author: BUCK, J.

text:
    FIRST STATE BANK OF BLACKWELL v. KNOX.
    (No. 8085.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 23, 1915.)
    1. Appeal and Eeroe &wkey;>731 — Assignment OP EEEOES — SUFFICIENCY — LACK OF EVIDENCE.
    An assignment of error that complains that the verdict is contrary to the law and evidence because there is no evidence to establish a fact necessary to sustain the verdict and judgment is sufficient, though one which merely charges that the evidence was insufficient to establish such fact is not a sufficient assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. <&wkey;> 731.]
    2. FRAUDULENT CONVEYANCES <&wkey; 295-dence — Sufficiency—Intent. -Evi-
    In trespass to try title, evidence held sufficient to support a special verdict finding that the deed under which an intervener claimed was executed by defendant without consideration and with intent to defraud his creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 867-875; Dec. Dig. &wkey;>295.]

      3. Pleading <&wkey;180 — Supplemental Petition — New Cause op Action — Fraudulent Conveyance.
    Where an intervener in trespass to try title claimed the property under a deed from defendant, a supplemental petition, alleging that the deed was executed to defraud defendant’s creditors, did not state a new cause of action, since the office of a supplemental petition is to reply to defendant’s answer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 358-384; Dec. Dig. i&wkey;>180.]
    4. Trespass to Try Title &wkey;>33 — Pleading —Supplemental Petition.
    Though, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7740, all evidence except as to limitations may be offered without further pleading where defendant in trespass to try title pleads not guilty, where the defense specifically pleads a conveyance to defeat plaintiff’s title, the latter may by supplemental petition allege any facts that establish the superiority of his title over such conveyance.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 42 — 49; Dec. Dig. <&wkey;>
    5. Fraudulent Conveyances &wkey;»2G6 —• Pleading — Indebtedness to Plaintiff.
    Where an intervener in trespass to try title pleaded a conveyance by defendant to him, plaintiff, in his supplemental petition charging that the conveyance was intended to defraud defendant’s creditors, might properly allege that at the time the conveyance was made defendant was indebted to him; since the rights of a creditor whose debt accrues prior to an alleged fraudulent conveyance may be superior to those of a subsequent creditor.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 782, 784-788; Dec. Dig. &wkey;26G.]
    6. Appeal and Error &wkey;>1040 — Harmless ■Error — Rulings on Pleadings.
    Error in overruling an exception to a supplemental petition which sought to allege res judicata was harmless, where no evidence was admitted on that issue, and it was not submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. <&wkey;> 1040.Í
    7.Pleading <&wkey;ll — Evidence—Intent.
    An exception to an allegation in the supplemental petition setting up fraud in the conveyance under which intervener claimed that defendant had conveyed other property to the intervener’s predecessor at the same time and for the same purpose, and that he had ■ been sued by various persons at about that time, was properly sustained, since the allegation was a pleading of evidence.
    [Ed. Note. — For other cases,' see Pleading, Cent. Dig. § 31; Dec. Dig. <&wkey;>ll.]
    8.Evidence <&wkey;-135 — Similar Facts — Fraud —Intent.
    Notwithstanding the striking of such allegation, evidence of those conveyances and suits was admissible to show fraudulent intent in making the conveyance under which the inter-vener claimed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 392, 394, 404, 405; Dec. Dig. <&wkey;> 135.]
    9.Appeal and Error &wkey;>664 — Questions Review able — Admission of Evidence — Necessity of Exceptions.
    Where a qualification by the trial court of a bill of exceptions to the admission of evidence states that the stenographer’s record does not show an exception reserved to the admission of evidence, an assignment of error thereon will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. <&wkey; 664.] ,
    10. Appeal and Error <&wkey;548 — Questions Reviewable — Remarks by Court — Bill of Exceptions.
    Where no bill of exceptions was reserved covering a comment of the court in excluding evidence, an assignment of error to such comment could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey; 54S.]
    11. Fraudulent Conveyances &wkey;>286 — Evidence — Admissibility.
    Great latitude should properly be allowed by the trial court on the issue of fraud in making a conveyance.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 822-825, 827-834, 863-866; Dec. Dig. &wkey;286.]
    12. Trial <&wkey;29 — Remarks by Court — Admission of Evidence.
    Remarks by the court in overruling an objection to the admission of evidence to show a fraudulent conveyance, to the effect that “when fraud is alleged gaps are thrown down and sometimes evidence is not admissible under an allegation of fraud,” and also that the evidence “is close enough to inquire into,” and that “a party cannot attempt to make the case out all at once; it has to be done by piecemeal,” were not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dec. Dig. &wkey;29.]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Trespass to try title by J. B. Knox against John R. Daniel, in which the First State Bank of Blackwell, Tex., intervened, claiming the property. Judgment for plaintiff, and the intervener appeals.
    Affirmed.
    Beall, Smith & Spencer, of Sweetwater, for appellant. Eugene De Bogory, of Abilene, for appellee.
   BUCK, J.

This suit was instituted on August 16, 1913, by the appellee, J. B. Knox, against John R. Daniel, in the district court of Taylor county Tex., on a petition of trespass to try title, in which appellee alleged that theretofore, to wit, on or about the 1st day of November, 1912, he was lawfully seised and possessed of an undivided one-half interest in and to the northwest quarter of section No. 29, block No. 19, Texas & Pacific Railway land in Taylor county, Tex., and that on that day said John R. Daniel entered upon said premises and ejected appellee therefrom, alleging damages in the sum of $5,000. On March 23, 1914, the First State Bank of Blackwell, Tex., appellant herein, filed its plea of intervention, alleging that it had acquired all the right, title, and interest in and to said land, which had formerly belonged to said J. R. Daniel, by virtue of a deed of - conveyance from said John R. Daniel and wife, dated February 18, 1914, and was entitled to defend said suit in the name of the said Daniel, and prayed that it be so allowed, which leave was by the court granted.

Intervener further alleged that it was the owner in fee simple of said land by virtue of the deed aforesaid from John R. Daniel and wife, and that it paid a good and valuable consideration therefor, in that said John R. Daniel was indebted to said bank in the sum of $5,210.80, evidenced by two promissory notes, and that, in the partial payment of said notes, the bank accepted the deed to said land.

