Tex.) MISSOURI, K. & T. RY. CO. OF TEXAS v. DALE BROS. LAND & C. CO. 935 366-GOVERNMENT REPORTS -LIVE STOCK-TABLE OF SHRINKAGE-AU THENTICATION. The record does not show that objection | 2. EVIDENCE was made and presented to the court, as required by article 1971, Rev. Stat. as amended by chapter 59, 33d Leg. p. 113. The assignment is overruled. [7] In the eighth assignment, the appellant contends that the verdict of the jury is against the preponderance of the evidence, in that the testimony of the witness Terrell shows that the method by which the amount of wood shipped to appellant was by calculating the capacity of the cars from the American Railway Equipment Register, and estimating the quantity of wood therein, while the direct and positive testimony of appellant who measured the wood in the cars was that they contained 132 cords, and not 185 cords. The statement in the assignment as to the method of estimating the quantity of wood in the cars at Allenfarm, that is, by cubic capacity of the cars from the Equipment Register, is borne out by the statement of facts. The measurement of the wood in the cars by appellant was made at Houston. The defendant's answer nowhere denies that 185 cords of wood were placed in the cars at Allenfarm, nor that any measurement of the wood was made at Allenfarm, other than that estimated by the said register. The testimony of the witnesses who loaded the cars at Allenfarm is that the cars were loaded to their full capacity. We believe that the evidence is sufficient to establish the fact, at least prima facie, that 185 cords of wood were put in the cars at Allenfarm; and, conceding it to be a fact that only 132 cords were found in the cars at Houston would not be such preponderance of the evidence as should cause a reversal. The amount found by the jury does not show that their verdict was influenced by the remark of counsel, and we overrule the ninth assignment. The error in the judgment as to interest was evidently clerical, and has been corrected and remittitur filed in the trial court, and requires no further mention. Finding no reversible error, the judgment is affirmed. In an action for damages for negligent transportation of stock, it is not error to exclude tables of the Department of Agriculture and by the Texas Cattle Raisers' Association as to tests of shrinkage of stock in transportation, where there is nothing to show that they are accurate, authentic, or that the tests embraced therein were made under similar conditions. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. 3. EVIDENCE WEIGHT. 366.] 383-PUBLIC DOCUMENTS A pamphlet or other document, purporting to have been used by the government or under the authority of some department of the government, has, prima facie, no more weight as evidence, nor greater authenticity or verity, than documents issued by other authority. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. 383.] 4. CARRIERS 228 CARRIAGE OF LIVE STOCK-EVIDENCE-SUFFICIENCY. ligent delay in transportation of live stock, held Evidence, in an action for damages for negsufficient to sustain a verdict for the plaintiff. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. 228.] Appeal from Clay County Court; W. T. Allen, Judge. Action by the Dale Bros. Land & Cattle Company against the Missouri, Kansas & Texas Railway Company of Texas and others. From a judgment for plaintiff, defendants appeal. Affirmed. ants appeal. C. C. Allen and Arnold & Taylor, of Henrietta, for appellants. Wantland & Parrish, of Henrietta, for appellee. BUCK, J. Appellees, Dale Bros. Land & Cattle Company, filed this suit in the county court of Clay county against the appellants, Missouri, Kansas & Texas Railway Company of Texas and the Missouri, Kansas & Texas Railway Company, alleging the shipment by the plaintiffs, over the defendant companies' lines, of 105 steers from Henrietta, Tex., to the National Stockyards, Ill., said shipment leaving its point of origin July 5, 1914, and reaching its destination on the morning of July 9th. Plaintiffs alleged injuries result MISSOURI, K. & T. RY. CO. OF TEXAS ing from delay, rough handling, and failure et al. v. DALE BROS. LAND & CAT TLE CO. (No. 8241.) of the cattle to reach their destination in time for the market of July 8th, alleging (Court of Civil Appeals of Texas. Ft. Worth. that the market for such character of cattle Oct. 16, 1915.) 1. APPEAL AND ERROR 1050-HARMLESS ERROR-EVIDENCE-ADMISSIBILITY. In an action for negligence in transporting live stock, the plaintiff's witness was permitted to say that he had never heard anything about the fact that a certain train did not run on Sunday. The defendants objected on the ground that the answer was immaterial. Held, that admission of the testimony was not prejudi cial error, even if immaterial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.] had declined on the 9th. Plaintiff further alleged that said cattle were, by reason of said alleged rough handling and delay, depreciated in marketable appearance and actually sold for 10 cents per hundredweight less than they would have sold for on said market but for such delay and rough handling, and a loss in weight of at least 40 pounds per head by reason of said alleged 24 hours delay. The total damages claimed aggregated $457.67. The cause was submitted to the court without the aid of a jury, and judgment rendered for $265, from which, ray, 111 S. W. 782; Scanlon v. Railway Co., judgment the defendants appealed. Appellants' first