author: HALL, C. J.

text:
    STANDARD ACC. INS. CO. v. WILLIAMS.
    (No. 2980.)
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1928.
    Rehearing Denied April 11, 1928.
    1. Appeal and error <S=»742(2) — On appeal, grouping propositions relating to same error is commendable.
    On appeal, practice of grouping propositions where they relate to same error is commendable.
    2. Trial <©=>350 (3) — Under evidence tending to show total and permanent incapacity, submitting to jury special issue as to whether plaintiff sustained total permanent disability held proper.
    In workman’s action for compensation, where there was evidence of both total and permanent incapacity, submitting to jury special issue as to whether plaintiff had sustained total permanent disability was proper.
    3. Appeal and error <©=>719(8) — In absence of assignment of error for duplicity, special issue may not be held duplicitous on appeal.
    In workman’s action for compensation, spe•cial issue submitted as to whether plaintiff had sustained total permanent disability, not attacked by assignment of error as being duplicitous in joining in one issue totality and permanency of incapacity, cannot be held erroneous on such ground on appeal.
    4. Appeal and error <©=»742(I) — Appellate court is confined to propositions based on, and germane to, assignment of error appearing in record and brought forward in brief (Rules of Court of Civil Appeals, rule 30).
    Under Rules of Court of Civil Appeals, rule 30, requiring appellant to state consecutively, separately, subdivided and numbered, propositions on which appeal is predicated, and that such propositions shall be germane to assignments of error, in considering proposition urged in brief, appellate court is confined to propositions based on, and germane to, some assignment of error appearing in record and brought forward in brief.
    5. Appeal and error <©=>742 (6)— Proposition, based on failure to define “total incapacity” in special issue and to exclude clause in definition submitted not germane to any assignment of error, cannot be considered on appeal (Rules of Court of Civil Appeals, rule 30).
    In action by injured workman for compensation, proposition on which appeal was based that defendant had right to have concise and correct definition of “total incapacity” used in special issue given to jury, and that failure to exclude certain clause from definition given was error not germane to any assignment of error, cannot be considered, in view of Rules of Court of Civil Appeals, rule 30.
    6. Trial <©=>232(2) — Instruction that, if jury answered one special issue affirmatively, they need not answer following issue, held not error.
    . In action by workman to recover compensation for injury, instruction that, if jury answered special issue as to whether ‘ plaintiff suffered total permanent disability affirmatively, they need not answer following special issue, was not prejudicial to defendant as taking away right to have jury answer special issues independently of legal effect of their answers.
    7. Constitutional law <©=>314 — Submitting to jury special issue whether workman had suffered total permanent incapacity held not to violate due process clauses of Constitution (Bill of Rights, §§ 13, 19).
    In workman’s action for compensation, submitting to jury special issue as to whether he had suffered total and permanent incapacity did not violate Bill of Rights, §§ 13, 19, relating to due process of law, on ground that such issue was duplicitotis and that issues of total incapacity and permanent incapacity should have been submitted separately.
    8. Constitutional law <©=>314 — Failure to eliminate from definition of total incapacity “or reduced to a negligible amount” held not. to violate due process clauses of Constitution-(Bill of Rights, §§ 13, 19).
    In workman’s action to recover compensation, refusal to exclude from definition of total incapacity given to jury expression “or reduced to a negligible amount,” to which defendant objected, held not to violate due process of law provisions of Bill of Rights, §§ 13, 19.
    9. Evidence <©=>471 (13)— Permitting workman suing for compensation to testify he was unable to do anything held proper.
    In workman’s action to recover compensation, where injuries to left arm, hand, shoulder, and back, resulting in loss of use of arm, had been shown, and there was testimony of continued disability preventing performance of usual tasks of labor preventing his securing and retaining employment, permitting him to testify that he had earned practically nothing at all because unable to do anything, was proper as against objection that such statements were conclusion of witness, matters of opinion, and proper subject of expert testimony.

      10. Trial <@=328(3) — Jurors’ examination of injuries is permitted in personal injury oases.
    In personal injury eases, jurors’ examination of injuries is permitted.
    11. Trial <§=328(3) — Permitting juror to examine arm of plaintiff suing for compensation held not error, in view of admonition.
    In workman’s action to recover compensation, permitting jury on request to examine plaintiff’s injured arm, if error, was not injurious, in view of admonition to jurors not to dismiss or allude to such examination while considering case or express opinions as to plaintiff’s injuries as result of such examination.
    12. Evidence <§=3256 — In workman’s action for compensation, excluding petitions in two other suits for personal injuries held proper, in view of failure to show present plaintiff had filed them.
    In workman’s action for compensation, excluding petitions in suits filed against railway company for personal injuries to show that plaintiff was malingerer and to show character and extent of his injuries was proper, in view of fact that trial court found that it was not shown that present plaintiff had filed such suits, and especially in view of fact that assignment of error relating thereto contradicted proposition of error.
    13. Appeal and error <§=>662(3) — Appellant accepting bill of exception as qualified is bound thereby.
    Appellant accepting bill of exception as qualified by trial court is bound by such qualification.
    14. Appeal and error <§=>742(1) — Assignment of error cannot be supplied or enlarged by proposition of error.
    Assignment of error cannot be supplied or even enlarged by proposition of error.
    15. Appeal and error <@=>1001 (I) — 'Where jury’s findings are supported by pleadings and evidence, appellate court should affirm judgment.
    Where jury’s findings are supported by pleadings and evidence, appellate court should affirm judgment without regard to what its views on issue may be.
    16. Master and servant <§=>418(6) — Jury’s finding, based on evidence that loss of left arm constituted total incapacity, held binding on appeal.
    In workman’s action for compensation, jury’s finding that loss of left arm constituted total incapacity, based on some evidence, held binding on appeal, regardless of belief of appellate court.
    17. Appeal and error <§=>742(2) — Proposition of error, charging plaintiff’s counsel in argument made inflammatory remarks, often im nature of personal testimony, and regardless of record, held multifarious and not entitled to consideration (Rules of Court of Civil Appeals, rule 30).
    In workman’s action for compensation, proposition of error that trial court permitted plaintiff’s counsel in addressing jury without proper reproof or correction to indulge in tirade, often inflammatory, often in nature of personal testimony, and often utterly regardless of record, held multifarious, and not entitled to consideration on such account, in view of Rules of Court o'f Civil Appeals, rule 30.
    18. Appeal and error <§=>742(2) — Appellant should specifically set out error complained of and present each error separately and definitely (Rules of Court of Civil Appeals, rule 30).
    Rules of Court of Civil Appeals, rule 30, providing that appellant should state consecutively, separately, subdivided and numbered propositions on which appeal is predicated, which must be germane to one or more of assignments of error, contemplates that appellant shall specifically set out error complained of, and that each error must be separately and definitely presented.
    19. Appeal’and error <§=>743(1) — Assignments of error and propositions must specifically refer to bill of exception which must set out sufficient circumstances and facts from which appellate court may determine trial court has erred (Rules of Court of Civil Appeals, rule 30).
    Under Rules of Court of Civil Appeals, rule 30, mere reference by proposition of error to assignments of error to which proposition relates is not sufficient, but assignments and propositions must specifically refer to bill of exception, and bill itself must set out sufficient circumstances and facts from which appellate court may determine that trial court has erred.
    20. Appeal and error <§=>742(2) — Multifarious proposition of error, referring in general way to assignments of error, and over 30 bills of exception, should be overruled (Rules of Court of Civil Appeals, rule 30).
    In view of Rules of Court of Civil Appeals, rule 30, ■ requiring appellant to state consecutively, separately, subdivided and numbered propositions on which appeal is predicated, and that such propositions shall be germane to one or more assignments of error, multifarious proposition of error that trial court permitted plaintiff’s counsel in addressing jury without reproof to indulge in tirade, often inflammatory, often in nature of personal testimony, and often utterly regardless of record, where brief did not definitely point out assignment of error to which bills of exception related, nor did assignments of error refer to any specific bill of exception, will be overruled, in view of fact that passing on it would require examination of more than 30 bills of exceptions and assignments probably relating to such bills.
    Appeal from District Court, Dallas County ; Claude McCallum, Judge.
    Proceeding under the Workmen’s Compensation Act by Albert L. Williams, claimant, opposed by Love & Bracewell, employers, and the Standard Accident Company, insurer. Compensation was ordered, but an award of the Industrial Accident Board terminated compensation after a certain date, and the claimant filed a suit, basing his action on an appeal from tlie award. From a judgment-for the claimant, the insurer appeals.
    Affirmed.
    Touchstone, Wright, Gormley & Price, of Dallas, for appellant.
    Blarvin B. Simpson, Leo Brewster, and Frank H. Rawlings, all of Fort Worth, for appellee.
   HALL, C. J.

