author: FUNDERBURK, J.

text:
    WALLING et al. v. HARENDT et al.
    No. 815.
    Court of Civil Appeals of Texas. Eastland.
    March 6, 1931.
    Rehearing Denied April 10, 1931.

      W. B. Ferrell, of Roby, Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, T. L. Dyer, of Breckenridge, and Burney Braly, of Fort Worth, for appellants.
    Thomas & Shapard, of Anson, and John D. Abney, of Hillsboro, for appellees.
   FUNDERBURK, J.

Ruth Harendt, Robert Harendt, Leona Harendt, and Beatrice Harendt, minors, as heirs of Mrs. Betty Harendt, and through the latter and her mother, Mrs. Ada Simpson, as heirs of Dr. J. H. Walling, brought this suit against J. R. Walling, Jr., Mrs. Tess'ie May Walling, a widow, Phillips Petroleum Company, Marland Production Company, and the Marland Oil Company of Texas, to cancel a certain deed and to recover a one thirty-sixth undivided interest in a 320-acre tract of land in Jones county. The deed sought to be canceled was dated April 26, 1917, and upon its face purported to be a conveyance by Betty Harendt, joined by her husband, Carl Har-endt, and by other parties of the grantors’ interests in said 320-acre tract of land, to Mrs. M. E. Walling, defendants’ grantor. The insanity of Betty Harendt (not previously adjudicated) was alleged as a ground for cancellation. Plaintiffs alleged, as an. offer to do equity, their willingness to repay the consideration received by Betty Harendt for making the conveyance, together with legal interest thereon from its date until final determination of the cause, such amount to be credited upon the amount also sought to be recovered for the alleged conversion by the defendants of oil produced from the land. The defendants’ pleadings alleged, among other things, that the deed sought to be canceled was made as a part of a partition proceeding between Mrs. M. E. Walling, the surviving widow of Dr. J. H. Walling, and the other heirs of said J. H. Walling, and that', as a part of such partition proceeding, said Mrs. M. E. Walling deeded to the other heirs, including Betty Harendt, land belonging to said estate situated in Fisher county. A jury to whom the issues were submitted found that Betty Harendt was mentally incompetent at the time she joined in the execution of the deed to Mrs. M. E. Walling, and at the time when subsequently -she, joined by her husband, conveyed the Fisher county land to J. W. Simpson, and at all times until her death, but further found that, in the division of the J. H. Walling estate the heirs, other than the widow, Mrs. M. E. Walling, received property of equal value with said Mrs. M. E. Walling. The court gave plaintiffs judgment canceling the deed in so far as it affected two-thirds of one thirty-sixth interest in the land, establishing plaintiffs’ title to such interest, and admitting them into the possession thereof. There was also adjudged to plaintiffs the sum of $382.95, representing the value of oil found to have been converted by the defendants, less the sum of $791.10, the amount of the consideration, with interest, which the court found that Betty Harendt had received for executing the deed so canceled. The limitation of the recovery to two-thirds of one thirty-sixth seems to have been upon the theory that Carl Harendt, the husband of Betty Harendt, by his warranty deed conveyed, by estoppel, his after-acquired title, evidently assumed to be one-third of the one thirty-sixth. The defendants have appealed.

The record in this case very clearly shows that appellees sought to cancel the deed and recover the undivided one thirty-sixth interest in the land upon'the theory that such interest in the land had been conveyed by Betty Harendt, a non compos mentis, to Mrs. M. E. Walling, and that the consideration for such conveyance was the conveyance to Betty Harendt by Mrs. -M. E. Walling of an interest in the land situated in Eisher county. It was evidently assumed that the cancellation of said deed, in so far as it covered the one thirty-sixth interest, would have the effect of revesting that interest in appellees as the heirs of their mother.

If, upon that theory, appellees had a right of action, then the judgment is in the main, if not altogether, supported by the principles and authorities relied upon by them in answer to the assignments and propositions urged by appellants upon this appeal. If, in fact, by the deed sought to be canceled, Betty Harendt had conveyed to Mrs. M. E. Walling a one thirty-sixth interest in the Jones county land, the consideration for which being the conveyance by the latter to her of an interest in the Fisher county lands, and at the same time the grantor in the first mentioned deed was mentally incompetent, the appellees undoubtedly had the right, upon tendering bach the consideration, to have a cancellation of the conveyance. With the conveyance canceled, there would have been no obstacle to the recovery of the interest sued for, at least to the extent the judgment awarded recovery. In fact, a prima facie right of recovery would not have included a tender of the consideration. The obligation to repay all or a part of the consideration was dependent upon whether or not plaintiffs’ mother had same or had been benefited to an ascertainable extent, the burden of pleading and proof to show which would have been upon the defendants. Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115. The continued insanity of Mrs. Harendt would have prevented the operation of an estoppel to avoid the conveyance.

The undisputed evidence, however, conclusively established the fact that the deed was given to effect a partition of lands by the joint owners thereof. The establishment of that fact produced important consequences. It conclusively showed that the deed sought to be canceled was not in any true sense a conveyance of an interest in land from Betty Harendt to Mrs. M. E. Walling, and that the consideration for same was not the conveyance by the latter of an interest in the land in Fisher county. “A partition between joint owners does not confer title upon either, but has the effect only to dissolve the tenancy in common, and leave the title as it was before, except to locate such rights as the parties may have, respectively, in the distinct parts of the premises, and to extinguish such rights in all other portions of that property.” Chace v. Gregg, 88 Tex. 552, 32 S. W. 520, 522; Davis v. Agnew, 67 Tex. 206, 2 S. W. 43, 376; Arnold v. Cauble, 49 Tex. 535. The effect of a partition is believed to be the same whether it be accomplished by parol agreement ; by a deed purporting to partition; by warranty deeds reciting money considerations; or by a judgment in a partition suit. In Davis v. Agnew, supra, the Supreme Court quotes with express approval Dawson v. Lawrence, 13 Ohio, 546, 42 Am. Dec. 210, to show that such is the effect of warranty deeds between cotenants such as involved in this case. In Aycock v. Kimbrough, 71 Tex. 333, 12 S. W. 71, 72, 10 Am. St. Rep. 745, a parol partition was referred to as “being a division, but in no sense a conveyance, of lands.” It logically follows that cancellation of a partition deed would not revest appellees with any title to the land. It is also certainly true that, if the deed of Mrs. M. E. Walling conveyed no land to Mrs. Harendt, which it did not, being a partition deed, it could not have been the consideration for the other deed. On the contrary, the transaction being merely a partition, the only consideration for each of the deeds was the advantage or supposed advantage accruing to each of the tenants in common of holding his or her interest in sev-eralty.

The partition was not void, but at most only voidable. Williams v. Sapieha, supra; Mitchell v. Inman (Tex. Civ. App.) 156 S. W. 290; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053; Smith v. Thornhill (Tex. Com. App.) 25 S.W.(2d) 597.

Until avoided, it stands as an effectual bar against any right in the heirs of Betty Harendt to recover any interest in the land in controversy. It is apparent that ap-pellees have not, at least in any effective way, sought to avoid the partition. Their pleadings mentioned no partition. Had the fact appeared from the allegations in their pleading that the deed in question was given only to effect a partition, it is doubtful if the petition would have stated a cause of action. But, if the pleading, in so far as it sought cancellation of the deed, could by liberal interpretation be construed as seeking a cancellation of the partition, it could not be made to serve that.purpose because of the absence of necessary parties to authorize the court to make a valid and binding decree to that effect. As .already said, the partition that was shown to have been made was (apart from any question of Mrs. Harendt’s disability) no different as to the rules of law governing same than if it had been made by a court of competent jurisdiction. For the court to have had authority to make an effective partition, all joint tenants or persons having an interest in the lands were necessary parties. As said by the Supreme Court in De La Vega vJ League, 64 Tex. 212: “It is a principle of equity that it will not make a decree when it is apparent that it cannot definitely settle the rights of the parties or make a final disposition of the subject of litigation. '* * * In suits for partition this doctrine is enforced with great stringency. If all parties entitled to an interest in the property to be partitioned are not before the court, a decree will not be rendered.” In applying this principle, the Supreme Court held that, upon an appeal of a partition suit, although the awarding, of a particular tract to one joint tenant was not complained of, yet, because the judgment awarding other lands to other .joint tenants was required to be reversed, the entire case must be reversed. Kremer v. Haynie, 67 Tex. 450, 3 S. W. 676. Likewise, it seems -to us if a partition is not voidable, but must be avoided, if at all, by a suit for that purpose, it is necessary, in order to make the decree effective, that all parties to the partition, or their successors in interest, must be made parties. If one party to the partition be released, the effect will he to again make him a tenant in common, having his undivided interest in all the lands. As such tenant in common, subject to certain equitable limitations, he would have the right to enforce a repartition. The release of one from the partition therefore releases all, since the only purpose of the partition — the ownership by each in severalty— is thereby defeated.

