author: WALKER, J.

text:
    TRADERS’ & GENERAL INS. CO. v. ROUSE.
    No. 2069.
    Court of Civil Appeals of Texas. Beaumont.
    April 28, 1931.
    Rehearing Denied June 3, 1931.

      Lightfoot & Robertson, of Fort Worth, and Mantooth & Denman, of Lufkin, for appellant.
    Brazil & Musslewhite and J. J. Collins, all of Lufkin, for appellee.
   WALKER, J.

This suit was filed by appellee in the district court of Angelina county against appellant, in the nature of an appeal from sin adverse award of the Industrial Accident Board, wherein he was claimant, appellant was insurer, and Lufkin Foundry & Machinery Company of Lufkin, Tex., was employer. By his first amended original petition he pleaded the necessary jurisdictional facts and the nature and result of his injuries, resulting in total, permanent disability, and the basis upon which he claimed his average weekly wage. Appellant answered by general and special demurrers and general denial. Upon trial to the court without a jury, judgment was entered in favor of appellee that he was “totally and permanently incapacitated,” and his compensation fixed at $8.65 per week for the statutory period of total permanent disability upon a finding that his average weekly wage was $14.42.

Appellant presents its appeal upon the following propositions:

First. Appellee’s petition was defective, “in that it did not allege that the plaintiff had not been working in the employment in which he was working at the time of the injury for substantially the whole of the year immediately preceding the injury; and the defendant’s exception to that part of plaintiff’s petition on the ground that it was vague and indefinite and should therefore have been sustained.” Appellant says that this proposition is germane to its third assignment of error, which complains that the court erred in overruling its special exception to the seventh paragraph of the appellee’s petition, which was as follows: “That at the time of his injuries, plaintiff was employed and was working six days per week, and was earning an average daily wage of $2.50 per day; that the averdge daily wage of other employees engaged in the same or similar employment as that of plaintiff in the same or a neighboring place as that in which plaintiff was working when injured, throughout substantially the whole of the preceding year before the 7th day of June, A. D. 1929, was $3.50 per day, and plaintiff alleges that his compensation should be based upon the wages of such other employees and upon an average daily wage of $3.50 instead of $2.50; and, plaintiff alleges that, in the event that he should be mistaken as to the length of time other employees have been engaged in the same or similar employment as his at the time of his injuries and in the same or neighboring place for substantially a year preceding the date of his injuries, then that his compensation should be based upon whatever average daily wage as may be just and fair between the parties thereto.”

The exception, as stated in the proposition, was that plaintiff did not allege “that he had not been working in the employment in which he was working at the time of the Injury for substantially the whole of the year immediately preceding the -injury,” and that the pleading was “vague and indefinite.” "Without . further comment, we say the pleading was not vague and indefinite. Also we agree with appellant’s argument that, as a general proposition, appellee was required to- plead his average weekly wage under subdivision I of section 1 of article 8309, R. S. 1925, or, if he relied upon subdivision 2 or 3, to plead facts excusing him from claiming under section 1. American Employers’ Ins. Go. v. Singleton (Tex. Com. App.) 24 S.W.(2d) 26. But that is not the proposition advanced by appellant, under its third assignment of error, that is, appellant does not say that the petition was insufficient because appellee pleaded his average weekly wage under subdivision 2 or 3 without pleading facts excusing him from claiming under subdivision 1 of section 1, but only that he did not plead in section 7 of his petition that he had not been working in the employment in which he was working at the time of his injury for substantially the whole of the year preceding his injury. The proposition is without merit. In construing a special exception against a particular paragraph of the petition, the whole petition must be reviewed, for the plaintiff is not required to plead all the facts of his case in one paragraph. So, where a particular paragraph is excepted to on the ground that certain essential facts are not pleaded, if such facts are pleaded in other paragraphs of the petition, the special exception should be overruled. In this case, making the petition good as against appellee’s exceptions to paragraph 7, plaintiff pleaded in other paragraphs as follows: “That on or about the 7th day of June, A. D. 1929, and for a period of about one week prior thereto the plaintiff was employed with Lufkin Foundry & Machine Company, of Lufkin, Texas. * * * Further pleading herein, plaintiff represents that on or about the 7th day of June, A. D. 1929, and "for a period of about one week prior thereto, he was employed by Lufkin Foundry & Machine Company -at Lufkin, Angelina County, Texas, his work consisting of operating an electric drill machine and drill press.” No special exceptions were urged against these allegations. They were sufficient to make paragraph 7 good against the exceptiqns assigned against it.

By its second, third, and fourth propositions, appellant asserts that the trial court erred in failing and refusing to file conclusions of fact and law. Appellant dply requested the trial court to file such conclusions, its motion was duly granted by a formal order, the court failed to comply with the order by filing conclusions separate from those embodied in the judgment, to which action- 'of the court appellant duly reserved its bill of exceptions. After allowing the bill of exceptions, the trial court approved a statement of facts which appellee duly filed. The trial court, in its judgment, made extensive conclusions both of fact and law which fully support the judgment in appellee’s favor, as follows:

“That on the 7th day of June, A. D. 1929, the Lufkin Foundry & Machine Company of Luf-kin, Angelina County, Texas, was subscriber tovthe Employers’ Liability Act in the State of Texas through and by virtue of a policy of compensation insurance carried with the defendant, Traders and General Insurance Company, a corporation, of Dallas, Dallas County, Texas, insuring the employees of the Lufkin Foundry & Machine Company against loss on account of accidental personal injuries arising out of and in the course of their employment; and on said 7th day of June, A. D. 1929, the Lufkin Foundry & Machine Company had in its'employ the plaintiff, Willie Rouse, who, on said day, sustained an accidental personal injury while engaged in the course of his employment: and, that the average weekly wages made the predicate of compensation herein is $14.42 per week and that the plaintiff, Willie Rouse, is entitled to compensation herein at the consequent rate of $8.65 per week.
“The court further finds that as a direct and proximate result of the injuries sustained by the plaintiff, Willie Rouse, as hereinabove found, he has been rendered totally and permanently incapacitated for the performance of labor and that the plaintiff, Willie Rouse, is therefore, entitled to recover from and have paid to him by the defendant, Traders & General Insurance Company, a compensation at the fixed rate of $8.65 per week, same beginning to accrue on the 14th day of June, A. D. 1929, and continuing thereafter for the full, final and complete period of four hundred and one (401) weeks.”

Appellant does not assign error against the manner in which the foregoing conclusions of fact and law were made and filed, but only, to quote from its third proposition, ^hat the court “omitted findings as to certain material facts in dispute.” In this proposition no “certain material facts” are pointed out, but the fourth proposition asserts that the court erred in that he did not state under which section of article 8309, R. S. 1925, defining average weekly-wages, he calculated appellee’s average weekly wage. It thus appears from these propositions that the complaint of appellant is merely of the inadequacy of the conclusions actually filed. Appellant failed to point out to the trial court the omissions in his conclusions of fact, and failed to request additional or more specific findings. As presented, these propositions do not show error under the following rule, announced by 3 Tex. Jur. p. 224:

“It is the duty of a party complaining of the inadequacy of findings of fact to request additional or more specific findings; otherwise he may not be heard to say on appeal that such findings are insufficient.”

But it should be further said that, with a statement of facts in the record, it affirmatively appears appellant has suffered no injury because of the failure of the trial court to file separate conclusions of fact and law. The court, in its judgment, clearly stated the facts upon which the judgment was based. With a statement of facts in the record, assignments of error against the court’s conclusions could have been reviewed by us. Riley v. Austin, 112 Tex. 216, 245 S. W. 907, is directly in point on what we have just said. In that case the trial court embodied in its judgment a material conclusion of fact which the Commission of Appeals said was subject to review upon the statement of facts duly filed therein.

As clearly supporting what has just been said, appellant’s 'fifth and sixth propositions assert: (a) The finding of fact made by the court to the effect that the plaintiff was injured in the course of his employment should be set aside as against the overwhelming preponderance of the evidence; (b) the finding of the court to the effect that the plaintiff was totally and permanently incapacitated as a result of the accident should be set aside as contrary to the great weight and preponderance of the evidence. Of course, appellant could have likewise attacked all the other conclusions of fact made by the court. It appearing affirmatively from the record that appellant has suffered no injury by the failure of the court to file separate conclusions of fact and law, propositions 2, 3, and 4 are overruled.

The evidence supporting the conclusions attacked by propositions 5 and 6 was sharply conflicting, and it would serve no useful purpose for us to review it in detail. Appellant offered much credible testimony in support of its defenses, but the trial court’s conclusions are fully supported by- the testimony of appellee himself. The issues thus presented being merely issues of fact, after a careful review of the evidence it is our judgment that the trial court’s conclusions should be affirmed. •

There being no error in the record, the judgment of the lower court is affirmed, and it is - accordingly so ordered.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    B. F. BROOKS CONST. CO. et al. v. FIRST STATE BANK OF MARQUEZ.
    No. 1004.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1931.
    Rehearing Denied in Part, Granted in Part, April 30, 1931.
    Seale & Seale, of Centerville, and O. B. Freemen and Albert B. Hall, both of Dallas, for appellants.
    J. E. & B. L. Bradley, of Groesbeck, and W. D. Lacey, of Centerville, for appellee.
   ALEXANDER, J.

This was a suit by the First State Bank of Marquez against B. F. Brooks Construction Company, Southern Surety Company, H. G. Lanier, and others, in the district court of Leon county. In December, 1928, said Brooks Construction Company entered into a contract with the state highway department for the construction of a part of State Highway No. 32 known as Job 145-B in Leon County. In order to secure the performance of the contract, the Brooks Construction Company executed to the state of Texas the statutory bond with Southern Surety Company as surety. Brooks Construction Company subcontracted a part of the work to H. G. Lanier. During the course of the work, it became necessary for the subcontractor to secure finances with which to complete the work. He applied to R. P. Carrington as cashier and agent of the First State Bank of Marquez for such funds. . The bank advanced to Lanier the sum of $2,122.65 with which to complete the contract. In November, 1929, the bank presented its account to the state highway commission and requested that department to withhold the amount unpaid to Brooks Construction Company on this contract as provided in Revised Statutes, art. 5472a (Acts 1925, 39th Legislature, ch. 17, page 44, § 1 [Vernon’s Ann. Civ. St. art. 5472a]). Brooks Construction Company, in compliance with the provisions of Revised Statutes, art. 5472b (Acts 1929, 41st Leg. [1929], 2nd Called Sess., p. 154, c. 78 [Vernon’s Ann. Civ. St. art. 5472b]), executed and delivered to tbe state highway department a release bond with Southern Surety Company as surety, and the funds then due Brooks Construction Company amounting to $2,122.65 were released. This suit was by the bank against Lanier for its debt and against Brooks Construction Company and Southern Surety Company on the release bond. There was no attempt to recover on the original bond given by the contractor under Revised Statutes, art. 5160 as amended by Acts 1927, 1st Called Sess., c. 39, § 1 (Vernon’s Ann. Civ. St. art. 5160), for the construction of the road. A trial was had before the court without a jury which resulted in a judgment for the bank against Lanier, Brooks Construction Company and Southern Surety Company. The Brooks Construction Company and Southern Surety- Company have appealed.

It is the contention of the appellants that the appellee cannot recover herein, because: (a) The bank did not furnish labor nor material for the construction of the road, but only furnished the money with which to pay for such labor and material; (b) if the bank did furnish such labor and material, the same was furnished to the subcontractor and not to the original contractor, and that the statute does not inure to the benefit of those furnishing labor or material to a subcontractor; and (c) there was no evidence that at the time the notice was given to the highway department there was anything due Brooks Construction Company under said contract. Article 5472a provides as follows: “That any person, firm or corporation, or trust estate, furnishing any material, apparatus, fixtures, ’ machinery or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors for such improvements; provided, such person, firm, corporation, or stock association shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.” Acts 1925, 39th Leg., ch. 17, p. 44 § 1.

We held in the case of Texas Company v. Paul Scliriewer, 38 S.W.(2d) 141 (this day decided), that one furnishing labor or material. to a subcontractor and not to the original contractor is entitled to fix a lien on such funds by the giving of the required notice. The holding therein made is herein adhered to. Huddleston & Work v. Kennedy,-S.W. (2d) - (decided at Eastland February 20, 1931).

The bank claims that it is entitled to a lien on the funds because it furnished the subcontractor the money with which the laborers and materialmen were paid. It appears that the subcontractor became financially embarrassed and that it was necessary for him to arrange with the bank for the necessary funds to pay the laborers and ma-terialmen. It was then agreed between the subcontractor and the bank that the bank would furnish the necessary funds with which to pay the checks issued by the subcontractor for labor and material and that the subcontractor would execute notes to the bank from time to time to cover the overdrafts created by the drawing of such cheeks. It was agreed that such checks should be issued only for the purpose of paying for such labor and material and, that the bank should be subrogated to and have a lien on the funds. The subcontractor issued checks upon the bank and delivered them to the laborers and materialmen in full payment and satisfaction of their claims. Some of these checks were cashed directly at the bank, and some of them were cashed by local merchants and afterwards paid by the bank. In this way the bank claims to have furnished the labor and material for the completion of the contract. It was held by the Supreme Court, in Employers’ Casualty Company v. County of Rockwall, 35 S.W.(2d) 690, (of date January 21), that a bank lending money to a contractor for the payment of labor and material used in the construction of public improvements does not become subro-gated to a lien on the funds for such work. See also Employers’ Casualty Company v. Wolfe City, 35 S.W.(2d) 694 (decided by the Supreme Court January 21); Northwestern Casualty Co. v. First National Bank, 36 S.W. (2d) 535 (decided by this court February 19, 1931); Huddleston & Work v. Earl Kennedy, 38 S.W.(2d)-(decided by the Court of Civil Appeals at Eastland February 20,1931).i

However, the bank claims a lien by virtue of the agreement of the parties. Since the lien does not exist in favor of the bank by virtue of any compliance with the statute, if it exist at all, it must arise by virtue of the agreement of the parties. Subrogation may arise by agreement of the parties, but in such ease the agreement must be either with.the party holding the lien, as where there is an assignment of- the lien to the one advancing the money, or with the one having the right to create such a líen, as where a third party discharges the lien at the request of the, debtor. In this case the laborers and mate-rialmen who held claims, and had a right to fix liens on the funds, did not assign their claims to the bank, and were not parties to the agreement between the bank and the subcontractor. Therefore, the bank did not acquire a lien from the laborers and material-men. The subcontractor, by an agreement with the bank, undertook to subrogate the-bank to a lien on the funds. However, there is nothing in the record to show that at the time of the making of the agreement there was anything due or to become due the subcontractor. He was, therefore, undertaking to create a lien on funds that did not belong to him, but belonged to the original contractor. The contractor was not a party to this agreement and his rights were not affected thereby. It may be conceded that the subcontractor had the right to deal with his own funds as he saw fit, but he could not so deal with the funds of the general contractor without his consent. Employers’ Casualty Company v. Wolfe City (Tex. Com. App.) 25 S.W. (2d) 320; Hess & Skinner v. Turney (Tex. Civ. App.) 207 S. W. 171; Id., 110 Tex. 148, 216 S. W. 621. Therefore, the bank acquired no lien on the funds by virtue of the agreement between it and the subcontractor.

[S, 6] The appellant further insists that there was no evidence tending to show that the original contractor was due anything from the state under the contract in question at the time the notice was served on the highway commissioners. The only evidence in the record whatever tending to show that the highway department was in any wise indebted to the original contractor, at the time the notice was served, is found in the release bond executed by the contractor and his surety for the release of the funds due the contractor. This bond recites: “Whereas, pursuant to said law the Highway Department of the State of Texas, is withholding from said B. F. Brooks Construction Company the sum of Two Thousand One Hundred Twenty Two and 65/100 ($2,122.65) Dollars, owing by the said-Highway Department of the State of Texas, to the said B. F. Brooks Construction Company. * * * ” This provision in the bond signed by the contractor is an admission that the contractor was due the amount of money therein stipulated by the highway department on some account, but there is nothing in the bond to identify the contract under which such funds were due. The bank claimed a lien on account of money advanced to pay for labor and material used in the construction of Highway No. 32, Job 145-B in Leon County. Brooks Construction Company may have had other contracts with the highway department under which the above sum was due it. AYe do not think that the above provision in the release bond executed by the contractor to the highway department was sufficient in itself to establish that the highway department was indebted to the contractor in any sum on the particular contract involved in this suit.

The judgment of the trial' court that the bank take nothing against the defendants Gray Lanier and T. P. Sherman, and in favor of the bank against H. G. Lanier for its debt, is affirmed; and the judgment in favor of the bank against B. F. Brooks Construction Company and Southern Surety Company of New York is reversed, and judgment here rendered that the said bank recover nothing as against B. F. Brooks Construction Company and the Southern Surety Company of New York.

On Motion for Rehearing.

In our original opinion, we held that notwithstanding the fact that Lanier, the subcontractor, agreed with the bank that it should be subrogated to his rights in the funds due him under the contract, since there was no evidence showing that at the time of the making of such agreement there was anything due or to become due him under the contract, he qould not obligate such funds to the payment of his debts. We also held that there was no evidence showing that at the time-of the service of the notice on the highway commission that Brooks Construction Company was due anything on the particular contract under consideration.

The appellee in its motion for rehearing has called our attention to the fact that upon another trial it may be able to present evidence showing that the subcontractor had not collected the full amount due him under the contract at the time of the making of the agreement, and also that Brooks Construction Company at the time of the service of notice on the highway department was still due some funds under said contract. The motion is supported by affidavits properly explaining appellee’s failüre to develop this phase of the case on the former trial, and evidence has been furnished showing that it will probably be able to produce such testimony on another trial. Revised Statutes, article 1822. It now asks that the case be reversed and remanded in order that this phase of the case may be more fully developed.

Where, on appeal, it becomes necessary to reverse the judgment of the trial court and it appears that the case has not been fully developed, it is the duty of the appellate court to reverse and remand the case rather than, render it in order that the ends of justice may be served. This procedure has often been followed in order to allow an amendment of the pleadings, show jurisdiction, or supply additional testimony. Associated Oil Co. v. Hart (Tex. Com. App.) 277 S. W. 1043, pars. 6 and 7; Combes v. Stringer, 106 Tex. 427, 167 S. W. 217, par. 3; Hanks v. Hamman (Tex. Com. App.) 289- S. W. 993, 994; Saner-Whiteman Lumber Co; v. Texas & N. O. Ry. Co. (Tex. Com. App.) 288 S. W. 127; 3 Tex. Jur. 1231. It may be that upon another trial of the case, the appellees will be able to more fully develop this phase of the case.

The judgment heretofore entered affirming the judgment of the trial court to the extent that the bank take nothing against the defendants Gray Lanier and T. P. Sherman, and in favor of the bank against H. G. Lanier for its debt, will be allowed to stand; and the judgment in favor of the bank against B. E. Brooks Constrriction Company and Southern Surety Company of New York is reversed, and the cause is remanded for a new trial.

      . Rehearing pending.


author: . RANDOLPH, J.

text:
    AMERICAN CENTRAL LIFE INS. CO. v. ALEXANDER.

    No. 3606.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1931.
    Rehearing Denied May 27, 1931.
    Douglas & Spiller, of Lubbock, for appellant.
    R. A. Baldwin, of Slaton, for appellee.

      Writ oí error granted.

   . RANDOLPH, J.

Mrs. Alexander sued the American Central' Life Insurance Company on a life insurance policy issued by said company upon the life of her husband, Chester Lloyd Alexander, for $1,000 face of the policy, $1,000 under the double indemnity clause of same, interest, 12 per cent, penalty, and reasonable attorney’s fees.

The insurance company defended on the ground that the insured committed suicide and further pleaded a misrepresentation by the insured, to which latter plea the plaintiff excepted and the trial court sustained-said exception.

The jury, in response to special issues, found that the insured did not intentionally kill himself, and that $750 was a reasonable attorney fee, and on these findings the trial court entered judgment in favor of appellee for $3,067, being $2,000 on the policy, $77 interest, $240 penalty, and $750 attorney fees, and from this judgment appeal -is had to this court.

The appellant insists that the evidence excludes every other reasonable hypothesis-than that the insured committed suicide; that there is no evidence upon which to base a contrary conclusion; and that, as the burden was on appellee to prove accident,' it was entitled to an instructed verdict.

We will proceed with the discussion of the-evidence to determine these questions.

The deceased was a married man, approximately thirty years old at the time of his death. He was an employee of' a wholesale grocery company and was a stout healthy man. From the testimony of his employer, it appears that the deceased had been working for him for four years and was in no danger of losing his job. The evidence also-discloses that he was a genial pleasant man and was not of the gloomy or morose type. There is nothing in the record which discloses that he ever had any financial or marital trouble or any other troubles which would furnish a motive for his committing suicide.

On the day of his death, deceased went home to his noon meal. He also went home at his usual time about 6 o’clock in the afternoon and carried some groceries, but did not eat supper, as he said he had something down in town. At noon he asked his wife to have a tank of hot water for him to take a bath that night, and when he came home at 6 o’clock his wife asked him if he did not want his bath and he said he would be back in a short time to take his bath. He did not usually stay out late at night, but on this occasion he did not come home until about 1 o’clock.

After he returned to town from home that night, his whereabouts up until 1 o’clock were accounted for only up to 9 o’clock. A man by the name of Williams, who was engaged in the transfer business in Slaton, testified that the deceased came to his place of business about 7 o’clock or 8 o’clock, between sundown and dark, and, when he came in he had some liquor with him, a small flat bottle which the witness thinks was a half-pint bottle, from which they took a drink. They talked quite a while and then went -over to the skating rink, but before leaving his (Williams) place of business they took another drink. The witness testified that he “killed the bottle.” He further testified that he never took more than three drinks with deceased in his life. When deceased came to witness’ place, he acted as he usually did, was jovial and friendly. The witness at that time, at the time deceased came to his shop, did not Smell any whisky on his breath. When they arrived at the skating rink, he (the witness) put on skates and saw deceased no more.

The witness Selman owned and ran the skating rink and was also constable. When Williams and deceased came to his rink, he saw deceased, who did not skate any. Deceased called to him “Hello Sam.” In about three or five-minutes deceased came to where . he was and asked him- how his business was getting along and remarked, “You have a nice crowd here tonight.” The witness testified he told deceased to go over and put on skates and deceased said, “I am going to get it done tonight.” This was about 9 o’clock. The witness noticed nothing unusual in deceased’s conduct, he was just in a jovial jolly mood, the same as usual. There is some controversy as to what the deceased said, but the witness testified to the expression above quoted.

The deceased’s whereabouts were not accounted for from that time until he arrived home about I o’clock. When he arrived at home the testimony of his wife gives a clear account of what transpired. She testified, in substance and in part, that when her husband got home she unlocked, the door and let him in and when he got in he went to his, trunk, prowling around in his trunk, and appeared to be hunting for something. The trunk was in front of the door leading from the living room. The house faces west,' had the living-room on the northwest, bedroom on the south, and bedroom on the east, with bathroom between the two rooms, having doors connecting with each. The north side of the house, east of the living room on the north, were the dining room and kitchen. She asked him what he was hunting for and he said, “I am hunting for my ddcks.” She told him there were no ducks in there. He then went through the bedroom door into the bath, then into the back bedroom and she followed him, and found him at the closet in the back bedroom. There was a shotgun and a rifle in there. He took out the shotgun and leaned it over, then picked up the rifle, opened it and looked in it, and then set it back. Then he picked up the shotgun, breached it, and looked into it. She then asked him, “What in the world are you doing?” He replied, “I am hunting my ducks and you won’t tell me where they are at,” and she said to him, “Come on and let’s go to bed.” He then said, “You know where my duc.ks are but you won’t -tell me.” She told him, “They are your Daddy’s ducks that you are talking about. Put them back and let’s go to bed.” He put both guns back. He then went and leaned against the bathroom door and cried and said that she knew where his ducks were but would not tell him. She again told him to come and go to bed. He went through the back into the front bedroom and she heard a shot and ran in there and he was lying on the floor. It appears that his pistol was in a closet lying on a high shelf. When othei parties found him he was lying on his back, his feet were near the closet door, his pistol lying on one side of him and the scabbard on the other side. He had a bullet wound on the right side of the head, ranging down toward the left Side, but the bullet had no exit, having lodged in the back of his head, low down.

There was another wound on his head which cannot be and is not accounted for. There are several circumstances urged by each party to sustain their version of suicide and accident, but we will consider only one of them. There was only a slight powder burn where the bullet entered. The doctor who shaved the hair from around the wound so testified.

It is clear from the evidence -that the deceased had no motive for suicide. Whether or not he killed himself with suicidal intent was a question submitted to the jury, which was answered in the negative.

In explanation of his calling for his “ducks,” the plaintiff proved by the deceased’s father, who was a farmer in the neighborhood pi Slaton, that large numbers of wild ducks had been destroying his crops, and that he had arranged with the deceased to come out and help him kill them. Further, it is the contention of the plaintiff that the other wound in his head or on his head and unaccounted for, had been received by him before he reached home, and that he appeard at home semiconscious only from the effect of that wound.

The rules governing the disposition of the questions in this case are clearly and thoroughly discussed by this court in the case of United Fidelity Co. v. Adair, 29 S.W. (2d) 940, and by the Commission of Appeals in the same ease in 29 S.W.(2d) 944, and we follow the principles laid down therein. By reference to those decisions we avoid the necessity of an extended discussion of the law in this case. We will say, however, that the burden is on the appellant to sustain its defense of suicide, and that the deceased intentionally took his own life and this it has not doné by excluding every other reasonable hypothesis except that of suicide.

The appellant presents the following proposition of error on the part of the trial court: The insurance company, not being required, under the law, to give notice that it will not be bound by the policy in order to avail itself of the defense of misrepresentation in the application' the trial court erred in sustaining an exception to its pleading setting up that defense, and the answer of the insurance company that representations were made in the application which were false and which induced the company to issue the policy, and that the company would not have issued the policy had it known of the falsity —the misrepresentations alleged were material to the risk, and the court committed error in sustaining the exception to the allegations of said answer.

■The answer of the insurance company contains the following allegations as to the misrepresentations in the application of the deceased for insurance:

“The defendant would show that it is not liable on said policy because of the following facts: prior to the issuance of the same the said Chester Lloyd Alexander submitted to the plaintiff, through its duly authorized agent, G. W. Bounds, an application for the issuance of the policy sued upon, which application was duly signed by the said Alexander, and among other things contained the following:
“ ‘Declarations of applicant in lieu of medical examination:
“ ‘In continuation of and forming a part of my application to the American Central Life Insurance Company, I declare that the statements and answers herein are complete and true without exception.
“ ‘(a) To what extent do you use alcoholic beverages? None.
“ ‘(b) Have you ever used them to intoxication? No.’
“That the said application containing the above language and representations by the said Alexander was presented to the defendant herein and was the basis of the issuance of the policy to the said Alexander, and that the declarations hereinabove quoted and alleged were believed by the defendant herein and relied upon by it in the issuance of said policy; the defendant would show that said answers are false, and especially the answer to the question ‘To what extent do you use alcoholic beverages?’; for the reason that the said Alexander for a long time prior to and after the making of said representations did use alcoholic beverages, and the answer to said question ‘none’ was false; and the defendant further says that the said Alexander for a long time prior to and after the making of said representations habitually used alcoholic beverages and that he was often under the influence of alcoholic beverages and drinks and was often intoxicated before and after, the making of said representations, and that his answer to the question, .‘Have you ever used them to intoxication?’ was false and untrue."

The appellee contends that: “There being no proof that the policy sued on contained an incontestable clause, merely pleading such is not sufficient and appellant having pleaded no notice to the insured or to the beneficiary of its refusal to be bound on the policy by reason of the alleged misrepresentations of insured in his application, in compliance with article 6044, was barred as a matter of law from defending an action brought on the policy on the grounds of misrepresentations and that the Court committed no error in sustaining the exception on said ground.”

In one of the paragraphs of appellant’s answer it was pleaded that the insurance policy contained a clause that the, policy was incontestable after two years except for nonpayment of premiums, and that the deceased had killed himself within the first year after said policy was issued and within the contestable period, and appellant was therefore not liable except for the first year’s premium.

The trial court having sustained an exception to the appellant’s pleading wherein it alleged that the insured represented that he did not indulge in the drinking of intoxicating liquor, and the appellant having reserved a proper exception to the court’s action, its failure thereafter to offer evidence in support of such stricken allegation can in no wise affect its right to have us pass upon such action of the trial court in sustaining such exception.

The appellant contends that the insurance company is not required, under the law, to give notice that it will not be bound by the policy in order to avail'itself of the defense of misrepresentation in the application, and that the court erred in sustaining such exception noted above.

So far as this court is concerned, this question has been settled adversely to appellee in the case of Gorman v. Jefferson Standard Life Insurance Co., 275 S. W. 248, 250. In that case the various articles of the' statute which appellee insists requires the giving of ninety days’ notice have been thoroughly considered, and the opinion of Judge Jackson says:

“Appellant * * * challenges the correctness of the action of the trial court in rendering judgment against her, and asserts that a misrepresentation in an application for life insurance to be material to the risk assumed must be une which actually contributes to the contingency upon which the policy become's due and payable.
“Appellee replies thereto with a counter proposition that the policy contained a clause declaring it to be incontestable after 1 year from the date of the issue, and articles 4947 to 4951, V. S. C. S. [now article 5043 et seq., 1925], have no application.
“In 1903 the Legislature enacted articles 4947 to 4951 of V. S. O. S., and article 4947 provides in substance that any provision in a policy of insurance contracted for in this state which provides that the answers or statements made in the application for such insurance if untrue or false, shall render the policy void or voidable, shall be of no effect, and constitute no defense to a suit brought upon such insurance policy—
“ ‘Unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.’
“Article' 4951, referring to the articles preceding, one of which is article 4947, among other things, provides:
“ ‘The provisions of the foregoing articles shall not apply to policies of life insurance in which there is a clause making such policy indisputable after two years or less, provided premiums are duly paid.’
“The policy issued by appellee in the instant case provides that after one year it shall be incontestable for any cause, except nonpayment of premium, and the deceased died within the year, consequently, if these articles control, appellee’s defense, based on fraud and misrepresentations, would' not be, affected or limited by the provisions thereof. ⅜ ⅜ ⅜
“In 1909 the Legislature enacted article 4741 [now article 4732, 1925 statutes] which provides that no policy of life insurance shall be issued or delivered in this state unless it shall contain:
“ ‘A provision that the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for nonpayment of premiums.’
“After this article became effective, it was no longer left to the option or election of the insurance companies whether or not they would insert the incontestable clause in their life insurance policies, but was made mandatory. * * *
“We conclude, therefore, that the correct ruling is made in the case of Guarantee Life Insurance Co. v. Evert [Tex. Civ. App.], supra [178 S. W. 643], and that the articles of the statute 4947 to 4951 are not applicable to policies issued after December 31, 1909, but the law as found in the act of 1909 is controlling.”

If the act of 1909, which is carried forward into subdivision 3 of article 4732, is controlling, as decided in the Evert and Gorman Oases, then there is no requirement that the insurance company shall give notice that it will not abide the contract of insurance, and the trial court erred in sustaining the plaintiff’s exception to the defendant’s answer because of its failure to specifically plead that it had given such notice.

There are, however, other grounds upon which defendant’s answer is lacking in presenting a legal defense. It is not alleged that the misrepresentations were intentionally made by the insured for the purpose of misleading the defendant and in inducing it to issue the policy sued on. Neither is it alleged that the insured intentionally killed himself. Under the allegations in the defendant’s answer, it might be true that the deceased killed himself, yet he may have done so accidentally and there can be no indulgence, in the face of a special exception, of the doctrine of reasonable intendment. That doctrine is only applied as against a general demurrer.

If misrepresentations were not intentionally made for the purpose of deceiving the defendant and causing it to act in issuing the policy, such misrepresentations offer no legal defense upon the ground of fraud.

Not only must it be alleged that the representations were false, but also that they were intentionally made for the very purpose of deceiving the defendant. Gorman Case, supra. False statements, to avoid insurance policies, must have been intentional and with design to deceive or defraud. Westchester Fire Ins. Co. v. Wagner, 24 Tex. Civ. App. 140, 57 S. W: 876, writ denied.

As the defense of false representations made in the application is not charged to have been intentional, and as the defendant failed to allege that the insured’s death was brought about by an act of his intending to taire his own life, these defenses cannot defeat a recovery. ,

The appellant attacks as excessive the attorneys fees awarded the appellee in this case.

Article 4736, Revised Civil Statutes of Texas 1925, authorizes the recovery of attorneys fees in these insurance cases. Article 1862 of the same statutes prescribing the powers and jurisdiction of the Court of Civil Appeals requiring a remittitur, reads as follows: “In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated, then to be reversed.”

The various Courts of Civil Appeals who have decided questions arising under this last article have limited their authority to require a remittitur where they are of the opinion that the fee is excessive. Great Southern Life Insurance Co. v. Johnson, 13 S.W.(2d) 424. This rule was also applied by Judge Pleasants of the Galveston Court in the case of Southland Life Insurance Co. v. Norton, 9 S.W.(2d) 752. However, the Commission of Appeals, with the express approval of the Supreme Court in this last-named case wherein the Supreme Court had granted a writ of error, 5 S.W.(2d) 767, 768, has held that the power and jurisdiction of the Court of Civil Appeals under the last above quoted article holds otherwise. That court says:

“The above statute provides for a reasonable attorney fee for the prosecution and collection of such loss. This means such a fee as would be reasonable for a litigant himself to pay his own attorney for prosecuting the case, and not a speculative or contingent fee based upon the uncertainty of the litigation. As applied to the case at bar, it is the purpose and object of the statute to allow the plaintiff! a reasonable sum for a competent attorney; or firm of attorneys, to represent him in the case and prosecute the litigation, and the statute does not contemplate a fee for more than one attorney or firm of attorneys. ⅜ * ⅜

“The Court of Civil Appeals, in passing on the question as to whether the verdict and judgment are excessive as to attorney fees, as above stated, holds in effect that they are bound by the direct testimony in the record bearing on this issue. We do not agree with this holding. Under article 1862, above quoted, the Court of Civil Appeals has the right to look to the entire record in the case before them, and to view the matter in the light of the testimony, the record before them, the amount in controversy, and their own common knowledge and experience as lawyers and judges.”

The Galveston Court interprets this holding to mean that the Court of Civil Appeals has the power and jurisdiction to set aside the verdict of the jury and to render such judgment in favor of the plaintiff for such attorney’s fees as seems to them fair and reasonable in the light of all the other testimony in the record and from their own common knowledge and experience, as lawyers and judges and render judgment accordingly.

The plaintiff has alleged in her petition that she is entitled to a reasonable attorney’s fee. Under the evidence in the case and all the evidence in the ease, it appears that a reasonable attorney’s fee in this case is $750, for which the trial court rendered judgment. This testimony and this finding, according to our understanding, is a matter within our discretion to pass on as reasonable for the services rendered.

In the Johnson Case, supra, this court held that a judgment for $750 was not warranted in that particular case, because the evidence in that case showed that a reasonable fee was from $450 to $500, and required a remittitur of $250 from the judgment therein recovered.

In this case the evidence justifies a judgment for $750 under the testimony in the case and under the finding of the jury. This we are loth to disturb, but under our view of the Norton Case as held by the Commission of Appeals, with the approval of the Supreme Court, it devolves on us to render such judgment as the entire record in the case before us, in the light of the testimony, the amount in controversy and our own knowledge and experience as lawyers and judges, to ascertain a reasonable fee for the services herein performed.

We have carefully considered the record and find that the fee allowed is very little in excess of the amount of the fee allowed in the Norton Case, supra, by the Commission of Appeals.

In this case, therefore, from all of such record and from our own common knowledge and experience as judges and lawyers, we have arrived at the conclusion from the services rendered in this case that the fee of $750 is not excessive and here render judgment for the plaintiff in aid of the jury’s verdict for the sum of $750 attorney’s fees.

We therefore affirm the judgment of the trial court.


author: WALTHALL, J.

text:
    GULF, C. & S. F. RY. CO. v. GALBRAITH.
    No. 2538.
    Court of Civil Appeals of Texas. El Paso.
    May 14, 1931.
    Rehearing Denied June 4, 1931.
    Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Wren and John F. McRae, all of Fort Worth, for appellant.
    Le Roy A. Smith and K. Van Zandt Smith, both of Fort Worth, for appellee.
   WALTHALL, J.

A. Galbraith, plaintiff, sued defendant, Gulf, Colorado & Santa Fé Railway Company, for damages for an alleged breach of a written contract in the form of a bill of lading for the transportation of a car of wheat, and the breach of an oral contract in connection with the delivery of the wheat at its destination; the shipment being over the Atchison, Topeta & Santa Fé Railway Company from Woodward, Okl., to Fort Worth, Tex., for delivery to L. O. and H. L. Street, as consignees, at Fort Worth, Tex.

It was alleged that the carload of wheat waá sold by the Streets to plaintiff Galbraith, and that on July 23, 1929, and subsequently, plaintiff notified defendant through its local freight agent and its car clerk at Fort Worth that he was the owner of the car of wheat and holder of the bill of lading therefor, and requested that he be notified promptly of its arrival at Fort Worth, and that defendant •agreed and contracted with plaintiff that it would do so.

Plaintiff alleged that there existed in Fort Worth at that time a general custom among carriers by rail, known to defendant and the initial carrier, that, when requested by the owner of a car of freight, the carrier at the place of destination would promptly notify the owner in Fort Worth of the arrival of such freight in carload lots, irrespective of and in addition to any requirement for notice contained in the bill of lading, and that, by reason of, such custom, same became a part of said contract of carriage.

Plaintiff alleged the arrival at Fort Worth of said car of wheat on July 28, 1929, and defendant’s failure to promptly notify him of such arrival, and that he did not know of such arrival until after 6 o’clock p. m. Saturday, August 3, 1929, after the close of business.

Plaintiff alleged that he purchased said wheat to sell on the Fort Worth market; stated the price on August 29th, at which time the wheat could and would have been sold on the market had defendant notified him promptly of its arrival; alleged the decline of the price of the wheat on the market and the sale at the .best price obtainable 'and the loss by reason of the decline in the market.

Plaintiff alleged that the car containing the shipment was in had order when it reached Port Worth, where, because of its condition, it leaked 950 pounds of the wheat on the ground; that plaintiff picked up and salvaged same and shipped it in another ear and forwarded it with the remainder of the original shipment to Dallas, Tex., where it was sold; alleged a loss in weight in the shipment of 3,240 pounds; alleged that, by reason of delay in delivery, a wrongful charge was made and collected for demurrage in the sum of $18, and' for the same reason a recon-signment char£e of $2.25 was wrongfully charged and collected; alleged demand and refusal to pay his claim, and by reason of such refusal it was necessary to employ attorneys, which he did at the reasonable sum of $20, for all of which items he sues.

Defendant answered by demurrers, general and special, general denial, and that, upon the arrival of the shipment at Port Worth, defendant had no knowledge of plaintiff’s interest in the shipment; that on arrival of the shipment defendant notified the Streets, consignees, by postal placed in the mail; that on the afternoon of August 3, 1929, defendant had notice through the mail of plaintiff’s ownership of the wheat, at which time defendant promptly notified plaintiff of the arrival of the wheat; that the demurrage charges were lawfully assessed and collected.

The jury found upon special issues submitted:

(1) There was a general custom in Port Worth among the railroads to the effect that, upon previous request, the railway company bringing cars of grain into Port Worth would notify the holder of the bill of lading where the name of such holder did not appear thereon of the arrival of such cars.
(2) Such custom was not limited solely to cases where previous requests for such notice was made in writing.
(3) Prior to July 29, 1929, plaintiff notified defendant of his ownership of the car of wheat and requested notice of its arrival.
(4) Before July 29, 1929, defendant, through its authorized agent, agreed with plaintiff to notify him of the arrival of the car in question.

On the jury’s findings, judgment was entered in favor of plaintiff and against defendant for the sum of $338.10; that ¿mount including the items of $266.96, the loss due to the decline in the market, $53.14, the value of the loss of wheat while in transit, $18 de-murrage charges.

Defendant prosecutes this appeal.

Opinion.

Appellant submits that, there being no finding and no basis in the evidence for any finding that appellant was guilty of any breach of its contract, or guilty of any negligence in giving the notice when the shipment arrived at Port Worth, the court erred in assessing damages for a decline in the wheat market.

It is undisputed that the car of wheat arrived and was received by appellant at Port Worth on July 28, 1929. It was also undisputed that the first knowledge appellee had of the arrival of the car of wheat was after 6 p. m. after the close of business on Saturday August 3, 1929. We might state here that the evidence shows that appellee could and would have sold the car of wheat on July 29, 1929, and the price at which it could have been sold had he then known of 'the arrival of the wheat.

The evidence is too extensive to quote at length, and we will state briefly the evidence on the point submitted. The evidence shows the 'custom among the railroads at Port Worth to be substantially as alleged by plaintiff, and that it was the custom to give notice to the consignee, or to the owner of the shipment, when notified of such ownership, the same day or the day following its arrival.

Appellee testified that he notified appellant of his ownership of the car of wheat, and that he held the bill of lading, on July 22d, and every day until he got possession, and that he wanted to be notified immediately on its arrival, and that appellant (Mr. Hess, the freight agent) “promised me to notify me, each time I called, on arrival of the car. ⅜ * * The way i iet ⅛⅛ jaiow was that I told him that we had a bill of lading on this car and wanted to be notified immediately of the arrival of if, with emphasis on ‘immediately.’ I emphasized that in every one of the conversations I had with him about the car.”

Appellant complains of the judgment for $18 collected for demurrage. The freight bill appearing in the record shows that such demurrage was .charged on the basis of the arrival of the car on July 28th and notice given on July 29th. No notice had been given to appellee, the owner, on July 29th; the charge should be refunded.

Appellants submit that, as to the loss of grain in transit, the evidence does not show “the true amount of grain loaded into the car in question at the point of origin. The exchange bill of lading accompanying such car was introduced in evidence, and since the notation ‘SL and WTS’ (Shipper’s Load and Weight) appeared thereon, it thereby clearly showed on its face that the load and count of the commodity had been made by the shipper at point of origin without participation by appellants connecting carrier.” It is submitted that the burden was on ap-pellee of showing the quantity of grain loaded in the car at the point of origin, and, no evidence having been offered to sustain that burden, judgment for $53.14 for loss of grain in transit was error.

Appellee alleged and recovered upon the allegation that 1,504 bushels of wheat, weighing 90,240 pounds, as stated in the bill of lading, were delivered to the Atchison, Topeka & Santa Fé Railway Company, appellant’s connecting carrier, at Selman, Old., for transportation to Fort Worth, Tex.; that, when said wheat was unloaded at destination there was only 87,000 pounds or $1,450 bushels, and recovered the alleged and proven .value of the difference in weight of $53.14. Both parties concede that no evidence was offered by either party as to the bushels or weight of wheat loaded into the car other than as stated in the exchange bill of lading, and that no evidence was offered as to who loaded or weighed the wheat put into the ear other than as indicated by the letters SL & WTS appearing on the bill of lading.

No assessment of the damages was submitted or found by the jury, and none was requested. The only issues submitted or requested have reference to the custom of giving notice o’f the arrival of the ear at Fort Worth, and whether in fact such notice was given. At the close of the evidence appellant submitted a peremptory charge in its favor, which the court overruled.

Appellant relies upon that part of title 49, § 101, U. S. Code Ann., reading as follows: “The carrier may' also by inserting in the bill of lading the words ‘Shipper's weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill of lading.”

The above-quoted part of title 49, § 101, U. S. Code Ann., does not state upon whom rests the burden of proof as to the quantity of wheat put into the car. The carrier availed itself of the provision, and inserted m the bill of lading letters indicating that the goods were loaded by the shipper, and the effect of the provision is that, “if such statement be true,” the carrier shall not be liable, in this instance, for the nonreceipt of the wheat-stated in the bill of lading.

The appellant on this issue pleaded a general denial. As we understand it, the general denial put upon appellee the burden or duty to make out a prima facie case, which was done by putting in evidence the bill of lading, which was done. That having been done and there being no special matter of defense pleaded as evidence of nonreceipt, or difference in the quantity of wheat put in the car from that stated in the bill of lading, no issue of nonreceipt or shortage was suggested. The bill of lading recited the quantity of wheat put in the car to be as pleaded by plaintiff. It is the general rule that as between the parties and their privies a bill of lading constitutes prima facie evidence of the actual delivery to the carrier of goods of the character and in the quantity therein specified. Volume 7, Tex. Jurisprudence, p. 24, par. 12, and cases cited. The bill of lading is there said to be the best evidence of delivery to the carrier, St. Louis S. W. Ry. Co. v. Cates, 15 Tex. Civ. App. 135, 38 S. W. 648, and is sufficient evidence of the shipper’s ownership to entitle him to sue for loss or nondelivery. Where a prima facie showing on the issue has been made and the carrier has failed to rebut it by special matter of defense, the plaintiff is entitled to recover. Belcher v. M., K. & T. By. Co., 92 Tex. 593, 50 S. W. 559. As said in Fentiman v. Atchison, T. & S. F. Ry. Co., 44 Tex. Civ. App. 455, 98 S. W. 939, as a rule the prima facie case made by the shipper may only be rebutted by proof on the part of the carrier that the loss was due to one of the recognized excepted causes, or, as in Gulf, C. & 8. F. By. Co. v. Roberts (Tex. Civ. App.) 85 S. W. 479, to some cause against which it had relieved itself from liability by a valid stipulation in the shipping contract. We see no difference between the rule to be applied in interstate and intrastate shipments in the matter discussed.

The issues not submitted to the jury, and not requested to be submitted, are found by the court on the testimony, and are sufficient to sustain the judgment.

The case is affirmed.


author: PELPHREY, C. J.

text:
    HUDSPETH COUNTY CONSERVATION AND RECLAMATION DIST. NO. I et al. v. SPEARS & CO. et al.
    No. 2577.
    Court of Civil Appeals of Texas. El Paso.
    May 8, 1931.
    O. R. Armstrong 'and Frank B. Clayton, both of El Paso, for appellants. „
    Kemp & Nagle and Turney, Burges, Cul-well & Pollard, all of El Paso, for appellees.
   PELPHREY, C. J.

This is an appeal from an order overruling a motion to dissolve a temporary injunction. The suit is by Spears & Co., a corporation, El Paso Cotton Industries, Inc., a corporation, hereinafter called cotton industries, Fred Deerman, M. A. Cox, W. A. Thomasson, and Tom Locke, against Hudspeth county conservation and reclamation district No. 1, hereinafter called the district, the directors of said district, who were sued both as directors and as individuals, A. M. Easterday, engineer of said district, who is sued as such and as an individual, and G-. E. Spinnler. The suit was filed March 30,1931.

The petition is lengthy. A summary of its material allegations is as follows:

The district is incorporated under the laws of Texas, among other things, organized to operate an irrigation and drainage district in the Rio Grande Valley in Hudspeth county, and has heretofore issued interest-bearing bonds in the sum of $700,000. Spears & Co. own and control about 12,000 acres of land within the district, of which about 7,000 acres are capable of irrigation upon the establishment and maintenance of proper drainage and irrigation canals. Of said 7,000 acres about 1,792 acres have not been cleared for irrigation because the drainage system is inadequate -to drain same, but said 1,792 acres are taxed as irrigable lands and compelled to bear their pro rata of the expense of the district amounting to $6 • per acre; that of the remaining 5,200 acres some is not subject to effective cultivation at this time because of inadequate drainage, though said 5,200 acres are charged with the sum of $9 per acre annually; said lands of Spears & Co. constitute 40 per cent, of the land in the district now subject to irrigation, cultivation, and payment of the expenses of the district, including the payment of its bonds and interest. The profitable cultivation of the land depends equally upon an adequate system of irrigation and an adequate system of drainage. February 1, 1930, Spears & Co. leased to Cotton Finance & Trading Corporation all of its irrigable lands in the district, and with the consent of Spears & Co. said Cotton Finance & Trading Corporation transferred all of its rights to the cotton industries which entered into possession and control of said lands. During the months of January and February, 1931, the cotton industries leased to the individual -plaintiffs above named certain of said lands, the amount leased to each of said individuals being stated. The land so leased to said individuals is taxed by the district for water service at the rate of $9 per acre, whether the same can be profitably cultivated or not, and Spears & Co. have paid at that rate in the past. Since the lease to said individuals, tenants of cotton industries, as aforesaid, said cotton industries has advanced to said tenants about $33,022.10, and has obligated itself to advance during the remainder of this crop year about $45,721.59, and it is entirely dependent on the crop to be raised on the land for reimbursement thereof. Said defendants are devoting their time, effort, and labor to cultivating said land for the purpose of raising a crop of cotton thereon to support themselves, those dependent upon them, and to produce the money necessary to repay the cotton industries the rental due Spears & Co., taxes on the land, and expenses of the district, and without the service of water the crop will be practically a total failure. Spears & Co. have heretofore issued bonds in the sum of $350,000, bearing interest, secured by deed of trust upon the land, which bonds are held by large numbers of people, and failure to pay the interest due semiannually on said bonds and to provide the sinking fund will result in the maturity of the debt and loss of the land to Spears & Co., and loss to the bondholders of the money they have invested. The water for irrigation is, in the main, taken from the Rio Grande river, and is furnished to the district under a contract with the United States government which operates the Elephant Butte dam and two irrigation systems in the Rio Grande Valley, to wit, the Elephant Butte irrigation district, operating in New Mexico, and the El Paso county water improvement district No. 1, operating in Texas.

For a long time a serious controversy has existed between Spears & Co., and the defendant district as to the amount which said company should pay to the district for water service. The controversy is due to the fact that, while Spears & Co. own approximately 7,000 acres of irrigable land within the district, as to 1,700 acres there was no service of water and no pretense of service, and as to 1,200 acres there was adequate water service, but no drainage, and without drainage such 1,200 acres could not be profitably cultivated, and as to the remaining 4,000 acres, while cotton could be grown thereon under normal conditions, if there were excessive rains, which sometimes occur, inadequate drainage would result, and in instances did result, in serious diminution of production. As a result of these conditions Spears & Co. at all times contend it should not be required to pay even the $6 per acre for said 1,700 acres not in cultivation because of the inadequacy of the drainage system, and it contended it should not be required to pay $9 per acre on the 1,200 acres upon which there was no adequate drainage, and contended it should not be required to pay the full rate upon said 4,000 acres, where, from time to time, production was diminished by reason of inadequate drainage. In the months of January and February of this year this controversy had reached a stage where Spears & Co. was refusing to pay all of the claim made against it by the district for the year 1930, amounting to approximately $58,400. The charges attempted to be asserted against said lands of Spears & Co. are unjust and discriminatory, and greater than those assessed against the balance of the land in the district. Numerous conferences took place between the representatives of the district and Spears & Co., the directors of the district, representatives of the cotton industries, and its tenants, which led to an agreement between the district, Spears & Co., and the cotton industries, as later set forth. During January, 1931, meetings were repeatedly held between the interested parties and their counsel at which it was repeatedly stated by the officers and directors of the district, and by Spinnler, and other farmers within the district, that the payment of the taxes of a part of the people in the district, if not all of them, depended upon whether or not Spears & Co. would pay its taxes and it would be impossible to pay the interest due on the bonds of the district unless the taxes of Spears & Co. were paid, and further operation of the district would be impossible. The officers and directors of the district and the other persons in interest were notified it would be impossible for Spears & Co. to pay the full amount of taxes due by it unless provision was made for further drainage on its lands so that the same would be made productive, and that Spears & Co. would contest the amount charged against it in view of the fact that 1,700 acres of its land was not being served at all, and could not be served, because of no provision for drainage, and because a large part of the remaining portion of its land could not be made normally productive because of the insufficient drainage.

Spears & Co. made plain to all concerned that it had about $33,000 available, representing all of its portion of its last year’s crop which would pay its taxes and charges if the same were reduced proportionately to the service it had in fact received from the district. Thereupon the cotton industries offered to advance an additional $25,000 if that amount would be used by the district in improving the drainage system on the Spears & Co. lands so that crops could be raised to reimburse it for its advances, and agreed to advance the necessary funds to the then prospective tenants of Spears & Co., the other plaintiffs herein, to enable them to cultivate the land. Spears & Co. was willing to accept the offer of 'the cotton industries if the district would agree on that as a compromise and settlement of the taxes and other charges against Spears & Oo. for 1930, but if the district was unwilling to so compromise in settlement Spears & Oo. would he compelled to default in the payment of its taxes and other charges. After due consideration this offer of compromise was accepted by the district as set forth in the resolution adopted by the board of directors of the district, and plaintiffs were informed by defendants at that time that water would be delivered during the year 1931 on the plaintiffs’ land and tax receipts issued to Spears & Oo. in full payment of the 1930 charges. The aforesaid resolution of the board of directors of the district reads:

“Whereas, it would be to the best interest and advantage of the District to compromise and settle the issue that has arisen in reference to the 1930 taxes and water of Spears & Company’s lands.
“Now Therefore, be it resolved that the District accept the proposition of the interested parties that:
“1. Provided all of the 1930 taxes and water on Spears & Company lands are paid in full on or before February 4th, 1931, in cash except the sum of $25,000.00 for which the Directors agree to accept notes of Spears & Company without interest due and payable as hereinafter stated.
“2. Provided further on or before February 4th, 1931, the El Paso Cotton Industries, Inc., executes and delivers to the District its written agreement to take at face value said notes of Spears & Company as the cash may be needed therefrom to pay for work done and materials furnished in connection with the drainage system herein next authorized.
“3. Immediately upon the performance of said promises the District authorized and instructs its engineer to perfect plans and to purchase for District to be used on drainage project herein contemplated a dragline machine, the first payment on which of at least 20% of the purchase price shall be advanced by El Paso Cotton Industries, Inc., under 4th sub-division hereof. Further, said engineer is ordered to enter upon the construction under his supervision and control of a drainage project on the Spears & Company lands at a cost of nine cents per cubic yard for all excavation work done by District dragline machine and all structures at cost but however, the total expenditure from funds of the District therefor shall not exceed $24,999.99 excluding the first payment on dragline machine to be purchased. Further, said drainage project shall be completed as expeditiously as possible.
“4. The second proviso hereof contemplates that the written agreement therein mentioned will contain proper stipulations assuring the District that when said first payment on drag-line machine is needed and as materials are furnished and work .done on the drainage project as heretofore set out, the El Paso Cotton Industries, Inc., will take up with cash bimonthly on demand and to amounts corresponding to the material furnished and work done on the drainage project, the Spears & Company notes and up to the total amount of $25,000.00.’’

It is alleged that agreements were entered into between Spears & Co. and the cotton industries carrying out the terms of the agreement and contracts made between the cotton industries and the individual plaintiffs providing for advancements by the cotton industries. But for said contract of compromise Spears & Co. would not have paid said sum of $33,000 to the district,. nor the additional sum of $3,000 by the cotton industries, and the cotton industries would not have been willing to advance money to other farmers within the district, which contracts were made by the cotton industries With other farmers in the district, and, if the compromise be not carried out, losses amounting to approximately $1,000,000 will be sustained by the cotton industries. The district has no means out of which judgment for the losses could be satisfied,- and cotton industries will sustain irreparable injury. The $33,000 was paid to the district and used to pay interest on its bonds and other obligations due by the district. A preliminary payment of $3,000 was made by cotton industries to meet the first expense of putting in more effective drainage on the Spears & Go. lands.

The district, its officers and directors, have refused to furnish water for the year 1931 for the lands of Spears & Co., and avow their purpose to continue to refuse water to said lands, though said district has sufficient water for such purpose and is furnishing water to the other farmers in the district; that there will be another crop failure on the lands if such water be not furnished.

The petition sets forth a repudiation of the contract of compromise as evidenced by a resolution of the board of directors of the district, and that the district has not offered to return what it has received under the compromise contract. The resolution last referred to reads:

“Be it resolved by the Hudspeth County Conservation & Reclamation District No. 1, 'that:

“Whereas: Contrary to its understanding of the statements made to it by the Superintendent of the Reclamation Fund and the Manager of the El Paso Water Improvement District No. 1 that it would be allowed to run a year in arrears without denial of water, it was notified on February 18th, 1931, that water service for 1931 would be withheld until 1930 water bill has been paid in full, or measures taken to restore and pay all amounts contemplated for diversion to other uses, with assurances of' regularity of collection as to assessments and payment of the balance then remaining due on bill; and,

“Whereas: To that end it is demanded that the District furnish the Superintendent of Reclamation fund with a statement of all those tax payors that have paid for water, and a copy of its delinquent tax roll, and given definite assurances as to the method and manner to be pursued in the collection of assessments:
“Now therefore: It is ordered that the tax receipts heretofore issued on the Spears & Company lands be, and the same are hereby, cancelled insofar as they receipt for the credit of $25,000.00 which was to be made on said tax and water charges for drainage purposes, and that said drainage program as contained in resolution providing therefor and heretofore passed by the District, be, £tnd the same is hereby nullified.
“Further be it resolved that the tax assessor and collector of the District immediately submit a copy of the delinquent tax roll to the Superintendent of the Reclamation Fund and that said delinquent tax roll include the Spears & Company lands to the amount of $25,000.00.
“Be it further resolved that in accordance with requirements of the Superintendent of the Reclamation Fund, water be refused by the District until all maintenance and operation and water charges and one-third of the interest and sinking fund has been paid in cash to the District and said water charges paid over in full in cash to the Superintendent of the Reclamation Fund.
“Be it further resolved that the attorney of the District, in ed-operation with attorneys representing the Reclamation Department, if they see fit to intervene, proceed, as soon as the law allows, to file suit against all delinquents including Spears & Company lands, to collect any unpaid water charges and taxes.”

Upon ex parte application a temporary injunction was issued substantially as follows:

1. The district, its officers and directors above named, were enjoined to refrain from stopping, or in any way interfering with, the use of water necessary for the lands of Spears & Co., except upon the same terms and conditions applied to other persons within the district and obtaining’water for irrigation purposes therefrom during the crop year of 1931.

2. Said district, its officers and directors above named, were enjoined and restrained from interfering with the use of the ditches and appurtenances belonging to said district or to Spears & Co. necessary and eon-venient to the carrying of water over all the irrigable lands of Spears & Co. within the district.

3. The district, its officers and directors above named, were enjoined from longer detaining the checks and other appliances necessary or useful in the distribution of- water upon the lands of said Spears & Co.

4. The district, its officers and directors above named, were enjoined from further refraining from, or delaying in the work of, preparing the lands of Spears & Co. for drainage as provided for in that certain contract ’entered into, between the district and the officers and directors of said district on February 2, 1931, as shown by a copy of the resolution of.the board of directors of said district adopted February 2, 1931, a copy of which was attached to the injunctive order and made a part thereof.

5. The district, its officers and directors above named, were enjoined and restrained from refraining, during the remainder of the crop growing season of 1931, withholding water necessary to raise, the crops upon the lands of Spears & Co. during the crop year of 1931, at the same price and upon the samé conditions under which water is supplied to other persons in the district.

6. The district, its officers and directors above named, were enjoined to refrain from the use of any ditches upon the lands of-Spears & Co. for any purpose whatsoever until and during such time as they are supplying water through said ditches to Spears & Co. at the same price and upon the same conditions they are supplying to all other persons in the district.

7. The district, its officers and directors, are enjoined and restrained from in any way failing to, or refraining from, or delaying in carrying out the agreement between Spears & Co., cotton industries, and the district on February 2, 1931, as set forth in the resolution of the district of that date, a copy of which was attached to the injunctive order marked Exhibit B, during the crop year of 1931, and they are enjoined and required to supply to the plaintiffs water at the same rates at all reasonable and proper times and proper amounts as is served to all other persons in the district.

The injunction was to issue upon the filing of a bond in the sum of $20,000. The bond was filed and approved and the temporary injunction issued.

The answer and motion of the defendants is quite lengthy, and we shall quote here only those portions which we consider material to ai proper disposition of this appeal.

The answer, aside from general and special exceptions and a general denial, contained the following:

“11. Further answering herein, without waiving said exceptions and the effect of said general denial, these defendants say that they are the officers and Directors of the Hudspeth County Conservation and Reclamation District No. 1 and that as to all matters alleged by plaintiffs in their original petition, they were acting as such, as plaintiffs well knew, and plaintiffs dealt at all times alleged with them as such, and that the Hudspeth County Conservation and Reclamation District No. 1 was vested with all the powers given it under the law and these defendants deny that they at any time acted in their individual capacities, and deny that it was their duty under the law to furnish water for the 1931 season and to furnish ditches and drainage to the lands of Spears & Company ; and, further deny that they had discriminated in any way as to providing inadequate drainage of the Spears & Company lands.
“12. These defendants further deny that they have any knowledge of any serious controversy that has existed between the District and Spears & Company over a long period of timé and say, on the contrary, that all taxes and: assessments have heretofore been paid in full in cash on the Spears & Company lands up until the taxes and assessments for the year. 1930, and during the month of January, 1931, after said taxes were due and payable and before same became delinquent the defendants notified their attorney that it appeared to them from information they had received, that there was a serious possibility that Spears & Company land taxes would not be paid and that the proceeds from the cotton raised on the Spears & Company lands during the year 1930- would be diverted to the payment of other debts of Spears & Company, and directed said attorney to proceed to collect said taxes out of said crop, and in accordance therewith the said attorney, O. R. Armstrong, addressed and mailed a letter to Mr. Frank M. Murchison in which it was stated that the District was addressing him as Trustee for the J. B. Spears part of the crop, and that the District was informed that he was holding the cotton receipts of the J. B. Spears part of the crop, and that the District had a lien, prior and superior to all other liens, to secure the payment of the taxes for the year 1930; and, also, addressed and mailed a letter to J. B. Spears & Company, suggesting that he instruct Mr. Murchison to turn over said' cotton receipts to Defendant. The said attorney of the District received a reply from Mr. William H. Burges stating that the First National Bank was the Trustee and that he was not sufficiently advised as to any claim the District might have on the cotton to be able to say whether he would turn same over to the District or not. From this.it developed that the Spears & Company lands were indebted to Hudspeth County Conservation & Reclamation District No. 1 in the amounts shown by the tax receipts alleged by plaintiffs, as taxes for the year 1930, and negotiations of settlement thereon proceeded from day to day and numerous conferences were held by the plaintiffs and the defendants and their representatives and attorneys, and defendants told plaintiffs that defendants were willing to do anything that they could legally do, and suggested that the attorney of Spears & Company prepare a resolution setting forth definitely what it desired to be done, and such resolution was submitted to defendants’, attorney and he advised plaintiffs’ attorney that he did not believe such a resolution could be legally passed, but defendant Directors accepted the opinion of attorney William H. Burges, and after said resolution was modified and re-drafted into the form set out in Exhibit A of plaintiffs’ petition, same was duly passed by the defendant Directors, acting as such; and in pursuance thereof the plaintiff Spears & Company made, executed and delivered to defendant Hudspeth County Conservation & Reclamation District No. 1, the $25,000.00 in notes therein called for, and paid over the difference in cash in the amount of taxes to the Hudspeth County Conservation & Reclamation District No. 1 directing that the whole amount of the interest and sinking fund assessment as to the Spears & Company lands should be paid out of said cash payment, and directing that the electric bill for operating the drainage pumps should also be paid out of said cash, which was done by the defendant District. * * *

Appellants then allege the cutting off of the water by the reclamation department and the receipt of notice from that department that water would not be furnished unless the 1930 bill was paid in full or steps taken to restore all sums contemplated for diversion to other uses; and that they had been informed by certain landholders in the district of their intention to enjoin the expending of the money on the Spears & Co. land.

Then follows this allegation: “After numerous conferences with said land owner's and the Reclamation Department, it appeared that it was to the best interest of the District to rescind said Resolution and same was accordingly rescinded, being Resolution set out in Exhibit O, which was passed to meet the requirements of the Reclamation Department and obtain water for those tax pay-ors in the District that had paid all their 1930 taxes in cash and were willing to sign an application for water, in accordance with law, for the year 1931.”

Appellants then tendered the notes and the dragline machine purchased with the proceeds of the $3,000 note.

In approaching a discussion of the trial court’s action in this case, we should hear in mind the contentions of the parties and also that rule of law which prevents an appellate court from interfering with the exercise of discretion by the trial court, where a reasonable showing has been made in support of an application for injunction. 14 R. C. L. pp. 313, 314; Parrot Silver, etc., Co. v. Heinze, 25 Mont. 139, 04 P. 326; 53 L. R. A. 491, 87 Am. St. Rep. 386.

Appellees here allege the execution of a compromise agreement, .and prayed that the teyms thereof be carried out, alleging that they had no adequate remedy at law, and that they would suffer irreparable injury if appellants were not made to perform.

Appellants, on the other hand, in a very evasive and indefinite manner admit the execution of such agreement and attempt to excuse their failure to perform by an allegation that they had been forced to do so in order to meet the requirements of the reclamation department and to avoid some threatened injunction suits by other landowners in the district.

Appellants in their brief assert that the suit is set down for hearing in September, and that to permit the injunction to remain in force would have the effect of giving ap-pellees everything they are asking for in the suit and forclose all issues against appellants before they have had an opportunity to present certain defenses which are enumerated in the brief.

This contention might be sound were it not for the fact that none of the reasons argued in the brief are incorporated in the answer filed here.

The trial court had before him an application to force appellants to carry out the terms of a certain agreement, which appellants admit was executed and for the failure to carry out which they offer no legal excuse. Confronted with such a situation, how can it be said that he abused his discretion, when it was shown that thousands of dollars had been spent upon the faith of such agreement, and that it would all be lost if the relief was not granted.

We have studied the record carefully and fail to find such an abuse of discretion, under the record as made as would justify a reversal.

Appellants also contend that the injunction should have been dissolved, because there was no statement made as provided in article 7751, R. S., 1925.

While it is true that no statement was made, yet it appears from the petition that appellants at the time of the compromise agreement agreed to furnish-appellees water during the year 1931. Under the holding in Cameron County Water Imp. Dist. No. 1 v. Daniels (Tex. Civ. App.) 269 S. W. 1066, an application is not required where the officers of the District expressly assume the obligation of furnishing water.

We have given full consideration to the several propositions advanced by appellants and find them without merit under the facts here.

Being of the opinion that there was no abuse of discretion by the trial court which would justify a reversal by this court, the judgment of the trial court is affirmed.


author: FUNDERBURK, X

text:
    ARKANSAS FUEL OIL CO. v. CONNELLEE et al.
    No. 805.
    Court of Civil Appeals of Texas. Eastland.
    May 15, 1931.

      Conner & McRae, of Eastland, for plaintiff in error.
    Chastain & Judkins, of Eastland, for defendants in error.
   FUNDERBURK, X

Bula B. Connellee, joined pro forma by her husband, C. U. Connellee, brought this suit against Arkansas Fuel Oil Company to recover damages for injuries to a 25-acre tract of land near the city of Eastland.' It was alleged that the land had been leased by the plaintiffs to the defendant to be used as a site for the erection and maintenance of a gasoline manufacturing plant, the term of the lease to continue for as long a time as defendants should use same for said purpose, and no longer. The abandonment of the lease was alleged, and plaintiffs’ ownership of the land, and further “that it was the duty' of the defendants, upon the termination of the said lease, to surrender the same back to plaintiff ’ in as good condition as when same was received and accepted by the said defendant, and without injury to the freehold estate. * ⅜ * That the defendant has failed and refused to place same in the same condition upon their surrender of said lease, but on the contrary has negligently (italics ours) permitted the premises to be so dug up in holes and so covered with iron pipes, c'ement blocks, foundations and walks, and so covered with old iron, wire ropes and abandoned refuse, and so covered with oil and water as to render said land worthless for any purpose.”

After alleging somewhat more in detail the alleged injuries to the land, it was averred that it would require the expenditure of $5,-000 in order to restore the land to the same condition it was in when taken by the defendant. It was also alleged that the difference in the market value of the land “in the condition same was in when said lease was executed, and its condition when the lease terminated, is the sum of $5,000.00.” The defendant answered by general demurrer, general denial, and special pleas not necessary to be set out further than that the lease, by its express provisions, gave defendant the right, upon termination of the lease, to remove the buildings and all other improvements and property placed by it upon the land. In a supplemental petition plaintiffs alleged, among other things, that the defendant “has failed and refused to clean up the said premises and to restore same to the condition in which they were before the erection of the said refinery, to plaintiffs’ damage, as set out in her original petition.” The case was submitted to the jury upon only one special issue, which, with the jury’s answer thereto, was as follows: “Special Issue No. 1: What do you find from the evidence in this case to have been the difference, if any, in the market value of the surface of the 25 acres of land described in plaintiffs’ petition immediately before and immediately after the removal by the defendant of the buildings, machinery and refinery equipment shown by the evidence-to have been removed from the said premises in about July, 1925? If worth less than after the removal, then answer in dollars and cents. Answer $500.00.”

In connection with the submission of the issue, the court instructed the jury not to consider the value of any improvements in the way of buildings, machinery, and refinery equipment placed on the premises by the defendant, or the Arkansas Natural Gas Company. The court further instructed the jury as follows: “You are instructed that the burden of proof is upon the plaintiff to establish by' a preponderance of the evidence the material allegations in their petition.”

At the request of the defendant the court further instructed the jury not to consider for any purpose any testimony with reference to the cost of restoring the land mentioned in the plaintiffs’ petition to the condition in which it was before the gasoline plant and other improvements placed thereon by the defendant, used or incident to the operation of said plant. The court having rendered judgment for the plaintiffs, in accordance with the verdict of the jury, the defendant has prosecuted writ of error to this court. The parties will be from now on designated as they were in the trial court, plaintiffs and defendant.

Defendant submits a number of propositions under an. assignment that the court erred in refusing its request for a peremptory instruction. It is insisted, among other things, that defendant, having the lawful right under its lease of the premises, to remove the property and improvements thereon, it was not liable for the exercise of such rights in the absence of a showing of negligence in the manner and way of removing such property and equipment, and that the evidence showed no negligence. We have concluded that this contention must be sustained. Plaintiffs, in their petition, seem to have attempted to allege a cause of action based upon the assumption that the law, independently of any contract or covenant, imposed upon the defendant the duty to restore the land, upon its abandonment, to the same condition as before the use thereof for the purposes of the loase: If such duty could exist, as one imposed by law, we are quite certain that no facts were alleged to show the existence of such a duty. We have been favored with no brief by the plaintiffs, but in our independent investigation we find no support in the authorities for the view that the law itself imposes the duty of restoration in a case like this. The defendant, by the terms of the lease contract, secured the right to erect and maintain a casinghead gasoline plant upon the land and to “erect such buildings and other structures and improvements thereon and place such machinery and,equipment thereon as it desires, and to use such land in any way whatsoever for the purpose of treating casinghead gas and manufacturing gasoline therefrom,” together with rights of way and right to lay pipe lines, etc. Also, by the terms of the lease contract the defendant had the right at the termination of the lease, and for a reasonable time thereafter “to remove all buildings, structures, equipment and other things whatsoever which it has placed on said land as a part of or to be used in connection with such casinghead gas plant.” The lease cannot, we think, be construed as imposing any contract obligation upon the defendant to remove such property, but only gave it the right and option to do so. “The lessee is not required to remove improvements made by him with the consent of the landlord, or under authority of the lease in the absence of express requirement thereof.” 36 C. J. 199 ; Marks v. Chapman, 135 Iowa, 320,112 N. W. 817; Cawley v. Jean, 218 Mass. 263,105 N. E. 1007; Perry v. Iron Works, 207 Mass. 501, 93 N. E. 798.

It is easily conceivable that the structures placed upon the land under the express right given by the contract might well, after abandonment of their use, just as seriously impair the value of the land as if they had been removed, but leaving the land in the condition actually claimed to exist. If plaintiffs had no right to enforce the removal of all the buildings or other structures, then they had no right to complain because of only a partial removal performed under a contract right of the defendant to do so, unless the defendant was guilty of some negligence in accomplishing such removal.

Plaintiffs alleged that the defendant negligently permitted the conditions complained of, and we are not prepared to say that, in the absence of special exception, the pleading was insufficient to let in proof of such negligence as would show a liability on the part of the defendant. The rule of liability is stated in O. J. as follows: “Independently of express covenant, the law imposes upon the lessee an obligation to treat the premises so that no susbtantial injury be done thereto during his occupancy, and that the property be restored to the landlord at the end of the term unimpaired by the negligence of the tenant, but he is not liable for damages ensuing from a reasonable use.” 36 O. J. 196. That the liability, if any, is one predicated upon the pleading and proof of negligence, is recognized by a number of decisions in our state. Gulf Pipe Line Co. v. Watson (Tex. Civ. App.) 8 S.W.(2d) 957; Magnolia Petroleum Co. v. Aiken (Tex. Civ. App.) 289 S. W. 152; H. & E. T. Ry. Oo. v. Adams, 58 Tex. 476; Mexican Nat. Constr. Co. v. Meddlegge, 75 Tex. 634, 13 S. W. 257.

Under these authorities we conclude that any damages resulting to the plaintiffs from the mere omission to remove all the structures placed upon said land, or for the removal of any of such structures, unaccompanied by negligence in the way and manner of doing so, would not be actionable. The statement of facts, as we read it, is devoid of any evidence whatever of such negligence, which forces us to the conclusion that the trial court should have, as requested, given a peremtory instruction for the defendant.

We will notice but one other assignment. Due exception was taken to the instruction given the jury that “the burden of proof is upon the plaintiff to establish by a preponderance of the evidence the material allegations in their petition.” Instructions in substance the same have been held to be error on two or more grounds. It is a general charge, improper to be given in a case submitted ' upon special issues. It improperly refers the jury to plaintiffs’ petition to ascertain the allegations as to which they are directed to determine whether same be supported by a preponderance of the evidence. W. U. Tel. Co. v. Rutledge (Tex. Com. App.) 15 S.W.(2d) 210; M., K. & T. Ry. Oo. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; Mor ris v. Davis (Tex. Oiv. App.) 3 S.W.(2d) 109; Davis v. Morris (Tex. Com. App.) 13 S.W.(2d) 63; Walsh v. Schingler (Tex. Civ. App.) 14 S.W.(2d) 872; T. & P. Ry. Oo. v. Bufkin (Tex. Civ. App.) 19 S.W.(2d) 343.

Apparently the evidence was fully developed upon the trial, and we are therefore of opinion that the judgment of the trial court should be reversed and judgment rendered for the defendant, which is accordingly so ordered.