author: WILLSON, C. J.

text:
    NATIONAL LIVE STOCK INS. CO. v. WARREN.
    (No. 1540.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 9, 1915.)
    1. Appeal and Error <&wkey;931 — Review—Presumptions.
    Where the evidence warranted a finding of facts suflicient to support the judgment by the trial court, but such a finding was not included, in the court’s written findings, it will be presumed that such facts were found.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. &wkey;s931.]

      2. Instjeance <&wkey;665 — Live Stock Insurance-Findings.
    In an action on a policy insuring a horse, where there was no testimony suggesting that the death of the animal was due to one of the excepted causes, the court is warranted in finding that the horse died from disease, or accidental injuries as covered by the policy.
    [Ed. Note. — For other cases, see Insurance, Cent.Dig. §§ 1555,1707-1728; Dec.Dig. &wkey;665.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by Hugh A. Warren against the National Live Stock Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.
    The suit was on a policy issued by appellant insuring appellee for a period of one year from April 10, 1914, in the sum of $200, against loss of a stallion—
    “by death caused by disease, fire, lightning, cyclone, accidental injuries, or by reason of a broken leg when found necessary by attending veterinarian to destroy, the animal’s life, with the exceptions set forth and printed on the back hereof, which are specially referred to and made a part of this policy.”
    The exceptions referred to as set forth on the back of the policy were there specified as follows:
    “The perils indemnified against by this policy do not include the death of any animal if at any time during'the life of this policy it shall have been castrated, or it shall have foaled, or it shall have been transported from one place to another; death from sickness or disease contracted, or injury occurring, prior to the delivery of this policy; death of any animal which is caused by any person, whether acting under or by virtue of any law or otherwise; loss by death after the premium has remained unpaid for 80 days from the date of policy; death from disease having its inception, or injury happening, during the period of such default.”
    The horse died November 30, 1914. The .cause of his death was not shown otherwise than as it might be inferred from testimony of appellee, as follows:
    “He (the horse) had not shown any signs of sickness before the night of his death. I heard him making a noise at the barn, and went out .and opened the door. As soon as I opened the door, he fell out of the barn and was dead before I could put a bridle upon him. I did not have time to get a veterinary surgeon or any one to treat him. I do not know what caused his death. He had never been sick but once before, and that was for but a few moments.”
    The trial was to the court without a jury, and resulted in a judgment in favor of appel-lee for $200, interest and costs.
    Simpson, Lasseter & Gentry, of Tyler, for appellant J. A. Bulloch and B. O. Johnson, both of Tyler, for appellee.
   WILLSON, C. J.

(after stating the facts as above). [1,2] The trial court reduced to writing findings of fact made by him. Among them was not a specific finding as to the .cause of the death of the horse, but there was one that he “died very suddenly on the night of November 22, 1914, without any fault upon the part of H. A. Warren, and without having shown signs of any previous illness.” The contention, and the only one, made on this appeal, is that the finding specified “was not a sufficient finding of fact to authorize the court to render judgment on the policy of insurance herein sued on.” If it should be conceded, and we think it must be, that the finding left undetermined the question as to whether the death of the horse was from a cause provided against in the policy or not, it would not follow that the judgment therefore should be reversed; for, in the absence of a finding determining that question, if there was testimony which would have authorized the trial court to find that his death was from such a cause, this court, in support of the judgment, would have to presume that he so found. Malone v. Fisher, 71 S. W. 996; Fitzhugh v. Land Co., 81 Tex. 306, 16 S. W. 1078; Spencer v. James, 10 Tex. Civ. App. 327, 31 S. W. 540, 43 S. W. 556; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889. If the burden was on appellee to show not only the death of the horse, but also the cause of his death, we think the trial court, in the absence, as was the case, of testimony tending to show, or even suggesting, that his death was due to one of the excepted causes, had a right to infer from the testimony of appellee set out in the statement above that the horse died from disease or accidental injuries provided against in the policy. The circumstances as to his death shown by that testimony to our minds negatived an inference therefrom that he died from any of the excepted causes, but indicated, instead, that his death was due to sudden illness or accidental injuries covered by the policy.

The judgment is affirmed.
      @=sFor other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    THALLMAN v. BUCKHOLTS STATE BANK et al.
    (No. 5560.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 22, 1915.
    Rehearing Denied Jan. 19, 1916.)
    1. Courts <&wkey;480 — Concurrent Jurisdiction —Enjoining Proceedings.
    Under Rev. St. art. 4653, declaring that writs of injunction issued to stay proceedings in a suit shall be returnable to and tried in the court where such suit is pending, a writ of injunction by a district court to restrain a sale under an order of the district court of another county, should be returnable to the district court ordering the sale.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]
    2. Courts <&wkey;485 — Transfer of Causes.
    Where a writ of injunction, issued to restrain sale under order made in a suit in a different county, was returned to the court issuing it, such court has no jurisdiction and cannot transfer the cause to the county wherein the suit was pending.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1292-1298; Dec. Dig. &wkey;485.]
    Appeal from District Court, Bandera County; R. H. Burney, Judge.

      Application by O. Thallman against the Buckholts State Bank and others for a writ of injunction against order of sale. From an order transferring the cause to another county, petitioner appeals.
    Reversed, and cause dismissed.
    J. A. Eames, of Bandera, and George Powell, of San Antonio, for appellant. Morrison & Lewis, of Cameron, for appellees.
   FLY, C. J.

Appellant applied for a writ of injunction to the district court of Bandera county to restrain the sale of certain cattle under an order of sale issued out of the district court of Milam county in a case wherein the Buckholts State Bank was plaintiff and I. B. Williams defendant, and wherein the said bank obtained a judgment foreclosing a mortgage on said cattle and providing for the issuance of the order of sale under which the cattle were taken into possession by the sheriff of Bandera county. Appellant claimed the cattle under a prior mortgage executed to him by I. B. Williams. The cattle were seized in Bandera county. The court granted a writ of injunction restraining the sale, but did not make the writ returnable to the district court of Milam county, but made it returnable to Bandera county, and entertained demurrers to the petition, and upon sustaining them entered an order that the cause be transferred to the district court of Milam county where the judgment was rendered and the order of sale issued.

The district court should not have entertained jurisdiction over the writ of injunction, but upon its being granted should have made it returnable to the court from which the order of sale was issued. Rev. Stats, art. 4653; Broocks v. Lee, 50 Tex. Civ. App. 604, 110 S. W. 756; Brown v. Fleming, 178 S. W. 964. In the last-named ease it is said:

“The order of sale in this case commanded the sheriff to sell the specific property in controversy ; therefore the effect of the injunction was to suspend the operation of such process, and such proceeding not only stayed and suspended the process, but questioned its validity and regularity as well.”

The same can be said as to this case and the statute commands that:

“Writs of injunction granted to stay proceedings in a suit or execution on a judgment shall be returnable to and tried in the court where such suit is pending or such judgment was rendered.”

That clause of the statute has from the first organization of the Supreme Court of Texas been held to be imperative. Hendrick v. Cannon, 2 Tex. 259; Winnie v. Grayson, 3 Tex. 429.

The writ of injunction was not, as required by law, made returnable to Milam county, but it was made returnable to Bandera county, the district court of which had no jurisdiction to try the matter. Smith v. Morgan, 28 Tex. Civ. App. 245, 67 S. W. 919; Godfrey v. Lackey, 129 S. W. 1145. In the case of Hendrick v. Cannon, herein cited, the court held that cases in the same condition as the present one should be dismissed, and that case was approved in the case of Seligson v. Collins, 64 Tex. 315. In the last case the court, in discussing a writ of injunction to restrain a sale under an order of sale of specific property, said:

“Here the proceeding by injunction not only stayed or suspended the process, but also questioned its validity and regularity. In such case the statute is imperative — the writ of injunction must be returned to the court from which the order of sale issued. * * * Undoubtedly the district court of Coryell county had no jurisdiction, and erred in overruling the appellant’s exceptions.”

The district court of Coryell county had entertained jurisdiction over a writ of injunction issued by it against an order of sale issued out of the district court of Galveston county, and the Supreme Court reversed the judgment and dismissed the cause. To the same effect is the case of Aultman v. Higbee, 32 Tex. Civ. App. 502, 74 S. W. 955.

The writ of injunction not being returnable to Milam county, the district court had no authority to transfer the cause to Milam county after the writ had been returned to Bandera county. The trial judge had no authority to make any order in connection with the matter after having granted the writ of injunction. There is no- statute permitting or authorizing the transfer of a cause from one district court to another because the first had no jurisdiction. Every order issued by the district judge after the writ of injunction was granted was null and void.

The judgment is reversed, and the cause dismissed.
      ifcsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    POUTRA v. SAPP et al.
    (No. 6968.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 10, 1915.
    Rehearing Denied Jan. 6, 1916.)
    LANDLORD AND TENANT <&wkey;48 — REPRESENTATIONS — Breach—Measure or Damages.
    Defendant leased lands to plaintiffs, representing that they were adaptable to the cultivation of rice and free from obnoxious or poisonous grasses or seed. Plaintiffs prepared the lands for the cultivation of rice, expending large sums before they discovered that the lands were invested with obnoxious grasses and seed.. The rice crop was greatly diminished, and plaintiffs sued to cancel their rent notes and for damages. Seld that the measure of damages was the difference between the value of the rice crop which plaintiffs would have raised on the land had it been as represented, less the additional expenses necessary to obtain such value, and the value of the crop raised, instead of the difference between the rental value of the land if free from obnoxious grasses and its actual value.
    [Ed, Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 114^-116; Dee. Dig. >&wkey;>48.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by E. E. Sapp and another against Joseph Poutra. From a judgment for plaintiffs, defendant appeals.
    Affirmed.

      Dannenbaum & Tanb and A. B. Wilson, all of Houston, for appellant. B. F. Louis, of Houston, for appellees.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

E. E. Sapp and H. B. Sapp, plaintiffs, brought this suit against Joseph Poutra, defendant, for damages alleged to have resulted to them by reason of misrepresentations of fact by defendant concerning the condition of a farm rented to them by Poutra. They alleged in their petition, substantially, that on the 10th day of January, 1911, Poutra, claiming that he was the owner of a tract of land, represented that the land was good clean land adapted to the cultivation of rice, and that it was free from any and all poisonous or obnoxious grasses that would render it unsuited for cultivation in rice; that on said day they were shown the land by defendant, and that defendant then advised them that he would lease the land to them for the sum of $4 per acre; that, relying upon said representations of defendant, both as to the condition of the land and its adaptability to cultivation in rice, they executed a contract in writing with the defendant, by the terms of which plaintiffs obligated themselves to pay the defendant the sum of $4 per acre, it being provided therein that plaintiffs should execute their promissory note, dated January 14, 1911, for the sum of $2,400, payable to the order of the defendant, to bear 8 per cent, per annum interest after maturity, and stipulating that if a survey should disclose that there were less than 600 acres in the land so leased to plaintiffs, the defendant would indorse on the note a credit of the shortage at the rate of $4 per acre; that in accordance with their contract they executed said note to defendant, which by its terms matured December 1, 1911; that, relying upon said representations made by defendant, they entered upon and undertook to cultivate in rice the land shown to them by defendant, which land, upon a survey thereof, was found to'contain 495 acres; that at the time of the execution of said contract, and at the time the land was shown to plaintiffs, they were wholly unacquainted with the character or condition of defendant’s land, as to whether the same contained any poisonous or obnoxious grasses, or the seeds thereof, which would render the same unsuited or unfit for the cultivation thereof in rice, and that it was not possible at that time for plaintiffs to ascertain the adaptability of such land for the cultivation of rice, •or whether there was present in the land any poisonous or obnoxious grasses, or the seed thereof, which would render the same unfit for the cultivation of rice. Plaintiffs further alleged that at the time defendant made said representations to them, and for a long time prior thereto, said land was poisoned with numerous obnoxious grasses, and that principally said land was filled with ■the seeds of an extremely poisonous grass, commonly known to rice farmers as “hoorah grass,” which, plaintiffs allege, is “a grass which, when it comes, takes possession of the land, renders it wholly unfit for the cultivation of rice, in that said grass retards the growth of rice and causes it, in a large measure, to die and perish from the land, if not to do .so entirely”; that this condition of the land was well known to defendant, and should have been known to him by the use of ordinary care.

Plaintiffs further alleged that the said representations so made by the defendant were false and fraudulent, and were made with a view of deceiving and defrauding the plaintiffs and to induce them to enter into the occupancy of said land, and to cultivate the same in rice, and to make the contract and execute the note, well knowing that if the plaintiffs were informed or knew that the land was poisoned with such grass, they would not undertake to cultivate it, or execute the contract, or note; and that plaintiffs having faith and confidence in the representation of defendant, and in reliance thereon, at his request executed the note and contract; that had plaintiffs known or been informed by defendant that “hoorah grass,” or the seeds thereof, were upon the land, or had the defendant not made such representations as to the character and condition of the land, plaintiffs would not have entered into the contract of lease or executed said note; that, relying upon said representations, they undertook to cultivate rice upon the land, and that they did and had done all the necessary work and labor upon 495 acres thereof, and incurred all the necessary expense through the planting of said land in rice, when the “hoorah grass” made its appearance about March and April of the year of the lease; that plaintiffs, having at said time expended vast sums of money for work and labor in the cultivation of the rice, undertook and did everything known to rice farming to cultivate and grow a crop of rice upon the land, notwithstanding the presence of said grass, and to such end re-plowed about 270 acres thereof at further great cost and expense to them, and that they undertook throughout the growing season to raise a crop of rice upon the land, having already at the time the grass appeared expended vast sums of money and practically the necessary sum to grow and harvest a full crop.

Plaintiffs further alleged that they had contracted for water to irrigate the land, but that said grass had taken 270 acres thereof, and that it was useless to water said number of acres, in that the rice planted thereon had been crowded out by said grass, but that upon the remaining 225 acres the plaintiffs undertook to grow rice, notwithstanding said grass, and produced thereon about 1,400 sacks of the alleged value of $3 per sack; that in the cultivation of said land they incurred the reasonable and necessary expense of $5,872, so that the plaintiff will sustain a loss, aside from the value of their own services in and about the crop, about the sum of $2,500, not including therein the payment of said note or any part thereof; that if the land had been free from poisonous grasses, as represented by defendant, under the conditions existing in and abQut said land during the growing and harvesting season, they could and would have raised and harvested upon the entire tract of land 12 sacks of rice per acre; that with the amount of money expended by them upon the land in an effort to cultivate it, together with such additional expenses as would have been necessary to cultivate and harvest a crop of 12 sacks per acre, the plaintiff, after payment of all expenses, including the rental agreed to be paid for the land, would have realized a profit upon the crop of not less than $7,500, that defendant was well acquainted with the expenses necessarily incurred in the cultivation of rice, and knew that plaintiffs, in reliance upon his representations, would incur such expense, and, knowing that the land was poisoned with said grass, knew that they would not be enabled to raise and harvest sufficient rice on the land to amount to or pay the expenses of doing so.

Plaintiffs prayed for judgment canceling the note and contract, and for a recovery of $7,500 profit, as alleged they would have made had the representations of defendant been true, or, in case they were not entitled to that relief, that they recover their losses occasioned by the defendant’s misrepresentations, in addition to the cancellation of the note and contract, in the sum of’$2,500, and for general relief.

The defendant Poutra answered, denying the making of the representations alleged by plaintiffs, and by cross-action sought to recover of plaintiffs the amount due'upon said note.

The case was tried before a jury, to whom were submitted special issues in the form of interrogatories; and upon the return of their answers, all of which were favorable to plaintiffs, a judgment was entered thereon in plaintiff’s favor and against the defendant, canceling the note given for the rental of the farm, and awarding plaintiffs a judgment for the sum of $2,658. Prom this judgment the defendant has appealed.

The main question presented for our consideration upon this appeal is as to the proper measure of damages applicable under the pleadings and proof. The trial judge decided the case upon the theory that the proper measure of damages was the difference between the value of the rice crop which plaintiffs would have raised upon the land had it been as represented by defendant, less the additional expenses necessary to have grown, harvested, and marketed the same, and the crop that was raised.

Under appropriate assignments of error appellant Poutra presents the following proposition :

“This is a suit for the recovery of damages alleged to have been sustained by reason of fraudulent representations inducing plaintiffs to enter into a contract of rental of a farm to their loss. In such case, the measure of plaintiff’s damage is the difference between the reasonable rental value of the land as it actually was at the time the contract of lease was entered into and what was agreed to be paid by plaintiffs as rental under said lease.”

To this proposition the appellees advance the counter proposition that the proper measure of damage under the pleadings and evidence is the value of the rice crop which plaintiff would have raised upon the land had it been good clean rice land, as represented, less the additional expenses necessary to have obtained such value, and that this alone represents, and compensates for, the loss sustained by plaintiffs by reason of the defendant’s misrepresentations. These two propositions fairly present the contentions of the parties as urged in the trial court and in this court.

Without setting out any of the evidence introduced by plaintiffs, we may say that the testimony offered by them was sufficient to warrant the jury in finding that every material allegation in their petition was true, with the exception that the evidence warranted the jury in finding, as they did, that plaintiffs would have raised 10 sacks of rice per acre, if the land had been as represented by defendant, instead of 12 as alleged in the petition. Appellant in support of his contention cites and strongly relies upon the case of George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 123, 123 Am. St. Rep. 772,15 Ann. Cas. 456, and quite a number of other cases based upon it. George v. Hesse arose upon certified questions, the certificate reciting the following facts:

“A trade or exchange of property was consummated, by which George conveyed to Hesse an undivided two-thirds of certain land in Dim-mit county and two-thirds of some personal property thereon, and Hesse conveyed to George a house and lot in San Antonio. The deed to Hesse was in consideration of $2,000 and the assumption by Hesse of two-thirds of an indebtedness of $2,000 and interest, and certain other minor assumptions. George assumed an incumbrance on the house and lot of about $1,300. What the Dimmit county land or the personal property was valued at in the trade does not appear. The action was brought by Hesse for damages for deceit in this: That George represented to him and caused him to believe, and act in consummating the trade, upon the fact that the Dimmit county land had a gusher of water upon it, which representation was material and proved to be false. The evidence sustained these allegations. There was evidence that this land without a gusher was worth $5.33 an acre and with a gusher would have been worth $20 an acre. The court charged the jury as follows: ‘If you find for the plaintiff, then your verdict should be for the difference in value, if any, that you find from the evidence to be between the reasonable market value of the Dimmit county land on November 25, 1903, without a gusher of water, that is, a strong, I flowing well of water on same, and the reasonable market value of said land on said date, with a gusher of water, that is, a strong, flowing well of water on same, of the kind that you find from the evidence was represented by George if you find he made such representation.’ And the jury found a verdict in accordance with such measure of damages.”

In answering the question: “Did the charge give the correct rule for the measure of damages?” our Supreme Court says:

“We are of the opinion that the question should be answered in the negative. There is a conflict of authority upon the point; but it seems to us that the difference of opinion grows out of a confusion as to the nature of the cause of the action. This is not a ease in which the plaintiff sued for breach of a contract; for the contract has been performed by both parties. But it is a case in which the plaintiff sues to recover damages for a fraudulent representation by which he has been induced to enter into a contract to his loss. Olearly we think the extent of his loss is the difference between the value of that which he has parted with and the value of that which he has received under the agreement. The contract in this ease was not to convey a tract of land with a ‘gusher’ on it, but was to convey a certain tract of land, which was falsely represented to have a ‘gusher’ on it, which false representation was an inducement which led to the contract. Logically, therefore, what he has lost by the transaction is the measure of his damages. Let us suppose that when the fraud was discovered George had not conveyed any of the property transferred to him, and Hesse had sued for a rescission as he would have had the right to do; the parties would simply have been placed in statu quo, and the plaintiff would have recovered nothing for his failure to get the property as represented. He would have recovered his property, and there would have been no loss, except the expense of the litigation. So in this case, if the plaintiff recovers a sufficient sum in money to make that which he has received equal to that which he has conveyed and that which he has assumed to pay, he is compensated for his loss, and, as we think, that is the measure of his damages.”

Another case, also strongly relied upon by appellant,' and which is based upon George v. Hesse, is that of Weeks v. Stevens, 155 S. W. 667, decided by the El Paso Court of Civil Appeals. In that case the plaintiff alleged that he was induced to enter into a written contract of lease with defendant of certain land in Mexico, and that the defendant fraudulently represented to him that the land leased had full and legal rights of water for irrigation and ditches, and that said representation was material, and a part of the consideration inducing plaintiff to enter into the contract. He further pleaded that during the years. 190S, 1909, and 1910 it became evident that sufficient water to raise a crop could not be had from the irrigation ditch, and that said land did not have full and legal water rights for irrigation from said ditch, whereupon plaintiff informed the defendant that he would abandon the written contract unless defendant would furnish sufficient water for irrigation, whereupon defendant agreed that if there should be a shortage of water in the ditch, he would dig wells and thereby provide water sufficient for raising the crops, and thereby induced plaintiff to plant crops each of said years, but defendant failed to comply with this agreement, and plaintiff suffered damage thereby. The court held that the first cause of action set up in the petition was ruled by the case of George v. Hesse, but that the second cause of action, based upon the breach of a verbal contract to furnish water sufficient to mature the crops for the three years, was governed by the rule laid down in Raywood Rice Canal & Milling Company v. Langford Bros., 32 Tex. Civ. App. 401, 74 S. W. 926, in which the measure of damages was stated to be—

“the difference between the amount actually realized from the crop and the amount that would have been realized had sufficient water been furnished.”

We are of the opinion that neither of the two cases referred to, nor the other cases cited by appellant which are based on George v. Hesse, are applicable to the facts of the present case. It is a fundamental and cardinal principle of the law of damages that the injured party shall have compensation for the injury sustained. The injured party is entitled to recover a full indemnity for his loss, and to be placed as near as may be in the condition which he would have occupied had he not suffered the injury complained of. This rule was correctly applied in George v. Hesse; for, while the plaintiff in that case was induced to enter into the contract of sale by the fraudulent representations of the defendant, he did not thereafter incur loss and expense in ignorance of the untruth of the representations; therefore the Supreme Court correctly stated that it was clear that:

“The extent of his loss is the difference between the value of that which he has parted with and the value of that which he has received under the agreement.”

In Weeks v. Stevens it is clear from the allegations of the plaintiff’s petition that the plaintiff incurred the losses for which he sought compensation after he had full knowledge of the false representations made by defendant as to the existence of water rights and irrigation ditches, and that he proceeded to cultivate the land and incur the loss, not under the belief that the representations of defendant in that regard were true, but upon a verbal contract by which the defendant agreed to furnish sufficient water to irrigate and mature his crops. The rule laid down in George v. Hesse is .unquestionably correct as applied to the facts of that case, and under it the plaintiff could have been fully compensated for the loss he sustained, and it accords with the fundamental principle that the injured party should have compensation for the injury sustained — should be entitled to recover full indemnity for his loss. No measure of damages which does not afford j.ust compensation for the loss sustained can stand the fundamental test. Upon this principle the measure of damages in every case must be based, or it neither accords with principle nor authority. Bearing this principle in mind, would the rule for the measure of damages applied in George v. Hesse, and contended for by appellant, tie the correct rule to apply to the facts of this case? We think not. If so, then the measure of plaintiffs’ damages would he the difference between the $4 per acre which they agreed to pay as rents and the actual rental value of the land. It must be remembered that defendant represented his land to be good clean land, free from poisonous grasses and the seeds thereof, when in fact it was infested with the seeds of a very obnoxious grass; that this fact was unknown to plaintiffs when they undertook to cultivate the land in rice and did not become known to them, and could not have been ascertained by them until March and April of the year of the lease, when the grass began to grow, at which time plaintiffs, relying upon the truth of the representations of defendant, had spent large sums of money in preparing the land for cultivation and planting, and in fact had expended nearly the entire sum- necessary for the cultivation, harvesting, and marketing of the crop. The contract had then become executed and there could therefore have been no rescission. The measure of damages applied in George v. Hesse would have been wholly inadequate to afford plaintiffs full compensation for the losses thus sustained by them, without fault upon their part, but attributable directly to the wrong of the defendant. It seems to us that under the facts of this case the rule for the admeasurement of damages laid down in Jones v. George, 61 Tex. 346, 48 Am. Rep. 280, must control. The facts of that case briefly are these: Jones had a cotton crop which became infested with worms which would, in a short time, have destroyed the plants unless the worms were destroyed. He applied to George, a druggist, for the purchase of a quantity of paris green, by the application of which to the cotton plants the worms would be killed, stating to George the purpose for which he desired the drug. George sold him a quantity of a drug which resembled paris green, but which in fact was “chrome green,” harmless and wholly unsuited to the purpose of poisoning the worms. This drug was applied to the cotton by Jones, under the belief that it was paris green, with the result that it had no effect upon the worms, and resulted in the loss to Jones of a large amount of cotton that he would have made had the drug been as represented. It was held that the druggist’s liability was as broad under a breach of contract as he had expres.sly warranted the substance which he delivered to be 'paris green, and that the breach of the contract, if it resulted in the loss of the cotton crop, must be deemed the proximate cause of the loss, and that the measure .of damages would be the value of the crop as it stood just before it was destroyed by the worms, with the cost of the drug .used, and the further cost, of its preparation and application to the cotton, with interest on the-money thus expended added.

In Haywood v. Landford, 74 S. W. 928, this court laid down the rule that where, by a failure to supply water as contracted, the-plaintiff’s crop was injured, the true measure of damages is the difference between the value of the crop raised and the crop that would have been raised but for the defendant’s default, less the cost of doing everything necessary to market it, and that this was but another way of saying that the proper measure was “to allow plaintiff the value of the crop at the time of the breach.”'

No reasonable distinction can be drawn between cases allowing recovery of a crop upon a misrepresentation in a sale of seeds and the instant case, where the land, just as essential for the growth of a crop, was misrepresented. In Jones v. George the court refers to this line of cases, and with reference thereto says:

“It has been held in many cases, where seeds of a given family were sold and represented to be seed of a given genus of that family, which would, in their natural development, produce crops of greater value than would other seeds of the same family, but of different genus, that the purchaser was entitled to recover, as damages, not simply the difference between the value of the seeds delivered and those for which the parties contracted, but the difference between the value of the crop raised with [reference to] the seeds delivered and the value of the same quantity of crop of the more valuable genus.”

Among tile eases cited in Jones v. George is that of Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753, where cabbage seeds were sold with the warranty that they would produce Bristol cabbages. The jury found they were not Bristol cabbage seeds and did not produce Bristol cabbages, and the court held that the damages would be the value of the crop of Bristol cabbages, such as the jury should believe would ordinarily have been produced that year, less the expense of raising, and the value of the crop that was raised. The court says:

“His engagement was, that the seed he sold was Bristol cabbage seed, and would produce Bristol cabbages. It may therefore have been reasonably supposed to have been in the contemplation of the parties that if the seed was not Bristol cabbage seed, and would not consequently produce Bristol cabbages, that damage would necessarily accrue to the plaintiff, and would be a natural consequence of such breach.”

In the instant case, the engagement of defendant was that the land was good clean rice land, suited for the cultivation of rice, and free of poisonous grasses, and the evidence shows that he knew what it took to cultivate rice, and it necessarily follows, we think, that it must have been supposed that if the land was not as represented, plaintiffs would be damaged; and the damages recoverable in such case were such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, as the probable result of the breach of it.

We sliall not prolong this opinion by a further discussion of the cases akin to this which bear upon the measure of damages, but shall content ourselves by referring to the following authorities, which more or less directly sustain the view here expressed: Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. 696, 30 L. Ed. 810; Tyler v. Moody, 111 Ky. 491, 63 S. W. 433, 54 L. R. A. 417, 98 Am. St. Rep. 406; Ware v. Dunlap, 159 Mo. App. 388, 141 S. W. 21; 4 Sutherland on Damages (3d Ed.) 3400; Handy v. Roberts, 165 S. W. 37.

It follows from what we have said that it is our opinion the court applied the proper rule for the measure of damages under the facts of this case; and the assignment is therefore overruled.

What we have said sufficiently disposes of appellant’s second assignment of error which complains of the refusal of the court to peremptorily instruct a verdict in his favor, the contention being that no evidence had been adduced showing plaintiffs’ proper measure of damages.

We think the plaintiff E. E. Sapp showed himself to be sufficiently acquainted with the market value of the rice to testify as to such value, and the third assignment, predicated upon the refusal of the court to sustain an objection to his testimony as to value, is overruled.

We find no reversible error in the record, and the judgment must therefore be affirmed.

Affirmed.
      <§=For other eases see same topic and KEY-NUMBER, m all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    LEONARD v. BENFORD LUMBER CO. et al.
    (No. 16.)

    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 4, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Vendoe and Puechasee <&wkey;231 — Bona Fide Puechasee — Notice — Recoeds — Index.
    To put a purchaser of land on notice of the record in land titles of an excerpt from a judgment in respect thereto, it must be indexed by the recorder, in a book kept therefor, as required by Paschal’s Dig. arts. 5015, 5016.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 487,-513-539; Dec. Dig. <&wkey;>231.]
    2. Vendos! and Puechasee <&wkey;226 — Bona Fide Puechasee — Seabching Behind Patent.
    A purchaser of land is not required to go behind a patent from the state, in investigating the title, absent a recital therein or in a subsequent link in his chain of title, or some extraneous fact, putting him on inquiry.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 475, 476; Dec. Dig. <&wkey;>226.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Action by R. L. Leonard against the Ben-ford Lumber Company and others. From an adverse judgment, plaintiff appeals. Affirmed.
    R. E. Minton, of Groveton, and S. H. German, of Livingston, for appellant. Hill &■ Hill, of Livingston, and Dean, Humphrey & Powell, of Huntsville, for appellees.

      Application lor writ o£ error pending in Supreme Court

   MIDDLEBROOK, J.

This is a case in trespass to try title to 221 acres' of land situated in Polk county, Tex. The suit was originally filed by the plaintiff, appellant, on the 16th day of April, 1910, and final judgment entered therein on the 4th day of January, 1915, the judgment being against the plaintiff, appellant, and also a judgment in behalf of the defendant, appellee, Benford Lumber Company.

On the 21st day of November, 1838, a donation certificate for 640 acres of land was issued by the Republic of Texas, through Charles Mason, acting as Secretary of War, to Lewis Cox. Lewis Cox died in Walker county, Tex., in 1847, testate, but his heirs-afterwards set aside his will, and his property was divided by decree of the district court of Walker county, April 17, 1856, and by the terms of the decree the donation certificate for the 640 acres was set apart as a part of the property belonging to his daughter, Minerva I. Rowe. At this time the land had never been surveyed. The survey of the land involved in this suit was made by George Gibson, county surveyor of Trinity county, on May 6, 1860. In 1875 that part of Trinity county which contained the land in question was detached from Trinity county, and by act of the Legislature became a part of Polk county.

The full decree of the partition of the estate of Lewis Cox, deceased, in Walker county, Tex., was never recorded in Trinity county, Tex., but was first filed for record in Polk county on the 1st day of June, 1910, and properly recorded. An excerpt from the decree was recorded in Trinity county on the 7th day of May, 1860; and the records of Trinity county having been destroyed about 1872, the excerpt was again recorded in 1874, in the records of Trinity county. The excerpt is as follows:

“District Court, Spring Term, A. D. 1857.
“Andrew J. Cox and James Cox v. Margaret Leach and Others, Heirs of Lewis Cox, Dec’d. No. 770.
“To Minerva I. Rowe they have set apart a; negro girl named Mary, $900; 640 acres, surveyed, but not patented, Lewis Cox’s donation claim, $320; the mule Jane, $100; farming, and blacksmith tools, $50; cash from No. 1,. making $1,378.83.”

On the 18th day of July, 1857, Minerva I. Rowe, joined by her husband, John L. Rowe, executed to James O. Dunlap a conveyance of aforesaid donation certificate, which conveyance is in terms sufficient to pass' the title to said certificate; and this eonvey-anee was filed for record in the office of the county clerk of Trinity county, Tex., on the 7th day of May, I860, and was refiled for record in said office on the 1st day of January, 1874.

On the 17th day of March, 1860, J. C. Dunlap, by proper conveyance, transferred the said certificate to Win. R. Leonard, and this conveyance was filed for record in the office of the county clerk of Trinity county, May 7, 1860, and was refiled in said clerk’s office for record on the 1st day of January, 1874, and was filed for record in the office of the county clerk of Polk county, Tex., on the 1st day of June, 1910.

Prior to the 19th day of March, 1910, Wi R. Leonard had died, and his surviving widow, joined by his heirs at law, except R. L. Leonard, conveyed to R. L. Leonard by metes and bounds the tract of land in controversy in this suit on that day, and this deed was filed for record in the office of the county clerk of Polk county on April 18, 1910. Through this chain of title the plaintiff, appellant, sought to assert his rights and recover the land from the appellee lumber company et al.

Prior to the year 1906, P. R. Rowe, an attorney of Livingston, Tex., learned of the location of the Lewis Cox survey of land, as made by George Gibson, county surveyor of Trinity county, Tex., and investigation led him to believe that by corrections in the field notes of the survey, there was at least a portion of the survey subject to patent, and he thereupon began a search for the heirs of Lewis Cox, and found that Lewis Cox had died in Walker county, Tex. This search finally culminated in the finding of the heirs of Lewis Cox, deceased, and these heirs executed a power of attorney to T. E. Humphrey, the conditions of which were that Humphrey was to do those things necessary to the location and patent of the land, and bearing the expenses thereof for a half interest in the -land; and through this power of attorney and two or three later conveyances, all of the heirs of Lewis Cox, deceased, conveyed their interest in the donation certificate to T. E. Humphrey, and these convey-; anees include the heirs also of Minerva I. Rowe, deceased.

The work of Mr. Humphrey was successful, and on the 15th day of April, 1908, he secured a patent to 221 acres of land under the donation certificate of 640 acres to Lewis Cox, before mentioned.

By proper conveyance in July, 1908, T. E. Humphrey conveyed the land in question to Davidson-Ingram Lumber Company, and the appellee Benford Lumber Company, it is agreed by the parties to the suit, is the successor of the Davidson-Ingram Lumber Company, and owns the Davidson-Ingram Lumber Company’s title to the land. This deed was filed for record July 18,1908, in the office of the county clerk of Polk county.

The plaintiff, appellant, contends that the court erred in not rendering judgment for him for the land sued for; that the record of the excerpt of the judgment in Trinity county was sufficient to put the appellee upon notice of his title; that the recording of the deeds in 1860 in Trinity county also put the appellee upon notice of his rights in the premises.

The appellee contends that the excerpt of the judgment, as recorded in Trinity county, was not notice to the appellee, because it does not give the correct date of the judgment, and does not name all of the parties to the original partition suit, and because it was never recorded in Polk county, Tex., after the portion of Trinity county which contained the land was attached to and became a part of Polk county.

Appellee contends, also, that the abbreviated decree, as recorded in the deed records of Trinity county, Tex., is not constructive notice, because the certified copy read in evidence in the case fails to show on its face, or by the certificates of the clerk who recorded the same, either the first or the last record, that said abstract or abbreviated decree was indexed in the deed records where it was recorded.

Appellee contends, also, that the plaintiff’s demand is stale, and for that reason he cannot recover; and that the appellee is a purchaser for value in good faith and without notice of the claim of the appellant, either actual or constructive.

The decree of the partition in the district court of Walker county bears date April 17, 1856, and the excerpt recorded in Trinity county says that the decree was at the spring term of the district court for Walker county, 1857. The excerpt from the judgment which was recorded in Trinity county does not give the, names of all of the parties to the suit.

There were no facts in the record which show that any index was made to the record of the excerpt from the judgment, and we are forced to the conclusion that it was not made; otherwise it would have been proved. We believe that it was necessary, under the statute, for this index to have been made, in order to put a purchaser in good faith for value on notice. Our view of the law is, that the very purpose of'this index is to assist parties in determining as to the title of land by enabling them to readily ascertain from an investigation of those records what persons, if any, are claiming the land, through such source.

Article 5015, Paschal’s Digest, reads as follows:

“Each recorder shall provide and keep in his office a well-bound book, and make and enter therein an index in alphabetical order, to all books of records wherein deeds, mortgages, or other instruments of writing concerning lands and tenements are recorded, distinguishing the books and pages in which each such deed or writing is recorded.”

Article 5016 reads as follows:

“Such index shall contain the names of the several grantors and grantees in alphabetical order; and in case the deed be made by a sheriff, the name of the sheriff and the defendant in execution ; and if by executors or administrators, their names and the names of their testators or intestates; and if by attorney, the name of such attorney and his constituents; and if by a commissioner, the name of such commissioner and the person whose estate is conveyed.”

Our Supreme Court has given weighty consideration to the necessity and utility of the proper indexing of mortgage liens, and deeds, whether to chattels or to realty. In the case of Gullett Gin Co. v. Oliver & Griggs, 78 Tex. 182, 14 S. W. 451, Justice Gaines cites with approval Nye v. Moody, 70 Tex. 434, 8 S. W. 606, in which Justice Walker wrote the opinion. After quoting from articles 3155, 3157, 3158, and 3159, Revised Statutes, Justice Walker says:

“The case was tried by the judge, and he found as a fact that the abstract of the judgment had not been indexed, and that the lion was not fixed by the record without such indexing. The testimony on which the finding was based was amply sufficient. The abstract had not been entered on the index as the statute required.” “As the lien is the creature of the statute, it follows that until the conditions to the lien fixed by the statute have been complied with the lien is not established. The indexing so carefully described and provided for cannot be dispensed with by the courts. The terms used in. the statute are simple and clear. The meaning and intent are expressed. It is not for the courts to question the policy of the law. They can only apply it to a state of facts ascertained when rights are litigated and the jurisdiction of the courts invoked.”

In Gullett Gin Co. v. Oliver & Griggs, Justice Gaines says:

“The third objection to the record of the abstract is of a more serious character. It was indexed, but the index showed only the partnership name of defendants in the judgment. Their names appeared indexed only under the letter M, and in the style of the firm, to wit, ‘Mitchell & Scruggs.’ The language of the statute is-clear and its purpose obvious. ‘The index to such judgment record shall be alphabetical, and shall show the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which the abstract is recorded.’ Revised Statutes, art. 3058. This means that each name must appear in the index in its alphabetical order. The evident object is that persons searching the records in order to discover the existence of judgment liens may have the means of ascertaining with promptness and certainty whether such liens exist or not. In this case a third person who had no knowledge of the particular judgment dealing with Scruggs, would have been compelled to examine the entire index of the entire record in order to have ascertained that the abstract had been recorded. It is evident, we think, that in this particular the statute has not been complied with either literally or in substance.”

And in Schneider v. Dorsey, 96 Tex. 548, 74 S. W. 526, this doctrine is reasserted with approval by Chief Justice Gaines. Can it be said that the brief statement from the judgment can be of less importance than the filing and indexing of a mortgage? The statute that requires the one requires the other. We think it was necessary for the excerpt, or brief statement, of the judgment to show the names of the parties to the suit, and to give the correct date of the judgment. Again, can it be said that the necessity for the proper indexing of such brief statement is of less importance than the proper indexing of a mortgage or deed of trust? The very purpose of the index is to enable those who may be interested in the title to such land, or those investigating the title to such land, to readily ascertain from the index who, if any one, is claiming an interest in the land. As this record stands before us, there was no such index.

The record conclusively shows that appellee and those under whom it claims, made full investigation as to the title to the land; that is, they had their legal counsel to investigate such title, and they reported back to the appellee that the title was good, and we think, under the facts of the case, counsel were warranted in so reporting. Paschal’s Digest, art. 5051; Schneider v. Dorsey, 96 Tex. 548, 74 S. W. 526; Gin Co. v. Oliver, 78 Tex. 182, 14 S. W. 451; Thornton v. Mooney, 50 Tex. 161; Russell v. Farquhar, 55 Tex. 355.

As a primary rule of law, we do not understand that a purchaser of land is required to go back behind the sovereignty of the soil, or behind patent from the state. The patent to this land was made to the heirs of Lewis Cox April 15, 1908, and filed for record on the 28th day of May, 1908, in the office of the county clerk of Polk county, Tex.

Nothing occurs of record in Polk county as to Leonard’s claim up to the year 1910, and so far as the record shows, no sort of claim was ever asserted by him to this land after the year 1874, when he had the abbreviated statement re-recorded in Trinity county, Tex., and it is to be borne in mind that part of Trinity county which contained this land became a part of Polk county the following-year, 1875. With this great lapse ¡of time, we believe that appellee’s counsel was warranted in making no further investigation than the records of Polk county would show as to this land. The undisputed evidence shows that appellee gave full value for this land, when it purchased it, and we think under these facts and conditions, it secured the title to the land. Bogart v. Moody, 35 Tex. Civ. App. 1, 79 S. W. 633; Breen v. Morehead, 104 Tex. 254, 136 S. W. 1047, Ann. Cas. 1914A, 1285. In Bogart v. Moody, Justice Gill uses the following language:

“It seems to be fairly well settled in this state that purchasers of land need not go behind the patent in their investigation of title, unless put upon inquiry by some extraneous fact, or by the recitals in the patent, or some subsequent link in their chain of title.”

And in the opinion in that case he quotes with approval the opinion in Wimberly v. Pabst, 55 Tex. 592, in which the following language is used:

“To the public generally, a patent to land having been issued by * * * the state carries with it a high degree of faith and credit, as the beginning link in the legal chain upon which all after-acquired title can securely depend. When, therefore, a subsequent purchase is made upon the faith of a patent, regular upon its face, public policy requires that it should constitute an important element in the question of the good faith of the transaction, and should turn the scale in its favor, except in cases of actual notice, or when the law would impute constructive notice of some defect sufficient to defeat it.”

The same doctrine is forcibly announced in many of the Texas authorities. Durst v. Daugherty, 81 Tex. 650, 17 S. W. 888; Sickles v. White, 66 Tex. 179, 17 S. W. 543; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870.

This case is void of any act or omission on the part of the appellee that would tend toward had faith or wrongdoing On its part. Everything was done that a prudent person could do to know that it was getting the title to the land, nor did it part with its money until able counsel recommended the title good. It then paid full value for the land, thereby demonstrating its good faith and innocence. There is nothing in the patent nor in any link of the appellee’s chain of title that would have the least tendency to put one upon inquiry. All of the heirs of Lewis Cox join in the title to appellee’s vendor, and the chain of title shows affirmatively that they are all the heirs of Lewis Cox, deceased. So nearly 40 years nothing had been done by appellant save to re-record the excerpt of the allotment of the certificate to Minerva I. Rowe in Trinity county; and more than 50 years passed by from the time appellant bought the land chattel awarded to Minerva I. Rowe, and had done nothing towards having the land patented to him; and, then, after another had done the work and met the expense of hunting up the heirs of Lewis Oox, and securing letters of patent, and after the land is conveyed by this chain of title for its full value, with nothing in its chain of title to put it upon inquiry as to any claim of appellant, we think appellant’s viewpoint is not tenable, and Holmes v. Johns, 56 Tex. 52, 53, Taylor v. Harrison, 47 Tex. 459, 26 Am. Rep. 304, Branch v. Weiss, 23 Tex. Civ. App. 84, 57 S. W. 901, and the authorities cited by these authorities are decisive of this point.

We believe that the proper conclusion was arrived at by the able trial court upon the facts of the case, as they appear of record, and no errors appearing upon the trial of the cause, it is therefore affirmed.

Affirmed.
      ©saFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WESTERN UNION TELEGRAPH CO. v. SIMS.
    (No. 28.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 30, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Telegraphs and Telephones <&wkey;65 — Failure to Deliver Telegram — Mental Anguish — Action—Proof Required. ■
    Where, in an action to recover for mental anguish occasioned by the failure of a telegraph company to deliver a message sending money to plaintiff’s daughter to enable her to come home from another town, sent by plaintiff in response to a telegram from her that she was sick, the anguish being occasioned by the fact that she was prevented from coming home by the failure to deliver the message, and that plaintiff feared she would not have proper attention, and that she would have come home had she received the money, it appeared that the daughter had proper attention and would not have come home had she received the money, plaintiff cannot recover, since under the rule that one cannot recover damages for mental anguish based upon imaginary conditions which in fact do not exist, laintiff was required to show that had his aughter received the money she would have returned home.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54^60; Dec. Dig. &wkey;»65.]
    2. Telegraphs and Telephones <&wkey;57 — Joint Agent Taking Message — Liability.
    Where plaintiff delivered such message for sending to the joint agent of the telegraph company and railroad company who sent it over the railroad company’s wire to the railroad agent at destination because there was no money office of the telegraph company at the sending point, of which facts plaintiff was unaware and not informed by the agent, defendant could not escape liability for failure to deliver, on the ground that the message had never been delivered to it, since a telegraph company holds itself out as a dispatcher of messages for hire, which is not true of a railro.ad company, and plaintiff therefore had the right to presume that his delivery to such joint agent was proper.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 3S; Dec. Dig. <&wkey;> 57.] .
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by J. F. Sims against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Judgment reformed.
    F. J. & C. T. Duff, of Beaumont, for appellant. R. L. Durham, of Beaumont, for appel-lee.
   MIDDLEBROOK, J.

On the 3d day of June, 1915, appellee, J. F. Sims, brought suit against the Western Union Telegraph Company in the county court of Hardin county, Tex., for $800 damages, $500 alleged to be actual, and $300 exemplary damages, alleging that the defendant, Western Union Telegraph Company, was negligent in the delivery of a message to his daughter, Miss Charles Sims, at Lake Charles, La., in reply to the following message:

“Had chill last night, and fever ever since arrived here. Doctors advise not to work, so wire me five dollars. Am coming home.
“Charles.”

This message was received at Kountze on the 26th day of June, 1913, and as soon as he received the message, Mr. Sims, father of Charles Sims, went to the telegraph office at Kountze, and gave the operator, who was both agent for the Western Union Telegraph Company and for the Texas & New Orleans Railroad Company, $5, with instructions to wire it to his daughter, Charles Sims, at Lake Charles, sufficient money to be taken out of the $5 to purchase a railroad ticket from Lake Charles to Kountze, and for the balance of the $5, $2.45, to be paid to his daughter.

The Western Union Telegraph Company had no money office at Kountze, and the agent there wired the $5 by the railroad company’s wire to the railroad agent at Lake Charles, with instructions to furnish Charles Sims ticket from Lake Charles to Kountze, and to give the balance of the $5, $2.45, to Charles Sims. The evidence shows this was not done.

Mr. J. E. Sims met «several trains upon which he expected his daughter to return to Kountze, after he sent the message, but she did not return, and he alleges great mental anguish on account of being disappointed in his daughter’s return, that she was among strangers, that he feared she would not have proper attention, and that had she received the $5 she would have returned home. The telegraph company answered by general demurrer, some special exceptions, and plea of not guilty. Some of the special exceptions should have been sustained, but it will not be necessary to dispose of that feature of the case under our disposition of the ease as a whole. The appellee, J. E. Sims, has filed no brief in the case.

The plaintiff, appellee, must recover, if at all, upon the allegations of his pleadings, the essential features of which are that by reason of the negligent delay of the telegraph company in delivering his message and money to his daughter, she was prevented from returning home, and he expected her to return on each train after he sent the message, and because she did not return, it aroused grave fears in his mind, and he suffered great mental anguish because his daughter was among strangers, and because she did not return in response to his message. It is a well-settled rule in this state that one cannot recover damages for mental anguish based on imaginary conditions, which, in truth, did .not exist. In other words, if the plaintiff recovers, he must show by a preponderance of the testimony that the allegations of his petition, in laying his damages, are true. In the instant case it would be necessary for him to show that had his daughter received the money and the ticket, she would have returned home.

Miss Charles Sims testified as follows:

“My name is Charles Sims. On the 22d day of June I sent a telegram to my mother. I called at the Western Union Telegraph Company for a reply. At the time I had fever, and was delirious for several days, and not hearing from my parents, I did not know what to do. I was a stranger in Lake Charles. I had enough money to send the message, and also had money until several days after I had sent it. I had enough to have come home on. After conversing with my father over the telephone, I called at the telegraph office for about two weeks, and they had my address and telephone number, and the agent also wired Kountze. I sent the message for the purpose of informing my mother and father of my sickness and of my condition. While in Lake Charles I stayed at Dr. Lyons. I did not know Dr. Lyons when I went there. Dr. Watson was my physician. He gave me the proper attention. I had all the drugs and . the medicine I needed. A colored woman waited on me. Mrs. Lyons stayed near my room and talked to me and did all she could for me. They were very nice to me, and saw that I had the proper diet. I was delirious for about three days after sending the telegram, and was confined to my bed at that time. I sent the message early in the morning, and became delirious about three minutes after sending it. During that sickness I was confined to my bed for about two weeks, although I came to the phone and talked with my father. I was too sick to travel. At the time I sent the message I had enough money to come home on. I went to the Western Union and asked if they received a reply to my message the first time I was able to leave the house. This was about two weeks after I sent the message. My father called me up over the phone on Saturday morning. I told him that I had been sick. I was not acquainted in Lake Charles when I went there. I stayed at Dr. Lyons’ house from the time I arrived there until I left. At the time I wired my father, the Western Union Telegraph Company knew where I was in case of a reply. I gave them my telephone number, and Dr. Lyons’ residence is in the heart of the city. I gave the agent my telephone number when I gave him the message. The message was written on a plain piece of paper, and I wrote the telephone number on the paper. My purpose in sending the telegram was to have my father or mother or some of my people come to Lake Charles. At the time of sending the message I was not in a condition to come home. After I became delirious, I knew that I could not come home, even with an attendant. Eor three days I was delirious that time. I have had money wired me here at Kountze. My stepbrother wired me $10. I don’t remember whether it was a railroad wire or Western Union, but it was some time last May.”

The above is the entire testimony of Miss Charles Sims. This testimony absolutely disputes the plaintiff’s contention in this ease, that his daughter would have returned home had she received the $5. Plaintiff’s first assignment of error, to wit:

“Before there can be any recovery for mental anguish by reason of the nondelivery of a telegram, the evidence must show that if said .message had been delivered, there would have been a different result”

—must be sustained. Telegraph Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Telegraph Co. v. Landry, 108 S. W. 461; Telegraph Co. v. Campbell, 36 Tex. Civ. App. 276, 81 S. W. 580; Telegraph Co. v. Adams, 80 S. W. 93; Telegraph Co. v. Morrison, 33 S. W. 1025.

It follows, necessarily, that appellant’s second assignment of error, to wit:

“The undisputed evidence showing that Miss Charles Sims, the daughter of plaintiff, during her illness, was among friends, had every attention that her condition demanded, was supplied with all the necessary medical attention and drugs, the court erred in rendering judgment in favor of the plaintiff”

—must also be sustained, for imaginary fears cannot be the basis for the recovery of damages for mental anguish. Hart v. Telegraph Co., 53 Tex. Civ. App. 275, 115 S. W. 638, and authorities therein cited. The disposition we have made of the first two assignments of error by appellant, disposes of the ease, except as to the $5 delivered to the appellant by the appellee.

The third assignment of error by appellant is to the effect that the evidence not showing that J. F. Sims ever delivered the $5 to the defendant telegraph company to be transmitted to his daughter by said company, but on the contrary showing that the money was delivered to the T. & N. O. Railroad agent, and transmitted by him to the railroad agent at Lake Charles, over the railroad company’s wire, appellant could not be held responsible for any negligence. We do not think this assignment of error, under the facts of this case, is well taken. The railroad agent and the Western Union telegraph agent at Kountze is the same person. The same agent had just delivered a Western Union telegraph message from appellant’s daughter to appellant, and he still had the Western Union telegram in his hand when he went to the Western Union agent and gave him the $5 and instructed him to telegraph it to his daughter. It is generally known that the Western Union Telegraph Company holds itself out as a dispatcher of messages and money for the general public for hire. Such is not the case or undertakings of railroad companies.

We think, therefore, that the appellee, J. F. Sims, would be warranted in presuming that his message and money was sent through the ordinary channel. The Western Union agent did not inform appellant that it was not a money office, nor that he was sending it by railroad wire. Appellant’s third assignment of error is therefore overruled.

The judgment of the lower court is reformed, and judgment here entered for the appel-lee, for the sum of $5, with 6 per cent, per annum interest thereon from the 26th day of June, 1913, and for costs.
      «gnalfor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXARKANA & FT. S. RY. CO. v. SCHEVOIGHT et ux.
    (No. 43.)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 11, 1915.
    On Rehearing, Jan. 13, 1916.)
    1. Evidence <§=10 — Judicial Notice.
    The courts will not take judicial notice of the scenic beauty along the line of a railway company.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. <§=10.]
    2. Carriers <§=>277 — Carriage oe Passengers — Actions—Damages.
    As the law furnishes no rule for estimating damages for" mental anguish, and the jury’s award will not be disturbed unless they are actuated by improper motives, an award of $425 in favor of plaintiff who was negligently carried to a different place from that to which she had secured a ticket, and who was exposed to ridicule and long delays in reaching her destination, cannot be held excessive, though the line over which plaintiff was wrongfully carried was one of great scenic beauty.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. <§=277.3
    Error from District Court, Jefferson 'County; John M. Conley, Judge.
    Action by C. J. Sehevoight and wife against the Texarkana & Ft. Smith Railway Company. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Hightower, Orgain & Butler, of Beaumont, for plaintiff in error. H. V. Tucker, of Liberal, and V. A. Collins, of Beaumont, for defendants in error.

      AppIieation for writ of error pending in Supreme Court.

   MIDDLEBROOK, J.

This is a suit by C. J. Sehevoight and his wife, Lula Sehevoight, against the Texarkana & Ft. Smith Railway Company, in which the plaintiffs, defendants in error here, sought to recover damages of the defendant, Texarkana & Ft. Smith Railway Company, plaintiff in error here, for wrongfully and negligently carrying plaintiff’s wife, Lula Sehevoight, to a different place from that to which she had secured a ticket.

Briefly stated, C. J. Sehevoight was at Port Arthur, Tex., having gone there ahead of his wife, and prepared a home. They were at Quitman, Miss., prior to his going to Port Arthur. After he had prepared a home at Port Arthur, he sent his wife a railroad ticket to Quitman, Miss., to come to him at Port Arthur. She received the ticket, and started on her journey to Port Arthur, but when she reached Beaumont she was in a car that was cut out of the train that went to Port Arthur, and this car was attached to another train and carried to Galveston. At Shreveport she inquired of the conductor for the train to Port Arthur, and the conductor placed her in the car she was in when she arrived at Beaumont. She knew nothing of any change at Beaumont, nor was there any announcement in the car that she was in that it would be cut out of the Port Arthur train and would be carried to Galveston, and she was carried some 20 miles out of Beaumont when she learned that the car she was in was going to Galveston, and not to Port Arthur. She learned this through the conductor, who came to take up her ticket. The conductor insisted on her paying railroad fare, but she refused, and did not pay it. The conductor told her that she should get off at Port Bolivar, and there remain until the next train back to Beaumont, which she did. When the conductor told her she was on the wrong train, it attracted the attention of others in the car, and she was laughed at and humiliated. It was'hot-weather, and she could not stay on the galleries of the little station at Port Bolivar, and requested the railroad agent there to let her go to his home, which he did. She remained at his home the balance of the day from about noon until 7 p. m., and was treated kindly by the agent’s family, but the agent’s family had supper while she was there, and she was not invited to participate in the meal. About 7 o’clock she boarded the train from Port Bolivar back to Beaumont, arriving in Beaumont about 12 o’clock at night, and in Beaumont had to pay hotel bill, hack hire, etc., stopping while in Beaumont at the Orosby House. After she arrived back in Beaumont she communicated with her husband by telephone, and apprised him of her delay, etc. Her baggage was checked through from Shreveport to Port Arthur. She was already weary from traveling, and when she learned that she was on the car going to Galveston, instead of to Port Arthur, she thought of her baggage going on through to her home, and the impressions it might make upon her husband, and, all taken together, she suffered intense mental anguish, and for about a week afterward she was sick and suffered, but did not take her bed, nor call a physician to attend her. While in Port Bolivar she tried to communicate by long-distance telephone with her husband, but could not, and there was no telegraph station at Port Bolivar. She reached her home at Port Arthur between 8 and 9 o’clock the next day. The ticket was wired to her by her husband, and when she got to Shreveport she wired her husband. She had no acquaintance in Beaumont. She paid transportation from Port Bolivar back to Beaumont. When the conductor informed her that she was on the wrong road and going to Galveston, instead of to Port Arthur, it 'humiliated and distressed her, because everybody stared and laughed at her.

The only error assigned in this case is:

. “The verdict of the jury in favor of the plaintiff in the sum of $425 to Lula Schevoight is excessive in amount, and unwarranted by the evidence, and shows that the jury was controlled by prejudice and passion, or some other improper motive.”

Defendants in error object to consideration of this assignment of error for several reasons, which likely are not without merit; but, on account of conditions which it is agreed by counsel on both sides surrounded them at the time the motion for a new trial was overruled by operation of law, we have decided to consider the whole record.

In his argument attached to his brief plaintiff in error avers that much of the line of railroad between Beaumont and Galveston passes along the Gulf of Mexico, and affords a beautiful view; that there are several stations between Beaumont and Port Bolivar, at any of which she could have disembarked from the train and been back in Beaumont by automobile within a short while, and several of said stations are on shell roads.

It is likely true that this railroad does afford a splendid view that would be a delight to one in pursuit of pleasure. The court will not take judicial knowledge of such matter, and the writer hereof has never traveled this particular line to Galveston, and is unable to either confirm or dispute this statement in appellant’s argument in his brief, but there is nothing in the record as it stands before us to support such argument, and, if there was, we are not willing to say that such scenery would have been a delight to this woman, who was wanting to go home, instead of on a pleasure trip. The fact is to some aesthetic person it might have been an actual delight to have been carried away from the place he was wanting to go, just as this woman was, but the jury has found that it was not a delight to her, and she suffered in con sequence thereof, and .under the authorities on this line, as handed down by our Supreme Court, we do not feel competent to say just how much the lady suffered under the conditions. In the language of our Supreme Court, which has been often repeated:

“The law furnishes no rule for estimating damages for mental anguish; this is left to the discretion of the jury, and that discretion will not be controlled or the verdict vacated, unless it appears from the amount for which the verdict is returned, together with other matters disclosed by the record, that the jury may have acted from prejudice or other improper influence, rather than an honest desire to award adequate compensation for the injury.” 73 Tex. 430, 11 S. W. 388.

So far as we are able to see, there is nothing in this record that discloses any undue influence upon the jury, or that discloses or tends to disclose that the jury acted from any other than what, under the evidence of the ease, appealed to them to be a proper verdict.

Such being the case, we do not feel it the province of this court to disturb the findings of the jury and the judgment of the court. Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665; Railway Co. v. Profert, 72 Tex. 344, 10 S. W. 207; Railway Co. v. Douglas, 73 Tex. 325, 11 S. W. 333; Western Union Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385; and cases in these authorities cited.

The case is affirmed.

On Rehearing.

Having read and considered the motion for rehearing filed in this case by the able counsel for the plaintiff in error, we see no reason for any change in the original opinion, as handed down by this court. Plaintiff in error’s motion for rehearing is therefore overruled.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    CRUM v. THOMASON.
    (No. 5568.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    Rehearing Denied Jan. 19, 1916.
    On Motion to Certify to Supreme Court Feb. 2, 1916.)
    1. Nuisance &wkey;48 — Pleading—Measuee oe Damages.
    A petition, alleging plaintiff’s ownership of certain premises, the erection by defendant of a cotton gin near by, the facts constituting its operation a nuisance, and that plaintiff was damaged thereby in the sum of $495, stated a good cause of action without alleging the market value of the premises immediately before and immediately after the erection and operation of the gin, as the measure of damages is a matter to be regulated by the charge, and need not be pleaded.
    [Ed. Note. — Eor other cases, see Nuisance, Cent. Dig. §§ 113, 114; Dec. Dig. <@=348.]
    2. Appeal and Error <&wkey;1051 — Harmless Error — Admission oe Evidence.
    In an action for damages to plaintiff’s property from the erection and operation of a cotton gin claimed to constitute a nuisance, -where plaintiff testified that he was familiar with the market value of his property immediately before and after the erection of the gin, that before its erection it was worth $650, and that since it was erected and operated it was not worth more than half such amount, his further testimony that he did not think that his premises would be worth $300 was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;> 1051.]
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by J. O. Thomason against Fred Crum. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Critz & Woodward, of Coleman, for appellant. Woodward & Baker, of Coleman, for appellee.
   RICE, J.

In September, 1914, appellee resided on lot No. 3, block 12, in the old town of Santa Anna, and while occupying the same as his home, together with his family, appellant erected near said premises, and immediately south thereof, a cotton gin, which it is claimed by appellee was so operated during said season as to become a nuisance, and this action is brought to recover damages therefor. Answering, appellant specifically denied many of the allegations of appellee’s petition, and as to others claimed that his knowledge was insufficient upon which to form any belief. The case was tried before a jury on special issues, and upon the findings of the jury judgment was rendered by the court in favor of appellee and against appellant, for the sum of $100, from which judgment this appeal is prosecuted.

The chief contention involved in this appeal is that the verdict and judgment are not authorized by the pleadings, in this, that the petition failed to set forth any measure of damages; whereas, the measure of damages submitted to the jury by the court was the difference between the market value of the property immediately before and immediately after the erection and operation of said gin. The plaintiff, after alleging his ownership of the premises, the erection of the cotton gin near by, and the facts constituting its operation a nuisance, alleged that he was damaged thereby in the sum of $495. The petition, in our judgment, sets forth a good cause of action. No exception was urged thereto. It has been frequently held in this state, in actions for damages, that it is not necessary to plead the measure of damages in order to authorize a recovery, but this is a matter of law that should be regulated by the charge of the court. In International & Great Northern R. R. Co. v. Glover, 84 S. W. 604, Mr. Justice Eidson, in discussing an exception to the petition based on a similar objection, said:

“By said exception appellant contends that appellee’s petition is insufficient in law, because no proper or allowable measure of damages is therein alleged, nor is it alleged how or in what manner plaintiff has been damaged by defendant to the amount sued for. The part of appellee’s petition to which said exception is addressed is as follows: ‘That by reason of the said injuries plaintiff and his said wife and their estate was and is damaged in the full sum of $750; that of such damage the sum of $400 results from the injury to said land caused by the wasting away of the soil and cutting ditches therein, which injuries, plaintiff alleges, were and are permanent; and the remaining $350 of such damages results from the other injuries hereinabove shown.’ Appellant’s contention is that the appellee should have alleged the value of the property before and after the alleged damage occurred. The point insisted upon by appellant under the above assignment was decided. adversely to its contention in the case of City of San Antonio v. Pizzini (Tex. Civ. App.) 58 S. W. 636, and, in our opinion, correctly ; hence there was no error in the action of the court in overruling said exception.”

In the Pizzini Case referred to, Mr. Justice Neill, discussing a similar question, said:

“The contention of appellant as to its exception to the sufficiency of appellee’s petition, taken upon the ground that it did not allege the market value of the land prior to and after the injury, was, in our opinion, properly overruled. While the measure of damages for permanent injury to land is the difference between its market value immediately before and after the injury, it is unnecessary to allege such market value; it being only necessary to allege the amount of damages sustained by reason of the injuries to the premises. Market values immediately before and after the injuries are simply evidence of the damages, and are not required, by the rules of good pleading, to be averred.”

This doctrine has been approved in Southwestern Portland Cement Co. v. Kezer, 174 S. W. 669; also in Pecos & North Texas Ry. Co. v. Coffman, 160 S. W. 145. See, also, Weller v. Missouri Lumber & Mining Co., 176 Mo. App. 243, 161 S. W. 853, and cases there cited; also St. Louis S. W. Ry. Co. of Texas v. Jenkins, 89 S. W. 1106, where it is held as shown by the syllabus, that the petition, to state a good cause of action, need not set out or disclose a proper legal measure of damages. All that is necessary is a statement of the facts essential to a cause of action.

We, therefore, hold that the court did not err in submitting the case to the jury on the proper measure of damages, as was in fact done, since the pleading authorized the submission under the authorities above stated. But, if we are incorrect in this, appellant is not in a position to take advantage of the supposed error in the charge, for the reason that he failed to take any exception thereto, as required by the acts, of the Thirty-Third Legislature, c. 59, p. 113, and therefore must be held to have waived said objection. See I. & G. N. R. R. Co. v. Frank, 177 S. W. 168; Same v. Bartek, 177 S. W. 137; Floegge v. Meyer, 172 S. W. 194. Tile giving or refusing of charges cannot be reviewed by an appellate court unless bills of exception are taken to the action of the court. See Nelson v. Boggs, 177 S. W. 1005. An instruction to which no objection is presented must, under the amended law, be regarded on appeal as approved. Kell v. Ross, 175 S. W. 752. A charge not excepted to will be regarded as requested, and not the subject of review on appeal. See Cleburne Ry. Co. v. Barnes, 168 S. W. 991.

It is urged by the third assignment that the court erred in permitting appellee to testify, over objection of appellant, among other things, that he did not think that his premises would be worth $300. This statement was harmless, for the reason that the witness had just testified in the same connection that he was familiar with the market value of his property immediately before and after the erection of the gin, stating that before its erection it was worth $650, and that since the gin was erected and operated, it was not worth more than half such amount.

Finding no error in the proceedings of the trial court, its judgment is, in all respects, affirmed.

Affirmed.

On Motion to Certify to Supreme Court.’

We are asked to certify this case to the Supreme Court, on the ground that our opinion herein is in conflict with the holding of the Dallas Court of Civil Appeals on the same question in Tomson v. Simmons, 180 S. W. 1141, and Shaw v. Garrison, 174 S. W. 943. It will be noted that in our original opinion, after holding that the petition stated a good cause of action, we added that, even if we were incorrect in this, the appellant was not in position to take advantage of the supposed error in the charge, for the reason that he had failed to take any exception thereto, as required by the Acts of the Thirty-Third Legislature, c. 59, p. 113, and therefore must be held to have waived said objection. The Dallas Court of Civil Appeals having held in the cases above cited that, where a case is submitted on special issues, it is unnecessary to except to any error therein, in order to take advantage of such error on appeal. The question of practice thus discussed and disposed of by us was not necessary to a decision of the case. We therefore withdraw that portion of the opinion referred to; and, as the caáe was properly affirmed, in our judgment,’ on the other questions discussed, we overrule the motion to certify.

Motion overruled.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=^Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CRUM v. MEYERS.
    (No. 5567.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    Rehearing Denied Jan. 19, 1916.
    On Motion to Certify to Supreme Court, Feb. 2, 1916.)
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action between Fred Crum and G. W. Meyers. From a judgment for the latter, the former appeals.
    Affirmed.
    Critz & Woodward, of Coleman, for appellant. Woodward & Baker, of Coleman, for ap-pellee.
   RICE, J.

This is a companion case to that of Fred Crum v. J. O. Thomason, 181 S. W. 803, this day decided by this court, in which practically the same questions were raised and decided adversely to appellant’s contention herein, for which reason the judgment of the court below is, in all things, affirmed.

Affirmed. •

On Motion to Certify to Supreme Court.

We are asked to certify this case to the Supreme Court for the same reason as set forth in the motion to certify in cause No. 5568, styled Fred Crum v. J. O. Thomason, pending in this court. 181 S. W. 803. We adopt the opinion this day filed on the motion to certify in said cause No. 5568, and for the reasons stated therein we withdraw that portion of the original opinion in this case that is withdrawn in the case referred to, and overrule the motion to certify.

Motion overruled.