Intervener further alleged that on, to wit, January 19, 1914, said defendant .John R. Daniel being indebted to intervener in the sum above mentioned; and suit having been filed by intervener on said indebtedness, and writ of attachment having been issued and levied on the property in controversy, that he (said Daniel) through his attorney, began negotiations with said intervener for the settlement of said suit, and proposed to deed to intervener the land in controversy, and represented to it that he was the legal and equitable owner of said land in fee simple, and that, acting upon this representation, said intervener agreed to take title to this land for a full and fair consideration.

It was further alleged by intervener that it was the owner in fee simple of the land in controversy, holding the same by duly executed deed from the said John R. Daniel and wife, and that the said John R. Daniel and wife held the same under a valid deed from J. W. Daniel and wife, and that,i premises considered, intervener ought to take the same free from any claim of the plaintiff, because, as alleged, that the title under which plaintiff claimed the same was not such a title as should sustain a suit in trespass to try title, but that the same was based upon a void levy of execution upon this land long after the defendant John R. Daniel had taken title to same from his father, J. W. Daniel.

It was further alleged that the deed from J. W. Daniel and wife to John R. Daniel was executed on the 9th day of October, 1911, conveying a one-half interest in same, and on the 21st day of February, 1911, a deed was executed by J. W. Daniel and wife to said John R. Daniel conveying the other' one-half interest, and that both such conveyances were prior to the execution under the writ by plaintiff, which intervener alleged to be void; that both deeds from said J. W. Daniel and wife to defendant John R. Daniel recited a valuable consideration, which was paid by the said John R. Daniel for said land; that the judgment out of which the execution was issued by the plaintiff and levied upon this land was against J. W. Daniel, and not against the defendant John R. Daniel and rendered subsequent to the conveyance by said J. W. Daniel to John R. Daniel ; that John R. Daniel was never a party to said suit of plaintiff against J. W. Daniel, and that the levy and sale thereunder was void, and ought not to convey such a title as would disturb the defendant John. R. Daniel in the possession of said land.

Intervener prayed that execution theretofore levied by plaintiff upon this land, and the sale thereof to plaintiff, be canceled and held for naught, and that intervener be vested with the title free from all incumbrances by reason of said levy of execution and sale, and the deed by the sheriff of Taylor county conveying an undivided one-half interest in said land to the plaintiff be canceled and held for naught. Both intervener and defendant pleaded not guilty.

The plaintiff in his first supplemental petition, after general demurrer and special exceptions and denial of various allegations of intervener’s answer, pleaded that the indebtedness sued on in cause No. 3260 in the county court of Taylor county, Tex., styled J. B. Knox v. T. J. Dudley et al., accrued a long time prior to October 9, 1911, the date of the purported deed from J. W. Daniel to John R. Daniel, and that on the 21st of March, 1912, attachment was issued out of the county court of Taylor county in said cause, and executed on the 22d day of March, 1912, by the sheriff of Taylor county, by levying upon the land in controversy; that on the 16th day of April following judgment was rendered in behalf of J. B. Knox, plaintiff, against J. W. Daniel, in the sum of $629, with interest, and that on August 6th following the county clerk issued an execution in said cause, and that execution was duly executed by the sheriff of Taylor county by levying on the land in controversy, and that on the 3d day of September, 1912, after due advertisement and notice to the defendant in said cause of sale, said premises were sold by the sheriff to J. B. Knox, plaintiff; and that on August 26, 1912, defendant, John R. Daniel, filed an injunction against the plaintiff and T. C. Weir, sheriff, enjoining them from selling said property and alleging that he (John R. Daniel) was the owner of said land, and that the same should not be sold to satisfy the debt of J. W. Daniel, and that upon hearing said injunction was dissolved, and the sale of the sheriff was made subsequent to the dissolution of said injunction by the district court of Taylor county, Tex. Plaintiff further alleged that John R. Daniel, defendant in this cause, was the son of J. W. Daniel, the defendant in cause No. 3260, and that the intervener acquired a purported interest in the land in controversy subsequent to the filing of this suit of trespass to try title. Plaintiff further alleged that at the time of the conveyance by J. W. Daniel to John R. Daniel on October 9, 1911, the said J. W. Daniel was insolvent; that there was no valuable consideration passing from John R. Daniel to J. W. Daniel in said transaction, and that the recited consideration in said deed was not the true consideration, and that, if there was a consideration passing between J. W. Daniel and John it. Daniel for said conveyance, the same was fictitious, and said conveyance was voluntary, and made for the purpose of defrauding, hindering, and delaying creditors of J. W. Daniel, and, if said consideration did pass, same was returned to John R. Daniel shortly after said sale in a manner unknown to the plaintiff, and that said conveyance was made to hinder, delay, and defraud the then existing creditors with that intent between the two Daniels, father and son. He further alleged that J. W. Daniel had inherited a large estate in Tarrant county, Tex., in 1910, and that he had conveyed this estate to his son, John It. Daniel, for the purposes above alleged, and that he owned certain property in Callahan county whi'ch he had also conveyed to his son, John R. Daniel, for the same purpose.

As to the further pleadings by plaintiff and intervener sufficient reference will be given in this opinion later to explain the issues involved; It was further agreed that J. W. Daniel was the common source of title.

The cause was submitted to the jury on special issues, the jury finding: First, that such conveyance from J. W. Daniel to John It. Daniel was made for the purpose and with the intent on the part of said J. W. Daniel to hinder, delay, and defraud his creditors; second, that John R. Daniel did not pay to J. W. Daniel a valuable consideration for the land so conveyed to him on October 9, 1911.' Upon this verdict judgment was rendered by the court in favor of appellee, J. B. Knox, for the undivided one-half of the northwest quarter of section No. 29, block 19, Texas & Pacific Railway Company land, and against defendant John R. Daniel and the intervener, the First State Bank of Blackwell, from which judgment the bank alone appeals.

In its first assignment of error appellant complains that the court erred in overruling, and not sustaining, its motion for a new trial, for the reasons set out in paragraph 1 thereof, alleging that the verdict of the jury and that the judgment of the court is contrary to the law and evidence, because there is no evidence in the case to show that the land in controversy so transferred by J. W. Daniel to John R. Daniel on October 9, 1911, with the purpose and intent on the part of said J. W. Daniel to thereby hinder, delay, and defraud his creditors.

Appellee objects'to a consideration of this assignment because, as alleged, it is too general, in that it goes to the whole controversy in the lower court. But this objection we do not believe to be well taken. An assignment that complains that the verdict of the jury and judgment of the court is contrary to the law and evidence because there is no evidence, to establish a fact necessary to sustain said judgment is sufficient; while it is not sufficient if it merely alleges that the evidence 'was insufficient to establish such fact necessary to support the judgment.

But we believe that this assignment should be overruled on its merits. Fraud may be proven by circumstantial evidence, and we think that the evidence in this case amply sustains the finding of the jury upon the issue of fraud as submitted in the first issue of fact, to wit:

“Was the conveyance of the land in controversy in this suit by J. W. Daniel and wife to John R. Daniel, defendant, on October 9, 1911, made for the purpose and with the intent on the part of said J. W. Daniel to hinder, delay, and defraud his (the said J. W. Daniel’s) creditors?”

To this question the jury answered in the affirmative. The question at issue was whether or not the conveyance from J. W. Daniel to John R. Daniel of October 9, 1911, was fraudulent or simulated, and it became material to show whether or not a consideration passed from the grantor to the grantee, and whether or not such consideration, if it did pass, was later returned by the grantor to the grantee, and upon this controversy one R. O. Anderson testified:

“I live at Merkel. I had a money transaction with John R. Daniel about October, 1911. He 'borrowed $2,000 from the Farmers’ State Bank at Trent. I was at Trent at the time. On this day I was here at Abilene attending court, .1 think, and he came and told me that he wanted to borrow $2,000 to buy some Tarrant county land from his father. He didn’t say which land, but said some Tarrant county land from his father. I got the money from the First State Bank & Trust Company here at Abilene. * * * I don’t think he said why he wanted it in currency rather than in a check. I think this money was paid back in currency that same day or the next day. I don’t know which.”

Eugene De Bogory, attorney for the plaintiff, testified on behalf of the plaintiff, in part, as follows:

“About three weeks ago Felix Jones came to my office and said John R. Daniel wanted to see me. I asked him what about, and he said about this suit. I said, ‘Well, I will talk to him.’ And John R. Daniel came up to my office and told me that the old man had conveyed his property to him for the purpose of getting- it away from his creditors; that John R. Daniel had gotten into trouble with the Blackwell Bank over here and the Blackwell Bank had attached; * * * that the Blackwell Bank had attached all of the property of John R. Daniel, including the property that truly belonged to the old man, J. W. Daniel; * * * that John R. Daniel came here to Abilene, where Ove Anderson, a banker of Trent or Merkel, was attending court, and that they got the cash money from the First .State Bank over here, and that John R. Daniel secured this cash money and gave it to old man Daniel, and the old man deposited it in the bank, and then drew out the cash and gave it back to John, and John turned it back to Mr. Anderson, or the bank; either the First State Bank of this place or the bank at Trent or the bank at Merkel; he didn’t state. He said he turned it back to the bank; that he took this money and went home, carried it back and gave it to the bank; and that by reason of this deal, by reason of the fact that the old man had deeded the property to John, that John got into trouble with some of the creditors, and the creditors had attached | this property, and they were about to get ir away from him on his debts when it truly was the old man’s.”

G. W. Smith, attorney for the defendant, testified on behalf of the plaintiff, as follows:

“Q. Did you have a talk with Felix Jones with reference to this suit? A. Yes; he approached me in an indirect way, stating that he was in a position to have J. W. Daniel or John R. Daniel testify to facts that would enable me to win the suit right off the bat, or that he was in position to have them testify so that you could win it. That is the sum and substance of the conversation. That was last Monday, a week ago, and I think was the same day you told me it was that he talked to you and after he talked to you. I turned the matter down and reported it to the,court.”

Without further quoting testimony, we think the evidence amply supports the finding of the jury upon both issues submitted and answered, and the judgment of the court thereon, and overrule the assignment.

In its second assignment appellant complains that the court erred in overruling, and in not sustaining, intervener’s and defendant’s general demurrer to plaintiff’s first supplemental petition, because said supplemental petition is insufficient in law and discloses no defense to the matters pleaded by the in-tervener in its original answer, and its proposition under this assignment is that the matters pleaded in said supplemental petition constituted a new cause of action, and were not in replication to any matters pleaded by the defendant and the intervener.

We do not believe there is any merit in this assignment. In its plea of intervention appellant set up the existence of its title to the land in controversy as evidenced by the deed to it from John R. Daniel and wife, and the deed from J. W. Daniel and wife to John R. Daniel, and relied on the title thus established to defeat plaintiff’s suit. It therefore was permissible for plaintiff to plead the facts upon which he relied to defeat the title and claim alleged by defendant and intervener, and this constituted no independent cause of action.

In statutory actions of trespass to try title, where the defendant pleads not guilty, all evidence may be offered without further pleading, except limitation. Article 7740, Vernon’s Sayles’ Tex. Giv. Stat. But, the defense having specifically pleaded its title by virtue of the conveyances from J. W. Daniel to John R. Daniel, and from John R. Daniel to the intervener, it was competent for the plaintiff to plead and show the existence of facts, if he could, that would establish the superiority of his title over that claimed by the intervener. The office of a supplemental petition is to reply to defendant’s answer. This assignment is overruled.

In its third assignment appellant complains of the court’s action in overruling, and not sustaining, defendant’s special exception ,No. 2, wherein an exception was taken to paragraph 1 of plaintiff’s first supplemental petition, setting up the indebtedness of J. W. Daniel to J. B. Knox accruing prior to October 9, 1911, the date of the deed from J. W. Daniel to John R. Daniel, because same was immaterial and irrelevant to any issue in the case.

We do not think this specification of error is well taken. Intervener having pleaded a title derived through a deed from J. W. Daniel to John'R. Daniel of October 9, 1911, it was proper for plaintiff in his supplemental petition to aver that the indebtedness which was the basis for the recovery in the county court in cause No. 3260, in which plaintiff in this suit was also plaintiff, and J. W. Daniel was one of the defendants, accrued prior to the execution of said deed, and this averment was a direct reply to paragraph 9 of appellant’s answer, in which it set up said conveyance from J. W. Daniel to John R. Daniel in its chain of title. The rights of a creditor whose debts accrue prior to an alleged fraudulent conveyance may be superior to those of a creditor whose debt accrued subsequent thereto, and therefore the facts in support of such contention of priority may be pleaded, and evidence introduced upon such pleading. This assignment is overruled.

