Volume 249 — South Western Reporter

Suit by B. C. Couehman and others against the City of Dallas and others. Judgment for plaintiffs, granting an injunction, and defendants appéal.

<p>1. Limitation of actions &wkey;>l 14—Action against railroad for injuries to soldier barred two years after his discharge from service despite provisions of Federal Control Act; “actions against carriers.”</p> <p>Assuming that Act Cong. March 8, 1918, § 205 (U. S. Comp. St. 1918, U. S. Comp. St Ann. Supp. 1919, § 3078í4e), excluding the time of men in the military service in computing limitations, precluded the running of limitations against recovery from a railroad for injuries to a soldier on February 9, 1917, until his discharge on December 23, 1918, an action begun January 19, 1921, was barred by the two years’ statute, though Act Cong. Feb. 28, 1920, § 206, subd. f, provides that the period of federal control of railroads, which began January 1, 1918, and ceased March 23, 1920, “shall not be computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to federal control”; such provision referring to actions against carriers in federal courts under federal laws only.</p> <p>2. Courts <&wkey;97(5)—Opinions of federal district judges as to applicability of federal act respecting limitations in actions against carriers for causes arising before federal control not authoritative as to causes instituted in state coiurts.</p> <p>Opinions of federal district judges sustaining Act Cong. Fed. 28, 1920, § 206, subd. f, providing that the period of federal control of railroads shall not be computed as part of the periods of limitation in actions against carriers for causes arising prior to federal control, as applied to causes in the federal trial courts, are not recognized as authority by the Texas courts on causes of action instituted therein to which, the statutes of such state alone apply.</p> <p>3. Courts <&wkey;375 — Federal courts to which actions to enforce rights not dependent on federal statutes or Constitution are transferred from state courts must follow state laws as to limitations.</p> <p>Limitation of actions in the state courts for the enforcement of rights not dependent on aets of Congress or the federal Constitution is a matter purely of state regulation, which the federal courts must follow when such actions are transferred to them.</p> <p>4. Railroads &wkey;>5|/2, New, vol. 6A Key-No. Series-Plaintiff hound by law of forum as to limitations as against federal law to contrary.</p> <p>Even if federal courts, to which actions for the enforcement of rights. not dependent on federal statutes or the United States Constitution are transferred from state courts, are not bound to follow the state law as to limitations, an action brought in a Texas court against a railroad for injuries to a United States soldier on February 9, 1917, is barred two years after his discharge from the service on December 23, 1918, despite Act Cong. Eeb. 28, 1920, § 206, subd. f, providing that the period of. federal control (January 1, 1918, to March 23, 1920) shall not be computed as part of the period of limitation in actions against carriers for causes arising prior to federal control; plaintiff being bound by the law of the forum, which he chose and, as plaintiff, not having the right to remove cause to federal court.</p> <p>5. Railroads &wkey;5'/2, New, vol. 6A Key-No. Series-One injured before federal control may sue and obtain judgment at any time thereafter, including period of’ federal control.</p> <p>Under Federal Control Act March 21, 1918, § 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115% j), subjecting carriers under federal control to all liabilities as such under state or federal laws and providing that no defense to actions against them shall be made on the ground that the carrier, is an instrumentality or agency of the federal government, one injured prior to federal control may sue and recover judgment at any time after the injury, notwithstanding fedefkl control, though he cannot collect his judgment by levying on the railroad property until after expiration of the period of federal control.</p>

<p>Appeal from Martin County Court; A. G. Odom, Judge.</p> <p>Suit by Thomas O. Spearman against J. R. Smith. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Limitation of actions <&wkey; 146(3) — Indorsement upon note held* insufficient to constitute renewal and removal of bar.</p> <p>Where defendant made payment in excess of amount due on one of two notes held by plaintiff, and in his own handwriting indorsed the residue upon the other note, but did not sign it, such indorsement did not constitute an acknowledgment of the debt or a renewal of the note and did not remove the bar of limitations, under Rev. St. art. 5705.</p> <p>2. Limitation, of actions <&wkey;95( I) — Cause of aotion for services held not barred.</p> <p>Where one performed services for holder of note against him and told her to have his fees applied upon the notes and understood that the notes were credited therewith, the holder of the notes in- an action thereon cannot set up the two years’ statute of limitations as against his counterclaim for such fees; defendant not learning of plaintiff’s failure to make such credits until the year of the action.</p>

