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ingly, at the time of the escape were under the damage as small as possible." The prin-
the exclusive control and possession of the ciple applies alike to cases of contract and
appellees, and had not been received by the tort that it is the duty of a party to use or-
railway company for shipment, and must dinary care and diligence to prevent the lots
have escaped because of appellees' own neg- or minimize the damages that would other-
ligence in going off and leaving the hole in wise result from the defendant's fault or
the fence open and unguarded at the time negligence. 8 R. C. L. § 14, p. 442; 1 Suther-
they went uptown to eat supper. The evi- land on Dam. (30 Ed.) $ 90, p. 262; Warren
dence seems to class the case as one within v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117.
the ruling in Railway Co. v. Riley (Tex, App.) That rule obtains in Texas. Ry. Co. v. Ander-
1 S. W. 446. But assuming that view to be son, 85 Tex. 88, 19 S. W. 1025; Tel. Co. v.
erroneous (as it may be), and concluding that Jeanes, 88 Tex. 232, 31 S. W. 186; Brandon
it should be conclusively presumed from the v. Mfg. Co., 51 Tex. 121. The exceptions to
evidence that the hogs had been delivered to the rule are only where the act of the defend-
and received by the railway company for ant was willful (Ry. Co. y. Zantzinger, 92
shipment at a time before they escaped from Tex. 365, 48 S. W. 563, 44 L. R. A. 553, 71
the stock pen, the appellees nevertheless can- Am. St. Rep. 859), and where the repairs re-
not legally recover in the special circum- quired skill calling for more than ordinary
stances of this case for the damages sued for. effort and moderate expense (Ry. Co. v.
The appellees in this case knew, as soon as Young, 60 Tex. 201). The principle is illus-
the hogs were put in the stock pen, that there trated in the case of Zantzinger, supra, in
was a hole in the fence large enough for hogs the following quotation:
to get through, and knew that the hogs were

“So, if one throw a stone and break a winwild and would easily and quickly escape | dow, the cost of repairing a window is the or. from the pen and run away if the hole was dinary measure of damage. But if the owner not guarded or closed in some way. The suffers the window to remain without repairing hogs were to remain in the stock pen only a great length of time after notice of the fact, 1 hour and 45 minutes; that is, from 5 and his furniture, or pictures, or other valuao'clock p. m. until they were loaded on the ble articles, sustain damage, or the rain beats car at 6:45 p. m. For a part of that hour in and rots the window, this damage would be

too remote.” and 45 minutes some of the employees of appellees stayed at the stock pen and "guarded" It is evident in the record that the appelthe hole to keep the hogs from escaping; but lees failed to use reasonable efforts, as was the appellees, without need to do so, quit their duty, to prevent the loss or minimize guarding the hole in the fence and went off the damage, and that by reason of such failand left it open and unguarded, knowing full ure the loss is greater than it otherwise well that the hogs would escape and be lost would have been. Appellees were only requirto them if the hole was not guarded or closed to use the reasonable effort, and with ed. It was then that the hogs escaped plenty of assistants there to do so, of further through the hole, and the entire loss caused. guarding the hole for 30 or 45 minutes longer, No loss or injury had occurred before and or of closing the hole by nailing a plank over up to the time the appellees left the stock it. The cost of the plank and the five or six pen. It further appears that the appellees nails and the labor required to fasten it on could have prevented the loss or lessened the the posts would not have exceeded the mod. damages either by guarding the hole for 30erate cost of 50 cents. It follows that in the or 40 minutes longer or by nailing a plank special facts here the judgment should not over the hole. There were seven or eight as- have been for more than the cost of the presistants there to assist in guarding the hole, vention of the loss; but, as there was no which was a small one. The cost of a plank such cost incurred, a judgment would have and nails to put it on was negligible, not ex- to be rendered in favor of the appellant. ceeding 50 cents. Instead of putting forth It is kept in mind that contributory. neglisuch reasonable and simple efforts to prevent gence cannot be charged against the shipper escape, the appellees voluntarily left the hogs for "using” a cattle pen that is defective or to get out at the hole at will without hinder- badly kept. Ry. Co. v. Trawick, 80 Tex. 270,

15 S. W. 568, 18 S. W. 948. Neither is it [2] In these facts it is evident that the ap- undertaken in the instant case to hold appelpellees with reasonable exertion or at trifling lees guilty of contributory negligence, based expense could have avoided the loss or min- upon the act of using the stock pen, because imized the damages in evidence. Was it there was a hole in the fence. The appellees their duty to do so? “A plaintiff must," as are here denied a recovery for the damages laid down in 1 Sedgw. Dam. pp. 164, 166, sued for solely upon the ground that such "not only show that no negligence on his damages could have been avoided by timely part contributed originally to the injury, but and reasonable preventive measures by them he must also show due care in avoiding all as was their duty to exert for that purpose, (consequential) damages. It is also his duty, and therefore immediate fault of the appel


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(248 S.W.) stance of the railway company, was the real Victor C. Moore, City Atty., and Royall G. producing or proximate cause of the loss or Smith, Asst. City Atty., both of El Paso, damage suffered.

for appellants. The judgment is reversed, and judgment is S. J. Isaacks, of El Paso, for appellee. here rendered in favor of the appellant, with all costs.

Statement of Case. HIGGINS, J. This is an appeal by the city of El Paso and its assessor and collector

of taxes, W. P. B. MeSain, from a mandaCITY OF EL PASO et al. v. HOWZE. * tory order directing the city and its col(No. 1411.)

lector to accept a tender of certain taxes

made by appellee, and issue receipt therefor. (Court of Civil Appeals of Texas. El Paso. The facts out of which the litigation arose Feb. 8, 1923. Rehearing Denied

are as follows: The appellee, Howze, owned Feb. 21, 1923.)

property in the city of El Paso, and on June 1. Municipal corporations Em 972(3) - Valua. 27, 1921, rendered the same to the assessor tion for taxation is quasi judicial act requir. for taxation. The rendition reads as fol. ing exercise of judgment and discretion.

The valuation of property for taxation is a

Inventory of Property,
quasi judicial act requiring the exercise of
judgment and discretion by the assessor.

Owned by W. Y. Howze, address, 1331 Wy

oming, and rendered for assessment of taxes, 2. Municipal corporations 974(2)—Increase for the year 1921, by self to Wm. P. B. Mcin valuation without notice is invalid.

Sain, assessor and collector of the city of El An increase in the valuation placed on prop- Paso, state of Texas. erty rendered for taxation without the notice

Basis of assessment: 60% of actual or marprescribed by law is invalid.

ket value.
3. Municipal corporations 974(2)-Increase

Real Estatement and Improvements.
in valuations for taxation without notice and
hearing by city council as board of equaliza-
tion held invalid.

Lots or Description.
Where valuations placed on property ren-
dered for taxation to the assessor and collector
of taxes as required by El Paso Charter, $ 137,
and a city ordinance, were approved and ac-
cepted by him, a subsequent increase by him, E. 20' of 30 All 31-32 Frank
under an order of the city council, acting in its
legislative capacity instead of as a board of

Personal Property.
equalization, as required by sections 147-149, Carriages, buggies, wagons, automobiles, bi-
151, 152, 156, without notice and hearing as cycles, motorcycles, or other vehicles of
therein provided, was invalid, though the in whatsoever kind.
creased valuation was less than the full cash Auto License No. Make REO Year or Model
market value fixed as the basis of valuation by


200 Rev. St. arts. 7530, 7569, and the original in

.4700 ventory and assessment sheet prepared by the city disclosed on its face that the original basis This rendition was duly verified by the of valuation was only 60 per cent of that fixed oath of Howze. McSain testified that when by law.

Howze made the rendition he (McSain) as 4. Municipal corporations em972(2)--Assess- sessed the real estate at $4,500 and the aument at less than actual market value is val- tomobile at $200; that for a long time it had id when uniformly applied to all taxable prop- been the custom of the city to assess property.

erty upon the basis of 60 per cent. of its An assessment by a city on the basis of 60 actual market value, and the valuation per cent of the actual or market value of the placed by him upon the plaintiff's property property is valid, when uniformly applied to all was made upon that basis; that it was his other taxable property, and must stand until corrected by the proper reviewing authority in purpose and intention to carry the valuathe manner prescribed by law.

tions so placed upon the property of Howze into the permanent tax roll and to compute

the tax against Howze upon those valuations Appeal from District Court, El Paso Coun

and would have done so but for an order of ty; P. R. Price, Judge.

the city council made on August 14, 1921, Nandamus by W. Y, Howze to compel the “that the 1921 tax valuation be raised from City of El Paso and its Assessor and Col- 60 per cent. to 70 per cent. on the $100 valulector of Taxes to accept a tender of and ation.” This order was made about two igsue a receipt for taxes. From a manda- months before the session of the council sittory order so directing, defendants appeal. ting as a board of equalization. Acting upon

this order, the assessor, without notice to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error refused March 28, 1923.

Value of
Real Estate.

Value of Im-

Total Value

at 60%.

. se





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Grand total

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Howze, changed the valuation of plaintiff's | lists or books of the assessor of the city for its real estate to $5,250 and of the automobile to examination that it may see that each and every $230, and changed the grand total to $5,480. person has rendered his property at a fair The same proportionate change was made market value; and said board shall have power by him in the other 15,000 property rendi- to send for persons and papers, to swear and

qualify persons to testify, to ascertain the valtions in the city of El Paso for that year.

ue of such property; and if they are satisfied The permanent tax roll for the year 1921 it is too high they shall lower it to its proper was made up in accordance with the altered value, and if too low they shall raise the value valuations. In due time Howze tendered the of such property to a proper figure. Such proper amount of tax computed on the basis board shall also have power to correct any erof the original valuation, which being de- rors that may appear on the assessor's lists clined, he brought this suit to compel its or books.” acceptance and issuance of receipt. There

Section 149 provides that the board of is no pretense made that the change in valu. equalization shall equalize values and grants ation was made by the city council sitting as the right of hearing to persons complaining a board of equalization and in the manner of the assessments made of their property. prescribed in such cases,

Sections 151, 152, 156, prescribe the pro

cedure of the board and provide for notice to Opinion.

the owner when the board undertakes to inSection 137 of the Charter of the City of crease the valuation of any property apEl Paso provides that it shall be the duty pearing on the assessor's lists or books. of every person owning or holding property In his work on Taxation, Judge Cooley in the city to render under oath to the as- says: sessor and collector of taxes, or such other

"It is a fundamental rule that a judicial or officer as may be designated by ordinance, quasi judicial proceedings affecting the rights a full and complete inventory of such prop- of the citizen he shall have notice and be given erty, all of which, except exemptions, is de- an opportunity to be heard before any judgclared to be subje to taxation and shall be ment, decree, order or demand shall be given rendered and listed in the manner prescribed and established against him. Tax proceedings

are not in the strict sense judicial, but they are by the general laws of the state in regard to quasi judicial, and as they have the effect of a general taxation, unless otherwise specially judgment, the reasons which require notice of provided in the charter.

judicial proceedings are always present when The city ordinance of May 16, 1907 (sec- the conclusive steps are to be taken. Provision tion 1035, Penal Code of the City), makes it for notice is therefore part of the 'due process the duty of every such person to render to of law' which it has been customary to provide said officer, on or before the last Saturday for these summary proceedings.” Cooley on in August of each year, a full and complete

Taxation (2d Ed.) 363. iuventory of such property, describing the [1] The valuation of property for the pur. same, and state the value of each item of (pose of taxation is a quasi judicial act reproperty; such value to be determined ac- quiring the exercise of judgment and discording to the state laws relating to taxation. cretion by the assessor. 26 R. C. L. 342. Article 7530, R. S., provides that real and

[2] An increase in the valuation placed personal property shall be valued at its true upon property rendered for taxation without and full value in money.

the notice prescribed by law is invalid. Cox Article 7569, R. S., in substance provides v. Hawkins, 199 Ill. 68, 64 N. E. 1093 ; People that when the assessor is satisfied that prop-v. Feitner. 191 N. Y. 88, 83 N. E. 593 ; erty rendered to him by the owner is prop-People v. Casey, 286 III. 89, 121 N. E. 256; erly valued according to its reasonable cash People v. Vail, 296 Ill. 61, 129 N. E. 491; market value at the time, he shall list it ac- People v. Abraham, 295 Ill. 582, 129 N. E. cordingly; but if satisfied that it is too low, 511; Dykes v. Lockwood Mortgage Co., 2 he shall value it and report his valuation Kan. App. 217, 43 Pac. 268; Dykes v. Lockto the commissioners' court, which body wood Mortgage Co., 57 Kan. 416, 46 Pac. shall decide the issue if contested by the 711; Copper Queen Mining Co. v. Loard of owner.

Equalization, 7 Ariz, 364, 65 Pac. 149; MonUnder the Charter of the City of El Paso tana Ore Purchasing Co. v. Maher, 32 Mont. the mayor and aldermen constitute a board 180, 81 Pac. 13; Mt. Sterling Oil Co. of equalization, whose duty it is to convene Ratliff, 127 Ky. 1, 104 S. W. 993; Ward v. annually at the time fixed by the council Wentz, 130 Ky. 705, 113 S. W. 892; Stuart v. "to receive all the assessment lists, or books Palmer, 74 X, Y. 183, 30 Am. Rep. 289; Lonof the assessor for examination, correction, doner v. Denver, 210 U. S. 373, 28 Sup. Ct. equalization, appraisement and approval." | TOS, 52 L. Ed. 1103 ; City of Norfolk Section 147.

Young, 97 Va. 728, 34 S. E. 886, 47 L. R. A. Section 148 provides:

574; Delta Land & Timber Co. v. Stewart, "The board of equalization shall cause the as

145 La. 114, 81 South, 880. sessor to bring before it, at the time fixed for [3] The assessor and collector of the city




(248 S.W.) posed the duty of making the initial valua-, viewing authority and in the manner pretion of property rendered for taxation. The scribed by law. law has established the basis of the valua- No importance is attached to the notation tion to be "its true and full value in money" | upon the original assessment sheet reading: (article 7530, R, S.), or as it is termed in "Basis of assessment: 60 % of actual article 7509, R. S., “its reasonable cash or market value." It was surplusage. The market value."

fundamental right of the taxpayer to notice In the valuation of property the function of a proposed increase in his valid assessof the city council is limited to that of a ment and an opportunity to be heard cannot board of equalization. When exercising such be taken away by a notation of this characfunction, it has the authority not only to ter upon a form prepared by the city and equalize values but to see that all property upon which he is required to inventory and has been assessed at its fair market value. value his property. But before such board can increase the value The order of the council of August 14th of property theretofore assessed it must upon which the assessor acted in increasing give notice to the owner and afford him a the values is of no avail. It was made by hearing

the council in its legislative capacity and not In this case Howze rendered his property in the exercise of its function as a board of to the assessor and that officer approved and equalization. Furthermore, it made accepted the valuations placed thereon. without notice and afforded the taxpayer no This valuation by the assessor was a quasi opportunity to be heard. judicial act and was not subject to increase

We have found no case directly in point except by the board of equalization after pon the present state of facts; but the connotice and hearing. No notice was given, no clusion reached, in our opinion, is supported hearing was afforded, and without the consent by Hoefling v. City of San Antonio, 15 Tex. of the taxpayer the valuation was changed Civ. App. 257, 38 S. W. 1127, and wwt reand increased by the assessor, acting under fused by the Supreme Court in written opin. the order of the city council made in its leg- ion reported in 90 Tex. 511, 39 S. W. 918. islative capacity, on August 14th. We are

Affirmed. of the opinion that such increase was invalid.

Appellant does not question the correctness of the general principles of law an- CITY OF EL PASO V. TRI-STATE ASS'N

OF CREDIT MEN et al. (No. 1417.)* nounced above, but contends that inasmuch as the correct basis of valuation was the full (Court of Civil Appeals of Texas. El Paso. cash market value of the property and the Feb. 8, 1923. Rehearing Denied Feb. increased valuation is below that basis, the

21, 1923.) plaintiff cannot complain, especially in view

Appeal from District Court, El Paso County; of the fact that the original inventory and

P. R. Price, Judge. assessment upon its face disclosed that the basis of valuation was 60 per cent. of that

Proceeding by the City of El Paso, by interfixed by law. But this is not tenable, for it in vention in a receivership proceeding, against the effect amounts to the contention that a valid Tri-State Association of Credit Men, and J. B.

Watson, receiver, to establish a demand for assessment may be increased without notice, taxes, penalties, and interest due on property without observing the procedure prescribed in the hands of the receiver. From an order by law and by an agency other than the prop- allowing its claim in a sum less than that deer reviewing authority, simply because the manded, the City appeals. Affirmed. assessment valued the property below its Victor C. Moore, City Atty., and Royall G. true cash market value.

Smith, Asst. City Atty., both of El Paso, for [4] The evidence shows that for a long appellant. time it had been the custom of the city to

Goggin, Hunter & Brown, of El Paso, for ap-: assess property upon the basis of 60 per

pellees. cent. of its actual or market value and the

HIGGINS, J. This is a companion case to Falue which the assessor placed upon the

cause No. 1411, City of El Paso v. Howze, 248 plaintiff's property in the original assess- S. W. 99, this day decided. ment was estimated upon that basis. But

In the present case the city intervened in a an assessment made by the assessor upon receivership proceeding seeking to establish its that basis when uniformly applied to all demand for taxes, penalties, and interest for other taxable property is not invalid. Green the year 1921, in the sum of $235, due upon the 1. L. & I. R. R. Co., 244 U. S. 499, 37 Sup. property in the hands of the receiver. The Ct. 673, 61 L. ED. 1280, Ann. Cas. 1917E, 88; owner of the property and the city assessor had Taylor v. L. & N. R. R.' Co., 88 Fed. 305, 31 C. originally assessed the property at $9,000,

which valuation was thereafter raised by the C. A. 537; Camp Phosphate Co. v. Allen, 77 assessor to $10,500 in the manner and under Fla. 341, 81 South. 503.

the circumstances shown in the Howze Case. On the contrary, it is valid and must stand The amount of taxes sought to be recovered by ås made until corrected by the proper re- the city was computed upon this latter valua

*Writ of error refused March 28, 1923.

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tion. The court allowed the city's claim in the Appeal from District Court, Coryell Counsum of $203.38 computed upon the original val- ty; J. R. McClellan, Judge. uation. This appeal complains of the refusal to establish the city's demand in the larger sum.

Action by Chris Haverbekken against Will

Johnson and others. For the reasons stated in the Howze Case,

Judgment for defendthe court's action was correct.

ants, and plaintiff appeals. Reversed and reAffirmed.

manded for new trial.

See, also, 228 S. W. 256.

S. O. Padelford, of Fort Worth, for appelHAVERBEKKEN V. JOHNSON et al. lant. (No. 6528.)

Jas. M. Robertson, of Meridian, for appel

lees. (Court of Civil Appeals of Texas. Austin. Feb. 7, 1923.)

JENKINS, J. Appellant sued appellees 1. Trial em 352(1) --Question submitting de- , to recover damages on account of injuries fendant's alleged assault on plaintiff mislead. inflicted, if any, by an alleged illegal asing.

sault and battery. The testimony of each In an action for damages for assault and of the uppellees was to the effect that he battery against several defendants, where there struck appellant, and upon this testimony was an issue submitted whether defendants, the appellant was entitled to a judgment, unacting together with each other, made an as

less such assault was justified. sault.on plaintiff and committed a battery by

It could striking him with a stick, pick handle, and their not have been justified, except on the ground fists, unless plaintiff was insisting on a conspir- of self-defense, which issue was submitted to acy of defendants, the issue submitted should be answered by the jury only in the event not have been as to their acting together, and that they found that no assault was committhe means used should have been stated as ted; and, having found that no assault was striking with either a stick, pick handle, or committed upon appellant, they did not an. frsts.

swer the question as to self-defense. Per2. Trial em 350(3) — Issue of ownership of haps this verdict can be accounted for by the

land where difficulty arose should be sub form of the question submitted, which was as mitted.

follows: In action for damages for assault and battery, alleged as taking place on land where de

“Did the defendants, Will Johnson, I. M. Solfendants were attempting to construct a cul-berg, and J. F. Speer, acting together with vert which plaintiff, acting for his father, who each other and about the time mentioned in claimed the land, bad forbidden them to 'do, if plaintiff's petition, make an assault in and upon the evidence' raised the issue of self-defense as the person of the plaintiff, Chris Haverbekken, to defendants, the issue as to ownership of the and commit a battery upon him, by striking him land should be submitted, as plaintiff had the with a stick, pick handle, and their fists, as right, if the land was his father's, to forbid the alleged by plaintiff in his petition? Answer this construction and could use force reasonably issue Yes or No, as you find the facts to be.” necessary to prevent it, and, if the jury found

The evidence conclusively shows that the the land to belong to plaintiff's father, and tbat defendants struck in self-defense against

defendants were acting together, in that threatened attack, the issue should be submit- they each and all assaulted the appellant at ted whether they used more force than neces. the same time; each of them testified that sary.

they had no previous agreement to assault 3. Evidence am314(2)-Evidence of doctor's the appellant, and perhaps the jury may have

statement while sewing up plaintiff's wounds understood that, unless there was a conspirahearsay.

cy on the part of the defendants to assault In an action for damages for assault and the appellant, they should answer the above battery, evidence of a witness as to what the question in the negative. Also it will be obdoctor said who sewed up the wounds on plain- served that the issue submitted was, Did aptiff's head was hearsay.

pellees strike appellant with a stick, pick 4. Assault and battery 28, 39—Permitting handle, and their fists? The jury may have

evidence that defendant was road overseer understood that it was necessary to prove acting under orders at time of alleged assault that appellees assaulted appellant by the not error; mistake is defense to punitory use of all of the means named. Each of them damages.

testified that he assaulted appellant with his In an action for assault and battery, alleged fists only. as occurring on land claimed by plaintiff as

[1] Unless appellant was insisting upon a his father's and by defendants as belonging to conspiracy on the part of appellees, the isthe county, permitting testimony that defendant was a road overseer and acting under the sue submitted should not have been as to direction of the county commissioner was not their acting together, and the means used error, and, while a mistake as to the ownership should have been stated as by striking appelby defendant would not mitigate actual dam- lant with either a stick, pick handle, or ages, yet if he were acting in good faith it their fists. It would also have been proper, would be a defense as to punitory damages. if appellant had requested the same, to sub

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