"So, if one throw a stone and break a window, the cost of repairing a window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be ingly, at the time of the escape were under the damage as small as possible." The printhe 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 orrailway 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 otherligence 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 Sutherthey went uptown to eat supper. The evi- land on Dam. (3d 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. Ander1 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 defendand received by the railway company for ant was willful (Ry. Co. v. 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 renot 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 illusthe 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 wild and would easily and quickly escape from the pen and run away if the hole was not guarded or closed in some way. The hogs were to remain in the stock pen only 1 hour and 45 minutes; that is, from 5 o'clock p. m. until they were loaded on the car at 6:45 p. m. For a part of that hour and 45 minutes some of the employees of appellees stayed at the stock pen and "guarded" the hole to keep the hogs from escaping; but the appellees, without need to do so, quit guarding the hole in the fence and went off and left it open and unguarded, knowing full well that the hogs would escape and be lost to them if the hole was not guarded or closed to use the reasonable effort, and with ed. It was then that the hogs escaped through the hole, and the entire loss caused. No loss or injury had occurred before and up to the time the appellees left the stock pen. It further appears that the appellees could have prevented the loss or lessened the damages either by guarding the hole for 30 or 40 minutes longer or by nailing a plank over the hole. There were seven or eight assistants there to assist in guarding the hole, which was a small one. The cost of a plank and nails to put it on was negligible, not exceeding 50 cents. Instead of putting forth such reasonable and simple efforts to prevent escape, the appellees voluntarily left the hogs to get out at the hole at will without hinder ance. too remote." It is evident in the record that the appellees failed to use reasonable efforts, as was their duty, to prevent the loss or minimize the damage, and that by reason of such failure the loss is greater than it otherwise would have been. Appellees were only requir plenty of assistants there to do so, of further guarding the hole for 30 or 45 minutes longer, or of closing the hole by nailing a plank over it. The cost of the plank and the five or six nails and the labor required to fasten it on the posts would not have exceeded the mod. erate cost of 50 cents. It follows that in the special facts here the judgment should not have been for more than the cost of the prevention of the loss; but, as there was no such cost incurred, a judgment would have to be rendered in favor of the appellant. It is kept in mind that contributory negligence cannot be charged against the shipper for "using" a cattle pen that is defective or 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 appelit is said, to take reasonable steps to make | lees, and not the remote fault in the first in (248 S.W.) stance of the railway company, was the realproducing or proximate cause of the loss or damage suffered. The judgment is reversed, and judgment is here rendered in favor of the appellant, with all costs. CITY OF EL PASO et al. v. HOWZE.* (No. 1411.) (Court of Civil Appeals of Texas. El Paso. 1. Municipal corporations 972 (3) - Valua- The valuation of property for taxation is a quasi judicial act requiring the exercise of judgment and discretion by the assessor. 2. Municipal corporations 974(2)—Increase in valuation without notice is invalid. An increase in the valuation placed on property rendered for taxation without the notice prescribed by law is invalid. 3. Municipal corporations 974(2)—Increase in valuations for taxation without notice and hearing by city council as board of equalization held invalid. Victor C. Moore, City Atty., and Royall G. Smith, Asst. City Atty., both of El Paso, for appellants. S. J. Isaacks, of El Paso, for appellee. 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. McSain, from a mandatory order directing the city and its collector to accept a tender of certain taxes made by appellee, and issue receipt therefor. The facts out of which the litigation arose are as follows: The appellee, Howze, owned property in the city of El Paso, and on June 27, 1921, rendered the same to the assessor for taxation. The rendition reads as fol lows: Inventory of Property, Owned by W. Y. Howze, address, 1331 Wyoming, and rendered for assessment of taxes, for the year 1921, by self to Wm. P. B. McSain, assessor and collector of the city of El Paso, state of Texas. Basis of assessment: 60% of actual or market value. Real Estatement and Improvements. Lots or Description. Personal Property. Carriages, buggies, wagons, automobiles, bi- Where valuations placed on property rendered for taxation to the assessor and collector of taxes as required by El Paso Charter, § 137, and a city ordinance, were approved and accepted by him, a subsequent increase by him, E. 20' of 30 All 31-32 under an order of the city council, acting in its legislative capacity instead of as a board of equalization, as required by sections 147-149, 151, 152, 156, without notice and hearing as therein provided, was invalid, though the increased valuation was less than the full cash market value fixed as the basis of valuation by Rev. St. arts. 