reason Addison had for taking the trip from New Waverly to Conroe that night was to prevent the loss of a few dollars which might, perhaps, accrue because the doors of his storehouse would not be opened on Monday morning. It cannot be said upon the facts of this case that his choice to make that trip in the nighttime and through the storm was a necessary or usual consequence of the failure of the railroad company to take him on the train, nor can it be said that the railroad company ought to have anticipated that he would do so rash a thing, for, surely, it does not need argument to impress upon the mind of any man the conclusion that it was not the act of a reasonably prudent man who had a proper care for his own safety and comfort. The evidence is undis

It is held in I. & G. N. R. R. Co. v. Has- ing for the purpose of opening up his store. sell, 62 Tex. 256, 50 Am. Rep. 525, that, not- He testified that he went to the station at withstanding the fact that the agent of New Waverly, some 300 or 400 yards from the railroad company, through mistake, di- his residence, for the purpose of taking the rected a traveler to board a through train train to Conroe. It was a flag station, and that did not stop at a certain station, never- he gave the usual signal for the train to theless, the conductor had the right to cor- stop, which was answered, but the train failrect the mistake and require the passenger ed to stop and he was left. He immediateto alight at some intermediate station be-ly procured a team and drove through the fore reaching his destination; and, if he was country to Conroe. The weather was very put off in a proper manner, no action would cold and disagreeable, and though well wraplie in favor of the passenger therefor. See, ped, he took neuralgia on account of the exalso, for a similar holding, St. Louis S. W. posure, from which he suffered a great deal. Ry. Co. v. Wallace, 32 Tex. Civ. App. 312, 74 Chief Justice Brown, then Associate Justice, S. W. 581; St. Louis S. W. Ry. Co. v. Camp-in delivering the opinion, says: "The only bell, 30 Tex. Civ. App. 35, 69 S. W. 451; Cluck v. H. & T. C. R. R. Co., 46 Tex. Civ. App. 112, 101 S. W. 1021. But the contrary seems also to have been held in M., K. & T. Ry. Co. v. Carlisle, 145 S. W. 653; G., C. & S. F. Ry. Co. v. Mooreman, 46 S. W. 662; I. & G. N. R. R. Co. v. Kilgoe, 71 S. W. 556; G., C. & S. F. Ry. Co. v. Rather, 3 Tex. Civ. App. 72, 21 S. W. 951; and other cases cited in appellant's brief. But, without undertaking to reconcile this apparent conflict, it is only necessary to say that we can and do rest our holding upon the last proposition asserted by appellee, to wit, that appellant is not entitled to recover for the reason that he has suffered no damage for which appellee is justly liable. It appears from the evidence that he was put off in the daytime; that there was no immediate and pressing neces-puted. It is his own testimony, and it leaves sity for his arrival at Hardin prior to the time that the local train would have reached there. It is true that he states that it was his custom to reach Hardin the day be fore his appointment, so that the members of his church might be apprised of the fact that he was in town, and was expecting to fill his appointment the next day; but if he had waited for the local, which he knew would likely pass Hull that afternoon, he would have reached his destination about 7:30 o'clock that evening. At any rate, it seems to us that it was not incumbent upon him to undertake this journey on foot, through inclement weather, carrying a heavy valise that he must have known would have produced the very condition of which he In Russell v. M., K. & T. Ry. Co., 12 Tex. complains. Even if the company were guilty | Civ. App. 627, 35 S. W. 724, affirmed by the of negligence in compelling him to disem- Supreme Court, 93 Tex. 737, 35 S. W. 724, bark at Hull, which we are not prepared to concede, still it cannot be insisted with any degree of plausibility that they could have anticipated that appellant, on failing to secure a conveyance, would walk to Hardin that evening, but it was more reasonable for it to suppose that he would wait for the local train.

