(252 S.W.) blow the whistle was partly the cause of the plaintiff's car being struck, and made a similar answer as to the failure to ring the bell. The jury also found that the plaintiff was not guilty of contributory negligence, and that the intrinsic value of his car immediately before it was struck by the defendant's train was $300, and immediately thereafter its intrinsie value was nothing. [1] Appellant contends that the plaintiff did not allege in his pleading that defendant failed to ring the bell; and therefore it was reversible error for the court to submit that issue to the jury. Plaintiff's petition specifically alleged that the defendant failed to give the statutory whistle upon approaching the crossing; and It also contained this averment "that, if the employés had sounded the whistle or rung the bell, plaintiff would have heard the same, and would not have suffered the damage complained of." There is no other reference in the plaintiff's petition to the failure to ring the bell, and, if a special exception had been urged against that averment, it should have been sustained, but the defendant's answer did not contain any such exception, nor even a general demurrer. plaintiff to recover where he participates in the wrong complained of; but in this case the jury found that the plaintiff and his wife were not guilty of contributory negligence in driving their automobile upon the railroad track on the occasion in question. This being true, and the jury having found that the defendant failed to give the statutory signals, and that such failure was partly the cause of the injury, the defendant was properly held liable therefor. [6] We also hold that, as the plaintiff's testimony showed that there was no market value for his car at or near the place where it was injured, he had the right to prove its intrinsic value, although there may have been a market for such car at Waco, in an adjoining county. All the questions presented in appellant's brief have received due consideration, and our conclusion is that the judgment should be affirmed; and it has been so ordered. Affirmed. On Motion for Rehearing. Appellant has presented to this court a vig.. orous motion for a rehearing, especially complaining of our action in overruling its first assignment of error, in which it is charged that the trial court erred in submitting to the jury the question of negligence arising out of the failure to ring the bell at a public crossing; the contention being that the plaintiff's petition did not charge the defendant with failure to ring the bell. And, in addition to the quotation from the petition set [2] The rule is that, as against a general demurrer, all reasonable inferences are al lowed in favor of the pleading, and we think the averment in the plaintiff's petition that, if the defendant had rung the bell, plaintiff would have heard the same, carries with it the implication or inference that the defendant did not ring the bell. We also hold that, if the pleading did not present that is-out in our former opinion, appellant quotes sue, its submission to the jury was immate- from the petition the following statement rial, because they found that the defendant therein : failed to blow the whistle, and that was the proximate cause, in part, of the injury sus tained by plaintiff. [3] When a case is submitted upon special issues, an immaterial issue does not necessarily require a reversal of the case, though the jury may find for the plaintiff upon the immaterial as well as the material issue. "That on failing to blow the whistle upon approaching the public crossing as required by law, and upon their failure to stop the said train, defendant had been damaged in the sum of $500." It is quite evident that the term "defendant" was used in the quotation referred to inadvertently, and that the pleader intended to refer to the plaintiff. In fact, appellant makes no point upon the word "defendant," but contends that the quotation shows that the plaintiff was not complaining of the defendant's failure to ring the bell, but only of the failure to blow the whistle and stop the train. The petition prays for damages in the sum of $500, and for general relief. [4] There is no merit in the contention that the case should be reversed because the jury did not find that the injury complained of was caused entirely by the failure to blow the whistle. Construing the entire verdict together, we think the jury meant that the injury to the plaintiff's automobile was caused partly by the failure to blow the whistle and partly by the failure to ring the bell. [5] But, be that as it may, the rule of law [7] The motion for rehearing also calls atis that, when a tort-feasor has contributed tention to the fact that we were mistaken to the injury complained of, though there in saying that the defendant's answer did may be other tort-feasors, he may be sued not contain a general demurrer. But it is alone, and a recovery had against him for immaterial that the answer contained such the injury done by all of the tort-feasors. Of demurrer, because the record does not show course, that rule does not apply when the plaintiff himself is guilty of negligence, although the defendant may also be equally guilty, because the law does not permit a 252 S.W.