7530, 7569, and the original inventory and assessment sheet prepared by the city disclosed on its face that the original basis of valuation was only 60 per cent. of that fixed by law. Auto License No. Make REO Year or Model 1913 Grand total 4500 200 .4700 This rendition was duly verified by the oath of Howze. McSain testified that when Howze made the rendition he (McSain) as 4. Municipal corporations 972(2)-Assess-sessed the real estate at $4,500 and the aument at less than actual market value is valid when uniformly applied to all taxable property. An assessment by a city on the basis of 60 per cent. of the actual or market value of the property is valid, when uniformly applied to all other taxable property, and must stand until corrected by the proper reviewing authority in the manner prescribed by law. tomobile at $200; that for a long time it had been the custom of the city to assess property upon the basis of 60 per cent. of its actual market value, and the valuation placed by him upon the plaintiff's property was made upon that basis; that it was his purpose and intention to carry the valuations so placed upon the property of Howze into the permanent tax roll and to compute Appeal from District Court, El Paso Coun- the tax against Howze upon those valuations ty; P. R. Price, Judge. Mandamus by W. Y. Howze to compel the City of El Paso and its Assessor and Collector of Taxes to accept a tender of and issue a receipt for taxes. From a mandatory order so directing, defendants appeal. Affirmed. and would have done so but for an order of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Howze, changed the valuation of plaintiff's real estate to $5,250 and of the automobile to $230, and changed the grand total to $5,480. The same proportionate change was made by him in the other 15,000 property renditions in the city of El Paso for that year. The permanent tax roll for the year 1921 was made up in accordance with the altered valuations. In due time Howze tendered the proper amount of tax computed on the basis of the original valuation, which being declined, he brought this suit to compel its acceptance and issuance of receipt. There is no pretense made that the change in valuation was made by the city council sitting as a board of equalization and in the manner prescribed in such cases. Opinion. Section 137 of the Charter of the City of El Paso provides that it shall be the duty of every person owning or holding property in the city to render under oath to the assessor and collector of taxes, or such other officer as may be designated by ordinance, a full and complete inventory of such property, all of which, except exemptions, is declared to be subject to taxation and shall be rendered and listed in the manner prescribed by the general laws of the state in regard to general taxation, unless otherwise specially provided in the charter. lists or books of the assessor of the city for its examination that it may see that each and every person has rendered his property at a fair market value; and said board shall have power to send for persons and papers, to swear and qualify persons to testify, to ascertain the value of such property; and if they are satisfied it is too high they shall lower it to its proper value, and if too low they shall raise the value of such property to a proper figure. Such board shall also have power to correct any errors that may appear on the assessor's lists or books." Section 149 provides that the board of equalization shall equalize values and grants the right of hearing to persons complaining of the assessments made of their property. Sections 151, 152, 156, prescribe the procedure of the board and provide for notice to the owner when the board undertakes to increase the valuation of any property appearing on the assessor's lists or books. In his work on Taxation, Judge Cooley says: "It is a fundamental rule that a judicial or quasi judicial proceedings affecting the rights of the citizen he shall have notice and be given an opportunity to be heard before any judgment, decree, order or demand shall be given and established against him. Tax proceedings are not in the strict sense judicial, but they are quasi judicial, and as they have the effect of a judgment, the reasons which require notice of judicial proceedings are always present when the conclusive steps are to be taken. Provision for notice is therefore part of the 'due process of law' which it has been customary to provide for these summary proceedings." Cooley on Taxation (2d Ed.) 363. The city ordinance of May 16, 1907 (section 1035, Penal Code of the City), makes it the duty of every such person to render to said officer, on or before the last Saturday in August of each year, a full and complete inventory of such property, describing the [1] The valuation of property for the pursame, and state the value of each item of pose of taxation is a quasi judicial act reproperty; such value to be determined acquiring the exercise of judgment and discording to the state laws relating to taxation. Article 7530, R. S., provides that real and personal property shall be valued at its true and full value in money. Article 7569, R. S., in substance provides that when the assessor is satisfied that property rendered to him by the owner is properly valued according to its reasonable cash market value at the time, he shall list it accordingly; but if satisfied that it is too low, he shall value it and report his valuation to the commissioners' court, which body shall decide the issue if contested by the owner. Under the Charter of the City of El Paso the mayor and aldermen constitute a board of equalization, whose duty it is to convene annually at the time fixed by the council "to receive all the assessment lists, or books of the assessor for examination, correction, equalization, appraisement and approval." Section 147. Section 148 provides: "The board of equalization shall cause the assessor to bring before it, at the time fixed for the convening of said board, all the assessment cretion by the assessor. 26 R. C. L. 342. [2] An increase in the valuation placed upon property rendered for taxation without the notice prescribed by law is invalid. Cox v. Hawkins, 199 Ill. 68, 64 N. E. 1093; People v. Feitner, 191 N. Y. 88, 83 N. E. 593; People v. Casey, 286 III. 89, 121 N. E. 256; People v. Vail, 296 Ill. 61, 129 N. E. 494; People v. Abraham, 295 Ill. 582, 129 N. E. 511; Dykes v. Lockwood Mortgage Co., 2 Kan. App. 217, 43 Pac. 268; Dykes v. Lockwood Mortgage Co., 57 Kan. 416, 46 Pac. 711; Copper Queen Mining Co. v. Board of Equalization, 7 Ariz. 364, 65 Pac. 149; Montana Ore Purchasing Co. v. Maher, 32 Mont. 480, 81 Pac. 13; Mt. Sterling Oil Co. V. Ratliff, 127 Ky. 1, 104 S. W. 993; Ward v. Wentz, 130 Ky. 705, 113 S. W. 892; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Londoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103; City of Norfolk v. Young, 97 Va. 728, 34 S. E. 886, 47 L. R. A. 574; Delta Land & Timber Co. v. Stewart, 145 La. 144, 81 South, 880. [3] The assessor and collector of the city of El Paso is the officer upon whom is im (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 valuation to be "its true and full value in money" (article 7530, R. S.), or as it is termed in article 7569, R. S., "its reasonable cash market value." In the valuation of property the function of the city council is limited to that of a board of equalization. When exercising such function, it has the authority not only to equalize values but to see that all property has been assessed at its fair market value. But before such board can increase the value of property theretofore assessed it must give notice to the owner and afford him a hearing. In this case Howze rendered his property to the assessor and that officer approved and accepted the valuations placed thereon. This valuation by the assessor was a quasi judicial act and was not subject to increase except by the board of equalization after notice and hearing. No notice was given, no hearing was afforded, and without the consent of the taxpayer the valuation was changed and increased by the assessor, acting under the order of the city council made in its legislative capacity, on August 14th. We are of the opinion that such increase was invalid. Appellant does not question the correctness of the general principles of law announced above, but contends that inasmuch as the correct basis of valuation was the full cash market value of the property and the increased valuation is below that basis, the plaintiff cannot complain, especially in view of the fact that the original inventory and assessment upon its face disclosed that the basis of valuation was 60 per cent. of that fixed by law. But this is not tenable, for it in effect amounts to the contention that a valid assessment may be increased without notice, without observing the procedure prescribed by law and by an agency other than the proper reviewing authority, simply because the assessment valued the property below its true cash market value. [4] The evidence shows that for a long time it had been the custom of the city to assess property upon the basis of 60 per cent. of its actual or market value and the value which the assessor placed upon the plaintiff's property in the original assessment was estimated upon that basis. But an assessment made by the assessor upon that basis when uniformly applied to all other taxable property is not invalid. Green v. L. & I. R. R. Co., 244 U. S. 499, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Taylor v. L. & N. R. R. Co., 88 Fed. 305, 31 C. C. A. 537; Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 South. 503. On the contrary, it is valid and must stand as made until corrected by the proper re No importance is attached to the notation upon the original assessment sheet reading: "Basis of assessment: 60 % of actual or market value." It was surplusage. The fundamental right of the taxpayer to notice of a proposed increase in his valid assessment and an opportunity to be heard cannot be taken away by a notation of this character upon a form prepared by the city and upon which he is required to inventory and value his property. The order of the council of August 14th upon which the assessor acted in increasing the values is of no avail. It was made by the council in its legislative capacity and not in the exercise of its function as a board of equalization. Furthermore, it was made without notice and afforded the taxpayer no opportunity to be heard. We have found no case directly in point upon the present state of facts; but the conclusion reached, in our opinion, is supported by Hoefling v. City of San Antonio, 15 Tex. Civ. App. 257, 38 S. W. 1127, and wait refused by the Supreme Court in written opinion reported in 90 Tex. 511, 39 S. W. 918. Affirmed. CITY OF EL PASO v. TRI-STATE ASS'N OF CREDIT MEN et al. (No. 1417.)* (Court of Civil Appeals of Texas. El Paso. Feb. 8, 1923. Rehearing Denied Feb. 21, 1923.) Appeal from District Court, El Paso County; P. R. Price, Judge. Proceeding by the City of El Paso, by intervention in a receivership proceeding, against the Tri-State Association of Credit Men, and J. B.. taxes, penalties, and interest due on property Watson, receiver, to establish a demand for in the hands of the receiver. From an order allowing its claim in a sum less than that demanded, the City appeals. Affirmed. Victor C. Moore, City Atty., and Royall G. Smith, Asst. City Atty., both of El Paso, for appellant. Goggin, Hunter & Brown, of El Paso, for appellees. HIGGINS, J. This is a companion case to cause No. 1411, City of El Paso v. Howze, 248 S. W. 99, this day decided. In the present case the city intervened in a receivership proceeding seeking to establish its demand for taxes, penalties, and interest for the year 1921, in the sum of $235, due upon the property in the hands of the receiver. The owner of the property and the city assessor had originally assessed the property at $9,000. assessor to $10,500 in the manner and under which valuation was thereafter raised by the the circumstances shown in the Howze Case. The amount of taxes sought to be recovered by the city was computed upon this latter valua*Writ of error refused March 28, 1923. tion. The court allowed the city's claim in the sum of $203.38 computed upon the original valuation. This appeal complains of the refusal to establish the city's demand in the larger sum. For the reasons stated in the Howze Case, the court's action was correct. Affirmed. HAVERBEKKEN v. JOHNSON et al. (No. 6528.) (Court of Civil Appeals of Texas. Austin. Feb. 7, 1923.) Appeal from District Court, Coryell County; J. R. McClellan, Judge. Action by Chris Haverbekken against Will Johnson and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial. See, also, 228 S. W. 256. S. C. Padelford, of Fort Worth, for appellant. Jas. M. Robertson, of Meridian, for appellees. JENKINS, J. Appellant sued appellees 1. Trial 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. In an action for damages for assault and battery against several defendants, where there was an issue submitted whether defendants, acting together with each other, made an assault.on plaintiff and committed a battery by striking him with a stick, pick handle, and their fists, unless plaintiff was insisting on a conspiracy of defendants, the issue submitted should not have been as to their acting together, and the means used should have been stated as striking with either a stick, pick handle, or fists. 2. Trial 350(3) · Issue of ownership of land where difficulty arose should be submitted. In action for damages for assault and battery, alleged as taking place on land where defendants were attempting to construct a culvert which plaintiff, acting for his father, who claimed the land, had forbidden them to do, if the evidence raised the issue of self-defense as to defendants, the issue as to ownership of the land should be submitted, as plaintiff had the right, if the land was his father's, to forbid the construction and could use force reasonably necessary to prevent it, and, if the jury found the land to belong to plaintiff's father, and that defendants struck in self-defense against threatened attack, the issue should be submitted whether they used more force than neces sary. 3. Evidence 314(2)-Evidence of doctor's statement while sewing up plaintiff's wounds hearsay. In an action for damages for assault and battery, evidence of a witness as to what the doctor said who sewed up the wounds on plaintiff's head was hearsay. 4. Assault and battery 28, 39-Permitting evidence that defendant was road overseer acting under orders at time of alleged assault not error; mistake is defense to punitory damages. sault and battery. The testimony of each of the appellees was to the effect that he struck appellant, and upon this testimony the appellant was entitled to a judgment, unless such assault was justified. It could not have been justified, except on the ground of self-defense, which issue was submitted to be answered by the jury only in the event that they found that no assault was committed; and, having found that no assault was committed upon appellant, they did not answer the question as to self-defense. Perhaps this verdict can be accounted for by the form of the question submitted, which was as follows: "Did the defendants, Will Johnson, I. M. Solberg, and J. F. Speer, acting together with each other and about the time mentioned in plaintiff's petition, make an assault in and upon the person of the plaintiff, Chris Haverbekken, and commit a battery upon him, by striking him with a stick, pick handle, and their fists, as alleged by plaintiff in his petition? Answer this issue Yes or No, as you find the facts to be." The evidence conclusively shows that the defendants were acting together, in that they each and all assaulted the appellant at the same time; each of them testified that they had no previous agreement to assault the appellant, and perhaps the jury may have understood that, unless there was a conspiracy on the part of the defendants to assault the appellant, they should answer the above question in the negative. Also it will be observed that the issue submitted was, Did appellees strike appellant with a stick, pick handle, and their fists? The jury may have understood that it was necessary to prove that appellees assaulted appellant by the use of all of the means named. Each of them testified that he assaulted appellant with his fists only. [1] Unless appellant was insisting upon a conspiracy on the part of appellees, the issue submitted should not have been as to their acting together, and the means used In an action for assault and battery, alleged as occurring on land claimed by plaintiff as his father's and by defendants as belonging to the county, permitting testimony that defendant was a road overseer and acting under the direction of the county commissioner was not 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |