author: COBBS, J.

text:
    TSESMELIS v. SINTON STATE BANK et al.
    No. 8519.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1931.
    Rehearing Denied Feb. 11, 1931.
    Lloyd & Lloyd, of Alice, and W. B. Moss, of Sinton, for appellant.
    J. G. Cook, of Sinton, for appellees.
   COBBS, J.

Appellee Sinton State Bank, a private corporation, sued appellant upon a promissory-note for $725, dated Aug. 15,1929, bearing interest from date at tlie rate of 10 per cent, per annum, due and payable ninety days after date, stipulating for the payment of 10 per cent, as attorneys’ fees, in the event said note is not paid at maturity and placed in the hands of an attorney or suit is brought on the same.

Suit was instituted on January 7,1930, and on the same day the bank filed an affidavit and bond for attachment, and the writ of attachment issued was levied upon a lot in Sin-ton, Tex., upon which is located a two-story brick building, and a farm near Sinton containing 127 acres.

Appellant filed a plea in abatement alleging that the suit was prematurely brought, because the payment of the note had been extended and the bank was not in a position to enforce payment of the note.

Subject to his plea in abatement, appellant filed a motion to quash the attachment and therein pleaded that the note, although alleged by the bank to be due, had been extended, that the affidavit for attachment was false, and that no ground for the attachment existed.

Subject also to the plea in abatement, appellant filed an answer and cross-action for damages, actual and exemplary, based upon the wrongful levy of .the attachment, and for the wrongful publication of the affidavit for attachment alleged to be libelous, against the bank, and made appellees J. F. Odem and Fred Johnson, sureties on the attachment bond, parties defendant.

All pleas in abatement were passed upon by the court and were overruled.

The case was tried with a jury and judgment entered in favor of appellee.

There is no denial of the note, but the defense is based upon the fact that a valid agreement was made for the extension of the •note, that the suit was prematurely brought, a wrongful attachment sued out and levied upon appellant’s property.

The alleged agreement for extension was contained in'a letter of appellee to appellant, which is, in part, as follows:

“With reference to your note of $725, since you state that you are unable to obtain credit we will expect a payment of $100 at once and a similar amount thirty and sixty and ninety days.
“We do not care to extend the old note, but will hold the time of payment in abeyance as above stated.”

Appellant testified that: “A day or two after I got this letter I wrote the' bank and told them I would pay the first $100 January 1, 1930.”

On cross-examination appellant stated:

“This note was due in November and I didn’t pay it when it was due, but paid the interest on it and asked for an extension, and he told me that I was doing business with another bank and he couldn’t give me an extension, and I told him to give me a few days to get the money, and he said he would. Later he did give me more time to pay the note. I was to pay Mr. Odem $100 on this note at that time, $100 in thirty days, $100 in sixty days, $100 in ninety days — and it was my understanding that the balance due on the note would be due at the end of ninety days — that’s the understanding that we had.”

There was no understanding or definite agreement as to the final payment of the balance of the note, and as to that, evidently, the minds of the parties did not meet.

The alleged oral agreement as to payment and extension of the note seems' unsatisfactory ; $100 was to be paid at the time the letter was received, but it was nót done, and the $100 payments were not made in thirty, sixty, and ninety days, and there was no tender of the money until the time the note was turned over to appellee’s attorney for collection, when appellant offered his check for $100, with no promise or arrangement to pay the balance.

The agreement in respect to the extension of the note seems too general and is unenforceable.

An agreement for an extension must be for a definite time as to the whole obligation and not be left, any part thereof, to surmise and conjecture. It must mutually bind both parties; the creditor to forbear the collection of the whole debt for the stated time, and the debtor to continue to pay interest to such time. If by the terms of the agreement it should only bind the creditor to forbear, and allow the debtor to discharge the entire debt at any time and thereby stop the running of interest, the agreement is without consideration.

The alleged agreement shows no more than that the Bank expected a payment of $100 on the note at once, and a similar amount in thirty, sixty, and ninety days; and the letter expressly stated that, “We do not care to extend the old note.”

We do not regard that appellant’s check for $100 which appellee refused and returned amounted to any tender whatever. Besides; it was made after the institution of the suit.

If all the amounts named for the extension had been promptly paid, they would have aggregated $400, thus leaving approximately $325 still due and unpaid on the note, the payment of which had not been provided for. This court in the case of International Shoe Co. v. Kaufman, 270 S. W. 1109, 1110, after citing many authorities, including the Supreme Court cases of Austin Abstract Co. v. Rahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, and Wilkins v. Carter, 84 Tex. 438, 19 S. W. 997, held that an “extension for the time of payment must be for a definite duration or period of time, to become binding.”

See Dickson v. Kilgore State Bank, 257 S. W. 867, in which the-Commission of appeals held that:

“An agreement to extend the time of the payment of an overdue indebtedness to a time stated, but which permits the debtor to pay the obligation at any time within the extension period and so stop interest, is invalid for want of consideration.”

The rule is stated in another way in the case of Ellerd v. Ferguson (Tex. Civ. App.) 218 S. W. 605, where the court held:

“The burden of proof is on the defendant to prove a consideration for an extension. * ⅜ *
“If there be no outside consideration, a mutual agreement for an extension, in order to be valid, must bind each party, — the creditor to forbear collection of his debt for the stated time, and the debtor to continue to pay interest to such time; if, by the terms of such agreement,' it would bind only the creditor to forbear, but allow the debtor to discharge the debt at any time, and stop running of interest, the agreement is without consideration.”

To the same effect is the case of Kirby v. Bank (Tex. Civ. App.) 4 S.W.(2d) 205, affirmed by the Commission of Appeals, 18 S.W.(2d) 599, 600, 63 A. L. R. 1528.

In the case of Neyland v. Lanier (Tex. Civ. App.) 273 S. W. 1022, it is held.:

“The only evidence with reference to an extension of the payment of the notes was by Elynn, who testified- that, after the notes became due, appellant agreed with him that, if he (Flynn) would pay $30 every two weeks, or every 30 days, he was not sure which, that the notes could run along without being paid in .full; and Flynn further testified that he did, under said agreement, make three payments of $30 each. Under the old law, this was not a sufficient consideration for an extension of the time of payment. At the time the alleged agreement was made, the notes were past due, and the $30 per month would not pay the interest, much less reduce the principal, and there was no definité time to which the payment of the notes was extended, and no sufficient consideration for appellant having made the agreement. A partial payment on a note already due is not a sufficient consideration to constitute an extension of time of payment.”

The bank had the right to place the past-due note in the hands of its attorney for collection and the anger of Mr. Odem can have nothing to do with the matter. That could not deprive the bank of any right it had or make the bank liable for any damages. This court is not concerned over any controversy ¡or dispute between the appellant and Odem in respect to a private controversy in respect to Odem’s private property, in which the Bank had no interest. It is a private and collateral matter.

Clearly the liens acquired by the levy were not affected by any question as to whether such writ was lawfully issued. If it be ascertained or admitted that the suit was prematurely brought, the attachment proceedings would fall. As it was held that the suit was not prematurely brought, and that there was no valid extension agreement enforceable by appellant, it follows that the bank in establishing its debt was entitled to a fofeclosure, and the falsity of the affidavit was no ground for quashing the writ and levy. The validity of a writ of attachment depends, not upon the truth of the facts stated in the affidavit, but upon the facts that are stated,' The truth of the allegations in the affidavit for the writ cannot be controverted for the purpose of abating the writ. Oscar v. Sackville (Tex. Civ. App.) 270 S. W. 897.

The suit for damages grows out of a levy upon real estate, and shows that the possession thereof was in no way disturbed. It was not shown that there was an immediate trade in contemplation, which could have been affected by the levy, and it was not shown that appellant was in any way affected or lost anything by the levy. It was of the ordinary kind, by an officer, who did not.take any possession, and there is no allegation that appellant’s possession was interfered with by reason of the levy. Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564; Hoover v. Bank (Tex. Civ. App.) 192 S. W. 1149; Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S. W. 916.

We do not think there is any fact stated that shows a right to reeovér for a libel, and the facts stated are not sufficient. It was not specifically alleged that the'affidavit was published or told to others; and the name or names of the person or persons to whom same was told or published were not specifically alleged.

The action of the court in sustaining the special exceptions was proper. Linney v. Maton, 13 Tex. 449.

The allegations in the petition and in the affidavits were privileged and cannot be made the basis of a law suit for libel. Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833.

According to his own admission, he was obligated to pay the bank $100 in cash, and a similar payment was to be made in thirty, sixty, and ninety days. Mr. Odem’s letter for the bank, shown on page 13 of appellant’s brief and page 4 of the statement of facts, was written, admittedly, December 18, 1929, after the note had become due. The bant expressly declined to extend' the note, hut simply offered appellant an indulgence; and appellant waited until along in January, 1930, before tendering his check for $100. The trial was had and judgment rendered in the latter part of March, 1930. At that time at least two monthly installments of $100 each were due and payable, according to appellant’s own testimony, yet the record fails to show that at any time, or during the trial, he offered to pay or tendered any of these partial payments.

We absolutely see no merit in this appeal but decline to assess damages therefor. Seeing no merit in appellant’s assignments and propositions, they are all overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: LOONEY, J.

license: Public Domain

text:
    MORTON SALT CO. v. WELLS et al.
    No. 10725.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1930.
    Rehearing Denied Dec. 20, 1930.

      Harry P. Lawther and Shelby Cox, both of Dallas, and Earl M. Greer, of Wills Point, for appellant.
    Jones & Jones, of Mineóla, and Crawford & Eleteher', of Grand Saline, for appellees.
   LOONEY, J.