-13 that it was called to the attention of and ruled upon by the trial court; and therefore appellant is in the same condition as it would be if the answer did not contain such de murrer. When a litigant fails to invoke a, judgment, notwithstanding rule 62a (149 S. ruling of the trial court upon his demurrers W. x) which was considered by the court. and exceptions to his adversary's pleading, he thereby waives the same. We do not think that the additional quotation from the plaintiff's petition contained in the motion for rehearing constitutes any reason for changing our holding. We also copy as follows from the motion for rehearing: "This court says in its opinion: 'If the defendant had rung the bell, that plaintiff would have heard the same, carries with it the implication or inference that the defendant did not ring the bell.' It may be that such inference or implication is contained in that language, but it is not sufficient under the statute of this state to allege an issue by inference or implication. The positive law on the question is in the following plain and unambiguous language: "The petition shall set forth clearly * and fully a clear statement of the cause of action and such other allegations pertinent to the cause as the plaintiff may deem necessary to sustain his suit.'" * In reply to that part of the motion, we refer to the long list of authorities collated in volume 6, p. 315, Encyclopedic Digest of Texas Reports, and also to rule 17 prescribed by the Supreme Court (94 Tex. 670, 142 S. W. xviii), which reads as follows: "General exceptions shall point out the particular instrument in the pleadings, to wit: The original petition or answer, or the respective supplements to either; and in passing upon such general exception every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency." We therefore adhere to our former ruling upon that subject. Nor are we prepared to change our ruling to the effect that, if the court should not have submitted to the jury the question of ringing the bell, it is immaterial that it did so, inasmuch as the jury found in favor of the plaintiff upon the other issues submitted. Appellant contends that our decision upon that point is in conflict with the decision of the Fort Worth Court of Civil Appeals in Ft. Worth & Denver City Ry. Co. v. Wilkinson, 152 S. W. 203. We do not agree with that contention. The Wilkinson Case was submitted to the Jury upon a general charge, instructing them, if they found that the defendant was guilty of negligence in either of several particulars, to find for the plaintiff; and one of the grounds of negligence therein submitted was not charged in the plaintiff's petition. The jury returned a general verdict for the plaintiff, without stating upon which ground of negligence the verdict was based; and therefore it was impossible for the court to say that it was not based upon the ground not alleged in the plaintiff's petition, for which reason the court reversed the We indorse that decision, but we have no doubt, if that case had been submitted upon special issues, as was this case, and the jury had found that the defendant was guilty of negligence in any of the particulars charged in the plaintiff's petition, the ruling of that court would have been quite different, and in harmony with the ruling of this court in this case. That is one of the advantages which may result from the trial of cases upon special issues. All of the matters presented in the motion have received due consideration, and our conclusion is that it should be overruled. Overruled. KING v. SHELTON. (No. 1472.) (Court of Civil Appeals of Texas. El Paso. May 3, 1923.) 1. Customs and usages 12(1)—Admission of evidence by seller as to his custom in not guaranteeing secondhand cars held error. Where the record did not disclose that the seller's custom not to guarantee secondhand cars was so general and notorious that knowledge and adoption of such custom by the buyer would be presumed, and there was no evidence that the buyer had knowledge of such custom, or that he contracted with reference to it, it was error to admit seller's testimony that it was his custom not to guarantee any secondhand cars. 2. Customs and usages 12(I)-Usage or "custom" to bind must be known to both parties or be general and notorious. A custom which will enter into and affect the rights and liabilities of persons and their dealings with each other must be certain and uniform, and either known to the public sought to be charged thereby, or so general and notorious that knowledge and adoption thereof must be presumed (citing Words & Phrases, Second Series, Custom). Appeal from Taylor County Court; D. G. Hill, Judge. Action by S. M. Shelton against N. W. King. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Kirby, King & Overshiner, of Abilene, for appellant. Dallas Scarborough, of Abilene, for appellee. WALTHALL, J. S. M. Shelton brought this suit against N. W. King to recover on five promissory notes, each in the sum of $40 and given in part purchase price of a secondhand Ford automobile, valued by Shelton in the transaction at $350; the balance of the purchase price being a secondhand Chalmers For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S.W.) Sedan car, given in exchange, of the agreed value of $150, and the notes being secured by a chattel mortgage on the Ford automobile. The suit was to recover on the notes, and foreclose the mortgage lien. King answered by general denial, and special pleas of fraud, failure of consideration, breach of warranty as to the value and condition of the Ford automobile, alleged that Shelton represented that the Ford car was in good repair and in good running condition, his reliance on said representations and believing them to be true, and so believing was induced to execute said notes and part with the Chalmers car. He alleged that the Ford automobile was not in good running condition and in good repair at the time, and that it was wholly worthless. He alleged a tender and delivery back of the Ford automobile and demand of the surrender and cancellation of the notes and return of the Chalmers Sedan car, all of which Shelton refused. King prayed that his notes be canceled, his Sedan car be returned, and in the event of a failure or refusal so to do that he have judgment against Shelton for $150, interest, and costs of suit. The case was tried before a jury, and submitted upon special issues. The court subImitted to the jury the following: "Question No. 1. Did the plaintiff, Shelton, at and prior to the time of the exchange or trade of the cars in question, and execution and delivery of the notes, make false and fraudulent statements and representations to the defendant, King, as to the condition of said car, in this: Did said plaintiff fraudulently and falsely represent to defendant that said car was in good repair, and in good condition, and is absolutely all right, and were they false if made? Answer yes or no." The jury answered, "No." Judgment was rendered in favor of Shelton on the notes and foreclosure of the mortgage lien. Opinion. the car to be good, without stating the evidence, was a sharply contested issue of fact on the trial. Appellant, by proper assignments and propositions thereunder, complains of the admission in evidence of statements of Shelton and two witnesses as to Shelton's custom of not guaranteeing any secondhand cars. We have concluded that it was reversible error, under the facts disclosed by the record, to admit the statements of Shelton and the witnesses that Shelton's custom was not to guarantee any secondhand cars. [2] A custom which will enter into and affect the rights and liabilities of persons in their dealings with each other must be certain, uniform, and either known to the public sought to be charged thereby, or so general and notorious that knowledge and adoption thereof must be presumed. Words and Phrases, Second Series, vol. 1, page 1186, and the cases there referred to. Knowledge of the custom constitutes one of the essential elements before it can affect rights and liabilities of parties and become a fixed element of a contract or be shown in the interpretation of a contract. The record does not show that Shelton's custom not to guarantee secondhand cars was so general and notorious that knowledge and adoption of such custom on the part of King in the transaction in question would be presumed, and there is no evidence in the record otherwise showing that King had knowledge of such practice or custom, or that he expressly or impliedly contracted with reference to such custom. A usage or custom to bind must be known to both parties, or it must be general and notorious. Neill Bros. & Co. v. Billingsley, 49 Tex. 161; Brady v. Richey & Casey (Tex. Civ. App.) 187 S. W. 508. For reasons stated, the case is reversed and remanded. NELSON v. GULF, C. & S. F. RY. CO. et al. (No. 1475.) May 10, 1923.) [1] On the trial plaintiff, Shelton, was permitted to testify, over objections, that his "custom was not to guarantee any second- (Court of Civil Appeals of Texas. hand cars, and it was not good business to do so." Two witnesses for Shelton were also permitted to testify, over objections, that it was the custom of Shelton not to guarantee any secondhand cars. There is no evidence found in the record that the custom not to guarantee secondhand cars was a general custom existing in that locality in that particular business; nor is there evidence in the record that King knew of Shelton's custom not to guarantee secondhand cars. As to whether or not Shelton made statements to King in regard to the condition of the Ford automobile at the time of the sale, 1. Trover and conversion El Paso. 25-Carrier not liable for shipper's mistake in loading animals mixed with shipment. Where a shipper bound by contract with a railroad company to care for his cattle during transit, turned his cattle, out to graze, and the shipper's caretaker by mistake took two cows belonging to another which became mixed with the shipment, and shipped them, the company was not liable to the owner for conversion. 2. Carriers 211-Contract between carrier and shipper held to relieve carrier from watering and feeding cattle, A contract between a railroad company and or in any way guaranteed the condition of a shipper which put upon the shipper the duty For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of feeding and watering cattle while in transit, of their authority to afford such rest and was valid, and relieved the railroad company to feed and water the same, turned the stock from the duty of feeding and watering the cat- out of the pens to graze, rest and water, and tle imposed by Rev. St. art. 714. that the agents, servants, and employees of appellee wrongfully and carelessly mixed the Appeal from Nolan County Court; A. S. plaintiff's cows with the shipment and loadMauzey, Judge. ed plaintiff's cows into a car and transported the same to Plainview. Action by T. J. Nelson against the Gulf, Colorado & Santa Fé Railway Company. From judgment for defendant, plaintiff appeals. Affirmed. R. C. Crane and J. C. Babb, both of Sweetwater, for appellant. Douthit, Mays & Perkins, of Sweetwater, for appellee. HIGGINS, J. The appellee pleaded that, if the cows were taken from plaintiff's possession, the same did not occur by reason of any negligence of its employees, but by the caretaker of the shipment while he had the cattle out grazing them, and that the duty of feeding and watering and loading the cattle rested upon the shipper under the contract. The case was submitted to a jury upon the issue of whether any of the employees of the appellees acting within the scope of their employment negligently went upon the range and picked up the plaintiff's cattle, which being answered in the negative, judgment was rendered in favor of the appellees. dered, and a peremptory instruction in the defendant's favor should have been given. [2] The contract under which the shipment moved imposed upon the shipper the duty of feeding and watering the stock while in course of transportation. This contract was valid and relieved the carrier of the duty of feeding and watering the cattle. Article 714, R. S.; Railway v. Winn Bros. (Tex. Civ. App.) 178 S. W. 697; Dickerson v. Railway (Tex. Civ. App.) 170 S. W. 1045. [1] On September 9, 1920, there was unloaded in appellee's shipping pens at Sweetwater, Tex., a carload of cows moving from De Leon, Tex., to Plainview, Tex. Contract covering the shipment was executed at De Leon in the name of Bell & Enza, which provided that the shipper should load, unload, and reload the car and feed Various errors are assigned, but it is unand water the live stock and attend the same necessary to consider the same in detail, for while in the carrier's stockyards, pens, or the reason that under the undisputed evicars, at his own expense, and the shipper dence no other judgment could properly have was in no sense the agent, employee, or serv-been rendered except the one which was renant of the carrier, but was his own master in and about the matters and things to be performed by him under the contract. While the cows were in appellees' pens at Sweetwater awaiting further shipment, Enza, the caretaker, without authority from appellee, turned the cows out to graze and hired a boy to help him herd them. None of the employees of appellees had anything to do with this. Appellant had two cows which were running upon the commons, and these became mixed with the shipment which had been turned out to graze or were picked up by Enza and brought to the pens by him with his cattle, and all of the stock loaded and transported to Plainview. Rogers, who had charge of the pens for appellee, assisted Enza in getting the cattle back into the pens after Enza had gathered up the herd and brought it to the pens. This he did because Enza was having trouble in getting the cattle to enter the pen. Rogers did not know Nelson's cows from any one else's. Subsequently Enza had the two cows of the appellant shipped back from Plainview and returned to appellant. This suit was brought by the appellant against the Gulf, Colorado & Santa Fé Railway Company and the Panhandle & Santa Fé Railway Company to recover damages by reason of the loss of milk from said cows, deterioration in their condition, etc., alleging, in substance, that the aforesaid shipment had been unloaded in the pens for feed, water, and rest, and that the agents, employees, and servants of appellee, acting within the scope While discharging this duty, the plaintiff's cattle became mingled with the shipment, and the shipper brought them, together with his own, back to the pen and tendered the same to the carrier for transportation to Plainview. In thus acting the shipper or caretaker was in no sense the agent or employee of the railway company. If there is any cause of action, it is against the shipper. Under no principle of law can the railway companies be held liable and responsible for the independent, voluntary, and unauthorized act of Enza. There was no concert of action whatever between Enza and the appellees, its agents or employees; no conscious participation by the appellées, its agents or employees, in the wrongful conversion of the plaintiff's cows. The appellees were simply discharging the duty imposed upon them by law and by contract to transport the Enza & Bell shipment, and were in no wise liable under the undisputed evidence for the wrongful acts of Enza. 26 R. C. L. 766; 38 Cyc. 484 et seq. Affirmed. (252 S.W.) GERHARDT et al. v. YORKTOWN INDE- (Court of Civil Appeals of Texas. Galveston. 1. Statutes 82 (1)-Special act incorporat- cases. Under Const. art. 7, § 3, expressly providing that the Legislature may provide for the formation of school districts by general or special laws without local notice, the Legislature has authority by special act to incorporate independent school districts without giving the local notice required in other cases. 2. Schools and school districts 99-Limitation of right of independent city and town districts and independent districts created by general or special law to levy taxes stated. [assumption by the district of its pro rata share of all outstanding, bonded indebtedness of school districts or parts of school districts included in the territory of the district, is not in violation of the federal Constitution or of Const. art. 1, § 16, as requiring taxpayers in new territory added to assume the payment of an indebtedness of the old district in the creation of which they had no voice, and is not otherwise invalid, the requirement of Vernon's Sayles' Ann. Civ. St. 1914, art. 2883, providing that added territory shall bear its pro rata of any school debts owed by the district to which it shall be added being a just and reasonable requirement, since the new district as a body corporate succeeds to the property and funds of the old district and should assume its obligations. 5. Statutes 64(1)—Part of statute may be invalid without rendering whole act void. If provisions of an act are so connected and dependent on each other as to warrant belief that the act was intended as a whole, and one or more of the provisions would not have been enacted if others could not be joined and carried into effect, then all must fail and the act be declared void, but one section may be repugnant to the Constitution without causing the whole act to fall, unless. it is so connected with the remainder that the good cannot remain without the bad. Under the express provisions of Const. art. 7, § 3, as amended in 1920, incorporated cities and towns constituting separate and independent school districts and independent or common school districts created by general or special law may levy and collect an annual tax not to exceed 35 cents on the $100 valuation of property subject to taxation in such districts, and they may also, when authorized by a majority vote of the qualified voters residing therein, levy and collect an additional tax of not to exceed $1 on the $100 valuation of the property subject to taxation therein, for the Even if that provision of Sp. Acts 37th Leg. further maintenance of public free schools and (1921) c. 45, creating Yorktown independent for the erection and equipment of school build-school district, which requires the district to ings. 3. Schools and school districts 22-Special act creating Yorktown independent district and granting it power to levy taxes and requiring it to provide for assuming bonded indebtedness held valid. 6. Statutes 64(4)-Provision for assumption of debts of old school district held not so connected with other provisions as, if invalid, to invalidate act. assume pro rata the debts of the old district 111-Gener al laws requiring levy of taxes by ordinance made applicable to independent school districts organized by special law must be complied with as prerequisite to collection, otherwise injunction will lie. Sp. Acts 37th Leg. (1921) c. 45, creating the Yorktown independent school district and granting it all powers and privileges conferred by general law, including the right to levy taxes, and requiring it to proceed according to law to provide for the assumption of its pro rata Sp. Acts 37th Leg. (1921), c. 45, creating part of all outstanding bonded indebtedness of the Yorktown independent school district, exschool districts or parts of school districts in-pressly made all laws applicable to towns and cluded within its territory, held valid as with- villages incorporated for free school purposes in the legislative power under Const. art. 7, § only applicable to such district, and under 3, as amended in 1920, which provides the Rev. St. 1911, arts. 2852, 2853, providing for the power of independent school districts organ-election of trustees and defining their powers, ized under general or special law to levy taxes, and under Vernon's Sayles' Ann. Civ. St. 1914, art. 2883, providing that added territory shall bear its pro rata of any school debts owed by the district to which it is added. 4. Constitutional law 143 Requirement that new district shall assume pro rata share of obligations of other districts or parts of districts not invalid. The provision of Sp. Acts 37th Leg. (1921) c. 45, creating the Yorktown independent school district, vesting in the trustees of such district all school property, provided that such trustees shall proceed according to law for the rights, and duties, and under articles 923-925, providing that the levy of taxes shall be by ordinance, such independent school district was required to so levy taxes as a prerequisite to their legal collection, and, no such levý having been made, an action to enjoin the collection of taxes properly lies at the instance of a taxpayer within such district. Appeal from District Court, De Witt County; John M. Green, Judge. Suit for injunction by Robert Gerhardt and others against the Yorktown Independent For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |