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er acquired the title, but it passed from binds himself to pay to said party of the
Squires to appellant. The preparation of the first part (Caldwell) the sum of twenty cents
deed to appellee had no effect, because it was per head per month for all of said cattle de-
never accepted by him. The note, with its | livered to him by said party of the first part,
stipulation for a vendor's lien, could not make at the time said cattle are taken out of said
the contract executory, because it was not pasture; one-half of said pasturage to be
given to the vendor, in whom was the title, paid when the cattle are put in said pasture,
but to appellee, who had no title. The judg- and the other half to be paid when they are
ment is erroneous, and will be reversed, and to be taken out." Then followed other stipula-
judgment here rendered for appellant. Re- tions in the contract binding Caldwell to keep
versed and rendered.

the pasture fence in good repair, and keep
out all estray cattle, and not put any other
cattle in said pasture during the time Good's

cattle were in there. Suit was filed in jus-
GOOD v. CALDWELL,

tice's court of Scurry county, where the cat(Court of Civil Appeals of Texas. Nov. 30, tle were pastured under said contract, on 1895.)

March 31, 1891, based upon said contract for CONTRACT-PLACE OF PERFORMANCE-ACTION FOR

pasturing cattle, to the amount of $147.62, BREACH — PLEA IN ABATEMENT — SUFFI- and the further sum of $50 as damages; toCIENCY-COUNTERCLAIM-DAMAGES.

tal amount claimed, $197.62. The defendant, 1. A contract for pasturing cattle in the pasture of a third person in a certain county

Good, filed a written plea in abatement to provided that the owner should pay to the oth

the jurisdiction of the court over his perer party to the contract 20 cents per head per son, alleging that he was not a resident of month, "one-half to be paid when the cattle are

Scurry county, but was a citizen of Texas, put in said pasture, and the other half to be paid when they are taken out." Held, that the mon

and resided in Runnels county, of said state, ey need not be paid in the county where the and that the contract sued on did not stipupastures were located.

late for the payment of the sum due for 2. In an action against the owner of cattle for pasturing them in S. county, defendant filed

said pasturage of cattle in Scurry county; a plea in abatement, alleging that he was not a

and, claiming his privilege under the statute resident of S. county, but resided in R. county; to be sued in the county of his residence, he and that the contract sued on did not stipulate prayed that the suit be dismissed. This for the payment of the sum due for pasturage in S. county. Held, that such plea was suffi- plea was sworn to as required by law, and cient.

was the only defense filed or made in the 3. Under Rev. St. art. 316, providing that justice's court. The transcript from the jusno counterclaim can be pleaded in the county

tice's court recites that this "plea of privicourt unless it had been relied on in the justice's court, in an action to recover a balance lege was heard by the court and overruled," due on a written contract for pasturing cattle, and then follows a judgment by the justice commenced in justice's court, defendant can- of the peace reciting that the defendant, not, in the county court, for the first time set up a claim for damages for breach of such con

though present in person and by attorney, tract by plaintiff, and an agreement that if refused to answer, and he renders judgment, plaintiff violated the written contract he would upon hearing the evidence, etc., against the forfeit his right to collect for pasturage. 4. In an action on a contract for pasturing

defendant, Good, "for $92 on contract, and cattle, providing that the owner of the cattle the further sum of $30 as damages.” The deshould pay 20 cents per head per month, held, fendant appealed from this judgment to the that no damages could be recovered for failure

county court of Scurry county, executing a to pay the amount due for such pasturage over and above any balance due, with interest.

supersedeas bond. In the county court the Appeal from Scurry county court; Branch the jurisdiction of the justice's court over his

defendant, Good, again presented his plea to Isbell, Judge.

person, and claimed the right to be sued in Action by J. M. Caldwell against L. J.

the county of his residence; and, in addiGood to recover a sum alleged to be due

tion to said plea, he filed for the first time plaintiff on a written contract for pasturing cattle for defendant, commenced in justice's setting up that the plaintiff, Caldwell, had

a general denial, and also a special answer, court, and taken on appeal by defendant to

violated the contract himself, and by way of the county court. From a judgment for

reconvention claimed damages against the plaintiff, defendant appeals. Reversed.