assignment complains of the action of the court in permitting, over objection, one of the plaintiffs, J. E. Dale, to answer the following question propounded by his counsel, to wit: "Mr. Dale, did you ever hear anything about this train, passing through Whitesboro at 12:10 a. m., not running on Sunday?" To which the witness replied, "No, sir." Appellants urge that the answer of the witness was immaterial and irrelevant. The evidence shows that the cattle were loaded on the cars of the Southwestern Railway Company at Scotland, some 20 miles from Henrietta, at about 3 or 3:30 p. m. Sunday, July 5th, and reached Henrietta about 12 hours later. They were there delivered to hours later. They were there delivered to the defendant Missouri, Kansas & Texas Railway Company of Texas, about 15 or 20 minutes being required for the transfer. The train reached Whitesboro between 12:30 and 1 a. m. of the 6th. It appears there was a regular stock train from Ft. Worth through Whitesboro, with which this shipment would have made close connection had it run that night, but, as testified to by E. H. Smith, witness for the defendants: "The regular stock train from Ft. Worth did not run that night. It is very seldom we have any stock on Sunday, and for this reason this train runs very infrequent on Sunday. There being no regular through stock train on this night, we handled this shipment of stock on a second class fast merchandise train out of Dallas at 10 p. m., due at Whitesboro at 3 a. m., and passed through on this night at 3:20 a. m. That was the only train we had passing west for the north that night, and this train picked up these cattle and carried them on to Denison." Several witnesses for plaintiff, who had had experience in shipping cattle from Henrietta, Tex., to the National Stockyards, St. Louis, testified that, where such cattle were loaded on cars at Henrietta from 7 to 9 o'clock p. m., they would usually and customarily reach the stockyards early on the morning of the third day, and in time for the market of that day, and defendants introduced testimony as to the infrequent running of this Sunday night stock train from Ft. Worth in order to show that they were not negligent by reason of the delay at Whitesboro. In rebuttal plaintiff Dale testified in the language complained of. 45 Tex. Civ. App. 345, 100 S. W. 983; Conn v. Rosamond, 161 S. W. 73), yet out of an abundance of liberality we have given the assignment consideration. We do not believe that there is any prejudicial error in the court's permitting the answer complained of. At most, if it was immaterial, it does not appear to be injurious. [2] Appellants' second assignment is directed to the action of the court in refusing to "permit the defendants to read in evidence the report made by the Agricultural Department of the United States government, showing various tests as to shrinkage of animals shipped from various points to the different markets, also the tests made by the Texas Cattle Raisers' Association showing the same facts, the same being objected to by counsel for plaintiffs as being irrelevant and immaterial.” [3] Appellants urge that this character of testimony was admissible in rebuttal of testimony offered by defendants as to the amount of shrinkage suffered by cattle while in shipment. Nothing is shown as to the contents of the bulletins offered as to wheth under similar conditions to those existing in the shipment in question, and, moreover, appellants do not show in their bill of exceptions, or their statement under this assignment, or anywhere, that such bulletins were proved up, certified to, or in any legal way were such bulletins shown to contain a true record of the tests therein purported to be set out. We do not understand that a pamphlet or other document purporting to have been used by the government, or under the authority of some department of the government, has any more weight as evidence, or carries upon its face any stamp of greater authenticity or verity, than documents issued by any other authority. The case of Railway Co. v. Graham & Price, 174 S. W. 297, cited by appellants, by the Court of Civil Appeals for the Eighth District, does not, in our opinion, support the contention made, but is in opposition thereto. Judge Harper, in the opinion, speaks as follows: er the tests therein described were made "The third [assignment] charges error in re fusing to allow the defendant to introduce in evidence United States government report of tests made of the shrinkage of other cattle under similar circumstances, issued in the form of a printed bulletin. The principle, as gathered from the authorities, is that wherever docu[1] While in their statement under this as-ments of a public nature would themselves be signment appellants have not complied strict- evidence if produced, and which could not, withly with the requirements of rule 31, govern-out inconvenience to the public interest, be reing Courts of Civil Appeals (142 S. W. xiii), which reads, in part, as follows: "To each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record" (Emphasis ours) -and, perhaps, we would be justified in sustaining appellees' objection to the consid copies or copies verified by some person who has moved from their place of custody, certified seen the original are admissible, and in the absence of such proof of correct copies are not admissible." In the case of Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064, Chief Justice Gaines, in passing