author: SMITH, J.

text:
    SOLO SERVE CO. v. HOWELL.
    No. 8530.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.
    Cunningham, Moursund & Johnson, of San Antonio, for appellant.
    Chas. E. McPherren, of Oklahoma City, Okl., and G. Woodson Morris, of San Antonio, for appellee.
   SMITH, J.

This action was brought by Eunice Howell, a married woman, against the Solo Serve Company, a corporation, for damages for personal injuries alleged to have been sustained by her when she fell over a toy wagon displayed for sale in a store building owned by the corporation. From a. judgment in favor of Mrs. Howell, the Solo Serve Company has appealed. The accident occurred on'November 2, 1928.

At the outset appellant challenges the right of appellee to maintain the suit and recover judgment in her own name and right, without the joinder of her husband, under the peculiar pleadings presented and proof made in the case. In view of reversal upon other grounds, however, it is not deemed necessary to decide the question, which is not likely to arise upon another trial, and we pretermit any discussion of it here.

The trial judge submitted the ease to a jury upon special issues designed to elicit findings upon appellee’s contentions as follows:

(1) That appellee tripped and fell over a toy engine in appellant’s store.

(2) That appellant’s agent had negligently left said toy “partly protruding” into an aisle in the store.

(3) That appellant negligently failed to keep the aisle free and clear of obstructions for the. sale and convenient use of customers.

(4) That appellant negligently maintained the aisle “too narrow for the safe use of its customers and employees.”

(5) That said aisle was “too narrow” for such use, and appellant was negligent “in failing to furnish an aisle of sufficient width.”

The question of proximate cause was submitted in connection with each of said issues, and resolved against appellant. The jury also exonerated appellee from contributory negligence, and found that the accident was not unavoidable.

'It will be observed that the issues submitted were simple and required no explanations or definitions, except as to the terms “ordinary care,” “negligence,” “proximate cause,” and “unavoidable accident.” The court correctly defined each of those terms, and appellant makes no complaint thereat. Obviously there was no occasion for additional explanations, definitions, or other instructions to the jury. But the court went further and charged the jury upon the law of the case as applicable to each of the several issues of liability, and of this appellant vigorously complains.

In connection with appellee’s contention that appellant negligently left the toy engine “protruding” into the aisle, and the submission of the issue thereof, the court charged the jury that “it was the duty of the defendant company to provide reasonably safe passageways or aisles in its store for the use of its customer's during business hours and to keep the same free of obstructions which might reasonably be the cause of injury to such customer while examining and purchasing goods in the said store.”

In connection with the issue of whether appellant kept the aisle “free and clear of obstructions for the safe and convenient use of its patrons,” the court charged the jury that “it was the duty of the defendant company to keep the said passage-way and aisle in its store free of obstructions which might reasonably be the cause of injury to such customers while examining and purchasing goods in the said store, and such customers while visiting the store during business hours for the purpose of examining and purchasing merchandise kept and displayed for sale therein- are invitees in such store and while engaged in such examination and purchase have the right to rely upon the safety of the aisles and passage-ways provided for the use of such customers.”

In connection with the issue of whether appellant’s aisle was “too narrow for the safe ■ use of its customers and employees,” the court charged that “it was the duty of the defendant company to provide passage-ways or aisles in its store for the use of its customers and employees of sufficient width to be safely used so as not to contribute to the injury of such customers while examining and purchasing goods in the said store.”

And in connection with the issue of whether appellant negligently failed to “furnish an aisle of sufficient width,” the court charged that i‘it was the duty of the-defendant company to provide passage-ways or aisles in its store for the use of its customers and employees of sufficient width to be safely used so as not to contribute to the injury of such customers while examining and purchasing goods in the said store.”

It is now well settled that the giving of general charges, such as these, upon the law of the ease, in eases submitted upon special issues, constitutes error. Article 2189, R. S. 1925; Owens v. Imp. Dist., 115 Tex. 263, 280 S. W. 532; Lbr. Co. v. Keen (Tex. Com. App.) 237 S. W. 236; Oil & Ref. Co. v. McLean (Tex. Com. App.) 280 S. W. 557, 559; Connellee v. Nees (Tex. Com. App.) 266 S. W. 502; Besteiro v. Besteiro (Tex. Civ. App.) 18 S.W.(2d) 829; Texas & N. O. Ry. Co. v. Owens (Tex. Civ. App.) 299 S. W. 933; Houston & T. C. Ry. Co. v. Stribling (Tex. Civ. App.) 293 S. W. 890; Chicago, R. I. & G. R. Co. v. Abdou (Tex. Civ. App.) 1 S.W.(2d) 493: McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213; Diadone v. Houston Belt & T. R. Co. (Tex. Civ. App.) 26 S.W.(2d) 366. The giving of general charges upon the law of this case as applied to special issues of fact was particularly harmful here, and amounted to comments upon the weight of the evidence, apprised the jury of the effect their answers would liave upon appellant’s liability, and in some respects placed greater burdens upon appellant than is warranted by law. Under uniform decisions the giving of these charges requires reversal.

The case raises the question of estop-pel against appellant to show that the person whose individual acts are alleged to have been responsible for the accident was not the agent of appellant, but of another, that the immediate premises upon which the accident occurred were under the sole control of others than appellant, and that the alleged acts of negligence upon which appellant recovered were the acts of others than appellant. The facts, upon which appellee based 'her pleas of estoppel, were for the jury to determine from all the circumstances of the ease, and the trial court should have allowed appellant to prove all facts relevant to that issue, and otherwise admissible, as contended by appellant in its propositions 2, 3, 4, 5, 6, and 7.'

We also conclude that appellant should have been permitted to show that the premises in question were maintained in the manner and condition usual in the operation of similar businesses, as contended by appellant in its propositions 8 and 9.

Other questions raised in .the appeal will not probably arise .upon another trial, and need not be decided here.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HICKMAN, C. J.

license: Public Domain

text:
    WICHITA FALLS & S. R. CO. v. BURTON.
    No. 782.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 20, 1931.
    Goggans & Allison, of Breckenridge, and Bullington, Boone, Humphrey & King, of Wichita Falls, for appellant.
    J. B. Cotten, of Crane, and Thomas & Coffee, of Big Spring, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment for damages on account of personal injuries. Appel-lee was employed by appellant as a section hand. His alleged injuries occurred on October 1, 1927. On that date the section gang in which appellee worked was directed by the foreman to raise a mudsill on a bridge. It was raining, and the ground about the bridge where appellee was directed to work was wet and slippery. While appellee and another section hand were operating the handle of the jack raising the mudsill, appellee’s foot slipped on the wet ground, and injuries resulted. Various grounds of negligence were alleged, but only one of them was submitted to the jury. We shall therefore consider that particular ground and determine the question raised by appellant as to whether the evidence authorized a recovery thereon.

The issue of negligence submitted to the jury was as follows: “Do you find from a preponderance of the evidence that the defendant was negligent in requiring the plaintiff to perform the work at the particular time and place when he received his alleged injuries? Answer ‘yes’ or ‘no.’ Answer: Yes.” This negligence was found by the jury to be the proximate cause of the injuries, and $5,000 was found to be the amount of the damages sustained.,

TLe specific ground of negligence stated in the pleading, which was the basis of this issue, was as follows: “The defendant was negligent in .requiring the plaintiff, together with his co-laborers, to perform this work at this particular time, it having been raining, and the place upon which the plaintiff was required to stand "being- a knoll that was unusually slippery, when the work could have been done upon a day when no rain was falling and when the land was dry, for as a matter of fact the bridge was not in a dangerous condition and the work was not in the nature of an emergency and could have been performed prior to that time or subsequent to that, and on a day in which the weather arid conditions would have been favorable.”

Considering the issue submitted in the light of the pleading supporting same, it is disclosed that the real theory upon' which recovery was had was the alleged negligence of appellant in requiring this particular work to be done on a rainy day, when same could have been safely done on a dry day, either before or after the day of the accident. It is not claimed that it was negligence for the appellant to direct the section hands to work in rainy weather, but the theory is that this particular piece of work was dangerous work in rainy weather, but could have been performed with safety in dry weather. The only ground of negligence therefore was as to the time when the work was ordered to be done. The element of place contained in the issue submitted is surplusage, as there was no other place at which the work could have been done.

It is the contention of appellant that the evidence does not support this ground of negligence, because there is no evidence that an emergency did not exist. We sustain this contention. So far as this record discloses, it might have been necessary to the safety of the operation of appellant’s trains to repair the defect in this bridge on that particular day. There is no evidence that this defect existed prior to that day, or that it would not have been dangerous to the operation of the trains to permit the condition to continue until fair weather. That being the state of the record, negligence could not be predicated alone upon the time when the work was performed. If an emergency existed, it could not have been performed at any other time. A combination of facts and circumstances was pleaded as forming a ground of negligence. The proof showed the existence of certain facts which might constitute negligence only when coupled with other facts not proven. The burden was upon appellee to introduce testimony upon each and every essential fact entering into the group or combination of facts constituting negligence. This burden was not discharged. Assuming, without deciding, that "the facts pleaded might constitute negligence, this record is deficient in that some of the essential elements of the pleading are not supported.

In his argument appellee points out the failure to warn as a fact to be considered in connection with the allegation of negligence. We are unable to take into consideration that fact, or any other fact not embodied in the very ground of negligence submitted, for it is well settled that appellee waived every ground of recovery which he did not request the court to submit to the jury. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

On the ground submitted we have only the question of time, and no question of failure to warn, failure to provide a safe place for the servant to work, failure to employ a competent foreman, or failure to furnish safe tools with which to work. Since the time at which the work was performed was the only ground of negligence, the least that could be required of appellee would be a showing that the work could have been performed at some other time without endangering the lives of passengers on appellant’s trains. Railway companies exist not alone for private gain, but to servte the public,as well. They are subject to state regulation and control. The high duty which they owe to protect the freight of their ship-perg and the lives of their passengers makes it imperative that their roadbeds and tracks receive constant supervision and care, regardless of the weather conditions. The rule hás therefore become well established that such companies are -not liable to their employees for injuries resulting alone from climatic conditions, such as rain, snow, and ice. Gibson v. Iowa Central Ry. Co., 115 Minn. 147, 131 N. W. 1057; Roberts v. Pell City Mfg. Co., 197 Ala. 106, 72 So. 341; Píquegno v. Chicago & Grand Trunk Ry. Co., 52 Mich. 40, 17 N. W. 232, 50 Am. Rep. 243; Judd’s Adm’x v. Southern Ry. Co., 171 Ky. 832, 188 S. W. 880.

The judgment of the trial court will be reversed, and the cause remanded.


author: PLY, C. J.

text:
    GOAD v. LOTZ et al.
    No. 8534.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1931.
    Rehearing Denied Feb. 18, 1931.

      Graham, Graham & Graham, of Brownsville, for appellant.
    John C. Myrick, of Harlingen, for appellees.
   PLY, C. J.

This is an action of trespass to try title to 32½ acres of land, being the south part of block 66, in a survey known as the Lon C. Hill subdivision of Concepcion de Carri-citos grant, in Cameron county, Tex. This was the original suit, and afterwards C. G. Locke and wife brought suit for the north 32½ acres of block 66, Lon C. Hill subdivision.

' The cause was tried on special issues, and on the answers judgment was rendered in favor of appellees Locke and wife for 20 acres of the north half of the 65 acres, and certain sums due on a note and account, and judgment in favor of Lotz for 20 acres of the south half of the 65 acres, and certain sums due on a promissory note and open account. Appellant recovered 25 acres between the two 20-acre tracts, 12½ acres being off the north half of the 65-acre tract, and 12½ acres off the south half of the 65-acre tract.

The suit was based on the following contract:

“I, W. E. Goad, agree to move on farm, Block 66 Lon 0. Hill Subdivision of Cameron County, State of Texas, irrigated by Cam-leron County "Water Improvement District #1, offices at Harlingen, Texas.
“I understand this tract of land is owned by J. L. Lotz and C. G. Locke of Bartlesville, Washington County, State of Oklahoma, each party owning 32 ½ (thirty-two and one-half) acres, J. L. Lotz the south one-half, C. G. Locke the North one-half, making sixty-five (65) acres in the entire tract.
“I agree to clear all this land, pay for all water and plant on J. L. Lotz portion 770 citrus trees to 10 acres of land, planting 77 trees to each acre, these trees to be two year old roots budded from high productive stock and true to name. I agree to pay for all trees, water, cultivation spraying, and everything necessary to keep said trees in a growing and productive state.
“I also agree to plant for C. G. Locke, the same number of trees under the same agreement as stated above,. I am to plant these trees in the year 1925, as soon as growing conditions will safely permit and care for same at my expense and turn over the trees at the end of 5 years to J. L. Lotz and C. G. Locke in satisfactory live growing productive state. Free from all incumbrance.
“I am to live on this tract of land the five years and cultivate this land have all the crops grown on said land for five years, I am to pay for all water used on this property on flat rate basis. I am to receive from J. L. Lotz and O. ⅛. Locke a deed for (12½) twelve and one-half acres of land from each party, said J. L. Lotz and C. G. Locke, these 12½ acre tracts are now on record at the Cameron County Court House at Brownsville, Texas, when I complete my agreement in a satisfactory manner. Should I fail to comply with any part of this agreement, it will be just cause for removal from this tract of land and I am to receive nothing.
“[Signed] J. L. Lotz
“C. G. Locke
“W. E. Goad.”

Appellant seeks to avoid the contract into which he entered with appellees by pleading and attempting to prove fraud upon the part of appellees in representing that the land was adapted to the culture of citrus fruit. Appellant alleged that those representations were false, and that he had been damaged in the sum of more than $4,000 by being induced to sign the contract herein copied. It was clearly shown that he discovered that the land was unfit for raising citrus fruit in July, 1925, and experienced a freeze in December, 1925. In other words, he was fully cognizant of the fraud perpetrated upon him before January, 1926, and yet he remained in possession of the land, improving and enjoying it, without assailing the contract, until after this suit was instituted in 1930. If there was fraud, he had known it for over four years before he ever sought to obtain damages after appellees had filed suit to recover the land which he illegally withheld from them. Appellant and appellees were residents of Oklahoma when the contract was made for the sale of the land. He knew as much about the quality of the land and the climatic conditions of the country as they did, and he knew that he had as much knowledge of the Rio Grande Valley as they did. He knew more about it than they when he claimed to have complained to them of the land and climate, and yet he did not seek to rescind the contract. He still remained on the land, using it until the five-year period fixed by the contract had expired. Damages were never demanded until he was brought into court to answer the demand of the appellees for the land which belonged to them. The jury gave him 25 acres of land, as was agreed in the contract. They enforced the contract to the letter, and yet he is not satisfied because he was not given damages.

If appellant ever had any claim to damages, he had lost the right to recover them by his laches and delay for over four years. He cannot excuse his delay by stating that appellees told him, when he complained about the land and climate, to go ahead with the work on the land.

He is seeking damages in a court of law for fraud perpetrated on him, and the cause is barred by limitation of two years from the time he discovered the fraud and continued to hold the land under the contract with ap-pellees. He does not seek cancellation of the contract, but enforcement to the letter. He has not invoked the aid of equity, but seeks the aid of the law in a rigorous enforcement of the contract, and in seeking damages for a supposed dereliction on the part of appel-lees. He asked for the 25 acres of land and recovered it, and, if he had any claim for damages, he lost it by delay.

If a recission of the contract had been sought and the case had been an equitable proceeding, the general rule that laws of limitation will be applied to test the diligence or laches of a plaintiff would prevent any remedy for him in a court of equity. Equity rewards the vigilant who is active in seoking relief, and not one who sleeps on his rights and is dilatory in seeking a remedy for his wrongs. Appellant has not entered a court of law or equity with diligence and a timely assertion of his rights.

The 'judgment will be affirmed.


author: LANE, J. GRAVES, J.

text:
    KNOTT v. BALDWIN et al.
    No. 9410.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1930.
    On Motion for Rehearing Jan. 8, 1931.
    P. C. Del Barto, of Houston, for plaintiff in error.
    Vinson, Elkins, Sweeton & Weems, and C. M. Hightower, all of Houston, for defendants in error.
   LANE, J.

This suit was brought- by Mrs. Jacob C. Baldwin .and J. A. Shine against A. R. Knott to recover damages which they allege they suffered by reason of the action of A. R. Knott in tearing down a certain drilling rig, which was being used by plaintiffs in drilling for oil, and in otherwise damaging the oil well then being drilled by plaintiffs.

Defendant Knott answered by general denial and by averring that the drilling rig belonged to him. He admitted that he had leased the same to plaintiff Shine under certain stipulated conditions, but avers that the rig was returned to him, and, without authority, plaintiffs thereafter took possession of the same and therewith began to drill an oil well, and that as soon as he discovered that plaintiffs were so unlawfully using his rig he proceeded to remove the same from plaintiffs’ premises and to- take possession thereof, as he had the right to do. He also alleges that Shine obtained the lease of the rig by practicing fraud upon him. He specially denies that in removing his rig from the well being drilled by plaintiffs be damaged such well, as alleged by plaintiffs.

By cross-action be alleges that plaintiffs bad wrongfully taken and kept possession of bis rig, to bis damage in tbe sum of $7,500.

Plaintiffs by supplemental petition denied generally tbe averments of tbe defendant’s answer.

The case was tried by a jury to which tbe court submitted special issues, all of which that were required to be answered were answered in favor of the plaintiffs, and upon such answers tbe court rendered judgment for tne plaintiff for the sum of $1,400. Erom such judgment defendant A. R. Knott has appealed.

For convenience we shall refer to the respective parties as appellant and appellees.

At tbe threshold we are met with objections, urged by appellees,, to a consideration of any of appellant’s assignments of error found in his brief, upon the grounds that none of them were filed in the trial court and are not assignments of error set forth in appellant’s motion for new trial, and that the assignments set forth in the motion for new trial are not brought forward in appellant’s brief.

We have examined the record and find that appellant filed no assignments. in the trial court, but that he did file a motion for new trial, which was overruled by the court. Neither true nor substantial copies of any of the assignments of error as set forth in the motion for new trial are set out in appellant’s brief.

We feel that, in view of the well-settled rule that, where appellants fail to file in the trial court assignments of error, or to copy into their briefs the assignments of error as set forth in their motions for new trials, appellate courts can only consider fundamental errors, we must sustain appellees’ objection to a consideration of the assignments found in appellant’s brief. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846; Ford & Damon v. Flewellen (Tex. Civ. App.) 264 S. W. 603; Id. (Tex. Com. App.) 276 S. W. 903; Bristol v. Noble Oil & Gas Co. (Tex. Civ. App.) 273 S. W. 946; Carrera v. Hines (Tex. Civ. App.) 246 S. W. 1057; Lumbermen’s Reciprocal Ass’n v. Ryan (Tex. Civ. App.) 299 S. W. 701, 702; Bray v. City of Corsicana (Tex. Civ. App.) 280 S. W. 609, 610; Beech Hill Distilling Co. v. Tolivar (Tex. Civ. App.) 288 S. W. 254; O’Neal v. Allison (Tex. Civ. App.) 10 S.W.(2d) 257, 259.

In the case of Clonts v. Johnson, supra, appellant filed no assignments of error in the trial court. He did file a motion for new trial, which was overruled, but the assignments of error set forth in the motion were not copied in appellant’s brief. In that case the Commission of Appeals held that the ap-

pellate court could only consider fundamental error, saying: “Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power.” Since we are, under the facts as disclosed in the record of this case, restricted to a consideration of questions duly assigned as error, and such fundamental errors as appear of record, and since no errors have been duly assigned and no fundamental error appears, it becomes our duty to affirm the judgment, even though we may think the ends of justice would require a different judgment, and it is accordingly so ordered.

Affirmed.'

On Motion for Rehearing.

GRAVES, J.

After heretofore refusing appellant’s original motion for rehearing, a majority of the court, with Justice LANE dissenting, concluded that his subsequent motion to reconsider that action was well taken to the extent that his assignment of error No. 1, as appearing in his motion for new trial below, which was fully copied into the transcript on appeal, and as reproduced in substance in his brief filed here under designations of “Fourth Assignment of Error” and “Fourth Proposition,” respectively, should be considered, the same complaint, as thus successively presented, being in his verbis as follows:

From the motion for new trial:

“Now comes A. R. Knott, defendant in the above entitled and numbered cause, axrd moves the Court to set aside the verdict of the jury and the judgment of the Court rendered herein on April 8, 1929, and grant him a new trial for the following reasons, to-wit:
“1. Because the verdict of the jury is contrary to the evidence. A preponderance of the evidence, and particularly the testimony of the oil well drillers on whether or not the pulling of the drill stem and pipe out of the casing occasioned any damage on the part of the defendant.”

From appellant’s brief:

“Fourth Assignment of Error. ■
“The court erred in rendering judgment against plaintiff in error because the evidence is contrary to the defendant in error on the point of damages.
“Fourth Proposition.
“The judgment rendered against plaintiff in error is erroneous for lack of evidence and is contrary to the evidence, particularly on the point of damages.”

On the reconsideration the majority view is that this presentment in the motion for new trial that was so followed up by at least a substantial reproduction in the brief on appeal plainly, in consonance with the very liberal requirement of R. S. article 1844, “directs the attention of the court to the error complained of,” that is, to the court’s action in upholding the jury’s finding that appellant had caused a $1,700 damage in attempting to tear down the drilling rig from the well and entering judgment thereon, when such verdict was asserted to be contrary to the evidence, particularly that of the oil well drillers themselves; under all the pleadings and proof, as well as the issues of fact relating thereto and submitted to the jury without objection from either party, the only possible question of damage involved was that thus found to have been done by the appellant, wherefore no court, it seems to us, could fail to apprehend just what it was thereby sought to have reviewed when it was charged that “the court erred in rendering judgment against plaintiff in error because the evidence is contrary to the defendant in error on the point of damages.” See, also, rules 32 and 24 for the Courts of Civil Appeals, and 101a for the district courts.

On re-examination thereof, we conclude that the authorities cited in our ‘ original opinion do not support the holding then made; for instance, while rule 32, supra, provides that “the brief shall contain verbatim copies of such of the assignments of error filed in the trial court and reproduced in the transcript as are relied on in the appeal,” it is not so construed in Clonts v. Johnson, formerly quoted from, the court saying:' “While it is not necessary that the assignments required to be filed below should be literally copied into the brief, yet they must be at least substantially reproduced." Rule 32, Court of Civil Appeals, and rule 101a, district and county courts; Seby v. Craven Lumber Co. (Tex. Civ. App.) 259 S. W. 1093; Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1104; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; Carey v. Tex. Pac. Coal & Oil Co. (Tex. Civ. App.) 237 S. .W. 309; Green v. Hall (Tex. Com. App.) 228 S. W. 183.”

The court then goes on to hold, as formerly quoted, that, where an appellant wholly fails to copy — that is, to even substantially reproduce — any assignment of error in his brief, only fundamental error will be considered on the appeal; but that is not the state of facts here, as the preceding copies from the record make manifest, where the same thing in material substance was well-nigh literally assigned in both courts. -Neither do any of the other cases before referred to. sustain that opinion on the legal equivalent of the same situation, Ford Damon v. Flewellen, 264 S. W. 602, 603, by this court, in which no assignment at all was filed in either court, being in no wise different in purport from Clonts v. Johnson; it is deemed unnecessary to review the remaining ones.

To refuse consideration of this assignment in the circumstances would seem like “parsing a litigant out of court,” an effect we feel unwilling to give to rules that were intended, not only to promote the orderly dispatch of legal business, but to at least reach after the attainment of justice between the parties as well.

Our Supreme Court, through the Commission of Appeals, in Morrison v. Neely, 231 S. W. 728, 731, in reversing a holding by the Court' of Civil Appeals to the contrary, after determining that R. S. article 1844, supra, then 1612, should be liberally construed as previously held in Clarendon Land Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105, said: “While it is true, as is said by the Court of Civil Appeals, the assignments in the instant case ‘do not specifically attack the findings of fact of the trial court.’ yet they are sufficient to ‘direct the attention of the court’ to the fact that appellant complained that the evidence was not sufficient to support the judgment; a question the determination of which is the exclusive province of the Court of Civil Appeals, as the Supreme Court has no jurisdiction to pass upon tbe sufficiency of the proof to support any given judgment. Since the assignments were sufficient to direct the attention of the court to ah error complained of, which it only had the right to pass upon, it should have considered them.”

While the attack in that instance was made upon findings of fact by the trial court rather than upon the verdict of a jury, as in this instance, no difference on that account in the principle applicable is perceived. Other ati-thorities in point are Hess v. Turney, 109 Tex. 208, 203 S. W. 593, at page 595 (5): Barkley v. Gibbs (Tex. Com. App.) 227 S. W. 1099; Green v. Hall (Tex. Com. App.) 228 S. W. 183, syl. 1; Afflerbaeh v. Yorktown (Tex. Com. App.) 289 S. W. 1003.

On considering the complaint so made, the court is unanimous in the conclusion that the evidence was insufficient to support the verdict and judgment for damages — indeed, all agree that there was not enough testimony of any probative force to raise an issue as to the appellant’s having caused any damage to the well by what he did in his attempt to tear down the drilling rig; the question was submitted to the jury in two inquiries, as follows:

“Special Issue No. 2.
“Was the cutting and removal of the 300 feet of casing from Kitzman’s well No. 2 made necessary by the act of A. R. Knott and his employees in attempting to tear down the drilling rig on August 25, 1928?
“Answer ‘It was’ or ‘It was not’ as you -find the facts to be.
“Special Issue No. 3.
“If you have answered special issue No. 2 ‘It was’ and only in that event then answer:
“What sums of money, if any, were reasonably and necessarily expended by . the plaintiffs in cutting and removing said casing, taking into consideration such reasonable sums that were' expended for labor, fuel oil, expert casing cutter, special equipment and new casing’.
“Answer by stating the amount in dollars and cents.”

The first of these was answered “It was,” the second, “$1,700.00,” whereupon the court, after reducing this amount to $1,400.00, entered judgment against appellant for that sum.

So the question of whether appellant caused any damage was determinable solely by whether or not the cutting and removal of the 300 feet of casing the appellees after-wards took from the well had been made necessary by any act of his, and no witness testified that it was; in the absence of any such showing, the mere fact that $1,700.00 may have been reasonably and necessarily expended by the appellees in cutting and removing the casing in no wise tended t,o fasten responsibility for the outlay on appellant, especially when their own driller in charge at the time, Mr. Allen, emphatically swore he had done nothing to cause any of it; this witness’ testimony on the point is controlling, we think, since he was the only one connected with the appellees who was shown to have been in position to know, not only just what appellant had done, but its effect as well; after having already testified that the casing in the well had some time before that been dropped and broken off about 300 feet from the top, he added with reference to what Mr. Knott had done: “With reference to whether I was the driller in charge in August, 1028, I went there on the 24th day of August. With reference to whether I observed anything on that day about anyone trying to dismantle the rig, my answer is, I think we had started the well on that day, and I believe it was the next day Mr. Knott came there to get his pipe, or break down the rig. When he came there he run into the broken place and lifted the pipe off of the other pipe the same as we did, and let it down, and turned and came on back. He did not go in there any more. That operation had no effect on the casing, because it was already that way. * * * I could not see how a mere pulling of the casing out of that well, the drill pipe, on the 24th or 25th of August by Mr. Knott, could have in any way injured the well.” As stated, there is no contradiction of this in the record; the statement of the witness Shine that the casing had been dropped 290 feet while, he was working on the well and parted, but had been connected back together about the 20th of August, does not constitute any, because he added: “I did not do it personally, but had it done. The crew working out there did it under my supervision. Mr. Allen was the driller. Mr. Allen fixed it. He was running the rig. With reference to whether I had charge or any connection with the well when Mr. Knott tried to dismantle it, I was not there at that time.” Thus, whatever uniting, there ever was of the prior break had been done by Mr. Allen, and he says it was still broken when appellant went in there.

The witness Neyland did not come into the matter at all until about three months after the alleged damage was claimed to have been so done, hence his testimony that the casing had been dropped, separated, and bent, did not in any way indicate that appellant had caused that; neither did that of any other witness.

The appellant himself testified: “I pulled part of the drilling pipe out of the hole. With reference to how was that casing in the well set, and if it was in good repair, everybody knew that easing was in two. The cause of that was because the pipe was dropped, it had parted. I did not cause this trouble when I tried to dismantle the well, I was not there when the pipe was dropped. There was no part of the casing dropped when I tried to pull the drill pipe out, it had already been dropped. I did not damage any part of that well pulling the drill pipe out that I could detect; I do not know how I could have done it. * * * With reference to whether I caused, by pulling the drill pipe, this well to cave in any way, there was not a chance. In pulling the drill pipe out of the" easing, in dollars and cents, I could not see how I did any damage whatever to that well.”

Further discussion is deemed unnecessary, this state of the proof conclusively showing a lack of support for the verdict and judgment.

If any" of the other questions urged by appellant are só raised as to require considera-. tion, they are not regarded as involving reversible error.

The rehearing has been granted, with Justice LANE dissenting as indicated, and the trial court’s judgment has been reversed and the cause remanded for another trial.

Rehearing granted, Justice LANE dissenting, judgment reversed, cause remanded.


author: WALTHALL, J.

text:
    GATTEGNO v. THE PARISIAN, Inc., et al.
    No. 2449.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1931.
    Rehearing Denied Feb. 19, 1931.
    Kemp & Nagle and Harold Potash, all of El Paso, for appellant.
    C. W. Croom, M. V. Ward, and Whitaker & Peticolas, all of El Paso, for appellees.
   WALTHALL, J.

The Parisian, a mercantile corporation, brought this suit against I. Gattegno and John T. Muir for damages, and allege, in substance, the following: That plaintiff was in lawful possession under a lease as a tenant of John T. Muir, the owner of the premises, using same as a millinery establishment and place of business, and had been for a year or more before the matters complained of occurred; that I. Gattegno, doing business under the name of Sheldon Jewelry Company, was also a tenant of John T. Muir, in the same building, and was occupying a room adjoining that of plaintiff; that appellee was occupying said rooms under a lease from Muir to Ernest and assigned to appellee; that said lease contained the following covenant: “The space and openings overlooking the corner room from the mezzanine floor shall be enclosed with invisible glass,” meaning that the space and opening overlooking the corner room from the mezzanine shall be closed with opaque and translucent glass; that said provision in said lease created in plaintiff an easement for light through said space and opening overlooking the corner room and the mezzanine floor; that defendant Gattegno unlawfully caused to be laid metal laths and strips, boards, and plaster across the said space and opening, thus shutting out the light, and making plaintiff’s rooms and place of business to become dark, with the result that plaintiff’s business was thereby damaged ; that the -nature of plaintiff’s business required a well-lighted room in order to display its merchandise; that as a direct result of ¿¡losing said lights plaintiff’s business decreased, stating the gross sum per month, and the aggregate amount for the time stated, which amount represents the total loss of profits, at the end of which time plaintiff sold the business. Plaintiff alleged as further ground of damage that, had said window not been closed, it would have continued to make^ a like profit to the end of- said lease, in 1933'; as a third ground for damage, plaintiff sued in the alternative for the diminished value of the lease for the unexpired time.

Gattegno answered by general demurrer, special exceptions, general denial, made Muir a cross-defendant, alleging that he was a lessee of Muir without notice of any provision in plaintiff’s lease relative to the opening in said windows as alleged, pleaded an agreement with Muir to the effect that the said windows, or opening at the mezzanine floor, should be covered by a steel and plaster partition, in order to partition said storeroom from the adjoining premises (occupied by plaintiff); that said partition was made with the consent of Muir and his agents, the landlord agreeing to pay for same; that said repairs were necessary for his jewelry business; that said repair was wholly upon his part of the leased premises, the invisible glass being left ai¡id in no wise disturbed. Gat-T, tegno asked for judgment over against Muir " in the event judgment should be against him.

Muir having been dismissed out of the suit, except as to the cross-action, we need not state his answer to the suit.

The case was tried to a jury and submitted ttpon special issues. The jury found: (1) Gattegno alone, or in connection with others, constructed, or caused to be constructed, the metal lath strips and plaster partitions complained of by plaintiff; (2) that such partitions intercepted the light from the premises rented by plaintiff from Muir; (3) that plaintiff was damaged by reason of such interception of the light; (4) the difference in value between plaintiff’s business just before and just after the construction of the partitions complained of w.as $1,250,; (5 and 6) the interception of the light caused plaintiff to lose business and profits in the operation of its store in the sum of $1,250'; (7 and 8) the value of plaintiff’s lease was diminished by reason of the construction of partitions complained of to the extent of $1,250; (9) the glass partitions complained of were not covered, or caused to be covered, by Muir or his agents, either, alone or in connection with Gattegno; (10) Muir’s agent did no more I with reference to the construction of the partitions than to pay the cost of the same. |

(4) Submitted by Gattegno. Gattegno knew at the time bis lease was delivered to him that plaintiff’s lease on the adjoining premises contained the provision: “All space above partition wall on North side of said room and openings overlooking the corner room from the mezzanine floor to be enclosed with invisible glass.”

Judgment was entered in favor of plaintiff and against defendant Gattegno for $1,250, and against Gattegno’s cross-action against Muir.

Gattegno prosecutes this appeal.

Opinion.

The trial .court was not in error in overruling defendant Gattegno’s general demurrer.

It is the common law of Texas that - no prescriptive right to light and air can bq acquired by lapse of time. Volume 1, Texas Jurisprudence, p. 712, par. 12.

The petition to which the demurrer is directed does not plead a prescriptive right to the light, but a right by express contract in writing. It is clear that the parties to plaintiff’s lease by the use of the expression “invisible glass” meant opaque and translucent glass, thus giving plaintiff the right to light as it then existed through the space and openings overlooking the adjoining corner room from the mezzanine floor, and that the court properly so interpreted the lease.

As a direct result to plaintiff’s business of closing up the space through which plaintiff received light in the rooms of the building occupied by it, the petition stated its loss per month in its business, stating the amount, to whic-h defendant excepted on the ground that such statement of loss was uncertain, vague, and not the true measure of damages, and that the allegations set up duplicate and triplicate measures of damages. The court overruled the exception, and submitted issues 3 and 4 as to whether plaintiff was damaged by shutting off the light and the difference in value of plaintiff’s business before and after the construction of the partitions complained of. There was no error in overruling the exception.

Appellant submits that “plaintiff showed no right of recovery for the difference between the value of plaintiff’s business just before and just after the construction of the partitions complained of”; also that the evidence did not justify the submission of the loss of profits, nor the value of the lease.

We have reviewed the evidence offered. It is too voluminous to state it here. Plaintiff produced the boohs hept during the period involved, and spoke at length from its books of the condition of its business before and after the light was shut off up to the time plaintiff ceased to do business at that place. ■Witness Donaldson said:

“The closing of those windows materially affected the value of the lease. ⅝ * * It is hard to say approximately the amount it affected it. ⅜ * * In my opinion $3,500.-00 to $4,000.00 should be the fair, reasonable and intrinsic value of the unexpired 'term of the lease on the Parisian, assuming the windows had never been closed.”

. The .evidence is sufficient to submit to the jury each of the issues submitted. It will be noted, however, that, while the jury found and assessed $1,250 damages on each of the three issues of damage, that is, the difference in the value of plaintiff’s business before and after the construction of the partition, the loss of profits, and the diminished value of plaintiff’s lease, judgment was entered for $1,250, and there is nothing in the record to indicate for which of the three damages judgment was rendered. Where the evidence shows that' any one of the amounts' of damage found could be sustained, appellant could have no ground for reversal.

Appellant says the uncontroverted evidence showed that he was an innocent purchaser of his lease for value without notice of any provision in appellee’s lease as to the space in question being closed with opaque and translucent glass. The wall between the room occupied by appellant and the rooms occupied by appellee was a common wall of both parties. Appellee was occupying its rooms at the time appellant’s lease was made. The glass opening was then in use by appel-lee, and its purpose in giving light to appel-lee’s rooms was apparent.

We think the circumstances are sufficient to charge appellant with knowledge of the use then made by, appellee of the space in the wall covered by glass. Appellee objected to the closing of the space before it was closed. ; Appellant may not have known of the pro- [/ vision in appellee’s lease, but he knew, or / should have known, of the purpose of the open space, especially after objection was made to its closing.

Appellant, in his cross-action against Muir, prayed that he have judgment over against Muir. Appellant’s lease provides: “It is understood and agreed that ’the lessor is to make certain improvements to the leased premises at his own expense, and the lease term to begin, when the leased space was ready for occupancy.”

The evidence shows that appellant had the improvement plans prepared and submitted them to Muir’s agent (Mr. Otis Coles) of what he wanted done, gome of the improvements made have nothing to do with the closing of the glass space involved here. The plans show, .“close glass openings in south and east walls,” the openings involved here. The glass set back from the face of the partition and the partition wall was then built on appellant’s side of the wall. The appellant insisted that the glass openings be closed. The plans were shown to Mr. Coles, as testified to by appellant, and that Coles instructed the contractor, Ponsford, to go ahead. Coles testified that he “did not order the closing of those windows above Mrs. Ernest’s wall. Mr. Gattegno said those windows should be closed in order for him to get his insurance protection, and I told him if he wished to close them at his own responsibility, he could do so. They were closed. I did not close them and I did not order them closed. * * * I agreed to pay for the closing of the windows.” Appellant denied that he was to have •the windows closed at his own responsibility.

It is consistent with the other parts of the evidence that Coles saw the plans and directed that the windows be closed. We i think it immaterial whether appellant did or did not agree to have the space closed at his ⅛ own responsibility. The uneontroverted evi-. dence shows that appellant insisted on the! space being closed for his own benefit, and! had the plans prepared and submitted to } Coles, who directed that the work closing the' j space, be done, both knowing that appellee } protested - against the closing of the space. > In closing the space they were joint wrongdoers, and, as to them, our courts hold there is no right of contribution as among themselves as prayed for by appellant. Michie, vol. 4, p. 671, where many cases are cited.

The court was not in error in refusing to submit appellant’s tendered charges:

“A. Do you find from the evidence that the glass partitions in question were covered up by the cement and other material under agreement made between John T. Muir and I. Gattegno?”
“B. Was said agreement made at the time or before the delivery of the lease in question to I. Gattegno?”
“C. Under the agreement to cover said glass partition already on the premises was the work done or caused to be done by John T, Muir or his representatives?”

The fourteenth proposition is without merit.

It was not necessary to have charged upon the burden of proof, and it is not always proper to do so where the court submitted the special issues to be found upon a preponderance of the evidence. It was not reversible error, however, to charge generally, and not on any special issue, that the burden of proof was upon the plaintiff .before it will be entitled to recover, as submitted by appellant.

It was not error, as already discussed', to charge for defendant Muir as against appellant’s cross-action, appellant and Muir being ' joint wrongdoers in closing the windows, there being no right of contribution as between them.

There is no merit in appellant’s seventeenth proposition under the facts presented by the record.

We cannot say that the verdict and judgment is excessive. The jury found three elements of damages each in the amount for which the judgment was rendered.

The case is affirmed.


author: GRAVES, J.

text:
    ALLEN v. CITY OF NAVASOTA et al.
    No. 9510.

    Court of Civil Appeals of Texas. Galveston.
    Dec. 24, 1930.
    Rehearing Denied Feb. 5, 1931.
    T. P. Buffington, of Anderson, for appellant.
    J. B. Leigh, of Navasota, for appellees.
   GRAVES, J.

In this cause appellant, who was plaintiff below, challenges the action of the trial court in dismissing his suit, following the sustaining of a general demurrer to a petition filed by him there, which, in material substance, was this:

■ “Now comes M. B. Allen, a resident citizen of Grimes County, Texas, and complaining of the City of Navasota, of Grimes County, Texas, a city duly organized and existing under and by virtue of a Charter under the laws of the State of Texas, of which a City Commission and General Manager handle and control the affairs, * * * represents to the Court: * * * A
“That he is the owner of the following described tract or parcel of land, situated in Grimes County, Texas, and out of the John Moore league, and being partly within and partly without the said City of Navasota, to wit: (Here follows description of his 409 acres.) * * *
“That heretofore and before the injuries complained of in this petition, the City of Navasota, for drainage purposes constructed a ditch through that portion of the said land lying within the City Limits, and also through that lying on the outside thereof, representing to Plaintiff and his grantors that said ditch would be so constructed that it would care for the flood waters then falling and aft-erwards to fall within the City, and said flood waters would then be drained through said ditch taking care of excess waters and maintaining such ditch so as to protect Plaintiff’s land.
“That said ditch in the manner of its construction diverted from its regular course the flood rain waters falling, and coming from excessive rains upon a large portion of said city, indeed draining said City, but casting upon the property of this Plaintiff such waters in such quantities as to destroy the growing crops thereon, whenever heavy rains fell at time for harvesting crops.
“That in addition to said ditch diverting the regular flow of said flood waters and casting them upon the property of Plaintiff, the said City of Navasota has permitted said ditch to fill with grass and weeds and soil and other obstructions, so that the said flood waters were by this means also arrested and diverted and sent out of said ditch upon the property of this Plaintiff, as aforesaid.
“That during the month of October, 1926, Plaintiff had a crop of cotton on the premises herein described and adjacent to the ditch which was dug by Defendant, and also during the months of November and December, 1926. That while such crop was ready for gathering, • rain to the extent of several inches fell each of the months named, and that the waters from such rains, diverted by the ditch as aforesaid and made to spread out by the weeds, grass, and soil permitted to accumulate, were by such negligent and unlawful acts of defendant, caused to flow in and upon the premises of this Plaintiff and on and over the crop of cotton being raised thereon just as same was ready for gathering, destroying thirty-five acres of such cotton crop and making the cotton’ thereon unfit for gathering, and making it impossible for Plaintiff to gather same; injuring and destroying on said thirty-five acres of land ten bales of seed cotton of standard weight of fifteen hundred pounds each.
“That said cotton so injured and destroyed was of the reasonable market value of One Thousand Dollars; and that Defendant by its said action in improperly digging said ditch, in diverting the waters from their usual and customary course by digging such ditch, and by permitting such ditch to fill with grass, weeds, and soil, has negligently caused such waters to overflow said thirty-five acres of land which lies adjacent to and near the said ditch so dug by Defendant, and injure and destroy such cotton, to Plaintiff’s loss in said ten bales of such cotton, of the value of said One Thousand Dollars and has damaged such Plaintiff in said sum.
“Wherefore Plaintiff prays that * * * he have judgment against • the said City of Navasota and against the said City Commission in its representative capacity, and the City Manager in his representative capacity for the said sum of One Thousand Dollars damages.”

In the judgment of dismissal the learned trial judge recited; “It appearing to the Court that the plaintiff’s original petition herein fails to allege that within ninety days after the occurrence of the alleged injury to plaintiff’s property plaintiff gave the Mayor or City Manager of defendant, City of Nava-sota, Texas, notice in writing stating specifically in such notice when, where, and how the injury or damage occurred, and the nature of the same, and it further appearing to ' the Court that Sec. 7 of Article II of the Charter of the City of Navasota, Texas, provides that ‘Before the City shall be liable for damages for injury to one’s person or property, the person injured or damaged or some one in his behalf shall give the Mayor or City Manager notice in writing within ninety days after occurring of the alleged injury or damages, stating specifically in such notice when, where, and how the injury or damage occurred, and the nature of the same as nearly as practicable’, the Court is of the opinion that the general demurrer of defendant to plaintiff’s original petition herein ought to be sustained.”

In this Court the attack upon the adverse judgment, through appellant’s able and experienced counsel, is grounded on the contention that the quoted provision of the Nava-sota city charter is contrary to article 1, § 17, of the Constitution of Texas, and therefore null and void, no allegation of any advance notice whatsoever to the city being necessaxy in a suit by an individual against a municipal corporation for damage to property, under such authorities as City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693; City of Houston v. Kleinecke et al. (Tex. Civ. App.), 26 S. W. 250; City of Dallas v. Cooper (Tex. Civ. App.) 34 S. W. 321; Shows v. Dallas (Tex. Civ. App.) 172 S. W. 1137; Shows v. Dallas (Tex. Com. App.) 212 S. W. 633, 634.

Like the trial court, we are unable to see in this charter requirement of notice anything that contravenes the invoked constitutional provision, or any rights vouchsafed to appellant thereunder, as he himself declares upon them in his trial petition; the applicable portion of article 1, § 17, is “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,” whereas this petition, not only does not allege damage to the land itself — being confined to the count for the value of a ten-bale cotton crop raised and destroyed thereon during the year 1926 — but also, by legitimate inference at least, in the entire absence of any charge anywhere that it was done without his consent, and as against only the general demurrer interposed, avers that the city constructed the ditch through both parts of his land with the plaintiff’s consent, or acquiescence, by the allegation that it had some time theretofore done so by “representing to Plaintiff and his grantors that said ditch would be so constructed that it would care for the flood waters then falling and afterwards to fall within the City, and said flood waters would then be drained through said ditch taking care of excess waters and maintaining such ditch so as to protect Plaintiff’s land.”

So that, it being the reasonable intendment of his declaration that he had consented to the construction of the ditch across his land on the city’s assurance at that time that it would properly carry off the excess waters, there was obviously no inhibited taking of his property or damage thereto in placing it there; this reduces his legal grievance to the consequences of the alleged manner in which the city had constructed and operated the ditch, which were charged to be the overflow and destruction of ten bales of his cotton crop during the months of October to December of 1926, the complaint therefor not having been filed until September 28 of 1928 — well-nigh two years after the occurrence.

Concretely, therefore, his whole case rests on the plea that the city had no right, as a condition precedent to liability on its part, to require him, within 90 days after the occurrence of such a damage, to give it written notice thereof.

The authorities lie relies on — especially Shows v. City of Dallas, supra — foreclose the question the other way, we think. A material difference between the notice provision under review in that case and the one here involved exists, in that the charter of the appellee city of Navasota in this instance specifically makes the prescribed notice necessary whether either person or property is injured or damaged, while the Dallas charter, with which the former is concerned, makes no such requirement as to property, and is held to apply to cases of personal injury only, the Supreme Court through the Commission of Appeals saying, on the constitutional question raised in both cases, this:

"Charter provisions, spch as the one under discussion, requiring notice of an injury within a given time, as a condition precedent to the right to maintain an action for such injury, have been uniformly upheld. ‘Such requirements are enacted in furtherance of the public policy, and their object and purpose is to protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit.’ McQuillin, Municipal Corporations, § 2715; City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 41 S. W. 704.

“Being a condition precedent to the right of action, it is incumbent on the plaintiff to affirmatively allege the giving of the prescribed notice. Dillon, Municipal Corporations (5th Ed.) § 1618.

“The provision in defendant’s charter requiring notice of the injury as a condition precedent to a suit for such injury is valid. It is wholly immaterial that the injury was the result of the act of the city itself. City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693, does not hold otherwise.”

As we interpret the underlying rationale of that holding, after making due allowance for the stated difference in charter provisions, the Supreme Court, not only held that notice provision valid and constitutional as it stood, but would upon the recited considerations have done the same thing, had it specifically included injuries to property as well as persons in its notice requirement, as does the one at bar; the effect of the decision so construed is to settle the question here, since this petition failed to allege the giving of the prescribed notice. Other authorities supporting the view thus taken are: Cawthorn v. City of Houston (Tex. Com. App.) 231 S. W. 701; Lee v. City of Dallas (Tex. Civ. App.) 267 S. W. 1014; City of Waco v. Watkins (Tex. Civ. App.) 292 S. W. 583; Hanks et ux. v. City of Port Arthur (Tex. Civ. App.) 8 S.W.(2d) 331; McQuillin on Municipal Corporations, § 2715.

These conclusions require the affirmance of the judgment; it will be so ordered.

Affirmed.


author: JONES, C. J.

text:
    CLARK et al. v. STATE et al.
    No. 10829.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1931.
    Rehearing Denied Feb. 14, 1931.

      McEntiré, Shields & Elam, of Canton, and Beall & Beall, of Sweetwater, for appellants.
    Yinson, Elkins, Sweeten & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellees. '
   JONES, C. J.

There is involved in this case the question whether an appeal to this court is authorized from a judgment of a county court, dismissing the petition of appellant Cone Johnson Clark, praying that an alleged void judgment, decreeing him insane, be set aside and held for naught. The following is a sufficient statement of the facts to understand the is‘sues presented to this court:

Appellant is shown, by the petition, to be a minor over 14 years of age, with his domicile in Fisher county, Tex., where he resided prior to and during the times under inquiry. He received word in September, 1928, that he was wanted in Van Zandt county, in reference to an estate in land he owned in that county. On September 18, 1928, an insanity complaint was made against appellant by one J. G. White, and on said daté appellant, in pursuance of the previous request, was present in the county court, but did not know that an insanity charge was made against him and that he was to be tried on such charge. With the complaint as a basis,.the ease was docketed in the county court of Van Zandt county, styled “The State of Texas v. Cone Johnson Clark, Lunacy, in the County Court of Van Zandt County, Texas.” The county court number of the case is 1344, and it also carries “Probate No. 4286.” The state of Texas was represented by the county attorney, appellee Paul H. Stanford. Appellant, though a minor, was not represented, either by attorney or by a guardian ad litem. These proceedings were had under title 92, R. S. 1925 (articles 5547-5561). A jury was duly impaneled, evidence offered, and the cause submitted to the jury, substantially in compliance with article 5552, R. S. 1925, declaring what issues shall be submitted to the jury. The court’s submission of the special issues and the verdict is as follows:

“No. 1: Is Cone Johnson Clark, the defendant, a person of unsound mind? Answer, ‘Yes.’
“No. 2: If you have answered the first issue in the affirmative, then state whether or not the said Cone Johnson Clark is a proper subject in a hospital for the insane? Answer, ‘No.’
“No. 3: If you have answered the two foregoing questions in the affirmative, then answer the following issue: How long has the said Cone Johnson Clark been an inhabitant of the State of Texas immediately preceding this Date? Answer, ‘All of his life.’
“No. 4: Would the said Cone Johnson Clark be dangerous, by reason of his insanity, if left at large? Answer, ‘No.’
“No. 5: Is the defendant possessed of any real estate, and if so, of what does it consist and estimate its value? Answer, ‘Has an undivided ⅛ int. in 76 ac. of J. Walling Survey of value of $200 and an undivided ⅝ int., in 102 acres’ of P. Mason Survey in Van Zandt County, Texas, of the value of $200.’ A
“No. 7: ' Is the said Cone Johnsón Clark now being held upon a criminal charge of any nature? Answer, ‘No.’ ”

(Signed by six jurors.)

The judgment- entered copied the verdict of the jury and decreed that: “The court is of the opinion that the said Cone Johnson Clark is a person of unsound mind and he is now declared an insane person, and it is ordered, adjudged and decreed by the court that the said Cone Johnson Clark is a person of unsound mind.!’

It is alleged that appellant, because of his youth and his ignorance of court proceedings, did not understand the nature of the proceeding had, and did not know that he was od trial charged with insanity, and did not know that such a judgment was rendered against him; that no explanation of said proceeding was made to him; and that he was not called upon to make any statement or to answer any question.

■ After the judgment of insanity had been entered, appellee R. Clark was appointed guardian of the estate and person of appellant, because he was of unsound mind. Following closely after this guardianship appointment, an oil and mineral lease was executed, by R. Clark as guardian of appellant’s real estate, described in the judgment of lunacy. This lease is owned by appellee the Pure Oil Company, but the record does not disclose whether the lease was originally made to such company, or whether it holds same as an assignee.

On September 14, 1930, appellant, for himself and by James M. Shields, guardian ad litem, filed the petition in question, making the said county attorney, the said guardian, and the Pure Oil Company parties defendant, alleging them to be all of the parties interested in the judgment of lunacy. The Puré Oil Company will be referred to as appellee and the other appellees will be referred to by name. The term appellant, as herein used, will refer to Cone Johnson Clark.

Appellee filed a motion to dismiss the petition and an answer to the merits. The motion to dismiss contained four grounds, viz.: (1) Want of jurisdiction in the court to hear the matter; (b) failure to make the state of Texas a party; (3) failure of petition to disclose that the legal requirements for vacating and setting aside a judgment of lunacy had been complied with; and (4) because several terms of the county court had intervened between the rendition of the judgment of lunacy and the filing of the petition. The answer consisted of a general demurrer, four special exceptions, a general denial, and a special plea that there was no authority in law for appellee to maintain such a suit, and that he was not entitled to recover in the incapacity in which he sued.

The petition of appellant is very full with respect to allegations as to the grounds for relief, but the effect of such allegations may be thus briefly summarized: '(1) That a lunacy trial under said title 92 is a statutory proceeding, in which certain named special issues are directed to be submitted to the jury, and in which the judgment to be entered on the findings of the jury is directed; and that under the findings in the instant case, the only judgment that could have been entered by the court wafe one directing the discharge of appellant; (2) that appellant, from his infancy to the present time, had always been a person of normal habits, normal intellect, and had never at any time exhibited any act or conversation that showed him to be otherwise; (3) that the prosecution on the lunacy charge was-brought through a. conspiracy on the part of appellee and R, Clark to secure to appellee an oil lease upon the lands and properties of appellant at a much lower price than the same was reasonably worth; (4) because the court did not define to the jury any of the legal terms used in the charge, did not place appellant on the witness stand and question him in regard to the condition of his mind, and did not appoint an attorney to represent him in the trial .of the case; (5) that the judgment rendered against him was invalid, because he was not a resident of Van Zandt county, but at said time and for a long time prior thereto he was a resident and citizen of Fisher county, Tex. The allegation as to conspiracy is very full and sufficient, if the facts alleged be proven, to sustain the charge of conspiracy and to invalidate the judgment. Upon the hearing, the motion to dismiss was sustained, on the ground of want of jurisdiction to determine the issues made by the petition, and a final judgment of dismissal was entered. The case is before this court on proper assignments of error.

Appellee has filed a motion to dismiss this appeal, on the ground that this court cannot entertain jurisdiction of the matters involved. Jurisdiction of this court is challenged on two grounds: (1) That a judgment of lunacy under said title 92 is not appealable, and that as the effect of the pleading of appellant is merely to review that judgment, the action of the court thereon is likewise not appealable; (2) or if appealable as a proceeding in the probate court, this court cannot entertain such appeal direct from the county court.

We agree with counsel’s contention that the judgment entered in the lunacy proceeding is final and cannot be appealed, either. to the district court or to this court. Glenn v. State, 48 Tex. Civ. App. 229, 107 S. W. 621; Leonard v. Dallas County (Tex. Civ. App.) 292 S. W. 249. There is, however, a clear distinction between a proceeding designed to set aside a void judgment and a proceeding designed to secure another trial upon the same issues of the former trial, either by means of a motion for a new trial, or by means of a bill of review. The former proceeding is within itself an independent suit, though it may be filed in the cause in which the alleged void judgment is entered; while the latter proceeding is not an independent suit, but is an effort to secure a new trial of the same cause of action in the same forum in which the judgment was rendered.

If the judgment of dismissal in the instant case were based upon a refusal to consider a motioh for a new trial in the judgment of lunacy, or on a motion in the nature of a bill of review seeking likewise a new trial of the issues of insanity, then this court would be without jurisdiction to entertain the appeal from the judgment of dismissal, for the reason that, if an appeal would not lie from the original judgment, it necessarily follows that an appeal would not lie from a judgment dismissing either a motion for a new trial or a bill of review seeking a new trial of the issues in the insanity case.

On the other hand, if the petition filed in the instant case in the county court of Van Zandt county be construed to be the institution of a civil suit in such court to give appellant relief from a void judgment of insanity, then it is clear that an appeal from the judgment entered does lie to this court. An inspection of the petition filed by appellants discloses that it is subject to the reasonable construction that the relief sought is not a retrial of the issues involved in the insanity hearing, but is to set aside a judgment, alleged to be void, because of the fraud practiced on appellant in securing it, and because, irrespective of the question of fraud, the judgment shows on its face that it is void. It necessarily follows that the filing of appellants’ petition instituted a civil suit on grounds that are clearly justiciable. The allegations of fraud are sufficient, if established in court, to vitiate the judgment. When ap-pellee filed its motion to dismiss the petition without a hearing, it admitted, for the purpose of the motion, the truth of these allegations of fraud. Consequently, on this appeal, this court must treat as a fact that the judgment of lunacy was fraudulently procured, and that appellee was a party to such fraud. Hence, in so far as this appeal is concerned, the proceeding below was to set aside judgment void because of fraudulent procurement.

Does the judgment show on its face to be void? Our civil statutes provide for two lunacy proceedings; one in chapter 12 of title 69 (articles 4267-4284), the other in title 92 (articles 5547-5561). The style of title 69 is “Guardian and Ward”; the style of title 92 is “Lunacy-Judicial Proceedings in Cases of.” The primary purpose of the lunacy proceedings, authorized by chapter 12 of title 69, is for the appointment of a guardian for the person and estate of an alleged lunatic. Articles 4267 and 4272, R. S. 1925. Such ease shall be docketed in the name of the county, as plaintiff, and in the name of the alleged lunatic, as defendant. The state of Texas is , not a party to such a cause of action, and neither is the state, or society at large, primarily concerned in such a cause.

A different purpose is manifested by the insanity proceedings authorized under title 92. The case is docketed in the name of the state of Texas, as plaintiff, and in the name of the alleged lunatic, as defendant. Article 5550. The primary purpose of the proceedings under title 92 is to determine whether the alleged lunatic should be confined because of his-danger to, and the safety of, society. This fact is manifested by the issues required to be submitted to the jury trying the case, under the provisions of article 5552; and under the provisions of article 5553, which directs that if the jury should answer either that the defendant is not of unsound mind, or that he is of unsound mind, but that it is not necessary that he be placed under restraint, the other statutory issues shall not be answered, and that the judgment in the case shall be to discharge the defendant. This fact is further manifested by a provision of article 5554, which, in effect, di•rects the court trying the case to enter a judgment of insanity, only in the event that the jury finds both that the defendant is of unsound mind and that it is necessary that hé' be restrained. In the instant case, the record of the insanity proceedings discloses that the jury found that the defendant (appellant) is of unsound mind, but further found that no restraint is necessary. It must be remembered that these proceedings are purely statutory and that the court trying the case has only such authority as is either expressly given or clearly implied by the controlling statutes. It is expressly declared by statute that, if the jury finds that it is not necessary to place the defendant under restraint, the court shall discharge him, and it is necessarily implied-that a judgment to that effect shall be entered and that no other substantially different judgment can be entered under such a finding. If the court entered a judgment, not in substantial compliance with such statutory mandate, such court acted in excess of its authority and such judgment is void. It therefore appearfe that the judgment of the trial court is shown by the record to be void. As a void judgment, it is subject to be set aside, either by direct suit filed for that purpose, or it can be collaterally attacked and held invalid in any proceeding in which such judgment is made a basis for any character of claim against appellant.

In our opinion, the petition filed by appellant in the county court is a direct attack upon this judgment, institutes a civil suit to set it aside, and that an appeal will lie to this court from the judgment of dismissal.

The jurisdiction of the county court to entertain a suit to set aside a lunacy judgment is attacked. The question on this issue is: Is the copnty court given jurisdiction to set aside a void judgment of lunacy rendered by the judge of the county court, while presiding as judge in the said lunacy proceedings? The record shows that the lunacy case was'given a county court -number, and hence must have been placed on the docket of the county court. The lunacy judgment is thus given the effect of a judgment of the county court. When appellant filed its petition in said cause, under the county court docket number, he entered the jurisdiction of the same presiding judge that pronounced the lunacy judgment; he likewise entered the jurisdiction of the same court in which the void judgment was made a basis for appointing a guardian of his person and estate, and we see no reason why the county court is not authorized to entertain jurisdiction to annul a judgment entered by the presiding judge of such court. We therefore overrule this contention.

It necessarily follows that, in our opinion, the judgment dismissing the petition filed in this cause should be reversed, and the cause remanded for a hearing on the merits of the petition, and it is so ordered.

Reversed, and remanded.


text:
    Henry CLARK et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 10828.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1931.
    Rehearing Denied Feb. 14, 1931.
    McEntire, Shields & Elam, of Canton, and Beall & Beall, of Sweetwater, for appellants.
    . Vinson, Elkins, Sweeten & Weems, of Hous•ton, and Wynne & Wynne, of Wills Point, for appellees.
   JONES, C. J.

This is a companion case of Cone Johnson Clark et al. v. State of Texas et al., 35 S.W.(2d) 488, this day decided by this court. The questions involved on this appeal are identical 'with the questions involved on the appeal in the other case, and we therefore enter the same order, reversing and remanding this case for a new trial on its merits.

The Cone Johnson Clark Case, supra, is referred to for a statement of the issues and the reason for the order herein entered.

Reversed and remanded.