no ground for a difference of opinion, that he deliberately chose to undergo the discomfort and take the chance of injury to his health and his own personal safety in making a trip of that kind in the storm in order to save himself from slight pecuniary damages. The law does not permit a man under such circumstances to take the risks that Addison took, and to hold the railroad company responsible for damages which accrued by reason of his own reckless and imprudent acts" (citing Railway Company v. Thomas, 27 S. W. 419; Railway Company v. Fleming, 14 Lea [Tenn.] 128; Railway Company v. Cole, 66 Tex. 562, 1 S. W. 629; I. B. & W. Ry. Co. v. Birney, 71 Ill. 391).

footnote, among other things it is said: "When the carrier violates its duty, and breaches the contract of carriage, it becomes responsible for the proximate results of such act, but not for consequences that could and should have been avoided by the passenger. The passenger must make the best of the situation, and refrain from unnecessarily bringing about an aggravated state of consequences."

The case at bar is somewhat analogous to that of I. & G. N. R. R. Co. v. Addison, 100 Tex. 241, 97 S. W. 1037, 8 L. R. A. (N. S.) We think in the present case that the com880. In that case Addison, who lived at pany should not be held responsible for the New Waverly, was merchandising at Con- damages claimed, because they were not the

and therefore the trial court properly in- | 333; Powell v. Hill, 152 S. W. 181. The recstructed a verdict in behalf of appellee. ord may be amended to cure such defect in the manner pointed out in said case of Wells v. Driskell.

(Court of Civil Appeals of Texas. San Antonio. justice's court was copied in the record and

Appeal from Harris County Court; Clark as Land & Loan Co. v. Winter, 93 Tex. 560, C. Wren, Judge. 57 S. W. 39; Traction Co. v. McMurray, 140 S. W. 478.

JONES v. FIRST NAT. BANK OF GAINES-
VILLE.

Wilson, Dabney & King and J. W. Lewis,
all of Houston, for appellant. George L.
Teat and J. E. Melton, both of Houston, for (Court of Civil Appeals of Texas.
Oct. 18, 1913.)
appellee.

Action by the First National Bank of Columbian Exposition, 175 Ill. 472, 51 N. E. Gainesville against H. R. Jones. Judgment 651. The only other rule we know of to asfor plaintiff, and defendant appeals. Revers- sist us as to the sufficiency of evidence to ed and remanded.

Stuart, Bell & Moore, of Gainesville, for appellant. Davis & Davis, of Gainesville, for appellee.

HENDRICKS, J. The appellee, the First National Bank of Gainesville, Tex., sued appellant, H. R. Jones, in the county court of Cooke county, upon a promissory note, executed by appellant, payable to the order of the bank of Myra, a partnership, for the sum of $639.65; said note dated July 15, 1910, and maturing July 1, 1911, claiming to be the assignee and owner of same, by indorsement from the Myra bank. The appellant answered under oath, alleging payment of the note to the bank of Myra, and further that the First National Bank of Gainesville acquired said note after maturity, and the county judge peremptorily instructed the jury in favor of the appellee bank, for the full amount of the note.

warrant a reasonable belief of the existence

of a fact which is sought to be inferred, and advances the value of testimony from the scintilla to the probative stage, and increases its significance sufficiently as worthy of proof of an issue of fact, is the rule of our Supreme Court, enunciated in the Lee Case, 89 Tex. 588, 36 S. W. 63 (stated by us conversely to the statement there), that, where the evidence is of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it, it ceases to be a question of fact for the jury. Hence the question here, whether the testimony has advanced from the nebulous condition of the scintilla status to the more concrete one proving a litigated fact, and considering both rules, is determinable by the opposition of facts attempted to be sustained. The appellee says, "The note was indorsed to me before maturity," and produces abundant and strong proof to sustain it; the appellant introduces testimony tending to show that As to the propriety of the peremptory in- another was in the possession and was the struction, the appellant contends that there owner of said note a few weeks after the was sufficient evidence tending to prove the maturity of same and at a time when appelownership of this note in another, at a time lee so strongly and vigorously claims to have totally inconsistent with the claim of owner-owned the paper-two inconsistent facts, the ship of the appellee, and that such testimony in opposition tends to prove that the Gainesville bank did not acquire the note before maturity, but its acquisition was necessarily after maturity, letting in the plea of payment interposed by appellant to cancel the paper. The appellee exhibits a blank indorsement upon the note and testimony by the president, vice president, and assistant cashier, to the effect that the note was acquired before maturity with a blank indorsement upon the paper, dated July 16, 1910, one day after the execution of the note, with other testimony tending to prove its ownership during the period claimed. The principal evidence of the appellant is that one Harris, during September, 1911 (the note maturing July 1, 1911), was in possession of said note, claiming to own it, and exercising acts of ownership over the same and was attempting to trade and sell the paper as the owner, which, if true, appellee could not have acquired the note at the time claimed.

