text:
    WOODWARD et ux. v. COMMERCE FARM CREDIT CO. et al.
    No. 2609.
    Court of Civil Appeals of Texas. Amarillo.
    March 3, 1926.
    Rehearing Denied Sept. 16, 1931.
    ' W. T. Link and Cole & Simpson, all of Clarendon, for appellants.
    , Terrell, Davis, Huff & McMillan, of San Antonio, for appellee.
   JACKSON, J.

This suit was instituted in' the district court of Carson county, Tex., by the plaintiffs, Thomas W. Woodward and wife, Mary L. Woodward, against the defendants, the Commerce Farm Credit Company, the Commerce Trust Company, and the California State Life Insurance Company, all of which are corporations.

Plaintiffs allege:

That , on June 1, 1921, they executed and delivered to the Commerce Farm Credit Company their promissory note for the principal sum of $9,600, payable at the office of the Commerce Trust Company at Kansas City, Mo., November' 1, 1930, which note provided for ’ interest according to attached interest coupon notes. That on the same day plaintiffs executed and delivered to the Commerce Farm Credit Company said interest coupon notes payable at the same-place, covering the interest to accrue upon the principal note at the rate of 6½ per cent, per annum from the date of the principal note until its maturity. That one of said coupon interest notes was for $260, evidencing the interest that would accrue on the principal note from June 1, 1921, to November 1, 1921, and that the nine additional coupon interest notes were each for the sum of $G2-l, and evidenced the interest payable November 1st each year after November 1, 1921, on the principal note to and ¡including the year 1930. That on the same day they executed and delivered to the Commerce Farm Credit Company their four promissory notes each in the sum of $600, payable at the same place on November 1, 1921, 1922, 1923, and 1924, respectively. That all the above-described notes provided for the payment of interest after maturity at the rate of 10 per cent, per annum, and for 10 per cent, additional upon principal and interest as attorney’s fees.

That on June 1,1921, the plaintiffs executed and delivered to the Commerce Farm Credit Company their deed of trust creating a first lien upon the land therein described to secure the payment of said principal note and the coupon interest notes attached thereto evidencing the amount of interest to accrue at the rate of 6½ per cent, per annum. That on the same date they executed and delivered a deed of trust on the same land to the same parties, creating a second lien to secure the payment of the four notes for the sum of $600 each, evidencing the additional interest to be paid. That the deeds of trust provided that plaintiffs would pay all taxes before delinquency, and all assessments against the property therein described, as well as all taxes that might be assessed against said notes while held by nonresidents of this state, and’ all taxes that might be impose^ within the state of Texas upon the deeds of trust, and further provided that, in the event the court having final jurisdiction should determine that the rate of interest and assessments as provided should exceed 10 per cent, per an-num, then such excess would be paid by the Commerce Farm Credit Company. That on their due date, November 1, 1921, plaintiffs paid the note for $260 and the one for $600. That they also paid when due the note for $600 and the one for $624 due November 1, 1922. That they are advised that the California State Life Insurance Company became the owner of a portion of the notes, and the deed of trust securing their payment, and that the deeds of trust had been duly recorded charging all parties with notice of their contents and provisions, and that the Commerce Farm Credit Company and the Commerce Trust Company are partners, and each is agent for the other, and they acted together in making the loan to plaintiffs.

That about August 1, 1923, plaintiffs, realizing that they would be unable to pay the two interest notes aggregating $1,224, due November 1, 1923, interviewed B. O. Taylor, the agent of the defendants, and sought to make an agreement whereby the due date of said two interest notes could he extended, and were advised by him that, unless plaintiffs gave additional security, no extension would be granted, and the defendants would exact the payment of their money. That about December 1, 1923, plaintiffs and the Empire Mortgage Company of Wichita Falls, Tex., acting in behalf of plaintiffs, paid to the defendants at Kansas City, Mo., the principal note of $9,600, the two interest notes due November 1,1923, aggregating $1,224.00, 30 days’ advance interest, $104, and the interest note for $600 due November 1, 1924, interest on delinquent items, $8.16, a total of $11,536.16, which, added to the $2,084 paid by plaintiffs to defendants on November 1, 1921, and November 1, 1922, make a total of $13,620.16, all of which the defendants demanded, received, and accepted. The plaintiffs paid said sums of money under the threats of the defendants to declare all of said notes, including principal, interest, and attorney’s fees, due, and foreclose the deeds of trust upon the land therein described.

That the sum of $9,600 was all the money received by plaintiffs from said defendants or any of them by virtue of any of the contracts mentioned, and that for the use of the principal sum of $9,600 from June 1, 1921, to December 1, 1923, plaintiffs paid the sum of $4,020.16 as interest, which was approximately a rate of 16 per cent, per annum, and greatly exceeded 10 per cent, per annum, the highest contract rate allowed under the statutes of Texas, and, in demanding and receiving said rate of interest, the defendants violated the usury laws of this state, and became bound and liable to plaintiffs in double the amount of the usurious interest received and collected, which is the sum of $8,040.32, for which they sue.

The defendants answered by general demurrer and special exceptions, to the effect that the allegations in plaintiffs’ petition failed to show a violation by them or any of them of the usury laws of this state, and therefore alleged no cause of action.

It is unnecessary to set out the pleadings of the defendants involving issues of fact, as the court sustained the general demurrer and special exceptions leveled at plaintiffs’ petition, and dismissed the case, holding that no cause of action was stated.

The plaintiffs excepted to the judgment of the court dismissing the case, and by proper appeal, as appellants, challenge the action of the court in sustaining said general demurrer and special exceptions. ' J. E. Shropshire et ux. v. Commerce Farm Credit Co. et al., 280 S. W. 181, recently decided by Section A of the Commission of Appeals, not yet reported [in state report], is conclusive that appellants’ petition was sufficient to state a cause of action, and the court erred in sustaining the demurrer and exceptions and dismissing the case.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    LEAVERTON et al. v. DAVIS.
    No. 3448.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 1, 1930.
    Rehearing Denied Oct. 22, 1930.
    Writ of Error Granted Dec. 20, 1930.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellants.

      W. M. Peticolas, Jr., oí Lubbock, for appel-lee.
   JACKSON, J.

This suit was instituted in the district court of Lubbock county, Tex., by the appel-lee, A. J. Davis, against the defendants L. W. Ray and wife, Viola Ray, and D. N. Leav-erton, R. D. Moxley, and John Dalrymple, to recover $715.14, with interest thereon, against Ray and wife, and to foreclose his vendor’s lien on the land fully described in his petition against all of the defendants.

The case was submitted to the court without the intervention of a jury. , Ray and wife defaulted, and the appellee recovered judgment against them for his debt and obtained a judgment against all of the defendants foreclosing his vendor’s lien. No complaint is made of the judgment against Ray and his wife, but Leaverton, Moxley, and Dalrymple prosecute this appeal from the judgment foreclosing the lien on the land against them.

