Тех.)

MISSOURI, K. & T. RY. CO. OF TEXAS v. DALE BROS. LAND & C. co.

935

The record does not show that objection | 2. EVIDENCE O366-GOVERNMENT REPORTS was made and presented to the court, as re

-LIVE STOCR--TABLE OF SHRINKAGE-AUquired by article 1971, Rev. Stat. as amended

TIIENTICATION.

In an action for damages for negligent by chapter 59, 33d Leg. p. 113. The assign- transportation of stock, it is not error, to exment is overruled.

clude tables of the Department of Agriculture [7] In the eighth assignment, the appellant and by the Texas Cattle Raisers Association

as to tests of shrinkage of stock in transportacontends that the verdict of the jury is tion, where there is nothing to show that they against the preponderance of the evidence, in are accurate, authentic, or that the tests emthat the testimony of the witness Terrell braced therein were made under similar condishows that the method by which the amount

tions. of wood shipped to appellant was by calculat- Cent. Dig. 88 1521-1539; Dec. Dig. @mw366.]

[Ed. Note.-For other cases, see Evidence, ing the capacity of the cars from the American Railway Equipment Register, and

3. EVIDENCE 383 - PUBLIC DOCUMENTS

WEIGHT. timating the quantity of wood therein, while

A pamphlet or other document, purporting the direct and positive testimony of appel- to have been used by the government or under lant who measured the wood in the cars was the authority of some department of the governthat they contained 132 cords, and not 185 ment, has, prima facie, no more weight as evi

dence, nor greater authenticity or verity, than cords. The statement in the assignment as documents issued by other authority. to the method of estimating the quantity of [Ed. Note.-For other cases, see Evidence, wood in the cars at Allenfarm, that is, by Cent. Dig. $8 1660–1677; Dec. Dig. 383.] cubic capacity of the cars from the Equip- 4. CARRIERS 228 CARRIAGE OF LIVE ment Register, is borne out by the statement STOCK-EVIDENCE-SUFFICIENCY. of facts. The measurement of the wood in ligent delay in transportation of live stock, held

Evidence, in an action for damages for negthe cars by appellant was made at Houston. sufficient to sustain a verdict for the plaintiff. The defendant's answer nowhere denies that [Ed. Note. For other cases, see Carriers, 185 cords of wood were placed in the cars Cent. Dig. $$ 957–960; Dec. Dig. Om228.] at Allenfarm, nor that any measurement of the wood was made at Allenfarm, other than

Appeal from Clay County Court; W. T. that estimated by the said register. The tes. Allen, Judge. timony of the witnesses who loaded the cars

Action by the Dale Bros. Land & Cattle at Allenfarm is that the cars were loaded to Company against the Missouri, Kansas & their full capacity. We believe that the evi- Texas Railway Company of Texas and othdence is sufficient to establish the fact, at ers. From a judgment for plaintiff, defend

a least prima facie, that 185 cords of wood were ants appeal. Affirmed. put in the cars at Allenfarm; and, conceding

C. C. Allen and Arnold & Taylor, of Henit to be a fact that only 132 cords were found rietta, for appellants. Wantland & Parrish, in the cars at Houston would not be such

of Henrietta, for appellee. preponderance of the evidence as should cause a reversal. The amount found by the jury does not show that their verdict was BUCK, J. Appellees, Dale Bros. Land & influenced by the remark of counsel, and we Cattle Company, filed this suit in the county overrule the ninth assignment.

court of Clay county against the appellants, The error in the judgment as to interest Missouri, Kansas & Texas Railway Company was evidently clerical, and has been corrected of Texas and the Missouri, Kansas & Texas and remittitur filed in the trial court, and Railway Company, alleging the shipment by requires no further mention.

the plaintiffs, over the defendant companies' Finding no reversible error, the judgment lines, of 105 steers from Henrietta, Tex., to is affirmed.

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 resultMISSOURI, K. & T. RY. CO. OF TEXAS ing from delay, rough handling, and failure et al. y. DALE BROS. LAND & CAT

of the cattle to reach their destination in TLE CO. (No. 8241.)