In its fourth assignment appellant complains of the action of the court in not sustaining the special exception urged to the latter part of paragraph 4 of plaintiff’s supplemental petition, which alleged that the defendant John R. Daniel had filed an injunction proceeding in the district court of Taylor county against the plaintiff herein, and that said injunction suit was dissolved because the same is alleged to be immaterial, irrelevant, and not pertinent to any issue in this case. We presume that the trial court’s action in overruling the special exception of defendant and intervener was based upon the theory of res adjudicata, and that the controversy between plaintiff and the defendant John R. Daniel as to the title to the pi’operty described had been considered by the court and an adjudication had, which, in effect, denied defendant’s claim. But, be that as it may, and without passing upon the propriety of the pleading complained of, we do not see that any error has been committed, inasmuch as there was no evidence introduced in this trial upon this issue, nor was the issue submitted to the jury. The assignment is overruled.

In its fifth assignment the appellant complains of the action of the court in admitting over its objection the testimony of J. W. Daniel, to the effect that he had inherited a large estate in Tarrant county, Tex., about the year 1910, and that he also owned certain real estate and business property in Clyde, Callahan county, Tex., which had been conveyed to his son, John R. Daniel, because the court had sustained special exception No. 7 of the defendant and the in-tervener to paragraph 10 of plaintiff’s first supplemental petition, which latter paragraph alleged, in substance, that at the time aboye mentioned said J. W. Daniel liad inherited a large estate in Tarrant county, which he had conveyed to his son, John R. Daniel, for the purposes alleged, and that he owned the described property in Callahan county, which he had also conveyed to his son, John R. Daniel, for the purpose of defrauding and delaying his creditors.

We think the court correctly sustained defendant’s special exception above noted because it, in effect, pleaded plaintiff’s evidence upon which he sought to rely to sustain his charge of fraud, and that the court correctly overruled the objection to the evidence upon this point when offered. Upon this issue it was competent to prove that J. W. Daniel had been possessed, shortly prior to the conveyance by him to John R. Daniel of the property in controversy, of considerable property, and that he had conveyed away to various parties, including John R. Daniel, the bulk of his property without sufficient consideration, since the insolvency of J. W. Daniel at the time of the conveyance to his son had been alleged in plaintiff’s supplemental petition, and that the fact of his insolvency was known to defendant John R. Daniel at the time of the conveyance to him of the property in controversy, and that said conveyance from J. W. Daniel to his son was made to hinder, delay, and defraud any existing creditors with that intent between the said J. W. Daniel and John R. Daniel. Moreover, bill of exception No. 1 does not include in the evidence admitted by the court and objected to by the defense the testimony with reference to the property in Callahan county, but, irrespective of this apparent variance between the assignment and the bill of exception, we think there was no error in the action of the court complained of, and the assignment is therefore overruled.

In the sixth assignment complaint is made of the action of the court in admitting the testimony of J. W. Daniel relative to his having been sued by various persons and corporations at or about the time of the conveyance of the land in controversy to his son, John R. Daniel, and that various parties had sued said J. W. Daniel in large amounts, especially since the court had sustained the special exception of defendant and intervener to that paragraph of plaintiff’s supplemental petition alleging the existence of said suits.

This wás properly a matter of evidence, and not of pleading, and for the reasons given in the discussion of the fifth assignment we think there was no error, and, further, the qualification -of the trial court of bill of exception No. 3 is to the effect that the stenographer’s record does not show that any •exception was reserved to the action of the court in overruling the objection. This qualification of this bill was brought into the record of this court by certiorari. For the reasons given, this assignment is overruled.

In its seventh assignment complaint is made that the court erred in admitting, over objection, the testimony of J. W. Daniel relating to a conveyance of a large estate in Tarrant county and of the conveyance of business property in Callahan county, Tex., on October II, 1911, and shortly thereafter, because the court had sustained the defendant’s and intervener’s special exception to paragraph 12 of plaintiff’s supplemental petition, which alleged that said conveyance was made to John R. Daniel to the Taylor county land on the 9th day of October, 1911. Said conveyance of a large estate in Tarrant county, of the proximate value of $20,000, was made to John R. Daniel on the 11th day of October, 1911, and the conveyance of the business property in Callahan county was made shortly thereafter. For the reasons given in the disposition of the fifth and sixth assignments, this assignment is overruled, and for the further reason that the qualification of the bill of exception No. 4 by the trial court recites that the stenographer’s record does not show that any exception was reserved to the action of the court in overruling the objection to this evidence.

The eighth and last assignment complains of the action of the court in admitting over objection the testimony of the witness J. W. Daniel as to what he had traded G. C. Martin for his stock in the HardwickeAbbott, Manufacturing Company, and the comment of the court at the time of his ruling. No bill of exceptions was reserved by the appellant covering the comment of the court, and therefore we cannot consider that portion of the assignment. While the bill of exception contained the evidence complained of, and the remarks alleged to have been made by the court, yet it fails to show that any objection was made to said remarks by the court.

Moreover, we believe that this evidence was competent for the purpose of showing fraud. Great latitude should properly be allowed by the trial court in cases where there is an issue of fraud, and we fail to see any impropriety in the language of the court as set forth in said assignment, which was as follows:

“When fraud is alleged the gaps are thrown down, and sometimes evidence is not admissible under an allegation of fraud, and therefore the court— I can’t— I have got to look into this matter further.”

And:

“I think that is close enough to inquire into. A party cannot attempt to make the case out all at once, you understand. It has to be done by piecemeal sometimes, and I will give you a bill.”

The judgment of the trial court is hereby affirmed.
      tgrrsFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    STATE v. TEXAS & P. RY. CO.
    (No. 7243.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 30, 1915.
    Rehearing Denied Feb. 27, 1915.)
    Railroads i&wkey;226 — Accommodations at Stations — “Depot. ”
    Rev. St. 1911, art. 6592, requiring railroad companies to construct and maintain separate water-closets or privies at each passenger station, either within its passenger depot or in connection therewith, or within a reasonable distance therefrom, applies only to stations where a building is erected for the protection and accommodation of passengers and freight, and does not apply to a place where trains stop for passengers, but' where no building of any kind for passengers or freight is maintained, though a merchant near such stopping place was authorized to sell tickets, as a “depot,” in the usual and recognized meaning of the word which the Legislature must have intended, is a building for the accommodation and protection of passengers and freight.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 740; Dec. Dig. &wkey;s226. v
    For other definitions, see Words and Phrases, First and Second Series, Depot.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Action for statutory penalties by the State against the' Texas & Pacific Railway Company. From a judgment for defendant, the State appeals.
    Affirmed.
    D. M. Maynor, of Quitman, for the State. Jones & Jones, of Mineóla, and Young & Stinchcomb, of Longview, for appellee.
   RAINEY, C. J.

This is a suit by the state of Texas against the Texas & Pacific Railway Company to recover penalties for the failure to erect water-closets or privies at Crow, a station on appellee’s line in Wood county, as prescribed by articles 6592, 6593, R. S. 1911. Appellee answered by general denial, and specially denied that it maintained any depot; ticket office, or stock pen at Crow, and it was not its duty to do so. A verdict after hearing was directed for the railway company, and judgment entered accordingly, from which the state appeals.

The evidence shows that Crow is a station on the Texas & Pacific Railway Company’s line, situated between Hawkins and Mineóla, where the company maintains a depot for the transaction of business. Crow has a population of about 50. It has two mercantile stores, a blacksmith shop, and about 11 families live within one-half mile of the railroad station. There is no freight or passenger depot building maintained there for receiving or storing freight, nor for the accommodation of passengers. A platform, consisting of plank laid upon the ground, 8 feet and 3 inches wide and 70 feet long, is placed near the track for passengers to-alight from and get on the cars, with no shed or covering to this platform. There was also a freight platform by the track, which was 4 feet high, 16 feet wide, and 31 feet long. There are two daily trains, one each way, that- regularly stop for passengers at Crow. Mr. Greer, who sells tickets and checks baggage, is doing a mercantile business there, and is postmaster at Crow. His business house is 76 feet from the track, off the right of way. Over the front door he placed a sign, “Railroad Ticket Office.”

About 12 months before the trial of this case the railway company had no agent at Crow, and Mr. Greer applied to it for permission to sell tickets over the road, which was granted, and he was furnished tickets, which he kept in his storehouse, where the post office was also kept, and for selling tickets he was allowed a commission, which amounted on an average to $10 per month; the sales amounting to about $100 per month. The road did not have any interest in the building, nor did it furnish any place for selling the tickets, nor any accommodation in the building for outgoing or incoming passengers. Greer procured the right to sell tickets for the purpose of drawing trade for his mercantile business. Crow was a prepaid station for freight, and Greer handled none except his own, or in particular instances for accommodation when he was requested by parties to look after it. The railway company furnished him with blank bills of lading, but he was not authorized to sign them, but would furnish parties with one who wished to fill them out and get them signed at the next station. Greer owned two privies, one about 300 feet from his store, and the other in his residence near his store, which parties were permitted to use when he was called on. About 90 per cent, of the ladies waiting for the train went to his house to call on his wife.

Crow was first established as a station for the accommodation of a sawmill that was operated there. A spur track was built connecting at the east end with the main track. The timber had been sawed up and the mill moved away. A stock pen was built there by an individual for his own use, and he controls it. The railway company owned no interest therein, and assumed no control thereof, nor did it assist in its construction, nor in its maintenance.

The appellant complains of the trial court for instructing the jury to find a verdict in favor of appellee, because the preponderance of the evidence showed that the state was entitled to recover. Whether or not this contention is correct depends upon the proper construction of article 6592, R. S. 1911. This article has been held to be constitutional by our appellate courts, since the objectionable feature which caused the former law on this subject to be held by the Supreme Court, unconstitutional in Railway Co. v. State, 100 Tex. 420, 100 S. W. 766, has been eliminated.

Then the first question to be answered is: Where does the statute require water-closets or privies to be constructed and maintained? The answer is:

“At each passenger station on its line of railway, either within its passenger depot or in connection therewith, or within a reasonable and convenient distance therefrom,” etc. Article 6592, R. S. 1911.

This evidently contemplates that a water-closet or privy should be constructed and maintained at every depot, where there is a building erected for the protection and accommodation of passengers and freight. The meaning of the word “depot,” as defined by lexicographers and judicial tribunals, is a building for the accommodation and protection of passengers and freight. This is the usual and recognized meaning to be given the word “depot,” and we must conclude the Legislature, in framing the law, intended it in that sense. State v. Railway Co., 154 S. W. 831. The railway company had no such building at its station Crow, and until it has erected some kind of structure for the use of passengers and freight we feel constrained to hold that appellee was not liable for a penalty in not constructing such water-closets or privies.

The judgment is affirmed.
      (g^For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PER CURIAM.

text:
    COONEY v. ISAACKS et al.
    (No. 429.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 28, 1915.
    Rehearing Denied Feb. 25, 1915.)
    1. COURTS <&wkey;207 — JURISDICTION—COURTS OF Civil Appeals.
    Under Const, art. 5, § 6, giving the Courts of Civil Appeals “such other jurisdiction, original, * * * as may be prescribed by law,” and Rev. St. arts. 1592, 1595, passed thereunder, providing that Courts of Civil Appeals and the judges thereof shall have power to issue writs of mandamus to compel district courts to try cases agreeably to law, Courts of Civil Appeals may require a district court to proceed to trial, and may direct the rulings on points of law and fact to be made therein, the statute in effect giving Courts of Appeals original jurisdiction in cases to which the writ theretofore had not been applied.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. <&wkey;>207.]
    2. Pleading <&wkey;-214 — Admissions on Demurrer.
    Allegations in a petition must be taken as true upon demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. &wkey;214.]
    3. Mandamus <&wkey;4 — Remedy by Appeal or Writ op Error — Correction op Abuses op Discretion.
    Where the district court had not been guilty of gross abuse of discretion, its action in dismissing the case after entry of a default judgment against defendant was not subject to control by mandamus, the defendant having adequate remedy by appeal or writ of error, the absence of any other legal remedy being a prerequisite to mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 9-21, 24-34; Dee. Dig. &wkey;4.]
    4. Mandamus &wkey;>4 — District Courts — Record — Correction op Error.
    The action of the district court in striking from its files defendant’s answers and motions was not controllable by original mandamus from the Court of Civil Appeals; defendant’s remedy was by appeal or writ of error, and mandamus and certiorari thereunder, to compel restoration of the record, .and its certification to the Civil Court of Appeals, for while no court can be made to correct its records it can be prevented from destroj'ing them to the injury of litigants.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 9-21, 24-34; Dec. Dig. &wkey;4.]
    5. Clerks op Courts <&wkey;67 — District Courts — Duties op Clerks — Interperence op Judge.
    The judge of a district court has no authority to interfere with the clerk’s duty to file all papers, and, under the direct provision of Rev. St. art. 2118, to docket all motions, although amendments to pleadings may be filed only by leave of court.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 101-108; Dec. Dig. <&wkey;> 67.]
    6. Courts <&wkey;207 — District Court — Correction op Record by Court op Civil Appeals — Mandamus .
    However false the minutes of a district court may be, they cannot be corrected by a Court of Civil Appeals by mandamus on petition of a party; but this can be done only in direct proceedings for the purpose.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. t&wkey;>207.]
    7. Mandamus i&wkey;31 — District Courts — Action on Motion por New Trial.
    Before expiration of the term of court at which judgment was entered, a district court may be compelled by mandamus, upon petition to a Court of Civil Appeals, to hear and act upon a motion for new trial.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 74, 75; Dec. Dig. &wkey;31.]
    8. Removal op Causes &wkey;>99 — Removal to Federal Court After Entry op Judgment in State Court.
    Where final judgment in a state court has been rendered on the pleadings, there is no cause left for removal for trial to a federal court, so that the judge of the state court cannot justify his refusal to hear a motion for a new trial on the ground of a removal.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 212; Dec. Dig. <&wkey;>99.]
    9. Mandamus <&wkey;10 — Existence op Right-Motion for New Trial — Time for Making.
    When the term of the district court, at which a judgment was entered, had expired, under Rev. St. art. 2025, requiring that motions for new trial must be heard at the term of court at which they are made, any order of a Court of Civil Appeals, requiring that such motion be heard, would have been void for lack of authority. ■
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 37; Dec. Dig. <&wkey;>10.]
    10. Mandamus <&wkey;3 — Review op Refusal oi? Court to Hear Motion for New Trial-Proper Remedy.
    The refusal of a district court to permit the filing of a motion for a new trial and to hear the same cannot be properly presented on appeal, but furnishes adequate ground for a direct proceeding to set the judgment aside as for fraud, etc.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 16-34; Dec. Dig. &wkey;3J
    11. Appeal and Error &wkey;>456 — Ancillary Remedies — Mandamus to Compel Restoration op Files op District Court.
    After jurisdiction of a ease has been given the Court of Civil Appeals by appeal or writ of error, it can issue mandamus on proper showing, ordering the restoration of papers to the files of the lower court, so that defendant may present a record adequate to display errors prejudicial to him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2215; Dec. Dig. <&wkey;456.]
    12. Courts <&wkey;116 — District Courts —Appeal — Powers Not Reached — Remedy.
    Such action by the trial court as cannot be reached by proceedings based on appeal or writ of error may be corrected by direct proceedings in the trial court itself, subject to appeal, final action upon which should be deferred until final disposition of the appeal, for, if it proves an adequate remedy for the party, he need prosecute no further his direct proceedings.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 369, 371-373; Dec. Dig. &wkey;116J
    Original petition for mandamus on the relation of P. Albert Cooney against S. J. Isaacks and another.
    Writ refused.
    J. F. McKenzie, of El Paso, and Clay Cooke, of Pecos, for relator. S. J. Isaacks, of Midland, in pro. per. Ross & Hubbard, of Pecos, and Leslie A. Needham, o'f Chicago, Ill., for respondents.
   PER CURIAM.

This is a mandamus proceeding instituted in this court against Honorable S. J. Isaacks, judge of the Seventieth district court, of which district Reeves county is a part, Miss Willie De Woods, district clerk o.f said county, Pecos Valley State Bank, and John H. Morrow.

In a certain cause, pending in said court, entitled Van Deren et al. v. Cooney, No. 1293, a judgment has been rendered and entered in favor of interveners, the Bank and Morrow, against Cooney, in the sum of $15,876.83, with foreclosure of lien on realty. The judgment entered shows that it was a judgment by default. The petition for mandamus avers that answers had been filed which were by the court stricken from the files and leave to file answers refused, although Cooney, by his counsel, was present and praying that he be permitted to answer; that the court had theretofore refused relator’s motion to dismiss the cause in accordance with agreements made by the original plaintiffs, and that this motion had been stricken from the files by the court; that a motion for new trial filed by relator had been stricken from the files, and the court had refused to permit it to be docketed, or to hear or determine same; that the court had refused to note exceptions to aforesaid actions, and a notice of appeal given; and that false entries had been made upon the minutes of the court, and the record caused to speak falsely and reflect facts which did not exist.

The respondents, by demurrers question the jurisdiction of this court to hear and determine the questions presented, urging that the petition shows that the writ should be denied upon the grounds that the conduct complained of is a matter of judicial discretion, which mandamus will not reach, and that the writ 1 should be refused because of other existing remedies, by which the errors, if any, may be corrected.

Section 6, art. 5, of the Constitution of Texas, fixed the jurisdiction of this court as follows:

“Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. * * * Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.”

The following laws prescribe the original jurisdiction:

Article 1592, Rev. Civ. Stat.: “The said courts and the judge thereof shall have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”
Article 1595, Rev. Civ. Stat. 1911: “The said courts, or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law.”

The Constitution and laws above quoted clearly give this court jurisdiction to, upon proper application, compel a judge of the district court “to proceed to trial and judgment in a cause agreeably to the principles and usages of law.” All of the authorities are to the effect that the writ is available to require the court to proceed to trial, but not to declare how it shall rule upon the questions of law and facts presented.

If we are not to expressly declare how the trial court shall rule, i. e.,' declare what the law is in the given case and the form of the judge’s ruling, and the order to be made, it would be useless to order a judge to try a cause “agreeably to the principles and usages of law” ; for if he has not the mental capacity to understand and apply the law as it is, or if he would willfully and knowingly misapply the law, nothing less than express direction, with full power to compel compliance, would suffice. And even if the Legislature has given us the power by the above statute to expressly direct the trial court as to the law and the forms of his rulings and orders, it has not bestowed upon us the power to endow a judge with mental capacity to understand the directions given, nor that quality of conscience which impels an honest ruling, according to his understanding; so, without the latter power, the power which relator contends is given in the above statute is insufficient. But it seems evident that the Legislature had in mind the laws applicable to writs of mandamus, the purpose of the writ, and the manner of its enforcement, as it existed aforetime, and the evident purpose of this statute was to give this court original jurisdiction in cases to which the writ had not theretofore been applied, and, as we will hereinafter try to show, this is not one of the cases.

That there has been a trial and a final judgment, there is no question; hut that the trial, so had, was “agreeably to the principles and usages of law,” unquestionably it was not, according to the allegations of the petition before us, and the allegations therein are to be taken as true upon demurrer. How far, then, will this court exercise its power? Or is it expedient or proper for this court to inquire into and determine at this time whether such trial has been agreeable to the principles and usages of law?

“It is well established that the writ is not to supersede legal remedies, but to supply the want of them. Two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear legal right to the performance of a particular act or duty at the hands of the respondent; and, second, that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it sought to coerce.” High’s Extraordinary Legal Remedies, § 10 (2d Ed.) p. 15.

The same author, in section 30, p. 35, same volume, states the rule to be that, where a state has regulated the use of this remedy by statute, the courts will be governed by the same conditions and limitations which prevailed at common law, and will not issue the writ in cases where another adequate remedy is provided by law.

This court cannot, in a proceeding of this kind, control the action of the trial court in refusing to dismiss the cause of Van Deren v. Cooney, as per the motion filed. It may be that in some instances mandamus will lie to revise the judicial conduct of a trial court, where he is guilty of a gross abuse of the discretion confided to him, or there is such an evasion of positive duty as amounts to a virtual refusal to perform a duty enjoined, or to act at all in contemplation of law, and there is no other adequate remedy. Arberry v. Beavers, 6 Tex. 472, 55 Am. Dec. 791; Meyer v. Carolan, 9 Tex. 250, at 255; Kleiber v. McManus, 66 Tex. 48, 17 S. W. 249. An appeal or wz-it of error furnishes a completely adequate remedy by which we may review the refusal to dismiss, and correct it, if erroneous.

With reference to those allegations relating to the action of the court in striking from the files motions and answers, and praying that they be restored to the files, it is sufficient to say that an independent mandamus here is not the proper manner of obtaining the desired end. If the case be brought before us by appeal or error, this court will then have ample authority by writs of mandamus and certiorari to compel restoration to the files of all papers which were stricken therefrom, and to require that copies thereof be certified to this court. When the jurisdiction of this court has once attached by either of the regular modes of appeal, it can make such order as may be necessary to protect the rights of the parties in those particulars. Wells v. Littlefield, 62 Tex. 28. What has just been said, however, is not to be considered as a holding that we have authority to control and correct the records of the lower court. The correction of false and fraudulent entries upon the minutes must be made by direct proceeding for that purpose. Every court controls and makes its own records. But no court will be permitted to destroy its records; and to strike documents from the files has that effect. Parties litigant have the right to file such motions and papers as they see fit, for the purpose of perfecting their record and preserving their rights. Amendments to pleadings, of course, may be filed only under leave of the court in accordance with the statutes provided for such cases. The duty to file papers and docket motions rests with the clerk, and it is the duty of that official to file all papers tendered for filing, and to docket all motions filed. Article 2118, R. S. The judge of the court has no authority to interfere with this duty and no control over the actions of this official in respect to such matters.

It follows that while this court, by mandamus, can compel the restoration to the files of papers improperly stricken therefrom, after our appellate jurisdiction has attached, and, by certiorari, may bring the record thereof before it, yet we cannot change the minutes of the lower court, however false they may be, but this must be done by a direct proceeding.

There remains yet to be considered the prayer in the petition that Judge Isaacks be required to hear and act upon relator’s motion for new trial. There is no doubt that a trial court may be compelled by mandamus to hear and act upon a motion for new trial, upon petition seasonably presented to a Court of Civil Appeals, prior to the expiration of the term of a trial court at which the judgment complained of was rendered. In this case, the trial court justified his refusal to hear and act upon the motion because a petition and bond for removal to the federal court was filed subsequent to the rendition of the judgment, and an order of removal had been made which deprived the state court of jurisdiction to act upon the motion. Since final judgment had been rendered, completely disposing of the case upon the pleadings, it would seem that there was nothing to remove to the federal court, and that the order of removal was absolutely void. New England Mfg. Co. v. Aughe, 12 Neb. 504, 11 N. W. 753.

The United States District Court has no appellate jurisdiction over the state court, and what authority it would have to act further in the matter is not apparent. Cases are removed from the state courts to the United States Court for trial, and not for the revision and correction of errors, and, where the state court has already finally disposed of the issues and rendered its judgment, it would certainly seem that there was nothing left to carry to the federal court upon which it might lawfully act.

But however this may be is of no consequence, for it appears that the term of the court below has expired and it would be wholly useless to enter an order requiring the motion to be heard at the next term. Under article 2025, R. S., motions for new trial must be determined at the term of court at which such motions shall be made, and under no circumstances can the court hear and rule upon same at a subsequent term. Any attempt to do so, and any orders so made in relation thereto, would be void because of lack of jurisdiction and power in the court so to do. The failure or refusal of the court to act upon the motion at the term at which it is made is in enect an overruling of the motion. McKean v. Ziller, 9 Tex. 58; Lightfoot v. Wilson, 11 Tex. Civ. App. 151, 32 S. W. 331; Luther v. Tel. Co., 25 Tex. Civ. App. 31, 60 S. W. 1026; Clements v. Buckner, 35 Tex. Civ. App. 497, 80 S. W. 235; Bank v. Betterton, 5 Tex. Civ. App. 355, 24 S. W. 326.

The right to file a motion for new trial and have same acted upon by the court is valuable and necessary to adequately preserve the party’s rights in case of an appeal of the cause. The refusal of the court to permit the filing of such motion and to act upon same would in many respects and instances prevent a party from perfecting his record, so as to properly present to the appellate court the errors of which he complains, because upon appeal the motion for new trial constitutes in some instances the assignments of error. As to such errors, the remedy by appeal is inadequate, but it would furnish adequate cause for setting the judgment aside in a direct proceeding, and based upon fraud or other equitable grounds. Eddelman v. McGlathery, 74 Tex. 281, 11 S. W. 1100; Ragsdale v. Green, 36 Tex. 194; Weaver v. Vandervanter, 84 Tex. 691, 19 S. W. 889. If the facts alleged in this petition be true, rights of the relator have been violated, but he is not without .adequate remedies. Under our system of jurisprudence, there is in all cases an adequate remedy by which parties are afforded an opportunity of having their rights declared and wrongs righted. If this be not true, then the administration of justice is indeed lame and deficient.