upon the admissibility of parol testimony to establish the authenticity of a purported copy of certain records in the office of the land commissioner, held that such ex up by a witness, but quotes from 1 Green- | 2. CONSTITUTIONAL LAW 63-DELEGATION leaf, Evidence, § 485, as follows: OF POWER-REGULATION OF BAWDYHOUSES. tions of the state from the operation of a civil Although the Legislature may exempt poror penal statute, it cannot delegate that authority to any other body, so that an ordinance of a city attempting to except bawdyhouses from the provision of a general statute is void, although the Legislature has attempted to delegate the power to make the exception. ""Where the proof is by copy, an examined copy, duly made and sworn to by any competent witness, is always admissible.' Why not admissible? The evidence is as satisfactory certainly as a certified copy. In the latter case we depend upon the honor and integrity of an official, and in the former upon the oath of a competent witness. In either case, an error or a fraud is easily detectable. Probably, the reason why such a mode of proof has not been much known, if known at all, in our practice, is that it is cheaper and handier to produce copies, and if a witness comes instead, it is more satisfactory to have the officer who controls the records bring them into court." But no such proof is shown to have been But no such proof is shown to have been made in this case and, therefore, and further because the conditions were not shown to have been similar, the assignment is over ruled. Where a statute regulating bawdyhouses and exempting those in certain districts thus contains two provisions, and one of them is void, the circumstances of the passing of the act must be looked to to discover whether the Legislature would have passed one provision without the other, and, if it would not have passed one without the other, the courts cannot hold one invalid and one valid, since this would make a law which the Legislature did not make. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. 64.] 4. NUISANCE 72 - DISORDERLY HOUSES RIGHT OF ACTION - SPECIAL DAMAGE - NECESSITY "PREJUDICIAL. [4] The third assignment alleges error in the judgment of the court as being contrary to the law and evidence. While it is true that defendants' witnesses testified to facts tending to show prompt delivery of the shipment in question, yet there were a number of cattle shippers, the plaintiff and others, Under Rev. St. 1911, art. 4613, authorizing who testified that, with an ordinary run the relief demanded, which requires the restraint an injunction where the applicant is entitled to and without unusual delays, the shipment in of some act prejudicial to the applicant, "prejuquestion should have reached its destination dicial" means harmful or injurious, and a pri24 hours earlier than it did, and such testi-vate person cannot enjoin as a property holder the operation of disorderly houses in a nearby mony is sufficient, in our opinion, to sustain segregated district unless he shows special damthe judgment. According to the testimony age by decrease of value in his own property. of the plaintiffs' witness Keechleer, who was [Ed. Note.-For other cases, see Nuisance. the salesman who sold the cattle, they weigh-Cent. Dig. §§ 164-169; Dec. Dig. 72. ed at St. Louis 120,670 pounds. He testified that by reason of the 24 hours' delay in shipment the cattle would have lost at least 30 pounds per head, or 3,150 pounds, and if they had reached the market 24 hours earlier they would have sold for at least 10 cents per hundredweight more. This would make the loss sustained $375.82. The judgment is for $265, and we are unable to say that it is $265, and we are unable to say that it is not sustained by the evidence. The judgment is affirmed. (No. 473.) El Paso. COMAN et al. v. BAKER. 1. NUISANCE 65-BAWDYHOUSES-INJUNC- Under Rev. St. 1911, art. 4689, providing that the use of any premises for the purpose of keeping a bawdyhouse shall be enjoined at the suit of the state or any citizen thereof, provided that the provisions of the statute shall not apply nor be construed so as to interfere with the control and regulation of bawds and bawdyhouses by ordinances of incorporated towns and cities acting under special charters, and where the same are actually confined by ordinance of such city within a designated district of such city, plaintiff is not entitled to maintain his action to enjoin disorderly houses in the city of Houston where bawdyhouses are restricted by ordinance to a certain locality. [Ed. Note.-For other cases, see Nuisance. Cent. Dig. §§ 158-160, 170, 171; Dec. Dig. 65.] For other definitions, see Words and Phrases, Second Series, Prejudicial.] Appeal from District Court, Harris County; J. A. Read, Judge. Action by J. W. Baker against Sadie Coman and others. From a judgment and order that injunction issue against defendants, the defendants, except the Mayor and Alderthe defendants, except the Mayor and Aldermen of the City of Houston, appeal. Re versed, and injunction dissolved. S. B. Ehrenwerth, Campbell, Sewall & Myer, Hutcheson & Hutcheson, Hume & Hume, Kahn & Williams, Jno. M. Cobb, and Heidingsfelders, all of Houston, and Smith, Crawford & Sonfield, of Beaumont, for appellants. Kittrell & Kittrell, of Houston, for appellee. HARPER, C. J. This was an action brought by appellee as a private citizen, against appellants as owners, lessees, and tenants seeking an injunction suppressing