text:
    BURTON v. SCHWARTZ et al.
    No. 12425.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1931.
    Rehearing Denied March 28, 1931.
    Marvin H. Brown & Son, of Fort Worth, for appellant.
    Slay & Simon, of Fort Worth, for appellees.
   BUCK, J.

This suit was filed by Willard Burton against Joe Schwartz and his five minor children, Thelma, David, Irving, Estelle, and Eleanor Schwartz. The suit was for the purpose of foreclosing a claimed lien on a piece of property located at 1700 Sixth avenue and occupied since some time in 1920 by the Schwartz family as a homestead. Plaintiff also sued J. C. Buchanan as an in-dorser of some $11,000 worth of notes. Mrs. Schwartz died prior to the filing of the suit, and her husband, Joe Schwartz, and his five minor children, through a guardian ad litem, answered, as also did J. C. Buchanan. The controversy in the court below was as to whether the lien had been fixed on the homestead prior to the beginning of the building as provided by the Constitution of the State of Texas and of the statutes pertaining thereto.

After the completion of the evidence, the trial court instructed a verdict for the defendants as against the claim of Willard Burton, and instructed a verdict for Willard Burton against J. C. Buchanan. The court entered judgment for the Schwartz family as against the claim of Willard Burton and for Willard Burton against J. C. Buchanan. Prom this judgment the plaintiff below, Willard Burton, has appealed.

Opinion.

The evidence of Willard Burton tends to show that the notes in question were executed by Joe Schwartz and his wife, Fannie Schwartz. The testimony shows that Mr. Buchanan started building the house without the execution by Schwartz and wife of any lien or written contract. The work was begun some time in January, 1920, and it was not until some time in June, 1920, that a deed was executed by Schwartz and wife to' Buchanan, and a reconveyance was executed by Buchanan to Mr. and Mrs. Schwartz, reserving a lien to the amount of the notes.

The testimony further showed that in 1924 Joe Schwartz was adjudged a bankrupt, and that he included in his liabilities the amount of these notes, and that he was relieved from the payment of these notes.

Mr. Burton, testifying for himself, said that he was president of the Burton-Lingo Lumber Company and was president of that company in June, 1920. That he had known Mr. Buchanan for more than thirty years and knew that he was a contractor in June, 1920. That he had many transactions with Mr. Buchanan and had sold him much material and lumber. That it was his remembrance that “we had purchased these $8,000 worth of notes.” By “we” he meant the Burton-Lingo Lumber Company. That he could not say positively at the time of testifying whether the Burton-Lingo Lumber Company was the owner of the notes at this time or not. That he could not say whether their money, or the money of a widow, living at Cleburne, a Mrs. Bentall, had purchased the notes. That he was inclined to think that it was his money that went into the notes, but that he could not swear whether it was his money or the money of Burton-Lingo Company. That at the time of the purchase of the notes, Mr. Buchanan owed the Burton-Lingo Lumber Company some money. That Mr. Buchanan had furnished all the material for Schwartz and had gotten nothing for it, and that he thought Buchanan owed “us” for it at the time; that he could not say whether the money that he paid for the notes, or the money paid belonging to Mrs. Bentall, went to the Burton-Lingo Lumber Company in payment of material that Mr. Buchanan had purchased from the Burton-Lingo Lumber Company or not. Mr. Burton was asked whether or not the books of Burton-Lingo Lumber Company would reflect that this money actually went into the assets of the company. He answered: “I would imagine that it went into the assets of Burton-Lingo Lumber Company in payment of material that Mr. Buchanan had purchased from the Burton-Lingo Lumber Company,"but I could not swear positively about that, but it is ,my recollection that is what happened.” He was asked whether or not the Burton-Lingo Lumber Company purchased these notes for the purpose of paying the debt that Mr. Buchanan owed it. He answered, “It was done to accommodate Mr. Buchanan.” He further testified that the notes not being paid at maturity, he, for Burton-Lingo Lumber Company, paid Mrs. Bentall the amount of her money that had gone into the notes.

The evidence further showed that Joe Schwartz - expected to get a loan from his uncle, D. H. Keene, who, prior to this time, had moved from Fort Worth to Los Angeles. That after the building had progressed considerably, he learned that Mr. Ross, of the firm of Ross, Ross & Alexander, leading attorneys, had declined to pass the title for Mr. Keene and that Mr. Keene had refused. to loan his nephew the money needed. He further testified that he did not know- whether Burton-Lingo Lumber Company sold the notes to a Mr. Locke; that he could not say whether “we” owned these notes at the time the first note became due or not.

Mr. J. C. Buchanan testified that he did not know whether he ever had built any other house to be used as a homestead or not prior to this time; that they had been working on the house some time and the work was practically done when the deed from Schwartz and wife to him and the deed back from him to Schwartz .and wife was executed, and put on record. That they began the work of erecting the building without any written contract and nothing was given hut a verbal authority from Mr. Schwartz. That he remembered at the time of testifying that the record title was taken to Mr. Ross, Mr. Keen’s attorney, and Ross told John O’Reilly, Mr.' Keene’s bookkeeper, that Mr. Keene could not safely make the loan on this property. ' That at the time the deed was made by Schwartz and wife, he (Buchanan) did not pay any consideration to Schwartz and’ wife; ' that when he began the erection of the building he placed Mr. E. S. Newcome in charge of it; that some time in June, 1920, after he had gone to El Paso to live, Mr. Newcome wrote him and he came back to Fort Worth and learned that Mr. Ross had turned down the title and also Samuels & Brown, attorneys; and that he went to his attorney, who advised Mm and Mr. Schwartz to execute these deeds, which was done. The deeds were antedated to January 3, 1920.

Mr. E. O. Newcome testified that he had some business relations with Buchanan in 1921-22, and that he severed his connection at the end of 1922. That he had known Mr. Schwartz since the early part of January, 1920. That he wrote for Schwartz on January 3, 1920, this authorization:

“We hereby authorize you to erect our residence as -above on all cost price, us paying all-bills.”

That evidently this order was drawn up and “back dated,” because “I knew that we had some material on the ground, and some excavating work had been done, when the contract — when the plans were changed to a two story house.” That when he learned that Mr. Schwartz was unable to make further payments on the residence, he went to Mr. Schwartz and talked with him about the condition of the building, and Schwartz told him that his uncle had promised to loan him some money, and that he told Schwartz they could not go any further with the building without his making some arrangements, and that Mr. Schwartz made some efforts and then reported back to witness that he could not get the money from his uncle. That Mr. Schwartz told him that Mr. Keene’s attorney had told him that money could not be loaned on the property and also told him the reason why. That he told him the reason why Mr. Keene' could not make the loan on the property was because it was a homestead.

Joe Schwartz testified that he moved into the house some time in the latter part of June, or the first of July, 1920; that the building was almost finished then. He testified further:

“They had a little finishing up work to do, and they were working on it while we were in there. My wife and I would usually move some little things over there every time that we would go to look at the building. They built a servant’s house and -a garage on the premises first, and those buildings were finished up, and that was finished perhaps a month after they agreed to build it, and my wife and I would usually bring some things over there every time that we would go to see the building.”

He 'further testified that there was no written contract before the work was begun; that he went to Samuels & Brown, attorneys, and" Mr. Brown asked him where was the lien. That subsequently, in June,'he and Mr. Buchanan went to see Mr. Buchanan’s lawyers and they told the witness for him and his wife to execute a conveyance of the property to Buchanan, and Buchanan would reconvey it, reserving a vendor’s lien, which was done. That the deed from Buchanan to Schwartz was received' by him some weeks or months later, and was put of record September 21, 1920. That he went to Burton-Lingo Lumber Company’s office some time immediately prior to June, 1922, about getting an extension. That he was legally discharged from this debt in the bankruptcy court in 1924.

Mr. James H. McGeehee, a bookkeeper for Burton-Lingo Lumber Company, testified that the books showed that on September 22, 1920, they gave Mr. J. C. Buchanan a check fx>r $6,-000, and also on the same day they gave him a check for $5,000; that R. B. Locke was interested in the notes and the lien as their books reflected, and that he -furnished a part of the cash which merely passed through the books. That the books showed that on September 27, 1920, they received a check from R. B. Locke for $5,000, and gave credit for that amount, and the books also showed that ' they gave Locke their note for $6,000 and gave his account credit for that. That the books showed that there were two checks given to Mr. Buchanan, one for $5,000 and one for $6,000; that.he knew that these checks were given with reference to the Joe Schwartz notes; that the record showed that the first cheek written was on January 12, 1924, for $320, which seemed to be about 8 per cent, interest on $.8,000 for six months. That Burton-Lingo Lumber Company gave Mrs. Ben-tall a check for that amount and then charged it to the account -of Mr. Buchanan. That on June 12, 1924, and on December 6, 1924, cheeks were made payable to Mrs. Bentall for $320, and also on June 4, 1925, a check was made payable to her for $320, and on December 12, 1925, a check was made payable to her for $320, and also on June 27, 1926. That all of these checks were charged to the account of J. C. Buchanan. That he believed that the record showed that Mrs. Bentall came in after the Locke transaction.

We think the evidence shows beyond a question of doubt that no lien was executed by Schwartz and wife on the lot in question until most of the improvements had been finished. Therefore, we conclude that the trial court was authorized to hold that no lien was fixed on the homestead as required by law.

In Sanger Bros. v. Brooks, 101 Tex. 115, 105 S. W. 37, the Supreme Court held that where a husband and wife executed a deed of ■their homestead to a creditor of the husband, who, as a part of the same transaction, re-conveyed the property to the husband, reserving a vendor’s lien to secure alleged purchase money notes, which transaction was simulated to evade the Constitution, prohibiting á mortgage or lien on a homestead, a subsequent purchaser of the notes was charged, with notice by the record of such conveyance thereof, and was not entitled to enforce the lien as a bona fide purchaser. In this case the conveyance by the husband and wife of the homestead was on the same day as the recon-veyance to the husband, with a note purporting to be for the purchase money and to be secured by a vendor’s lien reserved in the deed. The court held that the transaction was simulated for the purpose of fixing on the homestead an incumbrance securing a debt of the husband for a stock of goods bought by him from the person so secured, and it was held that a purchaser of the notes and lien was taxed with notice of the nature of the transaction from the fact that the deed and reconveyance were contemporaneous, awd was'not protected, as an innocent purchaser, against the homestead claim.

Appellant urges that the ease of West End Town Co. v. Grigg, 93 Tex. 451, 56 S. W. 49, 50, by Judge Brown of the Supreme Court, definitely decides that a lien was fixed on this piece of property for the security of the notes stipulated in the deed. In this case the trial court found that E. B. Grigg and wife owned lots 28 and 29, block 7, of the West End Town Company’s First addition to San Antonio; that these lots were purchased for the purpose of a home for Grigg and wife; that Grigg and wife desired to erect for themselves a dwelling on said lots, and to this end made application to the West End Town Company for a loan, sufficient to erect said building, and were informed by the company that it could not make a. loan to- them; that the company later notified Grigg and wife that if they would transfer the property to the West End Town Company, it would have the building erected upon the lots, and then re-convey the lots with the dwelling thereon to Grigg and wife, for the cost of said dwelling. This was done, and the trial court found that, as a matter of law, the lots did not constitute the homestead of Grigg and wife, and therefore rendered judgment for the debt as against Grigg and wife and foreclosed the lien. The Supreme Court said:

“The trial judge did not express a conclusion of fact as to the existence of the homestead right, but, as a conclusion of law, he decided that the property was the homestead of Grigg and wife at the time of the transaction, and not subject to the lien. If the trial court had found, as a conclusion of fact from the evidence, that the homestead right existed at the time Grigg and wife entered into the contract which is evidenced by the several instruments made by the parties, then we would have been confined to the question, is there any evidence upon which that conclusion could be based? But the conclusion of law expressed by the court will not be considered as a conclusion of fact, and we will proceed to determine whether the facts found made the property the homestead* of Grigg and wife before and at the time of the' transaction involved in this litigation. Edwards v. Chisholm (Tex. Sup.) 6 S. W. 558. The purpose of Grigg and wife to establish their homestead upon the lots at some future time, if able to erect a residehce upon.it, did,not make it a homestead, but the making of the contract under which that residence was built, concurring with the intent to occupy it, fixed the homestead right from that time. * * ⅜= The agreement between Grigg and. the builder for the erection of a residence upon the lots in question, with the notes of Grigg and wife to the West End Town Company for the price of the work, formed a contract for the improvement, and the conveyance of the lots by Grigg and wife to the plaintiff in error and the reconveyance to them constituted a mortgage to secure the notes. The instruments were all executed at the same time, and, when the contract for the building became binding, the lien of the mortgage to secure the notes became effective and attached to the lots in question. No homestead exemption existed prior to the last act by which the transaction was completed, but, the intention to occupy continuing with Grigg and -wife, the constitutional immunity from debts then arose in their favor as to future transactions, but did not invalidate the lien which had attached to the lots.”

We think the evidence in this ease shows that it was the intention of Schwartz and wife to occupy this lot as their homestead, and the homestead character attaches to a piece of property which is acquired with the intention of making it a home, when the persons owning the same by some overt act show the intention of making it a homestead, such as moving on the lot, excavating, ■ etc. - ~

In the ease of Cameron v. Gebhard, by the Supreme Court of Texas, 85 Tex. 610, 22 S. W. 1033, 1035, 34 Am. St. Rep. 832, it is skid:

“It is apparent that intention is almost the only thing that may not be dispensed with in some state of case, and it follows that this intention in good faith to occupy is the prime factor in securing the benefits of the exemption [homestead exemption]. Preparation— that is, such acts as manifest this intention— is but the corroborating witness to the dfecla-ration of intention, the safeguards against fraud, and an assurance of the bona fides of the declared intention of the party.”

In the case of Espinoza v. Cocke, 276 S. W. ' 1095, by'the Commission of Appeals, Espinoza, after purchasing an empty lot with the intention of erecting a homestead thereon, proceeded to level off the lot and to inclose it with a fence and to clear off some vegetation, and then entered negotiations with a lumber company for the building of a home. The court held that such a definite intention in good faith to occupy vacant property as a homestead, when followed by preparatory acts in connection with the property definitely’ tending of themselves to show such intention, established a homestead for Espinoza and his wife.

In the ease of Harkrider-Keith-Cooke Co. v. SAith, 284 S. W. 612, 614, the Court of Civil Appeals at Austin said:

“The acquisition of unimproved property with the intention of its becoming homestead, followed in a reasonable time by acts evidencing that intention and the subsequent actual use and occupancy of the property as a homestead, impresses the homestead character upon the property from the moment of its acquisition.”

The Constitution of Texas, art. 16, § 50, provides that no liens or mortgages upon a homestead shall be valid except for purchase money or improvements.

Article 5460, Rev. Civ. Statutes of 1925 provides :

“When material is furnished, labor performed, or improvements as defined in this title are made, or when erections or repairs are made upon homesteads, if the owner thereof is a married man, then to fix and secure the lien upon the same it shall be necessary for the person or persons who furnish the material or perform the labor, before such material is furnished or such labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of homestead. And such contract shall be recorded in the office of the county clei-k in the county where such homestead is situated, in a well bound book to be kept f-or that purpose. When such contract has been made and entered into by the husband and v'ife and the contractor or builder, and the same has been recorded, as heretofore provided, then the same shalj inure to the benefit of any and all persons who shall furnish material or labor thereon for such contractor or builder.”

Since this statute outlines the only way in which the contractor may have a lien upon the lot for the labor done and the improvements placed thereon, and since there is neither pleading nor does the evidence show that the provisions of this statute have been complied with in the instant case, any attempt to fix a lien on the lot -was illegal and void and. unconstitutional.

We conclude, after reading the authorities cited by appellant and many other authorities, that the plaintiff below and Buchanan, the contractor, showed an absence of even any effort to fix the lien upon the homestead, and that the trial court was authorized and it was his duty to give a peremptory instruction to find for the defendants against the plaintiff. There is no complaint as to the judgment for the plaintiff as against Buchanan, and that judgment is left undisturbed.

The judgment is affirmed.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    VELASQUEZ v. INTERNATIONAL-GREAT NORTHERN RY. CO.
    No. 8564.
    Court of Civil Appeals of Texas. San Antonio.
    March 11, 1931.
    Rehearing Denied April 1, 1931.
    G. Woodson Morris and Harry B. Berry, both of San Antonio, for appellant.
    F. C. Davis, Eskridge & Groce, and Andrew's, Streetman, Logue & Mobley, all of San Antonio, for appellee.
   SMITH, J.

This was an action for damages for personal injuries sustained by appellant while an employee of appellee. The case was submitted to a jury upon special issues. In their answers the jury acquitted appellee of negligence, found that appellant was injured as a result of an “unforeseen unavoidable accident,” and that he was damaged in the sum of $500 on 'account of his injuries.

It is contended by appellant that the pleadings and evidence raised the issue of whether appellee negligently furnished a “dangerous method and means” of doing the work appellant was engaged in on the occasion of his injury. It is further contended that appellant submitted this issue in writing to the trial court requesting its submission to the jury, and that the court refused the request, that this written request was lost from the papers in the case, and that the court refused appellant’s subsequent motion to substitute the lost paper with a copy thereof tendered by appellant with said motion.

In his first proposition, appellant complains of the refusal of the court to grant the motion to substitute the requested special issue alleged to have been lost, so that the same may appear of record. This proposition is predicated upon a bill of exception, to which is appended a qualification thereof by the trial judge. This qualification embraces a direct and positive finding by the trial judge that appellant did not at any time present for his approval any written request for the submission of said issue. This finding is conclusive upon this court, as a matter of course. Consequently, there having been no written requested instruction or issue, there was nothing to substitute, and the trial court properly overruled the motion to that end. .

Appellant contends in this second proposition that the pleadings and evidence raised the issue mentioned above, and that therefore “he was, after requesting such charge, entitled to have such issue placed in their hands for their determination of this issue. The trial court’s refusal to include this issue was reversible error.” This proposition is sound, in the abstract, assuming the facts stated therein to be true, but is untenable in the face of this record. It is provided by statute that, “when the court submits a ease upon special issues, he shall submit all the issues made by the pleading. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding. * * * ” Article 2190. As the special issue was not requested in writing by appellant, he cannot, under the plain provisions of the statute, effectually complain on appeal because of the resulting failure of submission.

It is shown in the bill of exceptions that appellant’s counsel orally urged upon the court that the issue should be submitted. But this is not sufficient, under the statute, as a basis of appeal. The request must be reduced to writing, must be presented to opposing counsel for written objections, and presented in this form to the trial judge, who shall indorse his ruling thereon, in writing, and authenticate the document by his signature thereon. Articles 2186, 2188, R. S. 1925.

The cause was submitted to the jury on May 14. The bill of exceptions showing the foregoing transaction was dated September 23 following. In his qualification of the bill, the trial judge stated, incidentally, that, if the special issue in question had in fact been requested in writing at the time of the trial, he would have refused it. Appellant urges that this statement of the trial judge, made incidentally, more than four months after the case was disposed of, has the effect of relieving appellant of the duty of putting his request in writing at the time and in the manner prescribed by law. We overrule this contention for obvious reasons.

Appellant urges that the finding of the jury that he was damaged in the sum of $509 on account of the accident is inconsistent with the findings that appellee was not guilty of negligence in the matter. We overrule this contention, presented in appellant’s third proposition. Those findings present no conflict.

In his fourth and last proposition appellant urges reversal upon the ground of newly discovered evidence. No effort was made in the motion for new trial to show that appellant used any diligence to secure the proffered evidence at the trial. Such showing was essential as a basis for new trial, no matter how important the testimony was—a question not necessary to decide or discuss here.

The judgment is affirmed..


author: DUNKLIN, J.

text:
    LAKE WORTH AMUSEMENT CO. v. MAPLES.
    No. 12265.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1931.
    Julian Mastín and Seay, Seay, Malone & Lipscomb, all of Dallas, for appellant.
    McLean, Scott & Sayers, of Fort Worth, for appellee.
   DUNKLIN, J.

The Lake Worth Amusement Company, a corporation, maintained • and operated an amusement park at Lake Worth, near the city of Fort Worth, and in (Connection therewith operated what is known as a Thriller, which consisted of an iron track supported by a wooden structure. The track was constructed with sharp dips and inclines 'with steep grades, and the running of cars over those rises and declines furnished the thrills which induced patronage of the device by thfe public as a place of amusement.

Jack Maples undertook to ride upon the Thriller, and he recovered a judgment against the amusement company for damages as the result of injuries he sustained by being thrown from one of the cars while it was running at a rapid rate of speed and 'as it suddenly dropped down one of the declines from an elevation in the track. From the judgment so rendered, the defendant has appealed.

In answer to special issues, the jury found that defendant was guilty of negligence, which was the proximate cause of the injuries sustained by the plaintiff, in operating the .car without a strap or guard across plaintiff’s lap to prevent him from being thrown from the car, and also in the manner of the construction of the Thriller, and further found that plaintiff’s fall was occasioned by a jerk of the car as it suddenly descended one of the inclines in the track. Those issues, of negligence were tendered in plaintiff’s pleading as a basis of liability.

There were further findings of the jury exonerating plaintiff from the allegations of contributory negligence pleaded' by the defendant.

Upon the issue of measure of damages, the court submitted to the jury the following: “What sum, if paid now in cash, will fairly and reasonably compensate the plaintiff for injuries, if any, sustained by him, of which his falling from defendant’s car was the proximate cause. In making your answer to this question there are certain things which you may consider, and certain things you shall not consider. You may.consider physical pain and suffering, if any, you believe the plaintiff has sustained to this date, and you may consider loss of earnings, if any, .you believe the plaintiff Has sustained, to this date, and you may consider reasonable expenses for doctor’s services, if any, you believe the defendant has incurred, of which the fall was the proximate cause. You may not consider and you will not discuss, costs of court or attorney fees, or future loss of earnings, or any other element of damage, if any, except as above outlined, if any. Answer: $2,611.00.”

Before the submission of the issues, the defendant objected to that portion of.the instruction last quoted which permitted the jury to-allow damages for loss of earnings, on the ground that no evidence was introduced to show the amount of plaintiff’s earnings or the value of services he had performed prior tO' his injury.

In support of an assignment to that ruling of the court, counsel for appellant has-made the statement that there was an absence of any evidence whatsoever in the entire record, to' show the plaintiff’s earnings prior to or at the time of his injury, or the value of any service he was performing. Ap-pellee has filed no- briefs, and therefore the statement so made with respect to the record will he accepted as true. See Rule 31, Harris’ Rules for the Courts of Civil Appeals.. Hence the assignment now under discussion must be sustained. That error would require a reversal of the judgment in the absence of any showing by counsel for the appellee that it resulted in no barm to appellant, since it was reasonably calculated to have that effect. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Lumbermen’s Reciprocal Ass’n v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972; FLoyd v. Fidelity Union Cas. Co. (Tex. Com. App.) 24 S.W.(2d) 363. However, all possible doubt as to the probable injury to the defendant by reason of that.instruction is removed by the uncontradicted testimony of two or three of the jurors taken on the hearing of defendant’s motion for new trial, based on allegations of misconduct of the jury while considering the case, that of the amount allowed by the jury $1,800 was allowed to plaintiff for loss of services by reason of his injuries and also $551 for his hospital expenses and $10 for his ambulance bill, contrary to the court’s specific instructions. The jurors who testified stated that the allowances for loss of services, hospital and ambulance bills were all by reason of the fact that those were the amounts alleged in plaintiff’s petition, which the jury had before them at the time they were deliberating upon the verdict. ■ The further assignment of error to the action of the court in refusing to set aside the verdiot by reason of such action on the part of the jury is also sustained. A great number of authorities might be cited to sustain this conclusion, ■but we will refer to only a few. Crystal Palace Co. v. Roempke (Tex. Civ. App.) 227 S. W. 230; St. L. S. W. Ry. Co. v. Dodson (Tex. Civ. App.) 285 S. W. 330, and decisions there cited; Payne v. Smith (Tex. Civ. App.) 266 S. W. 441; Parker v. Bailey (Tex. Com. App.) 15 S.W.(2d) 1033, and numerous decisions there cited.

Upon the hearing of the motion for new trial, the defendant offered testimony-of the foreman to show misconduct of the jury as follows; “The jury first agreed that the plaintiff was entitled to recover damages; that after having determined that they would give the plaintiff damages, he, as foreman, informed the jury that before they could answer the question on damages and before they could allow the plaintiff to recover damages, they would have to‘answer certain of the issues in a certain way, otherwise the plaintiff could not recover his damages; that he would then turn to question No. 13 in the eourt’s'charge (which was the issue in which the measure of damages was submitted) before they would answer any of the questions and would, by reading question No. 13, determine how it should be answered for them to give the plaintiff damages ; that he would then inform the jury the way that the question would have to be answered and the jury would answer the question so that the plaintiff could recover his damages.”

The court sustained an objection to that testimony; which ruling was likewise erroneous. Casstevens v. T. & P. Ry. Co. (Tex. Sup.) 32 S.W.(2d) 637.

There are other assignments of error in the record, the merits of which, if any, will not be discussed, since the rulings complained of may not occur upon another trial. But, for , the errors pointed out .above, the judgment of the trial court is reversed, and the cause is remanded.


text:
    NEIMAN-MARCUS CO. v. TRIGG.
    No. 12432.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1931.
    Muse & Muse, of Dallas, for appellant.
    Paddock, Massingill, Belew & Todd and S. A. Crowley, all of Fort Worth, for appel-lee.
   DUNKLIN, J.

Neiman-Marcus Company, a corporation, instituted this suit against Dr. Ross Trigg and his wife, Mrs. Ross Trigg, on an account for merchandise sold to Mrs. Trigg in the aggregate sum of $851.45. A judgment was rendered in favor of Mrs. Trigg, of which no complaint is made. But plaintiff was allowed a recovery against Dr. Ross Trigg for the sum of $101.45, which covered all items in the account sued on except an item of $750 for a fur coat sold by plaintiff to Mrs. Trigg. Dr. Ross Trigg has made no complaint of the judgment so rendered against him, but plaintiff has prosecuted this appeal from the judgment denying any recovery against Dr. Trigg for that $750 item.

The evidence showed that, at the time the articles' stated in the account were sold, plaintiff .was doing business in the city of Dallas, and that Dr. Trigg and wife then lived in the city of Fort Worth.

In plaintiff’s petition, it was alleged that the articles shown in the account, including the fur coat in controversy, were necessaries and proper items of clothing for the wife of a man so situated as Dr. Trigg; that he was an eminent physician in the city of Fort Worth with a lucrative practice and of great social prominence.

' It was further alleged that the coat was sold to Mrs. Trigg with the knowledge and consent of her husband. There was a further plea of estoppel against Dr. Trigg, based upon allegations that he had permitted and authorized his wife to make and maintain a charge account in his name with plaintiff; that the coat had been delivered to his office and by him delivered to his wife; that, at the time he received the package which contained the coat, he knew of its contents, or, by the exercise of ordinary prudence, should have known of its contents; and that, after being informed of the purchase of the coat by his wife, he acknowledged liability therefor.

In addition to a general demurrer and a verified denial of the justness of the account, Dr. Trigg pleaded specially that prior to the sale of the coat there had been a voluntary separation of himself and wife, and that they were living separate and apart from each other when the coat was purchased. There was also' a special denial of allegations in plaintiff’s petition of the amount of his income when the coat was purchased. There was another special answer in which it was alleged that the separation of the parties was due to the fault of Mrs. Trigg.

The defendant Mrs. Trigg answered, and both she and the plaintiff presented special exceptions to allegations in the answer of Dr. Trigg, to the effect that the separation was due to her fault, but both of those exceptions were by the court overruled.

Following is the charge of the court with the findings of the jury in answer to special issues submitted:

“This case is submitted to you upon special issues each of which you will answer by unanimous consent as follows:
“Definitions:
“In order that articles purchased by a wife for herself may be classed as a necessary they must be such articles of utility as are suitable to maintain her according to the estate and degree of her husband and the articles must be reasonable and proper considering her station in society.
“The term estoppel as used in this charge means that when a person fails to act or speak in a relation or transaction when it is his duty to do so and another is hurt or damaged by such failure, the person so failing to speak or act cannot profit by reason thereof.
“Specially requested instruction No. Two by defendant Dr. Ross Trigg:
“Gentlemen of the Jury:
“You are instructed that in your consideration of whether the coat purchased by Mrs. Ross Trigg was a necessary, that a necessary does not include luxuries nor extravagant and unreasonable purchases. ■
“David McGee, Judge.
“Given.
“Special Issue No. 1: Was the coat purchased by Mrs. Ross Trigg, upon which this suit is based necessary as that term has been heretofore defined? Answer ‘yes’ or ‘no.’ Answer : No.
“Special Issue No. 2: Do you find that by permitting and authorizing Mrs. Trigg to maintain an account and charge to him merchandise over a period of years that Dr. Trigg by his failure to act promptly in returning the $750.00 fur coat in question should now be estopped from denying liability? Answer ‘yes’ or ‘no.’ Answer: No.
“The' burden of proof is upon the plaintiff to prove by a preponderance of the evidence the affirmative of special issues Nos. 1 and 2.”

t^It is to be noted that plaintiff’s cause of ■ action was based solely upon the ground that the fur coat in controversy was a “necessary.” The pleadings relied on by the plaintiff were not sufficient to present the theory of the agency of Mrs. Trigg to bind her husband for the purchase price of the coat, nor was the issue of agency submitted to the jury.

The evidence shows that plaintiff sold Mrs. Trigg the fur coat alleged at the price of $750, which was the reasonable value thereof ; that the sale was made in Dallas; that the defendants resided in the city of Fort Worth; that the sale was made without the knowledge of Dr. Trigg. The evidence further shows that for several years prior to that sale Mrs. Trigg had purchased wearing apparel from the plaintiff in Dallas on her husband’s credit, and that he had always paid the bills.

We quote the following from 13 R. C. L. p. 1207:

“Necessaries are said to be those things suitable to the rank and condition of the husband, or in other words, to the condition of the parties in life. The term is not confined to articles of food or clothing required to sustain life or preserve decency, but includes such articles of utility or probably of ornament as are suitable to maintain her according to the estate and degree or rank of her husband.”

To the same effect is 20 Corpus Juris, pp. G01-603, pars. 141 and 145. The definition quoted is in substantial accord with approved definitions in all the authorities.

The instruction given by the trial court in this case upon the request of counsel for defendant Ross Trigg that “a necessary does not include luxuries * * * ” is contrary to the approved definition, and the instruction given at defendants’ request in connection therewith was further objectionable because it was 'in the nature of a general charge and on the weight of the evidence. Without un-‘ dertaking to set out the evidence in full, we think it sufficient to say that there was testimony introduced which, if believed by the jury, would have sustained a finding that the fur coat in controversy came within the meaning of a proper definition of the term “necessary,” and therefore the assignment of error addressed to the quoted definition given by the court must be sustained.

Accordingly, for the error in the court’s charge pointed out above, the judgment denying plaintiff a recovery against defendant Dr. Ross Trigg for the fur coat shown in the account sued on will be reversed, and the cause as between him and plaintiff as to that item only will be remanded without a discussion of the merits of other assignments, since other rulings here complained of may not occur upon another trial. The judgment in favor of defendant Mrs. Ross Trigg and also in favor of plaintiff against Dr. Ross Trigg for the sum of $101.45, of which no complaint is made, are both left undisturbed.


author: JONES, O. J.

text:
    CITY OF UNIVERSITY PARK et al. v. RAHL.
    No. 10953.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1931.
    Rehearing Denied March 28, 1931.
    Leffingwell & Dixon, of Dallas, for appellants.
    D. A. Frank, of Dallas, for appellee.
   JONES, O. J.

This is an appeal from an interlocutory order granting a temporary writ of injunction against appellants, the city of University Park, a municipal corporation, its mayor and the individual members of its governing body, its building inspector, city secretary, and city attorney, and in favor of appellee, Mrs. Ursula Rahl. The injunction restrains appellants from interfering with the contemplated construction by appellee of a business building in the city of University Park.

The term appellant will refer to the city of University Park, and the other appellants will be referred to by name. The following are the necessary facts:

Appellant is a municipal corporation duly incorporated under the general laws of this state, its governing body is composed of a mayor and two commissioners, and it has the usual staff of executive officers, including a building inspector. On February 3, 1930, • appellant had no valid building ordinance in force and no valid ordinance requiring a prospective builder, within its corporate limits, to secure a permit as a condition precedent to the construction of a building. Ordinances governing such matters had been enacted, but are admitted to be invalid and had been so pronounced by a court of com.petent jurisdiction previous to the institution of this suit. Subsequent to such date, however, appellant legally enacted a building ordinance requiring the issuance of a permit by the building inspector as a condition precedent to the erection of a building within its corporate limits. Appellant, within such time, had also enacted a zoning ordinance, under authority of the general laws of this state. Both of these later ordinances were in force at the time of the institution of this suit.

On November 11,1911, Ed S. Lauderdale, as owner of a tract of land, recorded a plot making it a city addition, platting same into lots, blocks, streets, and alleys, and dedicating it as Methodist University addition to the city of Dallas. Appellee became the owner of lots 13,and 14 in block 1 of this addition by virtue of a deed of conveyance, from her former husband Ed S. Lauderdale, of date January -, 1929. On said date of February 3, 1930, though not required to do so, appellee made application 'to the building inspector for a permit to construct a brick commercial building on said lots. This building was designed for a gasoline filling station and commercial stores, its estimated cost being $25,000, and the building plans submitted in the application showed the building to extend back the entire depth of the lots. This application was made under the terms of the invalid building ordinance. The application was refused, and considerable correspondence followed between appellee’s agent and appellant’s building inspector. Demand was made in the correspondence by appellee, for a statement of the reason for the denial of the building permit, and in which she offered “to do anything and everything that was required by the lawful rules and regulations of the City of University Park, in the construction of said building.” This offer was also made in the application for the permit. The reason finally given by the building inspector for a denial of the permit was, in effect, that protests to the construction of such building had been received by contiguous property owners; and, further, that -the city was enacting a zoning ordinance that would prohibit such a structure on the lots in question.

It appears from the record that the lots in question, previous bo the conveyance to ap-pellee, were the community property of Laud-erdale and appellee, and it necessarily follows, though not specifically shown by the record, that, during the time Lauderdale was the owner of the land in Methodist University addition, he and appellee were husband and wife. A divorce was granted, and the deed from 'Lauderdale to appellee of the lots in question was in part settlement of her rights in their community property under the divorce decree. The date of the divorce is not given, except by'the inference that it was approximately at the time these lots were deeded to appellee, in January 1929.

On December 31,1927, Lauderdale, as owner of the lots in question, and as manager of the community estate of himself and appellee, dedicated by deed of conveyance a strip of land 7½ feet off of the rear of such lots to appellant for use as an alley, and approximately at the same time the owners of other lots in this block also dedicated by deed a strip of land to appellant, thereby making a continuous alley. The Lauderdale dedication deed was not recorded until August 26, 1930, and this strip of land off the rear of these lots was not marked on the ground as an alley. The deed of 1929, from Lauderdale to appellee, did not except the 7½ feet previously deeded as an alley, but purported to convey the land comprehended by the original boundaries of the lots. Appellee had no actual notice of the dedication deed, or of the existence of this alley, and, as the dedication deed was not recorded at the time she became the owner of the lots, or at the time she made application for the building permit, such deed did not carry to her constructive notice of such conveyance.

Previous to the divorce, Lauderdale sold out of the community estate a great, many lots in this addition to other purchasers, and each of these deeds of conveyance contained a restrictive covenant, to the effect that the conveyance was made subject to the condition that such lot should be used for residence purposes only, and by white persons only, and, should such condition be violated by the present or subsequent owner, the title should revert to Lauderdale as grantor. He told many prospective purchasers of lots that the addition was restricted to residences only. The deed to appellee did not contain such covenant. On November 13, 1911, Lauderdale conveyed by warranty deed the lots in question to D. V. Cox and placed said restrictive covenant in such deed, and such covenant thereby became a part of appellee’s chain of title. On January 25, 1922, Oox conveyed the lots in question back to Ed S. Lauderdale 'and they again became a part of the community estate of Lauderdale and appellee, and retained such status until the divorce and partition of the community estate owned by the parties.

From these facts, it is alleged by appellant in its answer to this suit that Lauderdale, as common grantor of all lots in this addition, previous to the sale of any lot therein, had manifested a clear intention to improve such property as an exclusive residential district, and to consummate such purpose had designed a general plan and scheme of restricting all lots in said addition for residence purposes only, and evidenced such intention by placing the restrictive covenant in each deed of conveyance, and that thereby such restriction was binding on all purchasers of lots in said addition, who had notice of such general purpose.

At the hearing before the court, the only material evidence offered by appellee was the introduction of her verified petition, supported by a proper affidavit of her agent, and an additional supporting affidavit by such agent. The only material evidence offered by appellant was the introduction of its verified answer, and the facts herein stated are taken from the pleadings of the parties and said supporting affidavit, as1 constituting the sole evidence on which the court acted when the interlocutory order was granted.

It is the contention of appellant, as Aown by its assignments of error and propositions of law, that, notwithstanding the fact that, at the date the building permit- was applied for, it could not require of appellee such permit to construct the building, yet, under its police powers, it could prevent the erection of a building that appropriated in its construction a part of an alley, and that, as appellee proposed to appropriate a part of an alley-in the construction of the building, as shown by the plans and specifications submitted, it was justified in preventing the proposed building. It further makes -t¡he contention that, as the facts show that at least a substantial question is raised as to the right of appellee to construct a business house on the property in question, because such property is subject to a restrictive covenant forbidding such structure, the court should have denied the temporary injunction. It further contends that, as appellee had no right to the issuance of a building permit on February 3,1930, and that as there was in force, at the time of the institution of this suit, and at the time of the trial, a valid zoning ordinance forbidding such contemplated structure on the property in question, tihe court erred in refusing to admit in evidence such valid ordinance.

Appellee contends that her right to a building permit became vested on the date she filed her written' application, February 3, 1930, and that, as she had a vested right on such date to construct such building, the subsequent passage of a building or zoning ordinance could not affect such right, the court did not err in refusing to admit the subsequent building and zoning ordinances in evidence, and in granting the temporary writ of injunction restraining any interference with the exercise of such vested right. She further contends that, as the deed of dedication -of the alley was not recorded at the time the entire property was deeded, and that as she had no actual notice of such dedication deed, or of the existence of the alley the deed vested her with title to the entire property, and that she had a right to construct the building encroaching upon said alleged alley. She further contends that, as at the time of the trial and in open court she offered that, “If there is any proper dedication of the 7⅜ feet the plaintiff (appellee) does not want to build on said 7½ feet; the plaintiff does not want to build on any land that has been dedicated to the City, and this plaintiff will comply with all reasonable rules, regulations, building ordinances, and other valid restrictions of any kind that are on plaintiff,” she was entitled to’the temporary writ of injunction, regardless of the plans and specifications submitted on said date of February 3, 1930.

If it be conceded that appellee be correct in her contention that she is not bound by any restrictive covenants placed in deeds to lots in the Methodist University addition; if it also be conceded that she is not bound by the unrecorded deed given to the 7½ feet taken from the rear of said lots to be used as an -alley, -and that on the date she made the application for a building permit she had a clear legal right to construct the contemplated building under the plans and specifications filed with her said application, we are nevertheless of the opinion that the court was not justified in granting the temporary writ of injunction. These contentions of appellee are based on the theory that the filing of the application for a permit on February 3, 1930, gave her a vested right to such permit on that date. To this we cannot agree. The building ordinance, under the terms of which appellee filed her application for a building permit; is admittedly invalid, ■and therefore appellant could not lawfully demand from appellee a permit and could not legally issue a permit to her at such time. The proceedings attempted to be had under such invalid ordinance, having no legal status, neither added to nor took from any right appellee had on such date in respect to the construction of her building. These proceedings were void, and void proceedings cannot give vested rights. It is true, if we concede the contentions of appellee, she had the right on such date to make any lawful use of the property she desired, regardless of the proceedings under the invalid ordinance. Under such contentions, conceded for argument to be correct, she had the right on such date to construct the building without a permit from appellant, however this right was subject to appellant's power to enact in the future a valid building ordinance that would require a permit for the construction of the building. Appellee did not assert this right by beginning the construction of the building before the enactment of a valid building ordinance requiring a • permit, nor before the enactment of a valid zoning ordinance that prohibited appellant from issuing a permit for such a building. Appellee and her property were subject to both of these ordinances when they were enacted; hence the trial court erred in refusing to admit these ordinances in evidence.

Under this record, however, we cannot concede, in advance of the trial of this case on its merits, the contentions of appellee that she is not bound by the restrictive covenants placed in the deeds to all of the property in this addition, and placed in the deed to one of her predecessors in title. The facts alleged in the answer are sufficient to raise a serious question as to whether Lauderdale, as the common source of title to lots in this addition, placed the burden of an equitable easement on the lots in this addition, requiring owners to use such property for residence purposes only. The inference is clear from the evidence that Lauderdale and ap-pellee were husband and wife at the time the alleged equitable easement was created by the husband, and, if the land was actually so burdened, appellee was bound thereby because of the community status of the land. Lauderdale was in law the manager of the community estate, and, unless he acted in fraud of appellee’s community rights, burden placed by him on this land was binding upon appellee whether she actually knew of such burden or not. There is no question in this record that Lauderdale acted in fraud of ap-pellee’s rights when he burdened the community land with the alleged easement. We therefore hold that, as the pleadings and facts developed at the hearing raised a serious question as to appellee’s rights to construct a building on this property other than for residence purposes, it was error for the trial court to grant the temporary writ of injunction in advance of the trial of the case on its merits.

We cannot concede the contention of ap-pellee that, as the deed from Lauderdale to appellant to the 7½ feet off of the rear of these lots, for use as an alley, was not recorded prior to her separate ownership of the property, such deed is not binding on her, and that she took title to the two lots as same are described in her deed. At the time, the deed to the alley was.executed, this property was the community property of Lauderdale and appellee, and the deed by Lauderdale to any part of such community is binding on appellee, unless it is shown to have been in fraud of her rights. This showing is neither-raised by her pleading nor evidence, and we hold that appellee is bound by the dedication deed to the 7½ feet for use as an alley.

There is another potent reason why the judgment of the trial court, granting the temporary writ of injunction, cannot be affirmed. The effect of such judgment is probably to give to appellee, by an interlocutory order, all of the relief she can secure under a final trial of the case. This is never permissible where there are substantial issues of fact to be determined at the final trial that would probably result in defeating the right to the equitable relief sought. Such substantial issues of fact are shown to exist in this case and are fatal to the right of a temporary writ of injunction, which, in effect, grants full relief to appellee. City of Farmersville v. Texas-La. Power Co. (Tex. Civ. App.) 33 S.W.(2d) 271; James v. Weinstein (Tex. Com. App.) 12 S.W.(2d) 959; Welch et al v. Carter (Tex. Civ. App.) 30 S.W.(2d) 351; 32 C. J. 20.

We think the court abused its discretion in granting the temporary writ of injunction, and such writ is dissolved, -and the case remanded for a final trial on the issues made by the pleadings of the parties.

On Appellant’s Motion for Rehearing.

In the motion for rehearing appellee challenges the finding of this court, to the effect that a divorce decree had been entered between Lauderdale and appellee (Lauder-dale’s former wife), and that the deed to the lots in question from Lauderdale to appellee was in part settlement of her rights in their community property. Appellee insists that there cannot be found “a word in the record about divorce or that the appellee received this lot in settlement of her rights in the community property.” In this assertion ap-pellee is mistaken, for the record, not only shows that the lots in question had been the community property of herself and Laud-erdale, but also shows, in the affidavit of Charles T. Paul, introduced in evidence by appellee, that “the plaintiff (appellee) became the owner of said lots in a settlement with her divorced husband, Edward S. Lauder-dale. ⅜ * * ” This evidence clearly warrants the finding in the original opinion, about which appellee complains.

The motion for rehearing and for correction of findings of fact is overruled.


text:
    LANING v. LANGFORD INV. CO. et al.
    No. 12540.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1931.
    E. E. Fischer áñd T. F. Hunter, both of Wichita Falls, for appellant.
    Fischer & Fischer, of Wichita Falls, for appellees.
   DUNKLIN, J.

This appeal is by Mrs. R. A. Laning, plaintiff in the court below, from an order of the district court denying her a temporary writ of injunction to restrain the sale of- an automobile which had been levied on under a writ of execution issued under a judgment theretofore recovered against Mrs. Laning by the Langford Investment Company, who, together with the constable who had made the levy and the attorney of record for the Langford Investment Company, were all made parties defendant.

As a basis for the relief prayed for by the plaintiff, it was alleged that the automobile was exempt from forced sale under the Constitution or statutes, since she was the head of a family.

There is no provision in our Constitution which would render the automobile exempt, and if such exemption obtains it must be -by virtue of the provision of article 3832, Revised Civil Statutes 1925, which reads in part as follows:

“The following property shall be reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided:
“1. The homestead of the family. * * *
“10. One carriage or buggy. * * * ”

It is settled by the decisions of this state that an automobile is a carriage within the meaning of subdivision 10 of that article of the statutes.

Hence the only disputed issue involved in this case is whether or not Mrs. Laning was the head of a family.

Upon the hearing of the application for the temporary writ, evidence was introduced which showed that prior to the in-’ stitution of this suit, the Langford Investment Company had recovered a judgment against Mrs. R. A. Laning for house rent in the sum of $1,200, which was unpaid, and that execution issued on that judgment had been levied on the automobile in controversy, which was a La Salle coupé, and that the same had been advertised for sale under that levy; the suit being brought to restrain such sale.

Aside from the proof of those facts, the only evidence offered upon the hearing consisted óf the testimony of plaintiff herself, which may be .briefly summarized as follows:

Plaintiff and her husband, R. A. Laning, now deceased, moved to Wichita Falls in thq year of 1918, and she has resided there ever- since. During their married life they maintained a home in which they lived continuously up to the time of the husband’s death. Since the death of the husband, plaintiff lias never boarded or lived in an, apartment but bas maintained a borne witb furniture, wbicb sbe bas occupied as ber place of abode. At tbe time of tbe bus-band’s death, tbe couple owned a seven-, passenger sedan car, which was usad as a' family car. After bis death, sbe kept that car and used it as a family car and also in tbe oil business, in wbicb sbe was engaged, for a period of two .years. Sbe then traded tbe car for tbe car in controversy, paying a difference in tbe trade of $2,500; tbe purchase price of tbe new car being $3,000, and tbe seller taking in 'the old car at a valuation of $500. Plaintiff and ber husband bad no children and she is still a widow of R. A. Laning without children. After tbe burial of plaintiff’s husband in September, 1924, ber girl cousin came to live witb ber, but no one else except that girl bas lived with' ber. Sbe then testified as follows:

“This young lady who is my cousin, came to live witb me when I brought ber back witb me when I buried Mr. Laning. That was in September, 1924. Sbe lived witb me then, two years. Sbe lived witb me until about August or September 1926. I did not say that she did not live witb me then until 1930. Sbe was gone for two winters. Sbe came back during tbe summer of each year. Sbe would come back in tbe summer and stay witb me. Then she would go back to ber father and mother and stay during tbe winter. Tbe last time she came back to stay witb me was July 1930. Sbe is living with' me now and bas been since July, 1930. Sbe-is eighteen years old, since last September. At my bouse sbe looks after my house and keeps bouse for me. Her father and mother are living. Her father and mother raised ber until she came to live , witb me in August, 1924. Her father' and ' mother live in Indiana. She is a cousin of mine. Sbe bas other relatives. Sbe bas two brothers, besides her father and mother. One is sixteen years and tbe other twenty-nine years of age. Tbe older boy lives in Indiana. Sbe bas no uncles that I -know of. Sbe has an Aunt. Sbe lives in a soldiers home in Indiana. I do not pay this young lady any wages. Sbe gets ber board and dresses and I send her to school. In consideration, sbe looks after my home. As to when ber father became incapacitated so that be could not support this young lady, I could not say. He bas never been where be could really support a family. Her mother helped support tbe girl in 1924. They raised two other children. Tbe older brother is twenty-nine years old, is married and works and supports a family. Her father is not a shiftless fellow, but is not a strong man. He does not work. I-Ie lives on a pension. Tbe girls mother i§ not doing anything. There is no one to sux>port this girl but myself. As to bow she came to live witb me: well, I have always helped ber, even when sbe was a baby. I have always helped tbe family.' I have always sent clothes and money to help ber out. As to who» supported ber during the two years •when sbe was gone from me, I sent ber money. I do not remember bow much. I do not remember approximately. I just sent ber some money now and then to help ber out. Sbe was living in Terre Haute, Indiana with ber father and mother. They have a home there. As to why I did not have ber come to live with me before Mr. Laning died, was because I was in the office and helping him and just did not do it. I did not bring ber down to live witb me after Mr. Laning’s death to keep me company. That was not tbe reason. I brought ber after bis death because I wanted to help ber out. I did help ber out and wanted to help ber out 'before Mr. Laning died. I am certainly insolvent. I bad a deal on tbe other day and lost tbe deal because tbe constable took my car. I did not have tbe money to get another car any where. It is not a fact that I have a number of diamonds.”

Tbe date of tbe trial was December 31, 1930.

Tbe judgment formerly recovered by tbe Langford Investment Company against tbe plaintiff, and under wbicb tbe ear in controversy was levied on, was for rents due the investment company on tbe house in which plaintiff bad resided as a home after ber husband’s death. No other witness testified in tbe case except P. P. Langford, the manager of tbe Langford Investment Company, and bis testimony related solely to the judgment wbicb tbe investment company bad recovered against the plaintiff. And no testimony was offered from any source to contradict that of tbe plaintiff.

The trial judge filed findings of fact and conclusions of tbe law which’ appear in tbe record. Tbe findings of fact so filed embody .in substance a recital of the facts so testified to by tbe plaintiff, except that tbe court found that “the- parents of tbe girl have a home where they live, and are able to support tbe said girl.” And one of tbe conclusions of law reached by the ■judge reads as follows:

“I conclude that under tbe facts proven and found, plaintiff was not morally bound to support tbe said cousin so as to entitle plaintiff to tbe exemption of tbe said La Salle coup&”

Tbe finding that tbe parents of tbe girl are able to support ber was a conclusion drawn by tbe trial judge from tbe fact, as shown by plaintiff’s testimony, that ber parents bad reared and supported ber up to tbe time sbe came to plaintiff in September. 1924; and while she bad spent two winters witb ber parents after sbe bad first lived with tbe .plaintiff for two years.

The judgment in favor of' Langford Investment Company for $1,200 for rents was rendered on June 9, 1930, and the same was for the unpaid amount of rents due by Mrs. Laning to the Langford Investment Company at the rate of $60 per month from August 30, 1928, to April 30, 1930, a period of twenty months.

In Roco v. Green, 50 Tex. 483, it is said:

“We deduce from the authorities the following general rules to determine when the relation of. a family, as contemplated by law, exists:
“1. It is one of social status, not of mere contract.
“2. Legal or moral obligation on the head to support the other members.
“3. Corresponding state of dependence on the part of the other members for this support. (Thomp. on H. and E., sees. 45, 46, and authorities cited.)”

In Wolfe v. Buckley, 52 Tex. 641, The Supreme Court affirmed the judgment of the trial court decreeing that certain property owned by Mrs. Buckley and claimed by her as a homestead was exempt from forced sale under the provisions of the Constitution protecting a homestead. And in that opinion it was held in effect that a finding that Mrs. Buckley was the head of a family was supported by “the peculiar social status of the parties; the prior assumed obligation of Mrs. Buckley to support these children, and their state of dependence upon her for moral training, and for at least a portion of their .support and maintenance; her previously long-formed intention to adopt Anna, and the general policy of our laws providing exemption in favor of widows and.minor children.”

The tests announced in the two decisions last noted have been followed in many recent decisions, such as Seley, Guardian v. Howell, 115 Tex. 583, 285 S. W. 815, 817. In that case, the Supreme Court sustained an order of the probate court setting aside to Mrs. Sally Howell, out of the estate of her son, as insane with a guardian appointed, an allowance for her support under and by virtue of the provisions of article 4275, of the Revised Civil Statutes 1925, .authorizing the probate court in such a case to make “orders for the support of his family and the education of his children when necessary.”

The disputed issue in that case was whether or not the mother was a constitutent of the family of the insane son, who had lived with her in her own home at the time he was adjudged insane, the -mother having no other means of support except her income of $20 a month allowed to her by the United States government by reason' of her dependency upon her son, and from which allowance she was compelled to pay taxes on her home. It appeared that the mother was an invalid, in delicate health, and under the constant care of a physician, and prior to his adjudication, the son had lived with her and helped to support and care for her. In that decision the following was quoted with approval from Wilson v. Cochran, 31 Tex. 680, 98 Am. Dec. 553, on the meaning of word “family”:

“It was most certainly used in its generic sense, embracing a household, composed of parents and children, or other relatives, or domestics and servants: in short, every collective' body of persons living together within the same curtilage, subsisting in common, directing their attention to a common object, the promotion of their mutual interests and social happiness. These must have been the characteristics of the ‘family’ contemplated by the framers of the constitution in engrafting this provision upon it. It is, besides, the most popular acceptation of the word, and is more fully in unison with the beneficent conception of the political power of the state, in making so human and so wise a concession as that of the inviolability of a homestead from all invasion by legal process.”

And the opinion by the Commission of Appeals, adopted by the Supreme Court, concludes with the following:

“The right and power of the court to make the order complained of, depending as it does upon the statute being construed, and our construction being that appellee under the facts shown is a member of the family of her afflicted son, Van Burén Howell, we see no reason why the judgment should not be affirmed. Indeed, it would be a great injustice in the instant case if the statutes were so inflexible as to exclude an order, the objects of which were so beneficent. Van Burén Howell was under no legal obligation to support his aged and dependent mother, but he at all times recognized that finer and, in a sense, superior moral obligation, and was accordingly supporting her until his adjudication. The construction we have given this statute merely makes possible the continued support that the unfortunate son undoubtedly would have bestowed upon his mother but for his overwhelming misfortune. His ‘family,’ within the meaning of the statute governing, was the group constituted through his own selection, and recognized by his free choice, as it existed at the time of his commitment.”

The rule of decisions is that a temporary writ of injunction will not be granted unless the same is reasonably necessary to protect the rights of' the plaintiff pending the litigation and that the allowance of such a writ rests largely in the discretion of the judge to whom application for such relief is made. But such discretion does not mean the arbitrary will of the court; it must be based upon the established principles, rules and practice of equity jurisprudence. And in 14 R. C. L., par. 11, p. 313, it is said:

“The grace which the court may thus exercise sometimes becomes a matter of right to a litigant, and when it is clear that" the law cannot give protection and relief, to- which the complainant in equity is admittedly entitled, the court can no more withhold its grace than the law can deny protection and relief, if able to-give them.”

And in paragraph 12 on the same page the following is said:

“With the exercise of discretion by a trial court appellate courts will not ordinarily interfere, unless a right is clearly shown to exist to which recognition has not been properly accorded in the lower court, or there appears to have been a clear abuse of power. If there has been a reasonable showing made in support of the application in the court below, its action in granting an injunction will be sustained^ Ordinarily, it is sufficient if a transaction is shown which makes a proper subject for investigation in a court of equity. But if the allegations of the bill are sufficient, and the evidence in support thereof is ample to warrant the granting of the temporary injunction, and no sufficient defense is made, an order denying an injunction will be reversed.”

In 32 Corpus Juris,' p. 36, the same doctrine is announced, but following that announcement and on page 31 occurs the following:-

“Nevertheless, there are a large number of decisions which hold that it is not sufficient ground for refusing a preliminary injunction that it is not absolutely certain that the complainant has the right that he claims or that the injury feared will occur; and even though complainant’s right to permanent relief is doubtful, it may be proper to maintain the status quo pending the determination of his right, the issuance of a temporary injunction in such cases depending chiefly upon the relative inconvenience to be caused the parties. The complainant it was said may be entitled to a preliminary injunction in cases where his right to the relief prayed may fail on a hearing on the merits.”

And on page 39 occurs the following:

“If complainant shows that an irreparable injury will phobably be suffered by him before the final hearing, that there is a reasonable probability that he will establish the facts as he alleges, and that the injunction will not cause a great injury to defendant, a -preliminary injunction should issue to maintain the status quo,, despite the conflict as to facts.”

To the same effect, see 14 R. C. L. par. 60, p. 357.

It is to be noted that Mrs. Daning testified without contradiction that the father of the child whom she had taken into- her home was unable to support her and the finding of the trial judge that he is able to support her is assailed by appellant as being contrary to the undisputed testimony of the plaintiff. We are unable to say, as insisted by the appellee, that facts testified to by the plaintiff conclusively refute her statement that -the father was unable to support the child. Nor can we oncur in the appellee’s further contention that appellant is under no moral obligation for such support, and -that the child .is not, to some extent at least, dependent on the plaintiff for support and moral training. It further appears from all the facts that there is a reasonable probability that plaintiff may, upon a trial of the case on its merits, sustain her contention that the automobile levied on is exempt under the provisions of article 3832 of the statutes, and that the refusal of the temporary writ of injunction prayed for may result in her irreparable injury, in the event she establishes her claim of such exemption upon the final trial of the case on its merits. It is further apparent from all the facts that aside from the loss of interest on the value of the car, the defendant will not suffer any material loss by the granting of the temporary injunction and requiring it to await the final determination of the case on its merits. Indeed, in his order refusing the temporary writ of injunction, the court expressly provided that the car should not be sold under the execution that had been levied, until appellant's appeal from that order should be determined by this court; and appellee did not except to that limitation nor has any complaint been made of it here.

Accordingly, we have reached the conclusion that the judgment or order refusing plaintiff’s application for a temporary writ of injunction should be reversed and the cause remanded for further proceedings not inconsistent with the foregoing conclusions; and it is so ordered.


text:
    McCORMICK v. SOUTHWESTERN BELL TELEPHONE CO.
    No. 12423.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1931.
    Rehearing Denied March 21, 1931.

      Adams & Jones, of Gainesville, for appellant.
    Nelson Phillips and C. M. Means, both of Dallas, and W. D. Garnett, of Gainesville, for appellee.
   DUNKLIN, J.

Walter D. McCormick, suing as next friend of his minor son, Walter D. McCormick, Jr., to recover damages resulting from personal injuries sustained by the minor, has appealed from a judgment in favor of the Southwestern Bell Telephone Company, defendant in the suit, whose alleged negligence was charged to be the proximate cause of those injuries.

Following are the facts which gave rise to the litigation: A two-story brick building, situated in the city of Gainesville, and known as the “Flats,” with twelve living apartments therein, fronts south on Main street; in the same block there are business houses fronting north on another street, and between those buildings and the flats on the south there is an open passway, about 40 feet wide, running east and west through the block. Occupants of different apartments in the flats had access to that open passway through the rear openings of those apartments. W. D. McCormick, Sr., together with his family, which consisted of himself, wife, daughter, and minor son, Walter D. McCormick, Jr., about ten years old, occupied one of the apartments in the flats. The rear or south wall of a brick building occupied by the Nash-King Motor Company abutted on the open space running through the block. The Southwestern Bell Telephone Company owns and maintains a system of telephone wires and equipment in the city of Gainesville, where it renders telephone service to its citizens. To that -end its wires are strung in and about the buildings, and, in order to construct and properly maintain them, it is necessary to use ladders.

On December 18, 1928, employees of the telephone company placed a ladder, consisting of several sections, in the open way be- ‘ tween the Nash-King Motor Company and the flats, where it was used in doing work on the telephone wires; and on the evening of that day, and upon cessation of such work, they took the sections of the ladder apart and staeked them against the wall of the Nash-King Motor Company building, and, after covering them with linoleum, left them there. The sections; of the ladder were each about 6 feet long, and were equipped with an interlocking device for fastening them together so as to make an extended ladder; and they were so fastened when the employees of the telephone company used them at that location. In so using them, the ladder was leaned against the brick wall of the Nash-King Motor Company building. After doing that work, the employees of the telephone company were called away for other work at another location.

Children who lived in the flats were accustomed to play in the open space between the buildings, and on December 21st Walter D. McCormick, Jr., and his playmate, Hal Timmes, after their return from school in the afternoon, undertook, for their amusement, to connect together three different sections of the ladder and lean the same against the wall of the Nash-King Motor Company building, and then climb it.

No one witnessed the accident except those two boys, and the manner of its happening was detailed by plaintiff’s minor son, Walter, who was introduced as a witness for plaintiff, as follows:

“After I spoke to Hal we went out in the back and played. We found the ladders when we got back there; they were .short ladders. They were out there in the back yard piled up against the building, the Nash-King Motor Company’s building. I mean the brick building that is next to that open space. We took three of those ladders off th® stack and tried to put them together. There was a device on the side of the ladder to hook them •together and make the three ladders into one. We didn’t get them hooked good. We put them up against the building after we got them hooked; I mean that brick building north of the open space there. We didn’t get them up very high. The ehd of the ladder that was up off the ground was about as high on the brick building as your head (Mr. Adams is a man about 6 feet tall) and the other end was on the concrete — it was slanting down south. Both of us lifted the ladder up and I started to go up it but I came down. Hal was under the ladder trying to hold it up when I started to go up it. I started up the ladder and got up about two or three rungs and came back down. Then I went under the ladder to hold it up and Hal went up it; he climbed up the ladder. I don’t remember how far up he got when the bottom of the ladder came uncoupled and fell on me. The whole ladder came down on me. The section that was on the ground came uncoupled from the two that were up against the wall. All tie sections of the ladder fell on me and Hal came down with them; I don’t know whether he fell on .me or not, I don’t remember. I was hurt; .1 received injury to the broken leg that I have had ever since that time. I hallooed when I got hurt and my sister came out of the house. I was not under the ladder when it fell on me. I wasn’t under the ladder when my sister came out; Hal drug me out. I was under 'it when it fell on me and Hal Timmes drug me out from under it.”

I-Xal Timmes, the other boy, was introduced as a witness for defendant, and his testi- ' mony was substantially to the same effect as that quoted above except as indicated in this portion, in which Walter was referred to as •‘Junior”:

“When we put the ladder up against the wall I climbed it first. Junior was under the ladder holding it when I climbed it. We wasn’t sure it would stay against the wall so we were holding it for each other. I climbed up about seven or eight rungs, I guess, then X came back down. The ladder didn’t fall with me. Then I went under the ladder and held it for Junior. I was holding on to one of the rungs. Junior climbed the ladder and I was holding it because I was afraid it would slip out. Junior climbed on up the ladder. I am not so sure how high up he got, I guess about two or three rungs higher than I did, then the ladder slipped out. None of the sections slipped out that I know of. The bottom slipped out and come down from the wall. Junior was just standing on the ladder there at that time. His leg slipped through the ladder, then it just come on down and I jumped out from under it and it hit me on the arm. Junior was on the ladder when it fell, and it fell on his leg.”

Anderson King and A. W. Stark owned the building in which the Nash-King Motor Company did business, and also the fiats, together with the intervening open space where the accident happened. King testified that the tenants of the flats had access to the open space which was used by the grocer, butcher, and others having business with the occupants of the flats, who also used the open space for storing their garbage. He testified:

“I don’t know whether the employees of the Southwestern Telephone Company were working on a cable at the back of my building or not that was running across the Flats. I had, no objection to their being there and having ladders to work on cable with at the back of my building. I know those cables are back there and that they worked on them when ever it is necessary for the telephone service. And had permission been requested it would have been given to them.”

It thus conclusively appears that the employees of the defendant company, in using the open space between 'the buildings for work on the defendant’s cable, were rightfully there, and were not trespassers, as plaintiff insists in his brief..

Plaintiff alleged that the work which defendant’s employees were doing in the open . space between the buildings consisted of placing and putting- up wires, cables, and other fixtures and improvements to enable the defendant to properly maintain and operate its telephone system in said city of Gainesville; that defendant’s employees negligently left the ladders in the open space where they were accessible to plaintiff’s son and other children; that the same were unusually attractive to children, and did attract plaintiff's son; that the same constituted an unusually attractive nuisance; that the defendant’s employees well knew, or by the exercise of prudence should have known, that the ladders left as they were would,, in all reasonable probability, attract children who would attempt to use them by coupling together the different sections; and wore guilty of. negligence in so leaving the ladders, which was the proximate cause of the injury sustained by plaintiff’s son.

In addition to a general denial, defendant specially pleaded that the work done by its employees on the cables in question was necessary to the maintenance of the telephone lines, and that, after the ladders were used by them, they were taken apart and the several sections were stacked in a safe manner; that the act of plaintiff’s son and his companion in removing the linoleum and undertaking to join the sections of the ladder together and then use it was all done without the knowledge or consent of defendant’s employees.

The case was submitted to a jury on special issues, which, together with the findings thereon, were as follows:

“1. Were the sectional ladders that were left by the defendant company stacked against the brick wall on the north side of the open space behind the Flats of such nature and character as would reasonably be calculated to attract children of the age of the plaintiff, to use and attempt' to use those ladders? Answer: No.
“2. Were the employees of the defendant company negligent in leaving the said ladders in the manner they were left against said brick wall on the north side of the open space, at the rear of the Flats?. Answer: No.
“3. Was such negligence, if any you have found, the proximate cause of the injuries sustained by the plaintiff? Answer: -.
“4. What sum of money if paid now would reasonably compensate the plaintiff, .Walter D. McCormick, Jr., for the injury received by him on the occasion in question, taking into consideration exclusively (a) mental anguish and physical pain and discomfort, if any, suffered by him as a direct result of such injuries to the date of the trial, and (b) physical pain and discomfort, if any,'wliicli you may believe he will reasonably suffer-in the future, if any, as a direct result of such injuries? Answer: None.”

Numerous assignments of error and propositions thereunder are presented in appellant’s brief, presenting the contention that the evidence showed without dispute, as a legal conclusion, that in leaving the ladders in the open space, in the manner and under the circumstances already related, the defendant was guilty of negligence, which was the proximate cause of the injury, for which a recovery was sought; and that therefore the court erred in submitting issues 1, 2, and 3 as controverted issues for determination by the jury.

In the absence of any statute which would mate such an act negligence per se, it is manifest that the determination of that issue was exclusively the province of the jury. We deem it hardly necessary to cite authorities to sustain that conclusion, but we will refer briefly to one.

In Lee v. International & Great Northern Ry. Co., 89 Tex. 583, 36 S. W. 63, 65, the following is said:

“Negligence, whether of the plaintiff or defendant, is generally a question of fact and becomes a question of law, to be decided by the court, only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question. In other words, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

Sioux City, etc., Ry. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, was the parent “turntable” case in the United States, in which the doctrine of liability to children for injuries resulting from maintaining what are termed “attractive nuisances” was announced. And in that case it was held that whether the railroad company was guilty of actionable negligence in maintaining the turntable, which the court assumed as unquestionably attractive to children in play, was for determination by the jury, even though it further appeared that, prior to the injury, several boys had played at the same place with the knowledge of the defendant’s employees. And the court specifically overruled the contention that, since the facts were undisputed, the trial court should have instructed a verdict in favor of the defendant. See 20 R. C. L. pp. 80, 81.

Indeed, as shown in 20 R. C. L. p. 89, par. 79, many authorities hold that, as a general rule, the doctrine of attractive nuisances has no application in suits for injuries resulting from the use of simple tools and appliances, such as ladders, gates, and the like. Whether or not that announcement is correct as a legal conclusion, it is not necessary for us to determine here. We advert to it merely to support our conclusion that in this case it was, to say the least, the province of the jury to determine the issues of negligence on which plaintiff’s suit was predicated.

While it is true, as insisted by appellant, that the evidence conclusively showed that the minor sustained serious injuries as the result of the accident, yet the finding of the jury in answer to issue No. 4, which was in effect to the contrary, resulted in no harm to plaintiff, since, by reason of the findings on issues Nos. 1 and 2, no right of recovery was shown. Perhaps the jury made the finding on issue No. 4 upon the supposition that to find otherwise might entitle plaintiff to recover, independently of the other findings. But whether or not such a surmise can be indulged is immaterial, in view of the findings on issues Nos. 1 and 2, which have ample support in the evidence, including, in addition to the facts and circumstances recited above, the uncontradicted testimony of defendant’s employees that they had never seen any children using the open space between the buildings as a playground.

Accordingly, all assignments of error are overruled, and the judgment is affirmed.