author: BLAIR, J.

text:
    LAKEVIEW COMMON SCHOOL DIST. et al. v. COUNTY SCHOOL BOARD OF TRUSTEES OF SAN SABA COUNTY.
    No. 7582.
    Court of Civil Appeals of Texas. Austin.
    April 22, 1931.
    G. A. Walters, of San Saba, for appellants.
   BLAIR, J.

This appeal is from an order denying the application of appellants, Lakeview common school district and its school trustees, for a mandatory injunction, commanding appellees, the county school trustees of San Saba county and its members, to rescind and cancel their orders theretofore made granting four certain petitions transferring the lands therein described from appellant Lakeview district into appellee Richland Springs independent school district, and restraining the said county school trustees from recording in their minutes or records any orders redefining the boundaries of the proposed district; restraining appellee E. E. Pierce, secretary of the said county school trustees, from recording any of said orders; restraining appellee J. H. Hart, assessor and collect- or of taxes for the said independent district, from assessing any school taxes for that district against the proposed transferred lands;. and commanding W. T. Terry, tax assessor for San Saba county, to assess said lands for school taxes in appellant Lakeview district. The following agreed facts state the decisive issues in the appeal:

“Third. There were four of said petitions and they were all dated at Richland Springs, Texas, on June 10th, 193.0, and were numbered one, two, 2b and number 3.
“Fourth: Petition number One was signed by W. N. Gibbons, the sole owner of the section of land therein described. * * * All of said territory was pasture land, unoccupied by any resident citizen, tax payer or patron of any school; that the owner did not reside in said Lakeview Common School District, but resided within said Independent School District. * * * That the said owner, in order to avoid the necessity of securing a majority of the resident voters of the school districts in which the land was located upon his petition requesting such transfer, together with the approval of the trustees .of said school districts, subdivided all of the territory that he owned into small subdivisions wherein each would contain less than 10'% of the total area of the given District. ⅜ ⅞ *
“Seventh: ⅜ * ⅜ The trustees of plaintiff, Common School District and the majority of its resident voters, tax payers and patrons of its schools were very much opposed to said respective territories being transferred from their said respective districts because of the loss in school taxes, which said district would sustain thereby, and that this opposition was well known * * * by the said County School Board of Trustees and that it would be impossible to secure the petitions of assent or approval of a majority of the resident voters and patrons and trustees of plaintiff Common School District to either of said transfers, that the same was done without any notice to plaintiff trustees or any of plaintiffs and while in this ease there were four petitions, the same was evidently one transaction in contemplation by defendants at the time and on the dates their petitions were prepared in Richland Springs, Texas, and that it was a concerted scheme upon the part of the defendants to deny plaintiffs their legal right "to protest against said petitions, and to register their opposition to the same by refusing to sign any petitions therefor, by cutting the territory up into four parcels as the same was done, and in: stead of having one petition with all of the signers thereon, prepared four petitions, each containing less than 10% of the total area of said Common School District, and secured the signatures of the owners of said respective subdivisions upon said respective petitions. * * * ’’

The trustees of Richland Springs independent school district approved the project to annex the territory described in the four petitions, but with the following agreed stip-. ulation: “ * * * It is not admitted that the defendant, Independent School District is or was responsible for the subdividing of the territory in plaintiffs’ Common School District into areas less than ten per cent of the total area of said district for the purpose of defeating the will of the majority of the resident voters, patrons and tax payers and the trustees of plaintiff Common School District.”

Appellants contend that the transfers are in violation of the portions of section 1 of chapter 47, Acts 1929, 1st Called Sess., p. 106 (Vernon’s Ann. Civ. St. art. 2742f, § 1), which reads as follows: “ * * * The County Board of Trustees shall have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line of the two districts; provided the Board of Trustees of the district to which the annexation is to be made approves, by majority vote, the proposed transfer of territory and provided, further, that where the territory to be detached exceeds ten per cent (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached.”

We sustain the contention of appellants that the county school board was without authority to detach from the Lakeview district the land described in petition “one” and annex it to the Richland Springs district upon the sole petition of the owner who did not reside in the Lakeview district! but in the Richland Springs district. It is manifest that the statute authorizes a county school board to detach territory from one district and annex it to another only upon (a) “the petition * ⅝ * signed by a majority of the qualified voters residing in the said territory so detached,” and (b) “that where the territory to be detached exceeds ten per cent (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of th.e qualified voters of the territory to be detached.” A school district is made a body politic and corporate entity by statute with its control and management vested in the qualified voters, and to permit one living out of a district to detach land owned by him in the district would deprive the qualified voters and residents of their right of local self-government.

We also sustain the contention of appellants that under requirement (b), supra, of the statute, the county school board was not authorized to grant the four petitions separately, each of which contained less than 10 per cent, of the territory of Lakeview district, but, when added together contained more than 10 per cent, of said district, without first obtaining the consent of a majority of the trustees of Lakeview district. This provision of the statute is a salutary one, and was intended to safeguard a district from detachments exceeding 10 per cent, of its territory in order that its finances as well as its scholastic population might not be decreased to the detriment of the school. The parties to the petitions and all other appellees, except the Richland Springs district, frankly admit that they presented four petitions instead of one in order that the consent of the Lakeview trustees might not be necessary, and the county board entered its orders over the protest of said Lakeview trustees and 47 qualified voters of the district who filed petitions of protest. This procedure merely accomplished indirectly what the statute directly prohibits, and cannot be sustained. It greatly impaired the efficiency of the school by reducing its finances and its scholastics from 84 to 67.

The preceding issues are decisive of the case without regard to others raised, and we reverse the judgment of the trial court and remand the cause, with instructions to the trial court to issue the injunctions as prayed for by. appellants.

Reversed and remanded, with instructions.


source: Caselaw Access Project

author: McClendon, c. j.

license: Public Domain

text:
    MERRIWEATHER et al. v. JACKSON et al.
    No. 7538.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1931.

      C. E. Richards, of Lockhart, and Hart & Patterson, of Austin, for appellants.
    Nye H. Clark and E. B. Coopwood, both of Lockhart, for appellees.
   McClendon, c. j.

This suit involves the title to a 5-acre tract out of a 162-aere tract of land in Caldwell county. Appellees, who claim under a general warranty deed, executed by Mrs. Mattie Merriweather, one of the appellants, May 20, 1903, sued appellants, Mrs. Merriweather and her two daughters, in trespass to try title, and in the alternative alleged that, if the interest of the daughters did not pass by their mother’s deed (a question we find it unnecessary to decide), such interest was less in value than that of their mother in the remaining 157 acres, and claimed the right to have the entire title to the 5 acres set aside t’o them, under the equitable doctrine that the daughters had the right of reimbursement out of their mother’s interest in the 157 acres. Appellees also alleged that the daughters had ratified their mother’s deed.

Prom a judgment upon a directed verdict in favor of appellees, Mrs. Merriweather and her daughters have appealed.

While a number of questions are raised in the appeal, we' have reached the conclusion that the trial court’s judgment should be affirmed upon appellees’ above alternative pleas.

We give briefly what the record shows pertinent to these issues:

John W. Merriweather acquired the land in 1868, prior to his marriage with Mrs. Mer-riweather. ' He died in 1884, 'and by his will he devised all of his property to his wife and three daughters. Mrs. Merriweather was made independent executrix of his will.

On May 20, 1903, Mrs. Merriweather executed a general warranty deed conveying the five acres to Luling Oil & Development Company. Appellees hold under this deed by regular chain of title. At the time this deed was executed the three daughters were aged, respectively, 21, 20, and 18 years; the youngest daughter died in 1916, and, as stated, her interest passed to her mother and sisters. The deed made no mention of the will and was merely signed, “Mrs. Mattie Pickens Merri-weather.”

At the time this deed was executed it was supposed that the land was oil bearing, and it was expected to be developed. Whatever developments, however, were had at that time were unsuccessful.

In 1928, oil was discovered in the vicinity, and Mrs. Merriweather and her two daughters joined in mineral leases, whereby the entire mineral title of Mrs. Merriweather and her two .daughters to the 157 acres was conveyed to the several grantees. The two daughters were cognizant of the 1903 deed at the time it was executed, and have known of it ever since, and referred to it in the several oil leases in which they joined, describing the remainder of the 162-acre tract as “containing 157 acres after deducting 5 acres* off northeast end of tract to Luling Oil Company.” At the time of the conveyance to the Luling Oil Company, the entire tract was supposed to contain 149 acres, upon which amount Mrs. Merriweather paid taxes up to that time. Thereafter, and until 1927, she assessed 144 acres. From 1927 on she assessed 157 acres.

Extensive mineral developments have been made upon various portions of the 162 acres; on the 5-acre tract under mineral leases executed by appellees, and on the 157-acre tract under mineral leases executed by all the appellants jointly with the above recitation as to the 5-acre tract.

The undisputed evidence shows that both as to surface and mineral rights the interest of Mrs. Merriweather (%) in the 157-acre tract is largely in excess of her two daughters’ interest (⅝) in the 5-acre tract.

While it seems universally held that one tenant in common cannot prejudice the rights of his cotenants by conveying the entire .title in a specific portion of the common property, this rule is subject to the limitation in this state that such conveyance will be upheld in equity, and the vendee’s right to the specific land will be sustained when the circumstances render this course equitable. This principle appears to have been first announced in an able opinion by Chief Justice Roberts (Arnold v. Cauble, 49 Tex. 527), and has been repeatedly and uniformly followed. Glasscock v. Hughes, 55 Tex. 461; Osborn v. Osborn, 62 Tex. 495; Furrh v. Winston, 66 Tex. 521, 1 S. W. 527; Cameron v. Thurmond, 56 Tex. 22; Talkin v. Anderson (Tex. Sup.) 19 S. W. 350; Thompson v. Robinson (Tex. Civ. App.) 56 S. W. 578; Peak v. Swindle, 68 Tex. 242, 4 S. W. 478; Lemonds v. Stratton, 5 Tex. Civ. App. 403, 24 S. W. 370, 371; Beale’s Heirs v. Johnson, 45 Tex. Civ. App. 119, 99 S. W. 1045 (error refused).

Under a proper application of the principles announced in these decisions to the un-eontroverted facts of this case, namely, that Mrs. Merriweather . executed a general warranty deed attempting to convey the entire title to the 5 acres, that her two daughters were then and have ever since been cognizant of the execution of said deed, that appellees have made valuable improvements upon tbe 5 acres, that tbe mother’s interest in tbe 157 acres is more than sufficient to cover her daughters’ interest in the 6 acres, that with this knowledge and under these circumstances they joined with their mother in mineral deeds or leases covering the entire mineral title in the 157 acres, thereby participating to that extent in alienating the interest of their mother in the 157 acres out of which they had the equitable right of reimbursement, and by instruments which referred to their mother’s previous conveyance, the trial court properly awarded the entire title in the 5 acres to appellees. We think it immaterial whether this holding be rested upon the doctrine of es-toppel or upon that of ratification.

The trial court’s judgment is qffirmed.

Affirmed.


author: BAUGH, J.

text:
    KUYKENDALL et ux. v. JOHNSON FUNERAL PARLOR.
    No. 7558.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1931.
    Wright & Yowell, of San Angelo, for appellants.
    Upton & Upton, of San Angelo, for appellee.
   BAUGH, J.

Suit by Kuykendall and wife, plaintiffs below, against appellee for damages for the death of their minor son, killed at San Angelo, Tex., by an ambulance of appellee, while answering an emergency call. The jury found that the death resulted from .an unavoidable accident, judgment was for defendant, and plaintiffs have appealed.

Appellants present three contentions, none of which are sustained. The first is that there was no evidence on which to submit the issue of unavoidable accident, and that the finding of the jury thereon was against the undisputed evidence. The following facts appear: Main street in said city is 70 feet wide, and runs north and south. Harris avenue runs east and west across it. Their widths and relative positions are shown upon the accompanying map. A collision had occurred a few moments before the accident in question, on East Harris avenue about three blocks east of Main street. One ambulance ¡had responded to that call, coming north on Main to Harris, then turning east into East Harris avenue, proceeded to the place of collision, and in doing so had attracted the attention of numerous persons in that vicinity. Shortly if not immediately thereafter the second ambulance, operated by appellee, in .responding to the same call, had come east on Harris avenue, crossed Main street,. and was proceeding eastward along East Harris avenue, at a speed variously estimated at from 30 to 55 miles an hour, when it ran into and killed Stephen Edward Kuykendail, the 11 year old son of appellants. The collision occurred approximately in the center of East Harris avenue, at a point about 120 to 130 feet east of Main street.

Numerous people, attracted by the first ambulance, saw the collision and many witnesses testified. As is usually true, the testimony was not entirely harmonious. In testing its sufficiency to sustain the verdict, or as raising an issue to go- to the jury, it is our duty to disregard the evidence adverse to the issue raised and consider only that favorable to such finding. Considering only the testimony favorable to the verdict, it was sufficient to show substantially the following: That at or near the point of the accident a car or truck was at the time moving eastward along East Harris avenue on the right-hand or south side of said street; that on the north side of said avenue near that point a ear was parked near the curb; that the ambulance, driven by an experienced driver, was traveling near the center of the avenue; that three small boys, including the deceased, had been attracted by the passage of the first ambulance responding to the emergency call further east on Harris avenue, and were going in that direction; that, as appellee’s ambulance approached, they undertook to run across from the north to the south side of East Harris avenue, looking east while doing so, at or near the point where Stephen Edward met his death; that the boy in front succeeded in crossing the street; that Stephen Edward, followed by his younger brother, after passing the center of East Harris avenue, and perhaps because of a moving car on the south side of that avenue, upon discovery of the approaching ambulance, undertook to run back to the north side of the street. His younger brother, who was behind him only a few feet also turned back and reached the north side in safety. In the confusion resulting from the discovery of his perilous position, some testimony indicated that deceased turned back south again and dodged back and forth two or three times in the center of the street, while his companions on each side of the street cried warnings to him. The ambulance driver testified that he kept to the center of the street to avoid dangers from either side; that he watched only the street ahead of him and not the sidewalks on either side; that he never saw the boys until they suddenly appeared running across the street in front of him; that there were two of them only a few feet apart; that he applied his brakes and tried to swerve the ambulance so as to miss them. One witness who saw the collision also testified that the deceased became confused, dodged back and forth, and that the ambulance driver apparently applied his emergency brake and also dodged back and forth trying to miss the lad. While there was testimony sufficient to sustain a finding of negligence as to the rate of speed of the ambulance, and on the issue of failure of the driver to keep a proper lookout ahead, the above was clearly sufficient we think to raise the issue of unavoidable accident for the jury, and their determination of that issue is binding upon this court. Such tragedies are deplorable, but, with the development of modern rapid transportation, incident to our progress, unfortunately they too often occur;

Appellants’ next proposition relates to the trial court’s communication to the jury after the case had been submitted to them. It appears that the question arose in the jury room whether the speed laws and ordinances applied to ambulances, and that the jury returned to the courtroom and in open court, but in the absence of plaintiffs’ counsel, one of the jurors, other than the foreman, asked the court “whether or not there was any ordinance covering the speed of ambulances.” The jury had before making the inquiry agreed that this specific question should be asked the court. The court thereupon re-read to the jury the issue submitted to them as to whether or not the ambulance driver was “under all the facts and circumstances in this case and under the conditions existing at the time of the collision in question, negligent in driving said ambulance at the 'rate of speed you find he was driving same.” He also read his definition of negligence. No objection was made to the issue submitted nor to the court’s charge on negligence. Both were correctly and properly submitted.

A mere re-reading of the charge could not we think be construed as an additional instruction, nor was it given nor intended by the court as such. It was nothing more than they had already before them, and was then no more an answer to their inquiry than it was before the jury made it. It gave them no more information on the matter inquired about than if the court had merely referred them to the charge and instructed them to be guided thereby. We think article 219S, R. S., governing such matters, as its language indicates, contemplates “further instructions”; that is, instructions additional to or in explanation of those already given. If the court had, in the instant case, advised the jury orally that no further instructions would be given'and that they must be guided in the .matter inquired about by the charge as given, we think that there could be no possible harm done and no ground for complaint. That is effectually what occurred. In fact, the trial judge in his qualification of the bill of exception states that he orally advised the jury that he could not give them any more instructions than he had already given them. -

While the courts have sought, through a rigid and in some eases all but a literal observance of all of the provisions of article 2198 concerning any communication made by the court to the jury, to preserve as sacred the right of trial by jury, we think that such enforced observance should not be permitted to become a reductio ad absurdum. We are fully aware of the importance and wisdom of the statutes and rules laid down by the courts in such cases as Texas Midland Ry. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1164, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137; Parker v. Bailey (Tex. Com. App.) 15 S.W.(2d) 1033; Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W.(2d) 144, 148; Lorenzen v. Kernan (Tex. Civ. App.) 266 S. W. 839; and Baldwin v. Morton (Tex. Civ. App.) 19 S.W. (2d) 948, relied upon by .appellants to sustain their contention; In each of those cases, and others passing upon the issue here presented, there occurred some act of the court in violation of the statute. Because of his position, influence upon, and control over, not only the trial itself, but the conduct and deliberations of the jury in their retirement, it may well be urged that the slightest instruction, intimation, or suggestion from the court might and probably would have its influence upon the action of the jury. This is doubly true where it relates to matters concerning which the jury is in doubt, or the court’s conduct is of such character as would reasonably tend to influence or compel a verdict. Baldwin v. Morton, supra. It being the duty of the court to know the law and to adequately ward against such dangers, the Legislature has with propriety laid down an arbitrary rule as to his conduct, to the end that every action of the judge should be in-open court, be regular and of record.

But, as to the conduct of the jury itself, composed of men aware neither of the exist-enee of such rigid requirements nor’ of their importance so far as they may be concerned, no such cogent reason obtains for a rigid observance of the provisions of the statute. Obviously, the requirement that they should communicate with the court through their foreman was to the end that only information desired by the entire jury as such would be asked for, and that individual jurors, when the jury is brought into the court in a body, would not be permitted to solicit instructions as to the law on their individual theories of the case. But where, as in the instant case, the jury as a body desired instructions on a single point, agreed in the jury room upon the specific question to be asked, and that question was asked by another member of the jury while the foreman, who was not then known to the court, stood by and acquiesced, we think it would be carrying the rule to an absurdity to hold that the case must be reversed because the foreman, designated in the statute to do so, did not himself make the inquiry.

We find no misconduct on the part of the court in the matter. And whatever error there may have been in permitting a juror' other than the foreman to state the question to the court, under the circumstances of this case at least, was patently, and obviously harmless.

The remaining proposition complains that the jury in their deliberations discussed questions of law and facts not in the case, but which influenced their verdict. Two jurors testified on motion for rehearing that the matter of whether the speed limit of ambulances was regulated by ordinance was discussed in the jury room on the issue of negligence, and that, after the court had re-read a part of his charge to them, they concluded that the question of speed went out of the case and that the ambulance driver did all he could to avoid the collision. One also testified that the jury were of the opinion that ambulances had been driven too fast upon the streets of San Angelo (one of the jurors having formerly been an ambulance driver) for the past ten years, but that in the instant case the driver was not running any faster than ambulances usually ran under such circumstances:

We do not think this amounted to misconduct nor to receiving testimony in the jury room. While some of the jurors may have misunderstood the court’s charge, or may have misinterpreted it, as they stated, to mean that the speed of the ambulance was no evidence of negligence, the charge itself is clear and warrants no such interpretation. Failure of the jurors to comprehend the charge of the court, or to apply the law as given therein to the facts proven is no ground Eor impeaching their verdict. Texas Employers’ Ins. Ass’n v. Eubanks (Tex. Civ. App.) 294 S. W. 905 (writ ref.) and cases there cited; Bradley v. T. & P. Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861. Nor can such verdict be impeached on the ground that the jury answered a question under a mistake of the meaning or result thereof; nor because of illogical reasons on which such verdict was reached. While it was misconduct to consider the matter of a speed ordinance as governing appellee’s driver [Miks v. Leath (Tex. Civ. App.) 26 S.W.(2d) 726], after the communication with the court, one of the jurors who testified stated that the jury then concluded that the speed ordinance was an extraneous matter and was not further considered in answering the question. The misconduct thus we think became immaterial:

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: GRAVES, J.

text:
    SULLIVAN et al. v. WESTHOFF et al.
    No. 9631.
    Court of Civil Appeals of Texas. Galveston.
    March 25, 1931.
    Rehearing Denied April 16, 1931.

      Leachman, Gardere & Bailey and W. H. Neary, all of Dallas, for appellants.
    John T. Vance, of Edna, for appellees. •
   GRAVES, J.

With only immaterial interlineations as to form, this eoncededly correct statement is taken from appellants’ brief:

“This is an appeal from an order of the District Court of Jackson County overruling the pleas of privilege of appellants herein, T. B. Sullivan and S. B. Davis, individually and as co-partners, trading under the name of Sullivan & Davis, and the Employers Casualty Company.
“Suit was filed in the District Court of Jackson County by plaintiffs, A. E. Westhoff and H. F. Stierling, residents of Jackson County, against T. B. Sullivan and S. B. Davis, residents of Williamson County, and the Employers’ Casualty Company, a corporation, with its legal domicile in Dallas County, on the basis of claims as alleged by plaintiffs’ petition against the defendants, growing out of a debt for goods, wares, and merchandise, supplied by plaintiffs to the defendants, Sullivan and Davis, on a public job, to-wit: the construction of a bridge across the Lavaca River in Jackson County, on Highway No. 12, the job being let by the State Highway Department, and being known as Job No. 121-B, Federal Aid Project 543-F. A series of release-bonds were executed by Sullivan and Davis in accordance with the provision of Article 5472-B, Revised Civil Statutes of Texas, and the defendant, the Employers’ Casualty Company, became surety on the series of release-bonds. The moneys impounded in the hands of the State Highway Department were released upon the filing of the release-bonds mentioned, and plaintiffs are now suing upon these release-bonds, as provided by the statute mentioned. Plaintiffs are suing in the alternative upon the general contractor’s bond of the defendants, Sullivan and Davis, with the defendant, the Employers’ Casualty Company, as surety, alleging that ¡their debt is a proper charge against that bond.
“Messrs. T. N., Fred, and Harry Mauritz, and the Sheffield Steel Corporation, intervened in the suit filed by plaintiffs herein', setting up similar claims in varying amounts against the .defendants, Sullivan and Davis, with the defendant, the Employers’ Casualty Company, as surety.
“Pleas of privilege in statutory form were timely filed by each of the defendants, and the same were controverted by the plaintiffs and the intervenors, Messrs. Mauritz.
“Upon a hearing of the pleas of privilege and the controverting affidavits thereto, they all were overruled, to which action of the trial court appellants excepted, gave notice of appeal to this court, and perfected their appeal by the filing of their cost bond.
“Upon the trial of the venue hearing, no facts were adduced relative to venue in Jackson County, though it was shown that certain goods, wares, and merchandise were supplied to Sullivan and Davis for the public job in Jackson County for which Sullivan & Davis were the general contractors, and that release-bonds were put up by such defendants with their co-defen<jant, the Employers’ Casualty Company, as surety, with the State Highway Department.
“Upon the basis of allegations showing the furnishing of goods by appellees Westhoff and Stierling, the giving, of notice of claim to the State Highway Department, and the execution by appellants herein of statutory release-bonds, the appellees all declared in their controverting affidavits as the sole ground for venue in Jackson County, that ‘venue lies in this case in Jackson County, Texas, under chapter 78, Second Called Session, Acts of the 41st Legislature.’ * * *
“Neither the release-bond nor the general contractor’s bond involved in this cause are made payable in Jackson County, nor was any fact introduced by appellees upon the hearing of the pleas of privilege and the controverting affidavits thereto, bringing -the facts of this cause within any of the exceptions of article 1995. The language of Vernon’s Ann. Civ. St. article 5472b — 1, § 2, that is, chapter 78, § 2, Second Called Session, Acts 41st Legislature (1929), relied upon by appellees, reads as follows:
“ ‘At any time within six months from the date of filing of said surety bond, the party making or holding such claim or claims may sue upon such bond, but no action shall be brought on such bond after the expiration of such period. One action upon said bond shall not exhaust the remedy thereon, but each obligee or assignee of an obligee named therein may maintain a separate suit thereon in any court and in any jurisdiction.’ ”

Appellants ably contend here, in material substance, first, that “the language of article 5472b — 1, § 2, is not such an express prescribing of venue as to indicate the legislative intent to create further exception to exclusive venue in the county of a defendant’s residence,” and, second, that, to give it such an interpretation would render the. act void as being violative of the Constitution of the state, section 35 of article 3, in that its title contains no reference to the fixing of venue for the suit thereby authorized, being' in his verbis as follows:

“An Act providing that when a claim or " claims attempting to fix a lien are filed under Chapter 17 of the General Laws of the State of Texas, passed by the Regular Session of the 39th Legislature, that a surety bond may be given by the contractor or contractors affected ; providing for the release of the lien se- - curing said claim, and for the payment of the moneys, bonds, or warrants duo said' contractor or contractors upon the filing and approval of said bond; also providing for the limitation of actions to establish said claims; for incidental matters, and declaring an emergency.”

Notwithstanding the direct forcefulness with which it is presented, we cannot sustain appellants’ position in either respect, concluding rather, as to the first, that the word “jurisdiction” as used in this statute should be interpreted as denoting the place, county, or territorial limits within which “any court” therein authorized .to entertain a suit upon such a bond sits; as to the second, that such a construction does not render it obnoxious to the invoked provision of the Constitution as having two subjects in its body and only one in its caption, but at most expounds a legislative enactment containing a single leading subject that is sufficiently expressed in the title — -the giving of surety bonds and the authorization of suits thereon in the contingency dealt with — and a second merely subsidiary provision following in the subjoined text alone, whereby the venue of these suits is fixed as legitimately incident to, and tending to effectuate, such main object in so creating the right to bring them.

The appellees’ brief has collated authorities which seem, to us to furnish ample support for these conclusions, as follows: For the first: Newburn v. Durham, 10 Tex. Civ. App. 655, 32 S. W. 112; Jones v. Robb, 35 Tex. Civ. App. 263, 80 S. W. 395; Corpus Juris, vol. 15, page 726; 4 Words and Phrases, First Series, page 38S5; 2 Words and Phrases, Second Series, page 1281. For the second: Snyder v. Compton, 87 Tex. 377, 28 S. W. 1061; Ex parte Hernán, 45 Tex. Cr. R. 343, 77 S. W. 225; Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182; Missouri, K. & T. Ry. Co. v. State (Tex. Civ. App.) 97 S. W. 720; Gulf, W. T. & P. Ry. Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054; Doeppenschmidt v. International & G. Ry. Co., 100 Tex. 534, 101 S. W. 1080; Childress County Land & Cattle Co. v. Baker, 23 Tex. Civ. App. 451, 56 S. W. 756; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736.

Under the, well-settled rules of statutory construction reflected in such cases as Banks v. State, 28 Tex. 644; City v. Potter, 41 Tex. Civ. App. 381, 91 S. W. 389; and Gulf, C. & S. F. Railway Co. v. Railway, 86 Tex. 537, 26 S. W. 54,' in this instance — if the expression is reasonably susceptible of that — some meaning must be given to each of the phrases “in any court,” “and in any- jurisdiction,” since, being conjunctively so used, it plainly cannot be said that the Legislature by way of tautology was merely repeating in the one the same meaning of the other; it seems more simple and natural to think that it was intended to add an additional specification, that is, that each of the beneficiaries of such a release bond, whose number and diversity as to location the lawmakers must have contemplated might become extensive, could bring his suit thereon in any proper court as to the amount involved anywhere.

And, if that was the combined purpose, the further deduction that so much of it as thus fixed the venue wherever the beneficiary chose to lay it could be provided for in the text of the enactment, without specifically reciting it in the caption, in our opinion follows as readily.

Under these views, the learned trial court was right; the judgment there rendered has accordingly been affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    CORDER et ux. v. HOUSTON LIGHTING & POWER CO.
    No. 9495.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1931.
    Rehearing Denied March 26, 1931.

      W. P. Hamblen and Phil D. Woodruff, both of Houston, for appellants.
    Baker, Botts, Parker & Garwood, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellants to recover damages suffered by the death of their minor son, which they allege was caused by the negligence of appellee. Plaintiffs’ petition alleges the following facts, in substance, as the basis for their cause of action:

“The defendant, Houston Lighting & Power Company is engaged in the manufacture and transmission of electricity and electrical power in Harris County and particularly in the City of Houston, and in the operation of its business, maintained a transmission line across a tract of land which was within the city limits of the City of Houston and which is near a thickly settled residential section. Eor a number of years prior to April 18,1929, children had played upon this tract. The transmission line consisted of steel frame towers about sixty-five feet high which were about twelve feet at the base and tapered as they approached the top to about three by seven feet. Upon these towers were strung heavy copper wires known as high tension lines through which the electricity was transmitted. On one of the upright pieces or legs of the towers there was a ladder formed by bolts projecting on both sides of the leg so that a continual ladder was formed beginning a few inches from the ground and continuing to the top of the tower.
“That on, to-wit, the 18th day of April, A. D. 1929, plaintiffs’ son, Doyle Corder, was a boy about sixteen years of age, and that on said date plaintiffs’ said son had gone to said tract of land where he and a great number of other children had been accustomed to go and play as above stated, and after picking some berries, had started across said tract toward Plum Creek to play on a flat boat which he and some of’ his companions had built and were keeping in said creek; that he became attracted by the condition of said tower, as above set out, and entered upon the land immediately along and under the defendant’s power line, and without any notice or knowledge of the probability of danger by reason of the existence of said danger zones as above set out, and having no notice or reason to believe that there was any probability of danger upon said tower unless he came in actual contact with said wires above described, ascended said tower upon the steps or ladder upon the corner of said tower as above described, and that while .so ascending same he came within said danger zone above described, and without touching any of said wires or coming in contact therewith that he received a great and severe electrical shock causing him to fall from the position in which he was standing upon said tower, to ■the ground, from which place he was later carried to a hospital and there died upon said date, after great pain and suffering. * * *
“That the defendant was negligent in constructing and maintaining said tower and transmission lines in the manner above described and in not properly insulating said wires to prevent the escape of electricity therefrom, and in permitting said electricity to escape from said wires in such a way as to become dangerous to the lives of people in and about said tower, and also in constructing and maintaining said tower in such a manner as to constitute an attractive nuisance, it being an attraction and invitation to children and people of immature years and inexperience, and in not guarding said tower in such a manner as to prevent same from being used by children, and in not warning the public, and persons rightfully upon said premises, of the dangers incident to using said tower, and' of the existence of said danger zone, above described, and of the probability'of injury by coming within such zone, and in permitting electricity 'to escape from said wires and to come in contact with plaintiffs’ 'son, and of thereby inviting persons and children to use said tower and climb upon same, and that the negligence of defendant in each and all of these said respects was the proximate cause of the death of plaintiffs’ said son, as above described.”

The defendant answered by general demurrer and general denial, and specially pleaded that the deceased was a trespasser upon its premises at the time he received his fatal injuries, and that defendant owed him no duty to have the premises safe for his use.

It further specially pleaded contributory negligence of the deceased.

The case was tried with a jury in the court below, but, after hearing all of the evidence, the court instructed the jury to find a verdict for the defendant, and upon the return of such verdict, rendered judgment accordingly.

There is no conflict in the evidence upon, any material issue in the case. The deceased met his death at the time, place, and in the manner pleaded. Plaintiffs pleaded that at the time deceased received his fatal injury the boy was 16½ years old and was bright, intelligent, and capable. The testimony of the deceased’s father shows that deceased was very intelligent, was 6 feet in height, and weighed 160 pounds. He was the oldest child of the family of eight children, and was more advanced considering his age than the other children, and was relied upon by bis parents as mature enough to taire care of the younger children. He bad nearly completed bis second year of the commercial course at St. Thomas College, and bad in bis first year at the college received the highest marlrs of his class. He had worked as a bricklayer, and .at the time of his death was working as a carpenter at a wage of $38 per week. He was an amateur boxer of such skill and strength that no one under 20 years of age could stay in the ring with him. He had fought in exhibition bouts, had never been' whipped, and was ambitious to become a professional prize fighter.

R. E. Scott, a cousin and of approximately the same age as deceased, testified that the deceased was “a kind of leader among the boys; ■ that he was a manly fellow,” and that he (the witness) “looked up to deceased, who was more advanced’and mature” than witness.

There is nothing in the evidence tending to show any negligence in the construction or maintenance of appellee’s power lines or their supporting steel structures, called “towers,” unless such negligence can be predicated upon the failure of the defendant to so inclose or guard the towers as to prevent access to them by minors, or to place warnings therebn of the danger inherent in high-power electric wires. So far as the evidence shows, these lines and steel supports were constructed and maintained in the usual and generally approved manner.

By the pleadings and evidence, plaintiffs’ case is based solely upon the theory that the steel structures supporting the wires conveying the dangerous electric power were in their very nature so attractive to young children that their unguarded maintenance can be regarded as an invitation to plaintiffs’ deceased son to climb upon the structure and expose himself to the danger which caused his death.

•To agree with appellants in this contention would, upon the facte of this case, be an unreasonable and unwise extension of the doctrine of “attractive nuisance.” While the evidence shows that appellee’s lines ran across a tract of land in the city of Houston near a populated residential section of the city, and that children frequently played on this tract of land, an'd one witness testified he had sometimes seen children climb on the tower, there is no evidence that appellee knew that children ever climbed upon the tower, or any showing of facts from which such knowledge on the part of appellee could be reasonably inferred.

The questions of whether deceased was a trespasser or was guilty of contributory negligence are entirely separate questions and should not be confused in considering the law of this case. If he was on appellee’s property without the express or implied in? vitation of appellee, it cannot be held liable for his injury and death not willfully caused by it. Dobbins v. Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856; Denison Eight & Power Co. v. Patton, 105 Tex. 621, 154 S. W. 540, 45 L. R. A. (N. S.) 303; City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843; Wimberly v. Gulf Production Co. (Tex. Civ. App.) 274 S. W. 986.

The purpose of the deceased in going upon the appellee’s premises and the circumstances under which he received his fatal injury are thus detailed by plaintiffs’ witness Roy Smith, who was with deceased when he was killed: “That day in the morning I went out where he was working. We left the house in the afternoon, me and him and his brother. We went from there to the filling station and he got some gas and his brother got off and went home. Doyle and I went to Sinclair refinery, we were just riding around. We did not stop when we got there. We turned and came back. We were just riding around. When we got on the road opposite where the towers were we stopped the car and got out. We were playing around, we stopped the car and picked some berries along there. We got out of the car to pick berries. We had no purpose of going over to the tower. * * * Before that time we had not discussed going up on that tower, we did not talk about it. He said he was going up on it. I did not tell him to stay off, I did not tell him anything, I told him I was going a little piece over there.”

After stating that he got'out of sight behind some bushes when deceased started to •the tower and that he heard the explosion, this witness further testified: “That is the first thing that called it to my attention, and I glanced over and saw him falling. I knew what had happened to him. I thought he got hit by an electric wire. I realized it was electricity. With reference to whether I' knew what that line was; I did not think about it. With reference to whether I knew that high line was carrying electricity; I thought it was, but it had that stuff around it and I did not think it would shock you. I saw that line way up there, it was about'60 feet off the ground. With reference to what made me think it was electricity when I looked over there; I knew it was nothing else. With reference to me knowing that electricity had caught him; I knew he got in touch with •the wire.”

Unless under the doctrine of “attractive nuisance,” which was first applied by the courts of this state in what are known as the “turntable” cases, the appellee can be held to have impliedly invited the deceased to go upon its tower supporting its high-power electric wires, and thereby expose himself to the danger which caused his death, deceased must be regarded as a trespasser; the evidence shsw-ing that he was not expressly or otherwise impliedly invited to go npon appellee’s property. The extent oí the doctrine of the “turntable” case was thus stated by this court in the case of Wimberly v. Gulf Production Company (Tex. Civ. App.) 274 S. W. 986, 987: The básis of the doctrine “is that the injured' person is of such tender years that the ‘attractive nuisance’ would so appeal to his childish impulses as, in a sense, to constitute an invitation, and that such appeal should be foreseen, and care taken to prevent evil consequences.”

In the Wimberly Case the deceased son, for whose loss by death the suit was brought by his parents, was killed by a gas explosion while bathing in a bathhouse kept upon its premises by the defendant for the use of its employees. The case turned upon the question of whether the deceased was p. trespasser or an invitee upon the defendant’s premises.. The deceased was 18 years old. There was evidence showing that he and other minors about his age, and some younger, often used this bathhouse with the knowledge and acquiescence of the employees of the defendant. Upon this state of the evidence this court, in affirming the judgment of the lower court based upon an instructed verdict for the defendant, and refusing to apply the doctrine of attractive nuisance, used the language before quoted, and held that the deceased was not shown to have been within the class to which the attractive nuisance doctrine applies. We do not think the fact that the deceased in this case was a year and a half younger than the Wimberly boy differentiates the two eases.

We do not think reasonable minds can differ in the conclusion that a “bright, intelligent, and capable” youth, 16½ years old, who had excelled in his school work, was' “a manly fellow” of man’s stature, and had been and was at the time of his death doing a man’s work and receiving a like compensation therefor, and whose judgment was so mature that he was looked up to as a leader by his associates, and relied upon by his parents to look after and protect his younger brothers from danger, is not within the class of children of tender years so immature in judgment, experience, and intelligence and so swayed by childish impulses as to be unable to resist the appealing attractiveness of appellee’s steel towers.

Unless the appellee could have reasonably anticipated that a youth of the experience, intelligence, and character of the deceased would be so led by childish impulses as to disregard the danger of climbing upon the tower and coming in contact with the electricity surging through the power wires carried thereon, it cannot be held guilty of negligence in leaving the tower unguarded and thereby giving the deceased an implied invitation to climb thereon. '

We think the trial court correctly held as a matter of law that the facts of this case do not show siich- implied invitation, and that deceased at the time he received his injury was a trespasser upon appellee’s premises, and appellee owed him no duty other than to refrain from intentionally injuring him.

These conclusions are supported by the cases before cited, and also by the following cases: Dudley & Orr v. Hawkins (Tex. Civ. App.) 183 S. W. 776; Central of Georgia Ry. Co. v. Robins, 209 Ala. 6, 95 So. 367, 36 A. L. R. 10; Louisville & N. Ry. Co. v. Hutton, 220 Ky. 277, 295 S. W. 175, 53 A. L. R. 1328.

It follows from the conclusions 'above expressed that the judgment of the trial court should be affirmed, and it has ‘been so ordered.

Affirmed.

On Motion for Rehearing,

Appellánts’ motion for rehearing calls our attention to an inaccurate statement in the fact findings contained in our original opinion.

The statement in our original opinion that “there is no' evidence that appellee knew that children ever climbed upon the tower, or any showing of facts from which such knowledge on the part of appellee could be reasonably inferred,” is not entirely accurate, in that there is evidence in the record, not called to our attention in appellants’ brief, to the effect that, about a year before appellants’ son received his fatal injuries, a boy about 15 years of age climbed upon one of appellee’s towers near the one on which the Corder boy was injured and received an electric shock which knocked him off the tower and burned him severely. This boy testified that while he was in the hospital having his injuries treated he was called on by a young man who said he was a representative of the appellee company. He did not know this man and could not give his name.

We do not think this evidence materially changes the facts upon which our original opinion is based, and we adhere to the conclusions expressed in that opinion.

The motion for rehearing is refused.

Refused.


author: LANE, J.

text:
    HOUSTON INDEPENDENT SCHOOL DIST. v. READER et al.
    No. 9542.
    Court of Civil Appeals of Texas. Galveston.
    April 3, 1931.

      Andrews, Streetman, Logue & Mobley and M. E. Kurth, all of Houston, for appellant. -
    Teagle & Benbow, of Houston, for appel-lees.
   LANE, J.

This was a condemnation proceeding originating before the judge of the county court at law of Harris county, Tex., upon the petition of Houston independent school district against Jabe 0. Reader and his 'wife, Georgia H. Reader, Mrs. Mary Ann Sweeney, a widow, Ira P. Jones, Jr., and Ira P. Jones, Sr., as trustee, Bose Reader and J. F. Richardson, seeking to condemn a tract.of land known as Reader’s subdivision of Oakland terrace, First addition to the city of Houston, Harris county, Tex., according to dedication map recorded in volume 655, page 73, of the Deed Records of Harris county, Tex., containing approximately five acres.

It was alleged that defendant Jabe 0. Reader and his wife, Georgia H. Reader, claimed to own and be possessed of the fee-simple title to said property; that the defendant Mrs. Mary Ann Sweeney claimed to own a valid lien against the same, and that the defendant Bose Reader likewise claimed to own a valid lien against such property; likewise that the defendant Ira P. Jones, Jr., claimed to own a valid lien against part of said property, and that the defendant Ira P. Jones; Sr., was the trustee named in a deed of trust executed for the benefit of the said Ira P. Jones, Jr., and that the said J. F. Richardson claimed to own a portion of said property ; the exact nature and extent of. the claim of said Richardson being unknown to petitioner.

Petition for condemnation was filed with the judge of the county court at law of Harris county, Tex., on April 17,1928, and Messrs. E. L. Crain, A. E. Devine, and W. H. Taylor were appointed commissioners and duly qualified.

After notice duly served on each of the defendants, upon a hearing on May 2, 1928, the commissioners assessed the sum of $13,600 as the total damages and price to be paid by petitioner for said property, ordering that out of said sum there first be paid to the defendant Mrs. Mary Ann Sweeney, in satisfaction of her lien, the sum of $8,047.48, with interest on $7,000 at the rate of 7½ per cent, per annum from April 28,1928, and ordering next paid from said amount the sum of $1,500, with interest thereon from the 28th day of April, 1926, at the rate of 8 per cent, per annum, to the defendant Bose Reader, and the balance of said award to be paid • to the defendant Jabe O. Reader. All costs were awarded against the defendant Jabe O. Reader.

Thereafter, in due time, the defendants Jabe G. Reader and wife, Georgia H. Reader, Mrs. Mary Ann Sweeney, and Bose Reader filed their objections and oppositions to such award, setting up that the amount awarded as damages was wholly insufficient and below the market value of said property.

After the award was made by the commissioners, petitioner, Houston independent school district, on May 17, 1928, deposited in the registry of the court the sum of $27,200, and took possession of said property. No appeal whatsoever was filed by the condemnor from the award of the commissioners.

Thereafter the case was duly reached and tried and submitted to a jury on one special issue, such issue being: “What was the reasonable cash market value of the land described in plaintiff’s petition on May 17, 1928?” To this issue the jury answered: “Twenty-four thousand eight hundred dollars,” and upon such verdict judgment was rendered by the court in favor of the defendants Jabe C. Reader and wife, Georgia H. Reader, jointly, in the sum of $24,800, with interest on the full amount of said sum from the 17th day of May, 1928, at the rate of 6 per cent, per annum, said judgment providing that there should first be deducted from said amount the sum of $70.38, being delinquent taxes against the property at the time of its appropriation, and, after such deduction for taxes, there should be next paid to the defendant Mary Ann Sweeney from said amount so awarded the sum of $9,387.01, with interest on $7,000 of said sum at the rate of 7½ per cent, per annum from March 20, 1930; that there should next be paid to the defendant Bose Reader out of said award the sum of $1,500 with interest at the rate of 8 per cent, per annum from April 28, 1926, and that there should next be paid out of said award to defendant J. F. Richardson the sum of $608.43, with interest at the rate of 10 per cent, per annum from March 20, 1930; the balance of said award to be paid to defendants Jabe C. Reader and wife, Georgia H. Reader, jointly.

The school district has appealed.

By appellant’s propositions 1 to 5, inclusive, it is contended substantially that, since it was an undisputed fact that the two tracts of land, that is, the certain five-acre tract owned by Luther Davis in the same locality and adjoining the five-acre tract owned by ap-pellee which was sought to be condemned, were of the same value, the court erred in not allowing Luther Davis, called as a witness by appellant to prove the reasonable market value of the land sought to be condemned, to testify as to the price at which he sold his tract of land to appellant, and that the court also erred in excluding from the evidence the deed by which Davis conveyed his land to appellant.

Though recognizing the fact that appellant was the condemning party at the time Luther Davis conveyed his land to it, and recognizing the fact that it has been held by many courts that evidence as to what a condemning party paid for adjoining land is not admissible in a suit to condemn land or lands in the immediate vicinity appellant nevertheless contends that the general rule in Texas is. that actual sales of other similar lands in the vicinity made at the time at which the value of the land to be taken by condemnation is to be determined are admissible in evidence in arriving at the compensation to, be awarded to the owner, citing Sullivan v. Missouri,. K. & T. R. Co., 29 Tex. Civ. App. 429, 68 S. W. 745.

Appellant further contends, however, that, if the general rule were otherwise, and though the price paid Davis were fixed by arbitration, in view of the fact that Davis had qualified as an expert on values of land in the vicinity in question, and that he would have testified, if permitted so to do, that at the time he conveyed his land to appellant he considered the price paid therefor to be the reasonable cash market value of the same, and that he was satisfied to take it, and that he would have sold the land to any one else for the same price, it took this case out of the rule insisted upon by appellee in this case, in that the testimony which would have been given by Davis would have shown that the sale made by him was a voluntary sale, uninfluenced by the fact that his property might be taken under condemnation proceedings if he refused to sell.

We are not prepared to hold that the court erred in rejecting that part of the testimony of Luther Davis, the rejection of which is complained of by - appellant, nor in refusing to permit the introduction of the deed offered to prove value. We think the weight of authority is to the effect that evidence as to what a condemning party paid for adjoining land after condemnation proceedings had begun is not admissible in a suit to condemn other and adjoining land or lands in the same vicinity. 10 E. C. L. p. 220, § 188; Mills on Eminent Domain, § 170; Lewis on Eminent Domain, § 667; U. S. v. Freeman CD. C.) 113 F. 370; U. S. v. Beatty (D. C.) 198 F. 284; Spring Valley Water-Works v. Drinkhouse, 92 Cal. 528, 28 P. 681; Brunswick & A, R. Co. v. McLaren, 47 Ga. 546; Chicago, etc., R. Co. v. Scott, 225 Ill. 352, 80 N. E. 404; Coate v. Memphis R. R. Terminal Co., 120 Tenn. 525, 111 S. W. 923; Howard v. Providence, 6 E. I. 514; Peoria Gaslight & Coke Co. v. Peoria Terminal E. Co., 146 Ill. 372, 34 N. E. 550, 21 L. R. A. 373.

Decisions of many states, in addition to those cited, declare the rule to be that the evidence referred to above is inadmissible in condemnation proceedings. If, however, testimony of a seller to a condemning party -to the effect that such sale was voluntarily made would render admissible his testimony that he voluntarily sold for a stated price, still we are not prepared to hold that the court erred in rejecting Davis’ testimony as to what price he sold his land to appellant, for this: His testimony was so conflicting and confused as to whether his sale was voluntary that it was up to the court to-determine what the effect of his testimony was with reference to that matter, and, as the court rejected the evidence, we may reasonably presume that the court ■ concluded from such testimony as a whole that the sale was not voluntarily made, and hence evidence of what the witness received for his land was inadmissible as tending to prove the value of land adjoining his land.

If, however, it be conceded that the rejected testimony was admissible, and that it was erroneously rejected, such rejection would not constitute reversible error, for this: The general rule in all jurisdictions is that evidence of the value of the abutting property is admissible, in cases such as the present one, only as it tends to show the market value of the property, and thereby shows the value of adjoining property of like kind. So' the rejected testimony was only valuable, if at all, as it would tend to show what value Davis placed on his property, which was shown to be of the same value as appellee’s property taken by the appellant. The value placed by Davis on the land sold by him and that of ap-pellee’s taken by appellant was shown by the testimony of Davis admitted in evidence. He wa.s permitted to and he did testify, after qualifying as an expert on value of lands in the vicinity in question, that the two five-acre tracts, one owned by him and the other by appellee, “were virtually located practically tile same. They were adjoining, and they were the same sized tracts, and I • couldn’t see much difference in the two tracts.”

He also testified as follows: “I sold my property in April, 1928, and as to the reasonable cash market value of Mr. Reader’s property on May 17th, following my sale, I don’t know as it would be increased any in value in that length of time. In my opinion, the value of Mr. Eeader’s property at that time was $13,600.00.”

From the testimony given by Davis, it is clearly apparent that the jury was permitted to receive bis estimate of the value of appel-lee’s land at the time it was taken by appellant. It follows that the rejected evidence would have added no strength to Davis’ estimate of the value of the respective tracts, one owned by him and the other by appellee. Such being- true, the error of the court, if any, in rejecting the evidence, the -rejection of which appellant complains, was harmless, and constitutes no cause for reversal of the judgment.

It is shown that Luther Davis was permitted to testify that he had conveyed five acres of land to appellant, but was not permitted to tell what the consideration paid for such conveyance was, nor to testify that appellant wrote him a letter threatening to condemn his land and take it from him.

Appellant complains in the motion for new trial of the argument made by counsel for appellee, wherein he stated: “Mr. Kurth has told you that the witness, Luther Davis, has sold , his property to the School Board and Mr. Kurth stresses this in his argument, but Mr. Kurth has failed to tell you that Mr. Davis did not sell his land voluntarily but only after he, said Davis, had received a letter from the Board of Education of said Houston Independent School District advising him that if he didn’t sell his said land to the School District that the School Board would condemn his land.”

Exception was taken to such argument at the time it was made.

The only ground urged ih appellant’s bill of exception complaining of the argument is that there was no evidence before the jury that Davis had received a letter from appellant threatening to condemn his land, and that the argument made was highly prejudicial, and calculated to influence the jury adversely to appellant.

The 'bill shows that counsel for appellant immediately requested the court to instruct the jury that no such letter was in evidence, and that they should not consider counsel’s 'remarks relative to the same; that the court, after hearing the contention of counsel for appellee that there was evidence before the 'jury showing that such letter had been received by Davis, instructed the jury that no such facts were in evidence, and that they should not consider the remarks of counsel complained of, and thereupon counsel for ap-pellee requested the jury not to consider his remarks.

Appellee objects to our considering appellant’s complaint of counsel’s argument, in that the bill of exceptions mentioned is insufficient to present the question of improper argument, -because it does not show that there was no argument on the part of opposing counsel to provoke the argument complained of.

We think appellee’s objection to the consideration of appellant’s complaint of counsel’s argument should be sustained.

In Texas Employers’ Ins. Association v. Heuer (Tex. Civ. App.) 10 S.W.(2d) 756, the court holds that, when a bill of exception complaining of the argument of opposing counsel fails to show that there was no argument on the part of counsel complaining to provoke the argument of opposing counsel, the bill should not be considered. The same holding is made in Travelers’ Ins. Co. v. Peters (Tex. Civ. App.) 3 S.W.(2d) 568; Kansas City, M. & O. Ry. Co. v. West (Tex. Civ. App.) 149 S. W. 206, and in many other cases.

If, however, we should consider.appellant’s complaint of counsel’s argument, we would overrule the complaint made for two reasons: First, because the statement made by counsel for appellee to the jury, shown by the bill of exception, to the effect that Luther Davis was induced to sell his land to appellant only after he had received a letter from appellant advising him that, if he would not voluntarily sell, appellant would take his land by condemnation proceedings, could not reasonably have worked an injury to appellant before the jury, in view of the fact that Davis had positively testified that the land of appellee, which was shown by all the evi- ' dence to be of the same value as that sold' by him to appellant,- was worth only $13,-600; and, second, because the remarks of opposing counsel were by him withdrawn from the consideration of the jury upon his request that, "they should not consider .same, and because the court, upon the request of counsel for appellant, in effect instructed the jury that the remarks had no evidence to support them, and that they should not consider them in arriving at their verdict. In view of the facts stated, it is not at all reasonable that such remarks in anywise affected the jury in arriving at their verdict.

By appellant’s eighth and ninth propositions it is contended, first, that appellees-Jabe Reader and wife made no prayer for interest, and therefore the court erred in rendering judgment in their favor for any interest whatever accruing prior to the date of the judgment; and, second, that, even if the allowance of any interest whatsoever was proper, appellees were not entitled to a recovery of interest on that part of the judgment representing the difference between the amount found by the jury as damages and the amount of damages as fixed by the commissioners, because appellant had, on May 17, 1928, deposited in the registry of the court double the award of the commissioners, such deposit being equivalent to -a tender of the amount awarded, and therefore no interest would accrue thereon; wherefore the allowance by the court of interest on that portion of the judgment representing the amount awarded by the commissioners and covered by the deposit is to that extent erroneous.

Appellant’s contention that the court erred in awarding to appellees a recovery of interest to accrue prior to the rendition of the judgment, in that there was no prayer authorizing such an award, cannot be sustained. Dallas, etc., Ry. Co. v. Day, 3 Tex. Civ. App. 353, 22 S. W. 538, 540; Wichita Palls & W. Ry. Co. v. Wyrick (Tex. Civ. App.) 158 S. W. 570; Atchison, etc., Ry. Co. v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 892; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053; 8 R. C. L. p. 538, § 90.

In condemnation proceedings, the defendant owner is not required to file any pleading, and his prayer for general relief would entitle him to interest from the date the con-demnor appropriates such owner’s land to its own exclusive use.

In 20 Corpus Juris, p. 807, § 252, it is said:

“According to the great weight of authority, where payment of compensation does not accompany the taking of land for public use, but is postponed to a later period, the land owner is entitled to interest, to be computed from the time of the taking, or, what amounts to the same thing, damages in the nature of interest for delay in. payment of the compensation.” Citing many authorities in support of such statement.

And on page 811 of the same volume it is said:

“Where an appeal from the award is taken by the owner, and on trial a larger sum is awarded, he is entitled to interest on the sum found due from the date of the original award, or the time of appropriation.” (See footnotes.)

In Dallas, etc., Ry. Co. v. Day, supra, it is said: “The court did not err in refusing to require the defendant Day to particularize in writing the damage claimed by him before going into the trial. The statute does not require written pleading in this character of proceeding, other than the application filed by the plaintiff as a basis for the condemnation. The law regulates what can and what cannot be considered as items of damage, and there is no necessity for any greater particularity.”

In Wichita Falls & W. Ry. Co. v. Wyrick, supra, it is said: “It was not necessary for appellee to allege the specific damages sustained ; the law fixed his damages, rather the measure of his damages, and the things for which he could recover.” Citing the Day Case, and Choctaw, O. & T. Railway Co. v. True, 35 Tex. Civ. App. 309, 80 S. W. 120.

In appellees’ objection to the award of the commissioners, they alleged as follows: “That the sum awarded therein as damages for such taking is wholly insufficient in that the same is- far below the market value of said property, and because it does not take into account the value of the improvements made by the defendant Jabe C. Reader to said land, and because the same is grossly inadequate.”

They prayed for general relief as they might be entitled to, either in law or in equity.

We overrule appellant’s contention that, if appellees were entitled to any interest whatsoever, they would be entitled to interest only on the amount awarded by the judgment over and above that awarded by the commissioners. Alloway v. Nashville, 88 Tenn. 519, 13 S. W. 123, 8 L. R. A. 123.

When an owner’s land is taken, he is entitled to statutory interest from, the date of the actual appropriation of his property. The deposit made in this case by appellant into the registry of the court was a prerequisite to its taking possession of appellees’ land, and it was in no sense a tender of any part thereof 'to appellees. It was simply a deposit made under statutory provisions -to give appellant the right to take immediate possession of and use of the land, and was not a deposit any part of which appellees could withdraw without waiving their right to further compensation.

We are now brought to a consideration of the cross-assignments of appellees.

They insist that the court erred in rendering judgment in favor of appellant, vesting in it the fee title to the land taken, first, because the Constitution of this state does not provide for the condemnation of the fee in land, but only an easement or the right to use the same so long only as such land is put to public use; second, because the county court of Harris county was without jurisdiction to divest a citizen of the title to land; and, third, because the act of the Legislature which purports to confer upon the Houston independent school district the right to condemn the fee title to land is unconstitutional and void, same being in conflict with the Constitution, which vests jurisdiction in such matters in the district courts.

We overrule appellees’ contentions. There is no inhibition in the Constitution against the condemnation of the fee-simple title to land for public use. In the absence of such inhibition, the Legislature has the right and power to provide by statute that the fee-simple title to land might be taken for-public use, provided adequate compensation therefor is made. The clear implication of section 17 of article 1 of the Constitution is that the fee-simple title to property of a citizen may be taken for public use.

In Lewis’ work on Eminent Domain (2d Ed.) § 277, p. 669, it is said: “In the absence of any constitutional restraint it rests with the Legislature to see what interest- or estate in lands shall be taken for public use. The whole matter thus being in the discretion of the Legislature it may authorize a fee to be taken, and necessarily may authorize any lesser estate or interest to he taken according to its yiews of the requirements of the grantee and the demands of the public good.”

In 20 Corpus Juris, p. 533, § 22, it is said: “The right of eminent domain may be exercised either directly by the legislature, or through the medium of corporate bodies, or of individual enterprises, by virtue of the delegation of the power. The legislature, unless limited by constitutional restrictions, is entirely free to use its discretion in the selection of agents to exercise the power.”

On page 626 of the same volume, § 122, it is said: “While a legislature may itself determine the necessity of exercising the power of eminent domain or of making the proposed improvement, it may, unless prohibited by the constitution, delegate this power of determination to public officers or boards or to private corporations vested with the power of eminent domain, and their determination is conclusive in the absence of fraud, bad faith, or clear abuse of discretion.”

On page 1223 of the same volume, § 583, it is said: “It has also been held that where a municipality condemns land it acquires a fee unless a lesser estate or interest, is asked for in the application. The condemnor may be authorized to take a fee.”

In the present case condemnor in its petition asked that the fee-simple title to the land be vested in condemnor.

Jurisdiction over condemnation proceedings whereby it is sought to take land for public use is expressly conferred by statute upon county courts without regard to the amount in controversy, and without regard as to whether such proceeding is to establish a servitude upon land or may involve a trial of title to land. Gulf, G. & S. F. Ry. Co. v. Jacques Tacquard, 3 Willson, Civ. Gas. Ct. App. § 141; Gulf, C. & S. F. Ry. Co. v. Lyons, 2 Willson, Giv. Gas. Ct. App. § 139.

By section 22, art. 5, of our Constitution, the Legislature is affirmatively and expressly empowered to increase, diminish, or change the civil and criminal jurisdiction of county courts by either general or local law.

' By the express provisions of chapter 168 of the Acts of the Forty-First Legislature (1929), page 370, now article 1109c, Vernon’s Annotated Civil Statutes, all independent school districts having 150 scholastics or more are given the express power to acquire the fee-simple title to real property for the purpose of supplying playgrounds, sites upon which to build schoolhouses, and such other purposes as may be necessary for such schools, within any such independent school districts.

The appellant having expressly prayed for the condemnation of the fee-simple title to the land in question, and the appellees having admitted, for the purpose of obtaining the right to open and close the arguments in the ease, that appellant had the i(ower and right to condemn the land sought to be condemned, and that all legal prerequisites to the proper condemnation of the land had been complied with, appellees precluded themselves from objecting to the adjudication of the fee-simple title to the land in question.

The Special Act of the Thirty-Eighth Legislature (1923) creating Houston independent school district (chapter 91), giving it the right of eminent domain, is not unconstitutional and void, for that the right of eminent domain is an inherent power of government, and is vested in the Legislature, and the Legislature has the right to delegate such power to municipal subdivisions.

Said special act creating Houston independent school district does not in any manner conflict with the general provisions of law, and, even if it- did so conflict, the power to condemn the fee-simple title to the land in question was expressly conferred upon it by chapter 168 of the Acts of the Forty-First Legislature, p. 370.

Having reached the conclusion that the court committed no reversible error in the trial of the cause, the judgment is in all respects affirmed.

Affirmed.


text:
    STINNETT v. GULF, C. & S. F. RY. CO.
    No. 9519.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 26, 1931.
    Rehearing Denied March 19, 1931.

      W. 0. Carpenter, of Bay City, and Win-bourn Pearce, of Temple, for appellant.
    Styles & Erickson, of Bay City, and Terry, Cavin & Mills, of Galveston, for appellee.
   GRAVES, J.

This general statement of the nature and result of the suit, deemed to be reasonably accurate in all material features as such, is taken from appellant’s brief, after revision of the verbiage in a few unimportant particulars:

“Mrs. M. C. Stinnett, a widow, brought this suit against the Gulf, Colorado & Santa Fe Railway Company for damages resulting to her by reason of the death of her adult son, Bob Stinnett, alleging that his death was caused by Bob Stinnett’s being struck by one of defendant’s engines and trains, on or near the track of the defendant, at a public crossing constituted by an intersection of defendant’s railroad and a public highway, just north of Bay City, Matagorda County, Texas.
“The plaintiff also alleged that, on the date in question, the deceased was on the public crossing, and was on or very near the track of the defendant, at such public crossing, and that he was in an intoxicated and helpless condition at the time he was so struck by defendant’s engine and train; the plaintiff further alleging that the deceased was struck by a train going south, soon after midnight, and that for a long distance north of the crossing the track of the Railway Company was straight and level, and there was nothing to prevent the engineer and fireman on appellee’s train from seeing the deceased for such long distance; the appellant also alleging that the death of the deceased was directly and proximately caused by the negligence and carelessness of the appellee, among other things, in failing and refusing to stop its train, and in failing and refusing to use all the means at hand to avoid injuring the deceased after having discovered his perilous position, and, further, in this connection, that the train was being run at a very moderate speed and could have been stopped within a few hundred feet, and that the perilous position of the deceased was discovered by both of the employees of the appellee, who were on the engine, in time to have avoided striking and killing the deceased, if such employees had used ordinary care in the use of all the means at hand, consistent with the safety of the train and those on same, and further alleged that the engineer and fireman, after discovering the perilous position of the deceased, failed to use all the means at hand, consistent with .the safety of the train and those on- same, to avoid striking and killing him; and the appellant further alleged that the "deceased was an adult, - years of age, and that she was living with and dependent upon him for support, and that deceased would have been of great aid and benefit to her, and would have contributed to her support during the remainder of her life, and claimed and alleged damages in the sum of Twenty Thousand ($20,000.00) Dollars.
“The appellee answered by general denial and general and special exceptions, and, further, answered that the death of the deceased was proximately caused by the negligence and contributory negligence of the deceased, in various particulars.
“At the conclusion of the evidence of the appellant, the appellee filed a motion for an instructed verdict, and, over appellant’s protest, the court granted the motion and gave the jury instruction to find a verdict for the appellee.”

In due course verdict and judgment in accordance with the peremptory instruction followed, and this appeal therefrom has been regularly prosecuted.

The sole question thd cause presents is: Did the evidence raise an issue of fact over whether or not appellant’s son was killed at the alleged crossing by one of the appellee’s south-bound trains as the proximate result of a negligent failure on the part of the operatives thereof to use the means at hand to avoid injuring him, after having discovered him there in a position of peril?

If it did not, the judgment should be affirmed ; otherwise a reversal must be ordered.

Under the now well-settled rule laid down by pur Supreme Court in Wininger v. Ft. Worth & D. C. Railway Co., 105 Tex. 56, 148 S. W. 1150, that inquiry must be answered in the affirmative “if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” See, also, Texas & P. R. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Brown v. Griffin, 71 Tex. 654, 9 S. W. 546; Texas & P. R. Co. v. Ball, 96 Tex. 622, 75 S. W. 4; International & G. N. Ry. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936.

It is true there is no direct testimony, either as to how the son met his death, or as to any negligent dereliction of the train operatives that may have proximately caused it, but that is not necessary; both features being susceptible of proof by circumstances alone. When those so abundantly present here are looked to and appraised in the light of the quoted test, it seems clear to this court that a jury might reasonably have found, not only that he was killed by the appellee’s south-bound train at the particular crossing substantially as charged, but also that its operatives, the engineer and fireman, did see him in a perilous position either on, or so-near the track as to amount to the same thing, in time to have stopped the train before it struck him.

It was indisputably shown that about daylight on July 16th of 1929 the dead body of Bob Stinnett, then cold and stiff, as if life had been extinct for possibly if not probably several hours, was found on the south part of that railroad crossing right-by the track itself, his head being within four or six inches of the rail, the skull and face all crushed and caved in to the extent of one-half of the whole by wounds apparently caused by a driving force such as a heavy engine might inflict, the left arm extending full length along outside but near to the rail, with one finger and another piece of flesh from it off and lying inside the rail further toward the south, the body proper being stretched out at a slight angle toward the southwest, and the man’s hat along with other effects witnesses swore were his, including a large bucket and a number of broken bottles they termed beer bottles, being strewn still further southward along the railroad track for several feet; that about 1 o’clock of the night before appellee’s “sul-phur extra” freight train passed to the south over that crossing, pulling 74 cars, 3 loaded and 71 empties;' no testimony indicating the passage of any. other train along there until-a portion of that same -one was said by its conductor to have reerossed going back north some time after 4 o’clock the following morning.

These details affecting the scene of the tragedy, the position and condition of the body, a photograph of which as it lay when found being in evidence, were testified to by officials of the county, including the sheriff, justice of the peace, and health officer, after personal investigations they had made at the time; those as to the trains by the conductor of the “sulphur extra” referred to.

These excerpts indicate the minuteness of the sheriff’s description:

“There were some signs on the rail, indicating the place where this finger was cut off; you could see where the finger had been cut from the mark on the rail; and right off below, where the finger was, a little piece that was busted off of this was lying on the inside, stuck to the rail.' I mean that there was a little piece of flesh stuck to the rail, and just below that inside of the rail was the finger. This piece of-flesh that was stuck to the rail showed to be a part that came off of the finger that was busted. There was a part of the finger that was off. The piece of flesh that, was on the rail was south of the finger; the finger was between that and the hand, where the hand was lying; the piece off flesh was south of the finger, a little bit further south of the finger. The piece of flesh was just a little south of the finger. I didn’t measure the distance between that piece of flesh and the finger, but I would say it was possibly some six or eight inches, something like that; they were just a small distance apart. On the track was the,imprint of the bottom of the bucket, there in the roadway. That imprint of the bucket was a little bit north of the body; and there was glass; there was some glass there, strewed to the. south of where this imprint was, and pieces of the bucket were picked up still further to the south, and the hat also.”
“From the place where I saw the imprint of the bucket, the glass that was strewed all. along to the south from there extended some eight or ten feet down the track that I noticed.”
“Right where his hand was lying, there was marks right across there where his finger' was cut off, it showed the mark there' on the rail. By ‘marks’, I mean that there were blood stains there on the rail itself.”
“That imprint of the bucket was in between the rails; and I would say that it was somewhere around four or five feet from the imprint of the bucket to the body of the deceased.”

That of the justice of the peace was even more intimate and detailed. After saying that he had smelled beer all along the ground where the sheriff put the broken bottles, he added that he had found eleven unbroken bottles of beer close to the deceased’s car that had been left stuck in the mud near the crossing.

The witness O’Rear furnished direct testimony to his having been with Stinnett for more than twenty-four hours immediately prior to that and up to midnight, or a little later, of the night before the latter’s body was so found at the railroad crossing; that during that period they had been drinking beer together, finally getting stuck in the mud near this crossing in Bob’s car about dark on that night. He then adds: “I was at Bob’s house that night in the car with him, when he left me in the car and went and got some beer in the house. * * ⅞ He brought some of the beer back to the car, where I was waiting for him, in a pasteboard carton and some in a water bucket, about a three gallon water bucket. That was just an ordinary zinc water bucket, of about three gallons capacity. The beer was bottled beer. Bob put some ice in the bucket with the beer — we had some ice in the car with us. * * * The last thing that I remember seeing Bob Stinnett do on the night in question was he got out of the car and went to the back of the car, and I heard the bucket move, the bucket we had in the car moved; that was the last thing I heard or saw of him; I laid down and went to sleep at that time, and I don’t know what happened afterwards.”

Surely from all this men of ordinary intelligence might reasonably draw the inference that such south-bound train, some time between midnight and daylight of July 16th, did at that crossing run over and kill Bob Stinnett while practically on the railroad track, either asleep or in a" dazed condition from drink.

Equally persuasive seems the train of circumstances tending toward support of the negligence averment that one or both of the appellee’s operatives, after seeing him so upon the track, failed to use the means at hand to avoid striking him; admittedly the engine’s headlight was in good condition and shining brightly at the time, the track was level and straight for six miles, the train was equipped with Westinghouse airbrakes through which the air could have been applied to every one of its 74 cars at the same time, and both engineer and fireman were at the particular time sitting in their proper seats attending to their several duties in running the train and looking straight ahead for more than a mile as they approached the crossing, the train throughout that distance running not more than 25 miles per hour. It further uncontro-vertedly appeared that the dirt at the crossing had been built up into a high road, and that the body of the deceased, who was quite a large man, lay head foremost toward the rail at the highest part of such road, and that the train at the speed it thus was making could have been stopped within 400 or 500 feet.'

There was not only unanimity among all the witnesses as to there being no obstruction to the north that would have prevented the engineer and fireman as they approached from seeing the man reasonably shown to have been at the crossing in the attending circumstances stated, but the appellant’s testimony further was to the effect that the sheriff and several other witnesses, after the tragedy, conducted an experiment looking to determining how far up the railroad track a man .the size of Stinnett, and placed in the precise position he was in when found, could be seen under the headlight of an approaching train.; that they selected a similar night to the one here involved, at a time when this same train, or one shown to be just like it, was passing; that the sheriff himself went up a telegraph pole some 40 feet from the track to about the same height the engineer would be sitting on his engine at a distance of 1,100 feet north of the crossing, and that he could plainly both see the body of the man he had so left at the crossing and recognize it as being a human form. Essentially the same testimony was given by the three other witnesses, except that two of them were on a pole on the opposite side of the railroad at a distance of about 600 feet, instead of 1,100.

To this was added the opinion of a former engineer, testifying as an expert, that an engineer on the train, sitting in his place and looking to the front, was in much better position to see objects on or near the track ahead of him than would be persons on an equal height with him, but away from the track.

. While the engineer and fireman do not admit they saw the deceased, neither do they deny it; the most that appears with any bearing on that subject being the statement from the engineer alone — the fireman making none —that, on hearing the report of the happening next day, he at once examined the engine and found no sign that it had struck or come in contact with anything or anybody.

Aside from the consideration that appellant would have been entitled to a submission of the issue on proof reasonably tending to show failure on the part of either of them to meet the duty imposed upon both by the development of discovered peril, it would have made no difference in the rule of law appertaining to a situation of that sort under the conditions recited here, supra, had each positively denied that he did see the person in peril; the denial would not have been conclusive, the jury still having the right to weigh the denial against the circumstances tending the other way. Brown v. Griffin, 71 Tex. 654, 9 S. W. 546; Texas & P. Railway Co. v. Ball, 96 Tex. 622, 75 S. W. 4; International & G. N. Railway Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936.

In.neither instance would the drawing of the inference herein alluded to amount to a building of one presumption upon another, as the appellee’s brief contends, since there is neither dependence at all of one upon nor yet deduction of it from the other; each being a legitimate and independent conclusion from wholly detached and different facts and circumstances in evidence.

The other of appellee’s objections, that the evidence did not tend to show by which train deceased was hit, whether by the south or north-bound one, if by either, has been fully answered by the preceding recital of many indicia that the south-bound train must have killed him.

Moreover, in mid July in the latitude of this event, daylight, the hour this body was first found, and some time after 4 o’clock the same morning, the time the north-bound train was said to have passed there, by common knowledge was so nearly synchronous as to have made it improbable that the body, during at most so brief an interval, could have become so cold and rigid as the sheriff testified he found it.

The evidence heard, without dispute, further tended to show that appellant was not only during his life dependent upon but also suffered damage as a result of the death of her son.

Further discussion is deemed unnecessary, since it follows from these conclusions that the case was not one for disposition by peremptory instruction. The judgment has accordingly been reversed, and the cause remanded for trial on the issues of fact herein pointed out.

Reversed and remanded.