*1 attempts mentioned then power Act to confer the on such court to fix adjudged rates for title insurance after the court illegal. rates fixed Constitution, the Board our Under government powers of depart- are divided into three distinct executive, legislative, Furthermore, ments: judicial. expressly, wisely, is provided depart- that no one of these any power ments shall properly exercise attached to either of others, except expressly permitted by the instances Constitution; II, Constitution itself. Section Article Texas Engineers McKnight, Board of Water W., 301. think it is settled State that authorities rate-making, applied this, term is in cases such as is a legislative power, delegated which can be or to a board com
mission, proper safeguards; appertain under but does judicial department government. of our A court legislative review the proper authority, rates fixed may, case, proper adjudge in a unjust illegal; such rates power of the court ends. cannot substitute its rates permit those the Board. To a court do that legislative prerogative. would to confer on it a 9 Tex. p. and authorities there cited. From what we have said it is evident that we hold part of the attempts Act under consideration which to confer rate-making power County on the District Court of Travis II, contravention of Article Section of our State Con opinion, however, stitution. We are of the does not render part the balance of the Act void. ignored, Act which is invalid can be eliminated or balance allowed to stand. reversed,
and that of the district court affirmed.
Opinion April 8, delivered 1936. Railway Company The Texas & Pacific v. E. F. Mercer. February 19, No. 6513. Decided Motion to payment issue April mandate without of costs overruled (90 W., Series, 557; Series, 376.) 2d 2d *2 Dillard, Maxey-Freeman Dallas, Gresham, Head, T. D. Sherman, in error. Wolf, plaintiff F. J. company railway given to the defendant notice engineer. given person claimed to be who to an unnamed party proof
There is an entire absence agent railway company, agent, or if the that he had authority. principle To bind one’s prove must person receiving agent the notice was the such imputed notice principle. Jolly, v. Buzzard 6 S. W., 422; Sullivan, W., 541; Lane Smyth Conner, v. 286 S. v. W., damage could not claim as his measure price produce that his brought would have at retail market vating specified, at the growing, time unless cost of culti- marketing produce said was taken into consider- ation. Pape, International & G. N. Co. v. Rutland, W., 445; v. Ara Texas Co.
Lacour, Webb, Sherman, Webb & for defendant in error. *3 finding was error for the court sustain the there blocking was no highway crossing evidence that the of the was proximate breaking cause of the of the milk bottles. Miss- ouri, K. & T. Raney, 589; v.Co. Eames v. Texas Ry. Co., & N. O. Defendant was entitled to recover for the loss of City will. of Royal, San Antonio v. L., pages, J.,
R. C. page, 17 C. Judge opinion HICKMAN delivered the Mr. of the Com- Appeals, mission of A. Section Railway Company application and Mercer each filed
for a writ granted, of error and each was from which it party plaintiff results that in this court each both in error and defendant in error. For convenience we shall designate plaintiff Railway Mercer Company and the de- fendant. glean facts from full made statement
by the Appeals: Honorable of
Plaintiff is the owner of a tract of land 5 or 6 miles located City Sherman, operated northeast of the of on he had a which dairy many years origin and prior truck farm for of upon cause of action dairy products which suit marketed his is based. He vegetables Sherman,
and could be which by reached him in few of in a a minutes his mode travel public leading point truck. The road from farm to a near his graveled highway. Sherman was a smooth Defendant’s track highway crossed near it and farm and between grade purpose lowering Sherman. on which this For the August 12, 1929, defendant, track was laid the com- about permission highway Com- pletely without blocked unlawfully main- erected and was missioners Court. The blockade blocking highway plaintiff As result of tained. a transporting prevented products from Sherman was graveled highway. only any portion market over reaching him in route that be used other feasible could high- from the distance market was way, dirt road some a narrow weather, dry even and route that could be used a rough way which exceedingly an unsuited over then it vegetables. greater portion transport For the milk blocked, covering graveled highway a time months, impassable fre- the dirt road from of about four prod- quent plaintiff of his rains make no deliveries could he attempted road ucts. he use this dirt would When making frequently, because late in his deliveries and rough churning milk, consequent it would road and the loss. become sour and was an entire grocery inquiry