plaintiff in the sum of $312. He also, in his F. G. Thurmond, for appellant.

said special answer, sets up a verbal con

tract made just after the signing and deHUNTER, J. On the 27th day of Novem- | livery of the written contract, whereby it ber, 1893, the plaintiff, J. M. Caldwell, and was agreed that if Caldwell violated the L. J. Good entered into a written contract, stipulations of the written contract binding whereby it was stipulated that Caldwell upon him, then he should forfeit his right agreed to pasture for Good from 500 to 600 to collect the 20 cents a month for pasturage. head of cattle in the Thomas and Harris | The record does not disclose the objections of pastures in Scurry county, Tex., from the plaintiff to the plea of privilege filed by the date of the contract until April 1, 1894, and defendant, but the order overruling the plea then follows this stipulation: “Said party of recites that it was heard upon argument of the second part (Good) hereby agrees and I counsel, and, the law being for the plaintiff,

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the said plea was overruled, to which de- , per month per head for the cattle pastured, fendant excepted. The county court, as and interest from the 1st of April, 1894, at shown by its judgment, sustained an excep- the rate of 6 per cent. per annum, subject tion to all of the answer of defendant ex- to be reduced by such payments as defendcept the general denial, the ground of the ant had made; and, should this suit be disexception being that the defendant had fail- missed, and a new one commenced, of course ed to make such answer in the justice's court, the matter in reconvention and set-off atand was, therefore, precluded and estopped tempted to be set up in the county court can from making it in the county court.

then be pleaded in the court where the suit We are of opinion that the ruling of the is commenced, subject, however, to such excounty court in sustaining the exceptions to ceptions for insufficiency as the plaintiff may the special answer of defendant, setting up a properly urge. breach of the written contract on the part There are other errors assigned, but we do of plaintiff, and setting up the oral contract not think they are likely to arise on another in defense of the plaintiff's claim, was cor- trial in view of this decision, and we thererect, as no counterclaim or set-off can be fore express no opinion on them. For the pleaded in the county court, unless it had reasons above given, the judgment herein is been relied on in the justice's court. Rer. reversed, and cause remanded. St. art. 316. We think, however, the court erred in holding the plea of privilege bad. We are clearly of opinion that the plea as presented is good, and, if proved on the trial

STATE v. CITY OF CISCO et al.

. thereof, the action should be dismissed, be

(Court of Civil Appeals of Texas. Nov. 30, cause the plaintiff's right of action is based

1895.) upon the breach of a written contract, and

DISQUALIFICATION OF JUDGE PROCEEDINGS TO there is but one defendant, and he is a nat

ANNCL-MUNICIPAL CORPORATIOX. ural person, not alleged to be a corporation,

A judge who owns taxable property in a and he states that he is a resident citizen city, against which proceedings are brought to of Runnels county, and does not reside in

annul the corporation and remove its officers, is

disqualified to try the cause. Wetzel v. State Scurry county. The contract was not for the

(Tex. Civ. App.) 23 S. W. 825, followed. rent of lands, as contended by the plaintiff, because the entire and full possession of the

Appeal from district court, Eastland coun

ty; T. H. Conner, Judge. lands remained with the owner. It might as

Quo warranto by the state of Texas against well be contended that, because I hire a

the city of Cisco and others to annul the corlivery man to keep and feed my horse for a

poration and remove its officers. From a certain sum per month, I have thereby rene

judgment for defendants, plaintiff appeals. ed his stables. The written contract fails to

Reversed. state any particular place of payment. That part of the contract which provides for pay- Scott & Brelsford and Boykin Owens, for ment when the cattle are taken out of the appellant. B. W. Patterson and J. H. Calpasture only fixes the time of payment, and houn, for appellees. not the place. In all pleas in abatement to the jurisdiction of the court the rule is to STEPHENS, J. This quo warranto pronegative every fact that would give the court ceeding was brought to annul the corporajurisdiction, and we do not mean to infringe tion of Cisco and remove its officers. After upon this rule, but the rule must be con- the trial the district judge discovered that sidered with reference to the case made by he owned certain unimproved real estate, of the plaintiff; and it is frivolous for a man, little value, within the corporate limits, upwhen sued out of his county, and who wishes on which, however, he had paid all taxes, to insist upon his privilege of being sued in but declined to recuse himself, and set aside the county of his residence, to be compelled the judgment already entered. The amendto come into court, and plead and swear to ed petition, as well as the information, conit that he is not a county, nor a foreign cor- tained the allegation “that the said E. P. poration, nor a married woman; or, where Alvord, as mayor, and W. E. Mancill, T. A. he is sued upon a promissory note, to be Williams, T. W. Neel, Joe Wilson, and T. J. compelled to plead that the suit is not one Worthington, as aldermen, and J. W. Whitefor divorce, nor to revise the order of a sides, as marshal and tax collector, are now county court probating a will, nor one on the exercising, and attempting to execute, civil part of the state to forfeit a charter. There jurisdiction over said territory, and their can be no good reason found for such con- acts as such pretended officers are null and struction of the rule, and we are disinclined void, and a usurpation of authority properto carry it that far.

ly belonging to the officers of Eastland counWe are also of opinion that the court err- ty, Texas, and that said pretended officers, ed in permitting the plaintiff to prove that as aforesaid, are now levying taxes within he was damaged $50 by reason of the de- said territory, above described, and exercisfendant's failing to pay the plaintiff the ing and performing other acts in relation amount due for the pasturage. The measure thereto; that the taxable values within said of damages in this case would be 20 cents l territory, above described, amount to the

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sum of $452,581, and the amount of the tax his illness, explanatory of his symptoms, may to be collected therein amount to $4,861.84

be received, if such declarations do not in

volve a statement of the cause of the injury. per annum; that the fees and emoluments of said offices will amount to $1,000 per an

Appeal from district court, Caldwell counnum, and that the rate of taxation is exorbi- ty; H. Tiechmueller, Judge. tant, illegal, and confiscatory, and amounts

Action by J. J. Sanders against the Misto more than one per cent. on the dollar; souri, Kansas & Texas Railway Company to that the law necessary to be complied with

recover for wrongful expulsion from a train. in order to legally incorporate said city or

From a judgment for plaintiff, defendant aptown has not been complied with, and that peals. Affirmed. said incorporation is null and void.” The Suit by appellee against appellant for acprayer of both the petition and information

tual and vindictive damages, brought the was for judgment of ouster against the of

14th day of March, 1894, for alleged wanton ficers, and that the pretended corporation be

and illegal ejection of plaintiff from the platdeclared null and void, and for general re

form of the defendant's passenger Pullman lief.

car by pushing him off the platform while The necessary effect of the suit, if success

the train was moving at a high rate of speed, ful, would have been to prevent the levy and

causing him physical and mental injuries collection in future of “illegal, exorbitant, and expenses set out in the petition. The and confiscatory taxes," as alleged. Had court below sustąined exceptions to the suit there been a specific prayer for injunction

for vindictive damages. Upon a trial by a against the collection of existing taxes

jury verdict was rendered for plaintiff for (which there was not), it could have added $55 actual damages, for which judgment was nothing to that result. We cannot distin

rendered, and from which the railway comguish this case in principle from the Wetzel

pany has appealed. The principal questions Case (decided by this court) 23 S. W. 825,

presented by assignments of error are that 5 Tex. Civ. App. 17, following the Nalle

the verdict is not supported by the evidence, Case (decided by the supreme court) 22 S.

and the court below should have granted a W. 668, 960, 85 Tex. 520. See, also, Casey ,

new trial. v. Kinsey, 23 S. W. 818, 5 Tex. Civ. App. 3. L. J. & A. B. Storey, for appellant. String

The judgment will therefore be reversed, fellow & Coopwood, for appellee. and the cause remanded for further proceedings, as indicated in the opinion of Jus- COLLARD, J. (after stating the facts). tice Head in the Wetzel Case.

There is a conflict in the testimony on the main question as to the force and violence used by the conductor in ejecting plaintiff

from the platform of the car, and also on MISSOURI, K. & T. RY. CO. v. SANDERS.

other questions; but upon the assumption

that the verdict solved the conflict in favor (Court of Civil Appeals of Texas. Dec. 4, 1895.)

of the plaintiff we are justified in finding the WRONGFUL EXPULSION FROM TRAINSUFFICIENCY

facts as follows: OF EVIDENCE-IMPEACHING TESTIMONY

Plaintiff was marshal of the city of Lock-RES GESTÆ.

hart. There had been a jail delivery a short 1. It appeared that plaintiff, an officer, time before at Lockhart, and the deputy boarded the rear platform of defendant's car to ride from one depot to another within the

sheriff, J. M. Wright, son of the sheriff, had city, to watch for escaped prisoners; that per

information that one of the escaped prisonsons frequently rode between these points; ers, who was under indictment for forgery, that the conductor came out to the platform, asked plaintiff what he was doing there, and,

was in town, and would probably go off on on being answered, “Nothing,” used some

the train that night; and, having business abusive words, and pushed plaintiff off the steps

away, he (the deputy sheriff) requested while the train was moving between 8 and 10 Sanders to watch the train that night, as he miles an hour; that plaintiff was considerably

had to be absent from town on business. bruised, being under a physician's treatment for 10 days thereafter. Defendant's witnesses tes

Sanders had one Van Flowers to go with him tified that the train was not in motion when to watch the trains for the escaped prisonplaintiff was ejected, that he was standing up ers, and about 12 o'clock at night they were as the train left him, and that the conductor used no unnecessary force. Held, that a verdict

at the depot of the San Antonio & Aransas for actual damages was proper.

Pass Railroad on this business. The pas2. A declaration of the conductor, made senger train of defendant company left this several days after plaintiff's expulsion from de depot to run to the defendant's depot. Sandfendant's car, that on plaintiff's refusal to get off he “knocked the d-scoundrel off the

ers and Flowers got on the steps leading to train," is admissible as impeaching testimony, the rear platform of the rear car,-a Pullthe conductor having denied that he made such

man car,-to ride to the other depot, and statement. 3. Testimony that, after plaintiff had gone

watch for the escaped prisoners; Flowers on about 35 yards from the place where he was

the west side and Sanders on the east side. ejected from defendant's train, he complained It was in proof that persons frequently rode of his injuries to witness, and asked him to go

on the trains from one depot to the other for a carriage, is admissible as res gestæ. 4. Where the nature of a party's injury is

without molestation by the conductor or othin issue, declarations to his physician during er employés of the defendant company. The train stopped at a switch to switch onto the the cars. I carried him to Dr. Trigg's house. defendant's line, and then moved on towards I examined him, and found a large bruised the defendant's depot. Just after passing place on the leg between the knee and foot, the switch, and as the train was getting un- and a bruised place on his face. He did not der headway, the defendant's conductor seem to have the use of his arm. Saw him came back to the rear end of the sleeper, try to use it as he got out of the carriage. having been informed by the Pullman con- Supposed it was from the fall. After Dr. ductor that some one was on the steps, and Trigg attended to his injuries, I took him asked Sanders (he did not see Flowers) what home. I had to help him from the carriage he was doing there. Sanders replied, "Noth- to his house." Other witnesses testified that ing.” The conductor used some "cuss the train stopped only at the switch. Witness words,” and knocked or pushed Sanders off for the defendant testified that the conductor the steps, the train moving at the time some stopped the train after stopping at the switch, 8 or 10 miles an hour. Sanders' version of and put Sanders off the car, using no more the matter is “that the conductor came to force than was necessary to get him off, and the door of the car, and as asked me what I that he was standing up when the train left was doing there, think he said, 'What in the him there. Dr. Trigg, who treated plainhell are you doing there?' I told him I was tiff, testified to his having found injuries on marshal of the city and was going to the the leg. “Above and below the left knee 'Katy Depot. I was on the lookout for some was a bad bruise. His chest was bruised, parties. He said, “By G-d, I am a deputy and his left side pained him very much, he United States marshal.' At that time he told me. There were bruises on the forepulled the bell cord. I started to look head, and some abrasions of the skin. His around the train north, and he shoved me right wrist was sprained.” The examinaoff. The train was running at the time, I tion of the doctor was directly after the althink, 9 or 10 miles an hour. At no time leged injury. In answer to the question, during our conversation did the conductor "Was he in his right mind?” the doctor anask me to go inside the car, nor did he say swered: “He did not seem to be quite himanything about the rules and regulations to self. He seemed to be dazed. He was conkeep people from riding on the platform or fined to his bed about ten days. I could steps of the cars. He did not ask me for not form any correct prognosis of the injufare, nor did he ask me for a ticket. I had ries that night,-could not tell what the inridden from one depot to the other several ternal injuries might be. The next morntimes without a ticket or paying fare. The ing he was in his right mind, and was sufconductor saw me, and made no objection.fering very much, so he told me. I did not I was shoved from the car between the find any bones broken. I also examined switch and the dirt road. I fell in a run- his chest. I could not find any wound of ning position. It threw me back to the cat- the legs, but I could not tell what the intertle guard. I fell into the ditch at the north nal condition was." Plaintiff used crutchend of the cattle guard, against the end of es a while after he got up. The doctor the timber. My chest and side struck treated him about 10 days, and told him he against the timbers of the guard. My hand would charge him $50 if he got him up. was skinned. My wrist was sprained, my Dr. Trigg testified further that he used linleft leg, left side and breast, and my face iments on the bruises, and that his injuries was scraped. For about a week I could not were mostly bruises. use my right hand. My leg hurts me yet. The foregoing are the main facts in subI was in bed from it for about two weeks, stance, which we find to be true in deferand after I got up it was some time before ence to the verdict, except the conflicting I could walk. I suffered from my chest and testimony of defendant as stated above. The side for three or four weeks. It would hurt

It would hurt testimony of defendant's witnesses tends to me in breathing. Van Flowers helped me show that the conductor only used such force to get up out of the cattle guard, and carried as was necessary to get the plaintiff off of me to Dr. Trigg's, and then home." The the steps of the car, and was careful in what train stopped after Sanders was pushed off, he did; that plaintiff made a demonstration about 40 yards from the place, and Flowers as if to draw a pistol when the conductor went back, and found Sanders, and found informed him that he must get off the car. him getting up out of the cattle guard. This is denied by plaintiff, and the verdict Flowers testified about Sanders complaining settles the conflict in favor of plaintiff. We of hurts at the time, pain below the knee, find that the testimony supports the verdict his right side and shoulder, and then testi- as the case was submitted to the jury by the fied as follows: "I started to town with him, charge of the court. There is no complaint but when he got about 45 yards from where of the court's charge. The assignments of he was pushed off he complained very much error addressed to the ruling of the court of the pain, and said he could not go any in refusing a new trial because of the insuffifurther. I then came over to Field's stable, ciency of the testimony cannot be sustained. and got a carriage for him. When I came Appellant complains of the ruling of the back he was this side of the board about 110 court in permitting the witness Sears, over or 115 yards from where he was thrown from objection of defendant, to testify as to the

R. I. & T. RY. CO. v. BOYLES

.

er the ejection of the plaintiff, made to the instinctive indications of existing pain, and,

statement of the conductor several days aft- They do not appear to have been other than

, , witness, as to how the matter occurred: under the rule stated, were admissible. No "That the conductor said to him at Luling error is shown in admitting the testimony. that Sanders got on the train; that he told Finding that there was no reversible error him to get off; that Sanders refused, and he presented in the assignments of error, we knocked the d-d scoundrel off the train.” conclude that the judgment of the lower This testimony was offered to impeach the court ought to be affirmed, and it is so orconductor, he having denied that he made dered. Affirmed. such a statement; and it was admissible as impeaching testimony. It was not error “to permit the witness Van Flowers, over defendant's objection, to testify that after he

CHICAGO, R. I. & T. RY. CO. v. BOYLES. had gone about 35 yards from the place (Court of Civil Appeals of Texas. Nov. 30, where Sanders was ejected from the train,

1895.) that he (Sanders) complained to him very

RAILROAD COMPANIES-CARRYING PASSENGER BEmuch of his injuries, and said he could not

YOND DESTINATION-DAMAGES.

