Appellee, in his motion for rehearing, insists that we erred in holding the two years' statute of limitation applicable to the cause of action asserted by him herein, his contention being that article 3207 of the Revised Statutes, which provides, that "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterwards," is the only statute in force in this State which has application to the facts of this case. We can not agree with this.
Article 3203 is as follows: "There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description: 1. Actions of trespass for injury done to the estate or property of another. 2. Actions for detaining the personal property of another, and for converting such personal property to one's own use. 3. Actions for taking or carrying away the goods and chattels of another. 4. Actions for debt, where the indebtedness is not evidenced by a contract in writing. 5. Actions upon stated or open accounts, other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents."
We are of opinion that the first subdivision of this article embraces the cause of action asserted by appellee in his petition. In Bear Bros. Hirsch v. Marx Kempner, 63 Tex. 301 [63 Tex. 301], after quoting this article, it is said: "These actions all relate to injuries done to the property or estate of the party bringing the action. The first subdivision of this article would doubtless include a seizure under an attachment wrongfully or maliciously sued out, for it is evident that the actions of trespass here spoken of do not mean such actions as are technically so known, for in this State there are no such distinctions in, or forms of, actions as are known at common law. The word `trespass,' as here used, is used not in a technical sense, but broadly, and means any act violative of the right of another, through which injury is done to his estate or property."
Mr. Anderson, in his Law Dictionary, in defining the word "trespass," both in its restricted and enlarged meaning, and in its application *Page 326 to the different common law actions of that name, says: "In its widest scope, trespass on property is any injury to property. Its synonym in law-Latin was `transgression,' any infraction of a legal right. In this sense it comprehends not only forcible wrongs, where the damages are direct and immediate, but also acts which are tortious in their consequences."
While it is true that in one sense a cause of action such as this against a common carrier may be for the breach of a particular contract, yet in so far as it seeks a recovery of damages for a violation by the carrier of the duty which it owes to the public, it also sounds in tort. This principle is well stated by Mr. Cooley, in his work upon Torts, pages 105, 106. Also see Railway v. Levy, 59 Tex. 548; Railway v. Roemer, 1 Texas, Civil Appeals, 191.
The allegations of appellee's petition in this case are as follows: "That heretofore, to wit, on the 26th day of August, 1887, the plaintiff was, and for a long time prior thereto had been, engaged in the business of buying, selling, and shipping cattle from points in Texas to certain other points in the Northern States, especially to Chicago; and defendant was during said time a common carrier of cattle for hire, being engaged in the business of transporting cattle to and from different points in Texas where its railroad ran, and also by means of connecting lines to points in other States, and especially to said place of Chicago; that on the said last named day the plaintiff delivered to said defendant, as common carrier, as aforesaid, at a certain station on its road, to wit, Quanah, and defendant then and there accepted and received from plaintiff, 358 head of fine, fat beef cattle; * * * that said defendant, in violation of its duty as a common carrier as aforesaid, and contriving and intending to cheat and injure plaintiff, did not, nor would, safely and securely and expeditiously, and within a reasonable time, carry said cattle as it was bound to do, as aforesaid, but on the contrary, so negligently conducted itself in the premises that the said cattle were loaded into cars which were not sufficiently and properly bedded, and not bedded at all, and were while en route to said place of destination willfully and negligently jerked off their feet and thrown down, the train being run in an improper and reckless manner, and were at divers places on said route delayed, and while they were so delayed as aforesaid were kept crowded and standing in defendant's cars, without food or water, so that they became, by reason of said improper, negligent, and cruel treatment, sick, starved, and bruised, and otherwise injured, and greatly depreciated in value, and by reason thereof, to wit, eight head of said cattle, of the value aforesaid, died and were wholly lost to plaintiff, and defendant did so negligently and carelessly conduct itself in regard to the keeping of said cattle that one head thereof, of the value aforesaid, escaped, and the remainder of said cattle were so bruised, injured, and sick and starved that they depreciated *Page 327 in value, and were worth less by $10 per head than they would have been worth had they been properly carried by defendant as aforesaid; whereby plaintiff lost and was damaged in the sum of $2740."
It will thus be seen that plaintiff's cause of action in this case is essentially one ex delicto, for the breach on the part of appellant of that duty which it owed as a common carrier, rather than for the violation of a special contract between it and appellee; and we are of opinion that, if appellant caused damage to the property of appellee in the manner alleged in this petition, it was clearly guilty of a trespass within the meaning of our statute of limitation set forth above.
Subdivision 8 of article 1198, Revised Statutes, which prescribes the venue of suits in this State, says: "Where the foundation of the suit is some crime or offense or trespass for which a civil action in damages may lie, the suit may be brought in the county where such crime or offense or trespass was committed, or in the county where the defendant has his domicile." In Campbell v. Trimble, 75 Tex. 270, in construing this statute, it is said: "This suit was brought in the District Court of Navarro County by Frank Trimble, against W.T. Campbell, J.T. O'Connor, and W.M.C. Hill, who reside in Dallas County, and Kit Davis, who resides in Denton County, Texas, for damages for the value of a certain colt owned by plaintiff, and alleged to have been kicked by defendants' horse on the fair grounds, in the city of Corsicana, from which injury said colt afterwards died. The defendants by demurrer objected to the jurisdiction of the court, on the ground that the petition showed that none of them resided in Navarro County. As a trespass charged to have been committed in said county was the foundation of the suit, the jurisdiction existed, and the demurrer was properly overruled."
In Hill v. Kimball, 76 Tex. 216, in construing the word "trespass" as used in this last quoted article, it is said: "It is clear that unless the action in this case can be classed as a trespass within the meaning of that term in the provision quoted, the suit was improperly brought in Leon County; and the determination of that point depends upon the further question, whether the word is used in the statute in its most restricted or in a more enlarged legal sense. In its widest signification it means any violation of law. In its most restricted sense it signifies an injury intentionally inflicted by force, either upon the person or property of another. But it still has a signification in law much more narrow than the first, and more enlarged than the second meaning given, and embraces all cases where injury is done to the person or to the property, and is the indirect result of wrongful force. Abbott's Law Dic., `Trespass.' In this last sense, the word would include injuries to persons or property which are the result of the negligence of the wrongdoer; and it seems to us more in consonance with the purpose and spirit of the exception to hold that it was in this sense *Page 328 that it was intended that the word should be understood. We presume the exception was made in the interest of the injured party and not of the wrongdoer, and we see no good reason why a distinction should be made between an injury resulting from intentional violence and one resulting from negligence. * * * If, as we think, the word `trespass' in our statute was intended to embrace not only action of trespass proper, as known to the common law, but also actions of trespass on the case, it is clear that the action in this case was properly brought in Freestone County, and that the court had jurisdiction over the person of the defendant."
It is true that the language used in this last case has been subsequently restricted, in so for as it construes the word "trespass," as used in our venue statute, but this is by reason of its intimate association therein with the words "crime" and "offense." Ricker, Lee Co. v. Shoemaker, 81 Tex. 22; Conner v. Saunders, 81 Tex. 633.
The allegations of appellee's petition in this case would seem, however, to show a trespass to have been committed by appellant upon his cattle, within the meaning of the word as construed in these cases; but we are of opinion that the proper interpretation of this word as used in our statute of limitation is correctly set forth in the language quoted from Hill v. Kimball, supra; and as thus defined, there can be no question that appellee's suit is an action of trespass for injury done to his property. It certainly has been the general understanding of the profession, that in order to recover damages for an injury done to property, either real or personal, whether inflicted by the use of direct force or by other tortious act or omission, the suit must be commenced within two years; and we have no doubt that such was the intention of the Legislature in the adoption of our statute.
We therefore conclude that no error was committed in the former opinion rendered herein.
The case of Millington v. Railway, 2 White Willson, 171, in so far as it may be thought to conflict with the views here expressed, will not be followed by us.
We have here considered this question at length, because it was not suggested to us by brief or otherwise until this motion was filed.
The motion for rehearing will be refused.
Motion overruled. *Page 329