text:
    G. H. HORN v. STATE.
    No. 14804.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. E. Warren, of Fort Worth, and C. P. Rogers, of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

We find filed with this record an affidavit made by appellant in due form requesting permission to withdraw his appeal. The request is granted; the appeal is dismissed.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    Blind COLEMAN v. STATE (three cases).
    Nos. 14586, 14588, 14589.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    A. R. Stout, of Ennis, 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.

There is on file in the office of the clerk of this court appellant’s affidavit requesting that his appeal in this case be dismissed.' The request is granted; the appeal' is dismissed.


author: HAWKINS, J.

text:
    COLEMAN v. STATE.
    No. 14587.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    A. R. Stout, of Ennis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor ; punishment having been assessed at one year in the penitentiary.

The record is before this court without a statement of facts or bills of exception. In such condition, nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, J.

text:
    Ex parte VIENO.
    No. 14716.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    O. M. Lord, D. E. O’Fiel, and Jno. A. Veillon, all of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant is charged in Kerr county with wife desertion. He was arrested by the sheriff of Jefferson county on a capias issued out of Kerr county. Upon a writ of habeas corpus he sought release from the custody of the sheriff of Jefferson county. He appeals from an order remanding him to custody.

Appellant offered proof showing that he and his wife resided in Jefferson county, and that the act of desertion, if any, occurred in Jefferson county. He further offered testimony tending to show that he was not guilty of the offense of desertion.

As we understand the record, appellant is attempting to avoid a trial in Kerr county. In his Annotated Penal Code of Texas, section 239, Mr. Branch states the rule as follows: “A writ of habeas corpus cannot serve the purpose of an appeal, certiorari, mandamus, or quo warranto.” See Ex parte Cain, 56 Tex. Cr. R. 538, 120 S. W. 999.

If on the trial of this case the evidence is not sufficient to show the commission of the offense in Kerr county, we apprehend the trial court will so decide. If the question' is not correctly decided, an appeal will lie. See Ex parte Windsor (Tex. Cr. App.) 78 S. W. 510.

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 Appfeals and approved by the court.


author: CALHOUN, J.

text:
    MALONE v. STATE (three cases).
    Nos. 14673-14675.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is chicken theft; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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. •


text:
    MALONE v. STATE (two cases).
    Nos. 14851, 14856.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in- the penitentiary for four years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    MALONE v. STATE.
    No. 14852.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.

      A. 0. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of chickens; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    MALONE v. STATE (three cases).
    Nos. 14853-14855.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft; the punishment, confinement in the penitentiary for four years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    DAVIS v. STATE.
    No. 14597.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. L. Alford, of Rising Star, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating. liquor ; punishment being assessed at two and a half years’ imprisonment in the penitentiary.

The record is before us without statement of facts or bills of exception. In such condition, nothing is presented for review.

The judgment is affirmed.


text:
    WELLS v. STATE.
    No. 14627.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    E. I-I. Davis, of Hempstead, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

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

The record is before us without a statement of facts or hills of exception. No question is presented for review.

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.


text:
    WALKER v. STATE.
    No. 14570.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    De Witt Bowmer and Byron Skelton, both of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft; punishment being assessed at a fine of $100.

The record is before this court without a statement of facts or bills of exception. In this condition nothing is presented for review.

The judgment is affirmed.


author: MORROW, P. J.

text:
    SHAW v. STATE.
    No. 14676.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for five years.

It has been- made known to this court by the affidavit of the sheriff of Freestone county that the appellant, pending his appeal, escaped from the jail of said county, and has not voluntarily returned within ten days. Said escape ousts this court of jurisdiction of the appeal. See article 824, C. C. P.

The appeal is ordered dismissed.


text:
    WALLS v. STATE.
    No. 14358.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Bartlett & Peterson, of Marlin, and G. O. Crisp, of Kaufman, for appellant. •
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Burglary is the offense; penalty assessed at confinement in the penitentiary for two years.

It has been made known to this court by the affidavit' of the sheriff of Kaufman county that the appellant, pending his appeal, escaped from the jail of said county and did not voluntarily return within ten days. By reason of such escape, this court is deprived of jurisdiction of the appeal. See article 824, C. C. P. 1925.

The appeal is ordered dismissed.


author: CPIRISTIAN, J.

text:
    LAMB v. STATE.
    No. 14654.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CPIRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    AVERY v. STATE.
    No. 14835.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    W. B. Howard, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for arson; punishment, six years in the penitentiary.

We find filed in this record on September 21, 1931, an affidavit by the sheriff of Childress county, the county in which conviction was had setting forth that appellant had escaped from the custody of said officer and has been at large since said time. Under such circumstances it becomes our duty to dismiss the appeal in this case, and it is accordingly so ordered.


author: O’QUINN, J.

text:
    BOFFA et al. v. HEBERT et al.
    No. 2117.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 17, 1931.
    Rehearing Denied Oct. 28, 1931.

      W. H. Greenhaw, of Beaumont, for appellants.
    R. E. Masterson and Geo. D. Anderson, both of Beaumont, for appellees.
   O’QUINN, J.

As disclosed by the record, about August 8, 1927, appellants, Mary Boffa and her hus- - band, -Frank Boffa, sued appellees in trespass to try title alleging ownership of a certain lot in the city of Beaumont, Tex., claiming same by the ten years’ statute of limitation (Rev. St. 1925, art. 5510), and prayed for a temporary injunction to restrain appellees from interfering with their use of said lot. The restraining order was granted. Appel-lees answered by plea of not guilty and certain pleas not necessary to mention, and by affirmative plea for title to the land. The case was tried to a jury, and under a general charge of the court the jury found for the defendants, appellees, and judgment was so entered. The plaintiffs, appellants here, appealed the cause to the Ninth Court of Civil Appeals, where said judgment was affirmed. 27 S.W.(2d) 305.

The instant suit was brought by Mary Boffa, joined by her husband, Frank Boffa, appellants, May 20, 1930, to set aside the aforementioned judgment on the ground of alleged fraud in said first suit resulting in said judgment, and to recover the lot in question, being lot No. 449 in block No. 60 in the city of Beaumont.

The defendants, appellees, answered by general demurrer, special exception that plaintiffs’ petition set forth no facts that would constitute fraud relative to the judgment assailed, but were mere conclusions of the pleader, general denial, plea of not guilty, and specially pleaded the judgment in the former suit as res judicata of the question here involved, to wit, the title to the lot in question.

The case was tried to a jury, but on the conclusion of the evidence, the defendants, appellees, by written motion requested the court to instruct a verdict in their favor, which was granted, the verdict returned for appellees, upon which judgment was entered. Motion for a new trial was overruled, and the case is before us on appeal.

Appellees object to appellants’ brief for various reasons, among which is that same is not in compliance with any of the rules prescribed for briefing cases on appeal. The objections to the brief seem to be well taken. The statement of the nature and result of the suit is very insufficient, and there are nó assignments of error in the brief. The grounds urged in the motion for a new trial, if they could be considered as assignments ot error, are not brought forward in the brief, and besides they are, under all the decisions, too general. They are:

“First. Because the verdict of the jury is contrary to the evidence.”
“Second. Because the judgment of the court is contrary to the law.”

Such assignments as these have uniformly been held to be insufficient to be considered.

However, we have fully considered the matters attempted to be presented in the brief. They are presented under the heading: “Appellants’ Objections to the Rulings of the Court in the Trial of said Case.”

The first is that the court erred in sustaining appellees’ demurrer to appellants’ petition. We presume this has relation to appel-lees’ general demurrer. There is nothing in the record to show that said demurrer, or any demurrer, was urged to the court, or that the court passed upon same. In fact, the record shows that the case was regularly tried, the evidence of both parties introduced, many witnesses testifying, and that upon the conclusion of the evidence a peremptory ver-diet was returned for appellees by tbe jury upon motion of appellees granted by tbe court.

Tbe second is that the court erred in taking the case from tbe jury and instructing a verdict for appellees, because it was a question of fact for the jury to determine whether appellants bad acquired title to the lot in question by the ten years’ statute of limitation. Tbe instructed verdict was proper. This matter bad been litigated in the former suit between tbe same parties and over tbe same lot of land, and judgment in said former suit was for appellees. That judgment was res judicata as to the question. But appellants insist that appellant Mary Boffa was an unwilling litigant in that suit, and that she was fraudulently brought into same by her husband, and hence she was not bound by said former judgment. Tbe record fails to support, or even to raise, the issue of fraud. Tbe record shows that in the former suit she, joined by her husband, were tbe plaintiffs, and nowhere shows any indication that she was not tbe moving party to the institution of said suit. Anyway she was a party, not in any manner made so by appel-lees, and appellees, after having been invited into tbe court to litigate the matter, duly answered and plead affirmatively against her for the title and possession of tbe land, which was duly adjudged to them, from which judgment she appealed and (which, as before stated, was affirmed) nowhere protested that she was not a voluntary party to tbe suit. If she failed to plead or prove her claim to tbe lot in litigation by the ten years’ statute of limitation, in said former suit, then such failure must be charged to her negligence in so doing, and she is bound by said judgment because it is well settled that final judgment between parties litigating the right to certain property is res judicata of all rights litigated or that could have been properly asserted in said suit, attempted to be asserted in a future suit between the same parties as to the same property. See cases cited in Digest of Texas Reports, vol. 15, pp. 124,125. Furthermore, the instructed verdict was proper, because by her own testimony she shows that she did not take and bold the lot in question adversely to the record owner, but to the contrary she testified: “He sold the lot on which the store is, but didn’t sell the second lot. (The lot in litigation). I have been using that lot 30 years. He gave me that to use for everything I wanted. I wanted to buy it, I got the money; been using it for 33 years. He told me to go ahead and use. I was going to buy it afterwards. I told him when I got through with the other I would buy that, and he told me to go ahead and use it for whatever I wanted. He just told me to go ahead and use it. * * He sold me the corner lot. I understood he owned the lot next door and he told me I could use it.” Mrs. Boffa’s taking possession and using the lot was permissive — she, herself, says so, and there is nothing in the record to show that she ever brought to the knowledge of the owner of the lot her repudiation of her tenancy and adverse claim to the property. This she must have done, for having taken possession of the property by the permission of the owner, she became his tenant and so remained until she repudiated her tenancy and brought notice of such repudiation to her landlord. Benskin v. Barksdale (Tex. Com. App.) 246 S. W. 360. The mere fact that in this suit she says she all the time claimed the lot by limitation is not sufficient, for her secret determination to so claim will not support her hostile claim; it must have been open, notorious, and hostile to the owner of the lot to avail her. This is not shown.