Nora Wells, widow of Arthur Wells, brought suit as authorized by section 26, art. 16, of the Constitution, for herself and as guardian for the four minor children of herself and deceased husband, against Morton Salt Company, to recover exemplary damages for the death of the husband and father, alleged to have resulted from the gross negligence of defendant. At the time of death, deceased was an employee of defendant, a subscriber under the Workmen’s Compensation Law; his death was reported to the Industrial Accident Board,- also to the Texas Employers’ Insurance Association; plaintiffs made claim before the board against the association for compensation, under the provisions of the law, was awarded $12.46 per week for 360 weeks, and an order was entered requiring the association ‘to satisfy same, by paying $3,674.16 in a lump sum, which it did. Plaintiffs made no claim before the' board for exemplary damages, hence no ruling or order was made -with reference to that matter. The trial below resulted in judgment for plaintiffs, based on answers of the jury to special issues, for $10,000, -from which this appeal is prosecuted.

The material facts are these: Defendant collected bulk salt in a large room at its plant at Grand Saline, Tex., which was later dug out by a machine called “the digger,” transferred through a hopper to a buggy or cart, and conveyed to the drier. The digger machine was covered with metal, stood on three wheels, was operated by an electric motor, the current for such purpose being transmitted by cable of copper wires incased in rubber, about 40 feet in length, extending from the top of the building and entering the machine through an iron tubing 18 inches to 2 feet in length, the movements of the machine being directed and controlled exclusively by uninsulated metal levers. At the time Wells was killed, the machine had been in use several years, was worn, had developed considerable vibration, in damp weather would become so charged with electricity as to shock and sting on being touched. The cable had been used since 1926, its insulation in places had become worn, and several weeks prior to the accident the rubber casing at the point where it entered the machine caught fire and burned about 3 feet. The evidence justifies the conclusion that, on reasonable inspection by one possessing knowledge of electricity, the condition of the cable, its insulation, the coils of the motor, and the machine, would have been disclosed, but that such inspection was not given. The levers could have been handled with safety had they been properly insulated, or the machine could have been equipped with grass rope instead of metal levers, .and operated with safety. There was no device in use to indicate when the machine was charged, or to automatically stop its operation when in such condition, although such devices could have been installed. Wells was shocked and knocked down, while operating the digger machine, the day before being killed, and on this fact being reported, the matter was referred to a Mr. Guinn, defendant’s .employee in charge of all of the electrical problems of the plant, who took the motor out, kept it several hours, reinstalled it the same afternoon, stating at the time that it had been repaired. After the motor was reinstalled, the machine was operated by the night shift and for a short while next morning, without unusual incident, until Wells was shocked and killed while in the act of handling a lever in the operation of the machine.

In answer to special issues, the jury found defendant guilty of gross negligence proximately causing the death of Wells in several particulars, that is, (a) in maintaining in use the worn and dilapidated digger machine, (b) in maintaining the insulation on the electric wires at the point of entrance to the machine in its then condition, (c) in failing to have the levers used in operating the machine properly insulated, (d) in failing to have an automatic light bulb or fuse box attached to the wires connecting the machine to indicate when the machine was charged and to automatically cut off the current in such case. The evidence was sufficient, in our opinion, to justify these findings and we adopt them as our conclusions on these issues.

Defendant assigned error on the action of the court in overruling its plea in abatement. The contention is that the jurisdiction of the district court over the cause of action here asserted is appellate and not original; that the Industrial Accident Board has original jurisdiction of the claim, and, as plaintiffs failed to prosecute same before that tribunal, its plea in abatement should have been sustained. This contention, in our opinion, is out of harmony with the whole scheme of the Workmen’s Compensation .Daw, the purpose of which is to compensate employees, injured in the course of employment, or in case of death their beneficiaries, for the loss of wages. In accomplishing these purposes, the statute created causes of action, unknown to the common law, and abolished the common-law doctrines of “negligence,” “assumed risk,” “contributory negligence,” and “negligence of fellow servants,” on the idea-, assumed in all cases coming under tlie law, that the injury complained of resulted unavoidably from the occupation in which the Employee was at the time engaged. The law also deprived the employee of the right to sue the employer for damages resulting from negligence, and in lieu gave him or beneficiaries, as the case may be, a cause of action against the association for compensation, measured by the average weekly wages of the. injured or deceased employee, to be paid in amounts and for the length of time enumerated in'the statute and as adjudicated by the board, or a court, in case of suit to set aside the award. Under this law, all litigation that ensues, whether before the board or a court, is between the employee or beneficiary on one side and the insurance association on the other.

The cause of action here asserted had no existence at common law, nor did it originate in statutory enactment, but was created by section 26 of article 16 of the Constitution, reading as follows: “Every person, corporation or company, that may commit a homicide, through wilful act or omission, or gross neglect, shall be responsible, in exemplary damages, to- the surviving husband, widow, heirs of' his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”

The contention that the claim for exemplary damages should have been prosecuted primarily before the Industrial Accident Board is based on language of section 5 of article 8306, Rev. St., the Compensation Daw, as follows: “Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there .may be of any deceased employee whose death is occasioned by homicide from the wilful act or omission or gross negligence of any person, firm or corporation from the employer of such employee at the time of the injury causing the death of the latter. In any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or ■ finding of the Industrial Accident Board was correct. In any such suit, such award, ruling or 'finding shall neither be pleaded nor offered in evidence.”

Defendant seems to rest the contention on the language in the statute to the effect that the trial of the suit for exemplary damages shall be de novo, that no presumption shall be indulged that any ruling or finding of the Industrial Accident Board was correct, nor shall the award or ruling of the board be. pleaded or offered in evidence on the trial of such suit. The argument is that if it was not the clear intention of the statute that all claims for exemplary damages should be passed upon by the Industrial Accident Board, from whose decision there was to be an appeal to the courts, why the provision that the trial shall be de novo? and why the provision that no presumption should be indulged that an award or finding of the board was correct? >and why the provision that in any such suit the award or finding should neither be pleaded nor offered in evidence?

In legal parlance “trial de novo” means a trial anew on appeal, of the entire case, whether of law or fact, according to the usual or prescribed mode of procedure in such eases (7 Words and Phrases, Third Series, pp. 630, 632), but we do not think the language, in the connection in which it was used, was intended by the Degislature to have this meaning, because such meaning is in conflict with the scheme and purpose of the compensation law; furthermore, it was not within the power of the Degislature, if such had been attempted, to abolish the cause of action created by the Constitution in favor of the surviving husband, wife, and heirs against the party responsible for a death, and create in lieu thereof a cause of action against a party in no way responsible. The obvious purpose of the Degislature in mentioning the subject of exemplary damages at all in this connection was to forestall the possibility of a doubt as to the right of beneficiaries under the Compensation Law, who may also be entitled under the Constitution to exemplary damages, to seek recovery thereof by suit separated entirely from the proceedings before the board for compensation, that such suit should not be confused with the compensation matter, nor the trial thereof embarrassed by any award, ruling or finding' of the board on the question of compensation.

The first thing, in construing a statute, is to ascertain the object sought to be accomplished, as this furnishes the key to a correct understanding. When this is ascertained, general words will be restrained, those of narrow meaning will be expanded, and words will be modified or altered so as to obviate a meaning repugnant to or inconsistent with the dominant purpose of the statute. Mr. Sutherland, in his work on Statutory Construction, § 347, announced the doctrine as follows: “* * * Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the act. The intent is the spirit which gives life to a legislative enactment. * * * ” See also Edwards v. Morton, 92 Tex. 152, 154, 46 S. W. 792.

We are of opinion that the court committed no error'in overruling defendant’s plea in abatement.

Defendant presents for review the action of the trial court, (a) in overruling demurrers urged to plaintiffs’ petition, (b) in refusing to instruct a verdict for defendant, (c) in submitting the question, of defendant’s liability, and (4) in not granting its motion for a new trial, all based on the central' idea that actionable negligence was neither alleged nor proven, that no act or omission characterized as'gross negligence was either directed or ratified by defendant or any of its officers, that at most plaintiff’s allegations and proof simply show ordinary negligence on the part of defendant’s subordinate agents and servants, for which, under applicable rules of law, it is not liable.

Defendant cites a number of cases in support of its contention that no recovery for exemplary damages against the corporation can be had in the absence of a showing that the acts or omissions of the servant complained of were either directed or ratified by an agent or servant representing it as a corporate officer.

No useful purpose will be served by the discovery of a conflict, if perchance one exists, between the cases cited, and the doctrine approved by the Supreme Court in Chronister v. Williams, 116 Tex. 207, 288 S. W. 402, because in the latter case, after a review of authorities and a thorough consideration of the question, the Supreme Court announced the doctrine that liability of a corporation to a surviving spouse or children for exemplary damages, for homicide committed by a corporation through gross negligence, under article 16, § 26, of the Constitution, depends upon whether particular conduct of an employee complained of was within the scope of his authority, so as to be considered the act of the corporation, and that it is not necessary to show the existence of an official relation between the corporation and the servant or agent whose acts or omissions are involved.

The Chronister Case has been cited with approval in the following cases, to wit: Cicero-Smith L. Co. v. Denton (Tex. Civ. App.) 16 S.W.(2d) 932, 934; People’s Ice Co. v. Nowling (Tex. Civ. App.) 16 S.W.(2d) 976, 979; Fort Worth, etc., Co. v. Russell (Tex. Civ. App.) 28 S.W.(2d) 320, 326, 327; Tracey v. Wichita Ice Co. (Tex. Civ. App.) 30 S.W.(2d) 673, 676.

Applying the rule to the facts under consideration, we encounter no trouble in reaching the conclusion that defendant was liable for the gross negligence of its electri•cian, Mr. Guinn. Furthermore, the cumulative effect of the findings of the jury is that defendant was guilty of gross negligence in failing to discharge the nondelegable duty imposed by law upon it as master to furnish Wells, its servant, with safe, suitable appliances and instrumentalities for the work in hand. This duty was a continuing one and included that of adequate inspection, therefore defendant was liable for the negligence of one to whom the performance of such duty was entrusted. See 39 C. J. 285, § 412; Quinn v. Glenn, 103 Tex. 255, 126 , S. W. 2; Missouri, etc., Co. v. Ferch (Tex. Civ. App.) 36 S. W. 487, 489; St. Louis, etc., Co. v. Skaggs, 32 Tex. Civ. App. 363, 74 S. W. 783, 786; Coca-Cola Co. v. Williams (Tex. Com. App.) 209 S. W. 396, 397; St. Louis, etc., Co. v. Ewing (Tex. Com. App.) 222 S. W. 198; Hines v. Flinn (Tex. Civ. App.) 222 S. W. 679.

The digger machine, the electrie motor, the wires, and their proper insulation, were all under the management, control, and supervision of defendant and its servants; the accident that cost Wells his life would not have happened, in the ordinary course of things, if those charged with the duty had used proper care. Confronted with these facts, defendant essayed no explanation whatever as to the cause, that is, as to' the how or why of the machine becoming dangerously charged with electricity, hence in the absence of explanation, negligence became sufficiently established under the doctrine of res ipsa loquitur. See McCray v. G., H. & S. A. Ry. Co., 89 Tex. 170, 174, 34 S. W. 95; Washington v. M., K. & T. Ry. Co., 90 Tex. 320, 321, 38 S. W. 764; 7 Words and Phrases, First Series, pages 6136, 6139.

It is argued, however, that because defendant exercised some care, the charge of gross negligence was disproven. The pertinent facts are these: Wells was shocked the day before he was killed; Guinn, defendant’s electrician, took the motor out of the machine, kept it several hours, brought it back, reinstalled it, stating at the time that it had been repaired. These are the circumstances relied upon by defendant in support of .the contention just stated. Defendant, however, failed to show what was in fact wrong with the motor, or the repairs that were made, and no inspection was shown to have been given the machine in other respects, nor the wiring or insulation. Negligence is gross when it is evidenced either by an entire failure to use care, or by the exercise of so slight a degree as to justify the conclusion that the person from whom care was due was indifferent to the interest and welfare of others. See I. & 6. N. Ry. Co. v. Cocke, 64 Tex. 156; G., H. & S. A. Ry. Co. v. Kutac, 76 Tex. 477, 13 S. W. 327; Magnolia Petroleum Co. v. Ford (Tex. Civ. App.) 14 S.W.(2d) 97, 99; Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S. W. 408; Galveston, etc., Co. v. Cook (Tex. Sup.) 16 S. W. 1038, 1039; Johnson v. Gulf, etc., Co., 2 Tex. Civ. App. 139, 21 S. W. 274, 275; Dallas, etc., Co. v. Beeman, 74 Tex. 291, 11 S. W. 1102, 1103.

“Gross negligence” is a relative term and means greater want of care than is implied by the term “ordinary negligence” but the particular facts and circumstances of each case must be taken into consideration, for what might prove to be simply ordinary negligence under one set of circumstances and conditions might constitute gross negligence under other circumstances and conditions, so, at last, in each ease the question is one of fact. The facts and circumstances under consideration justify the conclusion that the care exercised by defendant in taking the motor out and later reinstalling it without a thorough inspection of the wiring, insulation, and the machine in other respects, was so slight as to reveal indifference, on defendant’s part, to the interest and welfare of its employees, who, in the course of their labors, were required to use the machinery and appliances. See East Line v. Rushing, 69 Tex. 306, 6 S. W. 834, 839; Gulf, etc., Co. v. Letsch (Tex. Civ. App.) 55 S. W. 584, Id., 94 Tex. 650, 66 S. W. 1134; Fort Worth, etc., Co. v. Russell (Tex. Civ. App.) 28 S.W.(2d) 320, 323.

Defendant also complains that the verdict and judgment for $10,000 is excessive, exorbitant, and not justified under the law and facts.' We do not think so. Exemplary damages are allowed as a punishment to the party responsible for the wrong,, and as an example for the gbod of the public. The combined effect of the findings of the jury was to convict defendant of gross negligence in failing to discharge the nondelegable duty to furnish deceased reasonably safe machinery and appliances. It is common knowledge that electricity is the most subtle and dangerous agent in use, that it adhere’s to all metal objects, gives no warning of its presence, is without color, motion, body, sound, or odor, and that the only means of detecting its presence is through the sense of touch, and the person thus discovering it is either shocked, burned, or killed outright, as in the instant case. The security of human life, and the safety of those required, in the course of employment, to handle or associate-with machinery, tools, and appliances, liable at any time to become charged with this deadly current, demand that those who profit by its use shall exercise the highest degree of pare in maintenance, inspection, and operation in situations such as we are considering, and that a failure to exercise this high degree of care is gross negligence that may be punished by the imposition of punitive damages. See Galveston, etc., Co. v. Cook (Tex. Sup.) 16 S. W. 1038, 1039.

Assignment's and propositions not discussed have also received our attention, but after carefully considering all assignments and propositions, and finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: PLEASANTS, O. J.

text:
    LUMBERMEN’S RECIPROCAL ASS’N v. JAMES.
    No. 9611.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 12, 1931.

      Hill & Harvey, of Houston, for defendant
   PLEASANTS, O. J.

Appellee has filed in this case a certificate, as provided in article 1841, Revised Statutes (1925), and asks this court to affirm the judgment of the trial count because of the failure of plaintiff in error to file a transcript of the record as required on appeal or writ of error within the time for such filing fixed by the statute. In the alternative, appellee asks that appellant’s writ of error be dismissed.

An examination of the certificate discloses that it was not filed during the term of this court in which the writ of error was required to be filed. By well-settled rules of decision, appellee’s right to an affirmance on certificate expired with the expiration of the term of the court to which the writ of error was returnable. Under this rule the certificate and motion to affirm thereon must be dismissed. Berry v. Blankenship, 30 Tex. 380; Laughlin v. Dabney, 86 Tex. 120, 24 S. W. 259; Fontana v. Reed Grocery Co. (Tex. Civ. App.) 208 S. W. 933; Ross v. Cantrell (Tex. Civ. App.) 278 S. W. 927.

No transcript of the record on appellant’s writ of error having been filed in this court, we are without jurisdiction to grant appellee’s motion to dismiss the writ of error.

There is no case pending in this court other than the certificate and motion to affirm thereon to which an order of dismissal can apply. The jurisdiction which this court acquired by the filing of appellant’s petition and bond for writ of error extended no further than to empower this court to protect its jurisdiction and appellant’s right of appeal. Appellant having abandoned that right by failing to file a transcript within the time required by the statute, or by presenting a record for .filing and showing good cause for the failure to file within the statutory time, this court is without jurisdiction to make any further order than one dismissing the certificate.

The contrary ruling of the Court of Appeals for the Second District in the case of Ross v. Cantrell, supra, was apparently made without giving the question due consideration, and has not been followed by that or any other appellate court in this state, so far as we have ascertained.

We are satisfied of the soundness of our conclusion above expressed and do not think it necessary to certify the question to the Supreme Court. If, however, the appellee desires to have the conflict certified, we will grant a motion for that purpose.

It seems to us that our bolding above stated gives appellee every right to enforce bis judgment that be could obtain by an order of this court dismissing the writ of error.

. The motion for dismissing the writ of error


author: BARCUS, J.

text:
    McKINNEY et al. v. SCOTT et al.
    No. 1001.
    Court of Civil Appeals of Texas. Waco.
    Jan. 29, 1931.
    Robt. B. Thrasher, of Austin, for appellants.
    Bush & Parten, of Franklin, for appellees.
   BARCUS, J.

On the threshold we are met with the proposition that there is no final judgment in this cause which authorizes the appeal or gives this court jurisdiction. The only judgment or order contained in the record is the order sustaining defendants’ general demurrer to plaintiffs’ petition. The order b'ased thereon simply sustains the demurrer, and recites:

“It is therefore ordered, adjudged and.decreed by the court that defendants Frank D. Scott and wife’s general demurrer to plaintiffs’ petition be and is hereby in all things sustained, to which ruling of the court the plaintiffs, in open court, except and give notice of appeal.”

There was no order dismissing the cause.

Our Supreme Court has held that an order sustaining a general demurrer is not a final judgment. Kuehn v. Kuehn (Tex. Com. App.) 242 S. W. 719; Oilmen’s Reciprocal Association v. Harris, 116 Tex. 247, 288 S. W. 809; Johnson v. Sunset Stores, Inc., (Tex. Civ. App.) 27 S.W.(2d) 644. Until a final judgment is rendered in the trial court, this court has no jurisdiction. Article 2249, Revised Statutes; Taylor v. Masterson (Tex. Civ. App.) 231 S. W. 856, and authorities there cited.

There being no final judgment, this court is without jurisdiction, and the appeal is therefore' dismissed.


author: PLEASANTS, C. J.

text:
    GRANT et al. v. ELLIS.

    No. 9482.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 10, 1930.
    Rehearing Denied Jan. 8, 1931.
    W. J. Alexander, of Caldwell, for appellants.
    W, M. Hilliard, of Caldwell, for appellee.

       Writ of error granted.

   PLEASANTS, C. J.

This is a suit by the appellee against the appellants, who are the county judge and members of the commissioners’ court of Bur-leson county, to establish his claim against the county and require its allowance by defendants for the sum of $1,044 fees alleged to be due him for services rendered by him as district clerk in a number of suits for delinquent taxes brought by the county, which fees were adjudged in favor of appellee against the county in the suits in which they accrued.

The defendants answered by excepting to the petition on the ground that the fees claimed by appellee accrued to him under article 7332 of our Revised Statutes (1925) in suits brought in the name of the state of Texas against the numerous parties named in plaintiff’s petition to recover delinquent tax<es due the state and the county of Burleson, and that neither the defendants nor the county of Burleson are liable to plaintiff for such fees, because of the provision of article 7333 of said Statutes.

The defendants further answered by general denial, and by special plea setting up the facts alleged in their exception to the petition, as a defense to plaintiff’s suit.

The following are the agreed facts tipon which the ease was tried in the court below:

“On the 4th day of*October, 1926, and at various times theretofore and thereafter the County Attorney of Burleson County, Texas, then A. B. Gerland, by order of the Commissioners Court of Burleson County, Texas, filed suits for the collection of delinquent taxes against numerous citizens of Burleson County, Texas, said suits being numbered from 1 to 1461, inclusive, and Relator was required as district clerk in and for said county to file said suits and issue all processes in said suits.
“Each and all of said suits were based on the legal and valid acts of the various officers of Burleson County, Texas, which were necessary in getting the suits properly before the said district court of Burleson County, Texas; all of such taxes alleged to be delinquent in said suits were delinquent and were due said County and State as alleged in each of said petitions, and the tax liens on the various tracts of land involved in said suits were valid and subsisting liens against said land for securing the taxes and costs involved in each suit, and nothing to have prevented the State and County proceeding to judgment.
“Relator did everything and performed every service required of him as said district clerk in each and all of said tax suits, and the total cost accruing to Relator in all of said cases is the sum of '$1,044.00.
“On or about May 27, 1929, Respondent entered into a contract with L. R. Carter & Company by wbicb L. R. Carter & Company undertook to collect all tlie State and County taxes delinquent in Burleson County, Texas, and agreed to dismiss the pending suits, and at the instance and request of said L. R. Carter & Company, W. J. Alexander, as County Attorney in and for Burleson County, Texas, and by order of the Commissioners Court of Burleson County, and attorney for Respondents appeared in the district court of Burle-son County and moved the court to dismiss all of the aforementioned suits for delinquent taxes in order to enable said L. R. Carter & Company to proceed with the collection of said taxes, said suits were so dismissed for the purpose of enabling,said Carter & Company to collect such taxes without payment of the court costs, and* in assisting them to so collect such taxes without the payment of such court costs.
“In the judgment dismissing such suits the court ordered that all costs incurred in the bringing of such suits be paid by said Burle-son County, Texas, and further ordered that Relator make out his account against said Burleson County, and file the same with Respondents, together with a certified copy of said judgment.
“On the 10th day of August, Relator filed his said account and the certified copy of said judgment with Respondentsi and said account for said $1044.00.
“On the 1st day of October, 1929, said Commissioners Court, Respondents herein, rejected said claim upon the ground that such judgment was void and violated the provisions of R. S. 1925, art 7333.
“That all of the material allegations in Relator’s original petition are admitted to be ■true.
“All the necessary things incident to the filing of such tax suits and incident to the getting of such tax suits ready for trial, had been met and complied with up to the time of the dismissal of said suits by the officers of the court, including the work of the Relator herein as district clerk, all of the officers’ costs, including the Relator’s costs as district clerk, had accrued and was due at the time •of the dismissal of the suits, and the taxes were due upon each respective tract of land upon which suit was filed.
“The respondents are contesting this suit .only on the ground that the Law article 7333 prevents them from paying the said cost.”

Upon these facts the coui;t below rendered .judgment in favor of appellee establishing his claim against the county of Burleson and directing the appellants to allow it as a valid claim against the county.

Under appropriate assignments and propositions, appellants very earnestly contend that the trial court erred in not holding that the county could not be held liable for the fees due appellee on the delinquent tax suits brought by the county, because article 7333 of our Revised Statutes (1925) expressly provides that the county shall not be liable for such fees; and in not holding that the judgments of the district court against the county for such fees rendered in the several tax suits, in which the fees accrued, were void.

We think neither of these contentions is sound. Article 7333, above cited, is as follows:

“In each ease such fees shall be taxed as costs against the land to be sold under judgment for taxes, and paid out of the proceeds of sale of same after the taxes, penalty and interest due thereon are paid, and in no case shall the State or county be'held liable therefor.”

If the tax suits had been tried and judgment rendered upon the merits in each ease, this statute would have plainly forbidden any judgment against the state or county for any fees allowed the officers of the court under article 7332 of the statute. But we do not think article 7333 should be construed as requiring the court in which a suit for delinquent taxes is brought to permit a county to compromise and dismiss such suit without the payment of costs due the officers of the court. •

According to the agreed statement of facts, the appellee had faithfully and efficiently performed the. services required of him hy the statute and earned the fees allowed by the statute; the defendants in the various tax suits were liable for the taxes claimed and these taxes were secured by valid liens upon the lands of the defendants for which foreclosure was asked in the suits. In this situation, when the county asked that its •suits be dismissed, for the purpose of collecting all of the delinquent taxes due the state and county through agencies other than the courts, we do not think the. statute should be construed as inhibiting the district court from adjudging, as it did in each of these cases, that the county should pay the fees due appellee. The principles of justice are just as binding upon governments as upon the citizens. The appellee had earned his fees and was entitled to a judgment against the defendants in the tax suits therefor with a foreclosure of the tax liens upon the lands of the defendants against which the taxes were assessed. The dismissal of the suits by the county deprived appellee of his right to collect his fees from the defendants in the various suits, and the county should not be permitted for purposes of its own, however laudable, to deprive the appellee of-this right without 'becoming liable for his fees.

If, however, we are wrong in this construction of the statute, the judgments of the district court, rendered in the various tax suits against the county for appellee’s fees* while erroneous, were not void nor subject to collateral attack, and not having been appealed from by the county cannot be questioned by appellants in this suit. Murchison v. White, 54 Tex. 78; Sutherland v. De Leon, 1 Tex. 250, 46 Am. Dec. 100; Watson v. Hopkins, 27 Tex. 637.

These conclusions require that the judgment of the trial court should be affirmed, and it has been so ordered.

Affirmed.


author: PELPHRET, C. J.

text:
    INTERNATIONAL HARVESTER CO. OF AMERICA v. CLEMENTS-MIDDLETON CO.
    No. 2487.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 22, 1931.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant.
    Cox & Hayden, of Abilene, for appellee.’
   PELPHRET, C. J.

Appellee brought this suit against appellant to recover profits lost by it on the sale of six tractors and eleven sets of implements used in conpection therewith.

Appellee alleged that it had entered into a contract with appellant to represent appellant as its agent in Taylor county, Tex., during the year 1929, in the sale of the produqts manufactured and handled by appellant; that on or about October 26, 1929, it had on hand six tractors and a supply of repair parts; that appellant sent E. E. Jones'and B. N. Roberts to it, who falsely represented to ap-pellee that appellant had an agent who had a number of Earmall tractors sold and was entirely out of them; that it was necessary that he have six tractors at once in order to supply his trade; that if appellee would allow appellant to ship the six tractors it then had on hand to its said agent that said six tractors would immediately be replaced by appellant with new- ones having thereon a new device which made them more salóle than the ones appellee then had in stock; that it relied upon such false representations and delivered the tractors which it then had in stock to Jones and Roberts, who shipped them to W. T. Winters at Anson, Tex.; that the representations were made with the intent to deceive and defraud appellee and for the purpose of getting the tractors out of appel-lee’s possession; that said representations were made in Taylor county, Tex., and that but for same appellee would not have parted with the possession and title of said tractors, but would have retained the same for its own trade; that appellant failed and refused to replace said tractors with other ones and still refuses to do 'so, and refuses to deliver to appellee any implements, although same were ordered during the life of appellee’s distributing contract with appellant; that appellee had orders for six Earmall tractors and eleven sets of implements used in connection therewith; that same were ordered' during the life of the contract between ap-pellee and appellant; that said orders were on file in appellant’s office; that appellant deliberately refused to deliver same to appel-lee and thereby willfully breached its contract ; that but for the fraudulent conduct of appellant in depriving appellee of the six tractors it had in stock and but for its refusal to deliver tractors to take their place and hut for the refusal of appellant to fill appellee’s order for implements, appellee would have received profits from the sale of said six tractors and eleven sets of implements amounting to $2,619.-30, which would have been net profit for the handling of same, all of which appellee had sold during the life of its contract with appellant.

Appellant answered by general and special exceptions, general denial, and specially alleged that the contract between the parties had been mutually canceled and rescinded and that the tractors had been surrendered to appellant voluntarily by appellee in consideration of the cancellation of certain notes held by appellant for the purchase price of said tractors; that the verbal order submitted to appellant by appellee for six tractors and ten cultivators was refused by appellant as it had a right to do under the contract; that by reason of these facts appellee is estopped to assert any liability against appellant; that F. E. Jones did not make the representations alleged by appellee, and that, if he did, he acted without authority..

In response to special issues the jury found: (1)That Mr. Roberts promised appellee to replace the tractors delivered to him; (2) that appellee, on October 26,1929, had three orders for tractors and one each for cultivators and planters, which would have been filled within a reasonable time; (3) that the net profit on each tractor would have been $312.05; (4) that the net profit on each cultivator would have been $50; (5) that the net profit on each planter would have been $33; and (6) that appellee placed with appellant, prior to November 1, 1929, an order for a sufficient number of tractors, planters, and cultivators to fill all the unfilled orders it had on October 26, 1929.

The court rendered judgment in favor of appellee for $1,019.15, and the harvester company has appealed.

Opinion.

Appellant presents forty-five’ assignments of error and eighteen propositions thereunder. We shall not attempt to discuss the several propositions separately but, having reached the conclusion that the judgment must be reversed, we shall, for the sake of brevity, discuss those which we think should be sustained and such others as may arise on a subsequent trial.

The overruling of appellant’s special exception to the effect that appellee was attempting to maintain the suit in the firm name rather than in the name of the individual members thereof, and the submitting of special issues Nos. 5, 6, and 7, in the manner in which they were submitted, constitute reversible error.

The petition begins with the allegation that;

“Clements-Middleton Company, hereinafter styled plaintiff, and complains of the International Harvester Company of America, hereinafter styled defendant, and represents:
“That plaintiff is a firm composed of L. W. Clements, James Middleton and Herbert Middleton, and that said plaintiff has its domicile in Taylor County, Texas, and that the members of said firm reside in said County and State.”

All through the pleading of appellee the word “plaintiff” is used, and all its pleadings clearly show an attempt to recover in the name of the firm and not in the names of the individuals composing it.

The special exception of appellant should have been sustained. Western Grocery Co. v. K. Jata & Co. (Tex. Civ. App.) 173 S. W. 518; Scott v. Llano County Bank (Tex. Civ. App.) 85 S. W. 301.

Special issues 5, 6, and 7 read as follows :

“Special Issue No. 5. What was the net profit to plaintiff, if any, on each tractor? Answer in dollars and cents.
“Special Issue No. 6. What was the net profit to plaintiff, if any, on each cultivator? Answer in dollars and cents.
“Special Issue No. 7. What was the net profit, if any, on each planter? Answer in dollars and cents.”

Appellant objected to these issues on the ground that in submitting them as it did the trial court assumed that a net profit would have been made by appellee and that in directing the jury to answer in dollars and cents in connection therewith it charged on the weight of the evidence.

This exception should also have been sustained. The court by the manner in which the issues were submitted clearly assumed that net profits would have arisen if the different articles had been delivered and was therefore a" charge on the weight of the evidence. Texas & Pacific Coal Co. v. Sherbley (Tex. Civ. App.) 212 S. W. 758; Strawn Coal Co. v. Trojan (Tex. Civ. App.) 195 S. W. 256.

There also appears to be some doubt as to the right of appellee to recover any profits it may have lost on the planters and cultivators. - As we understand the record, the contract upon which appellee claimed it was entitled to have them delivered to it also provided that appellant might reject all orders for additional goods. This being true, then the burden would be upon appellee to show some right to exact delivery aside from the contract.

Appellee’s contention 'that it was entitled to a delivery of them by virtue of the agreement to replace the tractors does not appear to he supported by the evidence.

As we view the evidence, that agreement related solely to tractors and appellee did not plead that planters and cultivators were included in such agreement.

Appellant’s contention that there being evidence that appellee was to receive used farm machinery and live stock as part Of the purchase price of the tractors which it had orders for, the amount of the net profits could not be ascertained until the machinery and live stock had been disposed of cannot be sustained. The rule.that appellant here asserts, might be properly applied if the extent of the damages were properly attributable to the fault of appellee. But appellee did not make this case; it was made against its will by appellant, and appellee is left to make the proof of its damage as best it can under facts over which it had no control.

Appellee, evidently acting in good faith, took the orders for tractors depending upon appellant complying with its agreement to replace the tractors delivered to its agent by ap-pellee. To deny appellee the right to recover .any profits it may have lost simply because it had agreed to take used machinery and live stock as part payment for the new tractors, and because, never having received such ma-chinetfy and live stock py reason of appellant’s failure to deliver the new tractors, it could not prove at what price they had been sold, would be allowing appellant to profit by and speculate upon its own wrong. This is not in accord with that justice at which . the law aims.

The allegations of the petition to the effect that “it would have received profits off said six tractors and eleven sets of imr plements amounting to $2,619.30, which would have been the net profits to the plaintiff for handling said tractors and implements,” were too general and indefinite, and the pleading should be more specific in order to apprise the appellant of how the profits sought to be recovered arose.

This alone might not constitute reversible error, but, upon another trial, the pleading should show the invoice price plus any expense incident to the sale of the different articles and the price at which they could have been sold.

There was no evidence to support the issue requested by appellant. We find no evidence to the effect that the tractors were de--livered to appellant in consideration of a cancellation and delivery of the notes thereon .to appellee. The issue was properly refused.

Nor do we think that special issues Nos. 2, 3, and 4, as submitted, were duplicitous.

The question as to the excessiveness of the judgment in including the sum of $50 as profits on a cultivator, which appellant claims to have delivered to appellee on the day of trial, will probably not arise on another trial, and therefore calls for no discussion.

We have carefully examined the many questions presented and have decided that the judgment must be reversed, and the cause remanded for the reasons above set forth, and it is so ordered.


author: LESLIE, J.

text:
    BRECKENRIDGE HOTEL CO. v. J. M. RADFORD GROCERY CO.
    No. 733.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 6, 1931.
    For former opinion, see 33 S.W.(2d) 1074.
    T. B. Ridgell, of Breckenridge, for appellant.
    W. E. Lessing, of Abilene, for appellee.
   LESLIE, J.

On rehearing the appellant earnestly insists that article 5936, §§ 63 and 64, Vernon’s Ann. Civ. St., and the opinion in Waters v. Atlanta Nat. Bank (Tex. Civ. App.) 261 S. W. 153, require the holding in this case that appellee was not entitled to recover. In the case cited the court held that the appellant, Waters, was shown by the nóte itself to have been an indorser, and that therefore the judgment against him was erroneous, since he had never been served with notice of the maker’s default. The only way. that the-decision could furnish any analogy supporting • the appellant’s contention in this case would be for the word “indorser” to be synonymous with “accommodation indorser.” That, of course, could not be. The note in the instant suit does not show that the appellant was simply an accommodation indorser. The. presumption supplied by the statute (Rev. St. 1925, art. 5933, § 24), as pointed out in our original opinion, to the effect that appellant was an indorser for value, excludes any presumption that it was an accommodation indorser. If, therefore, the law be as contended by appellant that a corporation has no authority to become an accommodation indorser, a question unnecessary for us to here decide, it is wholly immaterial in this case. A corporation engaged in the hotel business may, under some circumstances, become liable as an indorser, and is presumed to have done so in the absence of pleadings and evidence to the contrary.

The motion for rehearing is overruled.


text:
    BISHOP v. HOUSTON INDEPENDENT-SCHOOL DIST. et al.
    No. 9445.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1929.
    Supplemental Opinion Jan. 22, 1930.
    On Motion for Rehearing Jan. 20, 1931.
    J. S. Bracewell, of Houston, for appellant.
    Andrews, Streetman, Rogue & Mobley, and M. E. Kurth, all of Houston, for appellees.
   PLEASANTS, C. J.

This is a suit for mandatory injunction brought by appellant against the appellee school district, and its officers and agents, to require the admission of his minor daughter, Margaret Anne Bishop, to the district school.

The petition alleges, in substance, that petitioner’s daughter, Margaret Anne, had been unlawfully suspended from attendance upon the public free school of the district for an indefinite period of time; that the child so suspended was thirteen years of age, was a resident in the appellee school district,. and by the Compulsory Education Law of this state was required to attend school for 100 days in each year, beginning at the opening of the school term; that plaintiff had been before the defendant school board and requested and demanded his daughter’s readmission to the school, which request was refused. It was then alleged that the suspension of the pupil was unauthorized and illegal, because it was made without lawful hearing or authority and in violation of the Compulsory Education Statute. It was further alleged that the rule for the violation of which the child was suspended, which prohibited her from taking her lunch during the noon recess of the school at an eating place selected by her father-, was unreasonable and void.

It is unnecessary'for us to set out the petition at length, nor to state the grounds upon which the reasonableness of the rule is challenged, because, under our construction of the statute invoked by appellant, neither the reasonableness of the rule, nor the jurisdiction of the trial court to determine that question without appellant having first exhausted his remedy by appeal to the higher school authorities, is material in the determination of this appeal.

The trial court sustained a general demurrer to the petition, on the ground that, there being no allegations in the petition showing that appellant had exhausted his remedy by appeal to the highest school authorities, the court was without jurisdiction to hear and determine the question of the reasonableness of the rule.

We may agree with this holding of the.trial court, but the judgment cannot be affirmed unless we aiso agree with the further conclusion of the trial judge that the principal of the school, with the approval of the school board, had authority to suspend the pupil for her continued violation of the rule before mentioned.

We cannot so construe the statute. Article 2892 of our (1925) Revised Statutes provides: “Every child in this State who is eight years and not more than fourteen years old shall be required to attend the public schools in the district of its residence, or in some other district to which it may be transferred, as provided by law, for a period of not less than one hundred days during each‘Scholastic year. The period of compulsory school attendance at each school shall begin at the opening of the school term unless otherwise authorized by the district school trustees and notice given by the trustees prior to the beginning of such school term; provided that no child shall be required to attend school for a longer period than the maximum term of the public school in the district where such child resides.”

Other articles of this statute exempt designated classes of children from its operation, and provide for excuses for noncompliance therewith, and for the method of administering the law.

Article 2898 is as follows: “Any child within the compulsory school attendance ages who shall be insubordinate, disorderly, vicious or immoral in conduct, or who persistently violates the reasonable rules and regulations of the school which he attends, or who otherwise persistently misbehaves therein so as to render himself an incorrigible, shall be reported to the attendance officer who shall proceed against such child in the juvenile court. If such child is found guilty in said court the judge shall have the power to parole said child, after requiring the parent or other person standing -in parental relation, to execute a bond in the sum of not less than ten dollars, condition that said child shall attend school regularly and comply with all the rules and regulations of said school. If the superintendent or principal of any school shall report to the attendance officer for said school that said child has violated the conditions of his parole, said attendance officer shall proceed against such child befóte the judge of the juvenile court, and if such child shall be found guilty of violating the conditions of said parole, the bond shall forthwith be declared .forfeited and shall be collected in the same manner as other forfeited bonds under the general laws of this State, and the proceeds of same shall be paid into the available school fund of the common or independent school district. The judge of said court may, after a fair and impartial hearing given to said child, again parole said child, requiring such bond as he may deem prudent, and require said child to again enter school. If said child shall violate the conditions of the second parole and shall be convicted of same he shall be committed to a suitable training school as may be agreed upon by the parent of the child and the judge of the juvenile court in which the child is convicted.”

It is'clear from the language of the statute that its primary purpose is to compel the regular presence in school of every child subject to its provisions for the length of time specified. This purpose might be often defeated if it was left to the school authorities to determine whether a particular child should be denied the right of attending school, and article 2898, we think, wisely places the authority to determine this question in the juvenile court, and only authorizes that -tribunal to keep the child from school when its conduct is vicious or immoral, or it so persistently violates the rules of the school, or otherwise so persistently misbehaves therein, as to be deemed incorrigible. Even in cases coming under this provision the child can only be deprived of the right to attend school as a last resort, and must then be committed to a training school.

This statute is mandatory in its language, and under well settled rules of construction the procedure and method prescribed by the statute is exclusive, and when some other method is followed the proceeding is unauthorized and void. Millhollon v. Stanton Independent School District (Tex. Com. App.) 231 S. W. 332.

We are not impressed with the force of appellees’ contention that the Legislature did not intend to make the method for suspension of a child within the Compulsory Education Statute, as provided in the article above quoted, exclusive, because the Revised Statutes adopted by the legislature in 1925, which contain this article, also contain article 2904, which provides: “The trustees of schools shall have the power to admit pupils over and under scholastic age, either in or out of the district, on such terms as they may deem proper and just; provided, that in admitting pupils over and under the scholastic age, the school shall not be overcrowded to the neglect and injury of pupils within the scholastic age. They may suspend from the privilege of schools any pupil found guilty of incorrigible conduct, but such suspension shall not extend beyond the current term of the school.” This last-quoted article by its terms relates only to children not within the Compulsory Education Statute, and it seems clear to us that the Legislatui’e did not intend by its enactment to provide a different or additional method for the suspension of pupils within the compulsory education statute from that provided in that statute.

Counsel for appellee agrees with appellant that, if our construction of the statute is sound, the trial court had jurisdiction to hear and determine the cause of action based on the alleged wrongful denial to appellant’s child of a statutory right. If the statute is mandatory and exclusive in the methods of procedure for the suspension of a pupil within the compulsory education statute, the school authorities had no discretion in the matter, and appellant was not required to appeal to them before resorting to the courts for relief.

We are of opinion that the judgment should be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.

Supplemental Opinion.

The purpose of this supplemental opinion is to correct or modify the conclusion, expressed in our original opinion, that article, 2904 of our Revised Statutes “by its terms relates only to children not within the Compulsory Education Statute.” The quoted portion of this conclusion is inaccurate and misleading. There is nothing in the language of the article which would limit the authority to suspend a pupil therein granted to pupils not within the ages specified in the Compulsory Education Statute. But this article of the statute was enacted several years prior to the enactment of the Compulsory Education Statute, and the passage of the latter statute had the effect of limiting the authority to suspend conferred by article 2904 to pupils over or under the ages specified in article 2892. Both of these statutes were brought forward in the 1925 revision for the obvious reason that, without the authority given by article 2904, school authorities would have no express statutory power to suspend pupils not within the specified ages in article 2892, and, by the inclusion of article 2904 in the revision, the Legislature did not intend to provide a different or additional method for the suspension of pupils within the Compulsory Education Statute to that provided in article 2898.

On Motion for Rehearing.

At the last term of this court we reversed the judgment of the trial court in this case, and remanded the case for retrial. On motion of appellees for rehearing, we certified to the Supreme Court for its decision the controlling questions in the ease. • The answer of the Supreme Court to the first question certified (29 S.W.(2d) 312) requires that the motion for rehearing be granted, our judgment of reversal be set aside, and the judgment of the trial court affirmed; and it has been so ordered.

Granted.


author: HIGGINS, J.

text:
    WAY v. VENUS.
    No. 2490.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 22, 1931.
    Rehearing Denied Feb. 19, 1931.
    L. W. Sandusky and R. H. Ratliff, both of Colorado, Tex., for appellant.
    T. R. Smith, of Colorado, Tex. (Garland & Yonge, -of Lamesa, of counsel), for appellee.
   HIGGINS, J.

By general warranty deeds dated July 7, 1923, R. H. Crump and wife, Lecie Crump, conveyed various tracts of land to appellant Way. The deeds each contain a reservation which reads: “It is hereby specially understood that the grantors herein reserve un-qualifiedly a three-fourths (%) undivided interest in all minerals of every hind and character, including oil, which may he found in the future on any of the lands described in this deed.”

Upon the same date. Crump and wife executed a power of attorney to Way reciting the deeds and reservation and reading further: “And, whereas, in order that it may be convenient to the said C. E. Way to handle the said oil interest to the advantage of both parties, we, R. H. Crump and Lecie Crump, have made, constituted and appointed, and by these presents do make, constitute and appoint C. E. Way our true and lawful attorney for us and in our name, place and stead, giving and granting unto our said, attorney full power and authority to lease, let, make contracts of all hinds and character with oil men concerning the development of the said oil and minerals on said lands or land, as the c:ase may be,” etc.

Later Way,' for himself and as attorney in fact for the Crumps, executed various oil and gas leases upon some of the lands conveyed to him.

One lease has this provision:

“It is understood that C. E. Way and wife, own an undivided one-fourth interest and R. H. Crump owns an undivided three-fourths interest in the land and containing 80 acres, more or less.
“All payments which may fall due under this lease may be made to C. E. Way one-fourth — R. H. Crump %, one of the above named lessors, in the manner herein stated.”

Other leases contain the same or similar provisions.

It is undisputed that no oil, gas, or other minerals have been found upon any of the lands, but money rentals have been paid by the lessees to Way.

Later R. H. Crump died. This suit is by the appellee Venus, administratrix, of the estate of R. H. Crump, with will annexed, to recover of Way three-fourths of the money rentals collected by him.

Upon trial without a jury judgment was rendered in appellee’s favor, less a counterclaim asserted by appellant.

Appellant’s propositions assert that, since no oil, gas, or other minerals have been found upon the lands, appellee cannot recover, his contention being that under the reservation in the deeds Crump had no interest in the money rentals. The question presented involves the proper interpretation of the reservation quotéd.

If the reservation of the minerals was not absolute but contingent upon the condition that minerals were subsequently found upon the land and reduced to possession, as appellant contends, then it may be Crump had no right to three-fourths of the money rentals. But we do not think this is the proper interpretation to be placed upon the reservation.

The existence of minerals in land is necessarily uncertain in the absence of exploration for and development of minerals therein.

In our opinion the reservation reserved a present vested interest in the minerals. Such would certainly be its effect if the words, “which may be found in the future,” had been omitted, and we regard these words as simply expressive of the uncertainty of the existence of minerals in the land rather than as a conditional reservation.

Whatever doubt/may exist as to the effect of the reservation is removed by a consideration of the power of attorney given by the Crumps to Way and the quoted provision in the leases executed by the latter. The .power of attorney was executed simultaneously with the deeds and related to the same subject-matter. It was accepted -by Way and acted upon by him. By the execution and acceptance of the power of attorney, the parties, we think, evidenced their understanding that Crump reserved a vested and unconditional interest in the minerals. The recitals in the leases executed by Way show that he regarded Crump as owning a. three-fourths interest in the minerals and entitled to three-fourths of all payments falling due under such leases. The practical construction thus placed upon the reservation by Way is entitled to great weight in determining its proper interpretation. The construction thus placed upon it is contrary to that now contended for by appellant.

We are, therefore, of the opinion that the reservation in question operated as a severance of a three-fourths interest in the minerals in place and reserved unconditional title thereto in Crump and wife. The parties became tenants in common of the minerals in place. Prairie Oil, etc., v. Allen (C. C. A.) 2 F.(2d) 566, 40 A. L. R. 1389. This being the nature of Crump’s title, we think he was entitled to three-fourths of the rents collected by Way. Walker v. Ames (Tex. Civ. App.) 229 S. W. 365; Collins v. Stilger (Tex. Civ. App.) 253 S. W. 572. This difference in the title reserved distinguishes the case from Caruthers v. Leonard (Tex. Com. App.) 254 S. W. 779, and Guess v. Harmonson (Tex. Civ. App.) 4 S.W.(2d) 124.

As indicated above, the court allowed appellant credit for a counterclaim asserted by him in set-off against the plaintiff’s demand.

Appellee cross-assigns error to the allowance of this counterclaim, and also complains that the judgment in her favor is insufficient in amount.

The counterclaim was for expenses incurred by Way in leasing the land and for his services. No evidence was offered in support of the counterclaim, for which reason it was improperly allowed and will be here eliminated.

According to appellant’s own testimony, it appears he is liable for a greater sum than was awarded against him. Upon the basis of his testimony, for the year ending August 5, 1028, he is liable for at least $962.25,- and, for the year ending August 5, 1929, at least $662.25.

Judgment will be here rendered for said amounts with interest.

Lecie Crump, surviving wife of R. H. Crump, was joined as a party defendant, and judgment rendered against her to the effect that she had no interest in the rentals. She did not appeal. The judgment against her is not disturbed.

Reversed and rendered as above indicated.


author: PLEASANTS, C.1 J.

text:
    MOERS et ux. v. HERRON.
    No. 9491.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 2, 1931.
    Rehearing Denied Jan. 29, 1931.
    Barkley & Webb and W. K. Richardson, all of Houston, for appellants.
    C. M. Kay, of Houston, and B. C. Johnson, of Port Arthur, for appellee.
   PLEASANTS, C.1 J.

This suit was brought by appellee against appellants to recover a balance of $1,348.10 claimed to be due him under a contract for the construction of a dam upon property belonging to Mrs. Moers. The following sufficient statement of the substance of the pleadings is copied from appellants’ brief: . The petition alleges:

“That on or about the 13th day of November, 1927, appellee and appellant Dr. R. H. Moers, entered into an agreement whereby appellee was to construct a dam upon the separate property of the appellant Mrs. Katherine Moers, undisclosed principal, acting through her husband Dr. R. H. Moers as agent. That appellee was to furnish teams and men, and was to receive therefor the sum of Seven Dollars per nine hour day for each man and team, and Two Dollars and Seventy-five -cents per nine hour day for men only. That at the end of each week after the first week, payments in the amount sufficient to meet expenses were to be made to appellee; balance to be paid when work was completed. In the alternative, the petition alleges that if there was no contract appellee was entitled to recover the usual reasonable and customary price for such labor, to-wit, the sums as set out above. That of the total sum earned, to-wit, $2,715.40, appellants still owed appel-lee the balance of $1,348.10.
“Appellee’s itemized accounts showing time, amounts, and payments, were attached to the petition. Appellant Dr. R. H. Moers, filed general demurrer and general denial, and special denial to itemized account, and in addilion filed special answer alleging that appellee in agreeing to construct a dam guaranteed that the costs would not be over Twenty-five Hundred Dollars, and if the job cost less than Twenty-five Hundred Dollars appellant was to have benefit of reduction.1 That appellant has at all times been ready, able and willing to pay appellee for the dam according to contract.
“For further answer, appellee represented himself as knowing how to construct the dam, but as built it was-without value to appellants. -Appellant Mrs. Katherine Moers, filed general demurrer and general denial.”

A jury to whom the cause was submitted returned a verdict in favor of plaintiff for the amount claimed by him, and judgment was rendered accordingly.

• The record discloses the following facts: The contract alleged in plaintiffs’ petition was executed by Dr. Moers for himself and as agent for Mrs. Moers. There is a direct conflict in the evidence as to the exact terms of the contract, but the jury determined this conflict in favor of the plaintiff, who testified, in- substance, that, when he examined the place, at which the excavation was to be made and the dam constructed, he told Dr. Moers that he thought the work could be done for $2,500, and probably for $2,200; that he' was willing to take the contract for $2,-500, but Dr. Moers declined to make the contract for that amount, and wanted plaintiff to make a contract to do the work for $7 per nine-hour day for each man with a team employed in the work and $2.75 per day for each man without a team, and to guarantee that the cost of the improvement would not exceed $2,500, and, if less than that aihount, the defendant would only pay the actual cost at the prices for labor and teams before stated. The plaintiff declined to accept this proposition, but did offer to do the work at the stated price for labor and teams, with the understanding that he was to be paid at the end of each week the amount necessary to pay for the labor and teams employed by him. After this offer of plaintiff had been considered by Dr. Moers a day or two, plaintiff received a message from him to go ahead with the work. After receiving this message, plaintiff commenced the work with the knowledge and consent of Dr. Moers, who was present when the work was started, and kept himself advised of its progress. Plaintiff furnished him with the names of the men and number of teams engaged in the work. The defendant put a clock at the place the work was being carried on, and kept the hours of work for each day.

The first proposition presented in appellants’ brief complains of the charge of the court in which the jury are told that, if they find that the terms of the contract between plaintiff and the defendants • were as alleged in the petition and testified to by plaintiff, they should find for plaintiff the amount claimed in his petition. This complaint is based on the ground that the correctness of the account is only shown by plaintiff’s testimony, and, because of his interest in the suit, the jury was not required to believe plaintiff’s testimony. The general rule of law invoked by this proposition is sound and sustained by the authorities, but it has no application to the facts of this case. Plaintiff’s testimony as to the correctness of the account was sufficiently corroborated by other facts and circumstances in evidence to authorize the charge.

But we need not set out any of these corroborative facts and circumstances, since the question is removed from the realm of doubt by the agreed statement of facts, which recites that: “It was agreed that the statement attached to plaintiff’s Eirst Amended Original Petition is correct.”

This agreement was evidently overlooked by the attorney who prepared appellants’ brief.

We are also of the opinion that the record does not present the question of the invalidity of the contract on the ground that the minds of the parties did not meet in its execution. The plaintiff testified that the cbntraet was as alleged in the petition. The defendant Dr. Moers denied that he made that contract, and testified that plaintiff guaranteed to do the work for $2,500, and,, if it could be done for a less amount at the agreed. price of $7 per day per man with teams and $2.75 per day for men without teams working nine hours a day, plaintiff would only charge such less amount. - The jury settled this conflict in the evidence in favor of plaintiff, and it cannot be held that, because of such conflict in the testimony, the contract was void for a failure of the meeting of the minds of the parties. To so apply the rule invoked by appellant would render invalid any verbal contract when there was a conflict in the'testimony of the parties as to the terms of the contract. If so applied, the rule would- become an absurdity, and would destroy the right of a party to have a jury or court in cases of this kind determine questions of fact by the weight and preponderance of the evidence.

Appellants’ remaining proposition complains of the charge of the court on the ground that it did not give the jury the eor- ' reet measure of damage. By this proposition appellants present the contention that the plaintiff, having failed to complete his contract, was only entitled to recover the difference between the contract price and what it would cost appellants to complete the work embraced in the contract.

This contention also ignores the findings of the jury in favor of the plaintiff upon the issue of the terms of the contract. In addition to this, the undisputed evidence shows that defendants had failed to comply with their contract to make the weekly payments to plaintiff as therein provided, and that plaintiff, because of such failure, was unable to continue the work.

In these circumstances, plaintiff could not be held to the rule of damage applicable to a plaintiff who had voluntarily abandoned his contract.

These conclusions require an affirmance of" the judgment, and it has been so ordered.

Affirmed.


text:
    VAN DE PUTTE v. CAMERON COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 7.
    No. 8531.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Wm. W. Beuhler, of San Antonio, for appellant. •
    Seabury, George & Taylor, of Brownsville, for appellee.
   COBBS, J.

Appellant sued appellee to recover damages for the alleged wrongful and unlawful taking of two acres of plaintiff’s land, appropriated by the defendant for the use and benefit of defendant without compensation to plaintiff and without condemnation proceedings, said two acres of land being used by defendant for the construction of an irrigation canal and drainage ditch across plaintiff’s land; for the recovery of damages to plaintiff’s fences, which were destroyed by defendant; for the recovery of damages to the ten acres of land adjoining the two acres taken by defendant, by reason of the diminution in value of said remaining ten acres; and for the recovery of damages arising by reason of defendant connecting its drainage ditch to plaintiff’s natural lake and reservoir, draining water therefrom, and subjecting said lake to defendant's control.

Plaintiff alleged that his land was already served with an irrigation canal and drainage ditch, and that the acts of defendant did not therefore benefit his land; that the plaintiff’s land had been used for ten years as a dairy, and the natural lake on his land had been in continuous use during all of that time to wa- ■ ter cattle and for dairy purposes. The drainage ditch was constructed with its beginning, or source, extending into plaintiff’s lake, and was of sufficient depth to completely drain said lake.

The Cameron County Water Control & Improvement District No. 7 admitted that it had constructed the irrigation canal and had dug a deep drainage ditch across plaintiff’s land, and alleged that the same were constructed as a part of an irrigation and drainage system, and that plaintiff’s lands had been benefited thereby; it admitted that some water had been permitted to drain through its drainage ditch out of plaintiff’s lake, but alleged that it was done without the knowledge, consent, or' approval of defendant. The district also pleaded certain deeds and contracts, which deeds and contracts plaintiff alleges cannot be interposed to benefit defendant.

Upon the findings of the jury, the court ren- • dered judgment for the defendant, Cameron County Water Control & Improvement District No. 7, and that, plaintiff .take nothing by his suit, and that all costs incurred therein be adjudged against plaintiff, Juan Van De Putte.

The first proposition presents the contention that the verdict of the jury that $250 per acre was the reasonable market value of plaintiff’s land just prior to the time defendant extended its canal across plaintiff’s land and dug the drainage ditch across plaintiff’s land is contrary to the evidence.

There was sufficient testimony and other evidence in the case to support the jury’s verdict, in addition to the fact that the jury visited the premises and viewed and inspected them in order to form their own conclusions.

Mr. Van De Putte, the plaintiff, and Mr. Lang, his tenant, testified as to the value of the real estate involved in this suit, and they placed it at $1,500 and $1,0*00 per acre, each respectively; and Mr. Van De Putte placed the value of the lake at $30,000 and Mr. Lang set it at $15,000. \

Mr. Holly testified that, if the drain ditch were opened up so it could drain the lake, it would add materially to the value of plaintiff’s land, because it is worth practically nothing without the drainage ditch.

Mr. H. H. Banker testified as follows:

“I would not have considered the. land worth anything, as it was undesirable to grow anything on and had become water-logged. ⅜ * *
“I would not give anything for it without the drain ditch there.”

Appellant, in his second proposition, finds no .evidence to support the jury finding that the land was increased in value $500 per acre by the digging of the drainage ditch and irrigation canal, and that sixty-nine and a fraction acres belonging to appellant were so enhanced.

. Mr. Morton’s testimony in regard to this reads as follows: “I have seen the drain ditch that has been put in out there for the draining of that country, I own some land out in that part of the country. I have known and been familiar with the development of this Van de Putte property since T have been out there, and I have throughout those years learned what the market value of lands were out there. In my opinion the digging of that drain ditch out there looking to the ultimate draining of that lake should enhance its value. If the drain ditch is not opened up and is left as it is now, it should not affect the market value of that land. If the drain ditch were opened up and all the water drained out of that lake, it should lower the water table out there, and that should I raise the intrinsic and market value of that land materially. In my opinion the digging of that drain ditch and the concrete lining of the irrigation canals out there has materially helped the intrinsic, real and market value of that land. If the water table is lowered it has helped that land. If the seepage from that canal and lake is going to destroy the land, the draining of it would make it worth more than it was.”

Mr. J. McCarty says: “I have lived in this country for eleven years, and have become familiar, I think, with the market value of lands out in that vicinity. My experience has been that drainage has all to do with the value of lands down here, and the lining of the canals with concrete has something to do with the value of the surrounding lands.”

He further testified as to the value of the land: “I think the digging of that ditch through there has enhanced not only the value of the plaintiff’s land, but also the land of other people-around there. I would say that the land was worth more after the ditch and canal was put in there than it was before. In my judgment I would say the land was worth twice as much now as it was before the ditch was put there. Rand that you can’t grow any kind of crop on is not worth as much as land you can grow anything you want to on.”

Mr. Holly says: “I am a farmer and farm irrigated land. I have had experience with land that was drained and that was not drained. I have observed that on the land of the plaintiff there has been a drain ditch dug right up to the edge of the lake. If the drain ditch were opened up and the lake drained out, in my opinion that would enhance the value of that land. It would materially increase the value of that land to drain it. If that drain ditch were opened up so it could drain that lake, it would add materially to the value of all that land there. Because it is practically not worth anything now, I would not pay the taxes on it for it. In my opinion if it were drained, it would be land suitable for many purposes. If you drain ft and wash it out a few times, in my opinion it would be good land, otherwise it is not.”

Mr. Banker testified: “In the light of my experience and observation in this territory, drainage is absolutely necessary and desirable where land is being irrigated. Prior to the time the District took over this proposition and lined the canals and provided for drainage, the water table on this land in question stood at about two or three feet from the top of the soil, and I would not have considered the land worth anything, as it was undesirable to grow anything on and had become waterlogged, and citrus -will not live on it, and of course that affects the value of the land.”

In regard to the injury done to plaintiff’s fences, Mr. Jim Skelton testified as follows:

“At the time we built that ditch and canal there was a fence right down here on the lateral canal running North and South, and there is no fence there now. There was not much of a fence before. There was just a post here and thsre and the wire was tacked to the bushes along the canal. Some places we found two wires' there and some places there was only one. The fence did not' run in a straight line but zigzagged a good deal. That lateral canal there was not lined with concrete. All we did was dig it out and in doing so we had to clean the brush off the banks, and in that way we tore down the fence. I have talked to Mr. Lang, Mr. Van de Putte’s tenant, about putting the fence back, and offered to put the fence back as we found it and he said it was not worth while. The fence that was’ there was not of any value. It zigzagged along through the brush on the canal and the wire was worn and rotten. I had instructions from the District that whenever I tore a fence down to repair it, and I offered to do that at that place, and if Mr. Lang had permitted me I would have put that fence back in better condition than it was when I found it.
“I imagine that fence I have testified about was about 400 yards long. That fence is torn-down now. I did not have anything to do with the fence on the plaintiffs land that is along the Alice Road. There is a fence along the east side of the plaintiffs land on the Alice Road on the lower end, hut on this block where the ditch is, above it there is no fence there. I work along the canal that goes through the plaintiff’s land and know where his land is situated. That drain ditch and canal that has been extended across his land goes on under the Alice Road, reaching the Alice Road at the east line of the plaintiffs land. There is a fence along there on one side hut not on the other. I imagine that fence is in the neighborhood of fifty yards long. There is no fence on the other side of the canal until you get to the next road crossing. It looks like there has been a fence there at one time. There was no fence there as far back as two or three years ago.”

Appellant’s argument under his first proposition is erroneous, in that he assumes that the only testimony with regard to the value of the land in controversy is that of himself and his tenant. But there is testimony of men who had lived in the vicinity for years, and had bought, sold, and traded land identically like the appellant’s, and were in a position to state the value of appellant’s real estate. Houston Belt & Terminal Ry. Co. v. Vogel (Tex. Civ. App.) 179 S. W. 268.

Appellant very correctly anticipated our stress of the fact that the jury visited the premises, and lightly casts it aside, quoting from a Kentucky case decided in a state which has a statute providing when, where, and how a jury may visit the premises. Our investigation reveals that Texas has never seen fit to pass a statute in this regard, but follows the common-law rule and, as the court in General Bonding & Casualty Co. v. Mosely (Tex. Civ. App.) 174 S. W. 1031, in substance, states that there was no statute in Texas authorizing the right of the jury to visit the premises, and the appellate courts have usually left,it to the sound discretion of the trial judge where no abuse is shown. A review of the cases will show that the trial courts have discouraged this practice, and appellate courts have not looked on it with special favor. Smith v. Texas, 42 Tex. 444; Gamer Co. v. Gammage (Tex. Civ. App.) 147 S. W. 721; Whaley v. Sloss-Sheffield Steel & Iron Co., 164 Ala. 216, 51 So. 419, 20 Ann. Cas. 822; Peoria & Farmington Ry. Co. v. Barnum, 107 Ill. 160; Culbertson & Blair Packing & Provision Co. v. City of Chicago et al., 111 Ill. 651; Parks v. City of Boston, 15 Pick. (Mass.) 198; Omaha & R. V. R. Co. v. Walker, 17 Neb. 432, 23 N. W. 348; McReynolds v. B. & O. Ry. Co., 106 Ill. 152; Kiernan v. Chicago, S. F. & C. R. Co., 123 Ill. 188, 14 N. E. 18.

However, we do not propose to stand on this proposition alone, but corroborate and supplement it by the actual testimony in the record, which substantiates the jury finding. There was testimony that the land was worth practically nothing, that it was worth little, that it was worth $1,000 per acre, and that it was worth $1,500 per acre; and the jury of twelve men residing in that community, bound to have a general knowledge and understanding of land values there, after hearing the testimony, visited the premises and made a personal survey of the land, then returned the valuation of the land per acre at $250.

The appellant complains of the jury finding as to the fences, and in so arguing appellant entirely overlooks Mr. iSkelton’s testimony showing the fences to have been originally merely remains of what had been a barbed wire fence at one time, and, when preparations were made to rebuild the fence, Mr. Lang, the ajjpellant’s tenant, informed Mr. Skelton that there was no necessity of rebuilding the fence, for it was not worth while. His testimony shows that there was no fence on the east boundary, Alice road, of appellant’s land, north of the portion where the canal enters the appellant’s land and until the next iroad crossing is reached. The¡ appellant quotes from himself and his tenant, Mr. Lang, with regard to the fences, in his third proposition, and refers to this testimony as uncon-tradieted. This testimony is very materially contradicted, especially in view of the fact that the jury, after hearing these controverting statements, visited the actual stationary material facts and then mentally decided to render a decision thereon after satisfying their senses of sight and hearing.

The fact that the jury visited the premises is alone sufficient to sustain the verdict; and there is sufficient testimony alone in the record to sustain every item complained of.

1 Thompson on Real Property, § 2S0, p. 359, contains the following definition of easement: “An easement is a privilege without profit which one has for the benefit of his land in the land of another.”

Section 299, p. 383, 1 Thompson on Real Property, states: “An easement which by grant, reservation or prescription ,is appurtenant to land is not a mere privilege to be enjoyed by the person to whom it is granted or by whom it is reserved. It passes by deed of such person to his grantee and follows the land without any mention whatever. An appurtenant easement, being an incorporeal right, is incapable of existence separate an'd apart from the corporeal property to which it is appurtenant, and is as a necessary concomitant, and must pass with the land upon conveyance thereof.”

The above general statements of law fit exactly the fact situation.here presented; for the West Brownsville Canal Company, a corporation owning a mass of realty, had installed, on a small basis, an irrigation company. Thereafter, retaining enough real estate for its business as an irrigation company and specially reserving easement rights to go upon the land conveyed in order to enlarge upon and perfect its system, it conveyed all surplus land to the Brownsville Band & Improvement Company. The improvement company then, in turn, divided the land up into small plots and sold to individuals, one of whom was the appellant, and in each deed specifically incorporated the deed to it from the canal company, and specifically set up and reserved to its predecessor easement rights for extending and perfecting irrigation canals and drainage ditches. Eater, as the necessity arose for a perfected irrigation and drainage system, the canal company sold out to the Cameron County Water Control & Improvement District No. 7, a corporation well able to handle the enlarged affairs, and in the conveyance passed all its lands, easements, rights of. way, and irrigation and drainage works. Then this company,' the appellee, put to use the easement conveyed to it, by running a concrete lined irrigation canal and a drainage ditch over appellant’s lands, in an effort to lower the water table and make possible a profit-paying citrus or truck farm out of a theretofore useless 'stock ■ wallow. That the easement reserved by the canal company passed to the appellee is un- ■ questioned, for the appellant goes no further than to deny this in his pleading. That the appellee made use of the easement so conveyed to him is admitted by his pleadings, and now the appellant, apparently as a last resort, expends efforts to collect nominal damages and costs, claiming a technical injury to a legal right. So far as we can find, the law set out in appellant’s fourth proposition is absolutely correct. But nominal damages “are given not as an equivalent for the wrong but in recognition of a technical right, and by way of declaring the right.” 17 O. J. § 58, p. 720.

“Nominal damages are regarded as the subject of a substantial legal claim, and a party is entitled to them in case he can show any injury to his legal right.” 17 O. J. § 58, p. 720.

We have carefully examined the requested charges, and they seem to have been effectively embraced and given in the court’s several issues, as far as they have been requested, and we find no error in their refusal, and, if any, it was harmless.

The assignments have been in all things considered and, finding no substantial error committed, the judgment is affirmed.