author: BUCK, J.

text:
    SECURITY UNION INS. CO. v. GULLETT.
    No. 12429.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1931.
    Rehearing Denied March 14, 1931.

      Bullington, Boone, Humphrey & King, of Wichita Falls, for appellant.
    E. W. Napier, of Wichita Falls, for appel-lee.
   BUCK, J.

W. A. Gullett sued the Security Union Insurance Company, a corporation, for compensation alleged to be due him by reason of personal injuries received on July 31, 1929, while he was working for the Everetts Drilling Company at Walters, Okl. He alleged that the average daily wage for an employee of the same class as he was, working substantially all of the immediately preceding year, was $5 a day. He alleged he was 19 years of age, and prior to said injuries had been exceptionally strong and robust; that he possessed a fair education and was reasonably intelligent; that he was a good worker and had always given satisfaction to his employer. Therefore, he averred, within two ox-three months of the time of his injuries his average weekly wage would have been $35 a week; that the contract of employment was entered into in Wichita County, and that at the time of his injuries his employer was engaged in a business subject to the Workmen’s Compensation Act of the state of Texas;. that within 30 days of the time of said injuries the plaintiff notified the Industrial Accident Board and the employer of his injuries, and thereafter, within six months of the time of said injuries, plaintiff filed his claim for compensation with the Industrial Accident Board in the manner prescribed by law, claiming compensation of said defendant by reason of said injuries and for the disability produced by said injuries. He alleged that the accident had injured his index finger, causing it to be stiff, and also had necessitated an operation for appendicitis, and that he was totally disabled.

He further alleged that the Industrial Accident Board set his claim for hearing on November 26,1929, and thereafter on the 4th day of December, 1929, said board made its final ruling and decision in said case; that thereafter on the 9th day of December, 1929, the plaintiff gave notice in writing to the hoard that he was not willing and would not consent to abide by the ruling and decision of the board in said cause, and that he would file a suit within 20 days of said date in a court of competent jurisdiction for the purpose of setting aside the award of the board and for such relief a-s he might be entitled to under the law, and did on December 23, 1929, file in the district court the claim to set aside the judgment and award of the Industrial Accident Boai-d, and for general relief.

Plaintiff further alleged that he had been forced to employ an attorney, and had assigned to him one-third of his claim, which was the usual and customary fee for such services and the amount prescribed by the Workmen’s Compensation Act. He further alleged that he had a wife and a small child who were dependent on him for support; that neither he nor his wife owned or possessed any property of any kind whatever and that they have no income or means of support other than the proceeds of the labor of plaintiff; that he is indebted in la-rge sums t-o various persons, including a hospital bill, which debts have been incurred since his injuries, for which he claimed compensation in the sum of $500, and that in all probability he will be compelled to have an operation and medical treatment which will require several hundred dollars; that by reason of these facts he should be entitled, under the law, to a lump sum settlement, for which he prayed.

Defendant pleaded a general demurrer and certain special exceptions and a general denial, and further pleaded that any injury which the said plaintiff received did not cause his appendicital operation, but that the only injury he received and for which he put in a claim before' the Industrial Accident Board was an injury to his finger which has been fully and completely paid.

The cause was tried before a jury on February 25, 1930, and the jury in answer to special issues found that (1) plaintiff, on July 31, 102-9, fell upon or against the rotary or some part thereof; (2) that he suffered internal injuries therefrom; (3) that the plaintiff’s falling against the rotary table was the proximate cause of his internal injuries; (4) that the plaintiff was incapacitated to work by reason -of such internal injuries; (5) that he was totally incapacitated to work for any period of time by reason of such injuries; (6) that such disability was permanent; (7) that plaintiff suffered an injury to his left hand by reason of the accident; (8) that such injury caused a disability; (9) that the injury to his hand caused a disability for a period of 35 days; (10) that the injury t-o his index finger of his hand caused a disability of 50 per cent.; (11) that the average weekly wage of W. A. Gullett at the time of the injury, which was deemed just and fair to both parties, was $35 a week; (12) that the daily wage of an employee of the same class, working substantially the whole of the year immediately preceding the time of the plaintiff’s injury, was $6 a day; (13) that plain-, tiff was entitled to a lump sum settlement; (14) that plaintiff was not discharged on or about July 29, 1929, from his employment.

The court entered judgment for plaintiff against the insurance company for the sum of $6,443.85, from which judgment the defendant has appealed.

Opinion.

It will be remembered that the plaintiff sued the Security Union Insurance Company, and no special exception to the designation of the employer as the Everetts Drilling Company was urged in the court below. On a- motion for new trial it was urged that there was a variance between the allegation that the employer was the Everetts Drilling Company and the evidence that C. A. Everetts was the employer named in the insurance policy ; whereupon the court permitted the plaintiff to amend his pleadings by a trial amendment, in which he alleged that the Everetts Drilling Company ¿nd C. A. Everetts are one and the same person, and that plaintiff was. employed at the time stated in his petition by the said O. A. E-veretts. Appellant urges here, as he did in his motion for new trial, that the trial court erred in allowing a trial amendment after the jury’s verdict was rendered over the objection of defendant..

The evidence further shows that the insurance company had paid the claimant $17.-30, and had previously paid to N. L. I-Iind-geons $64.43, a total of $81.73, and had made no objection to the claim on the ground that it did not insure the Everetts Drilling Company, bpf did insure C. A. Everetts.

In Kelsey v. Myers, 29 S.W.(2d) 855, 858, the Court of Civil Appeals at Eastland said: “Further, to present the question of variance as one of law, the evidence should have been objected to on that ground at the time it was offered, or when the variance became apparent, the counsel should have moved to exclude the evidence, or at least in some appropriate way raised the question and given the trial judge an opportunity to pass on it. Dallas Plumbing Co. v. Harrington (Tex. Civ. App.) 275 S. W. 190, and authorities therein cited, and 21 R. C. L. p. 606, § 149.”

It is well settled in this state that the question of variance is never material in the absence of surprise. Certainly the defendant could not have claimed to have been surprised in this case, since, from the time that the claim was filed before the board, many months before the suit was filed, the claimant and the Industrial Accident Board always named the employer as the Everetts Drilling Company. The defendant at no time ever denied its liability to this plaintiff, but had actually paid him some compensation. It had paid his hospital bills and doctors’ bills. Its own receipts and correspondence show that C. A. Everetts was the employer, and there was not even a suggestion on the part of the defendant of surprise.

In 49 Corpus Juris, p. 810, § 1191, it is said: “Modern authorities hold that no variance between the allegation of a pleading and the proof offered to sustain it shall be deemed material if the adverse party is not surprised or misled to his prejudice in maintaining his action or defense upon the merits.”

That text is supported by authorities from various jurisdictions, among them about twenty-five Texas cases, some of which are McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721, Wilson Hydraulic Casing Pulling Mach. Co. v. James (Tex. Civ. App.) 271 S. W. 424, and other cases.

In Federal Surety Co. v. Ragle, 25 S.W.(2d) 898,. 901, this court said: “We overrule as immaterial tlie further contention that the evidence shows that the Shaw & Rathke is a corporation, and riot a partnership as alleged by the appellee in his cross-action for compensation. This fact only incidently appeared in the testimony of a witness while being ex- ' amined. It was not made the basis of a defense in any way. There is no contention that Shaw & Rathke were not subscribers or that appellee was not,employed by them. At most it can amount to,no more than a variance in matter not in issue. In every case, to be fatal, a variance must be such as to surprise or mislead the parties to be charged, ifee Sealy Cotton Co. v. Gustafson & Spencer, Inc. (Tex. Civ. App.) 258 S. W. 911.”'

It is urged under the authorities cited that appellant is estopped to raise the question. See, also, Texas Employers’ Insurance Ass’n v. Newton (Tex. Com. App.) 25 S.W.(2d) 608.

Appellant relies upon the case of New Amsterdam Casualty Co. v. Harrington, 290 S. W. 726, by the Commission of Appeals, in which it is said:

“The evidence shows that a copartnership composed of Gragg and others was the employer, and that Harrington was engaged by Gragg to work for the copartnership. And though the evidence, by reason of the notice given the board by the casualty company, may show that the company by the issuance of the policy intended to provide for the payment of compensation to the employees of ■the copartnership, and that the policy was issued in the name of Gragg for the use and benefit of the copartnership and its employees, thereby in law making the copart-nership the holder of the policy, yet there is no allegation contained in Harrington’s pleadings to support a cause of action based on these facts. A copartnership is a legal ■entity distinct from the individual members composing it, and the allegation that Gragg was Harrington’s employer is not shown by proof that a copartnership composed of Gragg and others was his employer.
“Our statutes provide that the judgment of the court shall conform to the pleadings, the nature of the cause proved, and the verdict. While the judgment in this case conforms to the pleadings and verdict, it does not conform to the nature of the cause proved. The proof is at such variance from the cause of action alleged that the court would not be warranted in sustaining the judgment.' Western Union Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567; Bank of Garvin v. Freeman, 107 Tex. 523, 181 S. W. 187.”

Upon this alleged variance, the Commission of Appeals held that the judgment of both courts should be reversed arid the cause remanded. This judgment was approved by the Supreme Court.

In Fowler Commission Co. v. Charles Land & Co., 248 S. W. 314, by the same section of the Commission of Appeals that wrote the New Amsterdam Case, the court held that, to constitute a variance, the difference between pleadings and proof must be such as to mislead or surprise.

In McCord-Collins Co. v. Pritchard, 37 Tex. Civ. App. 418, 84 S. W. 388, 389, writ of error denied, it was held by this court that, where the plaintiff charged that defendant was liable for injuries tb him, but inadvertently misnamed the defendant, the misnomer was waived, and it was immaterial whether defendant was ever properly served with citation or whether it was correctly described in the petition or not. Judge Speer, speaking for this court, said: “In the view we take of the case, the eighth special finding of the jury, to the effect that the original answer, filed February 12, 1900, and the amended answer, filed April 21, 1900, were filed for and on behalf of the appellant, if supported by the evidence, is decisive of all questions in this case, and necessarily leads to an affirmance of the judgment. Of course, if appel-lee really intended to sue the appellant— and the jury has found that he did — and if appellant appeared and answered his suit, it is immaterial whether it was ever served with citation, or whether it was correctly described in his petition. An answer failing to suggest the misnomer would amount to a waiver of such irregularity, and authorize a judgment against it.”

We are inclined to think that the variance as to the employer was waived by the defendant insurance company, and that it becomes immaterial, although the case of New Amsterdam Cas. Co. v. Harrington (Tex. Civ. App.) 11 S.W.(2d) 533, seems to be to the contrary.

It is urged that the supersedeas bond filed in the court below did not give the appellant the right to appeal, and that the bond filed in answer to a motion of appellee to dismiss the appeal is' insufficient. The bond given in the court below is signed by the Security Union Insurance Company and attested by Christie and Hobby, Inc., M. B. Rankin, secretary. It was urged by appel-lee, in his motion to dismiss, that neither of the persons purporting to sign as sureties intended to sign as sureties, and that they were insolvent.' In answer to the motion to dismiss and the order of this court allowing appellant to file a new bond, appellant has filed a new bond which is an appeal bond, filed by the receiver of the insurance company, it having later gone into a receivership, and the surety on the bond, is the Globe Indemnity Company. In the absence of any showing that said Globe Indemnity Company is not authorized to make this character of bond, we do not see any objection to tbe bond last filed, and overrule tbe motion to dismiss for lact of sufficient bond.

Article 2272, Rev. Oiv. Statutes of 1925,' provides:' “In all cases carried by appeal or writ of error from tbe district or county court to tbe Court of Civil Appeals or to tbe Supreme Court, in wbicb a supersedeas bond shall be given, and whenever the said bond shall become insufficient by reason of tbe insolvency of the sureties on such bond, or from any other cause, the court in which the said appeal or writ of error is pending, shall, upon proper showing of such insufficiency being made, require the giving of additional supersedeas bond in like amount as the original, to be approved by the clerk of the court in which said appeal or writ of error is pending.” See Prusiecki v. Ramzinski (Tex. Civ. App.) 81 S. W. 549.

Where appellant files a defective bond within 20 days after judgment and thereafter substitutes a valid one, the appeal will not be dismissed for failure to file a bond within the time limited. Eaton v. Klein (Tex. Civ. App.) 141 S. W. 828. A motion to dismiss an appeal on account of insufficiency of appeal bond will be overruled, where appellant tenders bond which meets objections made. Turner v. First Nat. Bank (Tex. Civ. App.) 234 S. W. 928. Defects in amount and number of sureties may be cured by filing a new bond. Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722,; King v. Hopkins, 42 Tex. 48; Tynberg Case, 76 Tex. 418, 13 S. W. 315; Ricker v. Collins, 81 Tex. 662, 17 S. W. 378; Davis v. Estes, 4 Tex. Civ. App. 207, 23 S. W. 411. We overrule the motion to dismiss.

Appellant further urges that the court erred in permitting the trial amendment setting up the allegation that the Ever-etts Drilling Company and C. A. Everetts were one and the same. An amendment Is allowed in the discretion of the court for the purpose of curing a defect in the pleadings. Johnson v. Bingham (Tex. Civ. App.) 251 S. W. 529. In that cáse the court permitted a trial amendment to be filed after a verdict had been returned, and the appellate court discussed the propriety of such a proceeding at some length. See Rea v. Johnson (Tex. Civ. App.) 270 S. W. 1077; Thomas v. Basden & Carrell (Tex. Civ. App.) 22 S.W.(2d) 959; Employers’ Casualty Co. v. Irene Independent School District (Tex. Civ. App.) 286 S. W. 539; Dancy v. Peyton (Tex. Civ. App.) 282 S. W. 819. We overrule this assignment.

Under section 19, article 8306, of the Revised Statutes (Workmen’s Compensation Act), it is provided: “If an employee who has been hired in this State sustained injury in the course of his employment he shall be entitled to compensation according to the law of this State, even though such injury was received outside of the State.”

In other words, appellant urges that it was necessary under this article for plaintiff to have negatived this proviso, and to have shown in his pleadings that he had filed ho' claim for compensation in the state of Oklahoma and under the compensation laws of that state, and that he did not elect to pursue his remedy and recover in the courts of Oklahoma, the state where the injury occurred. He cites the ease of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, in which it was held that, in a suit to set aside the award óf the Industrial Accident Board, eách step toward collection of compensation claims from time of injury to final adjudication is mandatory and all rights under the Workmen’s Compensation Law are to be enforced strictly, according to the statutory provision. He cites the case of Nobles v. Texas Indemnity Ins. Co. (Tex. Com. App.) 12 S.W.(2d) 199,' where the principle was announced that the burden of proof was upon the complainant, to establish each fact as shown in the case. We see no ground to sustain the contention-made, and overrule it.

In its objections to the charge of the court, appellant, defendant here, requested the court to give a definition of the word “permanent.” This the court did not give. There is in the charge an instruction defining the words “total incapacity,” which seems to be satisfactory to the appellant. But should the court have defined the word “permanent” as applied to “disability”? Some of us are of the opinion that such definition should have been given. See Texas Indemnity Ins. Co. v. James (Tex. Civ. App.) 297 S. W. 254; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W. (2d) 570. The writer thinks that the meaning of the word “permanent” is so well known by the average citizen and juror that no definition is necessary, but some of the court think that the word should have been defined, and that failure to 'do so constituted error.

We sustain appellant’s assignment directed to the failure of the evidence to, support the conclusion of the jury that the plaintiff below was. permanently injured. Dx. Parnell is the only medical witness who testified upon this point. He said: “Mr. Gul-lett is having a good deal of trouble now, has been having a good deal of trouble ever since he was hurt, and he is having as much trouble practically now as he was the first time that I examined him. I do not now remember exactly how long that has been, but I presume that it has been a couple of months, as well as I can remember, and he is totally disabled at the present time from doing anything, that is in the way of work, that would require any exertion, anythihg that we would call labor and which is due, in my opinion, to adhesions having formed both internally and externally — we do not know how much damage there is in there, but I judge there has been, and on the outside we can see that the skin has adhered to the tissue, the tissue is the covering over the muscle; it is a strong covering put there to cover the muscle. It is a soft fibrous coat. ⅞ * * There are a great many people who have some adhesions that do not cause a great deal of trouble. Yet there are others that are absolutely disabled from adhesions. * * ⅜ with reference to whether this boy is likely to improve or not, that is problemati-' cal I believe that the boy is going to have further trouble, I believe that it will’be six months before he can expect to recover to any appreciable degree, and beyond that time I would hate to venture a guess, because it is just a gamble, he may improve or he may not. He might possibly get worse; we cannot tell about that. There is no way in the world to tell what the future is going to bring about. It is true that he may improve in a few months or get worse. He may improve in a slight degree and not improve completely. Now I do not think that he will ever be completely recovered — experience has shown that in any surgical risk, that you always find adhesions.”

On cross-examination, he testified: “I say that within six months he may probably get better. He could not do anything in the way of labor now. Take bookkeeping or something like that, he could sit down and stay in a position, in other words, he could do mental work. He might be able to do some work within six months. I cannot tell. It is just venturing a guess, and I do not want to put a guess in the testimony. Sometimes we have to operate for adhesions, following an operation. Sometimes a patient will get along all right. I did not see this boy for several months after he claimed to have gotten hurt. I do not know what caused the appendicitis and do not know what caused the adhesions, only from what information I could gather — his statement and the history I got. Dr.’ Kimbrough operated, and Dr. Deake, of Burkburnett. I did not see him at that time. I know no more about what caused the appendicitis than just the history, of the case.”

This is substantially all of the evidence that was given on whether or not the plaintiff below was permanently incapacitated. The plaintiff’s father, W. T. Gullett, and his wife, Mrs. W. A. Gullett, both testified., but neither testified to facts upon which the jury would have been authorized to find that the plaintiff was permanently disabled. Where an injured person has lost his hands or arms, or has ],ost his legs or feet, or is blind by reason of his injuries, the lay witness may testify that he cannot recover the use of the lost limb or organ, but not ⅛ this character of case. We all think that this assignment should be sustained and the case reversed.

Complaint is also made upon an instruction of the court to the jury that the burden of proof was upon the plaintiff to establish by a preponderance of the evidence the affirmative of certain issues, and to establish by a preponderance of the evidence the negative of two other issues. We do not see any objection to this charge on the ground stated. In Linn Motor Co. v. Wilson (Tex. Civ. App.) 14 S.W.(2d) 867, 868, the trial court submitted the cause to the jury upon special issues and told them that the jury were the sole and exclusive judges- of the facts prbved, the credibility of the witnesses, and the weight to be given the testimony, but that they would receive the law of the case from the court as was given in the charge, then gave the jury the following charge on the burden of proof: “The burden of proof rests upon the plaintiffs to establish by a preponderance of the evidence of the facts necessary to their recovery.”

That was a charge upon the burden of proof applying to the entire case and not applied to special issues. We think that case easily distinguishable from the one before us.

Eor the reasons heretofore given, the judgment of the trial court is reversed, and the cause is remánded for a new trial not inconsistent with this opinion.


source: Caselaw Access Project

author: BUCK, J. DUNKLIN, J.

license: Public Domain

text:
    BAILEY v. WOODRUM TRUCK LINES.
    No. 12394.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    Rehearing Denied Jan. 17, 1931.

      Robert H. Hopkins, of Denton, and W. F. Smith, of Oklahoma City, Okl., for appellant.
    Oollins & Houston, of Dallas, and Sullivan, Speer & Minor, of Denton, for appellee.
   On Appellee’s Motion to Dismiss Appeal.

BUCK, J.

Appellee has filed a motion to dismiss the appeal in this ease on the ground that the order overruling appellant’s motion for a new trial was made on the 20th day of December, 1929. Court adjourned on the 21st day of December, 1929. The appeal bond was filed on •the 11th day of January, 1930. Article 2253 of the Rev. Civ. Statutes of 1925, as amended by the Fortieth Legislature, c. 15, p. 21, § 1, requiring the filing of appeal bonds, reads as f ob lows:

“An appeal may, in cases where an appeal is allowed, -be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required -by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days -after the expiration of the term. If the term of -court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the -appeal resides in the county, and within thirty days, if he resides out of the county.”

It is urged that the filing of the -bond within 20 days after adjournment of court is jurisdictional. Kolp v. Shrader (Tex. Civ. App.) 168 S. W. 464; Hartsough-Stewart Const. Co. v. Harty & Vogelsang (Tex. Civ. App.) 183 S. W. 1; Edens v. Cleaves (Tex. Civ. App.) 206 S. W. 722. It is urged that the statute extending the time íot filing -to thirty days applies only when the term of court at which the case is -tried lasts more than eight weeks, and has no application in this case. Rose Mfg. Co. v. Shahady, 258 S. W. 207, by the San Antonio Court of Civil Appeals.

Appellant has filed a reply to the motion, in which the attorney for the appellant makes this affidavit:

That the appellant was at the -time of the trial a resident of Weslaco in Hidalgo county, Tex.; that at the time of the institution of this suit he was a resident of Seminóle, Old.; that, immediately after the motion for a new trial had been overruled in said cause and notice of appeal given to this court, the attorney for appellant prepared an appeal bond and mailed the same to the appellant at Weslaco, Tex.,’ and that the same was executed by the appellant and his sureties and returned to his attorney within due course; that appellant’s attorney does not remember the exact date on which the same was returned to him, but does make oath that he received the same at Den-ton, Tex., several, days before the 10th day of January, 1930, and that, immediately upon receipt of the same he took the same to. the district clerk and -presented the same for approval, inasmuch as the bond had been made without the county; that the appellant had the same certified .by the proper officer in Hidalgo county as to. the solvency of the sureties, and this matter was discussed with the clerk at the time of the delivery of said bond to him, -and he stated that under said certificate he was satisfied as to the solvency of said sureties; that said bond was left with the clerk, the exact date is not known to affiant, but he does, state that it was several days before the 10 th day of January, 1930, and is under the impression that it was prior'to, or just after. January 1, 1930, and he presumed that the same was filed as of that date and that he did not learn until this motion was filed that the same showed to have been filed as of date January 11, 1930.

Affiant further states that, at the time he left the bond with the clerk, he stated to him that he desired the bond filed within twenty days after the date of the court’s adjournment, and if the clerk desired to make any further investigation as to the sureties thereon, that it would be all right with the appellant, but that the same must be filed within the twenty days, and the clerk then stated that he was satisfied from the certificate accompanying said bond -that said sureties were sufficient. Affiant further states upon oath that said bond was duly deposited with, and approved by, said clerk long before January 10, 1930.

We think that this affidavit makes it apparent that the bond was filed within twenty days after the adjournment of the court.

A mortgage is “filed,” within Wilson’s Rev. & Ann. St. Okl. 1903, § 1284, when it is delivered to the proper officer and by him received for the purpose of being recorded, and the neglect or mistake of the register of deeds in recording the instrument does not affect the mortgagee. Covington v. Fisher, 22 Okl. 207, 97 P. 615, 617. A paper or document is said to .be “filed” when it is delivered to the proper officer and lodged by him in his office. Barber Asphalt Paving Co., v. O’Brien, 128 Mo. App. 267, 107 S. W. 25, 29. A paper is “filed” when it is -delivered to the proper officer and by him received to be kept on file. See authorities cited in 2 Words & Phrases, Second Series, p. 531.

Therefore the motion to dismiss is overruled.

DUNKLIN, J., absent and not sitting.

On the Merits.

DUNKLIN, J.

A collision occurred between an automobile driven by F. G. Bailey and a Ford truck owned by the Woodrum Truck'Lines, a copart-nership composed of J. B. Woodrum and Elbert Woodrum. At the time of the collision O. W. Hampton, an employee of the partnership firm, was driving the truck which was then being used in the prosecution of the firm’s business. The collision occurred on the highway connecting the cities of Denton and Gainesville, while Bailey was traveling in a northerly direction and the truck was traveling in a southerly direction.. The two cars met and collided with each other on the west edge of the paved highway, and, as a result thereof, both were damaged and both drivers sustained personal injuries.

This suit was instituted by Bailey against the owners of the truck to recover damages for his personal injuries and for injury to his car, and he has prosecuted an appeal from a judgment denying him any relief.

In answer to special issues submitted, the jury returned findings that the driver of the truck was not guilty of the negligence on which plaintiff based his suit in the manner he was operating the truck just prior to. and at the time of, the collision. There were further findings that plaintiff was not guilty of the alleged contributory 'negligence on his part, which was pleaded by the defendant, and that the collision was an unavoidable accident.

Issue No. 4 was the one embodying the defense of unavoidable accident, which was submitted with express reference to this definition given in paragraph 5 of the charge:

“An unavoidable accident as that term is used in this charge is one which could not have been foreseen and prevented by a person by. the exercise of ordinary diligence, and being one that results without fault on the part of either party.”

Plaintiff objected to the submission of that issue in the following language:

“The evidence in this case does not raise the issue of unavoidable accident and the-court erred in the 5th paragraph of his charge wherein he defines unavoidable accident, and he also erred in submitting special issue No. 4 in his charge, for the reason, as before stated, the evidence in this case does not raise these issues.”

“Unavoidable accident” is a legal pbrase .applicable to different situations, and when used .in the court’s instructions to a jury it becomes necessary to give further instructions in order that it may be properly applied in determining the issues of fact involving that defense. Hence we fail to perceive the necessity of using the term “unavoidable accident” in submitting that defense to a jury; it being the duty of the court to submit to the jury separately a fact or group of facts upon which a finding may be made which will show a right of recovery on the part of the plaintiff or a defense to that right on the part of the defendant. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Id. (Tex. Civ. App.) 196 S. W. 647, 648, and authorities there cited. Indeed, we believe it to be the better practice to submit the issues of fact involved in the defense of assumed risk and omit the use of the term as being unnecessary, and possibly tending to impress the jury with the fact that the(truck driver owed to plaintiff a higher duty than the exercise of ordinary care to avoid the collision.

The observation just made is illustrated in the decision of our Supreme Court in G., H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534, 538, in which the judgment of the trial court was reversed for failure of the trial judge to submit the issue raised by the evidence as to whether or not plaintiff’s fall under a moving train was caused by his stumbling and falling while standing by the side of the track waiting for the train to pass; plaintiff’s suit being based upon the alleged negligence of the defendant in maintaining a defective plank crossing over its track, and by reason of which plaintiff’s foot was caught in an open hole in the plank, and, while he was trying to extricate his foot, he was run over by the engine and cars, and both his legs were cut off. The defendant had introduced the deposition of the plaintiff and also his ex parte affidavit to the effect that, while standing near the. track, his foot stumbled, and by reason thereof both of his legs went under the passing train. On appeal, the Court of Civil Appeals (25 Tex. Civ. App. 600, 63 S. W. 538, 542) held that the judgment should be reversed for failure to submit the requested issue, saying in part:

“The issue of unavoidable accident was clearly raised by this evidence, and such issue was not submitted to the jury by the court in his main charge.”

Our 'Supreme Court, after quoting the above from the opinion of the Court of Civil Appeals, said:

“We must look at the court’s charge as practical experience teaches that a jury, untrained in the law, would view it; and, so regarding it, we are of opinion that a jury might not have understood that the general denial made the issue of unavoidable accident, or that the injury had occurred in a manner not alleged and claimed by the plaintiff, neither of which issues was expressed in the charge of the court. While it is true that the general terms in which the court’s charge is expressed would, as matter of law, include the defenses presented by the special charge, it is apparent that the judge who tried the case believed that the charges on contributory negligence embraced the special charge, which position is strenuously contended for by counsel for appellee; and it is not to be supposed that the jury considered an issue not developed by the charge of the court. Under such circumstances the defendant had the right to call upon the court to submit specifically the group of facts and circumstances which raised the issues expressed in the special charge. Without this protection, the jury, in rendering a general verdict under a charge so general as that given, may have disregarded a defense which they might have given effect to if it had been brought to their attention. The facts of this ease and the character of the charge are such as to render the refusal of the requested charge a serious deprivation óf a valuable right from which we cannot say injury did not result.”

That decision of our Supreme Court has been cited by the appellate courts of this state in almost every decision in which the defense of “unavoidable accident” was involved, and in most instances the opinion was interpreted as indicating that the requested instructions presented the defense of unavoidable accident, as held by the Court of Appeals. But we do not so believe.

It is our conclusion that unavoidable accident as a defense separate and distinct from the issues of negligence is not merely by the evidence pro and con, bearing on the issue of negligence.' It becomes a separate and distinct issue for submission to the jury •in a proper form in the event only of the introduction of some evidence tending to show that the injury complained of resulted solely from some condition or act for which the defendant is not chargeable, such as in the Washington Case, supra; or that it resulted from some unknown and wholly conjectural cause; or in some manner that cannot be explained, as was true in such cases as C. & S. Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908; Magnolai Petroleum Co. v. Ray (Tex. Civ. App.) 187 S. W. 1085; K. C. M. & O. Ry. Co. v. Swift (Tex. Civ. App.) 204 S. W. 135; Northern Texas Traction Co. v. Adams (Tex. Civ. App.) 241 S. W. 275; American Glycerin Co. v. Kenridge Oil Co. (Tex. Civ. App.) 295 S. W. 633.

In the present suit, there was no evidence introduced tending to support the defense of unavoidable accident, properly interpreted, as a separate and distinct defense from the issues of negligence and contributory negligence; all of the evidence being pertinent to those issues and the measure of damages. Hence there was no proper basis for submitting the defense of unavoidable accident in any form, as a separate and independent defense. Boyles v. McClure (Tex. Com. App.) 243 S. W. 1080; Wichita Falls Traction Co. v. Craig (Tex. Civ. App.) 250 S. W. 733; Northern Texas Traction Co. v. Armour (Tex. Civ. App.) 290 S. W. 544 ; Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108; Eastern Texas Electric Co. v. Hunsucker (Tex. Civ. App.) 280 S. W. 887; Rosenthal Dry Hoods Co. v. Hillebrandt (Tex. Civ. App.) 299 S. W. 665. It is to he noted that in each of the decisions just cited the ruling was made that there was no error in failing to submit the issue of unavoidable accident — the rulings were not that error was committed in submitting the issue.

However, we have reached the conclusion that the submission of the issue of unavoidable accident, with the definition given by the court in connection therewith, could not reasonably have resulted in harm to the plaintiff; especially since the finding under the first issue submitted, in substance, that defendant was not guilty of the negligence on which plaintiff’s suit was based, was itself a separate and full defense to plaintiff’s action. G., H. & S. A. Ry. Co. v. Gormley (Tex. Civ. App.) 35 S. W. 488; Hill v. Hoeldtke, 164 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; G., H. & H. Ry. Co. v. Sloman (Tex. Civ. App.) 195 S. W. 321.

In rebuttal of the testimony of plaintiff’s witness, Sidney Willis, which tended to show that the collision resulted from the negligence of defendant’s truck driver, the defendant introduced Ted Lewis, the sheriff, who testified that he had gone to the place where Willis said he was when he witnessed the accident, and that, by reaspn of certain natural obstructions to his view, it would have been impossible for Willis, from that location, to see the two cars as they approach-, ed the place of collision.. After introducing that testimony, counsel for defendant in open court and in the presence of the jury offered and requested the court to permit the jury to go to the place of the accident and there view the surroundings. Plaintiff’s counsel objected to the granting of the request so made, and, notwithstanding its refusal by the court, took a bill of exception to the action of defendant’s counsel in making the offer in the presence of the jury, on the grounds, first, that it is not permissible for the jury to take such action while trying a case; and, second, because the refusal of plaintiff’s counsel to agree to the offer so made by defendant’s counsel would likely be considered by the jury as an admission of the truth of what defendant’s witness Ted Lewis had testified on the point in question.

On the issue as to whose fault it was that brought about the collision, the evidence was sharply conflicting. The testimony of several witnesses for the plaintiff would support a finding that the collision was the result of negligence of the truck driver, while according to the testimony of several witnesses offered by the defendant it was occasioned through negligence of plaintiff and not through any negligence on the part of defendant. Manifestly, it would have been error for the court to grant the request of defendant’s counsel to have the jury go out and view the place of the accident with its surroundings. Numerous decisions might be cited in which judgments were reversed on account of the action of the jury in viewing the premises where accidents occurred, resulting in suits for damages, while they were deliberating on their verdicts; such action being misconduct of the jury. To allow the jury to view the premises and to be governed or influenced by what they themselves discovered, thus making themselves witnesses, would be in violation of their duty to reach a verdict from the evidence heard on the witness-stand and instructions of the trial court. Furthermore, it would be impossible to put into the record the facts so discovered by the jury on an investigation made by them. Olearly, plaintiff’s counsel had the legal right to object to the granting of the motion made by defendant’s counsel, and plaintiff should not be prejudiced for exercising that legal right; yet his refusal to agree to that action by the jury might probably be construed by them as an admission that the testimony of plaintiff’s witness Sidney Willis was untrue. We can perceive of no reason, in principle, for distinguishing the action of defendant’s counsel, noted above, and thus placing plaintiff’s counsel in a situation which the jury might construe as an admission against the interest of his client, from an argument made to them on facts not introduced in evidence, or from an erroneous admission of evidence. Since the action taken was reasonably calculated to prejudice the right of plaintiff, such an injury will be presumed, -in the absence of any showing in the record that it did not operate to plaintiff’s harm. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765.

For this error, the judgment of the trial court will be reversed, and the cause remanded. •


text:
    ESTACADO OIL CO. v. PARKER.
    No. 12400.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    John W. Hill, of Uvalde, for appellant.
    Marshall & King, of Graham, for appellee.
   BUCK, J.

This is an appeal from a judgment of the county court of Young county, in which R. C. Parker recovered a judgment against the Estacado Oil Company. The trial court rendered judgment for the plaintiff for $566.43, together, with costs. It further foreclosed a general contractor’s lien against certain property and materials furnished by the plaintiff, consisting of one spudder, one McCormick’s engine, and other material and tools.

Appellant has not filed in this court a statement of facts, nor a brief. However, the appellee has filed a rather extended brief, discussing the various questions raised by the assignments of error. The only serious question presented is that the county court did not have jurisdiction to foreclose a lien on a lease for gas and oil held by the defendant. We notice in the original petition that this lease is recited, but in the amended petition the plaintiff asked for only a foreclosure on the personal property. Hence we conclude that the suit did not involve a foreclosure on real estate. Since the case of Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989, it has been held that a leasehold interest for gas and oil affects real estate, and, therefore, that the county court has no jurisdiction of such action. But, taking the ease in its entirety, we conclude that the plaintiff did not mean, to ask for, and in fact did not ask for in his second amended petition, a foreclosure on real estate.

There were two notes given by the defendant company, dated August 1, 1929, each for $500, principal, and due, the first, 60 days after date, and, the second, 90 days after date. The plaintiff filed his affidavit fixing a lien on said personal property on December 16, 1929. The first note-was not due until 2 months after it was executed, and the second note was not due until 3 months after it was executed.

Article 5453, Rev. Civ. Statutes provides;

“Every original contractor, within four months, and every journeyman, day laborer, or other person, within thirty days after the indebtedness accrues, shall file his contract in the office of .the county clerk of the county where the property is situated to be recorded in a book kept by the county clerk for that purpose.”

Article 5453 does not create the lien, but merely fixes the lien, and, when once fixed, it relates back to the inception of the contract. Hence we conclude that the affidavit was filed in due time.

After the court had overruled defendant’s exception to plaintiff’s petition, but at the same time and in the same order, upon request of plaintiff, plaintiff was given authority to amend his original petition. In the afternoon of appearance day, and after the call of the appearance docket, defendant demanded a jury. Defendant’s counsel was informed in person that .the first week was not a jury week, and that, if he desired an intervention of a jury, the jury fee would have to be-paid as provided by law. The defendant failed to pay said fee. We find no error in the ruling of the court in. this respect.

In fact, after considering appellee’s brief, we conclude that the case should be affirmed. See Reece v. Langley, 230 S. W. 509, by Chief Justice Conner of this court. . Rule 42 provided for the guidance of County and district courts.

The judgment is affirmed.


author: CONNER, C. J.

text:
    ELLIOTT v. BRANN.
    No. 12426.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1931.
    Rehearing Denied March 28, 1931.
    Marvin IT. Brown & Son, of Fort Worth, for plaintiff in error.
    Elton M. Hyder, of Fort Worth, for defendant in error.
   CONNER, C. J.

This appeal is from a judgment in favor of appellee and against appellant for the sum of $403.19, principal, interest, and attorneys’ fees, due upon a promissory note executed by appellant and payable to appellee. The appellant Elliott, hereinafter referred to as defendant, pleaded a failure of consideration, and further that the execution of the note had been fraudulently secured in the particulars specified in the special issues submitted to the jury for determination. Those issues, together with the findings of the jury thereon, are as follows:

“1. Did E. J. Brann, at the time he procured the signature of J. P. Elliott to the sale contract, tell the said Elliott that R. M. Bowen sent him, the said Brann,-out to the said Elliott to get the said Elliott’s signature thereto? Answer: Yes.
“2. If you have answered this issue in, the negative, you need not answer the following issue, but if you have answered it in the affirmative, then answer: Did the said Bowen make any such statement to the said Brann? Answer: Yes. •
' “If you have answered this issue in the negative, you need not answer the following issue, but if you have answered it in the affirmative, then answer:
“3. Did J. P. Elliott rely upon the statement made by the said Brann, in signing the contract of sale? Answer: Yes.- .
“4. At the time J. P. Elliott signed the note sued upon, did E. J. Brann represent to the said Elliott that he would settle the controversy with reference to the commission for the sale of the property in question, between he; the said Brann, and Charles A. Arbuthnot? Answer: No.
“If you have answered this issue in the negative, you need not answer the following issue, but if you have answered it in the affirmative, then answer:
“5. Did J. P. Elliott rely upon such promise and representation, if any, in executing said note? Answer yes or no. Answer:
“If you have answered this issue in the negative, you need not answer the following issue, but if you have answered it in the affirmative, then answer:
“6. If you have answered Special Issue No. '4 in the affirmative, then answer: At the time the said E. J. Brann made such representation and promise, did he intend to carry out and perform the same? Answer: -.” ■

The court also submitted the following special issue requested in behalf of appel-lee, which, with the answer thereto, is as follows:

“Gentlemen of the Jury:
“If you have answered special issue No. 3 in the negative, you need not answer this question, but if you have answered same in the affirmative, then answer:
“At the time J. P. Elliott signed the note sued upon, did he know that the statements made by E. J. Brann, as set forth in special issue No. 1 of the court’s main charge in regard to Bowen sending Brann out to get Elliott’s signature to contract of sale, were untrue? Answer yes or no.
“Answer: No.”

There is no contention that the evidence fails to support the verdict of the jury. Indeed, only two questions are presented for our determination by appellant’s assignment of error. They are:

1. That there is a conflict between the answers of the jury to issue No. 2 submitted by the court and to the special issue submitted upon the request of plaintiff, and that such conflict renders nugatory the finding in answer to issue No. 2, and that hence no judgment could legally be entered upon the jury’s findings.

2. That the court erred in overruling appellant’s ' objection to certain evidence to be ■hereinafter set forth.

Appellant cites in support of his first contention the following eases: Stoker v. Fugitt (Tex. Civ. App.) 102 S. W. 743; Royal Ins. Co. v. Okasaki (Tex. Civ. App.) 177 S. W. 200; Kahn v. Cole (Tex. Civ. App.) 227 S. W. 556; Puckett v. Davis (Tex. Civ. App.) 238 S. W. 367; N. T. T. Co. v. Weed (Tex. Com. App.) 300 S. W. 41; Stiles v. Union Terminal Co. (Tex. Civ. App.) 1 S.W. (2d) 947.

We are of opinion that the present case is easily distinguishable from those cited by appellant. The requested issue was evidently based on defensive averments of appel-lee’s answer, to the effect that even if the alleged allegations submitted in issue No. 1 were found by the jury to have been made and to have been false, appellant knew the fact of their falsity and he hence was not misled thereby. In other words, the special instruction was evidently requested to meet a possible contingency of a jury finding in appellant’s favor on court issue No. 4. The jury having found, however, in favor of plaintiff, court issues Nos. 1, 2, and 3, an answer to the requested special issue was unsolicited and became immaterial. Indeed, there is no real conflict in this answer to •the requested issue and the answers to the court issues. In view of the answers to the court issues, the answer to the requested issue could not consistently have been answered otherwise than was done.

The evidence introduced in behalf of plaintiff over defendant’s objection was a written contract of purchase of certain lands owned by defendant, which contract had been signed by a proposed purchaser, procured by the plaintiff acting as an agent of defendant. Plaintiff presented the contract bo defendant for his acceptance and signature, both of which defendant did. Plaintiff was claiming a commission for procuring the sale and testified that the promissory note declared upon by him was given by defendant to secure the commission. The evidence was clearly relevant and admissible in answer to defendant’s verified plea of failure of consideration.

No. other question having been presented by defendant’s assignments of error, all are overruled, and the judgment is affirmed.


text:
    CITY OF IOWA PARK v. CAMERON.
    No. 12397.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    Rehearing Denied Jan. 17, 1931.
    Harris & Martin, of Wichita Falls, for appellant.
    Mathis & Caldwell, of Wichita Falls, for appellee.
   BUCK, J.

Mrs. I. D. Cameron sued the city of Iowa Park for damages to her land and her crops by reason of the overflow of said lands, adjacent to the sewer system of defendant city. She alleged that the defendant city was the owner of a sewerage disposal plant located on what is known as the McCleskey farm in Wichita county, Tex., and that defendant was desirous of disposing of the liquid'from said disposal plant through subirrigation in loose tile laid under the ground. That the contract between her and the defendant city provided that defendant was to lay tile pipe and bring the liquid from said disposal plant to ■the- north line of her property and was then to distribute said liquid by a system of tile laid in ditches not less than twenty inches in depth under the surface of said land. She alleged that the contract further provided that only one-fourth of said 25 acres, the amount of land which the city leased from her, was to be first tiled, and then when it became necessary to extend said system of tile to the other part of said 25 acres of land that said extension was to be made by the defendant without cost to plaintiff. She alleged that the contract between her and the defendant city provided that the defendant was to subirrigate said land in such a way that no part of it should become waterlogged from any excess of water from such subirrigation, and should any of said land become excessively loaded with water from said sub-irrigation, then the defendant agreed to Close the tile pipe leading under said portion and turn the water to some other portion of said land.

The contract which Mrs. Cameron made with the city of Iowa Park is as follows:

“The State of Texas, County of Wichita
“This agreement made and entered into this the 29th day of October A. D. 1925, by and between Mrs. I. D. Cameron, Wichita County, Texas, a feme sole party of the First Part and the City of Iowa Park, Texas, a municipal corporation, acting by and. through its Mayor, J. C. Hines, Party of the Second Part, witnesseth:
‘‘Whereas Party of the First Part is the owner of the following described real estate located in Wichita County, Texas, towit: (Here follows the description of the 25 acres, more or less.)
“And whereas, the party of the second part is the owner of a sewerage disposal plant located on what is known as the McOleskey Farm north of said above described lands, and is desirous of disposing of the liquid from said disposal plant through sub-irrigation in loose tile laid under the ground, and,
“Whereas, said party of the first part is desirous of having said above described lands sub-irrigated:
“Now, therefore, it is agreed as follows: Party of the second part agrees to lay tile pipe and bring the liquid from said disposal plant to the north line of said above described tract of land and thereafter distribute said liquid by a system of tile laid in ditches not less than twenty (20) inches in depth under the surface of said above described tract of land, as follows:
“Tile laid with loose joints under the surface of the ground shall be laid by party of the second part, without cost to party of the first part, in rows every twenty feet apart running east and west across said above described tract of land and the said liquid permitted to drain through said tile pipes and pass out through the loose joints of said tile to the ground.
“The northwest one-fourth of said above described tract of land shall be sub-irrigated first by said means under this agreement and thereafter party of the second part shall extend the system of tile pipes to the other portion of said land as and when the amount of liquid discharged from said disposal plant shall require additional lands to take up the liquid draining through said tile pipes from said disposal plant owned by party of the second part.
“Said party of the second part agrees to sub-irrigate said lands, in such a way that no part of said lands shall become waterlogged or injured from an excess of water from said sub-irrigation and should any of said lands become excessively loaded with water from said sub-irrigation, then said second party agrees to close the tile pipe leading under said portion and turn the water to some other portion of said land until such time as the water soaked part shall have dried out sufficiently to take water again. However, party of the second part shall not be liable for any damages to said lands resulting from excessive water or liquid unless party of the second part shall .fail and refuse to immediately close said tile pipes and change the sub-irrigation after due written notice filed with the City Secretary from party of the first part to party of the second part of the condition of said land.
“Party of the second part shall have the right of ingress and egress to said lands at all times to lay said tile pipes, close the pipes, change the sub-irrigation, lay additional tile pipes and to do- any and all things that may be necessary under this agreement.
“Said party of the second part shall have ■the right to remove the tile from said lands and abandon the sub-irrigation of said lands at any time after giving ninety days written notice to party of the first part of such intention, provided however that in removing said tile pipes or any other equipments belonging to said party of the second part from said land, that same shall be done without damage to any fruit trees or any other improvements that may be on said land, belonging to the said party of the first part save however such damage that might be occasioned by lack of moisture due to the abandonment of the sub-irrigation by party of the second part.
“Subject to the above, this agreement shall remain in full force and effect for a period of ninety nine years from this date.
“It is further agreed by party of the second part, if at any time they should remove tiling from said land or any part thereof, they will fill in any ditches that might be left from removing said tiling and leave the land In good level condition.
“In witness whereof we have hereunto signed our names on this the 29th day of October A. D. 1925.
“I. D. Cameron,
“City of Iowa Park,
“By J. C. Hines, Mayor.
“Attest: Flora Cobb, Secretary.”

In the trial below the court submitted the cause -of action on certain special issues, which, together with their answers, are as follows:

1. The jury found from a preponderance of the evidence that the water allowed to run in the open ditch from the sewerage disposal plant of the defendant through plaintiff’s land gave off obnoxious odors.

2. That since September 23, 1927, such odors decreased the rental value of plaintiff’s land other than that covered by the contract between plaintiff and defendant, dated October 29, 1925.

3. That plaintiff was entitled to $2,500 for injuries to her land, crops, etc., since September 23, 1927.

4. That the water which ran through the tile subsurface irrigation, and which came to the surface and remained in the road and on the land of plaintiff, gave off obnoxious odors.

5. That the rental value of plaintiff’s land other than the land covered by the contract was decreased by reason of obnoxious odors which emanated from the water which came from the subsurface tiling system.

6. That plaintiff was entitled to recover for this injury, since September 23, 1927, the sum of $500.

7. That a portion of the water from the sewerage disposal plant, which was allowed to run down the open ditch, seeped into the well of plaintiff and injured the water, and that said well was damaged and the water rendered unfit for use.

8. That plaintiff was entitled to damages in the sum of $500 for this item of injury.

9. That the sewerage disposal plant water which was put into the tile subsurface irrigation system did not seep into the well.

10. That plaintiff did not know, and could not have known by the use of ordinary diligence, that the water brought from the sewerage disposal plant and discharged through the tile pipe would give off obnoxious odors.

From this verdict the court rendered judgment for the plaintiff and against the defendant.

The plaintiff remitted the sum of $1,000, $500 allowed by the jury for damages to her land as given-in answer to issue No. 6, and also $500 allowed by the jury because of damage to her well. Defendant has appealed.

Opinion.

The defendant pleaded limitation, and the plaintiff pleaded damage to her land and crops and ■ inconvenience to her and to her tenants, and those working upon the land; i but the court instructed the jury each time the question of damage was submitted that they should consider only such damage, if any, as was inflicted since September 23, 1927. Special complaint is made of the action of the trial court in overruling the general demurrer. Plaintiff alleged that “said continued acts as herein set out on the part of the defendant and its agents constitute a nuisance to this plaintiff and to plaintiff’s land, and in this connection plaintiff says that at least 260 acres of land owned by her, and which she has owned for the past several years and prior to October 1925, has been greatly damaged and that the rental value of said land has been decreased in the sum of at least Ten Dollars ($10.00) per acre per year since September 23, 1927, or a total sum of Seventy-Eight Hundred Dollars for the past two years since September 23, 1927, and for the third year beginning September 23, 1929, said Seventy-Eight Hundred ($7,800.00) dollars, being the decrease in rental value caused by the acts of defendant, its agents, servants and employees above set out.”

The evidence shows that Mrs. Cameron notified the' superintendent of the waterworks system of defendant city a number of times that the sewerage was being allowed to run over her land, and caused her inconvenience and damage. The evidence shows that the defendant never placed under the -25 acres covered by the lease tiling for more than 6½ acres, and had it done so, and laid tiling under the entire 25 acres, that much, at least, of the damage would have been obviated. Thé reason they did not lay tiling under the entire 25 acres was that they did not have the means, as stated by .T. H. Anglin, superintendent of the waterworks system, and the mayor and perhaps some commissioners of the city. When the water was cut off from the submerged tiling, it was allowed to run along a ditch through Mrs. Cameron’s land, and the evidence shows that it was very offensive to her and to her tenants, ánd that she could not get anybody to cultivate the land on account of the odors.

In a suit to recover damages for decrease in rental value of land caused by negligent operation of a sewerage disposal plant, plaintiff is not estopped from recovering damages because of the execution of a written instrument leasing another portion of her land to the operator of said disposal plant for sewerage disposal purposes.

In the case of Honey Grove v. Mills (Tex. Civ. App.) 235 S. W. 267, 270, writ of error dismissed by the Supreme Court, it is held:

“Appellant insists .that appellee was es-topped from claiming damages because of the written instrument in effect authorizing the use of the branch as a conveyor of the contents of the septic tank. The instrument signed on December 6, 1910, by appellee and others, reads:
. ‘“We the undersigned property owners, grant our permission to S. G. Duff and 1. H. Whatley of Greenville, Texas, their successors or assigns, to use Honey Grove creek, which ■passes over or along our property, as a conveyor of the contents of the septic tank to be located in the city of Honey Grove, Tex.’
“Estoppel may not be predicated, it is thought, upon the instrument, against recovering damages for the wrongful or negligent operation of .the septic tank. Donovan v. Royal, 26 Tex. Civ. App. 248, 63 S. W. 1055. It is not a license against damages for any special inconvenience or discomfort or injury produced by wrongful or negligent operation or conduct that is not the natural and necessary result of the grant of the easement.”

In Rosenthal v. Taylor, B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268, the Supreme Court, speaking through Justice Gaines, held, according to the syllabi, that:

“Plaintiff and others contracted to obtain for defendant company a right of way for its road through the county, and, when the road was located through streets already laid out, so much of said streets as should be requisite should be obtained from the municipal authorities. Such a right of way was procured through the street on which plaintiff’s own residence was located. Held that, as the contract secures to defendant only the consent of the municipal authorities, plaintiff and his associates could not be required thereunder to procure for defendant immunity from claims for damages to property abutting on the street, and plaintiff is not estopped from maintaining an action for damages for depreciation of his property by the noise, smoke, cinders, and dust of passing trains.”

In Town of Gilmer v. Pickett (Tex. Civ. App.) 228 S. W. 347, the court held that:

“The grantor to a town of an easement for the construction of a septic tank is not es-topped, by his refusal to permit the town to bury the contents of the tank when it was cleaned * * ⅜ by leaving the contents on the surface of the ground, since the grant gave no right to use the premises to bury the contents.”

In the case of Cane Belt Ry. Co. v. Ridgeway, 38 Tex. Civ. App. 108, 85 S. W. 496, the court, in effect, held that where the owner of land abutting on a street for a consideration gave the railroad company .the right to construct‘its road in the street, the owner of said land- could not recover damages from the railroad company for the proper use of the street by the railroad, but where the railroad company constructed a ditch along its right of way in which water stagnated and polluted the air, the railroad company was liable for damages to the owner’s land because the water had become stagnated and because the air was polluted.

We do not think that the trial court erred , in overruling the general demurrer. The appellant also urges that there was not sufficient proof in the record to show any decrease in the rental value of plaintiff’s land. Howard Renfro, testifying for plaintiff, said that he and Jimmie Williams had purchased from plaintiff 12½ aeres of land that she had theretofore leased to defendant for sewerage disposal purposes. That for the year prior, the renter contracted to pay him $300, but that he paid only $80 of said $300, and had moved off.

W. E. Barnhart testified that he knew the reasonable cash rental value of land in the vicinity of Mrs. Cameron’s land, and that it was worth from $10 to $25 per acre, $10 per acre for the dry land and $20 to $25 per acre for the irrigated land; that Mrs. Cameron’s land was pretty good.

B. S. Coleman testified that he had not been able to live in the house on the land at night on account of the odor, and had not been able to get help to work the land for the last two years on account of the odor. He further testified that the rental value of Mrs. Cameron’s land was $10 an acre for the dry land and $20 to $25 an acre for the irrigated land. To the same effect was the testimony of C. Earnest Burk and many other witnesses.

We think the evidence is ample to sustain that portion of the judgment that was not remitted. Anglin testified that if .they had twice as much tile down there it would have taken up twice as much water.

E. C. Knox, mayor of appellant city, testified:

“The main reason we did not install additional title was we couldn’t get it at the time. At the time we took it up with the tile people they said they didn’t have it on hand, but they would inform us when they had it and we never received any notice about it. * * I have not made any effort to improve conditions out there on Mrs. Cameron’s land since September 23, 1929, when this suit was filed. AVe have not spent any money whatever since then in trying to remedy it. We do not have a nickel to spend. I do not think that because the City of Iowa Park hasn’t got the money that we have a right to let this sewerage across Mrs. Cameron’s land, the city hasn’t got the money to spend. I do not say because of that the city has a right to run the sewer over this woman’s land n

This testimony is cited to show that the injury to the land was a temporary one, and that in a large measure it could have been remedied had the city used diligence in attempting to handle the water and had not allowed it t'O run across the plaintiff’s land. See City of Graham v. Moseley (Tex. Civ. App.) 254 S. W. 130, writ of error dismissed, by Chief Justice Conner of this court; City of Paris v. Jenkins, 57 Tex. Ciy. App. 383, 122 S.W. 411; Town of Jacksonville v. McCracken, 232 S. W. 294, by the Commission of Appeals ; City of Austin v. Bush (Tex. Civ. App.) 260 S. W. 300; City of Wichita Palls v. Sullivan (Tex. Civ. App.) 22 S.W.(2d) 982.

Appellant also urges that the trial court should have defined what constituted a nuisance, but we believe that the way the case was submitted to the jury presented the issue of nuisance properly. Appellant does not question the sufficiency of the evidence to support the finding of the jury to the effect that this water allowed to run across plaintiff’s land did give off obnoxious odors.. The testimony shows that appellant had no right or authority to permit this water to run into and across plaintiff’s land. In the'case of City of San Antonio v. Mackey, 14 Tex. Civ. App. 210, 36 S. W. 760, in an opinion by Chief Justice James of the San Antonio Court of Civil Appeals, it is said, quoting from the headnotes:

“A city is liable to the owner of property where it caused refuse matter to be deposited on his ground, thereby injuring him, though the act may not amount to a nuisance.”

We conclude that the judgment of the trial court must be affirmed, and it is accordingly so ordered.


author: RANDOLPH, J.

text:
    TULL v. TURLEY.
    No. 3559.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1931.
    Rehearing Denied April 1, 1931.

      Storey, Leak & Storey, of Yernon, for appellant.
    , Berry, Warliek & Gossett, of Vernon, for appellee.
   RANDOLPH, J.

This suit was brought by appellee, Turley, against appellant, Tull, to recover damages for the breach of a rental contract. Judgment for appellee, and Tull appeals therefrom.

The parties will hereinafter be styled as in the trial court.

The plaintiff’s first amended original petition alleged substantially the following: That the defendant was the owner of certain land, describing same, which he leased to the plaintiff for the year 1930 for a rental of one-fourth of the cotton and one-third of the feed crop grown thereon; that it was understood that plaintiff was to plant 25 acres in alfalfa, 25 acres in other feedstuff, and approximately 110 abres in cotton. Further, it is alleged that in the latter part of January or the early part of February, 1930, he began making preparations of the premises so that he could move his family upon same, and that on the Gth of February, 1930, defendant rented the premises to a man named 1-Iuff, who moved onto the premises on that date; that he immediately gave Huff notice to vacate, and on the 10th of February, 1930, instituted forcible entry and detainer proceedings in the justice court against Huff, and prosecuted same to judgment in that court; that Huff thereupon appealed to the county court, and the cause was there dismissed by the plaintiff.

Further, plaintiff alleges that he would have made during the crop year of 1930 at least 100 bales of cotton, of which three-fourths would have belonged to him, and that he would have received at least $75.00 per bale for the cotton; that he would have made at least 15 tons of alfalfa of the reasonable market value of $20 per ton, and that from the other 25 acres of feed he would have made at least $20 per acre, being the estimated gross value of such feed; that he would have .received two-thirds thereof; that, after deducting all the necessary and reasonable expenses of planting and cultivating and gathering the crops, he would have realized a pecuniary benefit to himself in the sum of $5,-000; that he had been compelled to rent a house at $25 per month and seeking damages of $250 for that item.

Defendant’s answer consisted of a general exception, special exception, general denial, and a special plea setting out that he (the defendant) did rent the premises described to the plaintiff;. that it was the understanding that the plaintiff was to furnish himself all implements and everything save the land; that the plaintiff represented to the defendant that he was the owner of sufficient tools and implements with which to work said premises, and that he was able financially to handle the crop without assistance from appellant. It was further agreed between the parties that plaintiff was to move upon the premises as soon as it was vacated by the then tenant, and defendant was to prepare the land to be sowed in alfalfa in the fall of 1929 and do certain other things set out in the answer; further, that defendant relied upon the statements of the plaintiff, and, believing them to be true, agreed to rent said premises to plaintiff for the year 1930; that plaintiff was not at the time he made said lease contract the owner of sufficient tools and implements with which to work said premises, and that he was not thereafter, up to the 5th of February, 1930, financially able to do so; that he wholly failed to prepare the land for alfalfa; that the representations made by plaintiff were false, and were made for the purpose of inducing defendant to lease said premises to the plaintiff.

Defendant in said special plea further alleged that on the 5th of February, 1930, the plaintiff told him that he could not handle the farm unless he (the defendant) would finance him, which defendant refused to do, and thereupon plaintiff stated he was “Mowed up,” and that defendant, believing that plaintiff had surrendered his contract, leased the premises to another party.

The case was tried before a jury, and, on their answers to issues submitted, the court rendered judgment for the plaintiff for the sum of $1,317.55.

Defendant’s first proposition of error on the part of the trial court is as follows:

“Where appellant pleaded that at the time of the malting of the rental contract, for the breach of which appellee is seeking damages, that appellee represented- to the appellant that he, appellee, was able to furnish himself and was the owner of sufficient teams, tools and implements with which to properly farm the leased premises, and the appellant further alleged that he, believing the statements of the appellee were true, and relying thereon, made said lease contract with the appellee, and that he would not have done so had he known that said statements were not true, and further pleaded that said statements and representations were false, and where the appellant offered testimony supporting these allegations, it was the duty of the Trial Court to affirmatively present such issues to the jury upon request in writing by the appellant, and the failure of the court to give special charges requested, by the appellant submitting such issues, or to incorporate such issues in the court’s charge, was error.”

The trial court’s charge was excepted to by the defendant on the ground that it wholly failed to submit to the jury the issue of fraud pleaded by defendant. The defendant also tendered special issues covering his allegations of fraud, which the court refused to submit to the jury, and to which action of the court he duly excepted. The court, in lieu of a charge on the issue of fraud pleaded, submitted to the jury:

“Do you find from a preponderance of the evidence that on and before the 5th of February, 19BO, the plaintiff had such financial arrangements as would have enabled him to carry out the rental contract with the defendant?”

This last issue does not present the issue of fraud as pleaded by the defendant. It has been held many times by the courts of this state that the defendant has a right to have submitted to the jhry the affirmative of his defenses.

The defendant asserts his right to set aside his contract for the false representations made by the plaintiff, and he was entitled to the direct presentation of the issue of fraud under his pleading to the jury.

In order for the defendant to have the right to set aside a contract for fraud and misrepresentation, the misrepresentation must be of some existing fact, and, where the defendant charges the plaintiff with having made false representations of his financial condition, which induced the defendant to enter into the contract, it is not necessary that it be charged that the representations were the sole inducement to the making of the lease. Kelty v. McPeake, 143 Iowa, 567, 121 N. W. 529.

A lease may be set aside by the lessor on the ground that it was procured by fraud. 1 Tiffany, 293b.

“It is manifestly a result of natural justice, that a party ought not to be permitted to avail himself of any agreement, deed, or other instrument, procured by his own fraud, or by his own violation of legal duty, or public policy, to the prejudice of an innocent party. 2 Story, Eq. § 695.” Crayton v. Munger, 9 Tex. 291, 292.

See, also, Bankers’ Trust Co. v. Calhoun (Tex. Civ. App.) 209 S. W. 826; Bankers’ Trust Co. v. James (Tex. Civ. App.) 209 S. W. 830; Wolff v. Cohen (Tex. Civ; App.) 281 S. W. 846.

That the defendant had the right to have his defenses presented from the standpoint of his pleadings, see Quanah, A. & P. Ry. Co. v. Lancaster (Tex. Civ. App.) 207 S. W. 606; Missouri, K. & T. Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Galveston, H. & S. A. Railway Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Colorado & S. Railway Co. v. Rowe (Tex. Com. App.) 238 S. W. 908; Hutchenrider v. Smith (Tex. Com. App.) 242 S. W. 204; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, 522. '

The defendant testified to the representations as alleged in his answer, and should have had an affirmative of his defenses presented to the jury as he requested.

The plaintiff’s petition fails to allege such items of expense which the plaintiff would have reasonably incurred in cultivating, harvesting, and marketing the crop, and the evidence fails to show the same, but the-plaintiff attempts to testify to a net profit, after deducting the expenses which he says he would have incurred, without itemizing them. Hence, defendant’s special exception thereto should have' been sustained, and the evidence, failing to furnish such proof, was not admissible, as the pleading did not authorize it. Holloway Seed Co. v. Bank, 92 Tex. 187, 47 S. W. 95, 516; McConnell v. Payne (Tex. Civ. App.) 229 S. W. 355; Springer v. Riley (Tex. Civ. App.) 136 S. W. 577.

The plaintiff did not show himself to be a qualified witness to testify as to the market value of the cotton which he would have made on the leasehold if he had been permitted to carry out his contract. He testified that he thought he was familiar with the cotton business, had grown and marketed cotton from year to year, but that, since he Had no cotton to sell he had not kept up with the market this year (1930). He was therefore not possessed of a knowledge of the market price of cotton such- as would entitle him to make an “estimate” of the value of the crop.

Por the errors indicated, the judgment of the trial court is reversed, and the case is remanded for a new trial.

On Motion for Rehearing.

Supplemental to our original opinion, and for the purpose of covering two questions not discussed in that opinion, we file the following:

The trial court submitted to the jury the issue as to whether or not the plaintiff had such financial arrangements as would have enabled him to carry out the rental contract with the defendant. This issue was improperly submitted, for the evidence did not show any arrangement or understanding made with any person for that purpose by the plaintiff which had been brought to the knowledge of the defendant and upon which the defendant could rely to authorize the submission of such issue. It is true that the witness Roberts, who appears to have been a man with considerable property, testified that he told the plaintiff, who was his son-in-law, that he would stand behind him and enable him to carry out his contract with the defendant. But it was not shown that this was ever communicated to the defendant. Such an agreement, being an agreement to stand good for the debt or default of another person, in order to be binding, must have been in writing and made direct to the defendant in order for the defendant to have legally relied on same.

“The rule, ‘Res inter alios acta,’ precludes introduction of evidence of transactions by which the prcjponent was in no way affected and to which he was in no sense a party. Levine Bros. v. Mantell, 111 S. E. 501, 504, 90 W. Va. 166.” Words and Phrases, Third Series, Vol. 6, page 745. Pierce v. Wimberly, 78 Tex. 187, 14 S. W. 454; Griffith v. Lake (Tex. Sup.) 12 S. W. 285.

The measure of damages which the plaintiff was entitled to recover, if any, would ■be the market value of three-fourths of the cotton and two-thirds of other crops of feed-stuff, after deducting all expenses of planting, cultivating, harvesting, and marketing the whole of the crop, and the court erred in sub- • mitting to the jury the issue he did submit, which issue so submitted was in words as follows: .

“What would be the reasonable cash market value of the crops which the plaintiff Turley would have grown in reasonable probability on defendant Tull’s farm during the .crop year of 1930, after deducting all expenses reasonable and necessary in planting, cultivating, harvesting and marketing such crop?”

The last paragraph is to be understood as being in connection with the discussion in the original opinion of the itemization of the expenses attending the crop production attempted to be estimated by the plaintiff and his witnesses, as to which the plaintiff testified as to the net profit on the crop.

Appellee’s motion is therefore accordingly overruled.