bawdyhouses, situated in what is known as the "Reservation," the district segregated by ordinance of the city of Houston, and against the mayor and aldermen of the city of Houston, seeking to enjoin the enforcement of the ordinance of segregation. Plaintiff pleaded section 16, art. 2, of the Charter of the City of Houston, providing, among other powers conferred, or attempted to be conferred, upon the city of Houston, "to prohibit and pun ish keepers and inmates of bawdyhouses and variety shows, prevent and suppress assignation houses and houses of ill fame, and to regulate, colonize and segregate the same, and to determine such inmates and keepers to be vagrants and provide for the punishment of such persons." Appellee further alleged that, acting under and by virtue of the powers conferred, or assumed to be conferred, upon it by said section, the city council of the city of Houston enacted an ordinance colonizing and segregating houses of ill fame and assignation houses; said ordinance being set out in full by appellee. Appellee alleged special injury through the maintenance of the said houses and the enforcement of of the said houses and the enforcement of said ordinance, and that, if not specially article 4689, R. S. 1911, which provides for enjoining bawdy or disorderly houses as a nuisance. Finding of Facts. charter granted by the Legislature. vides, among other powers conferred, that, That the city council passed an ordinance confining bawds and bawdy houses to a designated district in said city; that plaintiff owns approximately a hundred acres of land in the city of Houston; that the reservation in the city of Houston; that the reservation as established is six blocks from plaintiff's east line. The only question or issue submitted by the court is: "Has or has not the establishment and maintenance of the 'Reservation,' as located and situated under the city ordinance in question, resulted proximately in any special damage to plaintiff, by causing plaintiff's property to be substantially less in market value than it would be but for the establishment and maintenance of said reservation? Answer: We find it has not." damaged thereby, he was entitled to the relief sought under the act of April 18, 1907 (Acts 30th Leg. p. 246); that while the law contains a proviso that it shall not apply to cities with special charters authorizing the setting apart of a "Reservation," yet, notwithstanding that provision, plaintiff has the right, as a citizen of Houston, to an injunction against the keeping of a bawdyhouse in said city. The mayor and aldermen of the city of Houston, and the appellants therein, [1] Under this statement of facts, is the admitted the passage of the ordinance, plead- decree to be upheld under the act of April ed the actual segregation by ordinance of the 18, 1907, providing for the enjoining of the bawdyhouses in a designated part of the city habitual, actual, threatened, or contemplated of Houston, and denied any special injury use of any premises for the purpose of keepor damage to the appellee by reason of the ing or being interested in, aiding, or abetting existence of said houses. The court, under the keeping of a bawdyhouse at the suit of proper instructions, submitted to the jury either the state or any citizen and without the question whether or not appellee suffer-reference to special injury? This act coned special damage or injury by reason of the existence and maintenance of said bawdyhouses, and the jury answered that appellee suffered no special damage or injury thereby. The court entered a decree in favor of appellee, plaintiff below, but denied the injunction against the mayor and aldermen of the city of Houston to restrain the enforcement of the segregation ordinance. From this decree all defendants appealed. except the mayor and aldermen. tains the following: "*** Providing that the provisions of this and the succeeding article shall not apply to, nor be so construed as to interfere with the control and regulation of bawds and bawdyhouses by ordinance of incorporated towns and cities, acting under special charters, and where the same are actually confined by ordinance of such city within a designated district of such city." the appellees are not entitled to their injunction under this statute, because it does not apply to such segregated districts. The pleadings and proof show Houston is a city acting under such special charter, and that all the bawds and bawdyhouses comThe appellants' assignments of error urge plained of, in plaintiffs' petition, are locatthat the court erred in rendering judgmented in a district theretofore designated by the for plaintiff, granting an injunction, because city council of said city. It is clear that plaintiff complaining of a public nuisance, and the jury having found that he suffered no special damage or injury by reason thereof, he was not entitled to the writ under [2] That the Legislature may exempt certhe general principles of equity, and because tain portions of the state from the operation the Legislature, by article 4689, R. S., ex- of the provisions of either a civil or penal empted the district in question from the op- statute is not questioned. It is equally true eration of the statute, appellee has no stat- that this authority of the Legislature of a utory remedy. On the other hand, the ap-state cannot be delegated to any other body, pellee contends that he is entitled to the relief asked regardless of whether he suffered special injury