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.)

had declined on the 9th. Plaintiff further 1. APPEAL AND ERROR 1050 – HARMLESS alleged that said cattle were, by reason of ERROR-EVIDENCE-ADMISSIBILITY.

said alleged rough handling and delay, deIn an action for negligence in transporting preciated in marketable appearance and aclive stock, the plaintiff's witness was permitted to say that he had never heard anything about tually sold for 10 cents per hundredweight the fact that a certain train did not run on less than they would have sold for on said Sunday. The defendants objected on the ground market but for such delay and rough handthat the answer was immaterial.

that admission of the testimony was not prejudi- ling, and a loss in weight of at least 40 cial error, even if immaterial.

pounds per head by reason of said alleged [Ed. Note. For other cases, see Appeal and 24 hours delay. The total damages claimed Error, Cent. Dig. $$ 1068, 1069, 4153-4157, aggregated $457.67. The cause was submit4166;' Dec. Dig. Om 1050.]

ted 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.

45 Tex. Civ. App. 345, 100 S. W. 983; Conn v. Appellants' first assignment complains of Rosamond, 161 S. W. 73), yet out of an abunthe action of the court in permitting, over ob- dance of liberality we have given the assignjection, one of the plaintiffs, J. E. Dale, to ment consideration. We do not believe that answer the following question propounded there is any prejudicial error in the court's by his counsel, to wit:

permitting the answer complained of. At “Mr. Dale, did you ever hear anything about most, if it was immaterial, it does not appear this train, passing through Whitesboro at 12:10 to be injurious. a. m., not running on Sunday?"

[2] Appellants' second assignment is diTo which the witness replied, "No, sir." rected to the action of the court in refusing Appellants urge that the answer of the wit- toness was immaterial and irrelevant. The “permit the defendants to read in evidence the evidence shows that the cattle were loaded report made by the Agricultural Department of on the cars of the Southwestern Railway the United States government, showing variCompany at Scotland, some 20 miles from from various points to the different markets,

ous tests as to shrinkage of animals shipped Henrietta, at about 3 or 3:30 p. m. Sunday, also the tests made by the Texas Cattle RaisJuly 5th, and reached Henrietta about 14 ers' Association showing the same facts, the hours later. They were there delivered to same being objected to by counsel for plaintiffs

as being irrelevant and immaterial.” the defendant Missouri, Kansas & Texas Railway Company of Texas, about 15 or 20 testimony was admissible in rebuttal of tes

[3] Appellants urge that this character of minutes being required for the transfer.

to the The train reached Whitesboro between 12:30 timony offered by defendants as and 1 a. m. of the 6th. It appears there was in shipment. Nothing is shown as to the

amount of shrinkage suffered by cattle while a regular stock train from Ft. Worth through contents of the bulletins offered as to whethWhitesboro, with which this shipment would have made close connection had it run that

er the tests therein described were made night, but, as testified to by E. H. Smith, the shipment in question, and, moreover, ap

under similar conditions to those existing in witness for the defendants:

“The regular stock train from Ft. Worth dia pellants do not show in their bill of excepnot run that night. It is very seldom we have tions, or their statement under this assignany stock on Sunday, and for this reason this ment, or anywhere, that such bulletins were train runs very infrequent on Sunday. There proved up, certified to, or in any legal way being no regular through stock train on this night, we handled this shipment of stock on a were such bulletins shown to contain a true second class fast merchandise train out of Dal- record of the tests therein purported to be las at 10 p. m., due at Whitesboro at 3 a. m., set out. We do not understand that a pamand passed through on this night at 3:20 a. m. phlet or other document purporting to have That was the only train we had passing west for the north that night, and this train picked been used by the government, or under the up these cattle and carried them on to Denison." authority of some department of the govern

Several witnesses for plaintiff, who had ment, has any more weight as evidence, or had experience in shipping cattle from Hen- carries upon its face any stamp of greater rietta, Tex., to the National Stockyards, st. authenticity or verity, than documents isLouis, testified that, where such cattle were sued by any other authority. The case of loaded on cars at Henrietta from 7 to 9 Railway Co. v. Graham & Price, 174 S. W. o'clock p. m., they would usually and custom- 297, cited by appellants, by the Court of arily reach the stockyards early on the morn- Civil Appeals for the Eighth District, does ing of the third day, and in time for the not, in our opinion, support the contention market of that day, and defendants introduc-made, but is in opposition thereto. Judge ed testimony as to the infrequent running Harper, in the opinion, speaks as follows: of this Sunday night stock train from Ft.

“The third [assignment] charges error in re. Worth in order to show that they were not evidence United States government report of

to negligent by reason of the delay at Whites- tests made of the shrinkage of other cattle unboro.