deduction from each tending to prove contrary issues, which we clearly think the jury should have decided.

[2] The appellee earnestly contends that the preponderance of the testimony, and the great weight of the same, is so strong in his favor as to require the trial court to set a verdict aside if found against him. Believing that there is some testimony more advanced than the scintilla stage, which ordinary minds might differ upon, as to the ownership of the note in September, 1911, we would rather for the trial court to pass upon that question if a jury were to decide against the appellee before we deprive the appellant of a jury trial. We have searched the authori ties for a precedent for the exercise of power inherent in this court to determine a case by making an original determination of a question of fact, where the trial court has taken the case from the jury-where the evidence is in a similar condition as in this record, assuming that it strongly preponderates in [] The Supreme Court of this state has favor of the appellee. This is different, howsaid, in the case of Washington v. M., K. & T. ever, from a case of a total lack of evidence, Ry. Co., 90 Tex. 321, 38 S. W. 766: "We of insufficient evidence, or evidence in the recognize the rule that, in order to require scintilla class, in which condition it is the an issue to be submitted to the jury, there duty of this court to render such judgment must be something more than a scintilla of as the trial court should have rendered. And evidence. There must be evidence sufficient we are unable to find such an authority, and to warrant a reasonable belief of the exis- the tendency of the holding of the Supreme tence of the fact which is sought to be infer- Court is against the position. Choate v. red." And the Supreme Court of Illinois Railway Company, 91 Tex. 406, 44 S. W. 70. says that "a mere scintilla of evidence, if The Supreme Court says that it was never it means anything, means the least particle intended to substitute the judgment of the of evidence-evidence which, without other appellate courts upon the facts of a case in

The case is reversed and remanded.

determination of these courts final. Ofrant county. After the sale of the cattle he course, where the verdict of a jury is so proceeded to appellee's saloon, where he manifestly against the strong preponderance claims he became intoxicated, and the testiand the weight of the testimony as to in- mony is undisputed that he was so drunk dicate that it was the result of an improper he had very little recollection of the amount motive, and not a determination of the case, of money which he expended in the saloon based upon the facts, we have the power to and which he lost in a game of poker in a set it aside, even if the trial court fails room over the saloon. This suit was instiin that respect; but, unless we are affirming tuted in the justice court of precinct No. 1 the judgment or verdict of a case upon ap- of Tarrant county, by appellee, to recover of peal, we have no power to make an original appellant the sum of $165, being the aggre determination of a question of fact, where gate amount of three checks drawn by apthe evidence is sufficient to put it to the jury, pellant on the First National Bank of Decaand it is only thereafter that a trial court, or tur, Tex., and delivered to appellee. Appelan appellate court, can correct what a jury lant testifies, and it is not denied, that the has improperly decided. money obtained on these three checks, in addition to $60, which appellant had when he first went to appellee's saloon and gambling den, was all lost in the Saturday night game of poker, except $10, which appellee let him have on a check, and which appellant paid to a doctor who attended him while he was recovering from the effects of the liquor and "dope" which appellant claims was administered to him in appellee's saloon, and Where defendant, a resident of W. county, which is not denied. It is not denied that was induced, while intoxicated and "doped" by plaintiff to gamble and execute the checks in at the time the checks were given appellant question for money lost in T. county in gam- fully intended that they should be paid by bling while intoxicated, his act in stopping pay- the drawee bank in Decatur, and it seems ment on the checks by telephone from T. county was not fraudulent so as to give the justice's his condition as to sobriety was such at the court in T. county jurisdiction of an action for time that he was incapable of committing a the amount of the checks, under Rev. Civ. St. fraud, if such had been his original inten 1911, art. 1830, subd. 7, providing that no per- tion. Appellant alleged his residence to be son shall be sued out of the county of his domicile, except in cases of fraud, when suit may be in precinct No. 6, Wise county, Tex., and brought in the county in which the fraud was negatived all the exceptions which under the committed, since defendant in stopping payment venue statute would have given the justice on the checks was merely attempting to pre-court of Tarrant county jurisdiction of his vent the consummation of a fraud upon himself. [Ed. Note. For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.*]

