text:
    SOUTHERN UNDERWRITERS v. COOPER.
    No. 3625.
    Court of Civil Appeals of Texas. Beaumont.
    March 14, 1940.
    Rehearing Denied March 27, 1940.

      Henry D. Akin and Will R. Saunders, both of Dallas, for plaintiff in error.
    H. A. Coe, of Kountze, and Glenn Faver, of Jasper, for defendant in error.
   WALKER, Chief Justice.

The appeal is by writ of error, but the parties will be referred to as appellant and appellee. This is a compensation case. Appellant, The Southern Underwriters, was the compensation insurance carrier; appel-lee, Allen Cooper, the employee; and the Estate of D. Hollingsworth, deceased, and J. C. Welch, the alleged employer. Appel-lee, on or about September 22, 1937, at the time of his injury, was engaged in peeling poles. On the verdict of the jury, finding the essential facts to support compensation and a lump sum settlement, judgment was entered on the 24th day of May, 1939, in appellee’s favor against appellant for compensation fo'r 401 weeks for total, permanent disability from September 22, 1937, at the rate of $8.62 per week, to be paid in the lump sum of $2,792.39, with accrued interest. Appellant has briefed the following points of error against the judgment.

Appellee filed his claim with the Industrial Accident Board as an employee of the Estate of D. Hollingsworth, deceased, and J. C. Welch; the award of the Board named appellee as an employee of the Estate of D. Hollingsworth, deceased, and J. C. Welch; in his petition on appeal from the final award of the Board, appel-lee alleged that he was an employee of the Estate of D. Hollingsworth, deceased, and J. C. Welch. D. Hollingsworth died about June, 1937, and after his death his heirs continued the partnership business with J. C. Welch under the partnership name of Estate of D. Hollingsworth, deceased, and J. C. Welch. Mrs. D. Hollingsworth bought the interest of all the other heirs and continued the partnership arrangement with J. C. Welch as it had been operated subsequent to the death of D. Hollings-worth. There was no administration on the Estate of D. Hollingsworth, and the heirs after his death, and Mrs. Hollingsworth after she had purchased the interest of the other heirs, simply continued the partnership arrangement as a method of doing business. The policy in issue was issued by appellant to the partnership, and there is no suggestion of fraud or deceit, or that appellant was in any way mislead as to the constituent members of the partnership. On the facts as summarized, appellant contends that it was entitled to an instructed verdict on the theory that appellee sued as an employee of the Estate of D. Hollings-worth, deceased, and J. C. Welch, when in fact he was an employee simply of Mrs. D. Hollingsworth, personally, and J. C. Welch. Appellant invokes the legal proposition announced by this court in White v. United States Fidelity & Guaranty Co., 45 S.W.2d 756, that one cannot obtain a compensation award as an employee of one person and sue as an employee of another person. Appellant cites the following additional authorities: Griffith v. Associated Employers’ Reciprocal, Tex.Civ.App., 10 S.W.2d 129; New Amsterdam Casualty Co. v. Harrington, Tex.Com.App., 290 S.W. 726; Southern Underwriters v. Beardmore, Tex.Civ.App., 95 S.W.2d 207; Traders & Gen. Ins. Co. v. Emmert, Tex.Civ.App., 76 S.W.2d 208. The general proposition of law contended for by appellant is ■conceded, but the facts do not invoke the proposition. Appellee filed his claim and secured his award as an employee of the same partnership. This point is made clear by the following testimony given by appel-lee :

“Q. Allen, where were you working on or about September 22, 1937? A. Working for the Estate of Mr. D. Hollings-worth, and J. C. Welch.
“Q. You were working for the estate of Mr. D. Hollingsworth and J. C. Welch? A. Yes, sir.
“Q. Now Mr. D. Hollingsworth had died; had he not? A. Yes, sir.
“Q. And they continued to operate this pole and piling business under the name of the estate of D. Hollingsworth and J. C. Welch? A. Yes, sir.
“Q. Now, how long had you worked for those contractors? A. About 14 years.
“Q. You had been working for them about 14 years? A. Yes, sir.
“Q. During that period of time what kind of work had you been engaged in?
“Mr. Benbow: We object to this line of testimony. It calls for a conclusion of the witness. He has shown no fact in the nature of employment, or anything else. It is purely a conclusion.
“The Court: Overruled.
“Mr. Benbow: Note our exception.
“Q. (By Mr. Faver) During those 14 years you worked for those contractors what was the nature of your work? A. It was cutting out poles and piling.”

It is immaterial that no administration was pending on the Estate of D. Hollings-worth. The heirs, following his death, and his widow, after her purchase of the interest of the heirs, had the legal right to conduct their partnership business as it in fact was conducted.

The jury gave the answer “Permanent” to question No. 9:

“Issue No. 9: For what period of time, if any, of such total incapacity, if any, do you find from a preponderance of the evidence was sustained by Allen Cooper from and after the beginning date, if any? Answer 'Permanent’ or answer by stating the number of weeks, if any, or answer ‘None’.”

We overrule appellant’s exception to issue No. 9: “because same amounted to an instruction that the jury need not answer special issue No. 9 in the event they found the total incapacity of the plaintiff was permanent, and was therefore a conditional submission of such issue.” Issue No. 9 was not submitted conditionally.

In connection with its exception to special issue No. 9, appellant briefs the point that the court erred in refusing to submit its requested issue “in reference to whether the total incapacity of the plaintiff is temporary.” This exception is overruled. The issue of “partial incapacity” was submitted by question No. 10, and answered in the negative:

“Issue No. 10: Do you find from a preponderance of the evidence that said injury, if any, sustained by Allen Cooper resulted in partial incapacity to work ? Answer 'Yes’ or ‘No’.”

Appellant excepted to special issue No. 10 on the ground that it “was clearly subject to the objection timely interposed thereto by the defendant that same wrongfully placed the burden of proof upon the defendant to establish its defense that such incapacity was partial as distinguished from total.” This exception is overruled. As an alternative plea, appellee asked compensation for partial incapacity. Issue No. 10 simply submitted to the jury one of the issues of recovery plead by the appellee, and which had support in the evidence.

As an element of its exception to' issue No. 10, appellant asked the court to submit the following issues on the theory that they constituted a defense to appellant’s claim of total, permanent incapacity:

“(a) Do you find from a preponderance of the evidence that plaintiff’s partial incapacity was not temporary ?
“(b) Do you find from a preponderance of the evidence that plaintiff’s total incapacity, if any, is not and will not be only temporary ?”

We know of no authority requiring the trial court to submit the issue of "partial incapacity” as an element of appellee’s recovery and then to submit the same issue in a negative form as an element of appellant’s defense. As we understand the authorities, our Supreme Court affirmatively holds against appellant’s contention. Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314. See, also, Texas Employers’ Ins. Ass’n v. White, Tex.Civ.App., 32 S.W.2d 955; Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386. The following additional issues, submitted by the court in its charge, show that appellant’s defense of “partial incapacity” was fully submitted to the jury:

“Issue No. 11: When do you find, from a preponderance of the evidence said partial incapacity, if any you have found, begins? Answer by stating the date, if any, or otherwise answer ‘None’. Answer: None.
“Issue No. 12: Do you find from a preponderance of the evidence that such partial incapacity for work, if any, you have found is permanent? Answer, ‘No partial incapacity suffered,’ or answer ‘Yes’ or ‘No’. Answer: ‘No partial incapacity suffered.’
“Issue No. 13: For what period of time, if any, of such partial incapacity, if any, do you find from a preponderance of the evidence was sustained by Allen Cooper from and after the beginning date? Answer : ‘Permanent’; or answer by stating the number of weeks, if any; or answer ‘None’. Answer: None.”

Appellee duly excepted to the refusal of the court to submit the following requested issue: “Do you find from a preponderance of the evidence that by the-agreement or arrangement under which plaintiff was working on the occasion when injured, if any, he had not agreed to do the-specific work of peeling logs whereby he should have the right to use his own tools, and methods without control as to the details of how the work should be done except as to the final result?”

This issue was not raised by the evidence. The employer furnished appellee and the other log peelers transportation to and from their work, and directed them where to work -and how the work should be done; after appellee was injured his foreman sent him to appellant’s doctors for treatment and he was given treatment from day to day for more than a month at appellant’s expense and at the expense of' his employer. The fact that the log peelers furnished their own tools, kept them in repair, and were paid by the log, or by the lineal foot, did not raise the issue of' independent contractor. Appellant’s exception is also overruled for the very issue contended for by him was, in substance, submitted to the jury by the following question, answered as indicated:

“Issue No. 22: Do you find from a preponderance of the evidence that under the agreement or arrangement under which plaintiff was working on the occasion when, injured, if any, that J. C. Welch and Estate of D. Hollingsworth, or their agents, had the right to exercise control over the details of the work plaintiff was doing at the time and place in question? Answer: ‘Yes’or‘No’. Answer: Yes.”

Appellant’s requested issue was simply a request for a second submission of the issue submitted by question No. 22.

The evidence raised the issue that appellee received a prior injury in 1927. Appellant contended that appellee’s incapacity was due in part to the prior injury; it also contended that his incapacity was due to disease. On these theories the court submitted to the jury the following issues, answered as indicated:

“Issue No. 19: Do you find from a preponderance of the evidence that Allen Cooper’s incapacity, if any you have found, is not due solely to disease? Answer: ■ ‘It is not due solely to disease’; or answer ‘It is due solely to disease.’ Answer: It is not due solely to disease.”
“Issue No. 21: Do you find- from a . preponderance of the evidence that plaintiff’s incapacities, if any, were caused solely by an injury sustained by him on or about 1927? Answer: ‘It was not caused solely by an injury sustained on or about 1927’; or, answer ‘It was caused solely by an injury sustained on or about 1927.’ Answer: It was not caused solely by an injury sustained on or about 1927.”

