Hedgpeth v. Hamilton Warehouse Co.

• Decision Date: 22 November 1911
• Parties: HEDGPETH v. HAMILTON WAREHOUSE CO.
• Court: Texas Supreme Court

140 S.W. 1084

HEDGPETH v. HAMILTON WAREHOUSE CO.

Supreme Court of Texas.

November 22, 1911.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by D. P. Hedgpeth against the Hamilton Warehouse Company. From a judgment sustaining a general demurrer to the petition affirmed by the Court of Civil Appeals (128 S. W. 709), plaintiff brings error. Affirmed.

J. L. Lewis, P. M. Rice, and Eidson & Eidson, for plaintiff in error. Langford & Chesley, for defendant in error.

RAMSEY, J.

By his first amended original petition filed in the district court of Hamilton county, the plaintiff in error complained of the Hamilton Warehouse Company and sought to recover of it penalties in the sum of $48,000 as well as the sum of $960 claimed as fees of which, by the wrong of said defendant, he was deprived. After alleging his election and due qualification as public weigher, the petition, in the charging part of same, alleged in substance that, "notwithstanding plaintiff's duty and rights aforesaid, the defendant company, which was, at all times hereinafter alleged, engaged in the business of `constructing and maintaining public warehouses for the storage of products and commodities, and the purchase and sale of products and commodities, together with the loaning of money on such products and commodities,' it at all of said times acting under and by virtue of a charter granted by the state of Texas, May 13, 1907, authorizing it to engage in the aforesaid business, but in no other, did, without the consent of plaintiff and in violation of his rights aforesaid, employ C. A. Souer, Will Hall, and Olli McDurman, neither of whom was a public or deputy public weigher for said precinct, to weigh the hereinafter mentioned cotton. In this connection, plaintiff says that all of said cotton weighed by the aforesaid parties was weighed at the said town of Hamilton in said precinct, either for the purpose of ascertaining its weight for sale, or for loaning money on it, or for both of said purposes, none of which cotton belonged to defendant company, but belonged to various persons, principally farmers." The remaining portion of the petition is unimportant and need not be here set out, as the right of plaintiff in error must and does depend on the sufficiency of the allegations above copied. To this petition the defendant company interposed a general demurrer and certain special exceptions which were by the trial court sustained, and, the plaintiff declining to amend, the suit was dismissed. From this judgment an appeal was seasonably prosecuted to the Court of Civil Appeals of the Third Supreme Judicial District, where on hearing the judgment of the district court was affirmed, and thereafter a writ of error was, on application, granted by this court.

On a more careful and particular review and study of the allegations of the petition, in the light of the statute under which the suit was brought and a careful study of the statutes and decisions controlling the case, we have no doubt that the disposition made of the case by the trial court and the Court of Civil Appeals was correct, and that said judgments should be affirmed. The true and correct solution of the question in the cases involves and requires a correct interpretation of article 4314 of our Revised Statutes. This article is as follows: "It shall not be lawful for any factor, commission merchant, or any other person or persons to employ any other than a regularly appointed and qualified public weigher or his deputy to...