In rebuttal plaintiff Dale testified in der similar circumstances, issued in the form the language complained of.

of a printed bulletin. The principle, as gather

ed from the authorities, is that wherever docu[1] While in their statement under this as- nents 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 re

moved from their place of custody, certified ing Courts of Civil Appeals (142 S. W. xiii), copies or copies verified by some person who has which reads, in part, as follows:

seen the original are admissible, and in the ab"To each of said propositions there shall be sence of such proof of correct copies are not subjoined a brief statement, in substance, of admissible." such proceedings, or part thereof, contained in

In the case of Smithers v. Lowrance, 100 the record, as will be necessary and sufficient to explain and support the proposition, with a Tex. 77, 93 S. W. 1064, Chief Justice Gaines, reference to the pages of the record” (Empha- in passing upon the admissibility of parol tessis ours)

timony to establish the authenticity of a pur-and, perhaps, we would be justified in ported copy of certain records in the office sustaining appellees objection to the consid- of the land commissioner, held that such ex

up by a witness, but quotes from 1 Green-1 2. CONSTITUTIONAL LAW Om 63—DELEGATION

On leaf, Evidence, $ 485, as follows:

OF POWER-REGULATION OF BAWDYHOUSES. “ 'Where the proof is by copy, an examined

Although the Legislature may exempt porcopy, duly made and sworn to by any compe- tions of the state from the operation of a civil tent witness, is always admissible.' Why not

or penal statute, it cannot delegate that authoradmissible? The evidence is as satisfactory ity to any other body, so that an ordinance of a certainly as a certified copy. In the latter case city attempting to except bawdyhouses from the we depend upon the honor and integrity of an provision of a general statute is void, although official, and in the former upon the oath of a

the Legislature has attempted to delegate the competent witness. In either case, an error or power to make the exception. a fraud is easily detectable. Probably, the rea- [Ed. Note.-For other cases, see Constitutional son why such a mode of proof has not been much Law, Cent. Dig. 88 108-114; Dec. Dig. Om63.] known, if known at all, in our practice, is that it is cheaper and handier to produce copies, and 3. STATUTES Om64–CONSTRUCTION-CIRCUMif a witness comes instead, it is more satisfac

STANCES OF PASSAGE. tory to have the officer who controls the records Where a statute regulating bawdyhouses bring them into court."

and exempting those in certain districts thus But no such proof is shown to have been contains two provisions, and one of them is void,

the circumstances of the passing of the act must made in this case and, therefore, and fur- be looked to to discover whether the Legislature ther because the conditions were not shown would have passed one provision without the to have been similar, the assignment is over- other, and, if it would not have passed one with

out the other, the courts cannot hold one invalid ruled.

and one valid, since this would make a law which [4] The third assignment alleges error in the Legislature did not make. the judgment of the court as being contrary [Ed. Note.-For other cases, see Statutes, to the law and evidence. While it is true Cent. Dig. $$ 58-66, 195; Dec. Dig. Om 64.] that defendants' witnesses testified to facts 4. NUISANCE Om72 — DISORDERLY HOUSES tending to show prompt delivery of the ship- RIGHT OF ACTION - SPECIAL DAMAGE - NEment in question, yet there were a number CESSITY—“PREJUDICIAL.

Under Rev. St. 1911, art. 4643, authorizing of cattle shippers, the plaintiff and others, 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. $S 164–169; Dec. Dig. Omw 72. ed at St. Louis 120,670 pounds. He testified For other definitions, see Words and Phrases, that by reason of the 24 hours' delay in ship- Second Series, Prejudicial.] ment the cattle would have lost at least 30

Appeal from District Court, Harris Counpounds per head, or 3,150 pounds, and if they ty; J. A. Read, Judge. had reached the market 24 hours earlier they

Action by J. W. Baker against Sadie Cowould have sold for at least 10 cents per man and others. From a judgment and orhundredweight more. This would make the loss sustained $375.82. The judgment is for the defendants, except the Mayor and Alder

der that injunction issue against defendants, $265, and we are unable to say that it is

men of the City of Houston, appeal. Renot sustained by the evidence.

versed, and injunction dissolved. The judgment is affirmed.

S. B. Ehrenwerth, Campbell, Sewall & My

er, Hutcheson & Hutcheson, Hume & Hume, COMAN et al. v. BAKER. (No. 473.) .

Kahn & Williams, Jno. M. Cobb, and Heid(Court of Civil Appeals of Texas. El Paso. Nov. 4, 1915. Rehearing Denied

ingsfelders, all of Houston, and Smith, CrawNov. 18, 1915.)

ford & Sonfield, of Beaumont, for appellants. 1. NUISANCE Om65–BAWDYHOUSES-INJUNC-Kittrell & Kittrell, of Houston, for appellee. TION-RESTRICTED DISTRICTS.

Under Rev. St. 1911, art. 4689, providing that the use of any premises for the purpose of

HARPER, C. J.

This was

an action keeping a bawdyhouse shall be enjoined at the brought by appellee as a private citizen, suit of the state or any citizen thereof, provided against appellants as owners, lessees, and that the provisions of the statute shall not ap- tenants seeking an injunction suppressing ply nor be construed so as to interfere with the control and regulation of bawds and bawdyhous- bawdyhouses, situated in what is known as es by ordinances of incorporated towns and cities the "Reservation,” the district segregated by acting under special charters, and where the ordinance of the city of Houston, and against same are actually confined by ordinance of such the mayor and aldermen of the city of Houscity within a designated district of such city, plaintiff is not entitled to maintain his action to ton, seeking to enjoin the enforcement of the enjoin disorderly houses in the city of Houston ordinance of segregation. Plaintiff pleaded where bawdyhouses are restricted by ordinance section 16, art. 2, of the Charter of the City to a certain locality. [Ed. Note.-For other cases, see Nuisance.

of Houston, providing, among other powers Cent. Dig. 88 158-160, 170, 171; Dec. Dig. conferred, or attempted to be conferred, up65.]

on the city of Houston, “to prohibit and pun.

*

ish keepers and inmates of bawdyhouses and article 4689, R. S. 1911, which provides for variety shows, prevent and suppress assig- enjoining bawdy or disorderly houses as a nation houses and houses of ill fame, and to nuisance. regulate, colonize and segregate the same,

Finding of Facts. and to determine such inmates and keepers to be vagrants and provide for the punish-charter granted by the Legislature.

The city of Houston operates under special ment of such persons.” Appellee further al

That section 16, art. 2, of said charter proleged that, acting under and by virtue of the vides, among other powers conferred, that,

,

to red, upon it by said section, the city council "to prohibit and punish keepers and inmates

of bawdyhouses

and to regulate, of the city of Houston enacted an ordinance

colonize and segregate same," etc. colonizing and segregating houses of ill fame

That the city council passed an ordinance ing set out in full by appellee. Appellee al- confining bawds and bawdyhouses to a desleged special injury through the maintenance ignated district in said city; that plaintiff of the said houses and the enforcement of in the city of Houston; that the reservation

owns approximately a hundred acres of land said ordinance, and that, if not specially

as established is six blocks from plaintiff's damaged thereby, he was entitled to the re

east line. lief sought under the act of April 18, 1907 (Acts 30th Leg. p. 246); that while the law

The only question or issue submitted by

the court is: contains a proviso that it shall not apply to

"Has or has not the establishment and maintecities with special charters authorizing the

nance of the 'Reservation,' as located and situsetting apart of a "Reservation," yet, not-ated under the city ordinance in question, resultwithstanding that provision, plaintiff has the ed proximately in any special damage to plainright, as a citizen of Houston, to an injunc- tiff, by causing plaintiff's property to be substan

tially less in market value than it would be but tion against the keeping of a bawdyhouse in for the establishment and maintenance of said said city. The mayor and aldermen of the reservation? Answer: We find it has not." 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 tains the following: existence and maintenance of said bawdy

* Providing that the provisions of this houses, and the jury answered that appel- and the succeeding article shall not apply to, nor lee suffered no special damage or injury be so construed as to interfere with the control thereby. The court entered a decree in favor and regulation of bawds and bawdyhouses by

ordinance of incorporated towns and cities, actof appellee, plaintiff below, but denied the ing under special charters, and where the same injunction against the mayor and aldermen are actually confined by ordinance of such city of the city of Houston to restrain the en- within a designated district of such city.” forcement of the segregation ordinance. The pleadings and proof show Houston is From this decree all defendants appealed. a city acting under such special charter, and except the mayor and aldermen.

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, the appellees are not entitled to their inand the jury having found that he suffered junction under this statute, because it does no special damage or injury by reason there- not apply to such segregated districts. of, 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 re- but the act of the city council defining and lief asked regardless of whether he suffered designating the district is in no sense an special injury or not, first, under article 4643, attempt to exempt such territory of the R. S. 1911, which provides that parties shall state from the operation or enforcement of have the injunction where it shall appear any statute. The Legislature has done this. that the party applying is entitled to the It follows that the Legislature could not relief demanded, and such relief or any part delegate the authority to a city council to thereof requires the restraint of some act exempt those coming within the meaning of

66

prosecution, and any ordinance passed to “Prejudicial," in the sense used, means insuch effect would be void. Brown v. City of jury or harm. The appellee has based his Dallas, 104 Tex. 290, 137 S. W. 342, Ann. prayer for the writ upon the charge alone Cas. 1914B, 504.

that his property lying adjacent to the reser[3] But if we concede that the Legislature, vation is thereby decreased in value. This in limiting the operation of this statute to question was submitted to the jury by the all portions of the state not designated by court as above quoted, and the jury found ordinance for bawdyhouses, acted without that his property was not so decreased in constitutional authority-in other words, if value. Notwithstanding this finding by the there exists no constitutional authority to jury, the court entered a judgment for apexempt such segregated districts from the pellee, granting the writ of injunction. The operation of the act--we have no means of view we take of the case is that, the appelknowing that the Legislature would have lee not having pleading and evidence to suppassed such an act and made it applicable to port the decree upon any other theory than cities operating under special charter granted that his property was injured in value, the by it, so to strike out this portion which ap- court was not authorized to grant him the pellee contends is unconstitutional, and at relief prayed for in the face of the verdict the same time hold the balance of the act of the jury, but should have denied the writ. valid, would be to make, by judicial con- Reversed and rendered, and the injunction struction, a law which the Legislature did dissolved. 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 his

CONTINENTAL TRUST CO. et al. v. tory of the enactment of the act in question,

BROWN et al. (Nos. 5553, 5586.) as revealed by the Senate and House Journals, shows conclusively that it would not (Court of Civil Appeals of Texas. San Antonio. have been passed but for the proviso ex

Oct. 21, 1915. Rehearing Denied

Nov. 17, 1915.) empting cities as it does. There is another well-settled rule of law

1. RECEIVERS Omm 69TITLE TO

ww69–TITLE TO PROPERTY

RIGHT 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 ly has a right of completing his purchase by that some right which he has is being or is purchaser cannot obtain possession and title to

paying the price, a receiver appointed for the about to be invaded by its enforcement. 6 the stock without first paying the purchase Ruling Case Law, $$ 87–90; Young v. City price, since a receiver takes no greater title to of Colorado, 174 S. W. 994.

or right in property than the owner had prior

to the receivership. The Legislature has not by this act given appellee the remedy of injunction to sup- Cent. Dig. $$ 124, 125; Dec. Dig. Om69.]

[Ed. Note. For other cases, see Receivers, press the persons named from committing the crimes charged; therefore the decree

2. CORPORATIONS Om 143–STOCK_TRANSFER

EFFECT. finds no support under it.

The transfer of the capital stock of a rail[4] This brings us to the real contention road does not operate ipso facto as a transfer of the appellee that he is entitled to the re- of the physical properties thereof. lief asked, regardless of whether he had suf

[Ed. Note. For other cases, see Corporations, fered special injury or not. If he has such

Cent. Dig. $$ 529, 532, 534, 536; Dec. Dig. Our

143.] remedy it is now by statute. The law in

3. BANKS AND BANKING Om94 POWERS former times was that it was only where

DISPOSITION OF CORPORATE STOCK. property or civil rights were involved and

While a bank ordinarily may not own a irreparable injury to such rights were threat- railroad, it may sell and dispose of its capital ened, or about to be committed, for which stock held by it as executor. no adequate remedy existed at law, that the

[Ed. Note.-For other cases, see Banks and courts would interfere by injunction for the Banking, Cent. Dig. § 227; Dec. Dig. Om94.j purpose of protecting such rights. But by 4. MINES AND MINERALS 105

MINING article 4643, Rev. Civ. Stat. 1911, as con

CORPORATIONS POWERS OPERATION OF

RAILROADS. strued by the courts, if a person shows him

Rev. St. 1911, tit. 25, c. 2, art. 1121, subd. self entitled to the writ under the princi-16, as amended by Acts 34th Leg. c. 144, giving ples of equity, it will issue whether he have private corporations power to contract for the an adequate remedy or not. The portions of develop, and use gas, also erect, build, and own

lease and purchase of the right to prospect for, this act invoked by appellee are:

all necessary oil tanks, cars, and pipes neces“That judges of the district courts shall either sary for the operation of the business of same, in term time or vacation, hear and determine all does not authorize a producing oil company orapplications, and may grant writs of injunction, ganized under the laws of a foreign state to returnable to said courts in the following cases, own and operate a railroad, although such where it shall appear that the party applying railroad may be used in connection with its for such writ is entitled to the relief demanded, business. and such relief or any part thereof requires the Ed. Note.-For other cases, see Mines and restraint of some act prejudicial to the appli- Minerals, Cent. Dig. $$ 229, 22972; Dec. Dig. cant."

Om 105.]