Payne v. Wittenberg

CourtCourt of Appeals of Texas
Citation239 S.W. 224
Docket Number(No. 8124.)
PartiesPAYNE, Agent, v. WITTENBERG.
Decision Date28 February 1922

Appeal from Austin County Court; W. I. Hill, Judge.

Action by H. Wittenberg against John Barton Payne, Agent. From judgment for plaintiff and C. E. Shaff, receiver, defendant appeals. Reversed and remanded.

C. C. Huff, of Dallas, and Wolters, Storey, Blanchard & Battaile, of Houston, for appellant.

C. G. Krueger, of Bellville, for appellee.


This suit was filed in the justice court of precinct No. 4 of Austin county, Tex., on the 10th day of May, 1920, by appellee, H. Wittenberg, against John Barton Payne, who was at that time an agent for the government of the United States in charge of the railway, and all other railway properties belonging to the Missouri, Kansas and Texas Railway Company of Texas, and against C. E. Shaff, receiver of said properties. The suit was one to recover $125, the value of one mare alleged to have been killed by reason of the negligence of the employés of John Barton Payne, Agent.

Judgment was rendered for appellee in said justice court, and the cause was carried by appeal to the county court of Austin county for retrial.

The negligence alleged was substantially: (1) that the employés of the defendants in charge of a certain limited passenger train on said railway, which passed through Cat Springs during the early hours of the 10th day of May, 1918, operated and ran said train through said town at an excessively high and dangerous rate of speed, knowing at such time that animals were accustomed to run at large in and about said town and the track of said railway company, and that they frequently went upon and across said track, and also knowing that several animals, as well as persons, had been struck by said train, and that like accidents might again occur; (2) such employés, with full knowledge of the facts above stated, failed to ring the bill or blow the whistle of the engine propelling said fast train; and (3) that said employés failed to keep a constant lookout for persons and animals near or upon said railway track, so as to avoid injury to such persons and animals. He alleged that each of the alleged acts of negligence was, and conjunctively were, the proximate cause of the death of his mare.

The defendants answered and averred that it appeared from plaintiff's petition that the cause of action alleged therein was barred by the two years' statute of limitation. They answered further by general denial, plea of limitation, and by specially pleading that the place where the mare of plaintiff was killed was within the depot grounds, switch limits, switch tracks, and yards of said railway company, and that it was a place that the defendants could not fence without imperiling the lives of their employés, and where they were neither required nor permitted to fence.

The case was tried before the court without the intervention of a jury, and judgment was rendered in favor of appellee, Wittenberg against John Barton Payne, Agent, for the sum of $125, with interest thereon at the rate of 6 per cent. per annum from the 10th day of May, 1918, the date on which the mare was killed, to date of the judgment.

Judgment was also rendered for C. E. Shaff, receiver. From the judgment rendered against him, John Barton Payne, agent, has appealed.

For causes for reversal of the judgment against him, appellant contends: First, that the cause of action alleged by the plaintiff was barred by the statute of limitation pleaded by him at the time this suit was filed, and that the court erred in not so holding; second, that there was no evidence to support the judgment for the plaintiff; and third, that the measure of damages in this case should have been limited to the value of the mare killed, and therefore the court erred in allowing plaintiff to recover interest. We shall consider these contentions in the order named.

By article 5687 of our Civil Statutes it is provided that causes of action such as the one under consideration must be brought within two years after the same shall have accrued, and not thereafter. The pleadings of the plaintiff and the undisputed evidence show that plaintiff's mare was killed during the early hours of the 10th day of May, 1918, and that this suit was filed, seeking recovery for her loss, on the 10th day of May, 1920. Appellant's attorneys in an able brief contend that the word "years" used in our limitation statutes means calendar years; that the cause of action of appellee accrued immediately upon the death of his mare—that is, in the early part of May 10, 1918—and that the two calendar years next thereafter expired at midnight of the 9th day of May, 1920, and therefore plaintiff's cause of action was barred by limitation at the time suit was filed on May 10, 1920. In support of these contentions they cite Ross v. Morrow, 85 Tex. 172, 19 S. W. 1090, 16 L. R. A. 542; Geneva Cooperage Co. v. Brown, 124 Ky. 16, 98 S. W. 279, 124 Am. St. Rep. 388; Wilson v. Ry. Co. (Ky.) 92 S. W. 572.

The two Kentucky cases unquestionably support appellant's contention, that appellee's cause was barred at the time it was brought, but, as they declare a rule different from that established by the courts of this state, they are not controlling.

In Ross v. Morrow, 85 Tex. 172, 19 S. W. 1090, 16 L. R. A. 542, decided in 1892, it was held that Nathan Ross, plaintiff, being born on April 17, 1860, was 21 years old on the 16th day of April, 1881, and that, five years having expired on the 15th day of April, 1886, one day before the institution of the suit, under the rule adopted in computing the age of a person—that is, that the day of his birth is included, and on the day before his 21st anniversary he is held to be 21 years of age—Nathan Ross was 21 on the 16th day of April, 1881, and therefore his cause of action accrued on that date, and was barred by the five-year statute of limitation on the 15th day of April, 1886.

If the rule stated in the case of Morrow v. Ross for determining when one reaches his majority were applied in cases such as the one under consideration, appellant's contention would be unanswerable, and the writer can see no logical reason why a different rule should have been established by our courts; but such is a fact, and this court must now be governed thereby.

In the cases of Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049 and authorities there cited, Texas & Pacific Ry. Co., v. Moore (Tex. Civ. App.) 43 S. W. 67, decided in 1897, in which a writ of error was denied, and Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627, it was held that, in computing time during which limitation will run against such causes of action as that of the appellee, the day on which the cause of action accrued should be excluded. Following, then, the rule last stated, it becomes our duty to overrule the first contention of appellant.

In support of appellant's contention that there was no evidence to support the judgment for appellee, he insists that before this plaintiff could recover it must be shown (1) that the employés were negligent in one or more of the particulars charged, and (2) that it must be shown that one or more of such acts of negligence were the proximate cause of the injury complained of, and that, as neither of these matters was shown by any evidence, and as there must also be evidence of a causal connection between the acts of negligence complained of, even if proven, and the killing of plaintiff's mare, before ...

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