of said property to her and to also pay in full the note sued on. It was expressly provided in that; connection that a failure or refusal by appellee to accept such offer should discharge appellant from further liability on said last named note. Olearly, appellee was not required to anticipate and negative such a defense, and we do not understand appellant to so contend. The court did not err in overruling said demurrers.

Appellant complains of the action, of the court in refusing to submit to the jury for determination certain special issues requested by him. Such issues inquired whether he (appellant) executed and delivered to plaintiff’s agent the original $3,000 note with the understanding and agreement that the same was not to be binding on him, unless signed by all the directors of said bank; whether H. L. Latimer was a director at that time and whether he signed said note; and whether J. H. Woody was a director at that time and whether he signed said note. The court refused to submit said issues. Appellant pleaded want or. failure of consideration for the note sued on herein. Said plea was based on allegations that he was merely a surety on the original $3,000 note, for his proportionate part of which the note sued on was given; that A. S. Lomax, a relative! of appellee and one of the directors of the bank, was her agent in making said loan; that, at the time he (appellant) signed said note, he had an express agreement with said Lomax as such agent that all the directors of said bank at the time should join in signing the same, and that he was not to be bound thereon unless all said directors did sign the same; that either H. L. Latimer or J. H. Woody was a director at that time, and did not sign said note; that he did not know of such failure at the time he participated in the settlement of said original $3,000 note and signed the note sued on as his proportionate contribution to the payment thereof; that he never discovered such failure until after the institution of this suit. The testimony introduced is wholly insufficient to raise an issue of the agency so alleged. Both appellee and Lomax expressly denied such agency. Appellant, in support of his contention that an issue of agency was raised by the evidence, cites the testimony of ap-pellee that Lomax was related to her by marriage ; that he was a director of the bank at the time she made the loan to York; that he came to her and told her York wanted the money and who would sign the note; that she told him she would accept the note and make the loan. There is nothing in such testimony tending to raise an issue of agency. Appellant also in this connection cites the testimony of Mr. Oureton, who, in behalf of appellee, participated in the settlement of the $3,000 note and the substitution of the note sued on in lieu of appellant’s liability thereon. Such settlement was made in October, 1929. The original loan to York was made May 30, 1925. Said bank had been closed long before said settlement, and Lom-ax was of course no longer a director thereof, and had not, so far as shown, any interest inconsistent with appellee’s, such as he had at the time he was actively aiding York to secure the loan from appellee that the proceeds thereof might be immediately available to meet the necessities of said bank. The testimony of Mr. Oureton so relied on by appellant is, in substance, that at the time of such settlement and substitution Lomas was attending to appellee’s business, and that he accepted .his statements in connection therewith as he would have accepted statements made by appellee. Olearly, such testimony could not have a retroactive effect and establish an agency more than four years prior to that time. Even if the testimony, as contended by appellant, raised such issue, it was conflicting and the determination thereof for the jury. Such issue was a controlling one in the defense which appellant sought to establish. The court having failed to submit the same, appellant’s failure to request its submission waived such defense. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084, 1085, par. 2; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591, 592; American Surety Co. v. Whitehead (Tex. Com. App.) 45 S.W.(2d) 958, 961, par. 5; Dallas Hotel Co. v. Davison (Tex. Com. App.) 23 S.W.(2d) 708, 713, pars. 3 and 4; Duncan Coffee Co. v. Haddock (Tex. Civ. App.) 51 S.W.(2d) 437, par. 2. Each of the issues so requested by appellant assumed that appellee in making said original loan was represented by some unnamed and unidentified agent, and were for that reason also properly refused.