The record shows that the interest which Mrs. Harendt received in the partition was later conveyed by her, with the joinder of her husband, to J. W. Simpson. That conveyance, if valid, leaves the appellees without any interest in the lands involved in the partition. If it be granted that Mrs. Harendt was at all times mentally incompetent to make the partition agreement, it does not follow that her heirs can set aside the partition if they have no interest in the matter. Aycock v. Kimbrough, 71 Tex. 333, 12 S. W. 71, 10 Am. St. Rep. 745. If the partition be dissolved, J. W. Simpson or his assigns would become the tenant in common as succeeding to the interest of appellees’ mother. It is plain, therefore, that, under the facts disclosed by the record, if the suit is to be considered as seeking a dissolution of the partition, or if, before another trial by amendment, it is certainly made such, it will be necessary, first or simultaneously, to procure a cancellation of the deed to Simpson. The conveyance to Simpson, like the partition, is at most voidable, and not void. Until avoided, it constitutes an effective bar to the right of appel-lees to avoid the partition simply because of the want of their interest in the subject-matter.

We are also inclined to the view that, if the appellees can show a right to set aside the partition, Carl Harendt, the surviving husband of Betty Harendt, will be a necessary party. By his joinder with his wife in the deed sought to be canceled, he conveyed no after-acquired title by estoppel. As already pointed out, that deed conveyed no title, and a warranty does not purport to assure any other title than the one attempted to be conveyed. In ■ a partition, therefore, it cannot be made to operate as a conveyance by estoppel of an after-acquired title. Davis v. Agnew, supra. We doubt if the fact that estoppel may operate against him by virtue of the warranty in the deed to Simpson — that that fact, as a matter of law, eliminates him as a necessary party.

If the suit proceeds as one to avoid the partition, another principle should be borne in mind. That is the right of a purchaser of a specific tract from a tenant in common to have such tract set aside to him upon a subsequent partition, if the interest of the other tenants in common may equitably be set aside to them out of other portions of the land. Peak v. Swindle, 68 Tex. 253, 4 S. W. 478; Lasater v. Ramirez (Tex. Com. App.) 212 S. W. 935; Thompson v. Robinson (Tex. Civ. App.) 56 S. W. 578; Lemonds v. Stratton, 5 Tex. Civ. App. 403, 24 S. W. 370; Arnold v. Cauble, 49 Tex. 527.

Even if the partition be dissolved, before appellees can disturb the exclusive possession of appellants who are purchasers through one tenant in common, it will be necessary to establish that appellees cannot equitably have their interests sot apart to them out of the Eisher county land.

We cannot sustain appellants’ proposition that there was no probative evidence sufficient to support the finding that Betty Har-endt was incapable of understanding the nature and effect of her action in executing the deed in question.

The only other question presented which is not disposed of or rendered immaterial by the conclusions already stated, and which, because it would probably arise upon another trial, should be determined, is that involving the correctness of the trial court’s action in sustaining an exception to appellants’ plea of res adjudicata based upon a part of the verdict of the jury upon a former trial of the case. At said previous trial three issues were submitted to a jury. Issue No. 1 called for a finding as to Betty Harendt’s mental competency at the time of the execution of the deed in question. No. 2 was with reference to her mental competency on January 20, 1920, when, joined by her husband, she executed the deed to J. W. Simpson. Issue No. 3 called for a finding as to whether Betty Harendt was of sound mind any time between September IS, 1919, and April 24, 1923. Tbe jury was directed that, if they answered No. 1 in tbe affirmative, it was unnecessary to answer the others. They failed to agree upon an answer to No. 1, but answered 2 and 3 in tbe affirmative. Appellees made a motion for judgment in their favor upon the verdict of the jury, which the court overruled, and in its order, among other things, recited: “⅜ ⅜ * The verdict of the jury as returned, they not having answered all the questions, is a nullity and forms no basis for the entering of any judgment,whatever in this case. * * * that there was a mis-trial. * * ⅜ that the case stands on the docket for another trial the same as if there had been no trial in this case.” The order further recited that defendants excepted and gave notice of appeal. On the same day the court overruled a motion of appellees to set aside the verdict of the jury on the ground that same did not authorize a verdict for the appellants, and in the order recited that the court “declines to make any order whatever with reference to the verdict of the jury.” The proper construction of the court’s action, as reflected by the two orders, would seem to be that it was the opinion and judgment of the court that no judgment could be rendered at all because of the failure of the jury to answer special issue No. 1. It was the theory of appellants, of course, that the answers to special issues Nos. 2 and 3 rendered any finding- on No. 1 immaterial, and entitled them to judgment. This question we do not find it necessary to determine. If it be granted that the court should have rendered judgment for defendants, it does not follow, we think, that the verdict became res ad judicata in the subsequent trial of the case. Whatever uncertainty may be reflected in the orders, it seems clear enough that the court adjudged that the verdict' was insufficient to support a judgment. If that judgment was wrong, appellants were under the necessity of avoiding its consequences. They were not without legal remedy if, as a matter of law, it was wrong. In fact, they had an election of remedies. They could, by mandamus, compel the rendition of judgment. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S. W. 296. Or they could abide that judgment and have a retrial of all the issues in the case. The record unmistakably reflects appellants’ election to do the latter. That action, in our opinion, was a waiver of any right to have the former verdict made determinative of any of the issues upon the retrial of the ease. To permit the former verdict to have such effect would be to permit appellants, after foregoing a certain and sure remedy to avoid the erroneous order, to have precisely the same relief against said order as though it never existed, and at the same time deprive the adverse party of any opportunity by appeal or otherwise to revise any errors that may have existed to their prejudice back of the former verdict.

It being our opinion that the judgment of the trial court should be. reversed and remanded, it is accordingly, so ordered.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    LEGLER v. LEGLER.
    No. 7510.
    Court of Civil Appeals of Texas. Austin.
    March 4, 1931.
    Rehearing Denied March 25, 1931.
    Jno. P. Bhlinger, of La Grange, for appellant.
    George Willrich, of La Grange, for appel-lee.
   BLAIR, J.

Appellant, Josef Legler, Sr., filed his application to be appointed guardian of the person and estate of his wife, Augusta Legler, who had been adjudged to be of unsound mind. Appellee, Louis Legler, a brother of the said Augusta Legler, contested the application, alleging that appellant was unfit and especially disqualified to act as such guardian under article 4122, which provides that no person “whose conduct is notoriously bad” shall be appointed guardian of the person or estate of a person of unsound mind; and further alleging that he (appellee) was not disqualified to act as guardian of the person and estate of his sister, and prayed that he be so appointed. The county court denied appellant’s application, and appointed appellee guardian, and, on appeal by appellant to the district court and a trial de novo, appellee’s appointment was confirmed; hence this appeal.

By two propositions appellant contends that; neither appellee’s pleadings nor the facts proved show him to be disqualified to act as guardian of the person and estate of his insane wife, in view of article 4121, which provides that, if an insane wife “have a husband * ⅜ * who is not disqualified, such husband * ⅜ * shall be entitled to the guardianship in preference to any other personand in view of article 4276, which provides that, if the person of unsound mind “committed to guardianship is married, the husband or wife of such person * * * shall be entitled first in order to the guardianship.”