<p>1. Specific performance <&wkey;6 Affirmative promises by one party will not be enforced unless affirmative promises by the other may also be enforced.</p> <p>Before a court of equity will enforce affirmative promises made by defendant in behalf of plaintiff, it must also be able to enforce affirmative promises made in behalf of defendant.</p> <p>2. Specific performance <&wkey;6—Agreement for undivided interest in land held unenforceable where consideration was-personal services to be rendered in the future.</p> <p>Where alleged tenants in .common sought to compel a cotenant in whose name title to the property had been taken to perform his agreement under which plaintiffs were to have each an undivided third interest in the property, plaintiffs to pay for their share in the land by personal services to be rendered in the future, the contract was not one which a court of equity could enforce, since the agreement to perform services would not have been enforceable as against plaintiffs.</p>

<p>Appeal from District Court, Clay County; Wm, N. Bonner, Judge.</p> <p>Action by.G. W. Kidwell against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial Refusal to find separately on plea in abatement before submission on merits of case held not error.</p> <p>Where, in an employee’s action for injuries, defendant interposed a. so-called plea in abatement on the ground that defendant had provided for payment of compensation for personal injuries to its employees under Acts 33d Leg. (1913) c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzz), by contracting with a state employers’ insurance association, it was not error for the court to refuse to consider first and separately the plea before submission of the evidence on the merits, but the action of the trial court in requiring the jury to find as to the facts upon which the plea was predicated before considering further facts was a substantial compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1947.</p> <p>2. Trial <©=»4—Court has discretion to require facts in support of plea in abatement to be tried as a separate Issue before trial on merits.</p> <p>It rests in judicial discretion to permit a plea in abatement, which is to be determined after hearing the evidence in support thereof, to be tried as a separate issue before a trial on the merits.</p> <p>3. Pleading ©=»76—Plea of compliance with - Workmen’s Compensation Law a plea in bar rather than in abatement.</p> <p>, In an employee’s action against his employer for personal injuries, where the employer interposed a plea that it had provided for payment of compensation for personal injuries' under Acts 33d Leg. (1913) c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246k-5246zzz), by contracting with a state employers’ insurance association for payment of indemnity, this was properly a plea in bar, so far as defendant was concerned, rather than a plea in abatement, for if defendant had notified plaintiff prior to his employment that it was a subscriber to the association and had given notice to the Industrial Accident Board as required by Vernon’s Sayles’ Ann. Civ. St. •1914, art. 5246qqq, plaintiff would have no cause of action against his employer, in view of article 5246i.</p> <p>4. Master and servant @=>409!/2, New, vol. 7A Key-No. Series—Whether employee had beep notified that employer had complied with Employers’ Liability Act held for jury.</p> <p>In an employee’s action against his employer for personal injuries, wherein the employer pleaded compliance with Acts 38d Leg. (1913) c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), in that it contracted with a Texas employers’ insurance association for the payment of indemnity to injured employees, held it was not error to refuse [ to give a peremptory instruction for defendant, on the ground that the undisputed proof showed that plaintiff had been notified that the employer had provided compensation under the Employers’ Liability Act.</p> <p>5. Master and servant <3=>358—Notice of operation under Compensation Law to be given employees personally.</p> <p>Notice in writing that employer has secured a policy, which Workmen’s Compensation Law, pt. 3, §§ 19, 20 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. ,5246x, 5246xx), provides in general terms the employer shall give his employees without prescribing how it shall be given, and which is necessary to relieve the employer of liability, must be given the employee personally.</p> <p>Buck, J., dissenting in part.</p> <p>On Motion for Rehearing.</p> <p>6. Master and servant <®=»405 (3)—Finding that employer had not personally served employee with notice of compliance with compensation law not justified by evidence.</p> <p>In an action by an employee for personal injuries against his employer, where the issue was whether the employee had been actually served by the employer with printed notice that employer was a subscriber to the Texas Employers’ Insuran.ce Association, evidence held not to warrant a finding that defendant had not personally served plaintiff with notice.</p> <p>Conner, C. J., dissenting.</p>

<p>Appeal from District Court, Stephens County; C. O. Hamlin, Judge.</p> <p>Suit by Emma Hanscom against C. D. Akers and others. From a judgment for plaintiff, named defendant appeals.</p>

Error from El Paso County Court, at Law; J. M. Deaver, Judge. Suit by Manuel E. Flores against Frank C. Clayton and others upon a note payable to E. C. Duty. From an adverse judgment, plaintiff brings error.

<p>Appeal and error &wkey;>78(l) — Overruling motion for judgment on answer by jury to special issues not a “final judgment” conferring jurisdiction on appellate court.</p> <p>Under Rev. St. arts. 2OT8-2Í13, providing for appeals, overruling defendants’ motion for judgment on answers by a jury to special issues was not such a “final judgment” as will confer jurisdiction on an appellate court.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]</p>

<p>Justices of the peace <@=>159(12) — Appeal bond held amendable.</p> <p>Where the bond on appeal from the judgment of a justice court to the county court at law for Eastland county, as provided by Acts 36th Leg. (1919) 2d Called .Sess. c. 16 (Vernon’s Ann. Oiv. St. Supp. Í922, arts. 1811— 146 to 1811 — 156), creating a county court at law for that county, omitted the words “at law,” in refusing to permit a new bond to be filed to supply the omission and dismissing the appeal, there was error. Rev. St. art. 2104.</p>

<p>Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.</p> <p>Action by J. W. Riordan against W. J. Stahmann and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Compromise and settlement <&wkey;22— Plea held sufficient as against general exception.</p> <p>In an action for money due plaintiff for hauling cotton for defendant, a plea by defendant that plaintiff had agreed for a sum of money paid by defendants, which was paid, to dismiss said suit, at which time defendants paid the agreed amount as a compromise and in full settlement of plaintiff’s claim, though informal in some respects, held sufficient as against general exception.</p> <p>2. Pleading <&wkey;228 — Exception that plea states no defense not a special exception.</p> <p>In an action on contract to which defendants pleaded accord and satisfaction and compromise and settlement, an exception that the plea “gets up no defense,” though designated a special exception, is general.</p> <p>3. Contracts <&wkey;28 (3) — Evidence held to show agreed price for hauling.</p> <p>In an action on contract for money due plaintiffs for hauling cotton, evidence held to show an express agreement as to price per bale for such hauling.</p>