In view of the submission of issues 19 and 21, the court did not err in refusing to submit the following issues requested by appellant:

“(a) Do you find from a preponderance of the evidence plaintiff’s incapacities were not greater due solely to his injury previous to the occasion in question ?
“(b) Do you fincl from a preponderance of the evidence that plaintiff’s incapacities will not be greater due solely to his injury previous to the occasion in question ?
“(c) Do you find from a’ preponderance of the evidence that plaintiff’s incapacities are not greater due solely to his injury previous to the occasion in question?
“(d) Do you find from a preponderance of the evidence that the plaintiff’s incapa-cities will not be greater due solely to his injury previous to the occasion in question?”

These issues were merely evidentiary, and had they been submitted and answered in support of appellant’s theory, they would not have controlled the judgment. The requested issues did not carry to the jury the issue of the amount of compensation appellee would have been entitled to “had there been no prior injury,” as defined by the court in Traders & Gen. Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103. But it is our conclusion that the evidence did not raise the issues thus requested by appellant.

Issue No. 18 was submitted to the jury, and answered as indicated:

“Issue No. 18: From a preponderance of the evidence, what sum of money, if any, do you find would be an average daily wage for Allen Cooper, under all the facts and circumstances obtaining in this case, which would be just and fair to both parties? Answer: $2.50. (Two dollars and fifty cents).”

Under the evidence, neither appellee nor any one else had worked in appellee’s employment, or a similar employment, as much as 300 days in the same place, or in any other place in that territory, for the year prior to appellee’s injury. Special issue No. 18 was not subject to the following exception reserved by appellant: “Because said phrase ‘just and fair to both parties’ is too general, does not confine the jury to the consideration of solely the amount made from log peeling by the plaintiff for the year previous to the accident but permits the jury to speculate upon money earned or income from other sources and wages earned at different- periods than the preceding year and thereby deprives the defendant of the submission and answer to an issue corrected in accordance with this objection, to the prejudice of the defendant.”

Special issue No. 1, submitted to the jury, and answered as indicated, was as follows:

“Issue No. 1: Do you find from a preponderance of the evidence that Allen Cooper sustained an injury on or about September 22, 1937? Answer ‘Yes’ or ‘No’. Answer: Yes.”

This issue was not subject to the exceptions brought forward by appellant’s 9th proposition: “that by submitting the question of injury generally, said issue does not confine the jury to the injuries pleaded and raised by the evidence, but permits the jury to speculate on injuries not alleged and raised by the evidence.” In the first place, there is nothing in the evidence to support the exception; that is to say, appellant makes no statement under this proposition showing or suggesting that it was injured by the form of the issue. In the second place, this court has heretofore ruled against appellant’s theory of this question. On that point appellant says: “We are not unmindful of the fact that this Honorable Court has not seen fit to follow the holdings in the above cited cases but has branched off on an independent holding to the effect that such general submission of the question of injuries is not reversible error in the cases of Federal Underwriters Exchange v. Carroll, Tex.Civ.App., 130 S.W.2d 1101; Federal Underwriters Exchange v. Rigsby, Tex.Civ. App., 130 S.W.2d 1105, and Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409. We respectfully request this Honorable Court to follow the line of cases hereinabove first cited and establish uniformity in the laws of this state, and reverse and remand this cause oh account of the general submission of the issue pertaining to whether the plaintiff sustained an injury.”

Replying to appellant’s argument on this point, we simply say that we are thoroughly satisfied with the soundness of our prior decisions on this point.

This appeal presents a compensation case in its simplest form, but the transcript before us contains 306 pages, taxed at a cost of $183.17. The exceptions to the court’s charge consume pages 50-11'S, inclusive, of the transcript. From that interminable mass of exceptions, appellant has briefed only the few points discussed in the opinion. Yet there is nothing in all the exceptions, which the trial court was required to examine, to suggest to him that appellant considered only thesa points as presenting error against the charge. In this connection, we cite Federal Underwriters Exchange v. Walker et al., 134 S.W.2d 388, and Federal Underwriters Exchange v. J. M. Simpson, 137 S.W.2d 132, both opinions by the Austin Court of Civil Appeals, the second opinion handed down the 21st day of February, this year. We are citing these facts as a challenge to the Bench and Bar of Texas to lend all possible support to our Supreme Court in its efforts to rewrite, the rules of procedure in civil cases in this state.

Finding no error, the judgment of the lower court is in all things affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    CITY OF SAN ANTONIO et al. v. McKENZIE CONST. CO
    No. 9510.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1940.
    Rehearings Denied April 3, 1940.

      T. D. Cobbs, Jr., and Brooks, Napier, Brown & Matthews, all of San Antonio, Boone, Henderson, Boone & Davis and B. D. Tarlton, all of Corpus Christi, and Henry B. Dielmann and J. I. Kercheville, both of San Antonio, for appellants.
    Dodson & Ezell, of San Antonio, and Kleberg, Eckhardt & Lowe, M. G. Eck-hardt, and H. R. Sutherland, all of Corpus Christi, for appellee.
   MURRAY, Justice.

This suit was brought by McKenzie Construction Company, a corporation engaged in the construction business, against the City of San Antonio and its Mayor and Commissioners, on a contract for the construction of a flood detention dam across Olmos Creek.

There have been two trials of this case in the trial court. The first trial ended in a judgment for the City of San Antonio, its mayor and other officers, against the McKenzie Construction Company, based upon an instructed verdict by the court. McKenzie Construction Company prosecuted an appeal from that judgment to this Court. This Court reversed the judgment and remanded the cause. McKenzie Construction Company v. City of San Antonio et al., Tex.Civ.App., 50 S.W.2d 349, writ of error refused.

The second trial resulted in a judgment for McKenzie Construction Company against the City of San Antonio et al. in the sum of $82,157.08, with interest at the rate of eight per cent per annum from February 24, 1927, until paid. The judgment also authorized the issuance of a mandamus. The City of San Antonio and its officers prosecuted an appeal from that judgment, and this Court, sustaining the points presented by Division III of appellants’ brief, reversed the judgment of the trial court and rendered judgment that ap-pellee, McKenzie Construction Company, take nothing. City of San Antonio et al. v. McKenzie Construction Company, Tex.Civ.App., 88 S.W.2d 622. A writ of error was granted by the Supreme Court, and upon a hearing in that Court the points raised by Division III of appellants’ brief were overruled and our judgment reversed and the cause remanded to this Court for consideration of other assignments of error presented in appellants’ brief. McKenzie Construction Company v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617.

We will not here make a full statement of the nature of the suit, but, in the interest of brevity, refer to the above mentioned opinions for such statement.

We now come to a consideration of the other points presented by appellants’ brief, not contained in Division III.

The first division of appellants’ brief relates' to alleged jury misconduct. The testimony taken upon appellants’ motion for a new trial conclusively shows that the verdict of the jury was rendered under the following circumstances:

Shortly after the trial began one of the jurors wrote the following letter to B. D. Tarlton, Esquire, of counsel for the City of San Antonio, to-wit:

“Corpus Christi, Tex.
' “11/15/33.
“Mr. B. D. Tarlton,
“903 Nixon Bidg.,
“Corpus Christi, Tex.
“Dear Sir:
“I wanted to talk to you several times but as a juror on this McKenzie case I did not do it, to keep away any reflection that it could cause.
“I know that you are an honest and straight man not only as a lawyer but also as a friend.
“This case is drawing towards the end and when it ends I will be in need for a steady work for winter, as the work with the Navigation District, where I was working, has slacked so now that it would be hard to malee a living there during winter.
“Any one who wants to get a job now a days- must have a pull. And if I can get you to pull for 'me I feel safe, that there would be something turn up for me. I can do the work myself and I can see to that the other man does his work. I am used to work and I can read, write and figure that I can do the lighter class of work; as, I held once a second grade teachers certificate.
“The .Southern Alkalie Company may employ me at your recommendation or some other concern, either here or some other place, where I could send my boy to Catholic school.
“Will see you when this case is over.
“Respectfully yours
“J. J. Slavik.”

This letter was shown by Tarlton to the trial judge and at his suggestion to opposing counsel. Neither side then and . there asked for a mistrial and thereby condoned or waived the matter.

At a later date, according to the testimony of Slavik, one Shorty Powell made the following statement to him:

“The Reporter (Reading) ‘What did he tell you,’ — meaning Shorty Powell.
“A. Well, the first time he told me that he said he was working on the dam himself, Shorty Powell did. He said that Colonel Crecelius, that is the substance of it, didn’t amount to much, because he was an army officer, and all he cares for is his drinks and good times, and he mentioned vile language about himself, about the Colonel, and he said all that he was trying to do was trying to work against the working man, to take the bread away from the working man, — that was about the substance of what he told me.
“Q. Did he tell you, — state whether or not he told you anything about McKenzie, whether or not he was right in the case?' A. Well, I think he did. /,
“Q. Now. Mr. Slavik, did you go,— what did he call Colonel Crecelius, if you remember? A. Why—
“Q. It is all right, if you remember, what did he say about him? A. Well, he, every time, instead of calling him by name, he called him a son-of-a-bitch.
“Q. Mr. Powell did? A. Yes sir.”
On another occasion, according to juror Slavik’s testimony, Willie Manak had the following conversation with him, to-wit:
“Q. What did he tell you? * * * A. While I was talking to Mr. Manak about things not concerning this case at all, Mr. Cech, Frank Cech, took him away from me and told him, and when Mr. Man-ak'came back to me, he told me that Mr. Cech told him to tell me, he said, ‘That man you was talking to was a member of the jury of the McKenzie case?’ and Mr. • Manak told me that he told him that I was. He said, ‘Tell him that it wouldn’t be fair to beat McKenzie out of his money, that the City of San Antonio beat McKenzie out of money, it wouldn’t be fair.’ ”

Slavik told of the following second conversation with Shorty Powell, to-wit:

“Q. What was the occasion of that conversation and what did he say to you at that time and you to him? A. Well, I •went down to the grocery store to buy my provisions, and he just happened to be there, and he waited for me until I got out and told me that he knew all about how these contracts were let and a certain other company was to get the contract for building this dam that would have paid to the political bunch at San Antonio, — I ■don’t know what he meant by that, but when Mr. Tobin found out what would have happened, he wouldn’t let this Company have the contract, and gave it to Mc-JCenzie.”

The above conversations occurred after :Slavik was selected as a juror and before the verdict was returned. The jurors were permitted to separate and these conversations occurred while they were separated.

After the evidence was closed, the arguments made and the jury had begun con•sideration of their verdict, and after Slavik had stated that he would not agree to find •■Colonel Crecelius guilty of fraud (this be:ing the all important issue in the case), Slavik told of the following conversation with another juror named Shepard, to-wit:

“Q. What did Mr. Shepard tell you? A. He told me that, — he took me off to one side, where the other jurors wouldn’t Rear us and told me that I had wrote this letter, and that it will bring me lots of •trouble if I keep on, if I was just as rigid on these questions as I was that morning.
“Q. Did he mention my (Tarlton’s) relationship to it to you? Did he say anything about me having reported it to the Court? A. Well, he said Mr. Tarlton must not be very much of a fellow since he •done it.
“Q. After Mr. Shepard had told you about the jury knowing about this letter, what did you do then? A. Well, I consented to these questions, to vote on these questions, but every question that came, I told them that I take my exception, that I do not believe that the Colonel was guilty ■of fraud and bad faith.
“Q. Would you have voted to have answered those questions that way if Shepard had not told you this? A. I don’t — I would not.”

Slavik admitted that the jury were polled in open court and that he answered that the verdict was his. He also admitted that the foreman told him that he had to either ■answer “yes” or “no” that he could not vote “yes” and say at the same time he did not believe that way.

The juror B. E. Anderson testified in part as follows :■

“Q. You told me, in substance, this, that the reason you told Shepard to tell Slavik about the knowledge of the jury that he had written a letter to me was because you wanted to use that prior to reporting him to the Court? A. Will you let me answer that and tell you what I told you?
“Q. Answer the question ‘yes’ or ‘no.’
“The Court: Answer that question, first.
“A. I didn’t tell you that; let me tell you what I told you.
“Q. All right, you didn’t tell me that? A. No sir, I would like to tell you what I did tell you, though.
“Q. That’s what you say? A. I never told Shepard, — I made Shepard promise when I told him about it that he would not tell Slavik, that he would let Slavik go until he got to the point where we couldn’t handle him, — I impressed that upon him forcibly, and he promised that he wouldn’t, but he took it upon himself and told him.
“Q. What did you mean by the point where you couldn’t handle him ? A. Where we saw we had a hung jury.
“Q. When you started to have a hung jury? A. When we saw we had a hung jury, we would tell him, yes sir.
“Q. And if Slavik got to the point where you couldn’t handle him, you were going to spring that on him? A. Yes sir, that’s what I told Shepard, if he ever got to the point where we couldn’t do anything about, we would tell him. I made him promise to keep still if Slavik came clean, we would say nothing about it. I told him that might be a penitentiary offense to Slavik.
“Q. That was some time before the charge was submitted? A. I said about a week.
“Q. That you told Shepard that? ' A. Yes sir, I said about a week, I cannot recall the exact date, I think it was about a week, something like that.”

The juror Max M. Shepard testified in part as follows:

“Q. You retired and went into consideration of the case? A. Yes sir.
“Q. Was Mr. Slavik in disagreement with you when you went out? A. When we got up in the jury room, you mean?
“Q. Yes? A. Yes, he seemed to be holding the thing up a little bit, — we wanted to get through.
“Q. And when you came back from lunch, did you go to him and make any remark to him about a letter that he had written to me? A. ■ Yes, I talked to him just a little bit about it.
“Q. What did you say to him? A. Well, I told him that I had heard about the letter, after we came back from lunch, I took him, the rest of the jurors all went inside, in the ■ little room where the table was, where we all discussed the questions, and I asked Mr. Slavik outside a minute, and told him I wanted to talk to him, and told him I had heard about the letter, and that if he was holding out in answering those questions like he thought was right, that was all that could be did about it, but on account of that letter, if he was just hanging up the whole thing, we wanted to get through, and I figured he wasn’t right about it.
“Q. Did you tell him the other jurors knew about the letter? A. I told him that somebody told me about it, I told him that one or two of the other jurors knew about it or maybe all of them, I wasn’t sure.
“Q. Did you tell him who told you? A. Yes, I told him Mr. Anderson made the remark that he had written the letter, and I didn’t want to make it appear that I was meddling in his business, that it was his own business, whatever he wanted to do, but I would like to see him try to answer the questions, if he could, and not be holding everybody up, if he felt like the questions had been written one way and because he had written this letter he thought he was going to get something out of it and he felt like he ought to answer the questions one way. He didn’t tell me what he was going to do about it at all, I just talked to him and we came on inside and I don’t know whether it did any good or not by me talking to him, but I wanted to get away, I think all the rest of them were tired of the case, too.
“Q. What was your purpose in talking to him? A. Just like I told you, I wanted to get out and get through with the case and get home, I didn’t want to be locked up three or four weeks.
“Q. Did you think it was necessary to tell him? A. I don’t know, it looked like it.
“Q. Now, Mr. Shepard, did Mr. Anderson tell you to tell him that? A. No sir, Mr. Anderson just told me about it, I guess a week or two before the trial, and I had gone up there, T was wondering about it, and wondering what I was going to do about it, if he was going to try to hang it, I didn’t know just what I was going to do, and after we got inside and started the case, I thought the best thing to do would be to talk to him and tell him that I knew about it.
“Q. Had you threatened,. — what did Anderson say when he told you about it? A. He just told me he had heard Mr. Slavik had written a letter.
“Q. What else did he say? A. I don’t remember just what he did say, Mr. Tarl-ton, I don’t remember just how the conversation came up or anything, I do remember that he said he heard Mr. Slavik had written you a letter and that you had told, —and you had brought it to the Judge or something like that, and told him about it.
“Q. Did he say anything to you why he was telling you? A. I don’t remember just what he did say about it, no sir.
“Q. Had you all been discussing Mr. Slavik, and his position in the case? A. Yes sir, I believe we had.
“Q. What had you discussed about Mr. Slavik and his position in the case? A. Well, there was a little discussion around ; some of them thought that he was, he felt that way about it, just, — we didn’t know what to think about it, hardly; some of us thought one thing about and some of us thought another; some of us thought he was fixed and some of us thought he wasn’t. We didn’t know what to think, we didn’t know.”

The juror Winn testified in part as follows :

“Q. * * * £)id anyone tell you about that letter? A. Yes sir, there was a fellow told me about it.
“Q. A fellow told you about it? A. Yes:
“Q. Who was it? A. A fellow by the name of Messer.
“Q. Messer, — Lon Messer? A. Yes sir.
“Q. Lon Messer? A. Yes sir.
“Q. Did he tell you that the letter had been shown to the court, do you remember that? A. Yes sir.”

There were over three hundred pages of testimony relating to the alleged misconduct of the jury, and it is impossible to set it all out here. We conclude that the evidence conclusively shows that the jury was guilty of misconduct and that such misconduct influenced at least the juror Slavik in arriving at his answers to the special issues.

Article 2203, R.C.S.1925, provides in part: “No verdict shall be rendered in any cause except upon the concurrence of all members of the jury trying the case.”

Article 2234, R.C.S.1925, reads as follows : “Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material.”

In Moore v. Ivey, Tex.Com.App., 277 S.W. 106, 107, the court said: “The determinative rules, or principles, of law are plain and well established. If, upon a consideration of the whole of the pertinent record, it is reasonably doubtful whether or not the improper conduct affected the amount of the verdict or the decision of any other material issue, the verdict should be set aside by the trial judge; if, in such a case, a new trial is not grarlted, there is an abuse of discretion by the trial judge, and reversal becomes the duty of appellate courts. Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S.W. 606; Southern Traction Co. v. Wilson, Tex.Com.App., 254 S.W. 1104; Hines v. Parry, Tex.Com.App., 238 S.W. 886. It may be clear that eleven (or a lesser number) of the jurors were not, to any degree, influenced by the improper conduct; yet if it remains reasonably doubtful whether one (or a larger number) was, or was not, influenced, the vice remains and the verdict must be set aside (Southern Traction Co. v. Wilson, supra) because each juror can rightly agree to the verdict only when guided solely by the instructions of the trial judge and the evidence heard in open court.”

In Casstevens v. Texas & P. R. Co., 119 Tex. 456, 32 S.W.2d 637, 638, 73 A.L.R. 89, we find the following:

“The case of Houston & Texas Central Railroad Co. v. Gray, 105 Tex. [42], 43, 143 S.W. 606, definitely established the rule that the discretion vested in the trial court in passing on a motion for new trial is subject to review in the Supreme Court where the uncontroverted facts disclose misconduct by a jury in reaching a verdict, unless such facts negative beyond reasonable doubt that the misconduct .actually influenced any juror in giving assent to the verdict. The opinion of Chief Justice Brown in Gray’s Case merely affirms the power of the Supreme Court to enforce, on undisputed facts, the law of the state as embodied in the Constitution and statutes.
“Section 15 of the Bill of Rights guarantees that ‘the right of trial by jury shall remain inviolate,’ and commands that the Legislature shall maintain the purity and efficiency of jury trials. Section 13 of article 5 prescribes that twelve men shall compose a petit jury in the district court, and that nine members of the jury may render a verdict'in trials of civil cases and of certain criminal cases in the district court, provided that the Legislature may change the rule authorizing less than the whole number of the jury to return a verdict. The Legislature, in pursuance of its express constitutional authority, has provided that ‘no verdict shall be rendered in any cause except upon the concurrence of all members of the jury trying the case,’ and has required the court to discharge the jury when they cannot agree. Revised Statutes, articles 2203, 2200.”

Appellee contends that the jury mis-duct, if any, was waived by appellants because appellants first filed motions for judgment on the verdict, and judgment non obstante veredicto before filing their amended motion for a new trial setting up the alleged misconduct of the jury, and by filing such amended motion subject to and without waiving their motions for judgment. Appellee cites no authority for this contention, nor have we been able to find any. Appellants could not know in advance what the ruling of the trial court would be, and in order to properly present the matter to the trial court they were compelled to file these inconsistent motions. All motions were filed before the court ruled and the court was thereby put on notice that in the event judgment was not rendered in appellants’ favor they were going to contend that there was material misconduct of the jury.

We sustain the points presented by Division 1 of appellants’ brief.

Appellants’ points 2 to 6 relate to alleged improper argument made by ap-pellee’s counsel in his closing argument. No objection was made at the time to such argument, nor was the court requested to instruct the jury not to consider such argument. The argument was not of such a highly inflammatory nature that a timely instruction by the court to the jury not to consider it would not have removed the harm done. Appellants not having excepted at the time the argument was made, and not having requested the court to instruct the jury not to consider such argument, are not now in a position to complain. The rule is that unless argument is so improper and of such a harmful nature that an instruction by the court to the jury, informing the jury that such argument was improper and that they are not to consider it, would have done no good and could not have removed the damage done, it is the duty of opposing counsel to object to such argument at the time it is made and request a charge-from the court to the jury not to consider such argument. City of Pampa v. Todd, Tex.Com.App., 59 S.W.2d 114; American, etc., Land Mortgage Co. v. Brown, 54 Tex.Civ.App. 448, 118 S.W. 1106, error refused; Black v. Wilson, Tex.Civ.App., 187 S.W. 493; Houston E. & W. T. R. Co. v. Sherman, Tex.Civ.App., 10 S.W.2d 243, reversed, Tex.Com.App., 42 S.W.2d 241; Gray v. Allen, Tex.Civ.App., 269 S.W. 510; Dallas Railway & Terminal Co. v. Price, Tex.Civ.App., 94 S.W.2d 884, affirmed 131 Tex. 319, 114 S.W.2d 859; American Nat. Ins. Co. v. Smith, Tex.Civ.App., 97 S.W.2d 963; Wichita Valley Ry. Co. v. Minor, Tex.Civ.App., 100 S.W.2d 1071; Dallas Ry. & Terminal Co. v. Little, Tex.Civ.App., 109 S.W.2d 289.

Under Division IV appellants present their points 11 to 14, both inclusive. These points present the contention that there are cerain conflicts between answers to several of the special issues. As these questions will not probably arise upon another trial we pretermit a discussion of them here.

Points 15 to 26, inclusive, are submitted in Division V of appellants’ brief. They are all without merit and are overruled.

Point 27 is presented in Division VI of appellants’ brief. It reads as follows: “It is fundamental and reversible error for the Court to fail to submit definitely the different elements of damages to be recovered.” This point is based upon assignment of error No. 41, which is in exactly the same language.

The point and assignment are both too general to present anything to this Court for review. They present nothing more than an abstract statement.

Points 28, 29, 30, 31 and 32 are presented by Division VII of appellants’ brief. Points 28 and 29 are presented upon assignments 16, 22, 23 and 25. These assignments do not raise the questions presented by these points, therefore, the points cannot be considered. Point 30 presents the contention that the jury having found that some of the City’s materials, cement and empy sacks were used, wasted and lost by plaintiff while the dam was being constructed and further that the engineer was not guilty of fraud, bad faith or failure to exercise an honest judgment in so deciding, the court committed error in not allowing the deduction of the engineer for materials, cement and empty sacies used, wasted and lost, amounting to $1,533.01, although the jury had found that such deduction had been improperly made by the engineer. We overrule this contention. It is not clear from the question and answer whether or not the jury intended to find that some of the City’s cement was used or some of its materials were wasted or some of the empty sacks were lost. There is evidence that the contractor was authorized to use some of the City’s cement without cost to it. There is no finding as to the value of the materials, cements or empty sacks, the value may have been only nominal. No error is therefore shown in failing to allow the deduction of $1,533.01.

Points 31 and 32 are without merit and are overruled.

This brings us to a consideration of Division VIII of appellants’ brief. Points 33 to 50, both inclusive, are presented in this Division. The judgment as entered included the sum of $27,334.69 as damages imposed upon appellee for the excess cost of forms above elevation 710, caused by the requirement of the engineer that the steel form be held in pláce seven days. This item of damage is based upon the jury’s answers to Special Issue No. 40. This issue contained eight subdivisions, lettered from (a) to (h) inclusive, and together with the jury’s answers read as follows:

“Special Issue No. 40.
“(a) Do you find from a preponderance of the evidence that the statements and conduct of the flood prevention engineer for defendant City at the time plaintiff delivered to said engineer the steel form detail in evidence were calculated to reasonably cause plaintiff to believe, in the exercise of ordinary care and in good faith, that said engineer thereby consented to and approved a plan for the removal of said form twice a week on the roadway section of the Olmos Creek detention dam above elevation 710? Answer: Yes.
“(b) Do you find from a preponderance of the evidence that the plaintiff did procure the steel forms in a good faith belief that the engineer for the defendant City had in effect consented to and approved the use of said form when being removed twice a week on said roadway section of the dam? Answer: Yes.
“(c) Do you find from a preponderance of the evidence that plaintiff procured the steel forms according to and as shown on the blue print drawing delivered to the engineer for the defendant City, and which is in evidence as Exhibit 121? Answer: Yes.
“(d) Do you find from a preponderance of the evidence that the requirement of said engineer for the defendant City that the steel form be held in place seven days was willful on the part of said engineer, whereby he sought to injure plaintiff and to wrongfully deprive plaintiff of its. right under the contract alleged? Answer: Yes.
“(e) Do you find from a preponderance of the evidence that the requirement of said engineer that said steel form be held in place seven days did delay plaintiff in the time of completion of the construction of the dam? Answer: Yes.
“(f) Do you find from a preponderance of the evidence that the requirement of said engineer that plaintiff hold the steel form in place seven days did inflict upon plaintiff any financial damage for excess cost of forms? ■ Answer: Yes.
“(g) How much do you find, from a preponderance of the evidence, would have been the reasonable damage imposed upon plaintiff for the excess cost of forms above elevation 710, caused by the requirement of said engineer that the steel form be held in place seven days ? Answer: $27,334.69.
“(h) Do you find from a preponderance of the evidence that the refusal of said engineer to allow plaintiff any extension of time by reason of the requirement that the steel form be held in place seven days was willful on the part of said engineer, whereby he sought to injure the plaintiff and to wrongfully deprive plaintiff of his right under the contract alleged ? Answer: Yes.”

Special Issues Nos. 41 and 42, with the jury’s answers, read as follows:

“Special Issue No. 41. Do you find from a preponderance of the evidence that the engineer, in October, 1925, made and announced a decision authorizing plaintiff to remove the steel form twice a week? Answer : No.
“Special Issue No. 42. Do you find from a preponderance of the evidence that the engineer agreed with plaintiff that plaintiff might procure a single Blaw Knox steel form for use in pouring the superstructure of the dam and move same twice a week? Answer: Yes.”

The evidence shows that some time before- the work started on the super-structure of the dam, which was above- elevation 710, A. J. McKenzie, president of appellee company, had under consideration the purchase of á steel form to be used in this ’work. He made this fact known to the engineer. In this connection, the engineer was informed that appellee expected to move this steel form twice a week. With this information before him, the engineer approved the steel form. McKenzie .then leased a steel form at a cost of $13,500. Shortly before the work started on the super-structure the engineer wrote McKenzie a letter telling him, in effect, that the steel form would have to remain in place for a period of seven days. McKenzie, in replying to this communication, had the following to say in his letter, of February 12, 1926:. “We followed the recommendation of the Blaw-Knox representative in purchasing these forms, and as we submitted the matter to you, and you raised no objection at that time, we naturally assumed that you approved of the method adopted.” The steel form was used for part of the work, but wooden forms were built and used in the construction of most of this work.

The evidence further shows that according to the best known methods and usages of building super-structures of this nature the forms should have been kept in place at least seven days. No damages could be charged to the city as a result of the engineer requiring the work to be done in a manner in keeping with the usual and customary methods of doing such work. Carlile, Corrigan & Dunn v. Corrigan, 83 Ark. 136, 103 S.W. 620. Appellee contends that if the engineer had made laboratory tests he would have found out that the forms could have been held in place less time. The engineer was not required to make laboratory tests to discover better methods than those usually and customarily employed in such work. Sweet v. Morrison, 116 N.Y. 19, 22 N.E. 276, 15 Am.St.Rep. 376; Lynn v. Baltimore & Ohio R. Co., 60 Md. 404, 45 Am.Rep. 741.

Appellants seem to take the position that the engineer having failed to speak at the time it was made known to him that steel forms were to be used and that their removal twice a week was contemplated, he would be thereafter estopped from making any other requirement than that understood by the contractor at the time. The contract provided that forms could not be removed until approved by the engineer and it became the duty of the engineer to see to it that forms were not prematurely removed. He owed this duty to both the city and the contractor and he could not estop himself from properly performing this duty.

The evidence shows that it took almost two and one-half days to remove and reset the steel form. If the form had been moved twice a week it could not have remained in place more than one day, which certainly would not be sufficient time itnder a slab of unsupported concrete fifty feet long and several feet thick. The evidence is insufficient to show that the engineer was guilty of fraud, or the equivalent, in ruling that the steel forms should remain in place seven days. It does not even show that his decision was incorrect.

What was said in Vanderwerker v. Vermont Cent. R. Co. (Supreme Court of Vermont) 27 Vt. 130, applies here, to-wit: “A review of the authorities cited will suffice to demonstrate that the proof of a party who attacks the award of an agreed umpire in a case of this character must be clear, convincing, overwhelming, and irrefraga-ble. It must come within close proximity to what is called beyond a reasonable doubt. Such proof must meet these standards in order to have substance, and it must have substance in order to be regarded as substantial within the substantial evidence rule so oft repeated by this court.”

The points raised in Divisions IX, X, XI, XII and XIII, are without merit and are overruled.

Points 95 to 103, inclusive, are presented in Division XIV. The judgment allows a recovery of $6,091.74 for the fraud of the engineer in requiring the forms for the conduit section to be constructed in the manner in which they were constructed. In view of another trial we will refrain from a detailed discussion of the evidence on this issue, other than to say we entertain serious doubts as to whether the evidence is sufficient to support the judgment on this item. And the same thing is true as to the points raised in Division XV.

The points raised under Division XVI are without merit and are overruled. The same thing is true as to the points raised under Divisions XVII and XVIII.

Under Division XIX the contention is raised that the evidence is insufficient to convict the engineer of fraud, or the equivalent, in any instance. There could be no recovery in this case unless the. engineer was guilty of fraud, or such a gross mistake as to necessarily imply bad faith or a failure to exercise an honest judgment. When this case was first before this Court (50 S.W.2d 349, 352) the Court held: “Appellant’s pleadings and the proof introduced thereunder in the court below were sufficient to entitle it to a determination of the issues involved by a jury, and we so hold.”

The Supreme Court refused a writ of error and that holding has now become the law of this case. McKenzie Construction v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617. The record is substantially the same on this appeal, and we therefore overrule the points presented in this division.

Division XX relates to certain alleged errors in admission of evidence. Inasmuch as the case must be reversed on other grounds, we pretermit a discussion of the points presented in this division.

Division XXI relates to the giving and refusing of charges and for the above reason will also not be discussed.

Division XXII relates to alleged errors in submission of duplicitous and multifarious issues, and the final Division XXIII relates to alleged errors in the failure and refusal of the jury to answer certain issues submitted to them. In the interest of brevity we refrain from a discussion of these matters, as we do not believe such a discussion will be helpful upon another trial.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

In view of the fact that we have reversed this case because of the misconduct of the jury, in passing on other points, we have not discussed procedural questions, as we presume they will not arise in the same matter upon another trial. For instance, some of the questions are not in proper form and are not followed by proper and necessary instructions and explanations, but we have not discussed such matters as we presume they will not appear upon another trial. It goes without saying that if upon another trial issues are improperly formed, or definitions or instructions are incorrect, same may be considered upon another appeal, if proper objection and exceptions are made below and presented on appeal.

The same thing is true as to admissibility of evidence.

Appellants’ and appellee’s motions for rehearing have been carefully considered and are in all things overruled.


author: WALKER, Chief Justice.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. JONES.
    No. 3622.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1940.
    Ramey, Calhoun & Marsh, of Tyler, for appellants.
    Sumner Williams, Jr., and Curtis W. Fenley, all of Lufkin, for appellee.
   WALKER, Chief Justice.

On the 8th day of July, 1939, in county court of Angelina county, appellee, C. D. Jones, recovered judgment against appellants, St. Louis Southwestern Railway Company of Texas et al., for the sum of $250 as damages suffered by him from a fire which escaped from appellants’ right of way onto appellee’s premises. The evidence raised the issues of negligence charged by appellee against appellants, submitted by the court’s charge to the jury, and satisfactorily supports the jury’s answers thereto.

The court made the following submission of “unavoidable accident”:

“Do you find from a preponderance of the evidence that the damage, if any, was the result of an unavoidable accident?
“Answer ‘Yes’ or ‘No’ as you find the facts to be.
“Answer: No.
“By the term ‘Unavoidable Accident’ as used in the charge is meant the unexpected happening of an event that is not proximately contributed to by the negligent act or omission of either plaintiff or defendant, or one which could not have been reasonably foreseen or anticipated, as likely to occur in the light of existing circumstances.”

Appellants excepted to this charge on the ground, among others, “and further because said issue and the instruction given in conjunction therewith erroneously places on these defendants the burden of proving by a preponderance of the evidence that the damage, if any, W3S the result of an unavoidable accident.” On authority of St. Louis Southwestern Ry. Co. of Texas v. Lawrence, Tex.Civ.App., 120 S.W.2d 906- directly in point and writ refused— appellants’ exception must be sustained. In this connection, we overrule appellee’s counter proposition that the evidence did not raise the issue of “unavoidable accident.” No point is made that any negligence on the part of appellee proximately contributed to his damage. While the jury, on the evidence as a whole, convicted appellants of negligence in permitting the fire to escape from the right of way, the following testimony of appel-lee’s witness, Mr. C. Wrotenberry, raised the issue that the fire did not escape through appellants’ negligence: “That on or about October 22, 1937, plaintiff’s pasture was burned off; that the first he saw of the fire was on the right-of-way; that he first saw a small fire on the right-of-way at about 11:20; but it got larger and drew his attention to the whole right-of-way being afire; that he saw the section gang fighting the fire; that a part of Mr. Jones’ orchard was burned; that the fire burned from the Southeast to the Northwest; that he saw the fire burning on the right-of-way and the smoke therefrom down in Mr. Jones’ orchard.”

If the fire escaped from the right of way without negligence on the part of either party, then appellee’s loss was the result of an “unavoidable accident.” It would have been error to refuse to submit the issue.

Again, the court in the charge did not define the term “negligence.” Because of its legal significance, this term should have been defined to the jury. Therefore, the court erred, as against appellants’ exceptions, in refusing to define the term “negligent act” as used in the submission of “unavoidable accident.”

On another trial, the plea in abatement of St. Louis Southwestern Railway Company of Texas should be sustained on authority of St. Louis, B. & M. Ry. Co. et al. v. Zamora et al., Tex.Civ.App., 110 S.W.2d 1242, where the plea in abatement, in substance the plea at bar, was sustained.

The other points of error briefed need not occur on another trial.

Judgment reversed and cause remanded.


author: SPEER, Justice.

text:
    YOUNG et ux. v. FITTS.
    No. 14032.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1940.
    Rehearing Denied March 29, 1940.

      Houtchens & Hóutchens, Ardelí M. Young, Robert V. Weddell, and J. Harold Craik, all of Fort Worth, for appellants.
    Vincent Stine, of Henrietta, for appellee Earl C. Fitts.
    Louis T. Holland, of Montague, for appellees Benson & Benson.
   SPEER, Justice.

Earl C. Fitts sued C. O. Young and wife, Pearl Young, in a district court of Montague County, Texas, to recover about 155 acres of land in that county. The land is described in the petition, which is the usual statutory form of trespass to try title.

Young and wife answered by general denial, pleas of not guilty, by special pleas-of limitation and by allegations attacking the validity of certain conveyances which they anticipated that Fitts would rely upon in his chain of title.

By way of cross-action, C. O. Young and wife plead in the statutory form of trespass to try title against Fitts and named D. B. Benson and W. E. Benson cross defendants and sought relief against the cross-defendants, quieting title in them, to the same lands described in plaintiffs petition.

A jury was demanded and at the conclusion of taking testimony, upon motion by plaintiff, Earl C. Fitts, the court instructed the jury to return a verdict in favor of plaintiff against defendants for title to the land and against defendants upon their cross-action. From judgment entered upon that verdict this appeal has been perfected by Young and wife.

We. shall continue to designate the parties as they were known in the trial court, except when it becomes necessary to refer to them by name.

■ Upon the trial, plaintiff first introduced in evidence a deed from T. F. Lowe and wife to C. O. Young, dated November 5th, 1913, in which the land was conveyed. A part of the consideration was shown to have been the assumption of the payment by grantee of an outstanding vendor’s lien note for $1,750. It was then stipulated among the parties that a vendor’s lien was retained in that deed to secure payment of the $1,750 note, as well as certain other notes; that the others had been paid, and the $1,750 note reduced by payments to $1,000; that the note and lien had been transferred from time to time and is now owned by Earl C. Fitts. The renewal note of $1,000, executed by C. O. Young and wife, dated November 1st, 1932, payable November 1st, 1937, was then introduced in evidence. The foregoing facts were established by plaintiff without question or controversy by defendants, and it was upon this state of facts that the trial court gave the summary instruction for a verdict in plaintiff’s favor. The judgment was rendered upon the verdict ordered. This much is conceded by defendants in their briefs.

In view of certain assignments of error urged by the Youngs (defendants), we shall refer briefly to-another phase of the case. Plaintiff next offered in evidence an instrument purporting upon its face to be a warranty deed from Young and wife to Claud L. Gass, dated January 9th, 1935, filed for record two days later. Then, a deed from Gass and wife to D. B. Benson, W. E. Benson and Earl C. Fitts, dated October 11th, 1937, recorded next day after its date. This was followed by introducing in evidence a deed from D. B. and W. E. Benson to Earl C. Fitts, dated June 17th, 1938, filed for record June 22nd, 1938. The plaintiff then rested his case.

The Youngs, as defendants and as plaintiffs in their cross-action, placed in evidence a written contract and agreement between themselves on one side and Claud L. Gass on the other, dated January 10th, 1935, and recorded in the deed records of Montague County on December 31st, 1936, by the terms of which reference is made to the deed from the Youngs to Gass, recited in the contract to be of the same date, and in “conjunction with the contract.” The instrument provides that the Youngs have the privilege of redeeming the 155 acres of land,- conveyed by them to Gass, at any time prior to January 10th, 1937, by paying to Gass $1,966, the amount shown in the deed to have been paid, and also by paying $1,190, the amount of a note to Robert Ralston, assumed by Gass.

There are many other provisions and conditions in the contract, which, in view of what we shall later say, need not be mentioned here. The defendants, and plaintiffs in cross-action, called plaintiff Earl C. Fitts and both the Bensons to the witness stand and questioned them relative to their knowledge of the existing contract between the Youngs and Gass, as well also conversations had between them and Mr. and Mrs. Young before they took the deed from Gass. The Youngs testified in their own behalf and contradicted much of what had been said by Fitts and the Bensons. If this phase of the controversy was determinative of this appeal, more of the controversial points would be given and we would be inclined to hold that a jury question was raised. But, as stated, the matters have been related because three of defendants’ assignments of error are devoted to showing that jury questions were raised and that the court should not have instructed a verdict against them. As above stated, defendants (appellants) admit in their briefs that the judgment was entered on the proof made that plaintiff (Fitts) was the owner of the vendor’s lien note and possessed of all the rights of the original grantor, wherein the lien was first retained. If it was proper for the court to instruct a verdict for plaintiff on that phase of the case, no necessity existed for a determination of the contested issue on another branch upon which plaintiff may or may not have recovered. Hence, we shall not discuss the first three assignments which complain because the contested point was not submitted to the jury.

It is a well-settled rule of law in this State that generally a vendor who has reserved a vendor’s lien in his conveyance to secure the payment of purchase money, may, under claim of his superior title, recover the title and possession of the land in an action of trespass to try title upon failure of the purchaser to pay according to the terms of the instruments. Such rights pass to subsequent holders of the purchase-money notes and the assigned lien and executory contract. 43 Tex.Jur., p. 370, sect. 210; Ibid, p. 383, sect. 216; Ibid, p. 385, sect. 217. Texas Osage Co-Op. Royalty Pool et al. v. Benz, Tex.Civ.App., 93 S.W.2d 196, writ dismissed; Booty v. O’Connor, Tex.Civ.App., 287 S.W. 282, writ refused.

The rule above announced is not an absolute one, but is dependent upon the circumstances surrounding the case. The rights of the grantor and his successors, holding a superior title to secure the purchase money, may be defeated by the purchaser or his grantees. It is obvious that payment of the purchase money would preclude the grantor from rescinding the sale and repossessing the land. The right to repossess the land under the superior title is likewise affected by equities in favor of the purchaser. Such conditions arise when the unpaid purchase money is small as compared to the original con-sidei'ation paid and promised, or where the purchaser has made extensive permanent improvements upon the property so as to enhance its value far in excess of what it was when purchased; likewise, by a showing that the acts and conduct of the purchaser or other holder of the purchase-money note and lien are such as to reasonably lead the purchaser to believe that no forfeiture for nonpayment would be resorted to. 43 Tex.Jur., p. 386, sects. 217 and 218.

However, it is not every case in which valuable improvements have been made that the right of recovery of superior title will be denied, but is dependent upon equities in favor of the purchaser. In Booty v. O’Connor, supra, this principle was recognized. But it was there held that even if those equities are such as to entitle a purchaser to their benefits, they must be plead in defense of the forfeiture action.

It is generally recognized by our courts that when a purchaser has been sued by the seller for title and possession of land for failure to perform the contract of sale, equity will permit the purchaser to defeat such action by paying or tendering payment of the amount due and unpaid. In any event defendant’s answer must include such a plea, before he can obtain that equitable relief.

In the instant case, defendants did not plead anything as against plaintiff’s rights under the $1,000 note, except general denial and not guilty. There was no plea of an offer to make payment or to otherwise do equity in the premises, nor did they plead that plaintiff was estopped by any former acts or conduct to rely upon his remedy to recover the land for the failure of the Youngs to pay the purchase-money note. ■

The record before us discloses that when the parties had rested and the case was closed, plaintiff moved for an instructed verdict upon the pleadings and evidence. (The evidence relied upon being that here-inabove referred to concerning the $1,000 note). Arguments and authorities, were heard by the court and just prior to the court’s ruling thereon, counsel for the Youngs insisted that because of the conflict in the testimony between the parties regarding the nature of the conveyance from the Youngs to Gass, they were entitled to have the case submitted to the jury on those disputed facts. During his argument, Mr. Houtchens (the Youngs’ counsel) said: “* * * We realize that the law embodies on us a certain amount, but they didn’t make any demands on Young to pay this amount. They asked him, all of them, at some time if he could pay it, and he said he thought he could. I say now he can and it will be done today, on that first lien note, if they will take it.” Mr. Houtchens, turning to Mr. Benson, a cross-defendant,- and of counsel for plaintiff, asked: “Will you take that amount of money and satisfy the first lien ? I am saying I’ll pay you one thousand dollars and all interest on it and whatever taxes there are.”

Mr. Benson, replying to the question asked and statement made, said: “There is no issue before the court like that.”

Houtchens: “I just want to know, will you do it? Will you do that or not?”

Benson: “Why, no. That is not an issue in the case, after you get up and lose a lawsuit, certainly you’ll pay off.”

Houtchens: “We haven’t lost any lawsuit.”

Benson: “All right, you make your tender and let the record show you are tendering it and what you are tendering.”

Mr. Houtchens then asked the court for permission to file a trial amendment, stating he did not think it necessary but that he would do so, with the court’s permission. He said that to plaintiff’s suit in trespass to try title, defendants had plead not guilty; that they could plead .anything they wanted to. He desired to file a trial amendment offering the tender. Counsel stated to the court that he would give his check to cover the indebtedness and would pay for a ‘phone call to a Fort Worth bank to have it certified. That it was then 5:20 P. M. and that if the court would postpone the hearing until the next day at 9 o’clock he would have the cash in court to cover the note with interest, all taxes and insurance paid on the property. Over plaintiff’s objections the court permitted the filing of a trial amendment, which was in these words: “Come now the defendants, C. O. Young and wife, Pearl Young, and with leave of the court first had and obtained, file this their trial amendment in this cause and hereby tender and offer to pay the amount of the note sued on, which is alleged to be in the sum of one thousand dollars, together with any accrued interest thereon, if the plaintiff or cross defendants will give us the information as to how much the interest is, together with any legal taxes that may have been paid by the plaintiff or any one of the cross defendants, together with any insurance premiums that may have been paid by them * *

After further arguments relating to the sufficiency of the tender, as contained, in the trial amendment, and counsel’s request to postpone the ruling until the next day, the court stated that he was of the opinion that the controverted matters should have been arranged before the lawsuit ended; . that a postponement would be denied, and concluded that the authorities presented by plaintiff required him to instruct the jury to return a verdict for the plaintiff. This was done and the judgment entered is -the basis of defendants’ 4th, 5th, 6th and 7th assignments of error.

It will be observed that at the time counsel for defendants was discussing with the court plaintiff’s motion for an instructed verdict, and orally offered to give his personal check to cover the note, taxes and insurance, and the subsequent statement by counsel to the effect that if the court would postpone the further proceedings until the next day he would tender into court the actual cash to cover the items if plaintiff’s counsel would tell him how much it would require, there was1 no pleading of any character by defendant which would defeat plaintiff’s recovery, regardless of the nature of a tender made at that time. Subsequent to the filing of the so called trial amendment above quoted, no tender of any kind was made as reflected by the record. It is argued in the briefs that when plaintiff’s counsel, during the argument between him and Mr. Houtchens, declined to accept payment, further tender was rendered unnecessary. When plaintiff’s counsel answered the inquiry if he would accept the money, he did say “no”, but the remainder of his statement in connection therewith would justify his answer, for, as stated by him at the time, “that is not an issue in the case”, clearly meant such an issue had not been made by the pleadings and that counsel would not waive it by accepting a tender when none was pleaded. In the absence of a waiver by the opposing party of pleadings to support it, a perfectly valid tender made by defendants without such a pleading would not avail them anything. Clearly, plaintiff declined to waive it. Absent such a pleading, defendants’ promise to make a tender, conditioned upon contingencies, was not a tender. No tender of any kind appears to have been made after the court permitted the trial amendment. Stephens v. Reik, Tex.Civ.App., 247 S.W. 627; Pell v. Chandos; Tex.Civ.App., 27 S.W. 48; Crain v. Nat. Life Ins. Co., 56 Tex.Civ.App. 406, 120 S.W. 1098, writ refused.

The record reflects that the Youngs knew at all times that the $1,000 purchase-money note was outstanding; they knew, also, that they had not paid the interest on it since their conveyance to Gass, in January, 1935, nor had they rendered or paid the taxes since that time. The deed records disclosed that when the suit was instituted, plaintiff Fitts owned the note and lien; they were further charged with notice that under such circumstances, that unless Fitts had estopped himself from asserting that right, he could recover the land in a trespass to try title suit by making proof of the note, lien and his ownership. No defensive pleadings were made by the Youngs which would entitle them to defeat that right of plaintiff. No reason is presented why these matters were not apparent to defendants when they filed their answer and announced ready upon the merits. No valid reason occurs to us why plaintiff should be penalized for the apparent oversight of defendants to plead their case in defense of plaintiff’s equitable right to recover. City of Fort Worth v. Rosen, Tex.Civ.App., 203 S.W. 84, affirmed by the Supreme Court, Tex.Com.App., 228 S.W. 933; Pell v. Chandos, Tex.Civ.App., 27 S.W. 48; Owensboro Wagon Co. v. San Antonio Tie & Lumber Co., Tex.Civ.App., 199 S.W. 701.

It further appears that when plaintiff began to develop his case, the first instrument offered was the deed in which the vendor’s lien note was assumed by the purchaser and a lien retained to secure its payment. The next instrument offered was the note. These instruments within themselves were sufficient to put defendants upon notice of the matters upon which plaintiff would depend for recovery, even though it had not occurred to them prior to that time that plaintiff would rely upon that theory, rather than the chain of title from Young to Gass and Gass to plaintiff. No claim of surprise or request for withdrawal of an announcement of ready, or for postponement to meet that condition, was made. Defendants could not speculate upon the result of the trial until all parties had closed taking testimony, a motion made for an instructed verdict, the motion argued and authorities presented which convinced the court, and defendants’ counsel, as indicated by the record, that plaintiff was entitled to an instructed verdict at that time, and then, for the first time, seek a postponement of the trial until defendants could get ready to meet that condition.

A postponement as requested by defendants was within the sound discretion of the trial court. We have no means of knowing the condition of the court’s docket with respect to the orderly transaction of its business; whether there were other cases set for the next day, and disappointment and inconveniences to other litigants would follow if a further hearing of this case should be taken up at that time, are not made to appear. Nor can it be said that the granting of the request would have resulted in a termination of the case, even on the next day. It is needless to speculate as to these things. The trial court resolved defendants’ request against them in an exercise of his discretion. We are not prepared to say that he abused the discretion given him by law.

Upon the theory that the type of tender made by defendants at the time and the manner of its making defeated plaintiff's right to an instructed verdict, we are cited to the cases of Seaboard Bank & Trust Co. v. Amuny, Tex.Civ.App., 6 S.W.2d 186, affirmed, Tex.Com.App., 23 S.W.2d 287; McCord v. Hames, 38 Tex.Civ.App., 239, 85 S.W. 504, writ denied; Ball v. Belden, 59 Tex.Civ.App. 29, 126 S.W. 20; Moore v. Brown, 46 Tex.Civ.App. 523, 103 S.W. 242, writ refused. We have read these and other similar holdings, but find distinguishing features in each from the facts in the instant case. In some of those cases, the answers of defendants embraced pleas of payment and partial payment of the vendor’s lien note relied upon by plaintiff, and asked for accountings of payments made and an offer to do equity by paying the remainder found by the court to be due and unpaid. In others, the answer showed that improvements had been made upon the property at a great expense, showing the inequity of permitting the forfeiture, and a further offer to do equity by paying the amounts shown to be due and owing. In each and all of those cases, the pleadings of defendant were sufficient to support the proffered evidence. In the Seaboard Bank & Trust Co. case, supra, it was held that because defendant had offered in his pleadings to pay the amount of the note, less attorney’s fees, that it amounted to no tender at all. It would unnecessarily extend this opinion to discuss each of those cases separately.

By these assignments, it is also contended by defendants that because of the length of time the note for $1,000 had been running, and the frequent -renewals and extensions of previous owners, the right of acquiring the superior title by the plaintiff who so recently acquired the note and lien had been waived and plaintiff was estopped to now assert that equitable remedy. By way of argument, defendants’ counsel reminds us that after this long lapse of years and said former renewals, it would be inequitable, unfair and unconscionable to permit plaintiff to resort to this means of acquiring title to the land.

Several different persons had owned the $1,000 note and lien here involved prior to the time it was acquired by plaintiff. Over the long period of years sincé its assumption by defendants, it appears that they had paid the interest and had reduced the principal. Those who owned the note apparently had been willing to forego their right of foreclosure in consideration of interest and partial payments. But defendants quit paying interest, taxes or house repairs in 1935, when he made the conveyance to Gass. Plaintiff, who owned such equity as Gass conveyed, paid the interest for subsequent years, along with the taxes, and for a reason satisfactory to himslf, chose to buy the note and lien from the then owner, placed his assignment on record and later instituted this suit. The right to recover the land under the superior title thereto was his privilege unless by his conduct he had waived it. There is nothing in the record to show that he did anything in connection with his ownership that could be construed to mean a waiver or such as would work an estoppel to assert the right. Neither ground was plead or attempted to be proved. The most that could be assumed that plaintiff knew what others had done, was that during the long period of time since the execution of the note, no owner had attempted to forfeit the executory contract. It was not shown that plaintiff knew of any conduct by .previous owners that would prevent them from asserting that right. He could not be bound by such, if they ever existed. In Amuny v. Seaboard Bank & Trust Co., Tex.Com.App., 23 S.W.2d 287, at page 288, cited by defendants, the court used this language: “Mere indulgence of the holder [of a note] after default does not tend of itself to show an extension by contract, nor does it evidence any intention not to enforce the contract, according to its terms, for the right to enforce is continuous after the breach to the maximum period of limitation. It means nothing to say that common honesty, equity, and good conscience would require notice under such circumstances 'of an intention to enforce the contract.”

As we view the record in this case, no error is shown in the court’s action in giving the instructed verdict and entering judgment thereon. His acts in doing so were equivalent to a holding that no legal defense was presented to plaintiff’s right to recover the superior title to the land under his note and lien; that no pleadings were presented by defendants which entitled them to relieve the situation by making payment of the note, nor that a waiver or estoppel was presented. There is nothing shown that would require us to hold that the court abused his discretion in refusing to grant the postponement when that request was made. The assignments raising these questions are overruled.

What we have said renders the questions raised by assignments one, two and three immaterial. The branch of the case upon which the court admittedly based his judgment warranted the order and it becomes unnecessary to determine whether or not an entirely different branch presented a jury question. This would only be material if the one upon- which the judgment was entered was error.

Finding no error in the record for which the judgment of the trial court should be reversed, it becomes our duty to affirm it. It is so ordered.

On Motion for Rehearing.

On motion for rehearing, our attention is called to expressions used by us in the original opinion, which we think should be stricken, since they are susceptible to the construction, as contended by defendants, that our conclusions were based upon a lack of pleadings by them of waiver and estoppel as against the plaintiff.

We said in the original opinion: “There was no plea of an offer to make payment or to otherwise do equity in the premises, nor did they plead that plaintiff was estopped by any former acts or conduct to rely upon his remedy to recover the land for the failure of the Youngs to pay the purchase money note.”

That part of the above-quoted portion of the opinion which refers to a failure to plead waiver and estoppel, and any other expression in the opinion which may be construed as such, are withdrawn by us.

We are now fully convinced that the plea of not guilty interposed by defendants as against plaintiffs petition in trespass to try title would entitle them to prove any facts that existed to show that plaintiff had waived or was estopped to assert his rights for rescission of the original executory contract of sale of which his note was a part of the purchase money. 41 Tex.Jur., sect. 139, p. 633, and cases there cited.

It is earnestly insisted by defendants in their motion that the long standing of the note and lien, the numerous maturities and extensions by previous owners, and the purchase by plaintiff after maturity, were circumstances tending to show that he had waived his right of rescission and was estopped to assert that right at the time he did so. Upon the authorities cited in the original opinion, we still think that there was no testimony of probative force adduced tending to show that plaintiff had done any of the things relied upon by defendants to show waiver or estoppel. We have not seen any case which supports the theory contended for in the motion that plaintiff who purchased the note would be bound by acts of his predecessors in title to the note and lien. There' was absolutely . no evidence that any one of the previous owners had ever obligated himself not to rely upon his rights under the executory contract. The most that could be said of their acts is that they received interest, partial payments, renewed and extended the maturity from time to time. In the Amuny v. Seaboard Bank case, supra, it was held that such acts did not evidence any intention not to enforce the contract. Certainly, if those acts would not have constituted a waiver or estoppel as against plaintiff’s predecessors, it cannot now be said to have that effect upon plaintiff who purchased from them. We think there was no evidence before the court raising an issue of waiver or estop-pel; therefore, nothing was presented on that point for determination by the jury.

In all other respects we adhere to our conclusions as reflected in the original opinion, and overrule the motion for rehearing.


author: BROWN, Justice.

text:
    BOWIE SEWERAGE CO. v. CHANDLER.
    No. 14037.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1940.
    Rehearing Denied March 29, 1940.

      Bond, Crofts & Bond, of Terrell, and Fred T. Porter, of Kaufman, for appellant.
    T. B. Coffield, of Bowie, for appellee.
   BROWN, Justice.

Webb Case, alleging that W. W. Chandler, a citizen of Montague County, is a person of unsound mind, brought suit in the District Court of such county as next friend of and for W. W. Chandler, and alleged that Chandler purchased a tract of about 147 acres of land, in the year 1907, through which a creek named Jones Creek flows, and for cause of action alleged that the defendant Bowie Sewerage Company, a private corporation, in the year 1914, acquired a tract of land situated about a mile or a mile and a half northeast of Chandler’s place and through which said Jones Creek also flows, and that the defendant built upon such tract a sewage disposal plant “for use in connection with,its sewerage system serving the town and the inhabitants of Bowie.” It is alleged that the defendant constructed such “sewerage disposal plant, or settling or dissolving basin, or septic pool or tank for the purposes of dissolving or treating the refuse, filth and organic matter collected by its sewer serving the said town of Bowie; that the sewer mains collecting filth, refuse and garbage from the City of Bowie, or some of such mains, are emptied, and the contents thereof released, into the said disposal plant, tank, pool or basin; that from the said tank, pool or basin in which such waste matter is treated and partly dissolved, the same is released through a pipe or pipes into a certain creek or natural drainage-way known or called Jones Creek. That said pipe carrying said waste matter to said creek was constructed and laid in about the month of September, 1925; that the said waste matter released from the said disposal plant proceeds down the said creek in its natural course onto and over the premises owned by the plaintiff * '* * ; that the point where the said creek runs into the plaintiffs premises is approximately one mile from the place where the said refuse and waste matter is by the defendant released into the said creek; that the plaintiffs property * * * is down-stream from the defendant’s disposal'plant on said creek.”

These allegations are followed by those charging that, since the defendant did the acts complained about, “the creek on plaintiff’s premises emits highly offensive and unhealthful odors and disease germs”; that the bottom of the creek bed is discolored and saturated with filth and the water therein is polluted and contaminated, is offensive in its odor and infested with bacteria and disease germs. Then follow allegations that plaintiff has a field in the creek bottom which overflows and which is used by him to raise vegetables; that, before defendant did the acts complained about, the overflow waters were pure and did not injure his crops, but since such acts, when the creek overflows it leaves deposits of refuse, foreign matter and waste, rendering the land practically worthless.

Plaintiff next alleges that the conditions complained about constitute a nuisance and that it is a permanent nuisance, tie prays for damages, the difference between the reasonable cash market value of his lands before and after the acts of defendant were had and done.

The plaintiff then pleads in the alternative that the nuisance is only temporary and discloses ■ why it is only a temporary nuisance. He then prays for damages, the difference in the rental value of his land.

Plaintiff next seeks to recover damages because of illness .of his wife, brought about b.y the conditions alleged. Pie prays for damages and for six per cent interest on his damages from January 1, 1926.

All demurrers, special exceptions and pleas of limitation were overruled by the trial court, and, the cause being tried to a jury, a charge consisting of twenty-seven special issues was given, All exceptions to the charge were overruled and the defendant’s request for a peremptory instruction was refused.

The jury found that, (1) the defendant discharges the overflow from its septic tank into Jones Creek, (2) such overflow runs upon plaintiff’s premises, (3) the said creek emits odors since defendant commenced discharging its overflow therein, (4) discharging the said overflow into the creek is a proximate- cause of the odors, (5) the odors “are materially offensive to persons of ordinary sensibilities residing upon plaintiff’s premises”, (6) these odors became thus offensive in the year 1925, (7) that such odors will continue to be thus offensive so long as defendant discharges the overflow from its disposal plant into said creek, (8) the creek emits disease germs since defendant commenced discharging its overflow from the septic tank, (9) discharging such overflow is a proximate cause of the disease germs, (10) the disease germs are such as endanger the health of persons of ordinary sensibilities who reside on the plaintiff’s premises, (11) that such condition began in the year 1925, (12) and such condition will exist so long as the defendant continues to discharge the overflow from its disposal plant into said creek, (13) the reasonable cash market value of plaintiff’s land before it was injured by the sewerage waters was $2,940, and (14) such value immediately thereafter, $1,470; the issues touching Mrs. Chandler’s health were answered against the plaintiff; the jury found that W. W. Chandler is of unsound mind and was when defendant’s disposal plant was built and has been ever since; the jury found, (25) that the disease germs emitted by the creek are not caused solely and only by the discharge of the overflow from defendant’s septic tank, .and answered the following issue, “26. Do you find from the evidence that the odors and disease germs, if any, emitted by Jones Creek are proximately caused by any other cause than the act of the defendant in discharging its overflow into Jones Creek? No,” and found, (27) that the odors were caused solely and only by the said discharge.

The defendant urged a motion to declare a mistrial and to refuse plaintiff a judgment, and.such motion was overruled; this motion was made in the alternative, after the defendant moved for judgment in its favor, and such motion was denied.

The court rendered judgment for plaintiff for $1,470, with six per cent interest from January 1, 1926, making a total recovery of $2,646, and found against plaintiff on all other issues.

Defendant’s amended motion for a new trial being overruled, it has appealed, and presents sixteen assignments of error, supported by fourteen propositions.

We do not feel the necessity for discussing all such as that would unduly lengthen our conclusions, and we propose to discuss only what we consider the controlling issues before us. •

The first assignment of error is well taken. It contends that the trial court erred in rendering judgment for plaintiff on the theory of there being a permanent nuisance, in that plaintiff’s pleadings and the evidence show only a temporary nuisance, if one is established by the evidence, and the wrong measure of damages has been applied.

Plaintiff has pleaded a state of facts which, if true, could establish only a temporary nuisance, which may be abated by the defendant. The evidence tended to show, so far as it goes, that a temporary nuisance exists, and the jury’s verdict establishes the fact that the conditions are simply temporary.

The case of City of Honey Grove v. Mills, Tex.Civ.App., 235 S.W. 267, writ dismissed, is squarely in point, as are City of Paris v. Jenkins, 57 Tex.Civ.App. 383, 122 S.W. 411, and Baugh v. Texas & N. O. Ry. Co., 80 Tex. 56, 15 S.W. 587 and Cross v. Texas Military College, Tex.Civ.App., 65 S.W.2d 794, writ dismissed.

The proper measure of damages in such cases and in this case is “the depreciation in the rental value, or use, or special damages to the land.”

In such a case as the one before us, when a litigant seeks to recover damages for the character of nuisance as is attempted to be established here, 'we believe that it is necessary to allege and prove facts showing that the defendant’s disposal plant is not suitable for the purposes for which it was constructed, or is negligently operated.

We feel compelled to take judicial notice of the fact that appellee is seeking damages occasioned by the operation of a sewage disposal plant, constructed for the purpose of serving the inhabitants of a city of more than 3000 souls, according to the Federal Census of 1930, and operated for the purpose of treating all such sewage so that, when so treated, the sewage will not be harmful or obnoxious.

It is obvious, even from plaintiff’s pleadings, that the defendant’s disposal plant was constructed in order that the sewage from the city of Bowie would not create a nuisance.

The burden is upon plaintiff to plead and prove that it is a nuisance.

We think the proof in this case falls far short of the necessary evidence.

It is evident that some of the lay witnesses who undertook to show that Mr. Chandler is a person of unsound mind should not have been permitted to testify that, in their opinion, he was of unsound mind.

The rule is that a lay witness may detail facts and circumstances and the acts and statements made by a person, about whom the inquiry is being made, and then, if the trial court is of the opinion that the matters testified to are such as, qualify the witness to express an opinion, such witness may then be asked if it is his opinion that the person was, or is, of unsound mind. Wigley et al. v. Buzzard et al., Tex.Civ.App., 124 S.W.2d 898, writ dismissed, correct judgment.

The trial court does not have the right .to exercise a free discretion in the admission of such testimony. It becomes a question of law as to whether or not the witness, who has had occasion to observe the acts, demeanor, statements, etc., of the person, has, by the detailing of such matters, qualified himself to give an opinion as to the sanity of such person so observed.

There are irreconcilable conflicts in the answers returned by the jury, as is shown by those made to issues Nos. 25, 26 and 27, and judgment should not be attempted to be predicated upon such a verdict.

It was error for the trial court to render judgment for interest as damages, on any amount found by the jury, from January 1, 1926. Keystone Pipe & Supply Co. v. Zweifel, 127 Tex. 392, 94 S.W.2d 412 (Com. of Appls., opinion adopted by Supreme Court).

We believe the issue of whether or not any injury has been sustained should be submitted to the jury. 31 Tex.Juri., para. 46, pp. 462 to 464.

Special Issues No. 13 and 14 are duplicitous, in that they assume that plaintiff’s land has been injured. No issue touching injury was submitted to the jury.

If offensive odors are emitted from Jones Creek and may be smelled by the persons who live on plaintiff’s farm, this may be testified to by laymen, as a matter of course, but these facts ought to be established by the jury, in answer to proper questions submitted; but it appears to us that the question of whether or not the waters from such creek emit disease germs, is one for expert testimony.

We say this because many people believe that many diseases are contracted by breathing air, fumes, odors, etc., and by drinking water, when medical science has established the fact that only certain diseases may be contracted by taking them into the human system with one’s breath, or by drinking them in.

We are of opinion that plaintiff should make definite allegations as to the disease germs and make proof of the existence of such germs, by witnesses who are competent to testify.

The defendant objected to the trial court submitting the jury an issue inquiring whether or not the odors from the creek “are materially offensive to persons of ordinary sensibilities residing upon plaintiff’s premises”, without defining the term “materially offensive.” We believe the point is well taken. Such a term is highly technical. Duerkob v. Brown, Mo.App., 255 S.W. 962.

We can see no distinction between the use of the term “material inducement” and that of “materially offensive”, insofar as a necessity exists for properly defining same.

Other matters raised will doubtless not occur upon another trial, and are not discussed by us.

For the reasons noted, the judgment of the trial court is reversed and the cause is remanded.