National Compress Co. v. Hamlin

• Decision Date: 18 February 1925
• Citation: 269 S.W. 1024
• Parties: NATIONAL COMPRESS CO. v. HAMLIN. L. B. PRICE MERCANTILE CO. v. MOORE. ALEXANDER v. ALEXANDER. WAGNER et al. v. TEXAS & N. O. RY. CO. MIMS et al. v. HUNKEN et al. INTERNATIONAL TRAVELERS' ASS'N v. GRIFFING. LEAVERTON v. CHAPMAN.
• Court: Texas Supreme Court

Page 1024

269 S.W. 1024

NATIONAL COMPRESS CO. v. HAMLIN.

L. B. PRICE MERCANTILE CO. v. MOORE.

ALEXANDER v. ALEXANDER.

WAGNER et al. v. TEXAS & N. O. RY. CO.

MIMS et al. v. HUNKEN et al.

INTERNATIONAL TRAVELERS' ASS'N v. GRIFFING.

LEAVERTON v. CHAPMAN.

Supreme Court of Texas.

February 18, 1925.

Action by R. L. Hamlin against the National Compress Company. Judgment for plaintiff affirmed (264 S. W. 488), and defendant applies for writ of error. Application dismissed.

Action by Maggie Moore against the L. B. Price Mercantile Company. Judgment for plaintiff affirmed (263 S. W. 657), and defendant applies for writ of error. Application dismissed.

Action by Gertrude Alexander against Samuel Alexander. Judgment overruling plea of privilege affirmed (265 S. W. 1072), and defendants apply for writ of error. Petition dismissed.

Action by Mrs. Mamie Wagner and others against the Texas & New Orleans Railway Company. Judgment for plaintiffs reversed and remanded (262 S. W. 902), and they petition for writ of error. Petition dismissed.

Action by J. C. Hunken and another against T. H. Mims and wife. Judgment for plaintiffs reformed and affirmed (262 S. W. 930). On motion for rehearing after refusal of petition for writ of error. Motion overruled.

Action by Elise S. Griffing against the International Travelers' Association. Judgment for plaintiff affirmed (264 S. W. 263). On motion for rehearing after dismissal of application for writ of error. Motion overruled.

Suit by J. L. Chapman, Banking Commissioner, against H. A. Leaverton. Judgment sustaining demurrer to petition reversed and remanded (263 S. W. 1083). On motion for rehearing after refusal of petition for writ of error. Motion overruled.

Sharp & Tirey, of Ennis, and Sleeper, Boynton & Kendall, of Waco, for plaintiff in error National Compress Co.

GREENWOOD, J.

Should the court's long-established practice be followed, no written opinions would be filed in disposing of the applications for writs of error in the above-styled causes. The questions presented by these applications, however, are typical of so great a number which are constantly brought here for review that we have deemed it important to state the questions and the grounds for the conclusions that they are without or within the court's jurisdiction.

The first application is in a suit where defendant in error, Hamlin, recovered a judgment of plaintiff in error, National Compress Company, for damages to cotton from the overflow of a creek, while the cotton was in the possession of plaintiff in error as bailee or warehouseman. In its last analysis the error of the Court of Civil Appeals, which we are asked to review under various assignments, consisted in deciding that the evidence raised a question of fact as to whether the cotton was injured by the negligence of defendant in error or by an overflow constituting an unprecedented "act of God." The application discloses evidence which made it the plain duty of the trial court to treat the question as one of fact, such, for instance, as that the cotton was stored by defendant in error on a platform, not above a known previous high-water mark, and where cotton had only a few years before suffered substantial damage from overflow. Choate v. Railway Co., 91 Tex. 409, 44 S. W. 69; Wilson v. Freeman, 108 Tex. 125, 185 S. W. 993, Ann. Cas. 1918D, 1203.

In this state of the record the Constitution forbids that we should take jurisdiction of the application. Section 3, of article 5, of the Constitution, restricts the appellate jurisdiction of the Supreme Court to questions of law. The statutes regulating the court's jurisdiction are equally explicit in forbidding any extension of the court's appellate jurisdiction beyond questions of law. Arts. 1521, 1522, Complete Texas Statutes (Vernon's Ann. Civ. St. Supp. 1918, arts. 1521, 1522). The opinion in Decker v. Kirlicks, 110 Tex. 90, 216 S. W 385, approved in Holland v. Nimitz, 111 Tex. 431, 232 S. W. 298, 239 S. W. 185, was intended to make plain that the Supreme Court will undertake to review questions as to the existence or nonexistence of any evidence to support findings, verdicts, or judgments only when the record seems to preclude fair doubt as to the existence or nonexistence of evidence. Otherwise, we could not say that the action sought to be corrected was "flagrantly wrong."

Applying these rules we cannot do otherwise than dismiss the Compress Company's application for writ of error, for want of jurisdiction. It is so ordered.