LLOYD v. ROBINSON.

Amarillo.

(Court of Civil Appeals of Texas.
Oct. 18, 1913.)
1. VENUE ( 8*) - COUNTY OF DOMICILE –
FRAUD.

2. CONTRACTS (§ 137*)-LEGALITY.

The whole consideration of a contract is void if any part thereof is illegal, and it is immaterial whether the illegality is a violation of statute or of the common law.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 701-712; Dec. Dig. § 137.*] 3. GAMING (§ 19*)-CHECKS FOR GAMBLINGSTOPPING PAYMENT.

Checks given for money to be used in gambling cannot be collected as between the drawer and payee, so that payment of such checks may be stopped by the drawer.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 39-43; Dec. Dig. § 19.*]

Appeal from Tarrant County Court; Charles T. Prewett, Judge.

Action by W. M. Robinson against Coke Lloyd. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

person. His plea was sustained by uncontroverted testimony. Appellee alleged as follows: "That defendant, after delivering said checks, has stopped payment of them, and is denying liability thereon, and thereby attempting to defraud plaintiff, to his damage in the sum of $165; that after executing and delivering said checks, the defendant, while in Ft. Worth, Tarrant county. by a telephone message sent by his authority to the First National Bank of Decatur, stopped the payment of said checks, and thereby attempted to and did commit a fraud against plaintiff in Tarrant county, Texas."

[1] These allegations are insufficient to charge such fraud as would give the justice Court of precinct No. 1 of Tarrant county jurisdiction of the person of appellant, under subdivision 7, art. 1830, R. S. 1911. The pleadings and evidence in this case disclose that a fraud had been perpetrated upon appellant, in that he had been induced, while intoxicated, to engage in an unlawful game with cards; that the money obtained upon the checks has been lost in such game, but HALL, J. In the month of August, 1911, that he had no intention to stop payment of appellant, Lloyd, shipped cattle from his the checks at the time they were executed. home in Wise county to Ft. Worth in Tar- | Subsequently, when informed by a friend

A. J. Clendenen, of Ft. Worth, for appellant. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.

that he had been robbed, he procured his friend to phone the bank to refuse payment of them. This was not a fraudulent act on his part, but was an attempt to prevent the consummation of a fraud which he alleged had theretofore been perpetrated upon him. [2] The rule in this state is, if any part of the consideration for a contract is illegal, the whole consideration is void, and public policy will not permit the enforcement of such a contract as between the parties, it matters not whether the consideration is illegal because it consists in some act prohibited by a statute, or because it violates some rule of the common law. Seeligson v. Lewis & Williams, 65 Tex. 215, 57 Am. Rep. 593.

[3] A note given for money to be used in gambling cannot be collected as between the maker and payee if such defense is interposed, and the checks in question stand upon the same footing. It is no more fraudulent to stop the payment of such checks than it is to plead and prove the illegality of the contract in a suit upon the note.