In substance, appellee alleged and proved 'the following facts: That in January, 1901, appellant and the said Augusta Legler were married, and, although they had the same surname, they were not related. In December, 1908, Augusta Legler was tried and found to be of unsound mind, and was confined in a hospital for insane persons for a short time, when her mentality was apparently restored. She was again tried and found to be of unsound mind, in 1914, and since which time she has continued insane except for lucid intervals of short duration, but she had not been confined in a hospital for insane except for short periods of time on several occasions. Some seven or eight years before appellant filed his application in 1925 for appointment as guardian of his insane wife, he employed a negro woman as his cook and housekeeper, and she with her small children moved into the home of appellant and his insane wife. Appellant was shown to have paid this negress and her children marked esteem, affection, and kindness. The negress was given charge of the household management, and showed discourtesy to Mrs. Legler, who protested the acts of her husband and the negress, and attempted to drive the negress from her home; but appellant prevented her from doing so, and on this and other occasions whipped or beat his wife severely, and on this occasion either drove her from the home or she left without being restrained by appellant, and went to her father’s house, since which time she has lived alone in a small shack out in a pasture under the supervision and care of her mother and father, until' tlioir respective deaths, and has supported herself by working in the field or for appellee. For more than ten years prior to the trial of this ease, appellant paid no attention to the welfare or support of his insane wife, but completely abandoned her, as shown by his following testimony:

“I haven’t been there where she is now, she is there at the old home where they used to live, and it is just a little room left there I think a kitchen or something.
“When her father and her oldest brother sued for a divorce, after that I went down, she lived in the old shack in the pasture and I told her to come home, that was 5 years ago, I haven’t 'been to see her since, I stated awhile ago that sometimes I would hear that she had been sick, when I heard this she was up and about, I did not go there to ask her how sick she had been. I have been going there enough to get her home, if I can’t get her to come and stay, I can’t run about that way, and I don’t know what they have in mind, going .over there on their place.”
“The Court: How much money have you contributed to the support of this woman for the past twelve months?
“Answer: None. I did not contribute any money for her support in the last 10 years.”

The evidence further showed that, from the first time Mrs. Legler was adjudged insane, her father and probably several of her sisters-- and appellee charged appellant • with being-the cause of her insanity as the' result oL! his brutal and cruel treatment of her. When Mrs. Legler’s father executed his will, lie-made appellee trustee of the property given her, and provided that he did not wish for-appellant to have any part or benefit in. such estate. Appellee probated this will, and was executing the trust imposed at the time this application was filed. This interest in her father’s estate, amounting to $2,338.-08, together with an interest in insurance policies on his life, and the interest which she inherited from her mother’s estate, amounting to $2,338.08, constituted her solo -and only estate, and of which, after the-death of her father and some seven or eight years after appellant had abandoned her as above stated, appellant applied for guardianship as well as for the guardianship of the-person of Ms insane wife.

The preceding pleadings and evidence fully sustain the conclusions of the trial courts that appellant is unfit and disqualified to act as guardian of the person and estate of his-insane wife. We find no decision which construes the’meaning of the language “whose conduct is notoriously bad,” as used in article 4122, as disqualifying one seeking appointment as guardian of the person or es-state of a person of unsound mind. But whether appellant’s above detailed conduct toward his insane wife and his utter lack of attention and care for her be notorious, it is “bad” conduct, rendering him wholly unfit to act either as the guardian of the person or estate of this unfortunate -being. Certainly the appointment of appellant would not be in keeping with that provision of article-4121 which provides that the appointment, of a guardian of the person or estate of a person of unsound mind should be made “according to circumstances, taking into consideration the interest of the ward alone,” because he has’ wholly abandoned her to her plight for more than ten years. The case- and statutes here involved are very similar to' the cases and statutes with reference to the appointment of a father as guardian for his minor child. Both the latter statutes and decisions construing them hold that a father has preferential rights to be appointed guardian of his minor child; but that, where he has knowingly and willfully abandoned the child, or has so conducted himself as to be unfit to act as guardian, or where he appears indifferent, negligent, and cruel, he loses his preferential right to guardianship. Thomason v. McGcorge (Tex. Com. App.) 285 S. W. 2S5, 287; '28 C. J. 1079, § 46 (2), and cases cited in footnote 31. In fact, the statutes with respect to guardianship of minors are made applicable ⅛> guardianship of persons of unsound mind by article 4274, which reads as follows:

“Each provision of this title relating to the guardianship of the persons and estates of minors shall apply to the guardianship- of the persons and estates of persons of unsound mind ⅜ * * in so far as the same are applicable.”

We affirm the judgments and orders of the trial courts in all things.

Affirmed.


author: WALKER, J.

text:
    CARROLL v. GROSS et al.
    No. 1920.
    Court of Civil Appeals of Texas. Beaumont.
    March 12, 1931.
    Rehearing Denied April 1, 1931.
    King & Jackson, of Beaumont, for appellant.
    Howth, Adams & Hart, J. L. C. McFaddin, and P. A. Dowlen, all of Beaum'ont, for ap-pellees.
   WALKER, J.

On June 5, 1928, an election duly called was held in the city of Beaumont submitting the issue, “Shall a commission be chosen to frame a new charter,” and for the further purpose of electing from the city at large a charter commission of fifteen members to draft a new charter for the city. On June 12, the returns of the election were duly canvassed and the result declared showing 785 votes for and 782 votes against choosing the commission and the election of fifteen citizens to frame a new charter. Afterwards,^ within the time provided by law, and after filing his notice of contest, complying with the statute in all other respects, George W. Carroll duly filed his contest against the election and the returns as canvassed and declared. As contestees he named E. W. Gross, mayor, and the elected charter commission. Without stating the grounds of contest, it is sufficient to say he alleged facts sufficient, if found true, to annul the election. He undertook to qualify himself to bring this suit by the following allegations:

“That Contestant is a resident citizen and qualified voter of the City of Beaumont, in Jefferson County, Texas, and has been and is now a resident qualified voter of said City continuously for many years past; that Contestant is now and has been for many years past an owner of' property, both real and personal, in the City of Beaumont, which property is subject to taxation by the City of Beaumont and is and has been for,many years past rendered and assessed for taxation by the City of Beaumont.”

Without quoting further from his petition on this issue, we say the allegations were sufficient to bring him within the reservation made by the Commission of Appeals to its opinion in City of Goose Creek v. Hunnicutt (Tex. Com. App.) 15 S.W.(2d) 227, 228. That case was a contest of an election adopting a new charter for the city of Goose Creek. The Commission of Appeals found, on the facts certified by the Galveston Court of Civil Appeals, that the contestant had no “interest, distinct from the general public, in the result of the election” which he undertook to contest, and on this fact, construing article 3069, R. S. 1925, concluded that he could not prosecute the suit. However, the following reservation was made against that conclusion:

“The certificate does not call for a decision as to the right or authority, in the premises, of a resident property holder whose property, as a result of said election, becomes subject to an increased taxing power in the governing body of the city. As to that question, we neither express nor imply an opinion.”

As just stated, contestant brought himself within this reservation. Contestees fully answered the contest by plea in abatement and general demurrer and by general and special denials, etc. The plea in abatement and general demurrer were urged on the ground that the petition on its face showed that contestant had no interest distinct from the general public in the result of the election and hence was not qualified to maintain the suit; in other words, that the contestant had not alleged facts showing his qualification to maintain the suit. When the case was called for trial, the court carried the plea in abatement and the general demurrer through the trial, hearing all evidence offered by both parties before ruling on these pleas. On the conclusion of the evidence contestees filed the following motion:

“Now comes the Contestees in the above numbered and entitled cause, and at the close of the evidence and move the court to dismiss said cause from the docket of the court for the reason that neither the pleadings nor the evidence shows that the Contestant has any interest in the subject matter sufficient to bring this suit, and because the pleadings and the evidence conclusively show that the Contestant is not qualified or authorized under the laws of this State to bring or maintain this suit, the pleading and the evidence among other things showing that Contestant brought the suit in his capacity as a citizen only and has no more interest in the subject matter of the suit than the public generally.
“Wherefore, Contestees pray the court that this cause be dismissed at plaintiff’s cost, and that they go hence without day and recover all costs in this behalf expended for which they may have their execution.”