The appellee, Williams, filed this suit, alleging that his cause of action was an appeal from an award of the Industrial Accident Board in,the case of Albert L. Williams, Employee, v. Love & Bracewell, Employers, and the Standard Accident Insurance Company, Insurer. He further alleged that on or about July 6, 1925, while in the employ of Love & Bracewell, as a journeyman painter and paper hanger, earning an average weekly wage of $48 per week, and while he was in the regular course of his employment in Dallas, on or about said date, he, by accidental means, sustained injuries which he describes as' a fracture of the left arm in and near the shoulder joint, a destruction of the nervous system of the left arm, hand, and shoulder joint, a fracture of the elbow of the left arm, and bruises, lacerations, and separation of the muscles and ligaments of his back, spine, and kidneys; that, as a result of these injuries, he continuously sintered pain; and had become, and would continue to be, totally and permanently dis--abled and incapable of performing any duties of a gainful and useful occupation.

He alleges that his employers were subscribers under the Texas Workmen’s Compensation Act (Vernon’s Ann. Civ. St. 1925,- arts. S306-8309), at the time of his injuries, and that they were insured under a policy of insurance issued by the appellant. 1-Ie alleges further that within the prescribed time he notified the Industrial Accident Board of his injuries, etc.; that said board made an order that appellant pay appellee' the sum of $20 per week as compensation; that said sum was paid up to and including Blay 25, 1926, at which time the board, upon application of the appellant, made an award to the effect that the former total incapacity of ap-pellee had terminated, and decreed that, when all compensation was paid up to said date, the appellant should not be under further liability on account of said claim. He alleged that within the time prescribed by law he gave notice to the board and his employers that he would hot abide by the last decree and award, and that he would appeal from said award, in accordance with .the provisions of the Workmen’s Compensation Law.

No question is made upon the sufficiency of the petition, and no additional statement will be made further than to say that, in the alternative, he pleaded that, if it be found that he is mistaken in his allegations to the effect that he is totally and permanently disabled, then he alleges that he -is permanently, partially disabled.

The case was tried to a jury, resulting in a-finding that the appellee was permanently, totally incapacitated, and that the payment of the compensation to him' in weekly installments would result in a manifest hardship and injury to him.

The appellee has filed a motion to strike the appellant’s bills of exception numbered from 1 to 24 and from 25 to 54, urging numerous grounds, and, in a general way, insisting that said bills are insufficient. Reference. to appellant’s brief shows that only a few assignments of error are predicated upon these bills. We will therefore, in considering the assignments, discuss the sufficiency of the bills of exception when any assignment based oh any such bill is under consideration.

The appellant has grouped the first eight propositions. The practice of grouping propositions,' when they relate to the same error, is commendable, but the propositions •urged under the second, third, and fourth assignments of error, which are' also grouped, relate to widely different matters.

Assignment of error No. 2 is that the court erred in submitting special issue No. 1, in which was submitted the question as to whether or not the plaintiff had sustained total permanent disability, because there was no testimony whatever to justify the submission- of said issue. ' •

The assignment of error No. 3 is that the finding of the jury, in response to special issue No. 1, that plaintiff was totally and permanently disabled, was not supported by any testimony whatsoever. .

Assignment of error ,No. 4 is that the court erred in submitting special issue No. 2 because it was multifarious and duplicitous, and combined and confused two separate and distinct questions of fact capable of being answered differently,

The first proposition challenges the action of the court in submitting special issue No. 1, because appellee failed to produce any competent evidence showing, or tending to show, that he had been both totally and permanently incapacitated, within the statutory purview of these terms. This proposition is germane to the second and third assignments of error, but we think there is evidence which tends to show such incapacity, and the court therefore properly submitted special issue. No. 1.

The second proposition under these three assignments which appellant has grouped is that it had the statutory right to have the totality of the alleged incapacitation of appellee submitted to the jury separately and distinctly from the issue of the alleged per'manency of said incapacity, and having in due season, asserted that right, the action of the trial court in submitting said duplicitous issue was highly prejudicial to appellant. A sufficient answer to this proposition is that appellant has not, by any assignment of error, attacked special issue No. 1 as being duplicitous. By assignment of error No. 4, appellant attacks special issue No. 2 as being multifarious and duplicitous, but there is no assignment to which our attention has been called which attacks special issue No. 1 for that reason.

In considering propositions urged in the brief, this court is confined to propositions based upon and germane to some assignment of error appearing in the record and brought forward in the brief. Columbian National Fire Insurance Co. v. Dixie Co-op. Mail Order House (Tex. Com. App.) 276 S. W. 219. The proposition that the first special issue is duplicitous must be overruled, because there is no assignment of error in’ the record attacking that issue upon such ground. San Antonio Machine & Supply Co. v. Allen (Tex. Civ. App.) 279 S. W. 493.

By the' third proposition, it is insisted that the appellant had the statutory right to have a concise and correct definition of the term “total incapacity’.’ given to the jury in connection with the submission of issue No. 1, and, having timely objected to the interpolation of the clause, “or reduced to a negligible amount,” in the definition submitted, the refusal of the trial court to exorcise said offending clause was highly prejudicial. This proposition is not germane to either of the assignments grouped ■ in the brief, and, according to the authorities just cited, cannot-be considered.

The fourth proposition is that, the appellant having a statutory right to have the jury answer the special issues submitted independently of the legal effect of their answers, the trial court wrongfully prejudiced this right by advising the jury, over the protest of appellant, that, if they answered special issue No. 1 affirmatively, they need not answer the following issue. This proposition is certainly not germane to either of the assignments under which it has been briefed, nor is it germane to any other assignment to which we have been referred. It is our opinion, however, that the objection urged should not be sustained. An instruction by the court that, if the jury should answer an issue submitted in a certain way, then they need not answer any subsequent issue or issues, does not inform the jury what the result of their answer will be. It is the uniform practice of the courts to submit issues in this manner, and, in the interest of clarity, and to avoid confusion in having numerous issues, which may prove to be immaterial, answered, we think this proposition, if properly submitted, should be overruled.

We think there was competent evidence before the jury tending to prove that appellee was totally incapacitated by his alleged injury, and the court did not err in submitting the issue of total incapacity.

The act of the court in submitting such issue is attacked upon the ground that it violates sections 13 and 19 of the Bill of Rights. These sections of the Constitution have no application whatever to the error complained of here. The fifth proposition is therefore overruled.

The sixth proposition is, in effect, that the appellant had the statutory" right ’ to have the issue of total incapacity and permanent incapacity submitted to the jury separately, and that the action of the trial court in submitting special issue No. 1, over the timely objection of appellant that it was duplicitous and deprived it of its statutory right in the premises, also denied appellant his rights under sections 13 and 19 of the Bill of Rights. The trouble with this proposition is that it is not based upon any assignment of error attacking special issue No. 1 as being duplicitous.

The failure of the court to eliminate from the definition of total incapacity the words, '“or reduced to a negligible amount,” does not violate the due process of law provisions of the Constitution, nor does the action of the court in advising the jury that, if they answered special issue No. 1 affirmatively, they need not answer No. 2, violate said sections.

Appellant has grouped its ninth, tenth, and eleventh propositions, based upon the eighth assignment of error. The assignment is that the court erred in permitting the ap-pellee to testify that in his opinion he would be unable to work in the future, said testimony being objected to by the defendant at the time, on the grounds that it was a conclusion of the witness, and that he was not qualified to give this character off testimony. The propositions are germane to this assignment, and, in fact, they state more clearly than the assignment the facts reflected by the bill of exception.

The testimony of the plaintiff was that he had earned practically nothing at all, because he had not been able to do anything. The objection was that such statements were con- . elusions of the witness, matters df opinion, and subject for expert testimony. In another bill of exception, the question was asked the witness, “Are you physically able to do any sort of labor?” The same objection was urged to this question, and overruled. We think this contention is without merit. The witness’ answers to the questions were simply statements of fact. The injuries to his left arm, hand, shoulder, and back had been shown by competent testimony. It was further ' shown that it resulted in the loss of the use of his left arm, and that, by reason of the injuries, he constantly suffered pain to such an extent that he had been under the constant care and attention of a physician for about two years, and that the physician still had to administer medicine to enable him to sleep. There is further testimony to the effect that he had been prevented from performing the usual tasks of a laborer to such an extent that he could not secure and retain employment, and there is further testimony to the effect that his condition had not improved in about two years, and might never improve. If his opinion was based upon these facts, it was clearly admissible, but, aside from this, we think the court did not err in admitting it, because, as stated, it was not a conclusion, nor an opinion, nor a matter for expert testimony. He knew his condition better than anyone else, and should have been permitted to state such condition as a fact. Employers’ Liability Assurance Corporation v. Williams (Tex. Civ. App.) 293 S. W. 210; Texas & P. Ry. Co. v. Rasmussen (Tex. Civ. App.) 181 S. W. 212; Patterson v. Springfield Traction Co., 178 Mo. App. 250, 163 S. W. 955; Weatherford M. W. &,N. W. Ry. v. White, 55 Tex. Civ. App. 32, 118 S. W. 799; Galveston, H. & S. A. Ry. v. Holyfield (Tex. Civ. App.) 91 S. W. 353; St. Louis S. W. Ry. v. McDowell (Tex.Civ. App.) 73 S. W. 974.

By the twelfth and thirteenth propositions, the appellant- complains of the court’s action in permitting two members of the jury to make “a personal physical examination” of plaintiff’s left arm. We are not apprised by the record what the extent of this examination was nor what effect, if any, the examination had upon the verdict of the jury. Examination of injuries is a matter which is permitted in personal injury eases in this state. Davis, Agent, v. Christmas (Tex. Civ. App.) 248 S. W. 126; Texas Traction Co. v. Scoggins (Tex. Civ. App.) 175 S. W. 1128, and authorities cited.

There is a qualification to the bill of exception taken in connection with this incident in which the trial court says that one of the jurors requested that he be permitted to examine plaintiff’s arm, and counsel for plaintiff stated that plaintiff had no objection; that the court permitted said jurors to examine plaintiff’s arm, but specifically instructed all the jurors not to discuss or allude to said examination in any manner while considering the case, or express their opinions as to what they thought about plaintiff’s injuries, as a result of the examination. Even if it be- admitted that the court erred in permitting the jurors to make the examination, no injury is shown.

The fourteenth proposition, grouped with the twelfth and thirteenth, complains of inflammatory and intemperate argument alleged to have been made by Mr. Marvin Simpson, attorney for the plaintiff, in the concluding argument to the jury. There is no assignment of error specifically pointed out in the brief upon which to base this proposition, and it will therefore not be considered. There are thirteen assignments of error complaining of that many different arguments made by Mr. Simpson, but neither of them point out the bill of exception upon which it is predicated.

The next contention of appellant is that, because the appellee admitted that he had gone under the name of Albert S. Williams at a certain time, petitions in two suits filed against a railway company, claiming damages for personal injuries, were admissible upon the issue of permanent, total incapacity, and that the action of the court in excluding the petitions in said suits constitutes reversible error. The assignment of error upon-which these propositions are based is as follows:

“The trial court erred in refusing to sustain the objection of the defendant to the testimony preserved in defendant’s bill of exception No. 22, and for the reasons therein stated.”

It will be seen that this assignment contradicts the proposition. If the court did not sustain the objection to the admission of the testimony, then a proposition complaining of his refusal to permit its introduction is not supported by the assignment. The proposition must be overruled for the further reason that the court’s qualification to the bill of exception states that it was not shown that Williams had filed any such suits as are set out in the bill of exception, and that the court was of the opinion that since the district clerk did not, and could not, identify the plaintiff as being the plaintiff in said two suits, and since the suits related to entirely different matters to those involved in the suit upon trial, and since no positive proof was offered that Williams was the plaintiff in either of said suits, the testimony was irrelevant to any issue in this case. Appellant insists in its brief that the petitions in these cases were admissible upon the issue that appellee was a malingerer and upon the character and extent of his injuries. The courts have decided otherwise. Fort Worth Belt Ry. Go. v. Cabell (Tex. Civ. App.) 161 S. W. 1083. In any event, the appellant having accepted the bill of exception as qualified by the court, it is bound by the qualification.

Under the sixteenth proposition, appellant again raises the issue that the court erred in submitting special issue No. 1, because there was no competent evidence to support it. This question will not be discussed again.'

By the seventeenth proposition, it is insisted that the appellee failed to establish the allegation that the “nervous system of his left arm, hand, and shoulder joint had been destroyed,” by a preponderance of competent and credible evidence, and therefore the court erred in submitting special issue No. 1. As we have hereinbefore stated, there is ro assignment of error upon wMch these propositions can be properly predicated.

An assignment of error cannot be supplied nor even enlarged by a proposition. It is held in Employers’ Liability Assurance Corporation, Ltd., v. Williams (Tex. Civ. App.) 293 S. W. 210, that tbe term “total incapacity to work,” as used in tbe Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but that a person disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment, is ordinarily regarded as totally incapacitated. There is evidence tending to support the jury’s finding, when the issue of total incapacity is viewed in the light of this holding, and the rule is that, when the jury’s findings are supported by pleadings and evidence, this court should affirm the judgment without regard to what our views upon the issue may be. In Hagins v. Wilson (Tex. Civ. App.) 262 S. W. 770, a majority of this court believing that, when one-half of a water course is obstructed by a dam, it would result in increasing the flow of flood water over the unobstructed half, refused to affirm a judgment based upon a jury’s finding that such was not the fact. The Supreme Court, in the same case (295 S. W. 922) said that such finding was conclusive,' and that the judgment should have been affirmed. Although this court may believe that the loss of one arm does not constitute total incapacity, the jury, upon some evidence, has found that it.did, and we therefore are not authorized to hold otherwise.

The eighteenth proposition is:

“The trial court, as revealed by appellant’s various bills of exception in point, having permitted counsel for appellee, in his address before the jury, without proper reproof or correction, to indulge in a tirade, often inflammatory, often in the nature of personal testimony, and often, if not always, utterly reckless of the record, appellant was denied a fair and impartial trial.”

This proposition is multifarious, and is clearly not entitled to consideration on that account. Chicago, Rock Island & Gulf Ry. v. Ruston (Tex. Civ. App.) 248 S. W. 143; Marshburn v. Stewart (Tex. Civ. App.) 295 S. W. 679; Mt. Franklin Lime Co. v. May (Tex. Civ. App.) 150 S. W. 756; Grego v. Schneider (Tex. Civ. App.) 154 S. W. 361; Talbot & Son v. Martindale (Tex. Civ. App.) 211 S. W. 302; Gulf, C. & S. F. Ry. v. Brown, 16 Tex. Civ. App. 93, 40 S. W. 608.

In the statement and argument under this proposition appellant says:

“This proposition is based on various assignments urged in appellant’s motion for a new trial, and also additional assignments duly filed. It is also based on appellant’s bills of exception Nos. 21 to 51, inclusive. The number of these exceptions inhibit their transcription in fuú. Therefore we would specify only a few of them.”

In the statement and argument part of the brief, bills of exception Nos. 26, 27, 28, 30, 32, 35, 43, and 45 are briefly referred to, but the statement nowhere points out any assignment of error to which either of the bills of exception relates, nor, as stated above, do any of tbe assignments of error, complaining of improper arguments made by Mr. Simpson, refer to .any specific bill of exception.

It is possible that we might, if we had the time and were disposed to enter into a critical examination of the motion for a new trial, the various hills of exception, and the assignments of error in the brief, finally determine the merits of appellant’s contention With reference to each of these hills, but the rules do not require us to do so, and the work of this court will not permit us to undertake such a duty with reference to one case.

Rule 30 provides that the appellant shall state consecutively, separately, ’ subdivided and numbered, the propositions upon which the appeal is predicated, and that these propositions shall be germane to one or more of the assignments of error. This rule contemplates that the appellant shall specifically set out the error complained of, and that each error must be separately and definitely presented. The appellee’s brief asserts that ne'arly all of the alleged improper arguments made by Mr. Simpson were retaliatory, and reference to some of the bills of exception shows that the arguments complained of were proper, and that, in the bills of exception to other arguments, the court has, by Ms qualification of said bills, deprived them of any merit.

Mere reference to assignments to which a proposition relates is not sufficient. The assignment and the proposition must specifically refer to a bill of exception, and the hill itself must set out sufficient circumstances and facts from which this court may determine that the trial court has erred. Wright v. Maddox (Tex. Civ. App.) 286 S. W. 607; Hunsaker v. Abbott (Tex. Civ. App.) 286 S. W. 610.

We are not required to examine more than 30 bills of exception and the assignments which probably relate to such bills, but do not refer to them specifically, in order to determine whether a multifarious proposition, referring in a general way to such assignments and bills of exception, presents reversible error. It was the duty of the appellant to do this, and, having failed to do so, this proposition is overruled.

No reversible error has been pointed out, and the judgment is therefore affirmed.
      <^»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, O. J.

license: Public Domain

text:
    MORRISON et al. v. SEWELL.
    (No. 2870.)

    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1927.
    Rehearing Denied Nov. 30, 1927.
    1. Trial <§=>350(4) — In action oil employment contract under which plaintiff was to share in profits after certain deductions were made, requested special issues as to amount of deductions should have been given.
    In suit on contract of employment under ■which plaintiff was to take share of profits after making certain deductions, requested issues as to reasonable value of services of third person, value of equipment lost, and amount of worthless checks and accounts should have been given.
    2. Appeal and error <©=>1078(4) — Errors as- ' signed in motion for new trial, but not urged in reviewing court, are waived.
    Where error was assigned in motion for new trial on court’s refusal to submit certain issues, but points were not urged in appellate court by any propositions based thereon, such points were waived.
    3. Trial <©=350(4) — In action on employment contract under which plaintiff shared in profits, issue as to amount of net profits held one of mixed law and fact.
    In action on employment contract under which plaintiff was to share in profits after certain deductions were made, issue as to what net profits of entire business were between certain dates held, to be one of mixed law and fact.
    4. Appeal and error <©=672 — Error in that issue given was of mixed law and fact is not fundamental.
    Error in that issue given in action on employment contract was one of mixed law and fact is not fundamental, since reviewing court would be required to go to statement of facts in order to decide it.
    5. Master and servant <§=70(3) — In action on employment contract under which plaintiff was entitled to share of net profits, defendant held not entitled to deduction for depreciation of new machinery.
    In action on employment contract under which plaintiff was entitled to receive share of net profits and under which defendant received monthly rental for use of buildings, machinery, and equipment, defendant held, not entitled to deduction for depreciation of new machinery, since deterioration in value of manufacturer’s plant and equipment by reason of use cannot generally be allowed as expense in absence of express agreement where machinery was not damaged to extent requiring repairs.
    6. Fraudulent conveyances <§=269(1) — Plaintiff suing on employment contract alleging facts showing'empioyer’s sale of business was voidable need not further specifically plead or prove failure to comply with Bulk Sales Law.
    Where "plaintiff suing on employment contract alleged facts showing that employer’s sale of business was voidable in that sale was made without payment of plaintiff’s debt and without notice to plaintiff, and that sale was not in regular prosecution of business, it was not necessary for,-plaintiff to make further specific allegations or proof showing failure to comply with other requirements of Bulk Sales Law (Vernon’s Ann. Oiv. St. 1925,'arts. 4001-4003) so as to render buyer liable.
    7. Pleading <©=375 — Plaintiff need not prove more than is necessary to recover, though alleged.
    Plaintiff need not prove more than is necessary to recover, though more be alleged.
    8. Fraudulent conveyances <§=I82(I) — Buyer of business without notice to seller’s employee is personally liable for amount due under employment contract under Bulk Sales Law.
    Under Bulk Sales Law (Vernon’s Ann. Oiv. St. 1925, arts. 4001-4003), buyer of business 'which was sold without notice to employee is personally liable for seller’s debt to employee under contract of employment.
    9. Corporations <©=519(1) — Where stockholder, owner of business, transferred assets to corporation, corporation is presumed to have ' assumed debts and is prima facie liable therefor.
    Where owner of business transferred assets to corporation in which he owned capital stock, corporation is presumed to have assumed debts of business and is prima facie liable therefor.
    10. Appeal and error <©=854(2) — Correct judgment will not be reversed because based on mistaken theory of law.
    Where correct judgment has been rendered, it will not be reversed because trial court based it on mistaken theory of law.
    *11. Appeal and error <§=846(6) — In action on employment contract under which plaintiff was entitled to share in net profits, reviewing court will not determine whether jury made mistake in making deductions, in absence of separate findings on disputed items.
    In action on employment contract under which plaintiff was entitled to share of proceeds after certain deductions were made, in - which no separate findings on items to be deducted were insisted on, reviewing court'will not determine whether jury made mistake in making deductions, notwithstanding testimony of foreman, since court does not know what items were considered and is not required to go into tedious investigation of record to ascertain such fact, especially when conclusion in such case would be merely hypothesis.
    12. New trial <©=I43(4) — Jflror cannot impeach verdict by testifying to mistake in calculations.
    Juror is not permitted to impeach verdict by testifying that mistake was made in computing deductions from gross profits to determine net profits of defendant’s business, which it was required to do under special issue submitted. :
    Appeal from District Court, Hale County; Charles Clements, Judge.

      Action by C. W. Sewell against J. N. Morrison and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Graham & Graham, of Plainview, for appellants.
    L. 0. Penry, of Stamford, for appellee.

      Writ of error refused.

   HALL, O. J.

On April SO, 1925, the appellant J. Ñ. Morrison owned a creamery and bottling worts in the city of Plainview, and on that date contracted with the appellee, Sewell, to assist him in the business. The substance of the written contract is: That on May 1 an inventory should be taken of everything in the way of raw materials and all merchandise in stock either for sale or manufacturing purposes, also all bottles, tubs,, cans, cases, and any other thing that may be used in the sale of manufactured products. That a complete statement of all assets and liabilities showing the actual condition of the business on May 1st should also be made. It is'further stipulated: That all operating expenses were to be deducted; this to include repairs, but not machinery broken or damaged; repairs on automobiles, and trucks, including casings, oil, and gasoline used in ,the operation of the business; also, all taxes and insurance on the plant, and interest on $6,000 now owing on machinery by Morrison; also, all necessary traveling expenses to be paid out of the business.” That any accounts contracted during the life of the written contract, which were lost, should be deducted from the net profits of the business. It was further provided that Morrison was to receive a monthly salary of $150 and the further sum of $250 per month for the use of buildings, machinery, and equipment of all kinds used in the business, that Sewell was to receive $150 per month as salary, and that on December 31st of each year, during the life of the contract, a complete inventory, the same as the first, should be taken, and that the net profits as shown by the difference between the inventories, “after deducting all-of above items, shall be divided as follows: Eirst party to receive two-thirds, and second party to receive one-third.” It is expressly provided that the contract is simply an employment contract, and that the part received by Sewell from the profits of the business was understood to be additional compensation, and that no partnership agreement had been formed. It further provided that the contract should be in force until December 31, 1925, provided only that after Morrison makes a bona fide -sale of the plant, in which event the contract was to be terminated, and the net profits to be figured as.if it was the end of the year.

It appears from the record that about the 1st of December, 192(5, Morrison organized a corporation known as the Plains Coca-Oola Bottling Company, and that M. A. Marcus purchased the stock in 1927. On May 12, 1927, Sewell filed this suit against Morrison, Marcus, and the corporation, alleging that the net profits of the business during the time amounted to $4,916.16, and that he was entitled to one-third thereof, or $1,638.72. Marcus and the corporation answered by general denials, and Morrison answered by general denial and specially pleaded, among other matters which he claimed should be deducted from the gross earnings, loss caused by depreciation of new machinery and equipment purchased after the execution of the contract, and further specially pleaded worthless accounts, “cold checks,” and the loss of bottles, which should be deducted from the gross earnings in arriving at the net profits. Such other portions of the pleadings as may be necessary in considering the several propositions will be hereinafter set out.

No auditor was appointed to audit the books and accounts of the parties.

The court submitted only one special issue, as follows:

“'What do you find, from all of the facts and circumstances before you, were the net profits, if any, from the entire business of the Plain-view Creamery, from May 1, 1925, to December 31, 1925?”

To which the jury answered:

“We, the jury, find the net profits of the business $4,820.31.”

Based upon this verdict, the court rendered judgment for Sewell in the sum of $1,606.77, with interest from the 1st day of January, 1926, at the legal rate. The judgment was rendered the 22d day of February, 1927. The appellant requested several special issues, which the court refused to give; one relating to the reasonable value of the services of Mrs. J. N. Morrison; another, asking what was the value of .bottles and other equipment lost; and a third, inquiring what was the amount of dollars and cents of worthless checks and accounts, at the close of the business. These issues should have been given. H. E. & W. T. Ry. Co. v. Snelling, 59 Tex. 116, 122.

Error was assigned in the motion for new trial, upon the court’s refusal to submit these issues, but the points are not urged in this court by any propositions based thereon and are waived.

Under all of the pleadings and evidence, we think the issue given was one of mixed law and fact (Watson v. Patrick [Tex. Civ. App.] 174 S. W. 632), but no proposition is urged upon that point, and the error is not fundamental since we are required to go to the statement of facts in order to decide it.

Complaint is made by the first’proposition that the court erred in sustaining the plaintiff’s exception to that part of Morrison’s answer wherein .he claimed a deduction for depreciation to the extent of $735.67, of new machinery, which he had purchased. We think the court properly sustained the exception.

Deterioration in the value of the manufacturer’s plant and equipment by reason of use cannot, as a general rule, be classed and allowed as an expense to be deducted in the absence of an express agreement to that effect. Mack v. Shortle, 76 App. Div. 586, 79 N. Y. S. 109. The machinery, the deterioration of which is referred to, was not damaged to such an extent as to require repairs during the life of the contract, and items not involving expenditures during the term of the contract should not be deducted. Swaller v. Williamson Milling Co., 116 Kan. 329, 226 P. 1001. Moreover, the contract expressly provided that Morrison should be allowed the $250 per month for the use of buildings, machinery, and equipment of all kinds used in the business, from which stipulation it may be reasonably inferred that such sum was, within the contemplation of the parties, to be deducted generally, in lieu of deterioration to any particular part of the machinery. What is here said disposes of the first four propositions.

Under several propositions it is insisted that the court erred in rendering judgment against the Plains Coca-cola Bottling Company, and holding it liable under what is known as the Bulk Sales Law (Yernon’s Ann. Civ. St. 1925, arts. 4001-4003), because Sewell’s petition did not allege that the bottling company and Morrison had failed to comply with all of the requirements of the Bulk Sales Law. He did allege that Morrison sold and transferred the merchandise, fixtures, and equipment to the bottling company, without first paying his debt to the plaintiff and without giving notice of the sale 'to plaintiff, or without giving notice that the business was about to become incorporated, and that that corporation did not, within 10 days before taking possession of the business, notify the plaintiff in person or otherwise, as required by law, of such transfer and sale of business, and that the sale and transfer were out of the ordinary and usual course of trade, and not in the regular prosecution of said business. The proof shows that some of these things were not done, and under the law the sale was voidable. So it was not necessary for the plaintiff to make further specific allegations or proof showing a failure to comply with any other requirement of said law. Smith-Calhoun Rubber Co. v. McGee Rubber Co. (Tex. Civ. App.) 235 S. W. 321. Plaintiff need not prove more than is necessary to recover, though more be alleged. Ellerd v. Murray (Tex. Civ. App.) 247 S. W. 631. It appears that the corporation was organized about the last of November, or 1st of December, 1925, and that Morrison was the owner of all of the stock and the business was conducted as before, until December 31, when the second inventory was attempted to be taken. No judgment was rendered against Marcus, who bought the stock pendente lite.

It does not appear from the record that the court rendered a judgment against the bottling company, under the provisions of the Bulk Sales Law, but if it be admitted that it was so rendered, still, under the holding in Gardner v. Goodner Wholesale Gro. Co., 113 Tex. 423, 256 S. W. 911, it was personally liable for the debts .incurred by Morrison.

But, aside from the Bulk Sales Law, it was shown that Morrison owned the original business known as the “Plainview Creamery,” and the uncontradicted testimony shows that the assets of the creamery “went in as assets to account for and pay for the capital stated in the incorporation, and that consisted of the capital stock of the Plains Coca-Cola Bottling Company, and in that way the business was transferred from Morrison to the corporation.” Morrison so testified. Morrison was the owner of the capital stock in the corporation, and under such circumstances the corporation is presumed to have assumed the creamery’s debts and is pri-ma facie liable therefor. 1 Fletcher, Cyc. Corp. § 399; Modern Dairy v. Blanke (Tex. Civ. App.) 116 S. W. on p. 154; Texas Loan Agency v. Hunter, 13 Tex. Civ. App. 402, 35 S. W. 399, 402; Brooks v. Bonner (Tex. Civ. App.) 149 S W. 564, 567; Curtis, Jones & Co. v. Smelter Nat. Bank, 43 Colo. 391, 96 P. 172; Du Vivier v. Gallice (C. C. A.) 149 F. 118; Cook on Private Corporations, pp. 346, 347.

Where a correct judgment has been rendered, it will not be reversed because the trial court based it upon a mistaken theory of the law.

The appellant filed a motion for rehearing alleging that there was a unanimous mistake on the part of the jury, in that certain deductions which the jury had unanimously agreed that the defendant was entitled to have were not deducted from the figures representing the amount of the claim asserted by plaintiff, and it was a clerical mistake on the part of the jury entitling the appellant to a new trial. Upon a hearing of this motion, A. G. Cox, the foreman of the jury, alone testified. His testimony is: That the settlement showed that the net profits were something over $5,000. That the jurors had various ideas of what ought to be deducted therefrom, which was the only point of disagreement. That they deducted and discussed several items, «which they thought should come off of that sum.

“And as a result of our deliberations, there was a unanimous agreement on the part of the jury that the balance remaining and showing the true net profits of the business, was the amount stated in our verdict. Some of them would contend for one item, and some of them for another. I had my individual ideas and line of figures from which I.calculated was right, and others had like ideas about it, and after discussing the matter there was such a con-census between us that we reached the amount stated in our verdict, and after having reached that amount, we returned that as the verdict of the' jury, and the amount returned was the result of the joint opinions of the jury boiled down to the point where we could all agree on the amounts.”

The appellant cites the case of Caylat v. H. E. & W. T. Ry. Co., 113 Tex. 131, 252 S. W. 478, as authority sustaining his proposition. That case is not authority because there the error was purely clerical in transcribing a verdict different in amount from that already arrived at. This is not a case where a new trial should -have been granted by reason of the misconduct of the jury. No misconduct is urged by this proposition. Since no separate findings upon the various items in dispute have been insisted upon, we do not know what items were taken into consideration by the jury in arriving at the amount of gross profits, nor what specific items were deducted in fixing the amount of the verdict. We are not required to go into a tedious investigation of the record and make definite calculations to ascertain this fact. If this were done, our conclusion would be merely a hypothesis, and our action cannot be based upon a guess. Moreover, the rule is that a juror is not permitted to impeach the verdict in this way. Twichell v. Klinke (Tex. Civ. App.) 272 S. W. 283; Wills Point Bank v. Bates, 72 Tex. 137, 10 S. W. 348; G. H. & S. A. Ry. Co. v. Contois (Tex. Com. App.) 288 S. W. 154; Harvey v. G. C. & S. F. Ry. Co. (Tex. Civ. App.) 261 S. W. 197.

■ There being no reversible error shown in the record, the judgment is affirmed.
      <©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FORT WORTH & D. S. P. RY. CO. v. JUDD et al.
    (No. 2967.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 29, 1928.
    Rehearing Denied March 21, 1928.
    1.Eminent domain <©=>239 — In determining damages due owner in condemnation proceeding after payment to tenant, submission on issues as to market value of owner’s land taken and decrease in value of his other land held not erroneous as requiring finding to include tenant’s damages.
    In determining amount of compensation due owner in condemnation suit by railroad after tenant had- been paid for damages to leasehold interest, submission on issues of market value of land taken which belonged to owner and as to decrease in market value of other land owned by him Hield proper, in view of testimony, as against contention that finding of jury included tenant’s damages.
    2. Eminent domain <©=>238(6) — Where owner of land appealed from commissioners’ award in condemnation proceeding, dismissal of tenant who was satisfied with his award held not error (Rev. St. (925, art. 3266, subd. 6).
    Where owner of premises which were being condemned by railroad filed objections to award of commissioners and appealed to county court, trial court fceZd not to have erred in dismissing from suit tenant who was satisfied with his award, since, under Rev. St. 1925, art. 3266, subd. 6, appeal by owner did not perfect appeal as to all parties, and effect of appeal was not to annul award of commissioners and require trial de novo as to all parties.
    3. Eminent domain <©=>155 — Owners of freehold estate and of leasehold interest have separate and distinct rights to damages in condemnation proceeding.
    In condemnation proceeding, owner of freehold estate and owner of leasehold interest to part of land have separate and distinct rights to damages to their respective interests.
    4. Eminent domain <©=>177 — Owners of freehold estate and of leasehold interest were properly joined in condemnation proceeding.
    Though claim of owner of freehold estate and that of owner of leasehold interest were separate and distinct in condemnation proceeding, such claimants were properly joined in same action. ,
    5. Eminent domain <©=>157 — Condemnor has no interest in apportionment of damages between claimants.
    Oondémnor has no interest in apportionment of damages between various claimants.
    6. Eminent domain <©=>147 — Tenant for years may recover full damages to leasehold in condemnation proceedings, unless total damages exceed value of land; “owner.”
    Tenant for years is “owner” of property in constitutional sense, and, as such, is entitled to share in compensation and to recover full damages to leasehold interest in condemnation proceedings, unless total damages awarded the several interests exceed' value of land.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    7. Eminent domain <©=>96 — In condemnation proceeding, owner may recover as distinct item of damages cost of removing buildings.
    In condemnation proceeding, owner may recover, in addition to depreciation in value of his land, cost of removal of buildings and other improvements on land taken or too near proposed right of way, as distinct item of damages.
    8. Eminent domain <©=>262(5) — Instruction that defendant must show value of land taken, depreciation in other land, and damages from moving improvements, if erroneous, held not prejudicial to condtemnor, since issue of cost of removing improvements was not submitted.
    In condemnation proceeding, charge that defendant must establish value of land taken, and decrease in value of land not taken, together with any damages for moving houses, fences, drilling wells, moving windmills, trees, etc., if erroneous, held, not prejudicial to condemnor, since court did not submit issue of cost of removal of improvements to jury, though instruction is to effect that jury might consider such items.
    9. Evidence <§=*474(18) — Witness testifying that he knew market value of land was qualified to state such value.
    In condemnation proceeding, witness who testified that he knew market value of land was qualified to state such value.
    10. Evidence <§=>474(18) — Witness may state opinion as to value of land, if he is acquainted with land, owns similar land contiguous to tract in question, or has peculiar knowledge of value not possessed by jury.
    In proving value of land in condemnation proceeding, it is not necessary that witness be real estate broker or dealer in lands or otherwise qualify as expert, but he may state opinion as to value, if he is acquainted with land in question, owns land of same character contiguous to tract in question, or shows peculiar knowledge of its qualities and value not possessed by jury.
    11. Eminent domain <§=>239^-ln condemnation proceeding, jury, in estimating damages to land not taken, was properly permitted to consider decrease in value of streets, as against contention streets had been dedicated to public (Rev. St. 1925, art. 5517).
    In condemnation proceeding, it was not error to permit jury in estimating damages to land not taken to consider decrease in value of streets, as against contention that such streets had been dedicated to public, where commissioners’ court had ordered streets closed, land, including streets, had been fenced for 18 years, and no lots had been sold out of. any of blocks with reference to streets, so that no estoppel was shown, notwithstanding Rev. St. 1925, art. 5517.
    12. Dedication <§=>53 — Deed dedicating streets grants only easement for purposes named.
    Deed dedicating streets grants only easement for purposes named in it.
    13. Dedication <§=>l — Valid dedication of street must conclude owner and be accepted by local authorities or general public user.
    It is essential to every valid dedication of street that it should conclude owner and that, as against public, it should be accepted by proper local authorities or by general public user.
    [ifld. Note. — For other definitions, see Words and Phrases, First and Second' Series, Dedication.]
    14. Dedication <§=>15 — To constitute dedication of street, it must clearly appear that owner intended to irrevocably set apart land for public use.
    To constitute dedication of private property ■to public use for street, it must clearly appear that owner intended to absolutely and irrevocably s.et apart land for public use.
    15. Dedication 19(1) — Merely laying 'out grounds or platting or surveying them will not generally constitute dedication of streets.
    Mei’ely laying out grounds or simply platting, or surveying them without actually throwing streets open to use or actually selling lots with reference to plat, will not, as genéral rule, constitute dedication of street.
    16. Dedication <§=>34 — Express dedication of street must be formally accepted by municipality within reasonable time, where there is no user and no sale of lots.
    Where express dedication of street is claimed and there has been no user and no sale of lots with reference to it, municipality must formally accept it and within reasonable time.
    17. Dedication <§=>29 — In absence of user or acceptance of streets by municipality, easement may be surrendered by consent of purchasers of lots, notwithstanding recording of plat.
    Recording plat does not make streets public highways, user or acceptance by municipal! ity being necessary, and, until then, no right is acquired by public, but only by purchasers of lots, by whose consent easement may be surrendered and land freed from all claims by rest of public.
    18. Easements <§=> 17(4)-“-Dedication’ of streets on recorded plat is irrevocable as to purchasers of lots sold with reference thereto.
    Where lots have been sold with reference .to recorded plat, dedication of streets is irrevocable, as against purchasers of such lots, and it is not necessary to show acceptance by local authorities.
    19. Dedication <§=>29 — Prior to acceptance by municipality or user by public, dedication of property as street may. be revoked.
    Prior to acceptance by municipality or -user by public, dedication of property as street may, as general rule, be revoked by owner devoting property to private use, and, in order to show complete dedication and acceptance, acceptance must be proved .to have been made while offer of dedication was open.
    20. Municipal corporations <§=>663(1)— Owner of lot abutting on street acquires fee to center of street subject to easement in favor of public.
    General rule is that owner of lot or tract of land abutting on street acquires fee to center of street, subject only to easement existing in favor of public. ’
    21. Dedication <§=>63(1 ^Commissioners’court held authorized • to abandon municipality’s claim to streets under dedication deed and plat (Rev. St. 1925, art. 6703).
    Commissioners’ court held empowered, under Rev. St. 1925, art. 6703, to close streets and ■ abandon-all claims which municipality may have acquired to them under dedication deed and plat.

      22. Eminent domain <©=»! 19(1) — Owner of fee to entire area of streets held entitled to damages incident to condemnation proceedings, though streets had been dedicated to public use.
    In condemnation proceeding, owner of fee to entire area of streets 1held entitled to recover damages incident to condemnation as to such area, even though streets had been legally and irrevocably dedicated to public use.
    Appeal from Lubbock County Court; Chas. Nordyke, Judge.
    Condemnation suit by the Fort Worth & Denver South 'Plains Railway Company against A. Judd and another. From the award of the commissioners, Judd appealed to the county court. From an adverse judgment in the county court, plaintiff appeals.
    Affii'med.
    Robt. H. Bean and Bean & Klett, all of Lubbock, for appellant.
    Vickers & Campbell.and Walter F. Schenck, all of Lubbock, for appellees.
   HALL, C. J.

This is an appeal by the railway company, plaintiff below, from an adverse judgment rendered in the county court of Lubbock county, in a condemnation suit, wherein A. Judd, the owner of the premises, and A. M. Kruger, his tenant, were defendants. The railway company sought to condemn a strip of land 200 feet wide, running diagonally across three blocks, containing 5 acres of land, each a part of the Wheelock second addition to the town of Lubbock. Commissioners were appointed and awarded Judd damages in the sum of $2,150, and Kruger damages in the sum of $1,250. From this award, Judd appealed to the county court, duly filing his objections in writing. Whereupon the plaintiff deposited $6,800, being twice the amount of the award, with the county clerk, in accordance with R. S. '1925, art. 3268. Thereafter the county judge, on the 8th day of July, entered an order directing the clerk to pay Kruger the $1,250 awarded to him as damages. Kruger had a leasehold interest in only a portion of the land owned by Judd, under a lease for 5 years, which did not expire until about 3 .years after the trial.

When the case came on for trial in the county court, Kruger moved the court to dismiss him from the suit. The motion was granted over the objection of the railway company. The case was then tried to a jury, and, in answer to special issues, the jury found that the market value of the land owned by Judd, taken for right of way purposes, was $1,375, and that the remainder of the land not taken was decreased in market value $2,050. In accordance with the verdict, the court rendered judgment in Judd’s favor for the sum of $3,400.

The evidence shows that Judd was the owner in fee simple of the land described in plaintiff’s petition, and that he was occupying the, greater portion of the land with his family, as a homestead; that Kruger occupied a portion of the land under his lease; and that the proposed right of way crossed that portion diagonally. Kruger admitted that he had received the $1,250 awarded by the commissioners in full settlement of his claim for damages.

The court submitted the controversy upon two issues, as follows:

“No. 1. What is the market value of the land owned by A. Judd that is to be taken as right of way? Answer in dollars and cents,”
—to which the jury answered, “$1,375.”
“No. 2. What do you find is the decrease, if any, in the market value of the land owned by A. Judd not taken for right of way purposes? Answer in dollars and cents,”
—to which the jury answered, “$2,025.”

The appellant requested the court to submit the following issue:

“What do you find is the decrease, if any, in the market value of Judd’s reversionary interest in the tract of land not taken by the railroad company?”

The appellant contends that the court erred in not submitting this special issue and in submitting the issues quoted above, and as a result of such error the finding of the jury necessarily includes Kruger’s damages, which should be deducted from the total amount found by Judd and the judgment entered for the remainder. We. overrule these contentions.

By the language of the issues, the jury was confined to a consideration of only the damages claimed by Judd. The record shows that Judd and Kruger both testified concerning the lease from the former to the latter and the lease itself was introduced in evidence. Kruger testified that before the trial commenced he had accepted the damages awarded him by the commissioners. In the light of these facts, it is clear that the jury, in fixing the amount of damages, considered .only the damages claimed by Judd.

The appellant insists that the trial court erred in dismissing Kruger from the suit, for the reason that Judd had filed his objections to the award of the commissioners, thereby perfecting the appeal as to all parties, and that the effect of the appeal was to annul the award of the commissioners and require a trial in the county court de novo as to all parties.

The statute does not provide, in cases of this kind, that the trial shall be de novo. R. S. 1925, art. 3266, subd. 6, is:

“If either party be dissatisfied with the decision, such party may within ten days after the same has been filed with the county Judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes ■in the county court.”

The rule is established in other jurisdictions that, where the statute provides for a trial de novo in the appellate court, the effect of an appeal is to vacate the decision appealed from until the appeal is disposed of, and that an appeal in such cases by one claimant takes up the whole case where it must be tried as an entirety de novo. But it is further held that ordinarily an appeal by one person does not affect the decision appealed from, as to others, where the statute does not expressly provide for a trial de novo in the appellate court. 2 Lewis, Em. Dom. (3d Ed.) § 733; 2 Nichols, Em. Dom. (2d Ed.) § 431.'

Judd, being the only party to the proceeding who was dissatisfied, prosecuted his appeal. Kruger’s acceptance of the damages awarded him shows that he was satisfied, and the failure of appellant to file any objections to the award in the county court conclusively shows that it was satisfied with the award as to both claimants. By such failure, the appellant concedes that Kruger was entitled to the amount of compensation awarded him. One of the claimants had the freehold estate and the other the leasehold interest to only a part of the land, and their rights to damages to their respective interests were separate and distinct. T. & P. Ry. Co. v. Saunders (Tex. App.) 18 S. W. 793; G. C. & S. P. Ry. Co. v. Caldwell (Tex. Civ. App.) 102 S. W. 461. We do not construe the language of subdivision 6 of the statute, above quoted, as meaning that the trial shall be de novo in the county court. Appellant insists that the same rule should be applied in this case as obtains in appeals from the justice court to the county court; the effect in such cases being to annul the judgment of the justice of the peace, transfer the entire controversy to the county court, and require a trial de novo as to all parties and issues. These rules, in ordinary appeals from the justice to the county court, obtain, because the statute expressly provides that the trial in the county court shall be de novo.

Moreover, the Supreme Court held, in Slayton v. Horsey, 97 Tex. 341, 78 S. W. 919, that one defendant in a justice court ease could appeal to the county court, without making a codefendant, who was not adversely interested to him, an obligee in the appeal bond. The interests of Judd and Kruger in this case are not adverse. Neither are they identical. The claim of either is separate from and independent of the other, although under the rules of procedure they were properly joined in the same action. Neither of them filed any objection to the award of damages made to the other, nor is it conceived that any such right existed. So the sole question involved in the appeal of Judd is the amount of his compensation, in which the tenant had no interest. It may be conceded that, if the award appealed from had not apportioned the damages between the landlord and tenant, then the appeal of one would have resulted in transferring the entire controversy, as between all parties, to the county court.

The rule is settled that the condemnor has no interest in the apportionment of the damages between various claimants. Where the damages are awarded separately, as in this case, and no party is dissatisfied with the award to one claimant, no reason is apparent why the claimant who is satisfied with the amount of damages awarded him should be required to await the determination of the controversy between a dissatisfied claimant and the condemnor. Roper v. New Britain, 70 Conn. 459, 39 A. 850; Clark v. Phelps, 4 Cow. (N. Y.) 190. The railway company had the right to bring the controversy between it and Kruger to the county court by filing objections to the award made him. Its failure to do so is conclusive against its right to insist that he be retained as a party in the county court for the purpose of again litigating an issue which has been settled to the. satisfaction of both the company and Kruger. The deposit made, by the railway company was, by the terms of the statute, subject to acceptance at any time by either of the claimants, and, in receiving the amount due him, Kruger was exercising a right conferred by the statute and impliedly assented to by the company in making the deposit.-

That a tenant for years is the owner of property in the constitutional sense, and, as such, is entitled to share in the compensa-, tion and to recover his full damages to his leasehold interest in compensation proceedings, unless the total damages awarded the several interests exceed the value of the land, is settled without dissent. 10 R. O. L. 134, § 118, and 135, § 19; 16 R. C. B. 606.

There is a conflict of authority upon the question .whether the owner may recover the cost of removing buildings and other improvements found to be upon the land taken or too near the proposed right of way, as a separate item of damages. Some decisions hold that ihe cost of removal is merely a fact to be considered in determining the difference-between the value of the land before and after the taking. 20 O. J. 803 ; 2 Elliott on Railroads (2d Ed.) § 966; 4 Sutherland on Damages (4th Ed.) 1073.

In Texas the rule seems to be, as announced', in Sutherland, that the claimant may recover, in addition to the depreciation in the value of his land, the cost of removal as a. distinct item of damages. City of San Antonio v. Fike (Tex. Civ. App.) 224 S. W. 911; Id. (Tex. Civ. App.) 211 S. W. 640.

The court charged the jury that the burden of proof was on the defendant to establish the value of the land taken, and the amount of the decrease, if any, in the land not taken, together with any damages occasioned by moving houses, fences, drilling wells, moving windmills, trees, etc. The facts show that some of these improvements were upon the proposed right of way. If we are correct in holding that the expenses incident to moving these improvements constituted a separate item of damages, the error, if any, in this instruction, is in appellant’s favor, because the court did not submit the issue of the cost of removal of the improvements to the jury, although the instruction is to the effect that the jury might consider such items as damages.

The next proposition challenges the ruling of the court in permitting the witness J. M. Mullins to testify as to the market value of the Judd tract of land, over its objection that Mullins was not shown to be properly qualified to give his opinion as to such market value. The witness testified that he knew the market value, tie thereby qualified himself to-state the value. Davis v. Fain (Tex. Civ. App.) 152 S. W. 218; Central State Bank v. Henderson (Tex. Civ. App.) 286 S. W. 518.

The appellant did not cross-examine him for the purpose of testing -his qualifications, but was content with the objection that the appellee had not shown that the witness, by' experience or peculiar knowledge, was qualified to testify. In proving the value of the land, it is not necessary that a witness shall be a real estate broker or a dealer in lands or otherwise qualify as an expert. If he is acquainted with the land in question, owns land of the same kind or character contiguous to the tract in question, or shows that he has a peculiar knowledge of its qualities and value not possessed by the jury, he may be allowed to state his opinion of its value. The objections to such testimony go to its weight rather than to its admissibility.

The final contention is that the court erred in submitting-the (2) special Issue because it permitted the jury, in estimating the damages to the land not taken, to take into consideration the decrease in the value of the streets, except Tenth avenue, shown on the plat within the boundaries of the land in controversy, insisting that such streets had been dedicated to the public for use, and because there was no evidence showing that the dedication was not irrevocable.

The record shows that Wheelock’s second addition to the city of Lubbock, of which the land in question is a part, was never within the corporate limits of the city of Lubbock. On the 7th day of May, 1909, Wheelock and wiffe,' who then'owned t-he property,'filed 'a' dedication deed and plat. The deed recites:

“We do by these presents dedicate and grant tó the public for public use the streets and alleys shown by the map above mentioned as long as the public may continue to use the same as public streets and alleys.”

The map shows a street between blocks 80 and 81 and 81 and 82.

A deed was introduced from L. D. Hart and wife, subsequent vendees of Wheelock, in which Judd is the grantee, by which the grantors quitclaim to Judd all their interest in all streets in Wheelock’s second addition. This instrument if effective, conveys the street shown on the plot as Eleventh avenue, which separates blocks 80 and 81. There was also introduced in evidence an order made by the commissioners’ court of Lubbock county, at its July term, 1915, which recited that it has been made to appear to the court that the lands dedicated by Wheelock and wife for street purposes in the Wheelock’s second addition are no longer used for street purposes, and that it is the desire and request of the adjoining property owners within, said territory that the streets be formally closed by an order of the court, and, it appearing to the court that it will be to the advantage of the county and all parties in interest that the request be granted and said street closed, therefore “it is ordered by the commissioners’ court of Lubbock county, Texas, that all of the streets designated upon the map of said addition,. within the following described bounds, be and the same are hereby closed.” The effect of the order, if valid, is to abandon as streets and highways the streets involved in this suit. The order further recites:

“It is further ordered by the court that all title to said streets that was vested in the commissioners’ court of Lubbock county, by virtue of the dedication deed executed by Wheelock and wife for the benefit of the public, be and the same is hereby divested out of said county and vested in the owners of the record title thereto, and such owners are hereby fully authorized and empowered to use and to close said described streets at their pleasure.”

The record further shows that the street shown on the plat as Tenth avenue, which separates blocks 81 and 82, is a state highway running from Lubbock to Slaton. Judd testified that the other streets shown on the map had never been used as streets since he had owned the property; that he had owned and resided there about 8 years; that the property was fenced when he bought it from L. D. Hart and Mrs. Doherty, and had been fenced ever since.

J. T. Haft testified that he had known the. land included in the Wheelock’s second addition since 1894, and that no streets or alleys had ever been used by the public through that part of the addition owned by Judd; that a street was opened up on the west line, but not through Judd’s land ; that the land owned by Judd -'had been fenced at all times and no-street had been graded through it.

There is further evidence to the effect that Judd’s land including the streets had been fenced for at least 18 years prior to the date of the trial. While under Revised Statutes, 1925, art. 5517, Judd would not have title to the streets by limitation, still this is a fact to be considered upon the issue of intent and effectiveness of the dedication and of acceptance by the county. The streets have never been graded nor used by the public as such, nor has there been any formal acceptance of them as highways by the county authorities.

As stated above, the deed by Wheelock and wife purported to dedicate the streets shown upon the plat so long as they might be used by the public as such. This* recital in the deed would be effective as a common-law dedication if the streets had ever been used by the public or accepted by the county. There is no question of implied dedication, nor has there been any condemnation under the statute. There is no evidence that the county has ever formally accepted under the deed or exercised any. authority over the streets, nor has there been any user whatever by the public.

A dedication deed grants only an ease-' ment for the purposes named in it. O’Neal v. Sherman, 77 Tex. 182, 14 S. W. 31, 19 Am. St. Rep. 743.

It is essential to every valid dedication that it should conclude the owner, and that, as against the public, it should be accepted by the proper local authorities or By general public user. Poindexter v. Schaffner (Tex. Civ. App.) 162 S. W. 22; 1 Elliott on Roads and Streets (4th Ed.) 122; 8 R. O. L. 898; 1 Thompson on Real Property, § 441.

In order to constitute a dedication of private property to a public use, it must clearly appear that the owner intended to absolutely and irrevocably set apart the land for public use. Summitt Place v. Terrell (Tex. Civ. App.) 207 S. W. 145, 148; City of Atlanta v. Ry. Co., 56 Tex. Civ. App. 226, 120 S. W. 923.

“Merely laying out grounds or simply platting or surveying them, without actually throwing streets open to use or actually selling lots with reference to the plat will not, as a general rule, constitute a dedication.” 1 Elliott on Roads and Streets (4th Ed.) § 128.

Where an express dedication of a street is claimed and there has been no user and no sale of lots with reference to it, the municipality must formally accept it and within a reasonable time. City of Galveston v. Williams, 69 Tex. 449, 6 S. W. 860; Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309; Huffman v. Alexander (Tex. Civ. App.) 276 S. W. 959.

“Recording a plat does not make streets public highways. They do not become such except by user or acceptance b.y the municipality. Until then there is no right acquired by the public, but only the purchasers of the lots, by whose consent the easement may be surrendered and the land freed from all claims by the rest of the public.” 1 Thompson on Real Property, § 440.

If lots had been sold with reference to the recorded plat, then, as against the purchasers of such lots, the dedication is irrevocable and it is not necessary to show acceptance by the local authorities. North Texas Traction Co. v. Brittson (Tex. Civ. App.) 279 S. W. 892.

This rule rests upon the principle of es-toppel. Since no lots have been sold out of any of the three blocks with reference to the streets, there is no estoppel en pais shown. So far as the record discloses, all of the blocks involved in this suit have been trans- ' ferred by the several grantors to the several grantees, as one body of land. Under such conditions, there being no third parties owning any specific part of the property as an entirety, there is no one in favor of whom the principle of estoppel could be invoked. Each grantee having acquired the entire property had the right to ask that the streets be abandoned by the county and could also insist that there had been no dedication.

Prior to acceptance by the municipality or user by the public, a dedication of property as a street may, as a general rule, be revoked by the owner devoting the property to a private use, and, in order to show a complete dedication and acceptance, the acceptance must be proved to have been made while the offer of dedication was open. City of Houston v. Finnigan (Tex. Civ. App.) 85 S. W. 470 (error refused).

The general rule is that the owner of a lot or a tract of land abutting upon a street acquires the fee to the center of the street, subject only to the easement existing in favor of the public. Mitchell v. Bass, 26 Tex. 372; Day v. Chambers, 62 Tex. 192; Cocke v. T. & N. O. Ry. Co., 46 Tex. Civ. App. 363, 103 S. W. 407; Summitt Place v. Terrell, supra; Texas Bitulithic Co. v. Warwick (Tex. Com App.) 293 S. W. 160.

If there has been a common-law dedication, we think, under the facts and the rules of law above stated, that such dedication never became irrevocable. We are strongly inclined to the opinion that there has been no dedication and since no lots have been sold there is no issue of estoppel that will avail the railway company anything in this litigation.

But aside from this question, we think the order entered by the commissioners’ court had the effect of closing and abandoning all claim which the municipality may have acquired, if any,, in virtue of the dedication deed and plat. Under the provisions of Revised Statutes 1925, art. 6703, the commissioners’ court has control of the streets in an addition to a town where such addition is not within the corporate limits. The proposed streets were never acquired by purchase, or through any condemnation proceedings instituted under the statute, and we think the commissioners’ court, under all the facts, had the power to discontinue them and abandon all interest which the county and the public might have acquired, if any, through the execution and recordation of the deed and plat. Uvalde County v. Oppenheimer, 53 Tex. Civ. App. 137, 115 S. W. 904; Morriss v. Cassady, 78 Tex. 515, 15 S. W. 102.

As th'e owner of the fee to the entire area of the streets, Judd was entitled to recover damages incident to the condemnation proceedings, even if the streets had been legally and irrevocably dedicated. The appellant made no effort to limit his right of recovery to the ownership of the fee and his easement over them, if the streets really existed, and is, therefore, not In a position to complain here.

Eor the reasons stated, the judgment is affirmed.
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text:
    COCHRAN v. CROW et al.
    (No. 2988.)
    Court of Civil Appeals of Texas. Amarillo.
    April 4, 1928.
    Pleading @=332 — Failure to give notice to defendant of hearing on plea of privilege, being jurisdictional, required reversal of judgment overruling plea (Rev. St. 1925, art. 2008).
    In action on brokerage contract for sale of land, in which defendant, sued with another, filed plea of privilege to which plaintiff filed controverting affidavit, where defendant was not notified of hearing on plea nor did he waive same, judgment reciting that defendant did not appear and that plea of privilege was overruled upon the ground that one of defendants was domiciled in county held erroneous, since failure to give notice to defendant as required by Rev. St. 1925, art. 2008, was jurisdictional.
    Error from Lamb County Court; E. N. Bur-rus, Judge.
    Action by O. O. Crow against B. B. Cochran and another.' To review a judgment overruling his plea of privilege, named defendant brings error.
    Reversed and remanded, with instructions.
    Jas. A. Stephens, of Benjamin, for plaintiff in error.
    John H. Wood, of Amherst, for defendant in error,
   HALL, C. J.

The defendant in error Crow sued plaintiff in error Cochran and one C. A. Messamore in the county court of Lamb county. His cause of action against Cochran is based upon a brokerage contract for the sale of land, which belonged to Cochran. ' The petition sets out no cause of action whatever against Messamore, the only allegation with reference to him being that Crow procured Messamore as a prospective/ purchaser who was ready, willing, and able to purchase the land upon the terms given by Cochran.

In due time, Cochran filed his plea of privilege to be sued in Knox county, which the petition alleges was the county of his residence. It is alleged in the petition that Mes-samore resided in Lamb county.

Crow filed a controverting affidavit, upon which the court did not enter any notation stating the time set for a hearing on the plea of privilege, and the record fails to show that Cochran was notified of the date of the hearing, nor does it appear that he waived such notice by agreeing upon the date.

The judgment of the court recites that Cochran did not appear and that the plea of privilege was overruled upon the ground that one of the defendants had his domicile in Lamb county. It does not appear that any evidence was introduced relative to the plea of privilege, and the failure to give notice, a? ■required by R. S. 1925, art. 2008, is jurisdictional. The court could not pass upon the issues presented by the plea of privilege without the previous service of notice in accordance with the, statute. Humphreys v. Young (Tex. Civ. App.) 293 S. W. 657; Denby Truck Co. v. Thompson et al. (Tex. Civ. App.) 248 S. W. 427; .Austin Bridge Co. v. Wren (Tex. Civ. App.) 297 S. W. 655.

For the reasons stated, the judgment is reversed and the cause remanded, with instructions that the appellant be notified when his plea of privilege will be heard.