1. Where a station is duly called by the go any further, and requested him to go to

brakeman, and a passenger, relying on the town for a carriage.” It was decided by the promise of the conductor to notify her personsupreme court in Railway Co. v. Shafer, 54 ally when the train arrived there, fails to hear Tex. 648, that such testimony is res gestae,

it announced, and is carried past, her whole at

tention being occupied at the time by a sick and admissible as such, tending to show the

child, the carrier is not responsible, unless the bodily condition of the plaintiff at the time conductor had knowledge of the child's illness, of the expressions. “Whether they were real or of the necessity that might require the moth

er's exclusive attention to its needs, when he or feigned, was a question for the jury."

made the promise. The rule is well established that in a suit 2. In an action against a railroad comfor bodily injuries suffered by plaintiff, his pany for carrying a passenger beyond the place expressions made at the place where he

where she was to alight and take another line

of railway, the fact that such passenger was to claims to have been hurt, indicating pain, be met at a station on such other line, and are admissible as res gestæ. Railway Co. thence transported to a place in the country v. Barron, 78 Tex. 421, 14 S. W. 698. There where her sick child would receive medical

treatment, and that, in consequence of delay was no error in permitting Dr. Trigg, the

caused by defendant's neglect to put her off at attending physician of plaintiff to testify the proper place, she suffered mental anguish, is that on the next day after the injuries plain- not a proper element of damages to go to the tiff complained to him of pain in his chest,

jury; it being neither averred nor proved that

defendant had knowledge of these facts. side, and leg, and that his wrist hurt him. The rule as to such testimony is laid down

Appeal from Montague county court; Levi by Wharton in this language: "It is well

Walker, Judge. settled that the character of an injury may

Action by J. A. Boyles against the Chicago, be explained by exclamations of pain and

Rock Island & Texas Railway Company. terror at the time the injury is received, such

From a judgment for plaintiff, defendant apdeclarations and exclamations being part of

peals. Reversed. the res gestae. So, when the nature of a Thomas & McDonald, for appellant. party's sickness or hurt is in litigation, declarations to his physician or nurse during such TARLTON, C. J. On May 26, 1893, Mrs. sickness-his object being to explain his Boyles, the wife of appellee, J. A. Boyles, symptoms--may be received as part of the was, with her sick child, a passenger on the testimony, and explanatory of the conclu- train of appellant. She took passage at El sions of such physician or nurse. Immediate Reno, in the Indian Territory, for Ringgold, groans and gestures, as indicating suffering, a station on the appellant's line in Montague are, a fortiori, admissible. But declarations county, Tex. The latter station was her point as to present pain, which are not instinctive, of destination on the appellant's line, but her but are made when there has been an op- point of ultimate destination was the home portunity to think over the matter in refer- of her sister in the country, 4 or 5 miles from ence to prospective litigation, are inadmis- the town of St. Jo, a station in Montague sible when the declarations involve a state- county on another line of railway. In going ment of the cause of the injury, though, to St. Jo by rail, it became necessary for Mrs. when offered as instinctive indications of Boyles to remain all night at Ringgold. She pain, they are admissible to prove such pain, was carried by the appellant beyond the latwhenever at issue, no matter how long after ter station, to Bowie, a station some 20 miles the injury received. Declarations to prove further south, whence, on the next day, she past pain have also been held admissible was brought back, free of charge, by the apwhen made to a physician or nurse for the pellant to Ringgold. On account of the alpurpose of enabling him to form his opinion leged negligence of the company in taking in the case." Whart. Ev. $ 268. The declara- her beyond her station, her husband brought tions made by plaintiff to his physician in this suit, and recovered a verdict and judg. this case were not made in connection with ment in damages for the sum of $75, from a statement of how the injury was received. which this appeal is prosecuted. The fact

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