The final judgment denying and dismissing the contest was as follows :

“On this the 9th day of May A D 1929, the above numbered and entitled cause came on for hearing and all parties appeared in person and by attorney and announced ready for trial subject to some exceptions by Con-testees, which by agreement were carried over for future argument and after all evidence had been introduced the argument was postponed until the 17th day of May and on the 17th day of May came all parties by attorneys and announced that all argument should be postponed until the 24th day of May and on the 24th day of May came all parties by attorneys and the argument of counsel being heard the court is of the opinion that the law is for the Contestees and that their plea in abatement should be sustained, whereupon Contestant requested leave to amend, which was granted by the court and Contestant having amended, Contestees asked leave to file further exceptions, which leave was granted and such further exceptions duly filed, and the court having heard the further argument of counsel is of the opinion that the law is with the Contestees and that Contestees’ general demurrer and exceptions to Contestant’s Second Amended Original Petition and motion to dismiss should be sustained and Contestant’s case dismissed.
“It is therefore ordered, adjudged and decreed by the Court that Contestees’ general demurrer and exceptions to Contestant’s Second Amended Original Petition and motion to dismiss be and the same are hereby sustained and that the suit of Contestant be dismissed and that the Contestees, E. W. Gross, Mayor of the City of Beaumont, Texas, S. W. Pipkin, J. L. C. McFaddin, C. W. I-Iowth, W. A. Priddie, Oliver J. Todd, P. A. Dowlen, E. A. Eletcher, O. B. Sawyer, B. E. Quinn, W. L. Pondrom, C. A. Culmore, J. S. Maida, J. E. Broussard, A. Babin and J. M. Combs go hence without day and that they recover of Contestant, George W. Carroll, all costs in this behalf expended for which they may have their execution, to which judgment of the court Contestant duly excepted and in open court gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas at Beaumont, and Contestant is hereby allowed ninety days after adjournment of court to prepare and file his bills of exception, assignments of error and statement of facts.”

Appellant prosecutes his appeal on two propositions.

First: “Contestant having alleged in his second amended original petition that he was a resident property holder, whose property as a result of the election sought to be contested, would become subject to increased or changed taxing power and would necessarily be subjected to increased taxation unless said election was contested, his special interest in the subject matter of the contest was shown which entitled him to maintain the same under the provisions of Articles 3069 and 3070, Revised Civil Statutes of 1925, and the trial court erred in sustaining con-testees general demurrer thereto.”

The second proposition merely summarizes the allegations of the trial petition, and concludes:

“It was, therefore, error for the Court to sustain contestees general demurrer to and motion to dismiss contestant’s said second amended original petition and in dismissing said cause.”

Contestees, by their first three counter propositions, simply bring forward their general demurrer and plea in abatement; that is, the contestant did not by his petition qualify himself to prosecute the contest. The fourth counter proposition is as follows:

“The record herein not showing that the Contestant introduced any evidence of any right or interest in himself in the result of the election sought to be contested different from any other person, nor any evidence of any right peculiar to himself being violated by such election, and. the election herein being a municipal election in which the public generally is interested, the appellate court must presume that the trial court properly sustained Contestees’ motion to dismiss the petition.”

No statement of facts is in the record.

Opinion.

Appellant’s two propositions, and appellees’ first three counter propositions, present matters for review of peculiar public interest. The Galveston Court of Civil Appeals certified to the Supreme Court the case cited above because of the conflict in the holdings of the Supreme Court, as construed by the Galveston court, upon the rights of a citizen to maintain suits of the character of the one now before us. By its answer in that case the Commission of Appeals clearly decided that one cannot maintain this character of suit unless he has an interest in the result of the election distinct from the general public. The open question on this issue is now: What constitutes an interest in the election on the part of the contestant “distinct from the general public”? Appellant says he showed his qualification by alleging that he was a resident property holder of the city of Beaumont whose property, as a result of said election, became subject to an increased taxing power of the governing body of the city. Appellees deny that this allegation constitutes a legal qualification. It seems to be their argument that the contestant must not only allege an interest distinct from the general public as a body politic, but also distinct from the other resident property holders whose property, as a result of said election, would become subject to an increased taxing power of the governing body of the city.'

Upon a careful review of the brief of both parties and of the transcript, we have •concluded that this question, as thus stated, is not before us for decision because of the ruling of the court on the motion to dismiss. In order' to maintain his contest appellant rested under the burden not only of alleging his due qualification to maintain the suit but also of supporting his allegations' by proof. Without a statement of facts before us we are not advised as to the character or sufficiency of the proof on this issue.

In addition to sustaining the general de^ murrer and exceptions to appellant’s petition, the trial court also sustained the motion to dismiss filed after the closing of the testimony. One ground of the motion was that the evidence showed that contestant brought the suit in his capacity “as a citizen only and has no more interest in the subject matter of the suit than the public generally.” Clearly, under the case cited supra, appellant was not •even within the reservation made by the Commission of Appeals unless he showed by proof that he was a resident citizen of the city of Beaumont, owning property within the city which, as a result of. the election, became subject to an increased taxing power in the governing body of the city. Even if the law was with appellant in his propositions, the court properly dismissed the suit if the required proof was not in evidence. In the absence of a statement of facts the law requires us to presume, in support of the judgment, that no proof on this issue was offered. It follows that the judgment of the court must be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: SELLERS, J.

text:
    RODY v. WHITAKER.
    No. 4012.
    Court of Civil Appeals of Texas. Texarkana.
    March 19, 1931.
    Rehearing Denied March 26, 1931.
    T. R. Yantis and A. A. Dawson, both of Canton, for appellant.
    Wynne & Wynne, of Wills Point, for appel-lee.
   SELLERS, J.

This is an appeal from the county court of Van Zandt county, in which the defendant recovered a judgment against the plaintiff. The case is here without a statement of fact, in the absence of which, this court will consider only such errors as are apparent of record, and in this case we find no such to exist.

However, since appellant’s principal complaint is of the court’s action in failing to continue the case because the plaintiff was sick and unable to be present in court when the case was tried, we will add that we know of no law which requires the plaintiff to be present when his case is tried, and since there is nothing in the record to show that the plaintiff would have testified to material facts had he been present, there was no error.by the court in refusing to grant appellant’s motion for a new trial based upon such assignment.

The judgment is affirmed.


author: DUNKLIN, J.

text:
    SMILEY et al. v. CITY OF GRAHAM et al.
    No. 12401.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1930.
    Rehearing Denied Feb. 7, 1931.
    Fred T. Arnold, of Graham, and Davidson, Doss & McMahon, of Abilene, for appellants.
    S. A. Penix, of Graham, for appellees.
   DUNKLIN, J.

W. M. Smiley and wife and Jason Mayes and wife, plaintiffs in the trial court, have appealed from a judgment denying them an injunction restraining the defendants, City of Graham and its officers, from using an alley adjoining their property for the purpose of draining through it storm waters from the surrounding vicinity, and also denying the issuance of a mandatory writ requiring the city to restore the alley to its condition existing prior to certain work already done by the city for the purpose noted.

The case was tried on its merits without a jury, and the trial judge filed findings of fact and conclusions of law, which are as follows:

