Tex. & Pac. Ry. Co. v. Bayliss

• Decision Date: 05 December 1884
• Docket Number: Case No. 1750.
• Citation: 62 Tex. 570
• Court: Texas Supreme Court
• Parties: THE TEXAS & PACIFIC RAILWAY CO. v. LIGE BAYLISS.

62 Tex. 570

THE TEXAS & PACIFIC RAILWAY CO.

v.LIGE BAYLISS.

Case No. 1750.

Supreme Court of Texas.

Dec. 5, 1884.

APPEAL from Marion. Tried below before the Hon. B. F. Estes.

Bayliss sued the Texas & Pacific Railway Company for the value of three hundred and thirty bushels of corn alleged to have been destroyed by the negligence of appellant in failing to keep a sufficient cattle-guard where its road entered his field. The petition of Bayliss alleged that he had rented from one Farrell twenty-two acres of land; that appellant's road was operated over the land, which was inclosed by a lawful fence; that he had corn planted therein; that in the months of May, June, July and August the corn was up and in fine condition; that during these months appellant permitted the cattle-guards at the points of entrance to and exit from the field to become worthless and insufficient to prevent the depredations of cattle and hogs; that stock entered upon the corn growing on the field and totally destroyed the entire crop; that the twenty-two acres would have made an average of fifteen bushels of corn to the acre, and the same was reasonably worth the sum of seventy-five cents per bushel.

Defendants pleaded a general demurrer, which was overruled, and a verdict in favor of the appellee for $200 was rendered.

James Turner, for appellant, on non-joinder of parties, cited: May v. Slade, 24 Tex., 205;Hill v. Gibbs, 5 Hill, 59; 35 Pa. St., 332; 12 Pick. (Mass.), 124; 3 John. Ch. (N. Y.), 216; 11 Mo., 107 Freeman on Co-tenancy, 331, 347. On measure of damages: Sabine & East Texas R'y Co. v. Joachimi, 58 Tex., 456.C. A. Culberson, for appellee, cited: Hardeman v. State, 3 Tex. Law Rev., 263; Sowers v. Peterson, 59 Tex., 216;Contreras v. Haynes, 61 Tex., 103, and other authorities.

WILLIE, CHIEF JUSTICE.

Only two of the points involved in the numerous assignments of error filed in this cause demand our attention, viz.:

1. Does the petition claim the proper and legal measure of damages to which the plaintiff is entitled under its allegations? 2. Was the suit properly brought by the appellant alone, or should his landlord, Farrell, have been joined as co-plaintiff?

It is now firmly settled by the decisions of this court that the proper measure of damages in a case like the present, when the crop has been entirely destroyed, is the value of the crop at the time of its destruction. This is conceded by both parties. S. & E. T. R'y Co. v. Joachimi, 58 Tex., 456; T. & St. L. R'y Co. v. Young, 60 Id., 201.

The allegations of the petition pertinent to this question are that the corn was up and in fine condition in the months of May, June, July and August, 1882; that, during these months, the crop was destroyed; that it would have made, on an average, fifteen bushels of corn to the acre, and the same was worth seventy-five cents per bushel; and that the damage resulting from defendant's neglect was $247.50.

The appellee says that, taking the expression “would have made fifteen bushels of corn per acre” in connection with the previous allegation as to the time when the crop was growing and destroyed, viz., in May, June, July and August, it should be construed to mean that there was an average of fifteen bushels of corn growing in the appellee's field at that time.

In aid of this construction he calls in the subsequent statement that the corn was worth seventy-five cents per bushel, and says that this shows that the idea intended to be conveyed was that the crop was worth the sum claimed during the months mentioned.

The appellant, on the other hand, contends that the natural and proper construction of the language shows that the claim is for what the crop would have produced at maturity, which has been frequently held not to be a proper measure of damages in such a case. To arrive at the meaning of the language of the petition we must give to the words employed their ordinary and usual signification when applied to the subject-matter in connection with which they are used.

It is to be presumed that the pleader intended to use them in this sense, and supposed that his adversary would construe them in the same manner.

The pleader is required to inform the opposite party of the nature and extent of his demand or defense, so that it may be known what evidence should be produced to meet and combat it.

This rule will not admit of any strained or forced construction, which, by warping language from its usual meaning, and deducing one fact from the existence of another, and resorting to argument and inference, may give to the pleading an interpretation which ordinarily it would not receive. Thompson v. Munger, 15 Tex., 523;Malone v. Craig, 22 Tex., 609;Yale v. Ward, 30 Tex., 17.

The adverse party is not expected to place every construction upon the language used that it will possibly admit of, when taken in every relation it bears to other portions of the pleading, and to prepare his proof to meet all the different aspects of the case thus presented.

He must give to the language its ordinary construction, and none other will be presumed to come within its reasonable intendment even upon general demurrer. See rule XVII, 47 Tex., 619.

What is the ordinary meaning attached to the expression that “a field would have made upon an average fifteen bushels of corn to the acre?” Would any planter or other person hearing the expression used place any construction upon it other than that it...