The county court erred in overruling the plea of privilege, and the judgment is reversed and the cause remanded, with instructions to the county court of Tarrant county to enter an order sustaining the plea of privilege, change the venue of the suit, and transfer the case to the justice court of precinct No. 6 of Wise county, Tex.

Reversed and remanded, with instructions.

TEXAS CO. v. DAUGHERTY et al. (Court of Civil Appeals of Texas. Ft. Worth. July 5, 1913. Rehearing Denied Nov. 1, 1913. Additional Conclusions, Nov. 29, 1913.) 1. TAXATION (§ 63*)-PROPERTY SUBJECT-INCORPOREAL RIGHTS.

Under Const. art. 8, § 1, providing that all property shall be taxed in proportion to its value, and Rev. Civ. St. 1911, art. 7503, providing that all property, real, personal, or mixed, except such as may be exempted, is subject to taxation, article 7504, providing that real property, for the purpose of taxation, includes the land and all the buildings, structures, and improvements or other fixtures thereon, and all rights and privileges belonging or in any wise appertaining thereto, and article 7509, providing that every resident shall list all of his real estate, moneys, credits, etc., and all other property for taxation, the rights of the lessee under oil and gas leases, though subject to forfeiture under certain conditions, and though wells have not been drilled, are subject to assessment for taxation against the lessee, separate from the assessment against the owner of the land; such interests constituting rights and privileges belonging or appertaining to the lands within article 7504.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 147; Dec. Dig. § 63.*]

2. TAXATION (8 47*)-PROPERTY SUBJECT DOUBLE TAXATION.

Where, in assessing land to the owners for purposes of taxation, the value of the rights held by an oil and gas lessee was not included,

the assessment of such rights to the lessee
would not result in double taxation.
Cent. Dig. 88 104-114; Dec. Dig. § 47.*]
[Ed. Note.-For other cases, see Taxation,
3. TAXATION (§ 611*)-ENJOINING COLLEC-
TION-PARTIES.
The collection of county taxes could not be
enjoined in a suit against the tax assessor, tax
collector, county judge, and county commission-
ers, to which the county itself was not a party.
[Ed. Note. For other cases, see Taxation,
Cent. Dig. 88 1242, 1245-1257; Dec. Dig.
611.*]

Conner, C. J., dissenting in part.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by the Texas Company against W. H. Daugherty and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Mathis & Kay, of Wichita Falls, and R. A. John, of Houston, for appellant. Montgomery & Britain, of Wichita Falls, and B. F. Looney and G. B. Smedley, both of Austin, for appellees.

DUNKLIN, J. The Texas Company, a corporation, with its principal office in Houston, Harris county, owned what are termed oil and gas leases upon certain lands situated in Wichita county. The company instituted this suit to enjoin the tax collector, tax assessor, and the county commissioners of Wichita county from enforcing the collection of county and state taxes which had been assessed against the company upon those leases. The merits of the case were determined by the trial court upon an agreed statement of facts which is hereinafter shown, and, from a judgment denying plaintiff the relief sought, it has appealed.

The agreement of the parties referred to is as follows:

"We, the undersigned attorneys for the plaintiff and the defendants in the aboveentitled cause, for the purpose of expediting the trial of the said cause, hereby make and enter into the following agreement, to wit:

"(1) It is hereby agreed: That on January 1, 1912, and at all times thereafter until this date, the plaintiff was the owner of whatever rights, titles, and privileges were granted to or conferred upon it by certain instruments in writing and commonly known as oil and gas leases, all of which instruments had been duly executed by the several owners of the several tracts of land situated in Wichita county, Texas, and described in the plaintiff's petition, and that the several instruments conferring said rights were all in the form as shown by Exhibit A attached to the plaintiff's petition; the blanks in said form being properly filled in each of said instruments so as to show the date, the name of the grantor and grantee, the consideration paid (which was a valuable one), the correct description of the land, and each of them providing for the payment to grantor

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes