Missouri, K. & T. Ry. Co. of Texas v. Mahaffey

• Decision Date: 20 November 1912
• Citation: 150 S.W. 881
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MAHAFFEY.
• Court: Texas Supreme Court

150 S.W. 881

MISSOURI, K. & T. RY. CO. OF TEXAS v. MAHAFFEY.

Supreme Court of Texas.

November 20, 1912.

Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by A. L. Mahaffey against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which certifies questions to the Supreme Court. Questions answered.

Coke, Miller & Coke, and L. L. Wood, all of Dallas, for appellant. M. M. Smith and W. R. Heath, both of Pittsburg, for appellee.

BROWN, C. J.

Certified question from the Court of Civil Appeals of the Sixth Supreme Judicial District, as follows:

"Alleging that appellant had negligently injured a horse belonging to him by running its engine and cars against said horse, appellee by his suit sought a recovery against appellant for the sum of $150 as the damages thereby suffered by him, further alleging that his claim for such damages was a bona fide one; that more than 30 days before he filed his suit he had presented said claim, but for less sum than he sued for, to appellant for payment; that appellant refused to pay same; that, in consequence of such refusal, he was forced to employ an attorney to bring and prosecute his suit therefor; and that the sum of $20 was a reasonable fee for an attorney for such services. Appellee sought also to recover the sum of $20 as attorney's fees appellant became liable to pay to him. The evidence was sufficient to support a finding that the horse had been injured as alleged. It also was sufficient to support a finding that appellee more than 30 days before he commenced his suit had presented to appellant's station agent at Leesburg, where the accident occurred, a claim in writing for $75 as the amount of the damages he had suffered because of injuries to the horse, and that appellant had refused to pay same, and to support a finding that $20 was a reasonable fee for services of an attorney in instituting and prosecuting the suit. The court instructed the jury, on conditions specified, to find in appellee's favor as damages for injuries to the horse the difference between its value immediately before and its value immediately after it had suffered the injuries complained of; and then further instructed them as follows: `I further charge you that if you believe from a preponderance of the testimony that the plaintiff, 30 days or more before the filing of this suit presented to defendant railway company or its authorized agent a claim in writing for the damages herein sued for, and that defendant failed, neglected, or refused to pay said damages, then in case you find for plaintiff under instructions heretofore given you in a sum equal to or in excess of the claim in writing filed with defendant or its duly authorized agent, if you find that such claim was so filed, you will further find for plaintiff an additional sum of $20 as attorney fees.' The verdict was in appellee's favor for the sum of $100 as damages for injuries to the horse, and for the sum of $20 as attorney's fees. A judgment in accordance with the verdict was rendered in appellee's favor, and from that judgment appellant prosecuted an appeal to this court, assigning as error, among other matters complained of, the action of the court in instructing the jury to find for appellee the sum of $20 as attorney's fees on the conditions set out in the portion of the court's charge quoted above. An objection urged to the instruction was that it was based on the act March 13, 1909 (General Laws, c. 47, p. 93), regulating the presentation and collection of claims for personal services, etc., and that said act was void because contrary to certain provisions of the Constitution, among which was specified section 35 of article 3, as follows: `No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' Being of the opinion that said act of 1909, as to claims therein described which did not exceed in amount the sum of $200, was not obnoxious to said section 35 of article 3 of the Constitution, because of the saving clause therein, this court overruled the assignment presenting the contention, and by an oral opinion rendered January 19, 1911, affirmed the judgment of the court below. In a motion by appellant for a rehearing, now pending before us, attention is called to the case of Ft. W. & D. C. Ry. Co. v. Loyd, 132 S. W. 899, published for the first time in the issue of the Southwestern Reporter for January 18, 1911, where the Court of Civil Appeals for the Second District reached a conclusion directly to the contrary of one we reached—that court holding said act March 13, 1909, to be wholly void because in disregard of said section of the Constitution. After further considering the question made, in the light of the opinion of said Court of Civil Appeals in the case cited, we find ourselves unable to concur therewith. On the contrary, we still are of the opinion that said act March 13, 1909, as to claims described therein which do not exceed in amount the sum of $200, is not within the prohibition of said section of the...