“I. Plaintiffs, W. M. Smiley and wife, Jessie L. Smiley, and Jason Mayes and wife, Annie P. Mayes, presented their petition in this cause to me on the 26th day of February, 1930, seeking to restrain the defendants, The City of Graham, A. B. Eddleman, Mayor thereof, C. B. Hockaday, A. A. Morrison, T. 0. Calvin and R. M. Williams, Aldermen of said City of Graham, and J. P. Tackett, City Engineer of said City, by injunction, from excavating a certain alley running east and west across Block No. 46 of the February 1907 Addition to the City of Graham, Texas, hearing on which petition was set down for March 13th, 1930, by me and due notice of which hearing on said petition was given the defendants. The hearing on said application or petition for injunction by plaintiffs was heard by the court on the 13th and 14th days of March, A. D. 1930, and the injunction prayed for in plaintiffs’ petition was denied and refused by the court after having heard the pleadings and evidence on trial of said cause.
“2. I find from the evidence that plaintiffs, W. M. Smiley, and wife, Jessie L. Smiley, owned Lot 9 in said Block No. 46 of February 1907 Addition to the City of Graham, Texas, and that plaintiffs, Jason Mayes and wife, Annie P. Mayes, owned lots numbers 22, 23, 24, 25 and the north half of lot 26 in said block No. 46, at the time said petition was presented to me and at the time of the trial hereof.
“3. I find that the alley running east, and west across said block 46 about the center thereof is a public alley, dedicated to the use of the public as such, and that the said defendant, The City of Graham, was at the time said petition was presented to me, grading and excavating said alley so as to drain the surface waters accumulating in the vicinity of said block No. 46 and east of said block 46, but that the said defendant had practically completed the excavating of said alley at the time it was served with notice of said hearing on said petition of the plaintiffs and upon the service of notice of the filing of plaintiffs said petition and the setting of a hearing thereof by the court, said defendant ceased work on said alley pending the hearing thereof,
“4. I find from the evidence that the defendant, City of Graham, intended to fix and improve the said alley in controversy, extending east and west across center of said block No. 46, so that it could be used by the abutting property owners as well as the public and in fact so as it would be in better condition for use in wet weather than before it was excavated as complained of by the plaintiffs and that such improvement was in progress when the defendants herein were served with notice of the filing of plaintiffs said petition and the hearing thereon set down by the court.
“5. I further find that the excavating of said alley as was done by the defendant, The City of Graham, was necessary in order to drain the vicinity on and around said block No. 46 of the accumulating water which stood in pools thereon and damaged the property of others who owned property in said block 46 and greatly menaced the health of those residing near same, and that the said defendant, The City of Graham,' was striving to improve the conditions existing in the vicinity of said block No. 46 by properly draining same and endeavoring to drain the surface waters accumulating and flowing over and across said property.
“6. I find that the plaintiffs have not been deprived of the use of said alley by reason of the excavating of the same and that the proper use of said alley has not been impaired or destroyed through said block No. 46, but that the exbavation of work done thereon by the defendant, Oity of Graham, was in pursuance of a plan of draining and caring for the surface waters accumulating on and in the vicinity of said alley and adjoining property, and that the work done on said alley, when completed will leave said alley in good condition for use by the said property owners and the public generally.
“7. I find that the City of Graham is an incorporated town and was incorporated as a town of over 5000 population under the laws of the State of Texas and has for years been functioning as such and that the defendant,-City of Graham has for years been exercising supervision and control over the streets and alleys of said city, grading and draining same from time to time as necessary and required for the public safety and good of its citizens.
“8. That the plaintiffs have not sustained any damages whatever by reason of the alleged excavation or work done on said alley up to the present time and that they have not been deprived of the reasonable use thereof.
“Conclusions of Law.
“1. The defendant, City of Graham, had the right to do the excavating work it did do through said alley in question in order to properly drain the surface waters accumluating in the vicinity thereof under the facts and circumstances as disclosed by the evidence in this case.
“2. The plaintiffs are not entitled to the •relief sought by them under the facts and circumstances in this case.
“3. The excavation of the alley in question and work thereon as contemplated by the defendant, City of Graham, when completed, will not deprive plaintiffs of the use thereof nor interfere with the reasonable use thereof by the public.”

We believe it quite apparent from the findings of the court that plaintiffs waived their right to the injunctive relief prayed for, if any they ever had, by waiting until defendant city, at considerable expense, had practically finished the work before filing the suit; their only remedy then remaining being action at law for damages sustained, if any. Brown v. Fleming (Tex. Com. App.) 212 S. W. 483; Pope v. S. A., U. & G. Ry. Co. (Tex. Civ. App.) 20 S.W.(2d) 356; Anderson v. City of San Antonio (Tex. Civ. App.) 26 S.W.(2d) 353, and other authorities there cited.

Furthermore, the finding of the court that plaintiffs have suffered no damages and have not been deprived of the use of the alley in question as formerly enjoyed as a result of the work done by the city is a further complete bar to plaintiffs’ suit; it being a fundamental rule of equity that, as a primary predicate for relief by injunction, plaintiff must show that, as a result of the threatened act on the part of the defendant, he will not only suffer an injury, but, that he has no adequate legal remedy therefor. 14 R. C. L. p. 330, par. 32, p. 339. And it is a further rule that, in the hearing of an application for injunction, the court will consider the inconvenience and damage that will result to the defendant as well as the benefit that will accrue to the plaintiff if the writ is granted, and plaintiff will be left to an action at law for redress of his grievance if it appears that the writ will operate oppressively or contrary to the real justice of the case as against the defendant. This rule applies with special force to plaintiffs’ prayer for a mandatory writ compelling the city to restore the alley to its former condition after the city had, at considerable expense, practically completed its work in the preparation of the alley for the purpose intended. 14 R. C. L. p. 357, par. 69.

The findings of fact by the trial judge had sufficient support in the evidence, and those findings and the court’s conclusions of law based thereon are adopted as the findings and conclusions of this court, and all of appellants’ assignments of error are overruled, and the judgment of the trial court is affirmed.


author: BAUGH, J.

text:
    BLAND et al. v. CITY OF TAYLOR et al.
    No. 7551.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Allen & Wofford, of Taylor, for appellants.
    Solon I. Reinhardt and Harris A. Melásky' both of Taylor, for appellees.
   BAUGH, J.

Appellants, taxpayers of the city of Taylor, sought to enjoin the city, its city commissioners, tax assessor and collector, and city manager from levying and collecting a tax authorized hy the city charter and ordinances of said city, on the grounds that such levy was in violation of the laws and the constitution of the state. The trial court refused the injunction; hence this appeal. The following facts appear: ■

Taylor is a city of more than 5,000 inhabitants, operating under the Home-Rule Amendment to the Constitution. On January 8, 1929, it adopted by a majority vote of its electors, among others, an amendment to its charter as follows:

“The City Commission shall annually appropriate moneys from the general fund of the City to the aggregate amount of not more than Two (2) mills on each One Dollar valuation of the taxable property within the City in any one year for the following purposes:

“1. The establishment and maintenance.of a Board of City Development, Chamber of Commerce or other similar organization under whatsoever name, devoted to the growth, advertisement, development, improvement and increase of the taxable values of said city.
“The Board of City Development or other similar organization herein provided for shall consist of not less than fifteen (15) members to be appointed by the Chairman of the Board of Commissioners with the advice and consent of the City Commission, who shall hold office for two years from the date their appointment is confirmed by the City Commission and until their successors are appointed and confirmed. -Provided, however, the first board appointed by the City Commission shall be the Board of Directors of the present Chamber of Commerce of the City of Taylor, who are in office at the time the City Commission makes such appointment under this provision, seven of whom shall be apointed for one year and eight for two years, and thereafter the City Commission shall appoint seven one year and eight the next to serve for a term of two years; and they shall be appointed from a list of persons, equal to twice the number to be selected, nominated by then existing Board of City Development or other similar organization.
“The amount of money so appropriated each year by the City Commission shall be paid to the Board of City Development in twelve equal monthly installments.”

Pursuant thereto, on February 15, 1929, an ordinance was duly passed providing: • “That there is hereby created and established the Board of City Development of the City of Taylor, Texas, whose duties and purposes shall be devoted to the growth, advertisement, development, improvement and increase of the taxable values of said city.”, This ordinance also contained substantially the provisions of the charter amendment above set out, and provided that the members of said board were to serve without pay, were authorized to employ a secretary and assistants, and were to meet and function as they chose, but not in conflict with the city charter or ordinances. It further provided that the city commission should appropriate annually out of the general funds of the city ■not more than 20 cents on the $100 property valuation for the maintenance and support of such board. of city development, payable monthly, and required the secretary of said board to file quarterly with the city secretary an itemized account of its expenditures.

We find nothing in the statutes prohibiting the city from creating such board, if in doing so it was “exercising the powers incident to the enjoyment of local self government.” While article 1175, R. S., details certain powers that may be exercised by a home-rule city, article 1176 provides that such enumeration shall not be considered as pre-clusive of other powers not so enumerated. The effect of the Home-Rule Amendment (art. 11, § 5) to the Constitution is to grant to home-rule cities full powers to do by city charters and ordinances, so long as same are not in violation of the Constitution or general laws of the state, all things which the Legislature could theretofore have granted to them. That is, when the validity of a charter provision or ordinance of a home-rule city is called in question, the inquiry is not whether there is express or implied legislative authorization for same, but whether such power of the city to so act is inhibited by the Constitution. Article 1176, R. S.; LeGois v. State, 80 Tex. Cr. R. 356, 190 S. W. 724, 725; City of Wichita Falls v. Continental Oil Co., 117 Tex. 256, 1 S.W.(2d) 596; City of Denton v. Denton Ice Co. (Tex. Com. App.) 27 S.W.(2d) 119, 120, 68 A. L. R. 866. And in this connection it may also be noted that the Forty-First Legislature at its regular session (page 324, c. 149, § 1 [Vernon’s Ann. Civ. St. art. 1174a1), subsequent to the adoption by ap-pellee of its charter amendment, validated all charter amendments theretofore adopted by home-rule cities.