A former appeal of this case was disposed of by this court in an opinion by Chief Justice Hall, reported in 21 S.W.(2d) 369. That opinion gives a full and concise statement of .the controversy between appellants and ap-pellee, and it is unnecessary to restate the case.

The testimony shows without controversy that appellee purchased the vendor’s lien note sued on from &e owner, Mrs. Spencer, and paid her therefor. That at the same time he also paid her the accumulated interest due on the' six outstanding notes constituting the remainder of the series of vendor’s lien notes owned by Mrs. Spencer. That he made the purchase to keep’ Mrs. Spencer from declaring the entire series'of notes due and unpaid and exercising her option to foreclose all of the remainder of the series after' Ray, who had last assumed the payment of said series of notes, had failed and refused to pay the note that was due and the accumulated interest on the balance of the series. That at the time of the purchase, Mrs. Spencer, by a proper, written assignment, transferred the note purchased and the interest, to appellee. That appellants knew, of the existence and the validity of the series of first lien notes which evidenced a jpart of the purchase price for the land, when they accepted their notes and were advised that the lien they were taking to secure their notes was a second and inferior lien to the first lien notes owned by Mrs. Spencer. The testimony shows no express or implied contract by which appellee agreed to protect the appellants in their lien or the payment of their notes, and against appellee neither fraud nor estoppel are pleaded or suggested in the testimony.

Appellants’ contention is that appellee, by the payment of the note to Mrs. Spencer and the interest on it and the unpaid balance of the series, extinguished the lien evidenced by said note and interest and was not entitled to a foreclosure thereof, but if the lien was not extinguished in any event it was made second and inferior to the lien held by them to secure the payment of their notes.

We think that the former opinion of this .court is decisive against appellants’ contention. The lien of appellants was necessarily inferior to the prior lien securing the purchase money. This prior lien was upon the land when appellants obtained their lien. They took it subject to a prior lien, and they were not prejudiced by the fact that the ap-pellee by purchase became substituted for Mrs. Spencer, who, by a proper assignment, transferred the note and interest to appellee. Sullivan et ux. v. Doyle, 108 Tex. 368, 194 S. W. 136.

The judgment of the trial court is affirmed.


author: ALEXANDER, J.

text:
    GRAND FRATERNITY v. NICOSIA.
    No. 1071.
    Court of Civil Appeals of Texas. Waco.
    July 9, 1931.
    Rehearing Denied Sept. 17, 1931.

      Tom M. Hamilton, of Waco, and Eekford & McMahon, of Dallas, for appellant.
    F. M. Fitzpatrick, of Waco, for appellee.
   ALEXANDER, J.

This -was a suit brought by Roselee Nicosia against the Grand Fraternity, a fraternal beneficiary association, incorporated under the laws of the state of Pennsylvania, without capital stock. The plaintiff became a member of the fraternity in 1916 and was issued a life insurance certificate in the sum of $2,000, payable upon her death. In January, 1922, the fraternity canceled the certificate for alleged nonpayment of dues. The plaintiff sued for damages for the alleged wrongful cancellation of. the certificate. She alleged that at the time said certificate was canceled she had a life expectancy of fourteen and óne-tenth years, and that the face value of said certificate at maturity would have been $2,000, and that the unpaid premiums that she would have been required to pay would have amounted to $1,200.28. She prayed for the difference of $739.72. A trial was had before the court without a jury which resulted 'in a judgment in favor of the plaintiff for the sum of $308. The defendant appeals.

The trial court filed findings of fact in which it was found that the defendant issued and delivered its certificate to the plaintiff by which it agreed to pay the beneficiary named therein the sum of $2,000 upon the death of the insured; that the plaintiff paid all dues thereon up to April, 1922, but the defendant declared said certificate forfeited in January, 1922. The court also found that the plaintiff did not pay the dues for December, 1921, promptly when due, but that the defendant had a custom of allowing plaintiff to- pay such dues after the expiration of the time allowed by the certificate, and that plaintiff had actually paid such dues within the time usually allowed to her, and that the company had accepted and retained such dues, and had thereby estopped itself to claim that said certificate had been forfeited. These findings are •supported by the evidence.

The only material question for consideration is the measure of damages to be applied. The court found the cash value of the policy to be $30S and allowed judgment for that sum. The appellant insists that the evidence is insufficient to justify a judgment for that amount.

Ordinarily, where an insurance company repudiates its contract of insurance and refuses to be further bound thereby, and the insured elects to accept the breach and to sue for the damages, the measure of his damages is the value of the policy at the time of the unlawful cancellation. Where the policy is a whole life policy and has no cash surrender value and is not fully paid up, as in this .case, the value of the policy may be ascertained by taking the difference between the present value of the face of the policy, less the premiums which would become due during the period of expectancy with interest compounded at a reasonable rate. Supreme Lodge, Knights of Pythias, v. Neeley (Tex. Civ. App.) 135 S. W. 1046, at page 1050; Provident Savings Life Assurance Society v. Ellinger (Tex. Civ. App.) 164 S. W. 1024, par. 8; (writ refused); St. Louis & S. W. Ry. Co. v. Thompson, 102 Tex. 89, 113 S. W. 144, 147, 19 Ann. Cas. 1250; Mutual Reserve Fund Life Ass’n v. Ferrenbach (C. C. A.) 144 F. 342, 7 L. R. A. (N. S.) 1163; Ebert v. Mutual Reserve Fund Life Ass’n, 81 Minn. 116, 83 N. W. 506, 834, 84 N. W. 457; 5 Cooley’s Briefs on Insurance (2d Ed.) pp. 4699 et seq.; American Ins. Union v. Woodard, 118 Okl. 248, 247 P. 398, 48 A. L. R. 102. This seems to have been the measure of damages adopted by the appellee in her pleadings.

However, there was no evidence introduced as to what would be a reasonable rate to be used in compounding the interest for the purpose of ascertaining the present value of the amoufit provided for in the certificate, nor the value of the dues that were to be paid in the future. According to the certificate, the dues amounted to $7.72 per month, if paid monthly, or $90.02 per year, if paid annually in advance. The appellee had aTife expectancy of fourteen and one-tenth years as alleged by her. The statutory rate of interest in this state is 6 per cent. If the face of the policy be discounted at 6 per cent, compound interest, and if interest at the same rate be charged on the unpaid premiums from the time of their maturity to the end of the life expectancy of the insured, it will be found that the policy had no value, and that appellee was not entitled to recover anything. Moreover, if we use 6 per cent, simple interest in making the above calculations, the value of the policy will be much less than that found by the court. There is nothing in the record to show what method of calculation was used by the trial court in arriving at the value of the policy, and no evidence was introduced to authorize the use of any particular rate of interest in making the calculation.

While, as held in the case of Supreme Lodge, Knights of Pythias, v. Neeley (Tex. Civ. App.) 135 S. W. 1046, the interest should be compounded at a reasonable rate in arriving at the face value of the certificate and the .value of the unpaid dues at the maturity of the certificate, we do not think that the statutory rate of 6 per cent, should be used. The statutory .rate of 6 per cent, was provided for the calculation of simple interest. Compound interest is not favored by tbe courts, 33 C. J. 191, but it will be allowed when the equities of the ease require it, 33 C. J. 252. We think that, when under the circumstances it is necessary that the interest be compounded in order to administer justice, and the rate of such, compound interest is not fixed by contract, evidence should be introduced showing what would be a reasonable rate to use in compounding the interest. Herzing v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 17 S.W.(2d) 1046, par. 1; United States Fidelity & Guaranty Co. v. Nettles (Tex. Com. App.) 35 S.W.(2d) 1045, par. 1.

The judgment of the court is not supported by the evidence. The judgment is therefore reversed, and the cause remanded for a new trial.


author: GALLAGHER, C. J.

text:
    ELLIOTT et al. v. SHAFFER et al.
    No. 967.
    Court of Civil Appeals of Texas. Waco.
    July 9, 1931.
    Luther Nickels, of Dallas, Walton D. Taylor, of Houston, and Taylor, Atkinson & Farmer, of Waco, for appellants.
    F. M. Fitzpatrick, W. L. Eason, W. Y. Dun-nam, and Jas. P. Alexander, all of Waco, R. L. Bobbitt, of San Antonio, and Grady Chandler, of Austin, for appellees.
   GALLAGHER, C. J.

This case was at a former day of this term regularly submitted for consideration and determination. Upon examination of ■the record we deemed it proper to certify certain issues of law to the Supreme Court for determination. A certificate presenting same was duly prepared and transmitted to the clerk of that court.

All the parties hereto have filed in this court a joint motion, asking the court to dismiss this appeal. They state in said motion that all the matters in controversy between them have been settled by mutual agreement.

The law favors an amicable adjustment of the differences between litigants and a speedy termination of litigation. It is the proper practice, under the circumstances, for this court to grant such motion. San Jacinto Rice Co. v. Hamman (Tex. Com. App.) 247 S. W. 500; Bering Mfg. Co. v. Carter & Bro. (Tex. Com. App.) 278 S. W. 182; Southwestern Settlement & Development Co. v. Village Mills Co. (Tex. Com. App.) 265 S. W. 124. We have therefore requested the Supreme Court to permit us to withdraw the certificate filed in that court and our request has been granted.

The appeal in this case is dismissed at the cost of appellants.

ALEXANDER, J., took no part in the consideration and disposition of this case.


author: PEDPHREY, 0.(J.

text:
    McCLINTIC et al. v. J. D. YOUNG CORPORATION.
    No. 2548.
    Court of Civil Appeals of Texas. El Paso.
    June 25, 1931.
    Rehearing Denied Sept. 17, 1931.

      G. W. Dunaway and T. D. Kimbrough, both of Midland, for appellants.
    E. 0. Loekliear, of Andrews, and Paul Moss, of Odessa, for appellee.
   PEDPHREY, 0.(J.

This is the second appeal of this cause, and a statement of the-case will be found.in 26 S.W.(2d) 460, which is the same as in the present suit, except as to the amount of rent and damages sought.

The case at bar was tried to a jury, and upon its findings that appellants did not erect a building suitable for a furniture business, that appellee sustained $1,984.72 in damages by reason of their failure to erect such a building, and that appellee used ordinary care to prevent further injury from the rains, judgment was rendered in favor of appellee for $444.72, and from such judgment this appeal has been perfected.

Opinion.

The ten propositions advanced by appellants are: (1) That, appellee having become a tenant of the building under an assignment from J. D. Young, it was error to render judgment for appellee in the absence of a showing that the covenant to build a building suitable for a furniture store was not breached before the assignment, or that the right of action for breach of such covenant was also assigned to appellee; (2) that appellee, having become a tenant of the building by virtue of an assignment from J. D. Young, the rule of caveat emptor applies to it and it could not look to appellants for its damages because óf the unsuitableness of the' building; (3) that the covenant to build a building suitable for a furniture business, being an implied covenant, did not run with the leasehold, and appellee, having become the tenant by virtue of an assignment, must look for its damages to its assignor; (4) that appellee, having itemized its damages, was limited to the amount shown by its schedule; (5) that the court erred in admitting the opinion of J. D. Young as to the amount of the general damage; (6) that it was error to permit the witnesses Montgomery and Corbitt to state that they never thought the building suitable for a furniture business; (7) that certain argument of counsel for appellee was prejudicial and reversible error; (8) that the general demurrer to appellee’s petition should have been sustained" and (9) that the finding of the jury that appellants failed to erect a suitable building was immaterial and would not support the judgment rendered. Paragraph 4 of the lease contract reads: “It is understood between the parties hereto that this lease is taken for the use and benefit of J. D. Young Corporation now in process of formation, and the party of the second part agrees and binds himself that he will not assign or sub-lease the said lease except such assignment as may be necessary to put the .title into J. D. Young Corporation, without the express written consent of the parties of the first part, their heirs and assigns.”

This provision is, we think, sufficient to show that appellee was the real party at interest. and the first three propositions are therefore untenable.

Appellee alleged in its original petition: “That on or about March 1, 1927, plaintiff and defendants made and entered into an agreement and rental contract, whereby defendants rented to plaintiff for three years, to-wit, from April 1, 1927, to and ending March 30, 3930, Lot 17, Block 36, in the Original Town of Odessa, Ector County, Texas; on which defendants were to complete a sheet steel store building 25 feet wide by 80 feet long with an annex shed 25 feet wide by 20 feet long on the back end, and to deliver same to plaintiff in a good, substantial and tenanta-ble condition; that defendants on or about April, 1927, delivered, and plaintiff took possession of said land and premises at an agreed rental of $125.00 per month; but that said store building and annex were not finished in the manner and in accordance with the terms of said lease and agreement; that on the contrary, the roof has always been leaky and the rear end of said building and annex not com-loleted to keep the rain waters from entering said store and annex; .that sometime after plaintiff took possession of said land and premises, and in order to get building and said annex enlarged and put in a tenantable con•dition, plaintiff agreed to^ pay $15.00 per month additional to the said $125.00 per month, and defendants agreed to accept said amount, and to finish said building and put and keep it in good and tenantable repair; but, on the contrary, defendants have failed and refused so to complete and keep said building in a good and tenantable repair and condition, by means whereof the water has entered said building and promises and damaged plaintiff’s stock of merchandise in the sum of $1984.72; that said land and premises were leased to plaintiff and said building to be erected for him for a furniture business; that plaintiff’s furniture was soaked with water, including bedding, furniture and other articles commonly kept and sold in a furniture store.” ■

By its supplemental petition it alleged, in reply to appellant’s answer and cross-action, as follows: “Pla,intiff admits the lease contract,. but says that defendants were to erect for plaintiff a building suitable fol a furniture business; but that in utter disregard of their duty to do so, defendants, though often requested, failed and refused to erect for plaintiff a building suitable for a furniture business; that the roof, sides and rear always leaked; that the rear and annex were so constructed as to permit and cause rain water to enter and flood the building; that by reason thereof, rain water, from time to time, entered the building and soaked plaintiff’s furniture and merchandise with water to its damage in the sum of $1984.72; that plaintiff attaches hereto an itemized list of goods damaged, marked plaintiff’s ‘Exhibit A,’ and made a part hereof, showing a loss of $984.72; plaintiff says that its stock of goods and furniture was generally depreciated, and that such general depreciation, together with the cost of labor and repairs necessary to put the damaged goods and furniture in a saleable condition after being soaked by rain water, amounted to the sum of $1000.00 and more; that said building was never suitable.for a furniture store; that defendants from time to time promised to erect and make said building suitable for a furniture store, which promise, plaintiff, in good faith, relie'd upon, all of which defendants well knew.”

Appellants now contend that appellee’s recovery should have been limited to the amount itemized in Exhibit A, and that there is no pleading upon which a recovery for more than that amount could be recovered.

We think it clear from the above-quoted pleadings that appellee was seeking to recover special damages, and that $984.72 was damage to a specified list of articles and the $1,009 was additional damage to the stock by reason of depreciation and cost of repair.

The only assignment and the one to which appellants assert the proposition germane to complains of the judgment on account of the insufficiency of the evidence while the prop>-ositioh questions the sufficiency of the pleading.

While the proposition sets forth a different question from that raised in the assignment, and while we might properly disregard the, proposition by reason thereof, yet, following our practice of liberality in such matters, we shall not do so.

The only exception urged to any of the quoted pleadings was a general demurrer, and we are of the opinion that they were good as against such an exception.

The only objection interposed to the statement of J. D. Young that his estimate of the additional damage to the furniture was not less than $1,500 was that it called for his opinion as to what the additional damage was.’

Appellants, in their fifth proposition, contend that such statement was too remote, speculative, uncertain, and indefinite and not included in the schedule filed in the pleadings.

The objection urged in the trial court, as shown by the bill of exceptions, is not presented in the proposition, and we cannot consider the additional objections there urged. The proposition must therefore be overruled. Nor do we agree that the admission of the testimony of the witnesses Corbitt and Montgomery, as to their opinion as to the suitableness of the building for a furniture business, calls for a reversal of the judgment.

J. D. Young had given his opinion as to the suitableness of the building, and no objection was made thereto, and from an examination of the whole testimony we are of the opinion that there was abundant evidence to support the jury’s finding on that question aside from the testimony of the above witnesses. If there was error it was harmless.

The statement of counsel for appellee complained of by appellants, while not to be sanctioned, in view of the prompt action of the trial court instructing, the jury not to consider it for any purpose, would not authorize this court in reversing -the judgment.

Appellants’ contention that, appellee having alleged that the building was to be erected of sheet steel, it was necessary for it to go further and allege that appellants were negligent in the construction of the building, in order to state a cause of action, also seems to be without merit.

There is nothing in the record to show that a building of sheet steel cannot be erected in such manner as to be suitable for a furniture business, and we certainly, cannot take judicial knowledge of any such fact.

From a careful study of the record, we have concluded that none of the errors assigned call for a reversal of the judgment, and that it should be affirmed, and it is so ordered.


author: PELPHREY, C. J.

text:
    BURFORD OIL CO. et al. v. WADLEY.
    No. 2555.
    Court of Civil Appeals of Texas. El Paso.
    July 13, 1931.
    Rehearing Denied Sept. 17, 1931.
    Hubbard & Kerr and Russell & Starley, all of Pecos, for appellants.
    L. A. Dale and Rutledge Isaacks, both of Pecos, for appellee.
   PELPHREY, C. J.

Milton Wadley, plaintiff in the trial court, brought this suit against defendants, Burford Oil Company and Pecos Refining Company, corporations, for damages. He joined the two defendants in one suit and based his cause of action upon his sole ownership of 7¾ acres of land prior to and at the time of the suit, upon which at the times mentioned was situated his home, and upon which ho operated liis dairy plant. He alleges the adequate equipment of his dairy, describing same in detail, for the purpose of producing and selling dairy products to the public, including milk, cream, butter, and buttermilk. He alleges, in effect, the subsequent construction by defendants of the refineries adjacent to his then existing dairy plant, and their operation, in refining crude oil into finished and refined products, such as gasoline, kerosene, lubricating oils, and other petroleum products, which he alleges produced and resulted in producing odors and fumes and smoke which contaminated his dairy products, and thereby decreased the value of his said real estate constituting his dairy plant, and, preventing the enjoyment of the same-as his home, materially decreased the profits of his said dairy business and destroyed the good will of his dairy business. He alleges that the operation of said refinery plants in such close proximity to his said dairy constitutes and at all times since its operation has constituted a nuisance intolerable to be borne by plaintiff: by reason of the facts, stated in extensive detail, briefly to the effect that his dairy products became contaminated and impregnated with gas and oil fumes; that in connection with and in addition to said refinery defendants have dug pits or sumps into which run the crass and refuse from the refinery, often setting the contents of said pits or sumps on fire, and on such occasions great billowy and overhanging clouds of dense black smoke, full of black oily soot, settled over and into plaintiff’s residence, blackening the contents thereof, and ■covering his milk cows, his dairy barns, his milkhouse and lots, his cows thereby becoming grimy and sooty, their udders covered with black oily soot, the products of his dairy infested with objectionable odors and oily substance to the extent of materially reducing their value and sales, and practically destroying plaintiff’s said business. Plaintiff states in detail the items of damages, which we omit.

Plaintiff alleges that since the filing of his .suit and because of the matters complained of he was compelled to remove his dairy from his said premises and to obtain a place elsewhere .at great expense; that by his labor and attention to business he had built up a good will which, by reason of the matters complained of has been lost and destroyed. Plaintiff alleges that as to the matters and things complained of defendants are and at all times were joint tort-feasors; that at all times.mentioned the •defendants acted in concert with each other in •connection with all such matters; that the particular part each is performing is unknown to plaintiff but known to each defendant ; that they were incorporated ' simultaneously, and in part with an interlock-, ing directorate, each to perform some duty .and assume and perform some function or functions in connection with said refinery; •that the work of each complements the work of the other, and the two together make a complete whole; that the enterprise is advertised as the enterprise of the Burford Oil Company, but they act and at all times have acted in concert and to each other’s interest, and there is a unity of purpose between them.

Plaintiff prayed substantially as follows: For the rental value for month of his residence and former dairy property after he vacated same; damages to his dairy business; the difference in value of his said real estate and improvements thereon without said nuisance and with said nuisance, that is, its cash market value at the times mentioned less its cash market value with said nuisance; damages to plaintiff and his wife on account of suffering and inconvenience in the occupancy of said premises while occupying same; damages to his trade in his dairy business in the form of “good will”; for 'exemplary damages.

Defendants answered severally, each by pleas in abatement, suggesting a misjoinder of parties defendant, in that the pleading failed to show a joint tort, a general demurrer, special exceptions, general denial, and an affirmative pleading to the effect that plaintiff’s loss of business, if any, was due to general business conditions in the vicinity of his dairy, and to his own negligence; that the two refineries had increased plaintiff’s business and the value of plaintiff’s land more than the refineries had decreased said business, if same had been decreased. The court heard and overruled defendant’s, pleas in abatement, their general demurrer, and special exceptions, except as to special exception 21, to plaintiff’s claim for damages on account of his alleged reduction of his income from his dairy business, which exception the court sustained, and submitted the case on all other issues to the jury on special issues.

On special issues submitted, the jury found all issues from a preponderance of the evidence :

1. Defendants, naming them, “are acting together in a common purpose and in pursuance of a common design in manufacturing gasoline and operating their plant at the point, where they are now operating.”

2. “Defendants were acting together in a common purpose and in pursuance of a common design in manufacturing gasoline and operating their plants at the time complained of in plaintiff’s petition.”

3. The jury finds “that oily and sooty substances, objectionable odors and black smoke emanate from the plant of said defendants, or either of them.”

4. “Said oily and sooty substances and objectionable odors and black smoke reached the premises of the plaintiff in such manner as to disturb the plaintiff and his family to the extent of becoming a nuisance, as tbat term is hereinafter defined.”

5. Such nuisance is of a permanent character, or treated as permanent by the parties to this suit.

6. Plaintiff .was compelled to abandon his properties as described in his petition solely by reason of said nuisance.

7. Plaintiff, during the times mentioned in said petition, had established “a good will” as that term is hereinafter- defined, in connection with his dairy business.

8. Plaintiff was damaged in said good will by the acts of defendants in the operation of their refineries at the times mentioned in plaintiff’s petition.

8a. The value of said good will immediately before the damage occurred was $1,800; immediately after said damage occurred the value of said good will was nothing.

9. The intrinsic value of plaintiff’s real estate with the improvements described thereon, with the oil-refining plant of defendants, in operation at the points where they are now operating,' is $1,525.

10. The intrinsic value of plaintiff’s said property, if said oil-refining plants of defendants were not in operation at the point where they now operate, is $5,337.50.

11. The jury finds “that either of said defendants contributed to the act of the other in creating such nuisance.”

12. Odors, gases, or fumes emanate from the tanks of the Skelly Oil Company where now located.

13-15. Said odors, gases, or fumes emanating from said tanks (the Skelly Oil Company tanks) are not the proximate cause, nor a contributing cause of the nuisance complained of by plaintiff; in no per cent, do said odors, gases, or fumes contribute to said nuisance.

16-18. Odors, gases, or fumes emanate from the loading rack on the railroad described in the evidence, none of which are a contributing cause or the proximate cause of the nuisance complained of by plaintiff.

19. (Not answered as to what per cent, said odors, gases or fumes contribute to said nuisance.)

20. Plaintiff’s dairy product was so contaminated with oil fumes or gas fumes emanating from defendant’s refineries since said refineries have been in operation as to make such dairy product unsalable.

The only issues submitted by the court have reference to the decreased value of the real estate and the injury to said good will.

The court defined the terms “nuisance,” “good will,” “proximate cause,” and “intrinsic value.”-

On motion of plaintiff, the court entered-judgment in his favor, on the findings of the jury, for the sum of $1,800, the value of said good will destroyed, and the sum of $4,525, the damage to plaintiff’s real estate sustained, aggregating the total sum of $5,712.50 as the damages sustained by reason of the matters complained of. .

The court overruled defendant’s motion for a new trial, and the case is now here, on appeal.

Opinion.

The briefs filed by the Burford Oil Company are submitted for both companies, and we so accept them.

Of the one hundred and nine assignments of error found in the record, sixty-five have been brought forward and' copied in appellants’ brief, and germane to these appellants present twenty-one propositions, followed by statements, for consideration. The propositions presented involve the question of joint tort, damage to good will, damage to land, temporary or permanent nuisance, admissibility of evidence, and the court’s charge.

Special issúe No. 1, as submitted to the jury, reads: “Do you find from a preponderance of the evidence that the defendant Bur-ford Oil Company, and Pecos Refining Company, are acting together in a common purpose and in pursuance of a common design in manufacturing gasoline and operating their plant at the- point where they are now operating?”

Appellants objected to the submission of this issue as follows: “Because said special issue is prejudicial and does not submit the law as applied to the facts in this case,” and, “because the issue does not limit the jury in consideration to such common design or acting together for the purpose of doing the thing which injured the plaintiff, if he was injured.”

The overruling of these objections is made the basis, of appellants’ thirty-sixth and thirty-seventh assignments of error and in support thereof they submit the following propositions: “For the appellants to have been guilty of a joint tort, they must have acted together with a common purpose and in pursuance of a common design to do the thing which injured appellee, and the court having undertaken to submit the issue to the jury, is required to submit it correctly, and • where the court, over the objection of this appellant, in the special issue submitted, based the test of joint liability on whether the two defendants were acting together in a common purpose and in pursuance of a common design, in operating their plants, he committed error, and the answer of the jury will not support the judgment.”

Appellants set 'forth in their brief the following ’language used by the Commission of Appeals in Sun Oil Company v. Robicheaux, 23 S.W.(2d) 713, 715: “This rule is well established in this state, and supported by almost universal authority, that an action- at law for damages for tort cannot be maintained against several defendants jointly, when each acted independently of the others and there was no concert or unity of design between them. In such a case the tort of each defendant is several when committed, and it does not become joint because afterwards its consequences, united with the consequences of several other torts committed by other persons in producing damages. Under such circumstances, each tort-feasor is liable only for the part of the injury or damages caused by his own wrong; that is, where a person contributes to an injury along with others, he must respond in damages, but if he acts independently, and not in concert of action with other persons in causing such injury, he is liable only for the damages which directly and proximately result from his own act, and the fact that it may be difficult to define the damages caused by the wrongful act of each person who independently contributed to the final result does not affect the rule.”

Appellants contend that the above doctrine applies to this cause, and in arguing the question say: “The trial court in submitting the issue to the jury seemed to think the concert or unity of design required was a concert of action or unity of design in prosecuting their lawful business. But on the contrary, the concert of unity of design referred to by the courts is applied only to the commission of the tort, or in this ease to the production of fumes.”

In the case of Sun Oil Company v. Robi-cheaux, supra, the trial court rendered judgment for the defendant oil companies, this judgment was reversed by the Court of Civil Appeals [10 S.W.(2d) 250], and the Commission of Appeals in turn reversed the judgment of the ’Court of Civil Appeals and affirmed that of the district court.

The action was to recover damages for loss of rice crops during the years 1924 and 1925 on account of salt water being drained into Hallebrandt bayou from Spindle Top hill.

In addition to that portion of the opinion above quoted, the court said: “It is true that the facts do show that there were several groups of defendants in which the individuals of the group acted- together with each other in using the same settling tank to hold the salt water, and where this water was wrongfully allowed to escape into the bayou the members of that group would be jointly and severally liable for all the damages thereby produced. However, there is no evidence that the several groups acted together with each other, and therefore the part of the damages produced by one group could not be laid at the door of the other groups or members thereof.”

The reasons above set forth seem to be the ones upon which they base the judgment of reversal, and the holding there appears to be contrary to the contention of appellants here. They hold that all individuals who acted together in using one settling tank would be jointly and severally liable, if the water was wrongfully allowed to escape into the bayou, and do not base their liability upon whether or not they acted together in allowing the water to escape. The storing of the water in the settling tank was certainly a lawful enterprise, yet, notwithstanding, the court said, if the water was allowed to escape and damage resulted, all who had acted together in using the tank would be liable, jointly and severally.

Therefore, if the operation of the plants of the appellants caused the escape of oil and sooty substances, objectionably odors and black smoke; if these oily and sooty substances, objectionable odors and black smoke reached the premises of appellee and caused the damages complained of,.and if appellants were acting together in a common purpose and in pursuance of a common design in the operation of such plants, then they would be jointly and severally liable for the damages, if any.

This appears to have been the theory upon which the trial court submitted special issue No. 1, and the assignments attacking the manner of its submission are overruled.

After a careful study of the evidence we think it sufficient to justify the submission of the issues as to whether appellants were acting together in a common purpose and in pursuance of a common design in the operation of their plants.

The evidence is too extensive to attempt to fully state it here, but it appears that the appellants were incorporated almost simultaneously; they located their plants about the same time side by side; they have an interlocking directorate; Mr. Burford is president of both corporations; Mr. Thomas is vice president and manager of both; that Mr. Thomas gives orders to the servants, employees, and agents of both; that crude oil in every instance is first put into the pipe stills belonging to the Burford Oil Company where it is “topped,” and that it passes from the pipe stills through a pipe, after having been partially refined, to the Jenkins stills, known as the cracking plant, to be there completely refined; that, when the refinement process is completed, the finished product is delivered to the Burford Oil Company; that the Jenkins stills belong to the Pecos Refining Company; that Mr. Thomas ordered the crass and refuse oil hauled from the Jenkins stills to the sumps or pits that are located on the Pecos Refining Company’s property and there burned; that he ordered this done by an employee of the Burford Company; that the crass and refuse oil was hauled to the sumps or pits on a sled belonging to the Burford Oil Company; that the sled was pulled by a truck belonging to the Burford Company; that this truck was used generally for service throughout the entire properties of appellant; that the entire output of both plants was 5,000 barrels per day; that about one-half of 1 per cent, of the crude oil escaped into the air in the. form of gas while being handled by the Bur-ford Company and about 2 per cent, while it was being handled by the Pecos Company, making about 2½ per cent, of the oil escaping into the air, or one hundred and twenty-five barrels every twenty-four hours; and that the purpose of the two appellants, or at least the primary purpose, is the manufacture of synthetic gasoline, and that the processes used by each of them is dependent upon the one used by the other in such production.

These facts are sufficient, we think, to support the jury’s finding on that issue.

Appellants further contend that the court should not have submitted the issue of good will and the alleged loss of good will because the alleged damage was too speculative and that the evidence is insufficient to .support the jury’s findings as to the value of such good will. We cannot agree with such contentions.

The evidence shows that appellee had his business established; that,appellants came in and built their plants across the road from his dairy; that appellee prior to the establishment of the refineries had never had any complaints about his products; that shortly after their establishment soot and bad odors began coming over on appellee’s property, got into his milk and butter, and caused them to taste bad; that he had about 150 customers before the refineries began operation, and that he only had 75 when he moved away; that his business dropped from $2,184.76 in March, 1929, to $963.54 in December; that at least several of his customers ceased using his products because of their unwholesomeness. In the very nature of the dairy business its good will would depend upon the wholesomeness of its products, and, if appellee’s products had been good and wholesome before the operation of the refineries arid he had had no complaints as to their quality, then naturally the business had a good will which would have some value. If those products later became contaminated by oily soot, black smoke, and disagreeable odors coming into the dairy,, there would naturally follow an injury to that good will. If that condition brought about complaints from and loss of customers,, then damages would result and the person responsible for the condition would be liable for such damage.

We cannot agree with appellants that there is any uncertainty as to there having been some damage occasioned to the good will of appellee’s business by the sooty substances, objectionable odors and black smoke coming onto his premises. It would of course be practically impossible for the jury to compute with mathematical certainty the amount of damages to appellee’s business caused by the soot, gas, and smoke, but, as we understand the rule, it relates to uncertainty as to cause, and not as to uncertainty of measure of extent. South Chester Tube Co. v. Texhoma Oil & Refining Company (Tex. Civ. App.) 264 S. W. 108, and authorities cited.

Appellants’ assignments as to the issues submitted on the question of good will, tlie value thereof before and after the establishment of the refineries, are therefore overruled.

The court submitted the following issue on the question of value; “Special Issue No. 10: What do you find from a preponderance of the evidence would be the intrinsic value of the plaintiff’s real estate with said improvements thereon if said Oil Refining plants of the defendants were not in operation at the point where they now operate?”

Appellants objected to the submission of this issue on the ground that it was not raised by the evidence, and also contend the jury’s finding- as to ,the difference as to the intrinsic value before and after the injury does not justify the rendering of a judgment, because appellee by his pleading affirmatively sought to recover the difference in the market value. Objection was also made to the admission of testimony as to the intrinsic value. Appel-lee’s pleading on the question of value was: “Plaintiff further represents and shows that said land on which his dairy is situated, together with the permanent improvements thereon as appurtenances to said real estate, including his said milk house, dairy barns, tool houses and garage, dugout, hay barn, fencing, water well (same being an artesian well) water piping, etc., chicken houses and the residence house situated on said land, when all taken together so improved would have in the vicinity of said property a reasonable cash market value of $10,000.09. and an actual value of said amount, at this time and at the time of the trial of this cause in the absence of and except for the damage done to said property by the existence of said nuisance herein complained of, and that said property was of the reasonable cash market value of $10,000.00 and of such actual value in the vicinity of said property at the time of the commencement of the location of said refinery and just before same was so located and established. But on account of the existence of said nuisance and the acts of the defendant in maintaining same in such close proximity to said property, the cash market value of said property has been practically destroyed and is not worth for any purpose with the existence of said nuisance more than $1,000.00, so that the difference in the cash market value of said property and the real value thereof without said nuisance and its cash market value and real value with said nuisance, at all times since said refinery began operation and now, is in the sum of $9,-000.00, all brought, effected and caused' by the unlawful acts of the defendants in establishing and maintaining said refinery in such close proximity to plaintiff’s said property as to constitute and be a nuisance especially to this plaintiff.”

From the above it appears that appellee was seeking to recover the sum of $9,000 as damages to his real estate, which amount he alleged to be the difference between both its cash market and real value, before the establishment and afterward; therefore we think evidence was admissible as to the intrinsic value, ■ and, if there was evidence as to such value, the court properly submitted an issue thereon to the jury.

Appellee testified in the beginning of his testimony that the property had a cash market value, but later admitted that he did not know of any such dairy plants as his being sold since he purchased his own in 1925. He further testified that he knew the real value of his dairy plant, and his land and improvements at the time of trjal, and then stated the real value before and after the operation of the refinery began.

He further testified that, in addition to being the proprietor, he managed the business after 1926 when he took it over, and that he built a good portion of it. From these facts we think he was fully qualified to testify as to the real value of the dairy.

The .witness Patterson also testified as to the real value of the property. The issue was raised by the evidence, and the finding of the jury thereon would therefore support a judgment. The evidence of appellee as to the return of the butter from Leader Grocery Company was admissible, and the assignment relative to the admission of same is overruled.

We find no error in the admission of the testimony of appellee as to the number of customers he had before and after the refinery opened.

The remaining questions raised will not be discussed in detail, but will merely say that in our .opinion they present no reversible error.

The judgment of the' trial court is aflirmed.


author: RANDOLPH, J.

text:
    GARRETT v. STOKES, District Judge, et al.
    No. 3697.
    Court of Civil Appeals of Texas. Amarillo.
    July 29, 1931.
    Killough & Dotson and Storey, Leak & Storey, all of Vernon, for relator.
    John Myers and R. R. Donaghey, both of Vernon, for respondents.
   RANDOLPH, J.

A petition for mandamus has been presented to this court by relator, seeking to compel the Hon. W. N. Stokes, judge of the district court of Wilbarger county, Tex., to set the' amount of a supersedeas bond on an appeal. The petition sets out at length the bringing of a suit in the state of Texas by the.district and county attorneys to restrain relator from the operation of a pool hall contrary to the laws of Texas. A temporary restraining order was issued by the court, and, on hearing on the merits before a jury and on their answers to issues submitted to them, judgment was rendered by the trial court perpetuating such temporary injunction. From this final judgment relator gave notice of appeal to this court, and then applied to the district judge to fix the amount of a supersedeas bond on appeal. The district judge thereupon refused to set any amount for such supersedeas, for the reason given by him that the case is not “one in which the judgment of the Court can be suspended under the laws of the state on appeal by the filing of a supersedeas bond under article 2270 of the Revised Civil Statutes of Texas.”

We are of the opinion that the trial court erred in this refusal to fix the amount of the bond. Article 2270, R. C. S., provides as follows: “An appellant or plaintiff in error, desiring to suspend the execution of the judgment may do so by giving' a good and sufficient bond to be approved by the clerk, payable to appellee or defendant in error, in a sum at least double the amount of the judgment, interest and costs, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him.”

It is useless to discuss the various cases cited by the parties, as we think that the authorities are clearly in favor of the holding that it was the duty of the district judge to fix the amount of such bond. 3 Tex. Jur. pp. 35, 36, § 3; Ætna Club v. Jackson (Tex. Civ. App.) 187 S. W. 971, 972; Houtchens v. Mercer (Tex. Com. App.) 29 S.W.(2d) 1031, 1036, 69 A. L. R. 1103.

In the ¿Etna Club Case, the suit was based upon a petition for temporary and permanent injunction, enjoining the defendant from keeping liquor upon its premises for sale, which, upon hearing on the merits, the trial court made permanent. Notice of appeal was given, and the defendant filed its motion praying the court to enter an order fixing the amount of supersedeas bond necessary to suspend the execution of said judgment. This the trial court declined to do, and the plaintiff then applied to the El Paso court for a mandamus to require him to fix such amount of bond which the trial judge declined to do.

The Court of Civil Appeals in that case held that the court had no judicial discretion except as to the amount of the bond, and also holding that the statute gave the right of appeal and thp right to supersede dll final judgments in civil cases by a compliance with the law. The court further holds in that case that the statute fixing the amount of bond in cases of judgments for lands or money does not provide the amount in any other case, and says: “Where there is a right there must be a remedy. We having concluded that the statutes give the right to appeal from and the right to supersede.all final judgments in civil cases by a compliance with the law, we must look for a way for appellants to comply with the law. The appellate courts of this state have declared in many eases that where the statute prescribes no bond, then it is proper and necessary for the court to fix the bond. Hill v. Halliburton, 32 Tex. Civ. App. 22, 73 S. W. 21. See note 22 D. R. A. (N. S.) 1909, p. 316. The principle of judicial discretion does not apply, in this sort of case. It was therefore the duty of respondent to fix the amount of the bond to be given upon appeal, and it is the duty of the clerk to approve same as to the sufficiency of the sureties and 'then to file it, and the court has no authority to order or direct the clerk to do otherwise.”

In the Houtchens Case, supra, the Commission of Appeals, with the express approval by the Supreme Court of their opinion, after discussing the facts and the opinion in the case of ¿Etna Club v. Jackson, supra, says: “A reading of this opinion will disclose that the court held that our statutes relating to supersedeas bonds apply to every final judgment in a civil case. We think this same holding is fully sustained by the opinion of the Supreme Court in the Waters-Pieree Oil Company Case [107 Tex. 1, 106 S. W. 326] cited by the court in Aetna Club v. Jackson.”

The opinion of the Commission of Appeals in the Houtchens Case.thoroughly discusses the several cases cited by them to support them in their holdings, and we do not deem it necessary to enter into any further discussion of such various cases.

We therefore order the clerk of this court to issue a writ of mandamus, requiring the respondent W. N. Stokes, judge of the district court of the Forty-Sixth judicial district of Texas, to fix the amount of the supersedeas bond for appeal and stay the judgment in this case as prayed for by relator.

JACKSON, J., not sitting.


text:
    STONE FORT NAT. BANK OF NACOGDOCHES v. FORBESS.
    No. 3630.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.
    Rehearing Denied Sept. 9, 1931.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    Dennis Zimmermann, of Tulia, for appellee.
   JACKSON, J.

This is an appeal from a judgment overruling the appellant bank’s idea of privilege. The appellee sued the appellant bank, alleging, in substance, that he was a resident citizen of Randall county. That the defendant was a national banking corporation, having its office and place of business in Nacogdoches county. That about October 15, 1929, plaintiff deposited to his own account in said bank, subject to his check, the sum of $300, and, though he had drawn his check upon said bank for said amohnt, defendant refused to pay his checks and otherwise refused to pay said sum of money to him, to hiá damage.

That about November 15th, while plaintiff’s money was still on deposit in said bank, he made a draft thereon in the sum of $300 in favor of the First National Bank of Canyon, which is located in Randall county, Tex., which draft was forwarded by the Canyon bank to the defendant bank at Nacogdoches. That the defendant bank refused to pay said draft for $300 without lawful, excuse, and, because of such refusal, plaintiff’s draft was protested for nonpayment, and plaintiff was required to pay the sum of $1.81 protest fees. That plaintiff was then Engaged in buying and selling cattle, and defendant bank knew that a refusal to pay his check would injure his credit in Randall county and would result in forcing him to get money from other sources to reimburse the bank at Canyon for the money advanced to him on his draft. That the failure to pay said draft did injure and damage plaintiff’s credit in said county and he was required to borrow money and pay ten per cent, interest thereon in lieu of the $300 so wrongfully withheld by the defendant. That the failure to pay said draft rendered him unable to make some business deals in Randall comity, from which he would have derived profits, and he was generally financially crippled in his business dealings with others.

He alleges that he drew a second check in the same manner as the first had been drawn, which the defendant again refused to pay without just cause and forced plaintiff to sacrifice some town property he had in Canyon and sell the same for less than its actual value in ordfer to raise money which he needed. That the act of the defendant in refusing to pay his said draft was malicious and willful, and that plaintiff has been damaged in the sum of $5,000, in addition to the $300 and interest thereon withheld from him by defendant, and that, because of the wanton, willful, and malicious intent and desire of the defendant to injure and harass him, plaintiff has suffered exemplary damages in the sum of $5,000. He prays for damages in the total sum of $10,800.

The appellant bank filed its plea of privilege to be sued in Nacogdoches county.

January 8th, plaintiff filed his first amended answer, controverting the plea, in which he copied his first amended original petition practically in full, and in addition alleged: “Plaintiff says that this court has jurisdiction of this defendant because of section 23 '[>f article 1995 of the Revised Statutes of Texas 1925, which provides that suits against a corporation, association or joint stock company, may be brought in any county in which the cause of action or any part thereof arose and that part of plaintiff’s cause of action herein arose in Randall County, the county in which this suit is instituted and is now pending.”

The defendant bank urged a general demurrer to the plaintiff’s controverting answer upon the ground that subdivision 23 of article 1995 was unconstitutional, as applied to this case.

By a supplemental brief the appellant admits that the demurrer is not well taken, since the Supreme Court of the United States, in the ease of Bain Peanut Co. et al. v. Pinson et al., 282 U. S. 499, 51 S. Ct. 228, 75 L. Ed. 482, has held that said subdivision is constitutional.

The court heard and overruled the plea of privilege on January 9, 1931.

As will be seen from the foregoing statement, a part of the plaintiff’s cause of action is damages growing out of the tort of the bank in refusing to pay his check, which resulted in injury to his credit and financial standing in Randall county and forced him to borrow money to continue in business as a dealer in cattle.

As said in San Jacinto Life Insurance Co. v. Boyd (Tex. Civ. App.) 214 S. W. 482, 483: “We believe under our. statute on venue it is too narrow to confine it to the genesis of the right, but it embraces every fact necessary to be shown in order to recover. ‘Arose,’ we do not think, refers alone to the very beginning of the right, but to every fact which has arisen and inheres in the cause of action. It is the right to bring a suit, or that right which is based upon the ground or grounds on which an action may be maintained.”

In discussing subdivision 23 of R. S. art. 1995, it is said in 11 Tex. Jur. 54, § 402:

“Eor other purposes the courts have had occasion to define what constitutes a cause of action. These cases may doubtless be usefully referred to in connection with the application of the venue statute, but it must not be overlooked that the words ‘or a part thereof’ form one of the essentials of the statutory criterion. Plainly, it is not necessary that all the facts constituting the cause of action shall have arisen in the county of suit.
“ ‘The added phrase, “or a part thereof,” has the effect, for the purpose of the venue, to divide the cause of action and to permit the trial to be where any portion of the cause has arisen; otherwise the phrase would be without meaning and effect.’
“Nor is any fact excluded from consideration as forming part of the cause of action because, in the case at bar, it is not in issue between the parties. * * *
• “In the case of a tort, it is composed of every fact essential to a finding that the defendant is liable in damages for the wrong.”

In Phillio v. Blythe, 12 Tex. 124, Judge Hemphill discusses the element of a cause of action, and says: “It may be defined to consist as well of the right of the plaintiff in the action, as of the injury to such right.”

As shown by the evidence, the damages incident to the notation made upon the cheek when payment was refused occurred and resulted in Randall county. The authorities agree that a depositor has a right to recover the amount of his deposit and as a general rule may also sue in tort for the resulting injuries suffered by reason of the bank’s refusal to pay his check without sufficient excuse.

In 7 C. J. note 35, page 697, it is said: “A trader who gives a check to his creditor upon a bank in which he has funds is almost necessarily injured in his credit by the dishonor of the cheek, for it is.a slur upon it of a similar character to that which is caused by the utterance of slander throwing doubt upon his solvency. In both cases he is allowed to recover substantial damages without proving any special damages.”

Appellant cites the cases of Citizens’ State Bank of Toyah v. Greenberg (Tex. Civ. App.) 239 S. W. 233 and Citizens’ State Bank of Toyah v. Goodman (Tex. Civ. App.) 239 S. W. 231, as authority sustaining its plea of privilege. As we understand these cases, they are not in point. The actions were not instituted by the makers of the draft which the bank dishonored. The drafts were drawn by third parties, and, as stated in the opinion, no evidence was introduced showing that a trespass had been committed in Dallas county or that the cause of action alleged in appellee’s petition arose in Dallas county.

Section 23 of the statute is discussed in Savage v. Burks (Tex. Civ. App.) 270 S. W. 244, 245, in the following language: “A cause of action, as that term is used in the venue statute, consists both of the right of plaintiff and the injury to such right. It embraces the entire state of facts that give rise. to an enforceable claim, and necessarily comprises every fact which a plaintiff must prove in order to obtain judgment.”

In the instant case, the testimony going to show injury to the financial standing and credit of Forbess came from witnesses residing in Randall county where he resided and from which county he operated as a dealer in cattle.

We think the court correctly overruled the plea of privilege, and the judgment is affirmed.

HALL, C. J.| not sitting.