By the second application, plaintiff in error, L. B. Price Mercantile Company, seeks to review a judgment of the Beaumont Court of Civil Appeals, affirming a judgment against it for personal injuries inflicted on defendant in error, Maggie Moore, by agents of plaintiff in error. The principal contention in this petition is that the court should review the exclusion of evidence tending to show that defendant in error, her husband, and her daughter had each maintained two suits within two years for alleged personal injuries, of which no objective symptoms were found. Plaintiff in error in nowise challenges the finding of the Court of Civil Appeals that the record contains ample evidence of an unjustifiable assault on defendant in error by plaintiff in error's agents, resulting in her injury substantially as alleged, and as found by the jury. Thus it appears that the case could not possibly be held to turn on the excluded testimony. We had no jurisdiction of a complaint about the exclusion of such testimony under the "substantive law rule," and we have none under the present statute. Browder v. Independent School District, 107 Tex. 538, 180 S. W. 1077; Smith v. Butcher, 110 Tex. 618, 223 S. W. 166; Kirksey v. Traction Co., 110 Tex. 193, 217 S. W. 139; Hartt v. Yturia Cattle Co. (Tex. Com. App.) 228 S. W. 551.

The only other asserted ground of jurisdiction is based on alleged excessiveness in the damages awarded plaintiff in error. Here a pure question of fact is raised which this court has been denied power to review. Dillingham v. Richards, 87 Tex. 247, 28 S. W. 272; I. & G. N. R. R. Co. v. Goswick, 98 Tex. 477, 85 S. W. 785; Burrell Eng. & Const. Co. v. Grisier, 111 Tex. 447, 240 S. W. 899. Hence this petition is also dismissed as presenting only matters without our jurisdiction.

The writ of error in the case of plaintiffs in error, Samuel Alexander et al., against defendant in error, Gertrude Alexander, is sought to revise a judgment of the Court of Civil Appeals affirming a judgment of the district court overruling plaintiffs in error's pleas of privilege. A judgment overruling a plea of privilege is strictly interlocutory, leaving all issues between the parties yet to be adjudicated by final judgment. The purpose of the plea is to secure an adjudication as to where the cause should be tried and the final judgment rendered. The statute declares in plain language that judgments of the Courts of Civil Appeals are final in all appeals from interlocutory orders. Where it was intended, despite this declaration, for the Supreme Court to revise a judgment of the Court of Civil Appeals in an appeal from an interlocutory order, the Legislature has used language plainly disclosing such intent, as in the statutes dealing with the revision of orders with respect to temporary injunctions. No language of this sort can be found in the statutory provisions for the review of orders on pleas of privilege.

The statutes have been frequently construed and applied in such a way as to preclude the exercise of jurisdiction by the Supreme Court to review the judgment of the Court of Civil Appeals here complained of, and the petition for writ of error is accordingly dismissed. Hinn v. Gallagher, 114 Tex. ___, 268 S. W. 132; Magouirk v. Williams (Tex. Com. App.) 249 S. W. 185; Izaguirre v. Evans (Tex. Com. App.) 249 S. W. 187; Perkins v. Texas Bank & Trust Co. (Tex. Com. App.) 249 S. W. 186.

Plaintiffs in error, Mrs. Mamie Wagner et al., recovered a judgment in the district court against defendant in error, Texas & New Orleans Railway Company, for $26,500 damages for the death of F. G. Wagner, as the proximate result of negligence of defendant in error. On the 28th day of November, 1923, the Galveston Court of Civil Appeals reversed this judgment and remanded the cause to the district court, with an opinion filed by Associate Justice Lane on the 14th day of December, 1923 (267 S. W. 902). Considering that the judgment of the district court should have been affirmed, Associate Justice Graves filed an extended dissenting opinion on the 10th day of January, 1924. On the 28th day of February, 1924, the motion for rehearing of plaintiffs in error was overruled, and thereafter, on March 6, 1924, a written opinion on the motion for rehearing was filed by Chief Justice Pleasants, followed by a dissenting opinion of Associate Justice Graves on March 13, 1924. On April 17, 1924, plaintiffs in error's motion to certify the points of dissent to the Supreme Court was overruled. On the 17th day of April, 1924, Chief Justice Pleasants filed an opinion, correcting one paragraph of his opinion on rehearing, but containing no new ruling against plaintiffs in error. On April 21, 1924, plaintiffs in error filed a second motion for rehearing, which was overruled on May 1, 1924, with Associate Justice Graves dissenting. On May 5, 1924, plaintiffs in error filed their petition for writ of error in the Court of Civil Appeals. It thus appears that the petition for writ of error was filed on the fourth day after plaintiffs in error's second motion for rehearing was overruled, but long after the expiration of 30 days after their first motion for rehearing was overruled, and after the opinions thereon were filed, except the corrective opinion of April 17, 1924.

On the facts stated it is the settled rule that the petition filed on May 5, 1924, conferred no jurisdiction on this court. Article 1541 of the Revised...