text:
    FOWLER v. STATE.
    No. 14072.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Rehearing Denied June 17, 1931.

      MeGaugh & Darroch, of Brownwood, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is ' murder; the punishment, confinement in the penitentiary for two years.

The motion for new trial was overruled oil August 11, 1930, and notice of appeal given on the same date. The statement of facts was filed in the trial court on November 14, 1930, which was more than 90 days after notice of appeal was given. This was too late, the 90 days allowed by the statute having expired. Article 760, C. C. P. 1925; Simmons v. State (Tex. Cr. App.) 28 S.W.(2d) 1084.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Appellant’s Motion for Rehearing.

It is now made to appear by affidavits that failure to file statement of facts within time was not due to any negligence on the part of appellant or his attorney. Therefore the statement of facts will be considered.

Appellant admitted that he shot and-killed deceased, J. C. Barrett, but declared that he acted in his necessary self-defense. According to appellant’s version of the transaction, he and deceased had had some former difficulties in which he had knocked deceased down. At the time these difficulties were had deceased was living in appellant’s home, appellant being a tenant on a place belonging to deceased. * Deceased had moved away, but had returned with some Mexicans for the purpose of digging post holes. Appellant had ordered the Mexicans to leave the place. Subsequently deceased returned with the Mexicans. According to the testimony of the Mexicans who accompanied deceased, deceased was driving his car along the road when some shots were fired from a point near appellant’s barn. The Mexicans said that de> ceased did not get out of the car. Appellant testified that deceased had gotten out of the car and was attempting to fire upon him when he fired the shot that killed deceased. The state’s testimony indicated that appellant had made some preparation for killing deceased. It appears that deceased’s gun, loaded and cocked, was found in front of him in the road where his body was discovered. Appellant takes the position that the undisputed evidence shows that he acted in self-defense. We are unable to reach the conclusion that the evidence is insufficient. The jury would have been warranted in concluding from appellant’s testimony that he acted in self-defense. On the other hand, they were warranted in concluding from the testimony of the Mexicans who accompanied deceased along the road that appellant fired upon deceased while he was driving his car and before deceased made any demonstration. Moreover, the testimony touching the preparation made by appellant tended to rebut the defensive theory, See Gilliam v. State, 113 Tex. Cr. R. 108, 18 S.W.(2d) 637.

Bill of exception No. 2 recites that the district attorney, in his closing argument, used language as follows:

“They were sitting up there like a couple of snakes, Bailey and old man Fowler, looking through the fence, the only difference between them and snakes is that a snake rattles and they shoot guns.”

Objection was interposed and the court sustained the objection and gave a written instruction to the jury wherein they were advised not to consider the argument for any purpose. Appellant contends that the argument was obviously prejudicial, and that the instruction of the court could not erase its effect from the minds of the jury. We are unable to agree with this contention. If improper remarks are withdrawn by the court and the jury instructed not to consider them, ordinarily the injury, if any, has been cured. Branch’s Annotated Penal Code, § 362; Love v. State, 35 Tex. Cr. R. 27, 29 S. W. 790. We do not deem the argument of such a nature as to be obviously hurtful and prejudicial.

Bill of exception No. 3 recites that the district attorney stated in his closing argument, in substance, that Bailey Fowler, appellant’s son, came over to appellant’s house on the night preceding the homicide where he and appellant planned murder, “as dark as Stygian night.” The court overruled appellant’s objection to the argument, and declined to instruct the jury not to consider it. The evidence showed that Bailey Fowler did not reside at his father’s home. It further shows that on the night preceding the homicide he spent the night with 'his father. Moreover, there is evidence in the record that Bailey Fowler approached the body of deceased after the fatal shots had been fired, and that he was armed with a gun. We think the statement of the district attorney involved no more than his opinion that the circumstances warranted the conclusion that appellant and his son had plotted' to kill deceased.

Bill of exception No. 4 recites that the district attorney, in argument, referred to appellant as a “cowardly assassinating cur.” Appellant’s objection was sustained, and the court instructed the jury not to consider the argument for any purpose. We do not de§m the argument of such grave character as to render it obviously injurious and prejudicial. The prompt action of the court in withdrawing the remarks from the jury, in our opinion, sufficiently protected appellant’s rights.

As disclosed by hill of exception No. 5, the district attorney stated to the jury, in effect, that if they brought in a verdict of not guilty they would turn loose a “dirty, sneaking assassin.” Again the court sustained the objection and instructed the jury not to consider the remarks. What we have said with reference to bill of exception No. 4 is applicable to the situation presented by the bill under consideration.

A careful examination of .appellant’s contentions leads us to the conclusion that reversible error is not presented.

The motion for rehearing is overruled.

PER CURIAM.

■The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    FOY v. STATE.
    No. 13884.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Rehearing Denied June 17, 1931.
    Watson & Watson, of Crosby ton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

The reeord shows that the indictment herein was returned January 16, 1930, and that this case was continued for the term on February 3, 1930, upon application of appellant. When the case was called for trial at the April term following, appellant made an application for continuance because of the absence of NWon, Massie, Wood and Williams. The onry diligence averred in the application was based on process issued at the preceding term of .court. No subpoena or attachment for any of the absent witnesses at the April term appears from the record to have been issued; nor is it shown that any of said witnesses were present at the January term; or then recognized to appear. The application appears wholly unsupported by any showing of diligence. It is unnecessary to state, but an analysis of the testimony of the witnesses referred to in the application further supports the correctness of the trial court’s action in overruling the application.

Bill of exception 2 complains of the failure of the main charge, and bill of exception 3 complains of the refusal of a special charge, bearing upon the proposition that in-procuring the whisky which he furnished to the officers, and for which they páid him, appellant was acting for said officers is an effort to aid them in enforcing the law. The court in his main charge told the jury that if they believed appellant was acting for and in behalf of the purchaser, and not in behalf of himself, nor in behalf of the seller of such liquor, or if they had a reasonable doubt thereof, they should acquit him. We see no error in the court’s charge, or in his refusal of the special charge.

The remaining bill of exception, complaining of the refusal of a new trial, manifests no error. An effort was made in this connection to show the materiality of the testimony of the absent witnesses mentioned in the application for continuance. We think the new trial properly refused.

No error appearing, the judgment will be affirmed.


author: CALHOUN, J.

text:
    HENSHAW v. STATE.
    No. 14204.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, felony theft; punishment, four years in the penitentiary.

The point was made on the trial, and is urged here that there was a variance in the proof of ownership as alleged in the indictment. The indictment was in four counts. The count in the indictment on which the appellant was convicted charges that he: “did then and thére unlawfully and fraudulently take about twenty six joints of oil well casing of the value of over Fifty Dollars, from the possession of A. M. Martini, without the consent of the said A. M. Martini, the same being the corporeal personal property of and belonging to the said A. M. Martini, and with the intent then and there on the part of the said J. H. Henshaw to deprive the said A. M. Martini of the value of the same, and to appropriate the said property to the use and benefit of him, the said J. H. Henshaw.”

The proof showed that the pipe belonged to the Bell Oil & Gas Company, and that one Mark Finston was an officer in said company, and also had some personal interest in the Panhandle oil field, and that the said Martini was a representative of Finston, and also was a representative of the oil company engaged in the drilling of oil wells, which was also the business of Finston. The evidence showed that Martini was looking after the property of the Bell Oil & Gas Company and Finston. The proof further showed that, prior to the alleged theft of the property alleged in the indictment, one R. E. Sweeney was drilling a well in Carson county, and that one J. H. Flesher was instructed by his superiors in the Bell Oil & Gas Company to furnish said Sweeney with a quantity of pipe, and that he did furnish him with a large quantity of pipe, some of which was 6½" pipe; that the said Sweeney called for in person and carried away on his trucks the said 6¼'' pipe; that he received said pipe from' said Flesher in Hutchinson county, and carried it to a well that said Sweeney was drilling in Carson county. The proof further showed that, at the time the pipe was taken, it was upon the lease of said R. E. Sweeney, and was in his possession and under his care, control, and management at the well where the operation was being conducted. Martini testified that Sweeney had the actual possession of the pipe at the time it was stolen; that he (Martini) made occasional visits in and around the well, never staying over ten minutes at any one time. The contention is made that the proof is insufficient to show ownership or possession in Martini, because, granting that the said Martini was looking after the property of Finston and also of the oil company, yet he was not in actual possession of the property at the time the same was taken, and that, in order fot the state to make a case, it was necessary that it be shown that Martini was at the time it was taken in possession of the alleged stolen property. Neither Finston nor Sweeney were present nor testified in said case.

That property may be stolen from a special owner is well established, but it seems to be the well-established rule announced by this court that, where special ownership is relied upon in order to meet the requirements of law, it must show that the special owner was in the possession of the stolen property. See Frazier v. State, 18 Tex. App. 434; Miller v. State, 88 Tex. Cr. R. 157, 225 S. W. 262; Williams v. State, 101 Tex. Cr. R. 523, 276 S. W. 282.

In the case of Miller v. State, 88 Tex. Cr. R. 157, 225 S. W. 262, 263, Judge Morrow, in passing upon the same question involved in this case, used the following language? “The person having actual charge, control, and management should be named in an indictment for theft as the owner. The statute on the subject was so construed in Frazier v. State, 18 Tex. App. 442, a case which has been followed in numerous instances, and, so far as we are aware, without departure.”

The count of the indictment upon which appellant was convicted charges that the property was in the possession of one Martini. There being no evidence in this case showing that the witness Martini was "in actual possession of the property at the time it was alleged to have been stolen, the mere fact that he was field manager for the Bell Oil & Gas Company and had general supervision of their property and the property of Mr. Finston personally would not supply this proof. The proof does show, however-, that the property was taken from the possession of one R. E. Sweeney, whom it is shown had the possession, care, control, and management of the property at the time of the theft. The proof failing to show possession of the said property in Martini, we must necessarily hold that the allegations and proof do not correspond, and for that reason the judgment must be reversed and the cause remanded.

Reversed and remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    GRAY v. STATE.
    No. 14171.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Grady Sturgeon, of Austin, and J. T. Rans-pot, of Mineral Wells, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, statutory rape; punishment, five years in the penitentiary.

Prosecutrix testified, in substance, as follows: That at the time of the alleged, offense she was sixteen years old; that the appellant, with his wife and family, resided in the same community in Lamar county as she did; that at the suggestion of the appellant and his wife, prosecutrix by and with the consent of her parents, accompanied appellant and his wife on a week-end visit to the sister of appellant’s wife in Mineral Wells; that they left home Saturday morning and arrived in Mineral Wells that afternoon; that they traveled in appellant’s car; that they went to the room of appellant’s wife’s sister; that-that night appellant’s wife and children and prosecutrix stayed at the room of his wife’s sister; that appellant stayed with one Dalton ; that on the next morning, Sunday, pros-ecutrix and one Willie Bell Hutchens, who was the sister of appellant’s wife, got in appellant’s autom.obile for the purpose of going to get a coat for appellant’s wife; that appellant’s wife’s sister was driving the car; that they saw appellant sitting on a curb of the walk near Dalton’s restaurant talking with Dalton; that appellant got in the car with them and stated to Dalton, “If my wife comes down here after me, don’t you tell her where I have gone”; that they drove away and that appellant was sitting between the two women; that they drove out about a mile east of Mineral Wells and turned off into a country road; that the car was stopped near there in some mesquite trees and was within about fifty yards of a house. Prose-cutrix further testified that when the car was stopped, she was told by appellant and his wife’s sister to get out, which she did, whereupon appellant told her to follow him, which she did; that they went about fifty yards from tile car and appellant told her to lay down, stating that he could not do anything standing up. She -testified that she laid down and appellant pulled her bloomers down and after some repeated efforts succeeded in having intercourse with her, which she testified was attended -by considerable pain; that after the act they returned to the car. Prose-cutrix said it all took place within a period of ten minutes. She testified that when they came to the car, she was crying, whereupon appellant and his wife’s sister laughed at her; that she did not tell appellant’s wife’s sister what had happened; that while they were driving back to town, appellant’s wife’s sister asked her if that was the first time and told her that it would hurt the first time, but not any more. When nearing the city, she testified that appellant got out of the car and ttiat she and said Willie Bell Hutchens continued in quest of the coat for Mrs. Gray; that all the parties spent Sunday afternoon at the air port in Mineral Wells and left there for home during the afternoon; that, they stopped at Dallas and attended a picture show and arrived home about midnight Sunday night. ' Prosecutrix fixed the date of the alleged offense on May 6, 1929. She gave birth to a child on the 16th day of January, following. Prosecutrix only communicated the fact of her pregnancy to her mother in September, when her mother found it out. She had told no one about the alleged offense.

Appellant testified as a witness in his own behalf, denying the entire transaction. He was corroborated in this by his wife, who testified that on the trip to Mineral Wells and while in Mineral Wells she wa‘s in company with the prosecutrix at all times and prosecutrix did not leave her and go off in the automobile with her sister.

In his motion for new trial, appellant alleged that the jury, after retiring to deliberate upon the case, received other testimony. The specific complaint was that before determining the guilt of appellant, one of the jurors stated to the balance of the jury that the rooms to which appellant took his wife and the prosecuting witness weré rooms in a house of prostitution 'occupied by lewd and immoral women, and that the place had a bad reputation. The testimony complained of had not been received in evidence during the trial.. The testimony heard by the court on the motion was to the effect that the statements to which complaint was made were made by one of the jurors at a time when the jury stood eight for conviction and four for acquittal, and that thereafter a verdict of guilty was reached and returned. Some of the jurors testified that they did not remember hearing the statements. No juror testified that they were not made. The jurors testifying that said statements were made” were not contradicted. We are of the opinion that the learned trial judge should have granted the motion for new trial. Subdivision 7, art. 753, O. O. P., provides that a new trial shall be granted in cases of felony where the jury after having retired to deliberate upon a case have received other testimony. Information given by one of the jurors is new and other testimony within the meaning of the statute. See McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930. Where, after retirement, the jury receives other evidence damaging to the accused,, the presumption of injury will obtain. Holland v. State, 107 Tex. Cr. R. 582, 298 S. W. 898, and authorities cited.

By proper bill of exception appellant complains of the action of the district attorney in propounding to the appellant, while he was testifying in his own behalf, and at a time when he had not put -his general reputation in issue, the following question: “Now ■tell the jury how many times the officers have raided your house and searched for liquor,” to which question appellant objected .in open court because said question was an insinuation that appellant’s house had beeri raided by the officers and searched for liquor, and was,, in effect, an attempt to get before the jury evidence of an extraneous offense in ho way connected with the offense for which the appellant was on trial, and that the sustaining of appellant’s objection and exception to said question did not cure the injury and prejudice thus created against the appellant. That such question was improper and hfirtful is manifest, and -we cannot gauge the evil effect upon the jury of such improper-question, especially when as shown by the record that some, if not all, of the jurors in their deliberations, before arriving at a verdict, mentioned or discussed tbe excluded question asked by , tbe district attorney to tbe effect tbat appellant bad been charged or bis place raided and searched for liquor, and that be bad violated other laws. See Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029; Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430; Hunter v. State, 113 Tex. Cr. R. 90, 18 S.W. (2d) 1084.

Complaint is also made by tbe appellant of certain remarks made by the trial court to tbe jury after they bad reported to bim tbat they were hopelessly bung as to bow long tbe court would be in session, etc. We do not deem it necessary to discuss said bill as no doubt no attempt to coerce tbe jury was intended by the trial judge, but, in passing, we feel constrained to say that the deliberations of a jury are not to be interfered with while they are considering tbe law and tbe testimony, which alone' must control their verdict. They are by no means to be influenced by fear of continued confinement and thereby be alarmed into an ■ agreement. A verdict attained through coercion or restraint of tbe jury may be, upon proper showing, set aside.

For tbe errors pointed out, the judgment is reversed, and tbe cause remanded.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals ha& been examined by tbe judges of tbe Court of Criminal Appeals, and approved-by tbe court.


author: MORROW, P. J.

text:
    WRIGHT v. STATE.
    No. 14398.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    R. L. Lattimore, of Paris, and R. B. Johnson, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of ten years.

The indictment is regular and regularly presented. The evidence tbat was before the trial court is not brought up for review. In the absence of tbe evidence, this court is unable to determine the merits of the appellant’s contention tbat tbe court’s charge should have been supplemented by the special charges presented. The special charge touching the suspended sentence law was obviated by one given by tbe court upon the same subject.

No other questions are presented for review. No fundamental error apparent from the record has been perceived.

The judgment is affirmed.


author: BAROUS, J.

text:
    DONHAM v. RUGEL.
    No. 1018.
    Court of Civil Appeals of Texas. Waco.
    May 21, 1931.
    Collins & Martin, of Hillsboro, for appellant.!
    Frazier & Averitte, of Hillsboro, for ap-pellee.
   BAROUS, J.

This suit, was instituted by appellee against appellant to recover damages which he claims to have suffered in an automobile collision. In July, 1929, appellee was driving a Buick car going north on the Port Worth pike near Itasca. The cement road at said place was eighteen feet wide. There was parked on the side of the road a car facing south, having stopped for some repairs. A Pord coupé was going south, and passed the parked car, and, just as it started to pass the parked car, appellant, also going south driving a Chevrolet, attempted to pass the Pord car. .At the time appellant attempted to pass the Ford car, appellee was about fifty or sixty feet from the Pord car going north, and, in attempting to pass between the Pord car and the Buick car driven by appellee, appellant ran into appellee’s car, and damaged same to the admitted extent of $850. Appellant’s car was damaged admittedly $300 in the collision. Appellant filed cross-action against appellee for his damages.

The cause was tried to a jury, and the jury found that appellant was negligent in attempting to pass the Pord car, and that said negligence was the proximate cause of the injury. Based on said findings, the trial court entered judgment for the appellee for the agreed amount of damage to his car.

Appellant contends that the trial court should have instructed the jury to return a verdict in his favor on the theory that there was no negligence shown on his part. We overrule this contention. The testimony shows without dispute that áppellant attempted to pass the Pord car when appellee was approaching from the opposite direction, and, in order for appellant to have passed the Pord car, he would have had to drive between the Pord car and appellee’s car. The evidence shows that appellant was driving between thirty-five and forty-five miles an hour; that appellee was driving his car on his right-hand side of the road, and £hat his car was almost entirely off of the cement portion thereof, and that appellant struck appellee’s car. The evidence abundantly supports the jury’s'finding that appellant was negligent, and that his negligence was the proximate cause of the injury. McCall v. Frenzel (Tex. Civ. App.) 32 (S.W.(2d) 965; , subdivision A, article 801, Penal Code.

By a number of assignments of error, appellant complains because the trial court did not submit certain special issues and certain definitions to the jury. Appellant made no request for said issues or special instructions to be submitted, and, in the absence of a special request, the errors,' if any, are not reviewable by the appellate court. Article 2190 of the Revised Statutes; Gulf, Colorado & Santa Fe Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183. There are some objections to the court’s charge contained in the transcript and also two special issues. Neither the objections nor the special issues appear to be signed by counsel for appellant; neither do any of them appear to have been submitted to or acted upon by the trial court. The only special issue requested and refused by the trial court was the peremptory instructions requested by appellant. We have, however, examined the exceptions made.and the special issues which are copied in the transcript, and, if same were in fact overruled and refused by the trial court, same show no error. •

We have examined each of appellant’s assignments of error and propositions thereunder, and same are overruled. The judgment of the trial court is affirmed.


author: WALKER, J.

text:
    GLENS FALLS INS. CO. et al. v. BENDY et al.
    No. 2012.
    Court of Civil Appeals of Texas. Beaumont.
    May 28, 1931.
    Rehearing Denied June 3, 1931.

      Gill, Jones & Tyler, of Houston, for appellants. '
    B. F. Pye, A. L. Calhoun, D. C. Marcus, and Howth, Adams & Hart, all of Beaumont (A. D. Lipscomb and Elton Cruse, both of Beaumont, of counsel), for appellees.
   WALKER, J.

In this case in a jury trial in the lower court appellees, C. C. Bendy & Sons, a partnership composed of C. C. Bendy, C. J. Bendy, and W. C. Bendy, recovered judgment against appellants, Glens Fails Insurance Company, New Jersey Insurance Company, and Norwich Union Fire Insurance Company for $10,500 upon three policies of fire insurance, of which amount $3,000 was for the loss and destruction by fire of ope hollow tile building and $7,500 was for the loss and destruction of certain machinery and equipment located in said building. Other parties appeared in the case as interveners and were awarded specific recoveries against the judgment in favor of G. C. Bendy & Sons. The insurance companies will be referred to as appellants, O. C. Bendy & Sons as appellees, and the interven-ers by name.

Appellees instituted separate suits against appellants, but by orders of the court the three suits were consolidated and tried as one. Appellees in their original petition merely pleaded the issuance of the policies, the loss, and the performance of the necessary prerequisites to fix liability for the loss. Appellants answered by general and special demurrers, general denial, and by specially pleading á breach of the following condition of the policies: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if * * * before a fire occurs the insured shall obtain or receive information that foreclosure proceedings have been commenced or that notice has been given or posted of sale of any property covered by this policy by virtue of any mortgage or trust deed.”

The following plea was the only answer on the merits made by appellees to the special plea of appellants: “Plaintiffs further show to the Court that after the occurrence of the fire in question and having full knowledge of same and of the suit instituted by Stedman Fruit Company and of what proof of loss plaintiffs would make, R. E. Smith & Co., agent for defendant, assured plaintiffs that said loss would be paid promptly, and requested plaintiffs to pay the balance due on this policy of insurance and the two policies in other companies written by the said R. E. Smith & Co., on the same property, and that plaintiffs relying upon such representations did pay the balance due on said policy, whereby, defendant waived any and all alleged grounds of forfeiture plead by it in its pleadings.”

Appellants’ first contention is that on the undisputed evidence the condition of the policies specially pleaded by them was breached, thereby rendering the policies .void, and that the court erred in not instructing a verdict in their favor except as to “the amount of premiums paid on the policies” which they tendered to appellees as part of their answer.

The facts under this proposition are sub-, stuntially as follows: The three policies sued upbn were issued and delivered to appellees On the 17th day of August, 1928, and each of them contained the condition specially pleaded by appellants. August 24, 1928, intervener Stedman Fruit Company instituted suit in district court of Jefferson county against ap-pellees upon a claim in the sum of $2,500 and to foreclose a chattel mortgage lien, given by appellees to secure the $2,500, against certain of the personal property covered by the policies sued upon. In that suit citation was duly issued and served upon each of the ap-pellees, and on the 17th day of September following, appellees filed their answer in that suit. On October 12, 1928, all the property covered by the-three policies involved, except a small amount not involved in this suit, was destroyed by fire. On the morning of October. 13,' 1928, R. E. Smith & Company, local agents of appellants in Beaumont, and who solicited, wrote, and delivered these policies, were notified of the loss of the property by fire and of the institution of the foreclosure suit by intervener Stedman Fruit Company against appellees. The proof indicated that suit was settled by agreement, but the date and terms of the settlement, and whether or not the case was pending on the docket of the court when the fire occurred, were not shown. The amount of the premium for the three policies sued upon was $198.50, of which amount $184.79 remained due and unpaid at the time of the fire. After receiving the information as to the fire and the institution of the foreclosure suit by Stedman Fruit Company, R: E. Smith & Company demanded of appellees the payment of the balance due on the premiums, and, meeting this demand, appellees paid R. E. Smith & Company the full balance due in the sum of $184.79 on the 16th day of October, 1928. On this issue W. C. Bendy testified as follows: “After the fire, we notified the insurance agents the next morning. And they knew about it before that time, because we notified tlie general publib in town that we wouldn’t make deliveries that morning on account of the fire. When I returned off the route the morning after the fire, Mr. Hodgson, of It. E. Smith & Co., and Mr. Cook, who is in the insurance business here as adjuster, were out there. Mr. Hodgson told me as soon as we would pay the balance of the premiums, we would get quick action on securing the loss. They were looking over the fire when I returned home. * * * I borrowed the money with which to pay the balance due on these policies,' which Mr. Hodgson requested me to pay. That was the balance due on these three policies of insurance.”-

There was some testimony by appellants to the effect that credit for the unearned premiums u>as extended appellees by K. E. Smith & Company and that appellants had “nothing to do with the extension of the credit.” But there was no suggestion that appellees knew this fact, nor was there any testimony that appellants had assigned this claim to B. E. Smith & Company. The record sustains the conclusion that appellees paid the balance due on the premiums to R. E. Smith & Company, as agents of appellants, upon the faith of the representations made to them when demand was made for the payment that “as soon as we could pay the balance of the premiums we would get quick action on securing the loss,” believing B. E. Smith & Company had authority from appellants to make this promise. Appellees had no notice, actual or constructive, of any limitation upon the authority of R. E. Smith & Company to represent appellants in collecting the balance due on the premiums, or to contract in relation thereto. At the time these policies were written and delivered, and at the time of the fire, and at the time appellees paid the ^alance due on the premiums, R. E. Smith & Company held written certificates of authority from each of the appellants authorizing them “to receive proposals for insurance against loss and damage by Fire & Tornado in Beaumont and vicinity, to fix rates of premium, to receive moneys, and to countersign, issue, renew and consent to the transfer of policies of insurance signed "by the president and attested by the secretary of the New Jersey Insurance Company, subject to the rules and regulations of said company ; and to such instructions as may from time to time be given by its officers.”

After receiving the balance due on the premiums in the manner stated, appellants made no offer to appellees to refund to them the unearned premiums until they made the tender as part of their original answer, filed herein on the 28th day of February, 1929. Each appellant duly answered in the case filed against it and after the consolidation they made a joint defense. Appellant New Jersey Insurance Company thus pleaded its tender of the premiums received for the policies: “Defendant herein tenders in open court the sum of Seventy-Five ($75.00) Dollars being the pre- - mium paid on said policy with legal interest thereon from date of its payment and asks that said policy be held for naught.” Appellants made no issue by any special plea that R. E. Smith & Company were not acting as their agents in receiving from appellees the balance due on the premiums.

Under the authorities of this state, the fact that appellees, before the fire, received information that the foreclosure proceedings had been instituted by intervener Stedman Fruit Company, constituted a breach of the condition of the policies, pleaded by appellants, sufficient to render the policies void. Home Insurance Co. v. Puckett (Tex. Com. App.) 27 S.W.(2d) 111, 114, and authorities therein cited. Because of this breach, appellants were entitled to the instructed verdict as requested by them, unless the breach was waived by the act of their local agents in demanding and receiving of appellees the balance due on the premiums for which the policies were issued. Appellees have advanced in their brief other propositions of waiver, ratification, and estoppel,(\yhich cannot be considered in aid of the judgment because not specially plead.

■ In our judgment, on the facts stated, the collection of the past-due 'and unearned premiums after the fire constituted a waiver of the breach alleged by appellants. “It is a well-recognized rule that forfeitures are not favored in law.” Home Insurance Co. v. Puckett, supra. It is also the law that “the slightest evidence indicating waiver of forfeiture will support a jury finding to that effect.” Nat. Standard Fire Insurance Co. v. Hubbard (Tex. Civ. App.) 31 S.W.(2d) 859, 860. So, the courts hold generally that an insurer is es-topped to assert that a fire policy is avoided where, after the insured property has been destroyed by fire, with knowledge of the breach making the policy void, it demands and accepts payment of the past-due and unearned premiums. 14 R. C. L. 1197; Cooley’s Briefs on Insurance (2d Ed.) vol. 5, p. 4325; Couch’s Law of Insurance, vol. 3, § 690, p. 2289; German Alliance Insurance Co. v. Elevator Co. (Tex. Civ. App.) 257 S. W. 273. The opinion of the Court of Civil Appeals in the Puckett Case, reported 17 S.W.(2d) 849, sustains this proposition. The substantive law of that case was reaffirmed by the Commission of Appeals in its opinion, 27 S.W.(2d) 111, 113, but the judgment of the Court of- Civil-Appeals was reversed because the commission was of the opinion: “That, taking the entire testimony as shown from this record in its most favorable light, it is not shown that any agent, officer, or representative of the insurance company, with full knowledge of the facts pertaining to the loss sustained by plaintiff, waived any of the provisions of the policy',”

It follows that the only open question in this case was the authority of R. E. Smith & Company to demand and receive from appellees, in the name of and as agents of appellants, the payment of the balance due on the premiums for which the policies were issued. We think, on the following facts, these agents had this power. Under their written certificates of authority they were given power not only to solicit this insurance, to fix the premium rates and execute and deliver the policies, all of which they did, but also “to receive moneys” for appellants from' appellees in payment' of the policy premiums. There was no limitation in the certificates of authority to the effect that R. E. Smith & Company could not “receive moneys” after a fire -loss. As appellants did not impose this limitation upon their agents, the law will not do it for them by process of construction. Also, had appellees pleaded the issue, it could be said that appellants, by receiving the past-due premiums from their agents ■after the fire (shown by the fact that they made appellees a tender of this fund), and retaining it in their possession until the tender was made, with knowledge of the breach, ratified all their agents did in collecting it; but without this plea this testimony has strong probative force on the issue of actual power in the agents to collect the past due premiums.

The amount of the premiums was due, and undei written authority R. E. Smith & Company collected this amount with full knowledge of the fire loss and of the institution of the foreclosure suit. This act by the agents constituted a waiver of the alleged .breach. The opinion of the Commission of Appeals in the Puckett -Case, supra, fully supports this conclusion. German-American Insurance Co. v. Waters, 10 Tex. Civ. App. 363, 30 S. W. 576, and American Cent. Insurance Co. v. Huston (Tex. Civ. App.) 261 S. W. 158, cited by .appellants in support of their theory that R. E. Smith & Company have no power to bind them by anything done after the fire, are clearly’ distinguishable on their facts from' the facts of this case.

But to bind appellants it was not necessary that R. E. Smith & Company have a specific grant of authority to collect unearned premiums after a fire loss, but only that, in doing so, they act within the apparent scope of their authority and that appellees, in good faith, not knowing the extent of their authority, pay them the premiums. AEtna Insurance Co. v. Brannon (Tex. Civ. App.) 91 S. W. 614; Manhattan Life Insurance Co. v. Stubbs (Tex. Com. App.) 234 S. W. 1099; Niagara Insurance Co. v. Lee, 73 Tex. 641, 11 S. W. 1024; Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63. Having-solicited, written, and delivered these policies, and before the fire collected part of the premiums, and having general authority to collect all premiums, we think it necessarily follows that if they did not have'actual authority, they had, at least, apparent authority to collect, after the fire, the balance due on these policies.

Appellants say that the act of their agents does not constitute a waiver of the breach because the record does not show that at the time they demanded and received of appel-lees payment for the past-due and unearned premiums they had knowledge of the fact that appellees knew of the institution of the foreclosure proceedings. There is no merit in this contention. The foreclosure proceedings had been pending about two months at the time of the fire, and the circumstances in evidence, as detailed above, were sufficient to put the agents upon inquiry as to notice to appellees of the foreclosure proceedings; nor is there any merit in the contention, advanced by appellants on oral argument, that the credit for the past-due premiums was extended by R. E. Smith & Company and not by them. This conclusion follows because appellees paid the money to its agents in good faith, believing they had the power to receive it. and, as above concluded, they had that power, either actual or apparent.

Even if appellants are right in saying that a local agent, as such, has ho authority after a fire to waive a valid defense against the policy, this proposition would relate only to an express waiver, as such, and could not defeat the legal consequences of an act performed by an agent in the scope, actual or apparent, of his delegated powers. Having acted within the scope of his power, actual or apparent, his principal is bound by its legal consequences. There is no suggestion in the record that R. E. Smith & Company knew that the institution of the foreclosure proceedings breached the policy, and with this knowledge waived, or attempted to waive, the breach. There is no suggestion that they were attempting to assume any power not lawfully theirs. The whole record sustains the conclusion that these agents acted in perfect. good faith, believing they were protecting the interest of their principals in demanding and receiving payment of the past-due and unearned premiums.

By the fourteenth question the trial court submitted to the jury the issue as to whether or not the fact that appellees knew of the institution of foreclosure proceedings before the fire “caused the fire or contributed to its cause.” This question was excepted to by appellants on the theory that article 4930, Revised Statutes as amended by Acts 40th Leg. (1927), c. 33, § 1 (Vernon’s Ann. Civ. St. art. 4930); known as the Anti-Technicality Law, had no application to the condition of the policy specially pleaded by them as a defense. That contention is sound and this question should not have been submitted. But since the judgment does not necessarily rest upon the jury’s answer to this question, it. becomes immaterial and its erroneous submission does not constitute reversible error.

By their eighth, ninth, and tenth propositions appellants assert that (8) “the verdict of the jury fixing the actual cash value of the machinery and equipment before the fire at $7805.51 is excessive,” (9) that the verdict is without support in the evidence “because there was no testimony as to the actual cash value thereof immediately before the fire,” and (10) “the court erred in permitting testimony as to the value to plaintiffs of the machinery and equipment in question before the fire.” Propositions & and 9 have no merit, provided the tenth proposition 'does not present eiTor, because, if admissible against appellants’ exceptions presented by the tenth proposition, the evidence clearly supports the jury’s verdict. We Relieve the court did not err in permitting ap-pellees to testify as to the value of the property- to them. In Int. & Gr. N. Railway Co-, v. Nicholson, 61 Tex. 550, speaking for the Supreme Court, Mr. Chief Justice Willie said: “As compensation for the actual loss is the fundamental principle upon which this measure of damages rests, it would seem that the value of such goods to their owner would furnish the proper rule upon which he should recover.” In Houston & T. C. Railway Go. v. Lewis (Tex. Civ. App.) 185 S. W. 593, 594, the court said: “The fundamental and controlling principle is that the injured party shall have actual pecuniary compensation for the injury received, so that he may be placed as near as may be in the condition which he would have occupied but for the injury sought to be redressed.”

In answering the foreclosure suit instituted against them by intervener Stedman Fruit Company, appellees pleaded, but the pleading was not sworn to, that certain machinery covered by these insurance policies was worthless. By their verdict in this case the jury found that this machinery was worth $3,000. On the issue of value appellants offered this pleading in evidence, but it was excluded on the exception of appellees that the plea was not sworn to. This testimony should have been admitted, but we do not think its exclusion constituted reversible error. It does not appear from the bill of exceptions that the appellees knew that this statement was in their answer, or that they knew that an answer had been filed in the case for them, and it does appear in the record that the suit was settled by agreement and that they recognized their obligations to ■Stedman Fruit Company for the full purchase price of this machinery.

In submitting the special issues the trial court so framed them as to submit the issues affirmatively, thus to give one of the issues: “Do you find from the preponderance of the evidence that the machinery and ■equipment in the hollow tile building was burned to such an extent that it was a total loss under the terms of the policy? Answer ‘Yes’ or ‘no’ as you find the facts to be.” The objections to these issues is that “such submission indicates that in the opinion of the court the question should be answered in the affirmative.” There is no merit in this contention. Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S.W.(2d) 208. Appellants cite in support of their proposition our opinion in Stedman Fruit Co. v. Smith (Tex. Civ. App.) 28 S.W.(2d) 622. This case is not in point on the proposition.

Appellants assign error against the ruling of the court permitting appellees to ask G-eorge D. Hodgson, a witness for appellants, the two following questions:

“I will ask you if it isn’t true that your attorneys told you that if Mr. Calhoun’s statements were true that it amounted to a waiver of any right to forfeit this policy on the part of this company?”
“I will ask you if it isn’t true that your attorneys told you that if Mr. Calhoun’s statements were true that it amounted to a waiver of any right to forfeit this pqlicy on the part of this company?”

The bills of exception do not show that the witness answered these questions, which relieves the assignment of error. Again, the exception was merely that the questions were “prejudicial.” Such an exception was too general to constitute error.

From what has been said. It follows that, the judgment of the lower court should be af-' firmed, and it is accordingly so ordered.

Affirmed.


author: HAUL, O. J.

text:
    WHITMORE v. McNALLY et al.
    No. 3613.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.
    Rehearing Denied June 10, 1931.

      C. D. Russell and Joiner & Cook, all of •Plainview, for appellant.
    L. G. Mathews and Jeff D. Ayres, both of Floydada, and G. E. Hamilton, of Matador, for appellees.
   HAUL, O. J.

This is an action of trespass to try title instituted by appellant Whitmore against Mrs. McNally, R. M. Bruns and wife, and K. Sam-mann, to recover the title and possession of the N. E. ¼ of survey No. 126, block D-2, lying in Floyd county.

The defendant Sammann answered, disclaiming as to the land sued for, except a small portion lying within his enclosure. He alleges that he was holding the east half of survey 7, block M-14, as tenant for his eode-fendants.

The other defendants disclaimed, except as to a narrow strip of land lying between the holdings of the respective parties. ' As to this strip, defendants pleaded not guilty and various other defenses, including estoppel, agreed line, and limitations.

The only issues submitted to the jury were as follows:

(1) “Was the S. W. corner of Survey 7, Block M-14, marked on the ground by the original surveyor, J. Summerfield, at the time the original field notes of said survey were made by said surveyor? Answered: Yes.”
(2) “Can the original location of the mound, if any, at the S. W. corner of Section 7, Block M-14, be determined by you from the evidence in this case so as to identify the place-on tbie ground at this time and if it can be so located, state what mound marks the same. Answered: Yes, by going south 100 feet from the N. W. corner" of K. Sammann’s father present enclosure.”
(3) “Was the S. E. corner of Survey No. 7, Block M-14, marked on the ground by the original' surveyor, J. Summerfield, at the time the original field notes were made by said surveyor? Answered: Yes.”
(4) “Gan the original location of the mound, if any, at the S. E. corner of Section 7, Block M-14, be determined by you from the evidence in this case so as to identify the place on the ground at this time and if it can be so located, state what now marks the same. Answered: Yes, by going about 10 feet east and 10 feet south from the wagon spindle.”

From a judgment entered for appellees, this appeal is prosecuted.

The defendants failed to request any issues upon their special defenses of limitation, estoppel, and agreed line. These defenses, therefore, must be held to have been waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

It is clear from the record that the case is one to establish the boundary between the lands owned by the respective parties. Having abandoned all of the defenses except the general denial and plea of not guilty, plaintiff was required to prove only such title as entitled Mm to a judgment-for the lands de-. scribed in Ms petition as against the general issue and plea of not guilty. This being the condition of the record, the only inquiry is as to the true boundary line between the IjT- E. ½ of surrey No. 26, block D-2, and the East ½ of survey 7, block M-14, and the rights of the parties' must be determined by the location of that line upon the ground.

The first contention is that the record shows fundamental error in that the second and fourth answers of the jury are not responsive to said issues, in that the jury failed to state what, if anything, now marks the S. W. and S. E. corners of said survey 7.

In answering these questions, the jury said the’S. W. corner of section 7 could be located by going south 100 feet from the N. W. corner of K. Sammann’s father’s present inclosure and they located the ¡S. E. corner of survey 7 “by going about 10 feet east and 10 feet south from the wagon spindle.”

These answers are objectionable and insufficient upon several grounds. They are not responsive to the issues, and they can furnish no basis for a judgment fixing the boundary. There is nothing in the pleadings of either party referring either to the northwest corner of K. Sammann’s father’s inclosure or to the wagon spindle. The judgment of the court sets. out the charge, the answers of the jury to the issues, and then recites: “It is therefore ordered, adjudged and decreed by the Court that the said plaintiff S. F. Whit-more, take nothing by his suit herein and that the defendants Mary R. McNally, R. Martin Bruns, Mary M. Bruns, and K. Sammann, recover of plaintiff their costs in this behalf expended.”

The judgment nowhere fixes the line upon the ground by any object, corner, or monument set out in the pleadings. A judgment in a boundary base should follow the pleadings and must conform to the verdict, and if there is nothing in the verdict to locate the boundary, the judgment cannot do so. It is a fundamental rule in boundary cases that the verdict and judgment should definitely fix and establish the location of the line in dispute, and ordinarily should do so with reference to some known object concerning the identity and location of which there is no controversy. “The test of the sufficiency is as to whether the judgment so identifies the land that an officer charged with the duty of executing a writ of possession could go upon the ground and without exercising judicial functions, ascertain the locality of the line. "That is, where the officer could, with the assistance of a competent surveyor, find the line by the matter set out in the judgment.” Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Watkins v. Hines (Tex. Civ. App.) 214 S. W. 663; Billups v. Cochran,. 60 Tex. Civ. App. 473, 127 S. W. 1121; Collins v. Powell (Tex. Civ. App.) 268 S. W. 1031; Anderson v. Corbett (Tex. Civ. App.) 287 S. W. 66; 7 Tex. Jur. 258.

It is true that by referring to the evidence, an officer might execute his writ of possession, but the rule is that in rendering a judgment, the evidence cannot be referred to in aid of the verdict. The court can look alone to the pleadings, and the officer is subject to the same limitation. Burnett v. Harrington, 58 Tex. 359, 363; Brient v. Bruce, 5 Tex. Civ. App. 580, 24 S. W. 35.

The verdict being insufficient, without reference to the evidence, it follows that the judgment is also, defective. The defect is fatal in that it does not dispose of the issue of boundary between the parties. This will require a reversal.

In view of another trial, it is proper for us to briefly refer to further contentions made by the appellant. Because, as shown by the record, the defendants abandoned all defenses except the issue of the true line as fixed by the footsteps of the original survey- or, the testimony of the witnesses K. Sam-mann and Boswell are foreign to the issues presented here. The evidence of Boswell, to the effect that in 1909 he found a mound and four small pits at what he supposed to be the southwest corner of section 7, is of no probative force because the field notes of that survey do not call for such artificial objects. There is nothing in the record which tends to show that the original surveyor, Summer-field, marked the corners of this section with a mound and four pits. The field notes call for a mound at each corner. The appellant insists that the work done by Summer-field in locating blocks M-14 and D-2 are nothing more than office surveys. The evidence bearing upon that issue comes principally from surveyor Williams, who says that he has reviewed and traced Summerfield’s work for about twenty years and never found but one mound. The evidence further shows in relation to this issue that all of the field notes of block M, consisting of thirteen surveys, are dated March 7, 1878; that 29 of the surveys in block D-2 are dated March 22, 1878, and 22 of the surveys therein are dated March 24, 1878. That all of the other surveys, 60 in number, were dated June 1, 1878, and the calls for each survey are for a mound at every corner. Williams testified as an expert surveyor that no more than ten mounds could be made in one day and from this evidence we are asked to hold, as a matter of law, that Summerfield’s work is shown to 'be office surveys. We incline to the opinion that under this testimony, that would be an issue of fact for the jury. Of course, if they are office surveys and the issues of estoppel, agreed line, and limitation, are abandoned, the corners of the two surveys in question could only be located on the ground by course and distance from some well known and established corner.

The ground set up for motion for new trial was that, by obtaining other testimony, appellant could strengthen his case upon the issue of office surveys. Since that issue cannot arise upon another trial, it is unnecessary for us to discuss it.

For the reasons stated, the judgment is reversed, and the cause remanded.


author: RANDOLPH, J.

text:
    CITY OF PAMPA v. TODD et ux.
    No. 3523.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1931.
    Rehearing Denied June 10, 1931.
    Cook, Smith & Teed, of Pampa, for appellant.

      W. M. Lewright, Ben S. Baldwin, and B. L. Parker, all of Pampa, for áppellees.
   RANDOLPH, J.

This was a suit to recover damages filed by appellees against appellant for the negligent death of their daughter Mickey Todd. This Is the second appeal in this case. See (Tex. Civ. App.) 11 S.W.(2d) 247 for opinion on the former hearing, in which a statement of the case is made which is here adopted so far as it is applicable. Additional statements will be made as necessary.

The appellant, having pleaded that Luns-ford, the operator of the car, was guilty of negligence in driving a Ford coupé with four grown people therein and that the deceased, Mickey Todd, was guilty of contributory negligence in riding in a Ford coupé while the same contained four grown people, appellant alleges that it was error for the court to allow appellees’ witnesses to testify that it was more or less a common sight to see four people riding in Ford co-upés.

The jury found that Lunsford was not guilty of negligence in undertaking to operate the coupé with three other persons in the car with him, and that the deceased, Mickey Todd', was not guilty of negligence in riding in the coupé in which she was riding when same was occupied by *three other persons beside herself. In passing upon these questions of negligence, it must be remembered that the court had defined negligence and proximate cause, ordinary care, etc., in his charge to the jury. The evidence does tlot show that the deceased, while traveling in the coupé, was directly or in any way controlling its movements and that the sole charge of negligence against her was her presence in the coupé with three other persons.

Whether or not the presence of four people riding in a coupé was negligence, and where deceased was charged with contributory negligence and the driver of the car was also charged with negligence, depends on the circumstances of the case. This may or may not be negligence, according to whether or not it was customary for four persons so to ride. Evidence of its being customary for people to ride four in a coupé was admissible to meet the charge of contributory negligence brought against deceased. Missouri, etc., Ry. Co. v. Crane, 13 Tex. Civ. App. 426, 35 S. W. 797.

To rebut an allegation of a want of due care in a particular case, evidence of a general usage or custom is admissible to show what is due care asi applied to a particular ease. Barnes v. Zettlemoyer, 25 Tex. Civ. App. 468, 62 S. W. 111; Houston, etc., Ry. Co. v. Cowser, 57 Tex. 293; Gulf, etc., Ry. Co. v. Harriett, 80 Tex. 73, 81,15 S. W. 556.

The witnesses testified that it' was a common sight for four persons to ride in a" Ford coupó and this tends to offset the charge of negligence. In cases where the question involved is of such a character that the jury will be aided by being advised of the practices of others under like conditions, such evidence is competent, at least where the custom is general or universal, i. e., the purpose of holding this evidence admissible is not that the negligence of the deceased may be excused, but that the jury may be furnished with a guide as to whether or not the conduct charged against her constituted negligence.

The appellant contends that it was reversible error for the court to allow the witness Lunsford to testify that the driving of his car across the ditch would have resulted in wrecking his coupé.

The defendant’s exception to the court’s action presents a different question from the one stated in its proposition. Lunsford, the driver of the car, after- he had testified that when he saw the ditch he attempted to turn his car to the left and thus avoid it, was asked.by appellees’ counsel:

“Why did you turn your car to the left?
A. I did not think that I could make it.
“Q. You did not think you could make what? A. I did not think I could drive across it.
“Q. That is, you thought it would wreck your car?”

To the last question, counsel for the defendant objected for the reason that it was “leading and suggestive and it was not the testimony of the witness.”

The objection that the question was leading and suggestive is not the one presented by the proposition. The proposition is that the court erred in permitting the witness to testify that to have driven his car across the ditch would have resulted in wrecking it. We therefore overrule this contention.

The appellant also assigns as error that the witness Rice was permitted to testify, over its objection, that the ditch in question was too.deep to cross. The witness testified that he saw the ditch and did not want to cross it and backed up and turned around and went in another direction; that he did not want to cross it; that it was too deep for him to cross.

While the witness ¿ave his conclusions, he also stated a fact which is necessarily his judgment, that the ditch was too deep to drive across.

The appellant further assigns as error that the court erred in refusing to require the witness Lunsford to answer the question of the defendant: “Had it been night and your lights burning, could you have seen where the culvert 'had been any considerable distance before you got to it?” The plaintiffs objected to this question for the reason that the answer would be a conclusion of the witness which he was not qualified to state and the court refused to permit the witness to answer.

The defendant pleaded that it had not left any ditch by the removal of the culvert from across the street, but only a slight depression in the road which was plainly visible for a considerable distance on either side. It appears from the evidence that the culvert was removed by the employees of the defendant during the afternoon of the day of the accident — which accident occurred that night. It further appears that the witness Lunsford had not seen the ditch at night after the removal of the culvert until he saw it just before the accident, and that he did not then see it until he was within ten to fourteen feet of the ditch; that he did not see it again • until next morning, at which time the culvert had been replaced over the ditch. This being shown, to require an answer to a hypothetical question that could only result in the witness guessing and indulging in speculation was improper and we overrule this contention.

The defendant complains of certain excerpts from the argument of the plaintiffs’ attorney, which excerpts are as follows:

“I have been on it (this case) about three years. You gentlemen have just been on it about three days. I don’t feel and cannot feel that my three years of labor is going to be lost here, although I well know that regardless. of the verdict you gentlemen render, the size of it, or anything else, that the City of Pampa is gding to appeal the case. I want to ask you gentlemen at the outset in considering this case, to disregard that entirely. Whatever you see fit to allow us and I don’t care if it is fifty dollars, or seven thousand five hundred or five thousand dollars, or what it is, the City of Pampa is going to appeal it' and keep these people out as long as they can. The evidence in this case shows that they have done it for three years, and I expect they will try to do it for. another three years.”
“I will say this, that I don’t think there is a man on this jury but what knows right down in his heart right now, that regardless as. to how this Court has framed these questions, and they are all framed to you in accordance with the law, as to what is right and just about this matter, — and the right and justice of it is that girl’s life should be paid for by the people of the City of Pampa, —but, Gentlemen, remember that just as a sample of it, men, they have got the money to fight us with, and they are doing it, and just as a sample of it, Gentlemen, they are paying this Reporter here right now to take down what I say that in the hopes that in my zeal and enthusiasm in this argument that I will say something to you that can go to the Court of Civil Appeals with — ”
“But, first, Gentlemen of the Jury, I want to get back to what I told you at the outset of my opening argument here. I say to you these questions were concocted for the protection of the corporations and municipal corporations, and I will say to you again that the theory of submitting special issues was done for the protection of corporations and municipal corporations.”
“With all due respect for Charlie, (meaning one of the attorneys for defendant) I will say this right now, Charlie right now kno\ys that these people should have a recovery in this ease, knows it and has known it all along, but for some reason or another the Mayor and City Commissioners won’t pay off, and they have done a pretty good job of it, but, Gentlemen, I will fight them until the lower regions freeze, and all I want is fairness and justice.”
“Mr. Cook makes a great play out of the fact that all o'f those children ether than these two practically appear to be worthless. Maybe they were, but there happened to be two of them who weren’t, and what happened to them — the eldest Della was ruined in this very wreck.”
“The theory is that I expeefr to prove by this witness that the girl Della Todd has been doing well to take care of herself because of injuries received in this wreck; that she has already sued the City of Pampa and got a judgment.”
“You don’t know when rheumatism is going to take this old father away; he might live until he is sixty, and he might live until he is eighty cramped up with rheumatism, and you don’t know when he will die. You may gamble that it may be five years, or it may be ten years or fifteen years, twenty-five or thirty years, but if you gamble on it, men, for God’s sake gamble on the side of justice, and give them the benefit of the doubt.”

These arguments were made by plaintifls’ attorney without interruption or exception during the delivery of same, but afterwards bills of exception were prepared and were approved by the court. The objection to the argument of the attorney was that same was inflammatory and was calculated to influence the jury in rendering the verdict which they did render and was not invited by the defendant; that the argument was a reference to the financial ability of the plaintiffs, who were tenant farmers of very little means with a large family, and that the defendant was a municipal corporation.

It is not every improper argument made to a jury that will necessitate a reversal without counsel for the opposite party taking an exception and not every improper argument so made, where an exception is time-]y taken, will require a reversal. It was never intended that an argument, even though improper, that did not influence the minds of the jury to such an extent as to make them ignore their duty under their oaths, should be used as an occasion for a reversal where the trial court was not afforded an opportunity to interpose and regulate the argument.

It has long been held that an objection must have been made and the trial court’s attention called to the argument in order that the court may have his attention called to it and an opportunity given him of correcting the alleged error. One exception to this is where counsel in the argument of a cause before a jury uses inflammatory language so vituperative as to excite and inflame the jury to such an extent as will lead them, in their passion, to render a wrong verdict. The law presumes that this, occurring in the presence of the court, the court should know the effect of such language upon the jury and should accordingly •prevent the evil effects of the argument without the necessity of having his attention called to it.

We are of the opinion that the language used was improper, but it was not so inflammatory as to place such argument in the class known as “inflammatory.”

4 Words and Phrases, First Series, 3583, gives the adjective “inflammatory” as being derived from “inflamed,” which is defined by Webster, in part, as follows:

“(I) To set on fire; to kindle; to cause to flame.
“(2) To excite or increase, as passion or appetite; to enkindle into a violent passion.”

We think that the argument was subject to other objections, but the language used was not inflammatory and was not subject to the objection made.

In the case of Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435, it appears that timely objection was made to the argument; hence it is not authority in this case. In the case of Dillingham v. Scales, 78 Tex. 205, 14 S. W. 566, the court’s opinion shows that the defendants reserved an exception to the argument; hence it does not apply. See also Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302; Gulf, C. & S. F. Ry. Co. v. Dooley, 62 Tex. Civ. App. 345, 131 S. W. 831; Wichita Falls, R. & Ft. Worth Ry. Co. v. Emberlin (Tex. Civ. App.) 274 S. W. 991, 997; Western Union Telegraph Co. v. Burgess (Tex. Civ. App.) 60 S. W. 1023, in which the court recites the fact to be that objection was made at the very time the argument was made.

In the case of Gulf, C. & S. F. By. Co. v. Greenlee, 70 Tex. 553, 8 S. W. 129, 131, Judge Gaines lays down the rule to be: “An exception, was taken to the language of one of the counsel for plaintiffs used in the closing argument to the jury. The language was not objected to when uttered, and the judge ■states in the bill of exceptions that his attention was engrossed, at the time, in the preparation of his charge, and that he only heard one of the remarks of which complaint is made, and that this he promptly checked. Without, passing upon the question whether the language is of such a . character as would require a reversal under any circumstances, we will say that the remarks' were not so plainly prejudicial to defendant as to demand that the verdict be set aside, in the absence of an objection by its counsel at the time the words were spoken.”

In the case of Vogt v. Guidry (Tex. Civ. App.) 229 S. W. 656, 658, where a judgment was reversed for improper argument, even though no objection was made, the court uses the following language: “It is the general rule that advantage cannot be taken in an appellate court of improper argument before a jury, unless objection be presented at the time the argument is made, and there are numerous Texas cases sustaining the rule. However, there are exceptions to the rule, and where the argument is intensely vituperative, and is based on matters not in evidence, and which necessarily must have caused prejudice and probably thwarted justice, it becomes the duty of the trial judge to set aside the verdict of the jury, even though no objections were urged to the argument when made” — citing authorities.

While we are of the opinion that the language of the counsel used in his argument to the jury was not inflammatory within the terms of the definition of that word, in order for it to have been injurious and inflammatory the evidence should show an excess verdict of the jury over what would constitute a normal or reasonable verdict before the case should be reversed. In this connection the question as to whether or not the verdict is so excessive that it indicates that the argument of counsel for plaintiffs had an effect on the jury in causing them to return a verdict not reasonably warranted by the evidence, we do not believe. The evidence shows that deceased was a girl about seventeen years old; that she was one who felt, her obligation to help her father and mother financially; that she contributed of her small means for their support; that when she was not working for wages, she worked in the field with and for her father.

We can see no reason for differentiating this ease in passing upon the excess, if any, and cannot hold as a matter of law that the verdict in the ease is excessive.

In the case of Ward v. Cathey, 210 S. W. 289, 292, the Fort Worth Court of Civil Appeals says: “There is no mathematical standard by which we can measure damages for injuries such as shown in this case. As stated by us in the case of Burnett v. Anderson [Tex. Civ. App.] 207 S. W. 540: ‘The law merely declares that such damages shall be limited to just compensation, and the determination of that question is committed to the jury in a very large measure.’ ”

We therefore think that the verdict was not excessive and gave no indication that the jury acted from passion in fixing this amount.

AVe have examined all other assignments of error, and finding no reversible error, we affirm the trial court’s judgment.


author: SMITH, J.

text:
    BECK v. AMERICAN RIO GRANDE LAND & IRRIGATION CO.
    No. 8609.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1931.
    Rehearing Denied June 10, 1931.
    Don A. Bliss, of San Antonio, and J. C._Ep-person, of Edinburg, for appellant.
    Geo. P. Brown, of Edinburg, D. W. Glass-cock, of Mercedes, and West & Hightower, of Brownsville, for appellee.
   SMITH, J.

J. R. Beck, appellant herein, brought this action against American Rio Grande Land & Irrigation Company, appellee, to recover damages alleged to have been sustained by him-on account of seepage of water from appellee’s irrigation canals and barrow pits into appellant’s adjacent lands. Prom an adverse judgment rendered upon a directed verdictT Beck has appealed.

Appellant alleged that he owns a tract of approximately thirty-three acres of farm land adjoining appellee’s irrigation canals; that appellee so constructed and has so maintained its canals and adjacent barrow pits as to cause the water to seep therefrom' into appellant’s land, thereby decreasing its prior value of $500 to $750 per acre to its present value of $100 per acre; that appellee’s act in the matter constitute gross negligence.

In its answer appellee pleaded limitation of two years, and set up the terms of a certain contract alleged to govern the rights and liabilities of the parties in the matter, and asserting that under the terms of that contract appellant could not recover. This contract was not put in evidence, however, and although it may be inferred from the evidence that the relations of the parties may be determined in part by contract, that evidence is not such as to sustain a presumption that such contract is in fact the one pleaded by appellee. The burden rested upon appellee to prove the contract relied upon by it as a defense to appellee’s suit, and having failed to offer it in evidence appellee cannot urge its provisions as a defense.

Upon the trial appellant put in his evidence upon the whole case, and rested, whereupon appellee, without offering any testimony, moved for a directed verdict in its favor, which was granted. Thus is presented the sole question of whether the court was warranted in directing a verdict for appellee. In determining the question all the evidence offered by appellant in his favor must he taken as true, and if it was sufficient to raise any material issues pleaded by appellant, siich issue or issues should have been submitted to the jury. We have concluded from an examination and analysis of the testimony that the case should have gone to the jury, and that the court erred in directing a verdict.

Construing the testimony favorably to appellant, as it must he in the case of a directed verdict, the following facts are disclosed: When appellant purchased the land involved, in 1920, appellee’s canal was in operation on the north side thereof, and was paralleled by appellee’s harrow pit; that ap-pellee placed an unnecessary obstruction in this barrow pit, thereby causing water to accumulate thereon, with no means of escape; that this water seeped into appellant’s adjacent land, eventually seriously impairing the productivity of the land; that but for this injury the value of the land was or would be $350 per acre, whereas in its impaired condition its value is but $100 per acre. The injurious' effect of the seepage upon the land did not become apparent until within two years of the institution of this suit, when appellee’s chief engineer was apprised of the development, but, although promising to stop the seepage by draining the water out of the pit, he nor any one else for appellee had done so. These outstanding facts were elaborated in great detail, but the foregoing statement gives a sufficient outline of the case made. It establishes the act of appellee in negligently flooding its barrow pit and maintaining it in that condition, and the resulting seepage into appellant’s land and consequent injury thereto ; it raised an issue as to the character of injury, as being temporary or permanent; it established a lawful measure of damages by showing that but for said injury the market value of the land would he $350 or more per acre, whereas, on account of said injury, its market value is only $100 per acre. It may be true that this method of showing the true measure of damages was somewhat lax and did not set up the true measure with that nicety preferred in some of the decisions. But no objection was offered to the evidence introduced upon this phase of the case, and we conclude that that evidence afforded a practical measure not inconsistent with the recognized measure in such eases. It may have been an awkward, but it was none the less an effective, method of showing the difference between the market value of the land immediately before and immediately after the injury became apparent. It effectively presented 'the real question in the case, to wit: How much was appellant damaged by appellee’s negligence? No objection was made to this evidence, no restriction was requested or made upon its effect, and the jury could not reasonably have been misled by it to appellee’s injury.

Appellee contends that, under the contract pleaded by it, its liability was restricted to acts of gross negligence on its part. We have héld that because it was not put in evidence that contract was not available to appellee as a defense, but had it been, we are nevertheless of the opinion that under the testimony the jury might properly have found that appellee had been guilty of gross negligence in the case.

Appellee also contends that the evidence shows appellant’s cause of action was barred by the two-year statute of limitation, which, it is true, applies in such cases. But in such cases limitation runs from the time the injury complained of becomes apparent, or should have been discovered by due diligence on the part of the party affected by it. In this case the evidence was such as would have authorized the jury to find for appellant on that issue.

We conclude that the justice of the case, as well as the law, requires reversal, in order that the appellant’s case, as well as appellee’s defenses, may be fully developed and the controversial issues determined by a jury.

Reversed and remanded.

On Motion for Rehearing. .

In the original opinion it was suggested that the evidence raised the issue of gross negligence upon the part of appellee. That expression was not necessary to the decision, was improvidently used, and is now withdrawn. We should add here, since the question was raised in the original opinion, that we have very carefully analyzed the evidence upon motion for rehearing, and are convinced that it shows no element of gross negligence. In truth, the evidence upon no issue pleaded was very satisfactory; it was so meager upon all issues, in fact, that it was only by reading into it every intendment warranted in testing the action of the trial court in directing a verdict, that we arrived at the judgment of reversal. We concluded that, as the evidence upon the part of appellant was so meager, and as no evidence was offered by appellee, the justice of the case could not be determined except upon a more complete development of the true facts of the case, for which purpose the cause was remanded for another trial.

With this modification of the original opinion, appellee’s motion for rehearing is overruled.


author: FUNDERBURK, J.

text:
    HENRY et al. v. BEAUCHAMP.
    No. 865.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1931.
    Rehearing Denied June 12, 1931.
    Clyde E. Thomas, of Big Spring, for appellants.
    L. B. Allen, Roy F. Formway, W. B. Ferrell, all of Roby, for appellee.
   FUNDERBURK, J.

J. V. Beauchamp brought this suit against Walter Henry et al. to try title to land in Fisher county. Defendants answered by general demurrer and plea of not guilty. They filed a separate special pleading, entitled “Supplemental Answer of Defendants,” in which it was alleged that the defendants were “the sole living children and heirs of Elma M. Henry, deceased, who, while living, was the wife of Ed Henry,” and that Ed Henry and Elma M. Henry, at the date of the death of the latter, owned as community property the land described in plaintiff’s petition. The pleading then refers to a purported will of Elma M. Henry, and alleges that it “is void, and has never been legally probated, and is of no effect whatsoever.” The allegations to show the invalidity of the will, apart from the question of its probate, are immaterial, since no questions arise thereon. With reference to the probate of the will, two orders of the county court of Fisher county, purporting to probate and establish the will, were, referred to and described, and • copies thereof attached as exhibits to the pleading. It was alleged that same “were rendered without any notice or citation of any character to them (i. e. the defendants), or to the public generally, and that, as shown by the record of said cause, the only citation or notice published was” one provided to be issued upon applications for letters of administration, and not upon applications for the probate of wills, same being set out in haec verba. It was further alleged that said judgments of the trial court “do not find or recite issuance or service of citation notice, and the record in said cause affirmatively shows that there was no legal notice or citation issued or served prior to the purported proving and probating of said will, and therefore the said purported judgments of said court are rendered without jurisdiction and are void.” The trial court sustained a general exception to the foregoing pleading, after which, upon the trial, judgment was rendered for plaintiff. The de-. fendants have appealed. For convenience the parties will be referred to as in the trial court.

The only propositions relied upon for a reversal of the judgment refer to assignments of error complaining of the action of the court in sustaining the exceptions to appellant’s said “supplemental answer.”

It may be well in the beginning to state briefly some of the rules or principles of law which are regarded as haying been recognized and settled by the decisions in this state, and by which- the said action of the court below should be tested.

County courts being, as they are under the Constitution, probate courts, are, as such, cotirts- of general jurisdiction in matters pertaining to estates of decedents. Crawford v. McDonald, 88 Tex. 620, 33 S. W. 325; Murchison v.White, 54 Tex. 83.

A judgment of a domestic court of general jurisdiction on subject-matter within the ordinary scope of its power is entitled to such absolute verity that, in a collateral action, even where the record is silent as to notice, the presumption, unless contradicted by the recordáis conclusive that the court had jurisdiction of the person. Wilkerson v. Schoonmaker, 77 Tex. 615, 14 S. W. 223, 19 Am. St. Rep. 803; Martin v. Robinson, 67 Tex. 368, 3 S. W. 550.

Where such judgment of a court of general jurisdiction recites that the defendant was served with process, appeared or answered, etc., the fact so recited is conclusive, even as against other portions of the record showing the contrary. Treadway v. Eastburn, 57 Tex. 209. Unless such judgment also recites a particular service, which, if found in the record and identified as that recited, will, according to its sufficiency or insufficiency, determine the validity of the judgment. Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370.

But, where the judgment of such a court contains no recital of service (to use the language of numerous decisions), the entire record must'be looked to, “and, if that shows a failure to observe the law in a material point, the judgment must be held to be void.’’ Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145, 1147.

In no case can the judgment of such a court, having potential jurisdiction, or, in other words, coming within the second class of cases discussed by Judge Denman in Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329, be impeached collaterally by proof of facts aliunde the record. Templeton v. Ferguson, supra; Fitch v. Boyer, 51 Tex. 336. In other words, when, because of the failure of a judgment to recite service, the record may be looked to in order to show jurisdiction, such record must constitute the sole evidence, if any, of the want of service, and the consequent invalidity of the judgment. Stockyards National Bank v. Presnail, 109 Tex. 32, 194 S. W. 384.

A-consideration of these rules or principles raises an interesting inquiry concerning burden of proof. In tlie case of a judgment containing no recital of service, or other finding from which would arise a conclusive presumption of jurisdiction, is the party offering it under the necessity of offering also enough Of the record (other t-han the judgment) to show that the court had jurisdiction? Or, stated differently, if such judgment alone be offered, is an objection to its admissibility good which merely insists that it does not appear therefrom that the court rendering it had jurisdiction? Or, on the other hand, is the burden upon the party objecting to the admissibility of such judgment to produce the (record) evidence to show affirmatively that the facts did not exist which would have given the court jurisdiction? These questions, apparently simple, are by no means free from difficulty. Consider, for instance, the implication of certain expressions found in cases like this: “The judgment was silent as to the service. The record of the cause may, therefore, he consulted to determine its validity.” (Italics ours.) Stockyards National Bank v. Presnall, supra. Who should consult the record? Why consult any other part if the record of the judgment alone be admissible? If such judgment alone be not admissible, how can any question as to the burden of proof be involved?

But we think it may be regarded as settled that the burden of proof is upon the party who objects to the admissibility of a judgment to prove from the record the facts to show that the judgment is void. Hopkins v. Cain, supra; Moore v. Hanscom, 101 Tex. 293, 106 S. W. 876, 878, 108 S. W. 150; Bouldin v. Miller, 87 Tex. 366, 28 S. W. 940, 941. In the first case cited it is said: “However, as a collateral attack on that judgment, this court is confined to the record of that case with the harden on the plaintiffs in error.” (Italics ours.) In Moore v. Hanscom, supra, it was said: “The burden did not rest upon Moore and Marx to prove .the existence of the facts, which under the statute would sustain the order, but it rested upon the plaintiffs Hanscom and the Fidelity & Guaranty Company to prove that they did not exist by Something which appears of record in the case.” In the Bouldin Case, Judge Denman said: “The law, in the absence of proof, presumes that all jurisdictional facts existed. If notice was a jurisdictional fact, the defendant, relying upon the judgment, was not called upon to establish such notice, nor to show the order of sale to have been entered at such a time as to make notice possible; but the burden- was upon plaintiffs to establish the fact that notice was not given.”

Some of the foregoing rules may, under certain conditions, and in some respects, be changed or modified as to judgments probating wills, by reason of certain statutory provisions. It is provided by statute (R. S. 1925, art. 3348) that: “Before admitting a will to probate, it must be proved to the satisfaction of the court,” among other things: “That citation lias been served and returned in tlie manner and for the length of time required by law.” It is also provided that: “All the testimony in the ease, shall be recorded in the minutes.” (R. S. 1925, art. 3351.) There is thus clearly manifested the purpose of the Legislature to have preserved as a matter of permanent record the precise evidence upon which the probate court, in ordering the probate of a will, concludes, among other essential things, that: “Citation has been served and returned in the manner and for the lenglh of time required by law.” Such record, when made, would, we thinlc, be just as conclusive as recitations in the order of probate, if not more so. The rule declared in Treadway v. Eastburn, supra, would, in such a case, in principle, we think, be inapplicable. Why require such evidence to be so carefully preserved if, when preserved, it Would nevertheless be completely controlled by a possibly unwarranted conclusion therefrom stated by the court in its judgment? The principle upon which Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370, was distinguished from Treadway v. Eastburn, 57 Tex. 209, would, by analogy, seem to be applicable here.

Under- the principles above stated, let us consider for a moment how, as a matter of practice, a collateral attack may be made upon a judgment in' cases where allowed. It occurs to us that this may be done in at least two different ways. Without pleadings the party desiring to object to a judgment may do so, and, for the purpose of showing the validity of the objection, may himself introduce, preliminarily, the portions of the record which affirmatively show the court’s lack 'of jurisdiction. It must be remembered we are dealing with judgments absolutely void, and since' the whole world must take notice of such invalidity, no reason is perceived why there must be any pleading to give notice to an adverse party of the claim of such invalidity. But since, as, we have shown, the burden is upon the party objecting to the judgment to prove from the record the facts showing its invalidity, certainly such facts may be pleaded, and their sufficiency tested by the allegations of the pleading. A general demurrer to such a pleading would, we think, be governed by the same principles, as in case of any other pleading.

By the special pleading in question the defendants have pursued the last-named practice. They alleged, among other things: “That, as shown 6y the record of said cause< the only citation or notice published was,” etc.,' — describing one which we are compelled to hold was no notice whatever, — and that, “the record in said cause affirmatively shows that there , was no legal notice or citation Issued or served prior to the purported proving and probating the said will,” etc. (Italic* ours.) The general demurrer admitted the truth of these allegations. The effect .of the court’s judgment in sustaining them was to hold that, even if true, the judgment was not void. We have concluded that, if, in fact, the record does affirmatively .show, as alleged, that the only citation and return upon which the will was probated was that described in the pleading, being one having no application whatever to the probate of a will, but which gave notice of the filing of an application for the appointment of an administrator, the judgment would thereby be shown to be void. Such a citation would not only fail to notify interested parties of the proposed actioii of the court, but would be positively deceptive and misleading. We are therefore forced to conclude that the court below erred in sustaining the exceptions.

We have had some difficulty in determining whether the error may not, under the record presented, be regarded as harmless. Plaintiff introduced his entire title without objection, and his evidence disclosed no fact showing any invalidity in the judgment in question. The defendants then introduced a purported citation and return corresponding to that, alleged in their said pleading. It appears in the statement of facts prefaced with the purported statement of defendant’s attorney that, “The defendants now introduce in evidence the citation or notice in probate Cause No. 274, as being the only notice or citation found among the papers of Cause No. 27?/,” etc. (Italics ours.) If the judgment appealed from was under attack only ' upon assignments that there was no evidence, or insufficient evidence to sustain it, we would, not hesitate, as the case is presented, to affirm the judgment. To our minds it falls far short of an affirmative showing from the record that the particular citation was the one upon which the court rested its judgment, or, what is the same thing, that there was no other sufficient service. Hambel v. Davis (Tex. Civ. App.) 38 S. W. 251. We will not here undertake to enter into a discussion of the character and quantum of evidence necessary to show that the judgment in question was void further than has already been indicated in holding that, if the allegations of defendants’ pleading were established, same would show that the judgment was void. We find ourselves wholly unable to say that, regardless of the action of the court complained of, defendants offered all the evidence that they otherwise would have to show that the court was without jurisdiction to render the judgment.

It is therefore our opinion that the judgment of the trial court must be reversed and the cause remanded, which is accordingly so ordered.


text:
    Walter HENRY et al. v. J. S. CARTER et al.
    No. 866.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1931.
    Rehearing Denied June 12, 1931.
    Clyde E. Thomas, of Big Spring, for appellants.
    L. B. Allen, W. B. Ferrell, and Roy F. Formway, all of Roby, for appellees.
   FUNDERBURK, J.

Appellants are Walter Henry, A. C. Henry, Dorothy Anize Roberts, a minor, E. T. Roberts, Eva Mae Barnaby and husband, G. C. Barnaby, who were defendants in the court below. The appellees are J. S. Carter and G. H.Carter. The appeal is from a judgment sustaining exceptions to a special pleading of the defendants and awarding plaintiffs recovery of certain land sued for. The case is in all essential respects identical with Henry et al. v. Beauchamp, 39 S.W.(2d) 642, this day decided by this court, except as to the plaintiffs, and the land involved. The propositions and assignments are the same, all the reasons discussed in our opinion in said case being equally applicable and controlling in this.

For the reasons there discussed, it is our opinion that this case should be reversed and remanded, which is accordingly so ordered.

HICKMAN, C. J., and LESLIE, J., concur.