<p>Appeal from District Court, Smith. County; J. R. Warren, Judge.</p> <p>Suit by Walter Storey against U. W. Prater and others for an injunction. A temporary injunction was granted, and defendants appeal.</p> <p>The appeal is from an order of the district. judge made at chambers granting a temporary injunction. The appellee filed a petition praying for an injunction restraining appellants, who are respectively the city manager, the city attorney, and the chiqf of police of the city of Tyler, from enforcing an order of the city manager suspending his license or permit to operate an automobile for hire. The petitioner claims interference in and deprivation of the right to the free pursuit of his business, predicated upon the invalidity of the ordinance herein below set •out. The case was submitted to the judge on the petition and the answer.</p> <p>It appears that the city .of Tyler is' a municipal corporation created and existing by virtue of the general laws of the state, having, on the 6th day of April, 1915, adopted a charter under the provisions of Acts 1913, p. 307 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i). It has the commission form of government, with a city manager as the chief administrative officer. The charter, it appears, specially provides, among others, the following particular powers of the city of Tyler:</p> <p>“May license and regulate persons, corporations and associations engaged in any business, occupation, profession, or trade, and may define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city and all nuisances and causes thereof.”</p> <p>“May assess, levy and collect taxes for general and special purposes on all the objects or subjects which the city may lawfully tax.”</p> <p>“May regulate and control the use for whatever purpose, of the streets and other'public places.” .</p> <p>“May make and enforce local police, sanitary and other regulations, and may pass such ordinances as may be expedient for maintaining and promoting the peace, good government and welfare of the city, and for the performance of the functions thereof.” i</p> <p>The charter further provides:</p> <p>“Sec. 11. The commission shall consist of unpaid members, and shall elect its own chairman. The ■ commission shall meet once a month, and oftener on the call of the manager, as hereinafter provided for, or on the call of two commissioners. The commission shall see that all ordinances necessary and proper for carrying out the powers and duties herein specified are passed, and that they are enforced by the manager.”</p> <p>“Sec, 3. The commission shall constitute the governing body, with powers as hereinafter provided to pass ordinances, adopt regulations, and appoint a chief administrative officer to be known as the ‘city manager,’ and exercise all powers hereinafter provided.”</p> <p>“See. 46. The powers and. duties of the city manager shall be:</p> <p>“(a) To see that the laws and ordinances are enforced;</p> <p># ******</p> <p>“(g) To perform such other duties as may be prescribed by this charter or be required of him by ordinance or resolution of the commission.”</p> <p>“Sec. 12. The city manager shall be the chief executive' officer of the city.”</p> <p>(in ordinance duly adopted by the commission provided for and required the issuance, on payment of a specified sum of money, of a license, for the period of one year, to a person to operate an automobile for hire in the city of Tyler. The following ordinance was duly adopted ’by the commission:</p> <p>“An ordinance authorizing and directing the city manager to suspend the license and service of any operator of any vehicle for hire in the city of Tyler guilty of misconduct; providing for a hearing before the commission and procedure therefor; providing for the refund of the unexpired portion of the license of such operator; making it unlawful for any operator to operate any vehicle for hire in the city of Tyler after his license or service shall have been revoked; providing for a penalty and providing for an emergency.</p> <p>“Section 1. That hereafter the city manager be, and he is hereby, authorized and directed to suspend the permit or license of any owner or operator of any vehicle for hire in the city of Tyler, or order any employee of any such license holder to discontinue driving a vehicle for hire, when such owner, driver, operator or employee shall have been drunk, or shall have violated any of the traffic ordinances of said city, or shall have been guilty of misconduct or recklessness which, in the opinion of the city manager, unfits him for such service to the public; when, in his discretion, the. city manager deems it necessary or advisable to suspend the license of any such person, or orders any such employee to discontinue such service, he shall give notice to such person in writing signed by him, that the license of such person is suspended, or that the employee is so ordered to suspend such service, as the case may be, stating the reason therefor, and such notice shall be served either personally or deposited in the mail; such notice shall be accompanied by a specification of the charges against him by the city manager and a notice of the time and place of the next regular meeting of the commission, at which time such person may appear before the commission and contest such charge or charges, having the right to introduce evidence and be heard personally and by counsel; if such charge or charges, in the opinion of the commission, be not sustained, the commission may, by order entered upon its minutes, set aside the city manager’s order of suspension of such license, or order suspending such employee from such service; if such charges, in the opinion of the commission, be sustained, the commission may, by order entered upon its minutes, revoke such license or make permanent such order of the city manager suspending .such employee from such service, and the same shall be final and no appeal allowed therefrom.</p> <p>■ “A copy of such notice accompanied by a voucher or check of the city of Tyler making a refund to any such license holder of an amount bearing the proportion to the original amount paid for such permit or license as the unexpired portion of such permit or license, if any, bears to the period for which it was issued, shall be served on such person, but the failure to make such' refund at such time, or the failure or refusal of such person to accept the same, shall not affect the order or notice revoking said permit or license.</p> <p>“Section 2. That after the license of any such person shall have been revoked by the city manager, or after such employee is so ordered to suspend such service by the city manager, and before the same is set aside by the commission, or after the ’ commission has sustained the city manager’s action in such case, it shall be unlawful for any such person to operate any vehicle for hire or offer to do so on any street, avenue or alley of the city of Tyler and any such person convicted of doing so shall be deemed guilty of a misdemeanor and shall be fined in any sum not less than ten nor more than two hundred dollars.</p> <p>“Section 3. That there is now no provision in the ordinances of the city of Tyler authorizing and empowering the city manager to suspend the license or service of any operator of a vehicle for hire upon misconduct, and as the safety of the public Remands such a provision, an imperative public necessity and emergency exists, and is hereby declared, and this ordinance shall take effect and be in force from and after its passage, approval and publication.</p> <p>“Passed and approved at an adjourned regular meeting of the commission of the city of Tyler, Texas, held in the commission chambers on the 8th day of July, A. D. 1921.”</p> <p>The above ordinance is the one involved in this injunction. There was issued to the appellee a license to operate an automobile or service car for hire on the public streets of th.e city of Tyler for the period of a year from March 15, 1922. On December 1, 1922, the city manager of the city of Tyler, in virtue of the authority and power invested in' him by a general ordinance of the city, made an order declaring the license issued “to be suspended indefinitely.” The city manager then gave to appellee, and he received, the following written'notice:</p> <p>“Tyler, Tex., December 21, 1922.</p> <p>“Mr. Walter Story, Tyler, Texas — Dear Sir: Under- date of July 8, 1921, the city commission passed an ordinance authorizing- and directing the city manager to suspend the license and service of any operator of any vehicle for hire in the city of Tyler guilty of misconduct; providing for a hearing before the commission and procedure therefor; providing for the refund of the unexpired portion of the license of such operator; making it unlawful for any operator to operate any vehicle for hire in the city of Tyler after his license or service shall have been suspended or revoked, and providing a penalty.</p> <p>“You will remember that on April 7, 1922, you were brought before the commission for hauling passengers for immoral purposes. At that time, you promised to discontinue such service if you were permitted to continue to operate. The commission, believing that you would make your promise good, agreed for you to continue to operate your car for hire so long as you did not engage in immoral traffic.</p> <p>‘T have in my possession a statement signed by [the name is here written] stating that about the latter part of October, 1922, you met her at the St. Charles Hotel and took her out about four miles north of Tyler to meet a man, and about two weeks later you took her out to meet the same man; also that you had carried her out to meet other men about three different times.</p> <p>“In view of these facts and by virtue of the power vested in me, as city manager, in above ordinance, I hereby declare license issued to you under date of March 15, 1922, to be suspended indefinitely. If you should operate your car for hire after to-day, December 21, 1922,' you will be subject to the penalties provided in the ordinance.</p> <p>“The commission will meet in regular session January 5, 1923, at which time you may appear and protest this suspension, if you see fit.</p> <p>“Yours very truly,</p> <p>“U. W. Prater, City Manager.”</p> <p>On December 23, 1922, the city attorney filed a complaint charging appellee with operating a service car for hire after the license or permit had been suspended. The appellee then filed this suit for injunction on December 23, 1922.</p>