The provisions of the Constitution which appellants assert are violated are: Article 3, § 52; article 8, § 3; and article 11, § 3. By article 3, § 52, the Legislature is prohibited from granting to any city, etc., power to lend its credit or grant money or thing of value to any individual, association, or corporation whatever. Article 11, § 3, prohibits any county, city, or municipality from making any appropriation or donation or in any wise loaning its credit to any private corporation or association.

These provisions clearly contemplate and prohibit, we think, benefits at public expense attempted in behalf of individuals, corporations, or associations, as such, acting independently and conducting some enterprise of their own, such as are usually conducted for profit and commercial in their nature. In the instant case no aid was attempted to the chamber of commerce, acting as an independent association. The city undertook to, and did, create said board of city development with defined duties, not. to aid any association, but as a part of its municipal functions. Obviously, we think, there was no violation of article 3, § 52, nor of article 11, § 3, of the Constitution. ■

If in fact said city had authority under the Constitution and laws of the state to do the things authorized by its charter, it is wholly immaterial whether such board of city development supplanted a private association theretofore maintained by private subscription. The remaining inquiry is whether the city charter and ordinance contravenes article 8, § 3, of the Constitution.

That article provides that: “Taxes shall be levied and collected by general laws and for public purposes only.” The issue presented, therefore, is whether “the growth, advertisement, development, improvement and increase of the taxable values of said city” are public purposes within -the purview of the Constitution.

What constitutes a public purpose or use as contradistinguished from a private purpose for which public funds may be applied has been repeatedly before the courts of practically every state in the Union and the Supreme Court of the United States. But no court has undertaken to lay down with minute detail an inexorable rule that would distinguish the one from the other. Obviously no such rule could be laid down. What was once a public purpose may now be obsolete through progress and changing economic, social, and political conditions. What was but a private purpose even a generation ago has often through modern inventions and the complexities of community life become now essentially a public use and necessity. Consequently the modern trend of decision is to expand and liberally construe the term “public use” in considering state and municipal activities sought to be brought within its meaning. 19 R. C. L. 722.

The recognized rule in this state is that, before a legislative act (and the charter amendment in question, under ¡the home-rule amendment and the authorities above cited is entitled to the same consideration as if it were an act of the Legislature) can be stricken down by the courts as repugnant to the Constitution, it should clearly appear that such act is inhibited by express and specific provisions of the Constitution, or by fair implication. Harris County v. Stewart, 91 Tex. 143, 41 S. W. 650; Brown v. Galveston, 97 Tex. 1, 75 S. W. 488, 492; City of Amarillo v. Tutor (Tex. Com. App.) 267 S. W. 697.

The determination of what constitutes a public purpose is primarily a legislative function, subject to review by the courts when abused, and their determination of that matter should not be reversed, “except in instances where the legislative determination of the question is palpably and manifestly arbitrary and incorrect.” Neal v. Boog-Scott (Tex. Civ. App.) 247 S. W. 689, 691; Walker v. City of Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24; Brodhead v. City of Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; State v. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 515, 68 Am. St. Rep. 629. And if there be any doubt as to whether the purpose questioned be a public use, the legislative determination thereof should control. Brown v. Galveston, supra; Amarillo v. Tutor, supra; State v. Cornell, supra; Norman v. Ky. Board of Mgrs., 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556.

In the instant case no act of said board of city development is complained of. The sole question is whether the Constitution authorizes said city to exercise the powers given in the language of the charter amendment, duly adopted by a vote of its people. The language used clearly negatives, we think, subservience to any private purpose. Its clear import is that the powers of the board, defined only in general terms, were to be exercised in behalf of the public. Nor would it serve any useful purpose here to discuss the various state and municipal activities which the courts have sustained as public uses for which a tax might be levied. They embrace health, education, amusement, recreation, advertising by a city of its attractions and assets. It has been often held that appropriations by a state or a subdivision thereof for exhibitions at distant centennials or exhibits, for the purpose of advertising same and of encouraging immigration to, and the growth and development of, such state or municipality, constituted a public purpose. In Jones v. Portland, 245 U. S. 217, 38 S. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660, the Supreme Court sustained the act of the municipality in establishing a municipal fuel yard for the purpose of selling fuel to the public — a business ordinarily private in character. See, also, 44 C. J. 1271. In City of Denton v. Denton Home Ice Co:, 27 S.W.(2d) 119, 120, 68 A. L. R. 866, the Supreme Court held that the city could own and operate a municipal ice plant.

From these and other instances which could be multiplied indefinitely, it is apparent that such terms as public purpose, public use, and public necessity used in Constitutions, statutes, and city charters, are being interpreted liberally in the light of new and changing conditions and of modern economic and social progress. While some language used in Waples v. Marrast, 108 Tex. 5, 184 S. W. 180, 183, L. R. A. 1917A, 253, and in City of Tyler v. Texas Emp. Ins. Ass’n (Tex. Com. App.) 294 S. W. 195, might indicate that public funds could be used only for the support of strictly “governmental” agencies of the state or city, this cannot be confined in case of a municipality to the support of strictly “governmental” purposes. It is now well recognized that many of the activities of a city are “proprietary” in nature rather than “governmental.” Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.(2d) 353; Denton v. Denton Ice Co., supra. And the public interest and public purpose is equally served in the support and maintenance of both kinds of these activities. Nor are we concerned with the wisdom of the city’s action in so amending its charter and supporting such board out of its tax money. That is a matter left entirely to said city, its officers and electorate. The only matter which concerns us is its power under the Constitution to do so.

We are of the opinion that said charter amendment is not repugnant to the Constitution of the state.

Nor are we concerned' with the manner of the selection of membership of said board of city development. No contention is made that the manner prescribed for their selection was unconstitutional or illegal. On the contrary, both the charter and the ordinance expressly prescribed the mode of selection. Article 1175, R. S., enumerating in particular certain powers that may be exercised by a home-rule city, provides in the first section thereof that one of such powers of the city should be “the creation of offices, the manner and mode of selecting officers and prescribing their qualifications, duties, compensation and tenure of office.” We find nothing in the ordinance adopted which contravenes this or any other statute in so far as the selection of the membership of said board is concerned.

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

Affirmed.


text:
    TEXAS PUBLIC SERVICE CO. v. ARMSTRONG et al.
    No. 7565.
    Court of Civil Appeals of Texas. Austin.
    March 11, 1931.
    Rehearing Denied April 1, 1931.

      Maynard & Maynard, of Bastrop, and Terrell, Davis, McMillan & Hall, of San Antonio, for appellant.
    S. L. Staples, of Austin, Merton L. Harris, of Smithville, and James A. King, of Austin, for appellees.
   BAUGH, J.

Suit against appellant by the mother and the son of John Deary for negligently causing -the latter’s death at Smithville on April 28, 1929. From a judgment upon special issue findings of a jury in favor of plaintiffs, the defendant appeals. The following facts appear:

Appellant owned and operated the electric light plant in the town of Smithville. From a pole in the alley back of Stephen Bell’s place light wires were strung to a negro church 119 feet away. At appellant’s pole in the alley these wires were 15½ feet from the ground. They entered the church 13 feet from the ground. Between these points the wires extended through a treetop and across the roof of Stephen Bell’s garage, the top of which was 12 feet from the ground. The roof of the garage was covered with corrugated galvanized iron, which on the inside of his yard (the garage abutted upon the alley on the outside) extended down over an adjoining side room or washroom to within 5 feet of the ground. The light wires had sagged and rested upon the galvanized roof, and had, according to some testimony, so rested for as much as a year. The insulation of the wires on the roof and where they passed through -the tree had worn off. On the afternoon of April 28th a rain had fallen. About 8 o’clock, John Deary, who lived across the alley from Bell, discovered that the roof of Bell’s garage was on fire. He went to Bell’s home and notified him. Bell requested Deary to help him extinguish the fire, drew a bucket of water, which Deary took to the roof of the side room where same extended down to within 5 feet of the ground, and attempted to climb upon it to extinguish the fire. The roof was so heavily charged with electricity that when he placed his hands upon it he was immediately killed.

The foregoing is amply sufficient to sustain the finding of negligence against the appellant. Appellant here insists, however, that its negligence was not the proximate cause of the death of John Deary, but that remote and independent intervening causes, not fore- - seeable by it, brought Deary to his death. These causes so urged were, to copy from its brief: “(a) His coming on the property on which he -had no personal business, in which he had no interest; (b) undertaking to put out the fire thereon, for which work he was under no obligation; (c) attempting to climb on the roof of a building in a place and in a manner at which no provision' therefor had been made, and (d) the presence of the wet ground, wet shed, etc., resulting from the rain which occurred during that -ddy; without which the death would, according to the undisputed testimony of Blum, not have resulted.”

Appellant relies upon, and insists that same are controlling here, particularly the cases of Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, and Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, followed and cited in numerous other cases, especially Trinity & B. V. Ry. Co. v. Blackshear, 106 Tex. 515, 172 S. W. 544, L. R. A. 1915D, 278; Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 267, 219 S. W. 197; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 27 A. L. R. 927; Magnolia Pet. Co. v. Cocke (Tex. Civ. App.) 3 S.W.(2d) 139; and City of Vernon v. Lisman (Tex. Com. App.) 17 S.W.(2d) 769. The foregoing cases constitute no departure from the well-established general rules with reference to negligence as a proximate cause of injury. The ever present difficulty is in the applicability of these rules to the varied facts arising, or in applying given facts to the rules announced. The general rule as to proximate cause is that, in order to hold one responsible for injuries resulting from his negligence, the injuries must be such that they ought reasonably to have been foreseen in the light ' of the surrounding circumstances; that is, that a reasonably prudent man in the exercise of ordinary care, and in the light of all the facts, would have anticipated the same or some similar result. It was not essential that appellant should have foreseen the precise injury to any particular individual; but merely that some like injury might and probably would result to some one lawfully on the premises.

Nor can the fact that a rain had fallen that afternoon, causing the shed and ground to become wet, thus increasing the quantity and danger of the escaping electrical currents,'discharged through appellant’s negligence from its uninsulated wires resting upon a sheet iron roof, excuse the appellant, or be classed as any independent or intervening cause of Deary’s death. The immediate cause of his death was the escaping current of electricity. Whether that current had 'through constant contact of the wires with the roof so stored up electricity therein as to inflict the injury, or whether the sheet iron merely acted as a conductor of the current directly from the wires to the deceased, is immaterial. The standard of care required is not that of the uninformed public as to the dangers of electricity; but that of those who are familiar with and undertake to distribute this dangerous and mysterious force. The prudence required of those distributing dangerous articles to the public must be proportionate to and commensurate with the dangers involved. San Antonio Gas & Elec. Co. v. Ocon, 105 Tex. 139, 146 S. W. 162, 39 L. R. A. (N. S.) 1046; Dunlap v. Oak Cliff Pharmacy Co. (Tex. Civ. App.) 288 S. W. 236; Snyder Ice, Light & Power Co. v. Bowron (Tex. Civ. App.) 156 S. W. 550, 20 C. J. 341. Appellant was therefore charged with knowledge that rains would add to and intensify the dangerous condition existing, and that in the natural order of things, rains would probably, if not inevitably, fall at any' time. The rain therefore was not an independent cause; but merely an additional contributing cause to a continuing danger already existent, and one which appellant should reasonably have anticipated. In any event, had the rainfall, and the concomitant increased danger resulting therefrom, not been such an occurrence as should have been reasonably anticipated by appellant (which we do not concede), “the intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately co-operates with the independent cause' in the resulting injury.” Texas P. & L. Co. v. Culwell (Tex. Com. App.) 34 S.W.(2d) 820, 821.

The instant case is clearly distinguishable from the Seale Case and Bigkam Case, supra, and cases following them. In those cases the primary acts of negligence complained of were complete in themselves and not actively continuing when the injuries occurred. In the instant case the current of electricity, negligently released by appellant, was a continuing active hazard, and the concurrent, if not the primary, cause of the death of Deary. In the Seale Case the engine, negligently equipped, had emitted the sparks which started the fire, and had passed on. The injury received was not caused by the sparks nor by the engine, but by independent and unforeseeable circumstances arising when the daughter undertook to extinguish the fire. If the sparks from the engine had themselves injured .the girl, the railway company could not have excused itself on the ground that the wind was blowing, and but for that fact the sparks would not have reached her. So in the instant case, if the electric current had been cut off after the garage was ignited by it, and the deceased had, in his efforts to extinguish the fire, lost his balance, been blown from the roof by the wind, or had slipped and fallen therefrom because of the wet condition, such would, of course, have been an independent intervening cause of his injury which appellant could not reasonably have anticipated, and an analogous case to those cited. But in the instant case the negligence was active, primary, and continuing, and the same dangerous force which set the garage on fire also actively and immediately killed the deceased.

The only other contention is that the deceased was only a licensee on the premises of Bell, that appellant owed him no duty except to refrain from willfully injuring him, and that not having so injured him it was not liable in damages for his death. Such rule does apply to trespassers or to licensees who are at the time engaged upon some mission of their own. City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843; Burnett v. Ft. Worth Light Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504; Kruse v. H. & T. C. Ry. Co. (Tex. Civ. App.) 253 S. W. 623; 45 C. J. 796. Exceptions to this rule, however, some time occur where the injured party is merely a technical trespasser, or where the dangerous instrumentality is such as to invite or attract children. The trend of more recent decisions, however, is to less rigidly apply this rule, and in many states it is not followed. See Humphrey v. Gas Co., 100 Vt. 414, 139 A. 440, 56 A. L. R. 1011, and extensive annotations thereunder. But, where the party injured was rightfully on thb premises at the time of his injury, either as employee of the owner or under his express or implied invitation, he is neither a trespasser, nor a bare licensee, and the general law of negligence applies.

Whatever may have been deceased’s status when he voluntarily went upon the premises of Bell to inform him that his garage was on fire, at the time he met his death he was there rightfully at the express invitation and request of Bell to assist him in the protection of his property and to extinguish the fire. The evidence in that respect was not controverted. He was not there for his own convenience nor on business with others than the owner of the premises. His services were enlisted by .Bell for the preservation of Bell’s property; and the extinguishment of the fire would probably have resulted also to the benefit of appellant’s property, whose light wires were in the immediate path of the flames, and its light pole in the alley nearby. Under these circumstances the deceased clearly was not a trespasser nor a bare licensee. Houston E. & W. T. Ry. Co. v. Jones (Tex. Civ. App.) 1 S.W.(2d) 743; Kruse v. Ry. Co. (Tex. Civ. App.) 253 S. W. 623, 625; McCoy v. T. P. & L. Co. (Tex. Com. App.) 239 S. W. 1105, 1108; Bustillos v. S. W. Portland Cement Co. (Tex. Com. App.) 211 S. W. 929, 931; Humphrey v. Gas Co., supra, and notes thereunder, 58 A. L. R. 1021 et seq.; 20 C. J. 353, 354.

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

Affirmed.


text:
    SHELL PIPE LINE CORPORATION v. SVRCEK.
    No. 7567.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1931.
    Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., Maynard & Maynard, of Bastrop, and S. M. Watson, of St. Louis, Mo., for appellant.
    Robert E. Moss, of La Grange, and Page & Powell, of Bastrop, for appellee.
   BLAIR, J.

For the sum of $13.75, the appellant, Shell Pipe Line Corporation, secured a right of way across appellee’s 275-acre tract of land on which to construct its pipe line and telephone line, with the additional stipulation that appellant should pay all damages which might arise to crops, timbers,' etc., in the exercise of the grant. In constructing the pipe and telephone lines, appellant’s agents cut down 26 pecan trees, and appellee instituted this suit for damages, alleging, in substance, that the trees destroyed were a part of a valuable pecan orchard; that he realized a considerable sum of money annually from the trees, and would have continued to so realize money for an indefinite period of time had the trees not been destroyed by appellant;" that, by reason of the destruction of the 26 pecan trees, appel-lee was deprived of their value and the value of the pecans he annually gathered therefrom, to his damage in the sum of $2,650; that the market value of the trees was $2,650; that their intrinsic value was $2,650; and that the difference in the market value of the land immediately before and after the destruction of the 26 pecan trees was $2,650.

Two special issues were submitted to the jury, which with the jury’s answers thereto read as follows:

“1. Did the defendant cut down any pecan trees of plaintiff’s on the land described in plaintiff’s petition? Answer ‘Yes’ or ‘No’ as you may find.” Answer: “Yes.”
“2. If you have answered special issue No. 1 ‘yes,’ then state in terms of dollars and cents what sum of money will fairly and .justly compensate plaintiff for the pecuniary damages, if any, suffered by him by reason of his having been deprived of such pecan trees for the uses intended for them by him.” Answer: “$1,300.00.”

Judgment was accordingly rendered for ap-pellee for $1,300 against appellant; hence this appeal.

By propositions 1 and 2, appellant complains that the court erred in permitting ap-pellee to testify as to what an agent of appellant told him with respect to the amount or nature of the right of way taken, because the contract spoke for itself in that regard. No issue to which this testimony related was submitted to the jury, -nor was this testimony considered by the court for any purpose. It was therefore harmless if erroneously admitted.

By proposition 3, appellant complains that- the court erred in permitting appellee to testify ovér objection that he gathered from 1,200 to 3,000 pounds of pecans from the whole orchard, which included the 26 trees destroyed, because the productivity of the whole orchard was not an issue in the case. The testimony was properly admitted under appel-lee’s pleadings as showing the bearing qualities of the trees destroyed, and as showing their productivity and that they were at least valuable. It is true that this testimony may not have established the amount or actual value of the trees-destroyed, but it was clearly admissible as a circumstance tending to show their value under the established rule that circumstantial evidence which throws light, however feeble, upon the issue sought to be proved, is admissible as an aid to the jury in reaching a satisfactory conclusion of the issue. The following authorities cited by appellee sustain our above conclusion: Pounds v. Minter (Tex. Com. App.) 13 S.W.(2d) 351; Dudley v. Strain (Tex. Civ. App.) 130 S. W. 778; Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S. W. 100, 101; Erie City Iron Works v. Noble, 58 Tex. Civ. App. 245, 124 S. W. 172; Tuttle v. Moody, 100 Tex. 240, 97 S. W. 1037; Panhandle Grain & Elevator Co. v. Dowlin (Tex. Civ. App.) 247 S. W. 873; Lone Star Canal Co. v. Broussard (Tex. Civ. App.) 176 S. W. 649.

By proposition 4, appellant complains that the court erred in admitting in evidence the testimony of William Keller to the effect that 18 nonbearing pecan trees of the 26 cut down ought to bear^pecans within 5, 6, 7, or 8 years, as being a conclusion of the witness. The witness qualified as an expert with respect to age of productivity of pecan trees, and his testimony was admissible. The fact that he testified that he did not know the size to which the trees ought to grow in the future years did not disqualify him as an expert, but rather related to his credibility, which was a matter for the.jury. Nor do we sustain the further objection to this testimony on the ground that it failed to throw any light upon the value of the trees at the time they were destroyed, but rather tended to show their probable future value which was not an issue in the case. This contention is contrary to the rule announced in the cases of Dudley v. Strain (Tex. Civ. App.) 130 S. W. 778, and Stephenville Ry. Co. v. Baker (Tex. Civ. App.) 203 S. W. 385. The following from appellee’s brief states our conclusions on this question: “The pecan trees had no market value. They were incapable of being bought and sold as standing trees; they were without value as orchard trees when cut down. They were not a one year crop. Their duration was indefinite; ordinarily, they would not reach the peak of their production until they were fifty years old. The destruction of plaintiff’s trees deprived him of the probable profits to be derived from them in the future. Accordingly, plaintiff’s damages were not to be computed alone upon the probable profits to be derived from his trees during the year in which they were destroyed. In order to arrive at the actual damages suffered by plaintiff it was essential that the future .value of the trees should be considered. As was said by Judge ■ Key in Stephenville N. & S. T. Ry. Co. v. Baker, supra, ‘The only inflexible rule as to the measure of actual damages is the rule of compensation,’ and 'general rules laid down for particular classes of cases may and should be modified whenever it becomes necessary to do so, in order to afford fair and just compensation.’ Plaintiff could not be fairly and justly compensated for the loss of his trees unless their future value was considered.”

By proposition 5, appellant complains that the court erred in admitting the testimony of witness John Barton, Sr., to the effect that, after he had measured the stumps of the 26 trees which were cut down, and testified to their respective ages, he then estimated that the 26 trees would reasonably produce a thousand pounds of pecans per year, ■as not being predicated upon sufficient knowledge of witness of the trees in question to give an opinion as to their productivity. We do not sustain the contention. The witness was an expert on pecan culture. He had an orchard of between 800 and 1,000 bearing pecan trees, and had made a specialty of the study of pecan culture, and had been engaged in the pecan business for about 25 years. 1-Ie examined the stumps of the 26 pecan trees in question, from which he determined their ages. He found that they #ere evenly distributed over the area so as not to interfere with each other. He examined the soil, and found it suitable and rather excellent for the production of pecans, and saw the other trees in the immediate vicinity of the 26 trees in controversy. Basing his opinion upon these facts and “from my (witness) experience as a pecan culturist and the fact that. I have 1,000 pecan trees of my own,” witness testified that the 26 trees would reasonably produce 1,000 pounds of pecans per year at the time they were cut down. This testimony was clearly, admissible under the rule announced by the following authorities: Ft. Worth & D. C. Ry. Co. v. Firestone (Tex. Civ. App.) 173 S. W. 919; Southwestern Portland Cement Co. v. Kezer (Tex. Civ. App.) 174 S. W. 661; Ft. Worth & D. C. Ry. v. Amason (Tex. Civ. App.) 239 S. W. 359; Chicago, R. I. & G. Ry. v. Longbottom (Tex. Civ. App.) 80 S. W. 542.

Proposition 6 reads as follows: “The proper measure of damages in a suit in contract for damages for the destruction of property is the market value of the property destroyed, if it had a market value, and the damage alleged in such a suit cannot be measured by any other measure, unless it is first proven that said property had no market value.”

The contention is not sustained. It is true that no witness specifically testified that the 26 pecan trees had no market value, but the case was tried entirely upon the theory that they had no value when considered separate- and apart from the land. It is also a self-evident fact that growing orchard pecan trees have no market value separate and apart from the land, other than for wood or furniture, or for transplanting purposes. The evidence shows that appellee never used or intended to use the 26 trees destroyed by appellant for any purpose except as growing pecan producing trees. From these facts and circumstances the pecan trees had no market value, and the cause was properly submitted to the jury as to their intrinsic value; that is, the value of the trees for the use intended for them by appellee. H. & T. C. R. R. v. Tisdale (Tex. Civ. App.) 109 S. W. 413; M., K. & T. R. R. v. Crews, 54 Tex. Civ. App. 548, 120 S. W. 1110; G., C. & S. F. R. R. v. Matthews, 3 Tex. Civ. App. 493, 23 S. W. 90; S. A. & A. P. R. R. v. Stone (Tex. Civ. App.) 60 S.W. 461; G., H. & S. A. R. R. v. Brune (Tex. Civ. App.) 181 S. W. 547; S. A., U. & G. R. Co. v. Ernst (Tex. Civ. App.) 210 S. W. 603; G., H. & S. A. R. R. v. Harris (Tex. Civ. App.) 216 S. W. 430; Bellamy v. Haag (Tex. Civ. App.) 20 S.W.(2d) 847; Stephenville R. Co. v. Baker (Tex. Civ. App.) 203 S. W. 385; Pickering Lumber Co. v. Childress (Tex. Civ. App.) 206 S. W. 573; Ft. Worth & D. C. Ry. v. Amason (Tex. Civ. App.) 239 S. W. 359.

We are also of the opinion in this connection that special issue No. 2 correctly instructed the jury as to the measure of damages under the pleadings and evidence adduced; that is, the sum in dollars and cents which would “fairly and justly compensate plaintiff for the pecuniary damages * ⅜ ⅜ suffered * ⅜ * by reason of being deprived of such pecan trees for the uses intended for them by him.” The only use of the .trees intended by appellee under the undisputed testimony was to gather and sell the annual pecan crop.

We also overrule appellant’s seventh and remaining proposition that the court erred in refusing to instruct a verdict for it on the insufficiency of the evidence as to damages. The 26 trees were destroyed by appellant. They were bearing pecan trees. He had gathered and sold pecans from them, which were worth from 10 to 18 cents per pound.' Two of the trees cut down had been grafted. The land was particularly adapted to the growth of pecans. The productivity of the pecan trees would continue for many years. The 26 .trees were estimated by a pecan culturist to produce 1,000 pounds per year, and that they would reach their peak of production at about 50 years of age. This evidence fully sustains the judgment for $1,-300.

The judgment of the trial court will be affirmed.

Affirmed.