The third contention is that the court erred in taking the ease from the jury and instructing a verdict for appellees, because such action of the court deprived appellants of “presenting the decisions of the higher courts on the questions involved in said cause to the jury and to the court,” setting forth numerous decisions which were intended to be so presented. There is nothing in this contention. The jury receives the law guiding them in their arrival at a verdict, from the court in his charge, and there is nothing to show that the court was not entirely familiar with the law of limitation attempted to be invoked in the trial of the case.

The fourth complaint reads: “The court erred in deciding said case against appellant and in favor of appellee, because although the case was continued once that defendants might have their witnesses present on the trial of said cause, when said cause went to trial before the court, and appellant proved his case beyond controversy by several witnesses, appellee did not controvert said facts by any testimony whatever.”

As we understand the above, it is appellants’ contention that the undisputed facts adduced showed that appellants had adversely held and claimed the lot in question .for more than ten years next preceding the filing of the suit, and hence the instructed verdict and consequent judgment were wrong. There is no basis for this contention. As we have above stated, appellant Mrs. Boffa herself testified that she took possession of the lot and continued to use same with the permission of the owner. Her possession was, therefore, permissive and would not support a claim of adverse possession, unless and until she had repudiated her tenancy and such repudiation was brought to the knowledge of her landlord, the owner of the lot. Benskin v. Barksdale (Tex. Com. App.) 246 S. W. 360; see cases cited Digest Texas Reports, vol. 11, p. 1027.

The fifth and last complaint is: “The court erred in being governed by the decision in the former trial of said cause, because the petition and answer in the former trial was a total misrepresentation of all the facts and the law governing said case, and could not be, and was not rightfully decided on that account, and because appellant is entitled to a fair and impartial trial of said cause.”

As we have above held, the judgment in the former trial was res judicata of the question here involved. There is nothing in the record suggesting any sort of misrepresentation of any fact by the appellees, or any one of them. Neither was the law applicable to the facts shown’in said former trial misapplied, for on appellant’s appeal in said cause the judgment there rendered was affirmed by the higher court. We are unable to find anything in the record to suggest that appellants have not had a fair and impartial trial.

From what we have said, it follows that the judgment should be affirmed, and it is so ordered.

Affirmed.


author: FUNDERBURK, J.

text:
    GARZA COUNTY v. LYNN COUNTY et al.
    No. 889.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 2, 1931.
    Rehearing Denied Oct. 30, 1931.

      Bean & Klett, of Lubbock, and Leon Mpses, of McKinney, for appellant.
    Vickers & Campbell, L. A. Howard, and Lockhart, Garrard & ,Brown, all of Lubbock, W. W. Price and Geo. Neill, both of Brownfield, Carl E. Ratliff, of Levelland, N. C. Outlaw, of Post, Green Harrison, of Dallas, and Loyd R. Kennedy and J. L. Winder, both of Morton, for appellees.
   FUNDERBURK, J.

This suit was originally instituted to locate and define the common boundary line between Lynn and Garza counties, which theretofore had never been located or defined or marked upon the ground. Because of the effect of the establishment of such line upon other interested counties, the counties of Lubbock, Yoakum, Cochran, Hockley, Crosby, Terry, and Kent in one way or another became parties. The case was tried before the judge without a jury. At a time when the only parties to the suit were Garza, Lynn, Terry, Lubbock, Crosby, and Hockley counties, an application- was made by Garza, Lynn, and Crosby counties to have the court appoint a disinterested competent surveyor “to run out, mark and define the corners and lines in litigation, as shown by the pleadings.” The court appointed W. J. Williams to do the surveying. Williams, in company with and assisted by W. D. Twichell, a surveyor representing Garza county, and R. E. Estes, a surveyor representing Lynn county, made an extensive survey and filed a report which was admitted in evidence. The three surveyors were witnesses at the trial. We interpret their testimony as showing that they agreed upon all the material facts which, independently of the questions of law involved, are deemed determinative of the issues in the case. They agreed that the S. E. corner of lower Brazos Indian Reserve was a recognized and marked corner upon the ground; that beginning 6 miles east of said marked corner, and funning thence north 30 miles and thence west 30 miles, as called for in the Act of the Legislature of 1858, defining the boundaries of Young county (Acts 1856, 4 Gammel’s Laws, p. 459), a point would be reached, the location of which is 691.1 varas east and 1,078.5 varas south of a well-marked corner, being the N. W. corner of Young county, as established and marked by Swindell in 1859 and herein designated as Swindell’s N. W. corner of Young county. The said point, 691.1 varas east and 1,078.5 varas south of Swindell’s N. W. corner of Young county, will be referred to as the Statutory- N. W. corner of Young county. The testimony of the surveyors agreed, and the trial judge found that a line run west from either the Swindell’s N. W. corner or the Statutory N. W. corner of Young county for a distance of 150 miles— thereby allowing 30 miles for the north line of each of the counties of Throckmorton, Has-kell, Stonewall, Kent, and Garza- — would end at a point east and south of the S. E. corner of Lubbock County, as established and marked by Jones in 1892, and herein designated as the J. B. Jones S. E. corner of Lubbock county. The Act of the Legislature of 1876, dividing Young and Bexar territories into counties and defining the boundaries thereof (8 Gammel’s Laws, p. 1070), required the location of the N. W. corner of Floyd county at a point which can be definitely located with reference to the N. W. corner of Young county, as follows: Beginning at the N. W. corner of Young county; thence north 30 miles; thence west 60 miles; thence north 30 miles: thence west 90 miles. It was undisputed that if the N. W. corner of Floyd county be located as above provided, by beginning at the Statutory N. W. corner of Young county, the parallel of latitude passing through said Statutory N. W. corner of Young county and the meridian of longitude passing through the N. W. corner of Floyd county would intersect at a point 758.4 raras south and 846.3 varas west of said J. B. Jones S. E. corner of Lubbock county, said point being also 956.3 varas south, and 101.6 varas east of a concrete monument set around an iron pipe, referred to in Williams’ report as the west S. E. corner of Lubbock county, and also sometimes designated as Harris’ S. E. corner of Lubbock county, and which will hereinafter be referred to as the concrete monument. It was also undisputed that, if the N. W. corner of Floyd county be located as above stated, except to begin at Swindell’s N. W. corner of Young county instead of the Statutory N. W. corner of Young county, the parallel of latitude passing through said Swindell’s N. W. corner of Young county, and the meridian of longitude passing through the N. W. corner of Floyd county as so located, would intersect at a point 317.6 varas north and 1,54S.9 varas west of said J. B. Jones S. E. corner of Lubbock county, said point being also 601 varas west and 122 varas north of said concrete monument.

The trial court found, and the finding appears to be unchallenged, “that Lubbock County and Crosby County have, for many years, recognized the east boundary line of Lubbock County, as established by J. B. Jones in 1S92, as the dividing line between said Lubbock and Crosby County.” The court also found that the south boundary lines of'Baylor, Lamb, Terry. Floyd, and Motley counties were well established lines upon the ground, and had been for many year’s recognized as established lines. ' While the last-mentioned finding was challenged by proper assignment, the assignment has not been briefed. We therefore take it to be correct.

Upon these facts the surveyors testified that they would locate the N. W. corner of Garza county each at a different place. Estes would locate it at a point 758.4 varas south and 1,-588.9 varas east of said J. B. Jones S. E. corner of Lubbock county. Estes and Williams regarded the Statutory N. W. corner of Young county as the proper beginning point to make such location, and Twichell was of opinion that Swindell’s N. W. corner of Young county was the proper point to begin. Estes believed that the N. W. corner of Garza county should be located by a measurement due west from the Statutory N. W. corner of Young county for a distance of 150 miles. Twichell would locate said corner at the point 317.6 varas north and 1,548.9 varas west of the J. B. Jones S. E. corner of Lubbock county, and Williams at the point 75S.4 varas south and 846.3 varas west of said J. B. Jones S. E. corner of Lubbock county. The difference of opinion between Williams and Twich-ell as to the point at which the N. W. corner of Garza county should be located was solely the result of their difference of opinion as to whether the Statutory N. W. corner of Young-county or Swindell’s N. W. corner of Young county should be the beginning place for locating the N. W. corner of Floyd county. It therefore appears that the only material difference of opinion of any of the surveyors was the result of their different interpretations of the law creating the counties involved in the controversy, and other counties.

The material provisions of the trial court’s judgment were as follows: The J. B. Jones S. E. corner of Lubbock county was decreed to be the N. W. corner of Garza and N. E. corner of Lynn counties, as well as the S. W. corner of Crosby county. The N. E. corner of Garza, the N. W. corner of Kent, and S. E. corner of Crosby counties was decreed to be a point to be fixed by measuring due east from the J. B. Jones S. E. corner of Lubbock county for a distance of thirty miles. The extension west to the New Mexico state line of the J. B. Jones south line of Lubbock county, as marked upon the ground, was decreed to constitute the dividing line between the counties of Lubbock, Hockley, and Cochran on the north, and Lynn, Terry, and Yoakum on the south. The S. W. corner of Lubbock, N. W. corner of Lynn, N. E. corner of Terry, and S. E. corner of Hockley counties was decreed to be a point 30 miles west of the J. B. Jones S. E. corner of Lubbock county, being the J. B. Jones S. W. corner of Lubbock county as marked on the ground. The N. W. corner of Terry, S. W. corner of Hockley, N. E. corner of Yoakum, and S. E. corner of Cochran was decreed to be a point 30 miles west of the, said J. B. Jones S. W. corner of Lubbock county. Due north and south lines along the meridians were decreed to be run north and south from the corners thus established to mark the east and west boundary lines of the' several counties, except no provision was made as to the east boundary line of Crosby and Kent counties, or the west boundary lines of Yoakum and Cochran counties. The judgment recites that thé N. E. corner of Garza and N. W. corner of Kent counties (as decreed to be established) was not marked upon the ground; that the north boundary line of Terry, the-south boundary line of Hockley, the west boundary line of Yoakum, and south boundary line of Cochran counties had never been marked or established on the ground; that the boundary lines between Terry and Yoakum counties, and between Hockley and Cochran counties; were not marked upon the ground.

Appellant contends that there was no evidence' to support the finding and judgment that the S. E. corner of Lubbock county, as marked by monument made by J. B. Jofies in 1892 and known as the J. B. Jones S. E. corner of Lubbock county, is the correct location of the N; W. corner of Garza and N. E. corner of Lynn counties, as well as tlie other adjudications of corners and lines based thereon.

The question, we have concluded, is wholly dependent upon the proper construction to be given R. S. 1925, art. 1606. If that statute does not control the question, then we are of opinion that appellant’s contention is correct and that there was no evidence to support the court’s finding and judgment. Independently of said statute, the real issue involved and necessary to be supported by the evidence, in order to warrant the judgment rendered, would be whether the N. W. corner of Garza county, if correctly located, as required by said act of 1876, creating the same, is at the J. B. Jones S. E. corner of Lubbock county. We find no evidence to show that such is the fact.

The following' sketch will aid in the understanding of the questions involved:

The act approved August 21, 1876, herein-above referred to, creating the counties in question and other counties, sought to carry out the constitutional mandate of section 1, art. 9, of the Constitution of 1876, that in creating new counties “no new counties shall be created with a less area than nine hundred square miles, in a square form, unless prevented by preexisting boundary lines.” The act, it seems to us, affords entirely convincing evidence that the Legislature contemplated that the constitutional specifications could be complied with by establishing counties whose north and south lines were each exactly 30 miles in length, and whose east and west lines were exactly 30 miles in length, and running due north and south; that is, with meridians of longitude. This, we think, is shown very plainly by the directions for locating many of the counties. Por example: Jones county was required to be located by beginning at the S. W. corner of Shackelford and the N. W. corner of Callahan county; thence west 30 miles; thence north 30 miles; thence east 30 miles; thence south 30 miles to the place of beginning. It is a mathematical impossibility to locate Jones county on the ground as thus directed. It could only be located on the ground as so directed if the ground was a plane surface. It cannot be located upon a spherical surface, as the earth is, without disregarding calls for course or distance. The east and west lines called for are not parallel. This is readily understood from a moment’s reflection when it is considered that their extensions, both north and south, would intersect at the Poles. Therefore, the north and south lines could not both be exactly 30 miles in length. It is apparent to ns that the Legislature, in directing the location of the several counties, overlooked the fact that they were not to be located upon a plane surface, but upon a spherical surface. The result of the failure to take into account this important fact is that some of the directions cannot be literally followed. As said, it would be a mathematical impossibility to locate some of the counties just as directed. As to some others, if the directions for locating same may be literally followed, the counties would not contain 900 square miles, as required by the Constitution, or would be contrary to some more certain intent of the Legislature. Under these circumstances we have forced upon us the alternative of declaring the act of the Legislature void, or else of giving it a construction — in some instances directly contrary to its express provisions — that will make it practicable and conform to the Constitution, and at the same time to effect, to the greatest extent possible, the legislative intent.

We think the act unmistakably shows the intention of the Legislature, with certain exceptions, to locate most of the interior counties so that four counties would have one common corner. One such exception is to be found in the case of the counties of Col-lingsworth, Donley, Armstrong, Randall, and Deaf Smith, in relation to the tier of counties to the south, consisting of Childress, Hall, Briscoe, Swisher, Castro, and Parmer. The north line of Childress county is 23 miles; the south line of Collingsworth county is common with the north line of Childress county for the same 23 miles, but extends west to a full length of 30 miles, the result being that none of the interior counties in the one tier necessarily have common corners with the counties in the other tier. The same is true of the tier of counties in which Childress county is located, with reference to one to the immediate south, consisting of Cottle, Motley, Ford, Hale, Lamb, and Bailey counties. The south boundary line of Childress county is recognized by the act to be of uncertain length, but estimated at about 35 miles, while the north line of the adjoining county of Cottle is fixed by course to run with the south boundary line of Childress and by distance to stop at 30 miles. There is, therefore, shown an intent that the counties in one of these two tiers, except at the beginning and end, are not to have common corners with the counties in the other. It being our duty to give effect to the legislative directions, except only where it is impossible to do so, or where it is necessary to disregard same in order to effect a more certain intent or preserve the act from being unconstitutional, it will be seen that the calls for course and distance may be given effect as applying to the north lines of said counties of Cottle, Motley, Floyd, Hale, Lamb, and Bailey. But the calls directing the location of the S. W. corners of each of said counties at a point south of its" N. W. corner and exactly 30 miles due west of the S. AY. corner of the county to the east are impossible. Either the call for a given point or the call for direction must yield, one to the other. While ordinarily a call for a given point will control a call for course, that rule cannot be applied here without running counter to the Constitution and also the more certain intent of the Legislature to have four counties corner together. If the calls for a south course be made to yield to the call for the particular point, then the counties would have less than 900 square miles, as required by the Constitution. We think, therefore, the calls for south must control the calls for a point 30 miles due west of the S. W. corner of the county to the east. This will enable the interior counties below to have each its corners common with three other counties. The south line of each of said counties, and the corresponding north lines of the adjoining counties to the south, will not be exactly 30 miles, but in addition will include only the spread of the meridians at the particular latitude. Some of the counties, it is true, will be of greater area than others, but they will all conform to the constitutional requirement that they contain not less than 900 square miles and will be in a square form; at least as nearly so as it is practicable to lay them out upon a spherical surface. The theory under which Mr. Estes, one of the surveyors, would locate the corners and lines would result in few, if any, of the counties of an upper and lower tier having common corners, although in the act the calls for a common corner for four counties are numerous.

Our investigation leads us to conclude that, unless the question is controlled by R. S. 1925, art. 1606, the N. W. corner of Garza county, being also the S. E. corner of Lynn county, should be located as contended for by the witnesses Williams and Twichell, at the point of intersection of the parallel of latitude passing through the N. W. corner of Young county, and the meridian passing through the N. W. corner of Floyd county. The N. W. corner of Floyd county should, we think, be located for the purpose of determining the meridian by running the agreed courses and distances from the Statutory N. W. corner of Young county rather than from Swindell’s N. W. corner. The act of the Legislature creating the counties in question does not so designate the N. W. corner of Young county as to show recognition of Swindell’s corner. We think, therefore, the act must be interpreted as referring to the N. W. corner as correctly located according to the previous act of the Legislature defining the boundaries of Toting county, which the undisputed evidence in this case shows to be the Statutory N. W. corner. Under this view the N. W. corner of Garza county and'the S. E. corner of Lynn county should be located 758.4 varas south and 846.3 varas west of* the J. B. Jones S. E. corner of Lubbock county, as marked upon the ground; the said point being also 956.3 varas south and 101.6 varas east of the concrete monument.

The most difficult question we have found it necessary to consider is the effect, if any, to be given to R. S. 1925, arts. 1606 and 1591. Article 1606 provides: “The county boundaries of the counties in this State as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.” This provision first appeared in R. S. 1895; as article 822. In the 1911 revision it was article 1400. The relevant part of article 1591 (first enacted in 1897), reads: “ * * * Provided, that if it shall be found in any such cause that the boundary line in question has been heretofore established under the law then in force, the same shall be declared to be the true line, and shall be resurveyed and established as such.” Article 1606 has a number of times been construed and applied. The decisions, we think it may be correctly said, establish the proposition that, in any case of a disputed boundary line between two counties, where, prior to the bringing of suit to establish same, a line had been, definitely marked on the ground, and had been recognized by the counties interested in same and by the Commissioner of the General Land Office as the true boundary line, said statutes require that same be adjudged to be the true boundary line, even though the undisputed evidence may show that it was not located as the act or acts of the Legislature originally required, provided, of course, the effect was not such as to contravene provisions of the Constitution such as required area, etc. Stephens County v. Palo Pinto County (Tex. Civ. App.) 155 S. W. 1006; Hale County v. Lubbock County (Tex. Civ. App.) 194 S. W. 678; Pecos County’ v. Brewster County (Tex. Civ. App.) 250 S. W. 310; Hunt County v. Rains County, 116 Tex. 277, 288 S. AT. 805; Hunt County v. Rains County (Tex. Civ. App.) 7 S.W.(2d) 648; Travis County v. Williamson County (Tex. Civ. App.) 4 S.W.(2d) 610.

These decisions, it is believed, leave two questions which arise up'on the record in this case, undetermined. They do not settle the question of whose recognition it is, of, an established boundary line, that is necessary, in order for the statute to apply. Neither do they afford an answer to the question, directly nor upon principle, whether an incorrectly established and recognized line shall control the legal establishment of the lines of other counties which have never been established upon the ground, and which, of course, have never been recognized as true boundary lines.

Regarding the first question, the recognition referred to in the opinions has usually been that of the two counties interested in the particular line as a common boundary between them. Frequent mention is made in the same connection of recognition by the Commissioner of the General Land Office, without any suggestion as to its precise value or necessity. As to the second question, no decision which we have found contains an intimation as to whether or not an unmarked and unrecognized boundary line which alone could not come under the provisions of article 1606 must, in the legal establishment thereof, be made to yield to incorrectly established and marked lines of other counties which have been recognized by the counties between which such marked lines run and perhaps by the Commissioner of the General Land Office.

Article 1606, it will be observed, contains two provisions which literally are contradictory, when applied to any boundary line defined in the act creating a county and which has been established and recognized in a different location. It is first provided that: “The county boundaries of the counties in this State as now recognized and established are adopted as the true boundaries of such counties.” So much of the statute standing alone would have the effect of validating every county boundary line which had been established and recognized, including all those which had been incorrectly located upon the ground. As to the latter the lines defined in the creating acts would simply yield to the lines actually established and recognized, and would therefore cease to be the boundary lines. Unquestionably the Legislature had the power so to enact, unless the effect was to have the counties created in violation of the Constitution. But the statute further provided: “ * * * And the acts creating such counties and, defining the boundaries are continued in force.” (Italics ours.) Is not the necessary effect of the last-quoted provision, upon all county boundaries which have never been established by being marked upon the ground, a legislative redeclaration that, in the establishment of such lines, they shall be located and marked just as directed in the acts creating the counties ? If so, then the establishment of such lines cannot be affected by the fact that some other line has not been established as required by the act creating the county, even though under the first clause of the statute the recognition of such line makes it the true line.

Now, if full effect could be given to each provision of the statute so that all boundary lines established and recognized would be true boundary lines, regardless of whether correctly located or not, and at the same time all boundaries not established be established just as called for in the acts creating the counties ánd defining the boundaries thereof, the statute would scarcely call for construction. Apparently all of the decisions up to this time have, assumed such to be the case. So far as we know, no case has arisen which called for a consideration of the question as to whether both provisions could be given effect, each independently of the other, and, if not, which must yield to the other. We have these questions squarely presented here.

The record in this case demonstrates conclusively, we think, that both these provisions of the statute cannot be given independent effect, in any case, where a boundary line has been established and recognized at a demonstrably incorrect location. The Constitution in its grant of power to the Legislature to create counties and in its limitations upon that power, by clear implication, denied the Legislature the authority to create the territory of the state into counties in such a way as to leave small detached areas in no county at all. The constitutional direction to establish the counties in square form, and its recognition and provision for the impossibility of doing so in counties bordering state lines, very clearly denies by implication the power to exclude isolated scraps of land from the bounds of any county. 'But to undertake to give both provisions of article 1606 independent effect in this suit would result in doing just that. The N. W. corner of Garza and N. E. corner of Lynn counties would be at a point 75S.4 varas south and 846.3 varas west of the S. E. corner of Lubbock and S. W. corner of Crosby counties. The south boundary lines of Crosby and Lubbock could not be the north boundary lines of Garza and Lynn. There would be an intervening area too small to constitute a county, and if so would not be in the form required by the Constitution. It is clear to us that one of the two provisions of article 1606 must yield to the other, so as to effect a conformation of one county to others. Which must be held to yield? It seems to be a question of whether or not the correct shall yield to the incorrect, or the incorrect to the correct. If the former is to be the rule; then the incorrect location of a line of one Northwest Texas county will require the incorrect location of every line of almost every other county that has never been established upon the ground. All statutory directions for locating lines would have to be disregarded. Interminable confusion would inevitably result. In attempting to conform to an error it would soon be found that there was more than one error. Then it would be a question of which of two or more errors should control, with the certain result that the county lines could not in all cases be -run so as to conform to constitutional requirements.

The judgment of the trial court is evidently based upon a construction of the statutes in qiiestion, which gives controlling effect to established and recognized lines, and requiring lines which have never, been established to conform thereto. By the judgment the N. W. corner of Garza and N. E. comer of Lynn is moved from the point fixed by the law creating said counties, as we construe it, to conform to an established and recognized corner located 846.5 varas east and 758.4 varas north of it. The result is that every line and corner are located at a different place than that called for in the creating act. The court found that the east line of Lubbock county and west line of Crosby county was an established and recognized line. The undisputed evidence showed it to be a north-south line, 30 miles in length. The S. E. corner of Crosby, the N. E. corner of Garza, and N. W. corner of Kent counties was directed to be located at a point 30 miles due east' of the J. B. Jones S. E. corner‘of Lubbock county. No notice was taken of the north and east lines of Crosby county. It is apparent that, if said lines have never been established, there -is no guide in existence for their location on the ground. The boundaries defined in the creating act would not fit.' No other is given. The east line could not possibly be a north-south line. Suppose, as may well be possible, that either the north or east lines are established and recognized lines. What chance would there be that the east line, for instance, connected with the S. E. corner as fixed by the court? If it did not, what lines would then have to yield? Could one established and recpgnized line be made to yield to another, and, if so, upon what principle would it be determined which should yield? The judgment provides that the south line of Hockley county, an east-west line, should be 30 miles in length and that its east and west lines should follow meridians of longitude each to the north boundary line. As so decreed no straight line could be run connecting the N. E. and N. W. corners so as to inclose an area that would be either in square form or contain 900 square miles. It seems to us too plain for argument that the statutory calls for boundaries cannot be made to yield to incorrectly located lines-of other counties.

It is perhaps unnecessary for us to undertake to declare the extent of the operation of the first provision of the article. It is clear to us that it can be given no effect in any case where, in establishing the boundaries of a county as defined in the act creating same which have never theretofore been established, and in doing so it becomes necessary to conform the boundaries of other counties.

It follows that, in our opinion, the judgment of the trial court should have decreed the common corner of Garza, Lynn, Lubbock, and Crosby counties to be as hereinbefore stated; that consistently therewith it should have directed the location of the S. E. corner of Crosby, the N. E. corner of Garza, and the N. W. comer of Kent counties at the point where the parallel of latitude passing through the N. W. corner of Garza is intersected by the meridian of longitude passing through the Statutory N. E. corner of Floyd county. The S. W. corner of Lubbock, the N. W. corner of Lynn, the N. E. corner of Terry, and the S. W. corner of Hockley counties should be located at the point where the meridian passing through the Statutory N. W. corner of Hale county intersects said parallel of latitude, and that the N. W. corner of Terry, the N. E. corner of Xoakum, the S. E. corner of Cochran, and S. W. corner of Hockley counties should be located at the point of intersection of the meridian passing through the Statutory N. W. corner of Lamb county and said parallel of latitude; that the east and west lines of said counties should be located along meridians passing through said corners as located. Since it may be advisable to provide by final judgment for the location of said lines on the ground, the judgment will be reversed and remanded with directions to the trial court to adjudge the location of the boundaries involved in accordance herewith and, if deemed advisable, have an actual survey made and incorporate the result thereof in the final judgment.

We are of opinion that no error is shown in the action of the trial court in refusing to so retax the costs as to charge the several counties with a pro rata part of the expenses of Williams in making his surveys. If under any circumstances it was the duty of the court to make the appointment, it was certainly a matter within the court’s discretion. . Having exercised it, subject to the express condition that the counties desiring his services should pay for same; we do not feel called upon to reverse such action. R. S. 1925, art. 1591, in so far as it provides that the court shall, if necessary, order boundary lines to be re-marked and resurveyed, has no application. Those things could not be done until the court had determined the disputed questions as to the proper location of such lines. Whether the court, under its duty, as provided in said article, to “determine where such boundary line is located,” would have implied authority to appoint a surveyor and tax the expense thereof as costs, we need not determine. Whether so or not, we think the court could attach any reasonable condition to the exercise of his discretion.

Reversed and remanded with instructions.


author: GALLAGHER, C. J.

text:
    ARMOUR & CO. et al. v. TOMLIN.
    No. 1119.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1931.
    Rehearing Denied Oct. 29, 1931.

      Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for appellants.
    Carden, Starling, Carden & Hemphill and R. B. Allen, all of Dallas, for appellee.
   GALLAGHER, C. J.

Appellants, Armour & Co., a corporation, and Cecil Wise, prosecute this appeal from a judgment of the district court awarding ap-pellee, Mrs. Myrtle Tomlin, damages for personal injuries sustained by her as the result of a collision between her car, which she was driving at the time, and a truck owned by said corporation and operated by said Wise, and also for damage to her automobile in such collision. The case was submitted to the jury on special issues, in response to which they found that the corporation’s said employee was negligent in the operation of said truck; that such negligence was the proxi-. mate cause of the collision between the samé and appellee’s car; and that such collision was the proximate cause of the injury to her. The jury further found that the sum of $4,843 would reasonably compensate appellee for her mental and physical suffering, for her dimin-' ished capacity to perform her usual household cares and duties, and for the expenses incurred for medicine, doctors, and hospital services, resulting directly and proximately from such collision. The jury also found that the reasonable cost of repairing her car was the sum of $145. The court rendered judgment on the verdict in favor of appellee Mrs. Myrtle Tomlin against appellants Armour & Co. and Cecil Wise, jointly and severally, for the sum of $4,987, with interest from date thereof, and costs of suit. Hence this appeal.

Opinion. •

Appellants assign as error the refusal of the court to submit to the jury for determination the following requested issue: “Was the physical infirmity, if any, of the plaintiff subsequent to the accident of October 2, 1928, brought about by cause or causes not directly and proximately the result of the accident in question?”

The language used in framing such speotol issue is not the language usually employed in such cases, and the exact meaning thereof is a matter of construction. Appellants and ap-pellee differ with reference .to the proper construction of the same. We think, however, that the same should be construed, and that the ordinary juror would construe the same, to inquire whether the infirmity therein referred to was caused by, or resulted from, some other cause or causes than the accident in question. The testimony shows that the rear of appellee’s car was struck by said truck with sufficient force to crush one corner of the same, tear the upholstering, and loosen the top thereon. Appellee testified that the force of the impact threw the rear cushion against her shoulders and knocked her against the steering wheel; that she immediately became excited and nervous, and suffered from shock and severe pains in her back and chest; that as sobn as she was taken home she lay down; that she suffered all night with severe pains in the back, ribs, and chest; that next morning her temperature was 101½. Appellee further testified that at that time she was forty-four years of age and in perfect health; that she had theretofore regularly performed her household duties, driven her car as occasion required, and had been active in church and social life. There was testimony that an examination of her body by a physician shortly thereafter showed no abrasions or visible bruises. Appellee testified in detail with reference to her physical condition for more than a year thereafter. The substance of such testimony was that she suffered continual pain and was confined to her bed a large part of the time; that she had alternately high and abnormally low temperature; that she was incapacitated from performing her household duties; that she decreased in weight from 135 to 82 pounds, and that she spent a part of the time in hospitals and sanitariums. Appellants do not complain of the amount awarded áppellee as damages for her physical injuries as excessive, and a more elaborate statement of her condition, subsequent to the accident, is therefore not deemed necessary. Appellee further testified that prior to the accident she had never suffered from menstrual irregularity; that shortly thereafter she had hemorrhages, which continued for a period of three days; that a similar attach occurred about three months later. She further testified that prior to the trial menstruation had ceased. Appellants introduced expert testimony tending to show that the change of life affects the nervous system and produces organic disturbances ; that such nervous condition sometimes creates vomiting and a lack of appetite, or on the other hand, an abnormal appetite; that fluctuations in temperature and loss of weight under such conditions are not infrequent. Appellants also introduced an expert witness who testified that he found no evidence of any injury to the nervous system, and that, in his opinion, appellee was suffering from mental depression, such as is sometimes manifested during the menopause.

The court, in submitting the case to the jury, authorized the recovery of damages for only such pain and suffering and lack of capacity 'to labor, and medical and hospital expenses incurred, as resulted directly and proximately from said accident. Appellants contend that having pleaded a general denial, and having introduced the expert testimony above recited, they were entitled, under the rule announced in Fox v. Dallas Hotel Co., 111 Tex. 461, 475, 240 S. W. 517, to have the jury determine, as the converse of appellee’s contention, whether such pain and suffering, lack of capacity to labor, if any, and medical and hospital expenses incurred, resulted from appellee’s change of life and disorders incident thereto. ■ The right to have a properly framed issue presenting such contention submitted to the jury for determination is conceded by appellee.' Appellee, however, invokes the further rule announced by the Supreme Court in that case, that the issue or issues so submitted should constitute a complete defense to her demands, and that the same should be restricted to the presentation of issues specifically raised by the pleadings and evidence.

Appellee’s first contention in 'this connection is that the issue as requested is not sufficiently comprehensive to cover all the elements of personal injury or damage raised by the testimony. All such elements of injury or damage are attempted to be covered in the requested issue by the expression, “physical infirmity * * * subsequent to the accident.” The Standard Dictionary defines “infirm” as “lacking in bodily or mental strength; feeble or relaxed, as from age or disease.” It also defines “innrmity” as: “(1) physical, mental or moral weakness or flaw; enfeebling disease; (2) the state or quaucy of being infirm physically, mentally or morally; debility; infirmness, as the infirmity of age.” We seriously doubt whether an ordinary jur- or would consider that excitement, nervousness, shock and mental and physical pain and ■suffering occurring at the very time of the accident and immediately thereafter, as testified by appellee, were intended to be covered by the general term “physical infirmity,” and the still more general expression, “subsequent to the accident.” We need not, however, determine thi^ question, in view of the conclusion reached with reference to appellee’s further contentions hereinafter discussed.

We think the language used in framing such issue is further objectionable, in that it nowhere requires that the cause or causes of the physical infirmity therein inquired about should have been, within legal terms, the proximate cause or causes thereof. It only requires that such cause or causes should not in themselves have resulted proximately from the accident. It is also a well-established rule of practice in this state that only such issues as are raised by the pleadings and evidence should be submitted to the jury for determination, and that each such issue should be separately submitted. Fox v. Dallas Hotel Co., supra. Conceding that appellants’ general denial was a sufficient .pleading to require the submission of defensive issues raised by the evidence, still, only issues so raised should have been submitted. Texas & N. O. Ry. Co. v. Rooks (Tex. Com. App.) 292 S. W. 536, 542, par. 9; Moss v. Koetter (Tex. Civ. App.) 249 S. W. 259, 261, par. 2; Constitution Indemnity Co. v. Armbrust (Tex. Civ. App.) 25 S.W.(2d) 176, 179, par. 4; Stevenson v. Barrow (Tex. Civ. App.) 265 S. W. 602, 604, par. 8; Dennis v. Knox (Tex. Civ. App.) 18 S.W.(2d) 1089, 1091, par. 4. No issue should have been submitted, unless restricted by its terms to the evidence introduced. Luling Oil & Gas Co. v. Edwards (Tex. Civ. App.) 32 S.W.(2d) 921, 924, par. 3; Northern Texas Traction Co. v. Singer (Tex. Civ. App.) 34 S.W.(2d) 920, 922, par. 3. We understand appellants’ contention to be that the evidence in this case raises the issue that all of appellee’s physical and mental pain and suffering, lost capacity to perform her duties as a housewife, and medical and hospical expenses incident to her treatment, arose proximately and solely out of her change of life, and ills and disorders incident thereto. The requested issue was not so limited. It would have left the jury free to speculate as to the existence of cause or causes other than shown by the evidence. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Civ. App.) 280 S. W. 882, 884, par. 1; Darden v. Denison (Tex. Civ. App.) 3 S.W.(2d) 137, pars. 1 and 2 (writ refused), and authorities there cited. Said issue by its terms included any and all causes of appellee’s physical infirmity, and sought to have their relation to tne accident determined by a single answer. It partook in part, at least, of the nature of a general charge, which was improper. Missouri, K. & T. Ry. Co. v. Long (Tex. Com. App.) 299 S. W. 854, 855, par. 1, and authorities there cited; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, 173, par. 2, and authorities there cited; Brammer & Wilder v. Limestone County (Tex. Civ. App.) 24 S.W.(2d) 99, 104, par. 7, and authorities there cited; Totten v. Houghton (Tex. Civ. App.) 2 S.W.(2d) 530, 534, par. 10; Stewart v. Vannatta (Tex. Civ. App.) 31 S.W.(2d) 6S4, 686, and authorities there cited; New Amsterdam Casualty Co. v. Rutherford (Tex. Civ. App.) 26 S.W.(2d) 377, 379, pars. 4 and 5; City of Fort Worth v. Ware (Tex. Civ. App.) 1 S.W.(2d) 464.

Appellee further contends that said requested issue was properly refused, because an affirmative answer thereto would not have constituted a complete defense to appellee’s demands. The specific grounu of such contention is that such other cause or causes, in order to constitute such complete defense, must have been the sole proximate cause of all of appellee’s so-called infirmities. The authorities clearly recognize that there may be plural or concurrent causes wlucn unite to produce the original accident and resulting injury, and also that there may be subsequent causes which proximately contribute to the injury by aggravating or enhancing the same. See the discussion of Causal Relation and Plural, Concurrent and Intervening Causes, in Green Prox. Cause, chap. 5, §§ 1 and 2, pp. 132 et seq. See, also, in this connection, Boyles v. McClure (Tex. Com. App.) 243 S. W. 1080, 1082, par. 2, and authorities there cited; City of Waco v. Branch (Tex. Civ. App.) 8 S.W.(2d) 271, 276 et seq., and authorities there cited; G., C. & S. F. Ry. Co. v. Ballew (Tex. Civ. App.) 39 S.W.(2d) 180, 182, pars. 1 and 2. Appellee contends that where an injury is sustained as the proximate result of negligence, compensation therefor should not be denied, notwithstanding such injury is aggravated or enhanced by the eneets of disease existing at tjie time or afterward occurring, and cites the following authorities in support of such contention: Driess v. Frederich, 73 Tex. 460, 11 S. W. 493; Gulf, C. & S. F. Ry. Co. v. Redeker, 45 Tex. Civ. App. 312, 100 S. W. 362; Southern Traction Co. v. Glenn (Tex. Civ. App.) 220 S. W. 798; Gulf, C. & S. F. Ry. Co. v. Reagan (Tex. Civ. App.) 34 S. W. 796, 798; North German Lloyd S. S. Co. v. Roehl (Tex. Civ. App.) 144 S. W. 322, 323; Pecos & N. T. Ry. Co. v. Williams, 34 Tex. Civ. App. 100, 78 S. W. 5, 6; Missouri, K. & T. Ry. Co. of Texas v. Smith, 63 Tex. Civ. App. 510, 133 S. W. 482, 484; Chicago, R. I. & G. Ry. Co. v. Groner, 51 Tex. Civ. App. 65, 111 S. W. 667, 668; Galveston, H. & H. R. Co. v. Hodnett (Tex. Civ. App.) 155 S. W. 678, 681; Houston Elec. Co. v. Green, 48 Tex. Civ. App. 242, 106 S. W. 463, 465; Missouri, K. & T. Ry. Co. v. Byrd, 40 Tex. Civ. App. 315, 89 S. W. 991; Wichita Falls, K. & Ft. W. Ry. Co. v. Combs (Tex. Com. App.) 268 S. W. 447. Said authorities fully support the same. Since the court restricted the jury in assessing damages to such only as were the direct and proximate result of the collision, it will be presumed to have done so. It therefore devolved upon appellants, in order to defeat a recovery for the damages so found, to secure a converse finding that appellee was not entitled to any damages at au. Had they requested a properly worded issue inquiring whether all the damages suffered by appellee resulted proximately and solely from her change of life and ailments or disorders incident thereto, such issue should have been, and doubtless would have been, submitted by by the court to the jury for determination. Wichita Falls R. & Ft. W. Ry. Co. v. Combs (Tex. Com. App.) 268 S. W. 447, 450, pars. 6 and 7; Northern Texas Traction Co. v. Woodall (Tex. Com. App.) 299 S. W. 220, 221, par. 3; Montrief v. Bragg (Tex. Com. App.) 2 S. W.(2d) 276, 277, par. 2; Standard Accident Ins. Co. v. Simpson (Tex. Civ. App.) 21 S.W. (2d) 8, 9, par. 4; Rio Bravo Oil Co. v. Daniel (Tex. Civ. App.) 20 S.W. (2d) 369; City of Pampa v. Todd (Tex. Civ. App.) 11 S.W.(2d) 247, 250, par. 1; Horton v. House (Tex. Com. App.) 29 S.W.(2d) 984, 986, par. 4. An affirmative answer to the issue requested would not have established that the other cause or causes inquired about therein were the sole proximate cause or causes of such damage. For the reasons.hereinbefore set out, the refusal of the requested charge did not constitute reversible error.

Appellants contend that, should their requested issue be held to be defective in form, and therefore properly refused, it was sufficient to call the court’s attention to the matter and to require the court to prepare and submit of his own motion a proper issue. Appellants have not presented any assignment of error -complaining of the failure of the court to prepare and submit such issue. Our courts have frequently held that such contention will not be considered, in the absence of a specific assignment raising the same. Crawford v. El Paso Sash & Door Co. (Tex. Com. App.) 288 S. W. 169, 170, par. 3; Wichita Falls, R. & Ft. W. Ry. Co. v. Combs, supra, page 451, par. 8 of 26S S. W.; Southwestern Portland Cement Co. v. McBrayer (Tex. Civ. App.) 140 S. W. 388, 393, par. 4 (writ refused); Olds Motor Works v. Churchill (Tex. Civ. App.) 175 S. W. 785, 787, par. 2; Gulf Production Co. v. Gibson (Tex. Civ. App.) 234 S. W. 906, 907, par. 4; Western Weighing & Inspection Bureau v. Armstrong (Tex. Civ. App.) 281 S. W. 244, 251, par. 6 (reversed on other grounds [Com. App.] 288 S. W. 119); Clevenger v. Blount (Tex. Civ. App.) 114 S. W. 868, 870; Parlin & Orendorff Co. v. Miller, 25 Tex. Civ. App. 190, 60 S. W. 881, par. 6; El Paso Electric Ry. Co. v. Kendall, 38 Tex. Civ. App. 221, 85 S. W. 61, 62, and authorities there cited; T. & P. Ry. Co. v. Browder (Tex. Civ. App.) 144 S. W. 1042, 1043, par. 2; El Paso Electric Ry. Co. v. Harry, 37 Tex. Civ. App. 90, 83 S. W. 735, 738; Metcalfe v. Lowenstein, 35 Tex. Civ. App. 619, 81 S. W. 362, par. 3; Anders v. California State Life Ins. Co. (Tex. Civ. App.) 214 S. W. 497, 500, pars. 3 and 4.

Appellants contend that the court erred in submitting as the measure of damages to appellee’s car, the reasonable-cost of repairing the same. The court submitted such issue, and the jury found the reasonable cost of such repairs to be the sum of 8145. Such sum was embraced in appellee’s recovery herein. Appellants present no assignment of error complaining of the submission of such issue. We are therefore without jurisdiction to consider the same. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846, par. 3.

Appellant Armour & Co. contends that the court erred in permitting Mrs. Tomlin to testify over its objection that appellant Wise, who was driving the truck which struck hpr car, stated to her a few minutes after the accident “that he wasn’t driving as fast as she thought he was, but that he would admit that he was to blame.” The ground of the objection was that such statement was hearsay, not admissible against the complaining appellant, and therefore could not be binding on it. No suggestion that such testimony included a mere conclusion of the witness was included in the objection. We need not determine whether such testimony was admissible as res gestee or not, because it was clearly admissible against the witness Wise as a party defendant in the suit. No request to limit its consideration is shown. The action of the court so complained of does not constitute reversible error. Blum Milling Co. v. Moore-Seaver Grain Co. (Tex. Com. App.) 277 S. W. 78, 81, pars. 5 to 7, inclusive, and authorities there cited; Steger v. Greer (Tex. Civ. App.) 228 S. W. 304, 307, par. 8, and authorities there cited.

Appellants contend that the court erred in permitting appellee, over their objection, to testify that she was in perfect health at the time of the accident. The ground of objection was that such testimony was a mere conclusion. Our courts have frequently held that a person may testify as to the state of his own health and that others, though not experts, may testify to such condition, when they have had sufficient opportunity to observe and know the same. Vann v. National Life & Accident Ins. Co. (Tex. Com. App.) 24 S.W.(2d) 347, 351, par. 4, and authorities there cited; Pullman Co. v. Smith, 79 Tex. 468, 471, 14 S. W. 993, 13 L. R. A. 215, 23 Am. St. Rep. 356; Duerler v. Eichhorn, 44 Tex. Civ. App. 638, 99 S. W. 715, 716; M., K. & T. Ry. Co. of Texas v. Davis, 53 Tex. Civ. App. 547, 116 S. W. 423, 426; Pecos & N. T. Ry. Co. v. Coffman, 56 Tex. Civ. App. 472, 121 S. W. 218, 219, and authorities there cited; G., C. & S. F. Ry. Co. v. Williams (Tex. Civ. App.) 136 S. W. 527, 529, par. 8; Henson v. Warren (Tex. Civ. App.) 274 S. W. 185, 186, par. 1, and authorities there cited; Stedman Fruit Co. v. Smith (Tex. Civ. App.) 28 S.W.(2d) 622, 630, par. 20.

The judgment of the trial court is affirmed.


author: PELPHREY, C. J.

text:
    WM. CAMERON & CO., Inc., v. CRABB.
    No. 2575.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 8, 1931.
    Rehearing Denied Oct. 29, 1931.

      Haag & Stubbeman, of Midland, and Sleeper, Boynton & Kendall, of Waco, for appellant.
    Chas. Xonge, J. M. Caldwell, G. W. Duna-way, and W. R. Smith, Jr., all of Midland, for appellee.
   PELPHREY, C. J.

This suit was instituted by appellee against Clemmie Pruitt Woods and her husband, to foreclose a deed of trust lien upon certain property in Midland county, Tex. Appellant intervened in the suit, claiming a material-man’s lien bn certain of the property.

The trial court filed the following findings of fact, which are not complained of:

“1. That defendant, Clemmie Pruitt Woods, owns as her separate property, lots 13, 14 and 15, in Block 65, of the original town of Midland, Midland County, Texas; she having acquired this property prior to her marriage to defendant W. E. Woods.
“2. Before December 1, 1929, defendant Clemmie Pruitt Woods, whose name was then Clemmie Pruitt, had definitely determined to construct a building upon said lots 13, 14 and 15; but actual construction work did not commence until December 11, 1929; until this last date the lots were vacant and unimproved.
“3. On December 1, 1929, Clemmie Pruitt made, executed and delivered to the plaintiff (appellee) her certain note of that date, in the principal sum of $17,500.00, due and payable at Midland, Texas, June 1, 1930, bearing interest from date at the rate of 7% per annum, and providing for 10% on principal and* interest then due, if placed in the hands of attorneys for collection. At the time that said note was executed and delivered to plaintiff (appellee) a Deed of Trust securing the payment of same was made to G. W. Dun-away, Trustee, conveying said lots 13, 14 and 15. No money was advanced by R. C. Crabb to Clemmie Pruitt at the time said note was executed, but said note was given for the purpose of covering whatever money might thereafter be advanced by R. C. Crabb to retire a Vendor’s Lien in the sum of $1600.00 held by John B. Thomas against said lots, and to aid Clemmie Pruitt in erecting on said lots the garage building which was thereafter erected. On the 6th day of December, 1929, R. C. Crabb advanced to Clemmie Pruitt the sum of $1600.00, which amount was used to pay off the Vendor’s Lien on sai'd lots held by Jno. B. Thomas. Beginning with date of December 17, 1929, and on divers dates thereafter, R. C. Crabb advanced to Clemmie Pruitt, for the purpose of erecting the garage building in question, various sums of money, totaling $6246.00; in addition to the amount advanced to retire the Vendor’s Lien.
“4. On December 11, 1929, with .the approval and at the Request of Clemmie Pruitt, intervenor, Wm. Cameron & Company, Inc., began furnishing materials for the construction of the garage building upon said lots 13, 14 and 15, and continued to furnish materials •on divers dates, the last of said materials being furnished on the 24th day of June, 1930. Thereafter, on the 25th day of June, 1930, intervenor, Wm. Cameron & Co., Inc., duly filed its mechanic’s and materialman’s lien on said lots 13, 14 and 15, together with the building thereon, in the County Clerk’s office of Midland County, Texas, to secure a balance of $1117.05, at the time owing to said intervenor by virtue of its having furnished said materials.
“5. Plaintiff, R. C. Crabb (appellee here), has a valid existing claim against defendants, W. E. Woods and wife, Clemmie Pruitt Woods, for the sum of $10,983.68, of which amount $9883.68 is secured by a Deed of Trust on said lots 13, 14 and 15, and of which amount, $1100.00 is secured by a Deed of Trust lien on the North 50 feet of the NW •¼ of Block 40, Homestead Addition to the town of Midland, Midland County, Texas. Intervenor, Wm. Cameron & Company, Inc., has a valid existing claim against defendants W. E. Woods and wife, Clemmie Pruitt Woods, in the sum of $1150.75, which is secured by a mechanic’s and materialman’s lien upon lots 13, 14 and 15.
“6. The garage building constructed on said lots 13,14 and 15, is permanently affixed to the lots, and its removal complete, as a building, would be impossible.
“7. With respect to said lots 13, 14 and 15, and the garage building constructed thereon the lots constitute one-third part of the total value of the whole property and the garage building located thereon constitutes two-thirds part of the total value of the whole property.”

The trial court concluded that appellee’s lien was superior to the lien of appellant on lots 13, 14, and 15, block 65, and the building thereon, and rendered judgment decreeing that the property be sold; that the costs of court and of the sale be first paid; that the balance remaining be applied to the payment of appellee’s claim, and that any remaining balance be applied to the payment of appellant’s claim.

Wm. Cameron & Co., Inc., have perfected their appeal to this court, and present three propositions upon which they seek a reversal, as follows: First, that appellant had a first and prior lien upon the building constructed upon the lots, and the court having found that a removal of the building would be impossible, and that it constituted a two-thirds part of the total value of the whole property, the proceeds of the sale under foreclosure should be prorated according to the respective lien interests of appellant and appellee; second, that the court having found that Clemmie Pruitt Woods had, prior to the execution of the deed of trust, definitely determined to construct a building on the lots, and appellee having taken his deed of trust knowing of such determination, and advanced.the money for the purpose of aiding her in constructing the building on the lots, his lien had its inception subsequent to the lien of appellant; and third, that the sum of $6,246, being advanced by appellee subsequent to the beginning of actual construction on the building, the lien of appellant had its inception prior to appellee’s lien for that amount, and was superior thereto.

Article 16, § 37, of-the Constitution reads: “Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the legislature shall provide by law,for the speedy and efficient enforcement of said liens.”

Pursuant thereto, the Legislature enacted the following statutes:

“Art. 5452. Any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or sub-contractor who may labor or furnish material, machinery, fixtures or tools; (a) to erect or repair any house, building or improvement whatever; * * upon complying with the provisions of this chapter shall have a lien on such house, building, fixtures, improvements, land reclaimed from overflow, or railroad, and all of its properties, and shall have a lien on the lot or lots of land necessarily connected therewith, or reclaimed thereby, to secure payment for the labor done, lumber, material, machinery or fixtures and tools furnished for construction or repair. * * ”
“Art. 5459. The lien herein provided for shall attach to the house, building, improvements or railroad for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements, or railroad have been put, or labor performed, and the person enforcing the same may have such house, building or improvement, or any piece of the railroad property, sold separately; provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for.”

In the case at bar, we find that while the deed of trust sought to be foreclosed was executed on December 1,1929, no advancements were made thereon until December 6, 1929, when the sum of $1,600 was advanced and used to pay off the vendor’s lien on the lots; that the construction of the building began on December 11, 1929, and no further advancements were made by appellee until December 17,1929.

The lien of appellant had its inception on the date that construction began (Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S. W. 652, 30 L. R. A. 765, 53 Am. St. Rep. 790), and the only advancement made by appellee pri- or to that date was the $1,600 to discharge the vendor’s lien. We think appellee had a lien on the lots for that amount, with interest from December 6, 1929, superior to the lien of appellant.

The court having found that appel-lee’s lien was only on the lots, then appellant has a lien on the improvements prior even to the lien for that sum. All the money advanced by appellee, except that sum, was for the purpose of erecting the improvements, and, such advancements having not been made until after the construction work was begun, the lien for such advancements was inferior to the lien of appellant.

We have concluded that lots 13, 14, and 15, block 65, and improvements thereon, should be ordered sold together; that out of the proceeds of such sale, together with the proceeds of the sale of the north 50 feet of the northwest quarter of block 40, Homestead addition to the town of Midland, Midland county, Tex., the costs of sale and of this suit be paid, together with the costs of executing the sale; that' the balance remaining from the sale of lots 13, 14, and 15, block 65, be applied as follows: One-third to the payment of the sum of $1,600 advanced by, ap-pellee to discharge the vendor’s lien on lots 13,14, and 15, with interest thereon from December 6, 1929; the balance thereof, if any remain, together with the other two-thirds of the proceeds of the payment of appellant’s claim; and, if any balance remain, to the payment of appellee’s claim.

We think the above disposition of the proceeds to be the correct one under the holdings in Land Mortgage Bank v. Quannah Hotel Co., 89 Tex. 332, 34 S. W. 730; Brown v. Webb (Tex. Civ. App.) 1 S.W.(2d) 1102; McMullen v. Hammann (Tex. Civ. App.) 34 S.W.(2d) 909.

The judgment of the trial court is reversed, and judgment here rendered in accordance with the above views.

The judgment, in so far as it relates to the north fifty feet of the northwest one-fourth of block 40, is undisturbed.


author: HIGHTOWER, C. J.

text:
    A. H. BELO & CO. v. FECHNER.
    No. 1957.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 19, 1931.
    Motion for Rehearing Stricken Oct. 28, 1931.
    Muse & Muse, of Dallas, for appellant.
    Henry G. Wills, of Fort Worth, and W. B. Lewis, of-Harlingen, for appellee.
   HIGHTOWER, C. J.

On and prior to March 11, 1923, W. F. Fechner, appellee, and A. W. Steinle were resident citizens of Dallas county, Tex., and competitors in the city of Dallas in the nursery business, appellee trading under the name of Southwestern Nurseries and Steinle under the name of Steinle Nurseries. A. H. Belo & Co., appellant, long prior to the date mentioned, and at all times since that date, published and distributed in the city of Dallas and in the state of Texas generally The Dallas Morning News. On March 4th and March 11th, and probably on other dates prior to March 11, 1923, appellee advertised his business in the Dallas Morning News under the name of Fechner’s Southwestern Nursery, saying in his advertisement, “Because we grow our own shrubbery we undersell other dealers.” On March 11, 1923, Stein-le, answering appellee’s advertisement, carried in the Dallas Morning News the following advertisement:

“Closing Out Nursery Sale
“Cool weather prolonged planting season, still time to plant. We make no misrepresentations. Fechner’s Southwestern Nurseries grows some plants but very plain that they undersell others because they grow their own plants is false and misleading and we will pay $100 to any charitable institution if our claim, that Fechner only grows a few varieties compared to the many he offers for sale is not a fact. To prove growing qualities of our stock will give one beautiful cape jasmine with $1 purchase or more.
“Steinle Nurseries
“Corner Ross and Masten.”

On the 28.th day of March, 1923, appellee filed this suit against appellant and Steinle, charging that the Steinle advertisement was libelous as to him and had caused him damage in the sum of $5,000. Subsequently he filed amended petitions eliminating Steinle as a defendant and praying for damages against appellant to his business and reputation in the sum of more than $60,000. Appellant answered by pleas in abatement, general and' special demurrers, general denial, limitation, etc., and by specially pleading, as a complete answer to appellee’s cause of action, the truth of the Steinle advertisement, that isj ■that appellee, under the statutes of Texas, was a “dealer” and “grower” of nursery stock and not merely a “grower,” as appellee claimed to be. Appellant, in its brief, has thus summarized its answer on this issue: “(c) Pleaded the truth as a defense to the libel charged, in that the plaintiff alleged that ‘Fechner’s Southwestern Nurseries’ advertised in said newspaper on March 11th, 1923, ‘Because we grow our plants we undersell dealers,’' classifying said nursery as a grower under the statutory definition of such terms (article 1698, Penal Code); that said advertisement was subject only to the meaning that the advertiser was a grower as con-tradistinguished from a dealer in nursery stock. That the Steinle advertisement was true; that in truth and in fact ‘Fechner’s Southwestern Nurseries’ was a dealer as well as a grower, and so advertised in said newspaper on March 4th, 1923, namely, ‘Because we grow our own shrubbery we undersell other dealers,’ and again on March 10th, 1923, ‘Because we grow our plants we undersell dealers.’ ”

The issues of fact made by the pleadings were found by the jury in appellee’s favor and his damages assessed at $6,000. Appeal was duly prosecuted to the Dallas Court of Civil Appeals and transferred to our docket by the Supreme Court.

Appellant has many interesting propositions of reversible error, and also insists that the trial court erred in not sustaining, as a matter of law, its plea in abatement and also in not sustaining this plea on the issues of fact. Appellant also insists that its plea of limitation was good, as a matter of law. However, we pretermit a discussion of these propositions because we think that appellant was entitled to an instructed verdict on the gronnd that it sustained, as a matter of law, its defense that the Steinle advertisement spoke the truth.

We quote from appellant’s brief the following summary and analysis of the testimony on this issue:

“The plaintiff testified that he resumed the nursery business in 1919 or 1920, leased ten acres south of Dallas, bought what nursery stock was sold, except in 1920 did sell some that ‘we grew ourselves.’ Leased the Letot place in 1921, about four acres in cultivation there in 1923. ‘Upon its acquisition we called ourselves Southwestern Nurseries, called it under that “trade name.” Made no filing under assumed name law. My family is interested in this business with me, consisting of a wife and a daughter. I called the business Southwestern Nurseries.’ T have never filed any paper showing who composed the Southwestern Nurseries. I did not think that was necessary. I did not have anybody interested with me in the nursery business in 1923 who was entitled to any part of the proceeds of the business except me and my family. Our place of business in 1923 was located at the corner of Oedar Springs and Routh Street in Dallas (nursery sales lot). We did buy some nursery stock in 1922. We also bought some nursery stock in 1923 and we sold some of the stock that we bought; we just bought them and sold them. I believe that all of the nursery stock on that lot was exposed for sale, and that it was the stock that was mentioned in this ad. (March 11th, 1923.) That was at the corner of Routh and Oedar Springs Streets. We opened that place on Routh and Oedar Springs about the 1st of November, 1922. In other words, we opened up that place of business in the fall of 1922, and we retained that place. We usually closed our sales yard about the 1st of May. We did buy some stock that we sold in 1924. It is a fact that the nursery selling season is very short. March is the main season. I do not know how much nursery stock I bought in 1922 and 1923. It would be hard to approximate the amount of nursery stock that I bought in those years. I do not know how much nursery stock I bought during the year 1923 that was sold without advertising. We bought some stock, and some of it I had to use for lining-out stock and some of it we used for sale. I have bought some of the stock that I put on the yards for sale but I do not know how much.’
“The defendant proved -through the plaintiff and by his checks produced and offered in evidence that there was purchased by him nursery stock from various nurserymen, as shown by the dates of the cheeks., $230.00 of nursery stock during the period from October 3rd, 1922 to December 17th, 1922; and between the period from January 4th, 1923 to March 10th, 1923, nursery stock to the amount of $501.50; and on March 17th, 1923, nursery stock to the extent of $173.00, aggregating a purchase of nursery stock between said dates in the sum of $904.'50.
“The plaintiff testified: ‘In the nursery business we usually put our lining-out stock in the fall of the year to grow for another year, and then we do the selling. If we do not have certain kinds of lining-out stock on hand we get them from other nurseries.’
“Deducting the $93.25 checks for December, 1922, for nursery stock from the above $230.00 of checks for nursery stock, stated above between October 3rd and December 17th, 1922, would leave nursery stock for the stated usual lining out season in the sum of $136.75, if so used.
“The plaintiff testified: ‘We bought most of our trees. We bought some stock, about $90.00, from the Grilling Nurseries at Beaumont. The stock that we bought from the Grilling Nurseries consisted of some extra sizes of evergreens that we did not have the sizes of and we got them from them and sold them. We did not have any on stock on March 11th, 1923 .for sale. The fall of 1922 and the early season of 1923, which forms the selling season, we did buy some stock from the Terrell Nursery. We bought something like two hundred of their fruit trees. We had some of those on hand on March 11th, 1923, or along about that time. Those plants were included in the advertisement placed in the ’Dallas News on March 11th, 1923; they were included in what we had offered for sale. We bought some nursery stock at various times from various nurserymen, most of it lining-out stock and selling stock. I am talking about the fall of 1922 and during that season. We bought some trees from W. A. Scurry at Wills Point during that season, and possibly we did have some of them on hand on March 11, 1923. This morning in my testimony I gave the amount of stock bought from other nurseries, and from one of those nurseries I said that I bought some stock that went into the goods made up by this advertisement that was to go in this ad as our plants. That was the Houston Nursery. ‘ We bought some stock from them which was lining-out stock and some stock known as Queens Crown mentioned in the other ad there, which we also sold.”
“W. F. Fechner testified in rebuttal that twenty-five per cent- of the nursery stock from the Howard Nursery went into the nursery sale yards and about one-third of the nursery stock purchased from Stallings Nursery of Terrell went into his nursery for resale. He further testified that there was very little nursery stock purchased other than shown by the cheeks in evidence; that he may have bought some more stock in 1922 and 1923 but could not think of it ‘right now.’
“The cheeks above referred to, issued for the purchase of nursery stock, are all signed ‘Southwestern Nurseries, W. F. Fechner, Mgr.’ save one on the bottom of - page 113 of the Statement of Facts, whereon the word ‘Mgr.’ is omitted. The five letters introduced in evidence, written by W. F. Fechner to Howard’s Nursery for nursery stock, dated respectively February 23rd, 1923, February 13, 1923, December 23rd, 1922, and January 11th, 1923, bear the printed heading ‘Southwestern Nursery’ thereon and all are signed as above stated ‘Southwestern Nursery, W. F. Fechner, Mgr.’ ”

Appellee testified further that he grew the major part of the nitrsery stock sold by “Fechner’s Southwestern Nurseries.” The court also received, over appellant’s objections, testimony of other nurserymen “that if ‘Fechner’s Southwestern Nurseries’ grew ninety or ninety-five per cent of the nursery stock it sold, it would be a nursery grower as contradistinguished from a dealer.”

Article 1698, Penal Code, defines the following terms: “Nursery Stock,” “Nursery,” “Being in the Nursery Business,” “Dealer,” and “Agent.” This article is as follows':

“1. ‘Nursery stock.’ — The term ‘Nursery stock’ within the meaning of this law, shall include all fruit trees and vines, shade trees and forest trees, whether such shade or forest trees be especially grown for sale in a nursery, or taken from the forest and offered for sale; all scions, seedlings, roses, evergreens, shrubbery or ornamentals, also such greenhouse plants or propagation stock, all classes of berry plants, cut flowers taken from plants, bushes, shrubs or other trees growing in this State, which may be a medium for disseminating injurious insect pests and contagious diseases.
“2. ‘Nursery.’ — The term ‘nursery’ shall be construed to mean any grounds or premises on which nursery stock is grown, or exposed for sale. ‘Being in the nursery business’ applies to any individual, partnership or corporation which may either sell or grow, or both grow and sell, nursery stock, regardless of the variety or quantity of nursery sto.ck sold or grown.
“3. ‘Dealer’ and ‘agent.’ — The term ‘dealer’ shall be construed to apply to" any individual, partnership or corporation not growers of nursery stock, but who buy and sell nursery stock for the purpose of reselling and reshipping under their own name or title, independently o.f any control of those from whom they purchase. An ‘agent of a nursery or dealer’ shall be construed to apply to any individual, partnership or corporation selling nursery stock, either- as being entirely under the control of the nursery or dealer with whom the nursery stock offered for barter and traffic originates, or some cooperative basis for handling nursery stock with the grower or dealer, as specified in this article. Any such agent shall have proper credentials from the dealer he represents or cooperates with, and failing in that, any such agent shall be classed as a dealer, and subject to such rules and regulations as may be adopted relative to them, and shall be amenable to the same penalties for violations of any provisions of this law.”

The basis of appellee’s libel is that the Steinle advertisement charged him with publishing an untruth when he advertised “Because we grow our plants we undersell dealers.” It was the theory of appellee’s case that he was not a “dealer” but was a “grower,” and had the legal and moral right to advertise as such. We think appellee’s own testimony brings him within the statutory definition of a dealer. Even if the terms “dealer” and “grower” are subject to definition by usage and custom, and that a grower is one who grows 90 to 95 per cent, of his stock, as testified to by the experts, yet, on appellee’s own testimony, he must be classed as a dealer because he did not grow as much as 90 per cent, of his stock. On his testimony he purchased a very substantial portion of his stock, much in excess of the amount allowed him even by his expert witnesses.

It is our judgment that appellant fully established its defense that the Steinle advertisement was a truthful statement of the nature of appellee’s business, and was, therefore, not libelous.

It follows that the judgment of the lower court in favor of appellee should be reversed and judgment here rendered in appellant’s favor, and it is accordingly so ordered.