<p>1. Appeal and error <&wkey;209(I) — Consideration of assignment of error not excepting to charge, but to insufficiency of evidence to support verdict, held not prohibited by statute.</p> <p>Where an assignment of error and proposition thereunder and motion for new trial constitutes no complaint against charge of court as such because not objected to at trial, but distinctly embodies an attack only upon the verdict as being without support in evidence, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, does not prevent the appellate court from considering the assignment.</p> <p>2. Appeal and error <&wkey;23(b-Party not objecting to peremptory instruction may have it reviewed on appeal on basis of assignment of error embodied in motion for new trial.</p> <p>When a peremptory instruction is given, the requirements of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, do not apply, and, without objecting to the instruction, the party against whom it is given may have the action of the court reviewed on appeal on the basis of an assignment of error embodied in the motion for new trial, though no exception to the charge is filed before it is submitted to the jury.</p> <p>3. Trover and conversion <&wkey;49 — Measure of damages stated.</p> <p>The measure of damages for the conversion of an article is the market value at the time of the conversion with interest thereon from that time at the legal rate, and not the highest market value at any time between the date of conversion and the trial.</p> <p>4. Trover and conversion t&wkey;46(6)— Proof of . value of article converted held insufficient.</p> <p>In an action for conversion of a secondhand cash register, where the only evidence of value was the special value to plaintiff and special value in exchange for new ones, and the evidence revealed existence of a market, but no secondhand market value was proved, field, that the judgment must be reversed.</p>

<p>1. Carriers <&wkey;l58(l)— Interstate Commerce Commission has no power to compel shipper to take less than actual value of goods lost; statute prohibits such limitations of liability.</p> <p>The power of the Interstate Commerce Commission to fix rates does not enable it to require a shipper in intrastate commerce to accept less than the actual value of goods lost in shipment, even though he has signed a contract containing such limitations, since Rev. St. arts. 707, 708, prohibit such limitations of liability.</p> <p>2. Carriers <&wkey;!58(l) — Limitation for loss of household goods of 10 cents per pound held unreasonable.</p> <p>A valuation of each article of household goods shipped .by carrier at 10 cents per pound beyond which it attempts to limit its liability for loss of such goods is unreasonable and should not be enforced, since it is a matter of common knowledge that some articles of small weight are of great value, whereas others of greater weight are of small value.</p> <p>3. Carriers <&wkey; 110 — Carrier not liable for watch and cuff buttons included in shipment of household goods.</p> <p>Since a watch and cuff buttons, valued at $20,- are not household goods, their presence in a shipment to a carrier without revealing their special value is a fraud upon the carrier which discharges its liability for loss of those articles irrespective of Rev. St. arts. 707, 708.</p> <p>4. Judgment <&wkey;255 — Where agreed valuation of lost goods was a certain amount, judgment for higher held erroneous.</p> <p>Where the agreed valuation of loss of goods sustained by a shipper was a certain amount, it was error to enter judgment for a larger amount.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Suit by the Fidelity Petroleum Company against the Home Investment Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, San Saba County. ' -</p> <p>Action by A. H. Winkel against Sid Underwood and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Bowie Coun-. ty; Hugh Carney, Judge.</p> <p>. Action by Maude L. Sabine against The Maccabees. Judgment for plaintiff, and defendant appeals.</p>

P. Williams, Judge. Suit by the Farmers’ & Merchants’ National Bank against J. C. Brewer and others. From a judgment for plaintiff, the named defendant and another appeal.