or not, first, under article 4643, R. S. 1911, which provides that parties shall have the injunction where it shall appear that the party applying is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act but the act of the city council defining and designating the district is in no sense an attempt to exempt such territory of the state from the operation or enforcement of any statute. The Legislature has done this. It follows that the Legislature could not delegate the authority to a city council to exempt those coming within the meaning of prosecution, and any ordinance passed to [ such effect would be void. Brown v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504. [3] But if we concede that the Legislature, in limiting the operation of this statute to all portions of the state not designated by ordinance for bawdyhouses, acted without constitutional authority-in other words, if there exists no constitutional authority to exempt such segregated districts from the operation of the act-we have no means of knowing that the Legislature would have passed such an act and made it applicable to cities operating under special charter granted by it, so to strike out this portion which appellee contends is unconstitutional, and at the same time hold the balance of the act valid, would be to make, by judicial construction, a law which the Legislature did not make. A., T. & S. F. Ry. Co. v. Mills, 49 Tex. Civ. App. 349, 108 S. W. 480. But, on the other hand, we think the history of the enactment of the act in question, as revealed by the Senate and House Journals, shows conclusively that it would not have been passed but for the proviso exempting cities as it does. "Prejudicial," in the sense used, means injury or harm. The appellee has based his prayer for the writ upon the charge alone that his property lying adjacent to the reservation is thereby decreased in value. This question was submitted to the jury by the court as above quoted, and the jury found that his property was not so decreased in value. Notwithstanding this finding by the jury, the court entered a judgment for appellee, granting the writ of injunction. The view we take of the case is that, the appellee not having pleading and evidence to support the decree upon any other theory than that his property was injured in value, the court was not authorized to grant him the relief prayed for in the face of the verdict of the jury, but should have denied the writ. Reversed and rendered, and the injunction dissolved. CONTINENTAL TRUST CO. et al. v. (Court of Civil Appeals of Texas. San Antonio. There is another well-settled rule of law 1. RECEIVERS 69-TITLE TO PROPERTYRIGIIT ACQUIRED BY RECEIVER. which interferes with appellee's right to Where a contract for the purchase of railclaim under this statute, because of any un-road stock is executory, and the purchaser mereconstitutional feature of it, he must show that some right which he has is being or is about to be invaded by its enforcement. Ruling Case Law, §§ 87-90; Young v. City of Colorado, 174 S. W. 994. 6 The Legislature has not by this act given appellee the remedy of injunction to suppress the persons named from committing the crimes charged; therefore the decree finds no support under it. [4] This brings us to the real contention of the appellee that he is entitled to the relief asked, regardless of whether he had suffered special injury or not. If he has such remedy it is now by statute. The law in former times was that it was only where property or civil rights were involved and irreparable injury to such rights were threatened, or about to be committed, for which no adequate remedy existed at law, that the courts would interfere by injunction for the purpose of protecting such rights. But by article 4643, Rev. Civ. Stat. 1911, as construed by the courts, if a person shows himself entitled to the writ under the principles of equity, it will issue whether he have an adequate remedy or not. The portions of this act invoked by appellee are: "That judges of the district courts shall either in term time or vacation, hear and determine all applications, and may grant writs of injunction, returnable to said courts in the following cases, where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant." ly has a right of completing his purchase by paying the price, a receiver appointed for the purchaser cannot obtain possession and title to the stock without first paying the purchase price, since a receiver takes no greater title to or right in property than the owner had prior to the receivership. 3. BANKS AND BANKING 94 DISPOSITION OF CORPORATE STOCK. While a bank ordinarily may not own a railroad, it may sell and dispose of its capital stock held by it as executor. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 227; Dec. Dig. 94.] 4. MINES AND MINERALS 105 MINING CORPORATIONS POWERS OPERATION OF RAILROADS. Rev. St. 1911, tit. 25, c. 2, art. 1121, subd. 16, as amended by Acts 34th Leg. c. 144, giving private corporations power to contract for the develop, and use gas, also erect, build, and own lease and purchase of the right to prospect for, all necessary oil tanks, cars, and pipes necessary for the operation of the business of same, does not authorize a producing oil company organized under the laws of a foreign state to own and operate a railroad, although such railroad may be used in connection with its business. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 229, 2292; Dec. Dig. 105.] |