At the time under merchants a number plaintiff regularly purchased used Sherman milk customers, num- supply them to their were also required persons regularly ber milk to whom he delivered the consumption. appear their home does regular vegetables, had highway for his but before customers dispose them in
was blocked was able Sherman. rough attempting to travel dirt road over large damaged bottles. number of milk truck and broke a high- *4 blocking
As further the unauthorized result of way consequent inability to deliver his and the of condition, supplies good as a regularly business and in his having destroyed, turn- dairyman practically customers his was and, supplies milk, the dairyman after ed for to other their cleared, highway these customers he unable to secure was veg- again. his to market As further result he was unable a they and became a loss. etables by plaintiff present for suit was instituted blocking of the unauthorized sustained him on account of issues, jury that highway. special found to In answer in the proximate result thereof as sustained tomato (1) the loss his for amounts: $400.00 cantaloupe crop; (3) crop; his (2) $20.00 for the loss of $75.00 roasting crop; (4) for the loss of ear $25.00 for the loss of his products; cabbage of his milk crop; (5) for the loss $125.00 broken; (7) (6) $200.00 milk bottles the value as $25.00
-as truck; (8) $4,130.00 to his as “to his good will dairy in the business.” These several items total $5000.00, judgment and rendered in favor the trial court for Appeals that The Court of amount. Civil affirmed judgment as to the found in Items to inclu- sive, totaling $645.00, but disallowed the other items. Accord- ingly, of the trial court was reformed to the ex- reducing tent of $645.00, the amount thereof from $5000.00 and, reformed, affirmed. apparent that properly all the claimed are special damages, denominated as for which the defendant would not be likely liable unless it had they notice would flow wrongful from its Appeals act. The Court of Civil found that finding supported by had such notice and its the record. damage
The various items of awarded the trial court were First, Appeals combined groups: Court into three 5, inclusive, aggregating Items 1 to $645.00, for loss of during being business period blockade, those approved by second, items Appeals; Items n aggregating $225.00, the value milk bottles damage truck; third, broken and $4,130.00, Item damage dairy will of Each of business. groups these calls for principles different from the others sepa- and we shall therefore consider them rately. properly is our view that Items and 7 cannot grouped, question but that will later. be considered approve of Civil plaintiff’s damages being measure of for and, cut off from his account, being market for a of four months on that selling deprived vegetables during products his milk period, price that brought products is the retail which these would have represents Sherman. That amount his actual loss vegetables on that account. The had the milk matured and products produced, and, uncertainty had been because of compelled to the time highway, when he could use the he was during expense period. maintain his overhead He was conducting business, compelled an established which he was suspend months, four about and is entitled to recover profits during period. which he would have As earned p. profits stated in 13 Tex. of an established “loss *5 recovery frequently business has been held to be an item for where the an evidence loss resulted from shows public giving premises, obstruction of street access to plaintiff’s place of busi- obstruction an entrance to the
225 supported by ness.” statement from the text is well This among following: State, may decisions in this which be cited the Co., Texas, 219, W., v. T. Powell Houston & C. R. 104 135 S. 615; Ewing (N. S.), Foley, Inc., 46 L. R. A. v. L. Wm. Texas, 222, W., 499, 627; R., L. 115 280 44 A. Hart Bros. v. S. 1111; County, (Com. Dallas App.), 279 W. American Const. S. Davis, W., 1019; Caswell, v. 141 Co. American Co. v. S. Const. 1013; W., Lackey, 141 S. Houston etc. R. R. Co. v. 12 Texas W., App., Civ. 33 768. S. awarding
We next consider the action of trial court recovery plaintiff’s to truck. These re plaintiff’s undertaking during sulted from reach Sherman rough, blockade over a narrow dirt road. they represent tear, distinguished so far as wear and accident, from an which not been foreseen could have by defendant, mitigation. they expenses should be classified as mitigate duty ordinary owed the to use care to his damages, recover, is entitled to amount expended reasonably Ry. in his effort & P. so do. Texas Bro., Texas, 674, 99-101, pp. Co. v. Levi & 59 13 Tex. Sec. 27, and expenses authorities cited. The incurred mitigate damages aggravate, effort to are not to but to lessen wrongdoer might the amount for which If be held liable. successful, the effort reaps is thereof. defendant the benefit otherwise, If it just turns out that he should sustain Gulf, Keith, Texas, the 287, Ry. loss. & Colorado Fe Co. v. 74 Santa W., Chambliss, Louis R. Co. v. St. Southwestern Contracts, 401. Williston on Vol. Sec. Damages breaking suffered from milk bottles cannot be expenses classified as to miti- incurred a reasonable effort gate. substance, testified, after himself rough learned how drive his truck on road no he broke differently, testimony bottles. Stated is to the effect driving breaking inexperience of the bottles due rough over that such roads. It must be held as a matter law proximately act caused defendant’s obstructing highway. They remote. Seale Gulf are too Ry. Co., Rep., C. & F. Am. Texas Bigham, P. Co. v. question will
We turn now to the may property. be sold will business. Good damaged. principle and it making of law also is no There property with other distinction between *6 226
respect right damages to the owner of the thereof to recover damages for its destruction. That such are recoverable is not open question Ewing jurisdiction. an In the case of Foley, Texas, R„ 627, L. A. Wm. 115 44 L. right upheld this Court the bus owner of established injury iness to recover for will of his proximately negligent business caused act of another. case, this, injury temporary In that interruption as in resulted upon A like decision similar facts business. Co., made in & T. C. 104 Powell v. Houston W., 1153, (N. S.), 46 R. L. A. submitting calling findings of this issues for kept nature should be recoverable mind intangible, injuries will, though property. are for Good integral physical part of the business same are appropriate sub- Upon assets. another trial should be issues findings value, any, calling if mitted as to the decreases measuring plaintiff’s dairy such The rule for business. measuring any other is the same that for property. charge “proximate in the
The court’s definition of cause” jury employed phrase independent cause.” “new and Timely proper objection to the definition because was made independent of its phrase “new cause.” failure to define legal requiring Mueller is a Robertson & one definition. (Com. App.), (2d) v. Thaman v. Holden Greer S. W. Goulette, (Com. App.), (2d) Thomas v. S. W. S. W. Appeals failure to (2d) 829. The held Court Civil error, that, case, harm the error was define was in this less, recovery five items on the first because was allowed damage, wrongful appellant was act of as to which items the considering proximate a matter of law. Without cause as that, question, apparent our it is under elements, it jury proper cannot are other found wrongful them, that, act was defendant’s be said as to proximate matter of cause as a law. there was Appeals properly held that
The Court of Civil in the certain evidence discussed error admission of harm- error was opinion. whether that need not consider less, and the evidence will must be retried because the case upon next trial. admitted the dis- judgments Court the cause remanded. both reversed trict court are February 19, Supreme Opinion adopted ON MOTION TO ISSUE MANDATE WITHOUT PAYMENT OF COSTS. opinion
Mr. CRITZ delivered the of the court. Judge appears from the record this case that the Texas Railway Company Pacific and E. F. Mercer both dis- *7 satisfied with the of the Court of in cause, application this and each filed an of error writ granted. applications this Court. Both appears duly further F. that E. Mercer filed a writ bond, error which bond condition: contained “NOW, THEREFORE, Mercer, error, we E. F. in principal, Jamison, sureties, as acknowledge and A. S. Noble and A. E. pay Railway ourselves to Texas & Pacific defendants, Company error, Company, and Gifford-Hill & in DOLLARS, sum of TWO HUNDRED conditioned Mercer, Error, said E. prosecute F. Plaintiff writ shall effect, pay error with all of the costs which have accrued Appeals, Court, the District and which Supreme accrued in the Court.” appears 14, 1936, judg-
It further that on March after final Court, appli- ment this E. F. Mercer filed this Court his cation payment for the issuance of without mandate application affidavit, accompanied costs. This Mercer’s inability under Article R. C. S. of of his pay give 8, 1936, security April costs or therefor. On granting Court entered its order Mercer said for the payment issuance mandate without costs. At time such had order was entered the fact that the above bond been filed Mercer was not our attention. has called to Such since been done. already appears Under the above record it Mercer has
given security for He there all costs courts. case right 1774, supra. fore Atchison, no to make affidavit under Article Saxon, (2d) (Com. T. & F. Co. W. App. opinion approved). adjudged It is that the order of entered this Court heretofore April granting Mercer’s motion for of man- issuance payment be, is, date without the same rescinded costs set aside. is further ordered that the motion for issuance be, is, payment mandate without here of costs and the same things and now in all overruled.
Opinion April 15, delivered