Appellant, as hereinbefore stated, before any testimony was introduced, filed a written plea in which he admitted that ap-pellee had a good cause of action except as the same might be defeated in whole or in part by the facts pleaded by him constituting a defense thereto. The effect of that admission was to operate as an abandonment of all his defensive pleadings as contradis-tinguished from those in confession and avoidance, and to admit every fact which was necessary for appellee to establish in the first instance to enable her to recover. Such admission entitled appellee to recover judgment for her debt, unless such recovery was defeated by something outside of and beyond the matter set up in her petition. Dashiel v. Lott (Tex. Com. App.) 243 S. W. 1072, 1073, par. 2; Smith v. Frost (Tex. Com. App.) 254 S. W. 926, 927, par. 2; American National Bank of Wichita Falls v. Hall, 114 Tex. 164, 169 (bottom of page), 265 S. W. 378; Haile v. Coker (Tex. Civ. App.) 267 S. W. 1010. Appellant’s said admission renders consideration of his other assignments unnecessary.

The judgment of the trial court is affirmed.


author: JONES, Chief Justice.

text:
    GULF, C. & S. F. RY. CO. v. HAMILTON.
    No. 11096.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 28, 1933.
    Rehearing Denied Feb. 25, 1933.
    W. P. Donalson, of Dallas, and Terry, Cavin & Mills, of Galveston, for appellant.
    Robert H. Jones, Jr., and Hamilton & Hamilton, all of Dallas, for appellee.
   JONES, Chief Justice.

In a suit in a county court at law of Dallas county, appellee, W. B. Hamilton, recovered judgment against appellant, Gulf, Colorado & Santa Fé Railway Company, for damages, actual and exemplary, as a result of alleged damages to a shipment of two cars of cattle over appellant’s railway from Dun-canville, Dallas county, to the stockyards in the city of Fort Worth. An appeal is duly prosecuted to this court, and the following are the facts:

Appellee desired to ship over appellant’s railway approximately 68 head of Hereford calves of a very choice grade, to be sold at the Fort Worth stockyards by a commission company. For the purpose of arranging the shipment, appellee interviewed appellant’s agent at Cedar Hill, and informed said agent that he wished the stock to go forward in one large stock car, and that he did not want the shipment to be made over any local freight train operating between Dallas and Cleburne, but desired the shipment to go .over the through freight train operating between said places, so that a connection would be made with appellant’s through train operating between Cleburne and Eort Worth, in order that his stock would arrive at the stockyards in Eort Worth at approximately C or 7 o’clock a. m., allowing them time to rest before they should take their fill, and be fresh in appearance for the opening of the market on the morning of their arrival.. Appellee was informed by appellant that a regular schedule through freight train would pass through Duncanville at 9:30 p. m., connect with a through train from Cleburne to Fort Worth, and arrive at the stockyards sometime between 6 and 7 o’clock the following morning, and that he would be furnished the large stock car for his shipment.

Duncanville was equipped by appellant with a stock pen, but had only one chute for loading stock. Appellee knew this, and also knew that, because of the limited facilities at Dun-canville, only one car of cattle could be loaded until the train on which the cattle were to be moved arrived, moved the loaded car from the chute, and spotted another ear to finish the loading. To prevent the delay incident to such condition, appellee desired to ship his stock in one large car, rather than in two small cars.

On February 24,1930, appellee was notified by appellant’s agent at Cedar Hill that the car wanted would be available that day, for him to have his cattle there in time to be moved at 9:30 p. m., and that the cattle would go forward on the through freight train. Later, appellee’s agent was notified by appellant’s agent at Cedar Hill that he was unable to furnish the large car, but that he had secured two small cars in which the cattle could be loaded, and that the freight charges would be no higher for the two small ears than for the one large car. Appellee’s agent accepted the two small cars, and ap-pellee and his agent had the stock in the stock pen, and the car spotted at the chute was loaded, previous to the scheduled time of the through freight train.

The train to be used in transporting appel-lee’s cattle was late, and did not arrive at Duncanville until approximately 11:15 p. m. The train was stopped before the engine had reached the loaded car in front of the chute, and the conductor in charge of such train walked near to the loaded car, where appellee was waiting, and called to appellee to know if his stock was loaded. Appellee informed him that one car was loaded, but that the other car could not be loaded until the loaded car was moved and the other car spotted, but that this would require less than fifteen minutes. The only reply received by appellee was that, if the cattle were not loaded, he did not have time to fool with them, that they could go on the local train that would follow later, and, signalling his train to move, left without the cattle. Appellee waited some time, then unloaded the cattle from the loaded car into the stock pens, for the reason that more damage would result to cattle in a loaded car standing still than when the car is moving, after which appel-lee and his agent went home, leaving the stock in the pen. Some time during the early morning of February 25, 1930, the local train came by, loaded appellee’s stock into the two cars, and transported them to Cleburne, but arrived at Cleburne too late to connect with the through train from Cleburne to Fort Worth, on which appellee was promised his cattle would move, and hence the cattle did not arrive at Fort Worth until some time after the market was opened, and did not reach the stockyards until about 11:30 a. m. on February 25, 1930.

The evidence discloses that, by reason of the added delay of the cattle in leaving Dun-canville, their being moved by a local train,which did switching at intermediate stations, and the added length of time the cattle were in the cars, and because of the lateness of the time in which they arrived at the stockyards, appellee’s cattle presented a stale, drawn appearance, and lost in weight, in that they could not take on the fill they would have taken had they arrived under the shipping arrangements contemplated by appellee and promised by appellant. There is evidence that, if the cattle had moved in the manner promised by appellant, and relied upon by appellee, when he placed his cattle in the stock pen, the normal loss of weight would have been from five to fifteen pounds per head; that, moved in the manner appellant did move them, their loss would be from 40 to 50 pounds per head. The evidence discloses that the cattle actually lost about 49 pounds per head in weight.

Appellee instituted this suit against appellant for failure to perform its statutory obligation in transporting his cattle in a manner reasonably safe from damages, and for injuries to the cattle by reason of the failure and refusal to transport them on said through train, after appellant had designated such train for their shipment, and thereby caused appellee to rely upon such designation for making the shipment, and did not bring the suit on any written contract he may have executed at the time the stock was delivered to appellant for shipment.

Appellee also pleaded the facts heretofore stated, as a basis for the charge that appellant was guilty of gross negligence in its. failure to ship the cattle on the through train, as contemplated by the parties when the cattle were tendere<i for shipment, and made this a basis for the prayer for exemplary damages, in addition to the actual damages alleged to have been suffered.

Appellant’s theory of the case is that it was not required to move the cattle on any specific train; that the cattle were moved without unreasonable delay or rough handling, reached Fort Worth in time for the market, and brought the highest price paid for calves on that day. This is set forth in apt pleading, and the assignments of error and propositions of law, relied upon for a reversal of this case, are broiight before this court in a proper manner and are supported by able argument of counsel.

The case was tried before a jury, submitted on special issues, and in response to these, special issues the jury returned findings favorable to appellee. The findings necessary to a disposition of this ease are: (1) Appellant was guilty of negligence in not taking appellee’s cattle on the through freight train; (2) as a direct and proximate result of such negligence, appellee’s cattle were damaged, (3) in the sum of $186, and (4) in the sum of $12.09, as interest from the date of the shipment, at the rate of 6 per cent, per annum; (6) appellant was guilty of gross negligence in its failure or refusal to transport appel-lee’s cattle on the through train; and (7) the amount of exemplary damages is placed at $51.91; (8) appellant did not fail to'exercise ordinary care in transporting appellee’s cattle from Duncanville to Fort Worth on the occasion in question; (10) appellant did not transport the cattle from Duncanville to Fort Worth within a reasonable time. The finding of the jury on special issue No. 8 we construe as applying to the manner in which the local train, that carried the cattle, was handled. These findings are supported by evidence, and are adopted as the findings of this court. On such findings the court entered judgment in favor of appellee in the sum of $250, made up of the items of $186 actual damages, $12.09 interest thereon, and $51.91 exemplary damages.

There is presented by appellant’s assignments of error a very serious question, which has challenged the careful consideration of this court, and which we will now discuss. Was the trial court in error in submitting the issue of appellant’s gross negligence, as .a basis for submission of the issue, resulting in the assessment of exemplary damages?

The findings of the jury, supported by substantial evidence, determine the fact that the damages to appellee’s cattle resulted solely from the refusal of appellant’s conductor, in charge of the scheduled through train, to carry the cattle. The jury’s finding is that, when the cattle were later loaded and carried on the local train, their transportation was with ordinary care. Appellant’s depot agent was informed by appellee, in effect, that, unless his cattle were carried on a through train, they would suffer damages. With this knowledge, the agent designated the through train, and instructed appellee to have his cattle ready to go forward on. such train by 9:30 p. m., its scheduled time. Relying upon this promise, appellee drove his cattle into appellant’s stock pen in. the town of Duncan-ville; and loaded a portion of them on the one car that was spotted,' in ample time for the shipment to be picked up by the through train. Appellant’s facilities at Duncanville only permitted one car to be loaded prior to the arrival of the train, and necessarily left the other ear to be loaded after such arrival. By reason of such limited facilities, there was necessarily inaugurated the custom that when a shipment of cattle required more than one car, for the train to delay its movement, after arrival at Duncanville, until the loading could be completed, and the oars taken into the train. Appellee knew of this custom, and had the right to rely upon it, and appellant knew that appellee was relying thereon. It was appellant’s failure to furnish the promised large car which made necessary a short delay of the through train, in order for appellant to carry out its promise to appellee, and not because of any dereliction on the part of appellee.

The duty to transport appellee’s cattle in a reasonably safe manner is a statutory duty placed upon appellant, and is nondele-gable. It is a duty that appellant must perform through some one in its employ whom it may designate as its alter ego to perform such service. The person thus designated by the public carrier is not a mere employee of such carrier, in respect to the performance of such duty, but is in law the public. carrier itself. So, in the instant case, the act of the conductor of the through train, in refusing to incorporate into his train the cars containing appellant’s cattle, is the act of appellant. Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S. W. 402; 10 Tex. Jur. §§ 303, 357, 358, and authorities cited in notes to these sections. Appellant’s contention that it cannot be held for the gross negligence of an employee in such position is overruled.

Appellant further contends that ap-pellee’s suit is one on the written contract of shipment, and is not one in any respect sounding in tort, and that exemplary damages are never recoverable on a suit for the breach of contract. If the suit were as contended by appellant, this contention is too broad to state accurately the rule of law obtaining in this state. As stated in Middleton Hooks v. Charles Fitzenrieter, 76 Tex. 277, 13 S. W. 230, a case cited and relied upon by appellant to sustain its contention: “In our state, however, the right to sue for a breach of contract and for a tort, when both grow out of the same transaction, and can be properly litigated together, is recognized.” This principle of law has been generally applied in this state. The arbitrary refusal to perform a statutory duty is a tortious act, even though it may also be a breach of contract. The .record shows that á written contract for shipment was executed between the parties. The record also shows that appellee did not rely upon the written contract as the basis for his _|uit, but on the statutory duty of appellant to transport his cattle. To our minds, however, it is immaterial to the question involved as to whether appellee was suing for a breach of contract or for the breach of a statutory duty placed by law upon appellant. Railroad companies exercise a public employment, imposing upon them duties to the public, which give to every person the right to use their services in the transportation of freight, upon the payment of the requisite consideration. This public duty creates an obligation on the part of railroad companies to perform that duty honestly and faithfully in every case. Gulf, C. & S. F. Ry. Co. v. Levy, 59 Tex. 542, 549, 46 Am. Rep. 269.

The duty to transport appellee’s cattle did not rest alone upon either an express or implied contract, and the office of such a contract in such a case is not the creation of the duty, but only to make it obligatory. The duty of a public carrier in this respect is different from duties created by private contracts between individuals, who otherwise owe no duty to each other, and owe none to the public, in reference to the subject-matter of the contract. Gulf, C. & S. F. Ry. Co. v. Levy, supra.

In the case of Gulf, C. & S. F. Ry. Co. v. Levy, supra, in which exemplary damages were sought, for alleged gross negligence, in failing to deliver a death message, the Supreme Court, speaking through Judge Stay-ton, made the following observation as against a similar contention made in the instant case: “Upon the whole case, as made by the petition and evidence, we are of the opinion that the appellee was entitled to ¡recover whatever damage the proof may justify, over and above such sum as he paid for the transmission of the message; and this in the way of exemplary damages, if the negligence of the appellant, in failing to deliver the message, was wilful or gross, which is a matter to be determined by a jury, under proper instructions.”

We are therefore of the conclusion that, if the breach, either of the statutory duty of a public carrier to transport freight, or the breach of a written contract for such purpose, is attended by circumstances that warrant a jury in finding such carrier guilty of gross negligence, our courts permit the assessment of exemplary damages. 10 C. J. p. 315, § 455, states the general rule of law in reference to the right to exemplary damages in the character of ease under review, as favorable to appellant, we think, as can be stated in general language. The rule is thus announced: “Exemplary or punitive damages are not recoverable for unreasonable delay in transportation, unless such delay was due to gross negligence or oppression, or to a willful, conscious, or wanton disregard of the shipper’s rights. But where the carrier’s conduct in delaying the shipments showed a reckless and wanton disregard of the shipper’s rights, punitive damages have been allowed.”

In the instant case, appellee’s right to exemplary damages cannot be based primarily upon the delay occasioned by appellant’s refusal to ship the cattle on the through train, but must be based upon the fact that appellant was guilty of gross negligence when it refused to carry the cattle on said through train.

Does the evidence in the instant case raise the issue of gross negligence? We think so. This evidence establishes the fact that appellee stated to appellant’s agent at Cedar Hill that he did not want his cattle shipped on a local train, and gave the reason therefor ; that the agent told appellee to have his cattle in appellant’s stock pens at Duncan-ville before 9:30 p. m. on Eebruary 24, 1930, when the cattle would be moved forward on the through freight train. Appellee had his catle in the stock pens within the designated time, and did all that, under the existing conditions, he could do in preparing them for shipment. This was done on appellee’s belief in, and reliance upon, the statement and unconditional promise of appellant’s agent that the cattle would be moved on the through train. Under the circumstances, the duty rested on appellant to carry the cattle on said through train. This plain duty appellant refused to perform, for the sole reason that the conductor did not “have time to fool with them.” Such refusal was arbitrary on the part of the conductor, and, as a result, ap-pellee suffered actual damages, as found by the jury, in the sum of $186. Appellant knew that damages would result if the cattle were not carried on the through train.

Gross negligence is defined by our Supreme Court in the case of International & G. N. Ry. Co. v. Cocke, 64 Tex. 151, to be “an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others.”

We are of the opinion that the evidence, as to the acts of the conductor in charge of the through train, on the occasion in question, is open to the charge that he acted with entire indifference to the interest of appel-lee, and hence is sufficient to raise the issue of fact as to appellant’s being guilty of gross negligence. Gulf, C. & S. F. Ry. Co. v. Levy, supra; Chronister Lumber Co. v. Williams, supra; Gulf, C. & S. F. Ry. Co. v. Reed, 80 Tex. 362, 15 S. W. 1105, 26 Am. St. Rep. 749; 10 C. J. supra.

There are a number of other assignments of error which have been carefully considered, with the result that we do not believe that any of them present reversible error. It becomes our duty, therefore, to affirm the judgment of the lower court, and it is so ordered.

Affirmed.

On Motion for Rehearing.

In its motion for rehearing, appellant complains that we misconstrued the answer of the jury to special issue No. 10. Such issue and answer of the jury thereto reads: “Do you find from a preponderance of the evidence that defendant did not transport plaintiff’s cattle from Duncanville, Texas, to Fort Worth, Texas, within a reasonable time? Answer ‘yes’ or ‘no.’ Answer: ‘No.’ ”

In stating the findings of the jury, the original opinion stated the finding, in response to special issue No. 10, to be that: “Appellant did not transport the cattle from Dun-canville to Fort Worth within a reasonable time.” Appellant construes this finding to be that appellant did transport the cattle from Duncanville to Fort Worth within a reasonable time.

While we are not free from doubt as to the construction of this finding, in view of appellant’s contention in reference thereto, and because of the doubtful meaning of the jury’s answer, we change our original finding and make the finding as requested by appellant.

However, the finding on special issue No. 10, as well as on special issue No. 8, is rendered immaterial by reason of the findings of the jury on the preceding issues submitted by the court, on which findings the judgment of the trial court is based. The motion for rehearing is overruled.

Overruled.


author: ALEXANDER, Justice.

text:
    UNION NAT. BANK OF HOUSTON et al. v. JORDAN.
    No. 1327.
    Court of Civil Appeals of Texas. Waco.
    Feb. 9, 1933.
    Andrews, Streetman, Logue & Mobley, of Houston, and H. H. Sagebiel, of Fredericks-burg, for appellants.
    Alfred Petsch, of Fredericksburg, for ap-pellee.
   ALEXANDER, Justice.

This action was' brought in the district court of Gillespie county by R. E. Jordan as receiver of Taylor-Burke Motor Company against the Union National Bank of Houston, James L. Clayton, and W. L. Burke to recover the amount of certain funds belonging to the plaintiff and alleged to have been converted by the defendant. J. L. Clayton and said bank were alleged to be residents of Harris county and W. L. Burke was alleged to be a resident of Gillespie county. The defendants, Clayton and the bank, each filed pleas of privilege to be sued in the county of their residence. These pleas were in the statutory form, and contained the allegation that “no exception to exclusive venue in the county of one’s residence provided by law exists in said cause,” as provided in Revised Statutes, article 2007. The plaintiff excepted to said pleas of privilege because the allegations therein were mere conclusions, and because said pleas did not specifically deny the matters of fact showing venue in Gillespie county, as alleged in plaintiff’s petition. The trial court sustained these exceptions, and overruled the pleas of privilege. The defendants, Union National Bank and Clayton, appealed.

The pleas of privilege were in the form as provided by statute, and, under the express provision of Revised Statutes, article 2007, are declared to be “sufficient.” Such pleas were not subject to any exceptions, and the trial court should not have sustained any exception thereto. Eckert-Burton Const. Co. v. Board of School Trustees of City of Corsicana (Tex. Civ. App.) 51 S.W.(2d) 642, par. 1; Johnson v. First Nat’l Bank (Tex. Civ. App.) 42 S.W.(2d) 870, par. 1; American Fruit Growers v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898; Murphy v. Dabney (Tex. Civ. App.) 208 S. W. 981, par. 3; First National Bank of Rhome v. Cage (Tex. Civ. App.) 32 S.W.(2d) 500, par. 4; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, par. 11; Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899 ; Ficke v. Foley (Tex. Civ. App.) 292 S. W. 624; Robert Nicholson Seed Co. v. Reese (Tex. Civ. App.) 39 S.W.(2d) 950.

These pleas of privilege being in the form as provided by the statute, prima facie rebutted every allegation of fact alleged in plaintiffs petition. Plaintiff could not rely on the allegations of fact as made in his petition, nor introduce evidence of the truth thereof unless and until he filed a controverting affidavit setting up anew the necessary facts to show that the case came within one of the exceptions to the general venue statute. Eckert-Burton Const. Co. v. Board of School Trustees of City of Corsicana (Tex. Civ. App.) 51 S.W.(2d) 642, par. 2; Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W. (2d) 845; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.(2d) 824; Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896, par. 6.

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


author: FUNDERBURK, Justice.

text:
    FISCHER v. FISCHER.
    No. 1049.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 3, 1933.
    Carrigan, King & Surtes, of Wichita Falls, and T. R. Odell, of Haskell, for appellant.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellee.
   FUNDERBURK, Justice.

Mrs. H. T. Fischer brought this suit against her son, George Fischer, to cancel a deed dated October 17,1931, purporting to convey certain land in Throckmorton county. The deed recites a consideration of $5,260 cash and the execution and delivery of six vendor’s lien notes, each for the principal sum of $500, and reciting a vendor’s lien on the land. It was alleged, in substance and effect, that .defendant procured plaintiff to sign said deed upon the representation that it was a note; that plaintiff, being old and infirm, and unable to read the paper, and same not being read to her, she signed and acknowledged it and aft-erwards “learned that the paper was not a note and that the paper she signed and acknowledged was” the warranty deed in question ; that she did not receive any consideration whatever for signing and executing such deed, “and would not have signed and acknowledged same but for the false and fraudulent representations made by defendant to her”; that all the recitals in the deed showing consideration were false; that no cash was paid and “no-notes were ever executed or delivered to her, as stated in said deed, and that said deed is invalid for want of consideration.” It was further alleged, partly by way of reiteration: “That at the time of executing said deed plaintiff was aged and infirm, and physically incapable of reading the instrument she signed and acknowledged, and same was not read to her or explained to her, and that the representations made to her by defendant to induce her to execute the deed were false and that she relied solely on such false and fraudulent representations of the defendant, and that defendant being her only child and she being his mother, she had confidence in him, and did not believe that he would take advantage of her physical condition to defraud her.” Plaintiff offered in her pleading “to do such equity as the court may decree.”

In response to" special issues submitted, the jury found: (1) That prior to the execution of the deed George Fischer represented to plaintiff that he wanted her to sign a note; (2) defendant represented to plaintiff that the deed she signed was a note; (3) that plaintiff relied upon the representation that the deed was a note; (4) that she believed the representation that the deed was a note and believed she was signing a note at the time she executed the deed; (5) that she would not have executed said deed if she had known it was a deed; (3) that there was no consideration for the execution by plaintiff of the deed.

Upon this verdict the court gave plaintiff judgment canceling the deed, from which defendant has appealed.

The appellant has undertaken to brief sixteen propositions. By the first it is contended that the court erred in directing plaintiff’s counsel, while examining the plaintiff as a witness, to “go -ahead and lead your witness.” By the second proposition it is contended that, by reason of facts therein recited, plaintiff was estopped to deny that consideration was paid for the execution of the deed. The fourteenth proposition is: “The verdict of the jury must be supported by evidence before it can properly form the basis of a judgment.” The fifteenth proposition is: “It is error to admit testimony about a transaction not shown to have been connected with the instrument in controversy and not ba'sed upon any pleadings.” The sixteenth proposition reads: “It is error to permit a plaintiff to testify as to what she thought she was signing.” There are no assignments of error pointing out any action or ruling of the court relating to the questions thus attempted to be presented. The questions do not involve matters of fundamental error. We are therefore without authority to pass upon same. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844.

Other than with reference to appellant’s third proposition, hereafter to be discussed, we deem it sufficient discussion of the remaining propositions to merely state our conclusions, as follows: In our opinion plaintiff’s petition was sufficient to allege a cause of action for cancellation of the deed. Each and all of the special issues were supported by the pleadings, and, except as hereinafter noted, by some evidence, the sufficiency of which is not questioned by any assignment of error. None of the issues submitted was subject to objection on the ground that it was upon the weight of the evidence, or constituted a comment on the testimony, or assumed the existence of any material issuable fact. No issue called for a construction of the written instrument so as to make applicable the •r.ule that it is the duty of the court rather than the jury to construe written instruments. The pleading and evidence raised an issue of the want of consideration for ttye deed, regardless of the recitation in the deed of the execution and delivery of notes. There was evidence to the effect that the notes were never delivered.

The third proposition is construed to present the contention that there was no evidence upon one or more issues essential to -a recovery by plaintiff, and that therefore the court erred in refusing to give a peremptory instruction for defendant. It was alleged that defendant told plaintiff he wanted her to sign the note with him for the purpose of ¡helping him pay out his car at Woodson, Tex., and that she consented to do so, and plaintiff signed at his request a paper which dfefend-amt represented to her was a note. The court below evidently considered that two issues were thus presented as to the alleged representations made. One was whether defendant told plaintiff he wanted her to sign a note, and the other whether he represented that -the deed was a note. This was in accord with the pleadings. But whether defendant told plaintiff he wanted her to sign a note was not an ultimate issue but an evidentiary matter. That fact was only important, if at all, in justifying the belief of plaintiff that she was signing a note when she signed the instrument in question, and to explain the true -nature of the transaction. The real issue was, as submitted in the second special issue, did defendant tell plaintiff the paper she signed — in fact a deed — was a note? To establish this issue the burden of proof was upon the plaintiff. She sought to discharge that burden by her own testimony alone.

If there was any evidence that defendant told plaintiff the paper she signed was a note, it is to be found in the following:

“Q. Did he (that is, George, the defendant,) tell you what he wanted you to sign? A. Tes.

“Q. What did he say he wanted you to sign? A. Something for Woodson, an outfit of some kind, a note or something for a car; that is what I thought I signed.

“Q. What did he tell you he wanted you to sign it for? A. Just what he said,

“Q. Tell just what George said to you when he came to get you to sign the paper. A. I can’t remember.

“Q. As-near as you can remember, tell what he said. A. I can’t remember what he said.

“Q. Did he say anything? A. Well, I can’t remember that even, — something about Wood-son, a note on a car or something. * * *

“Q. Now do you remember what George told you he wanted when he asked you to sign it? A. Said he wanted to get that Woodson outfit.

“Q. Did he owe somebody something at Woodson? A. Owed for the car * * *

“Q. Did George tell you he wanted you to sign a note with him? A.’ Wanted me to go on with him, with Woodson, an outfit on his car, the best I remember. '

“Q. Is that what you thought you were signing? A. Yes, sir * ⅜ *

“Q. How many times has he been to see yo,u in the last year? A. I couldn’t tell, I don’t know whether he has been — the only time ¡he came was for the car outfit, for the Woodson tianlc, you know.”

In appraising the above testimony it is necessary to consider other testimony of plaintiff, as follows:

“Q. Did he (George) tell you what the paper was? A. No.

“Q. Tell Just what George said to you when he came to get you to sign the paper. A. I can’t remember.

“Q. As near as you can remember, tell what' he said. A. I can’t remember what he said * * *

“Q. And he didn’t make any proposition to you about the deed? A. No, not that I remember * * *

“Q. If he made any statement about this deed, don’t you recall it? A. No, sir.

“Q. Any statement about why you should sign it, etc., don’t you recall that? A. No, not now I don’t. My head is in such a shape and I am in such a shape I don’t feel like living, such as that is running me plumb wild.

“Q. Do you remember just where you were when you signed that deed? A. I reckon in the clerk’s office, I don’t know.

“Q. Do you remember going over to the bank and talking to Mr. Gradon Eubank about that deed? A. No, sir.

“Q. Do you remember who was present when you signed it? A. No, I don’t remember anything.

“Q. Now, don’t you recall having any discussion with him about this loan business? A. No.

“Q. And you don’t remember having any discussion with him about any car business? A. No.

“Q. And you don’t remember having any discussion with him about a note? A. No.

“Q. Don’t remember that? A. No, I never knew anything about it until I got the papers.

“Q. You don’t even recall going down there to Mr. Eubank and signing a deed to George, do you? A. No.

“Q. You don’t remember who was there, Mrs. Fischer, do you? A. No.

“Q. Some days your recollection is good? A. Used to be.

“Q. Some days now you can remember everything? A. Yes, I can get off to myself now and lie down and study and I can remember things.”

It is doubtful if, under the rule declared in Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, namely, that a mere scintilla of evidence should be treated as no evidence, whether it may be said that the plaintiff’s testimony furnishes any evidence that the defendant ever told her that he wanted her to sign a note. But, if it should be granted that there was some evidence to support the jury’s answer to the first question, thereby raising, if anything, a question of the sufficiency of the evidence, as distinguished from a question of no evidence, according to the rule declared in Hall Music Co. v. Robertson, 117 Tex. 261, 1 S.W.(2d) 857, it is certain, we think, that there was no evidence that the defendant represented to her that the paper she actually signed was a note. As said before, that was the material issue to be determined.

Ordinarily the action to follow the above conclusion would be to reverse the case and render judgment for the defendant. Such a course, however, is not mandatory. The evidence is too inconclusively developed to satisfy us that a final disposition of the rights of the parties should be adjudged under the state of this record, unless, under the law, it is necessary to do so.

It is therefore ordered that the judgment of the court below be reversed, and the cause remanded.