Appellant urges that he has given notice of appeal to this court, and that in aid of its jurisdiction the writ should be issued, because without the matters expunged from the record by the arbitrary act of the judge, and by' reason of the failure and refusal by the district clerk to file the papers .offered, he cannot upon appeal present the questions necessary to have the action of the lower court reviewed in all instances of reversible error. Before this court will grant the writ in aid of its jurisdiction, the jurisdiction must first attach, by a compliance with the law of appeal by the party seeking to have a cause reviewed, because this court does not indulge in idle ceremony, and the cause may never be appealed, and, if not appealed, then to require the parties to act would be useless, and because this court has no control of the cause until its jurisdiction has attached. After jurisdiction attaches upon an appeal or writ of error, this court has full control of the cause, and can make such orders concerning it as may be necessary to preserve the rights of the parties and enforce its mandates. Wells v. Littlefield, 62 Tex. 30.

As will be seen by an inspection of the law applicable, after jurisdiction attaches, by mandamus or certiorari, this court can perfect the record on file here to the end that either party to the appeal may have the liroper or necessary papers before the court for its consideration. Article 1593, Rev. Civ. Stat. 1911, and authorities cited in Vernon’s Sayles’ under said article, vol. 1, p. 810.

The writ must be denied:

First. Because cause No. 1293, Van Deren v. Cooney, may be brought to this court by appeal or upon writ of error, in which proceeding we may by mandamus cause to be restored to the files all documents improperly stricken therefrom, and by certiorari compel the clerk of the trial court to certify them to this court, and with the complete record of the lower court before us review and revise its alleged errors; and

Second. Because, as to all those matters for which the error proceedings do not furnish an. adequate and complete remedy, the same may be reached by a direct proceeding instituted in the trial Gourt, based upon equitable grounds, final action upon which should be deferred until final disposition be made of the error proceedings. If the error proceedings prove an adequate remedy, direct proceedings need not be further prosecuted.

It might be well to state that we disclaim any intention to reflect, in any way, upon the trial judge who sat in the case, the records of which are sought to be corrected, by anything which is written in the above opinion ; our intention being to confine ourselves to principles of law and not to persons.
      ®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MOORE.
    (No. 1371.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1915.
    Rehearing Denied Jan. 28, 1915.)
    1. Master and Servant <&wkey;286—Actions for Injuries—Questions for Jury.
    In an action for injuries to a member of a railroad switching crew caused by a collision between cars standing on a side track, and cars kicked upon such track, on which plaintiff was riding, evidence held sufficient to make a question for the jury as to the negligence of the en gineer or the foreman of the switching crew with respect to the violence with which the cars were kicked; and hence an instruction submitting the question of negligence in that respect was not erroneous as leading the jury to believe that in the court’s opinion there was evidence of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. &wkey;^286.]
    2. Appeal and Error &wkey;>750 — Recokd—Mat-ters Presented eob Review.
    Where assignments of error complaining of the overruling of objections to testimony referred to a bill of exceptions not in the record, they would be disposed of with reference only to objections and exceptions noted in the statement of facts, as authorized by the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. &wkey; 750.]
    3. Appeal and Error &wkey;j260 — Reservation op Grounds oe, Review — Exceptions.
    The overruling of an objection to testimony cannot be reviewed, where no exception to the court’s action appears to have béen taken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. 260.]
    4. Master and Servant &wkey;>270 — Actions for Injuries — Admissibility of Evidence.
    In an action for injuries to a member of a railroad switching crew, claimed to have been due to the violence with which cars were kicked upon a side track, the testimony of the engineer of the switching crew that in kicking the cars he always used his judgment was admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. &wkey;270.]
    5. Trial <&wkey;85 — Objection to Testimony.
    An objection goes to the whole of the testimony complained of, and, if a part is admissible, the objection will not be considered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;S5.]
    6. Evidence <&wkey;126 — Res Gestae — Declarations Following Transaction.
    In an action for injuries caused by the violent manner in which cars were kicked upon a side track in switching, the statement of the injured employe, three or four minutes after the collision between such cars and standing cars, to the foreman of the switching crew, that he ought not to kick the cars so hard, and that he hurt himself and wrenched his back, and that the brake was bad, and he could not hold the cars, was admissible, as not only such declarations as accompany a transaction, but also such as are made under circumstances raising a reasonable presumption that they are spontaneous utterances of thoughts created by or springing out of the transaction and so soon thereafter as to exclude the presumption that they are the result of premeditation or design, are admissible as parts of the res gest®.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 372-376; Dec. Dig. &wkey;126.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by R. W. Moore against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee was one of a switching crew engaged in moving cars in appellant’s yards at Tyler. One Phillips was foreman of the crew, and one Beaird was the engineer in charge of the locomotive used in switching the cars. During the nighttime of November 17, 1913, immediately after a string of several cars had been “kicked” to go onto a side track, appellee, in the discharge of his duty, mounted one of them for the purpose of controlling the speed thereof, by operating a brake thereon, as it approached other cars already parked on the side track. At the time he mounted it the car was moving at a speed of from five to eight miles an hour. The side track was downgrade toward the cars parked on it; and notwithstanding ap-pellee’s effort to check the speed thereof, by means of the brake, the string of kicked cars was moving at a rate of from 12 to 14 miles an hour when same collided with the other cars on the side track. Appellee claimed he suffered serious injury to his person as a consequence of the collision; and by the suit resulting in the judgment in his favor, from which this appeal is prosecuted, sought a recovery of damages against appellant, on the ground that it had been guilty of negligence in that it had permitted the brake he endeavored to operate to become and be defective, and in that it had caused the string of cars to be kicked with unusual and unnecessary violence.
    The defect claimed to exist in the brake was shown by testimony of appellee, as a witness in his own behalf, as follows:
    “Hand brakes are on a round wheel, and you work them with your hands. There is what they call a ‘brake wheel.’ Tou work the brakes with your hands. You set them up as tight as you can with your hands, and then you have a stick, and you can set them up five or six notches tighter with the stick than you can with your hands. The brakemon here usually and ordinarily carry brake sticks. * * * Those brake sticks are about two feet long. They are pick handles. * * * When a brake is set up by turning the wheel, and you want to release the brake (that is to say, you want to take your hands off of it, but you want the brake to remain set up and want the power to remain on), then that is done with a dog right down at your foot. There is a ratchet wheel on the brake staff that is stationary, and the dog comes right out here, and you have to work it with your foot while you are pressing it, and every time you go to take slack you shove it in; then you pull again. That dog works in notches on the ratchet wheel. • The ratchet wheel has notches, or cogs, you might call them, all around it. The dog itself is not attached to the ratchet wheel, but it is attached to the top of the car. The dog is not stationary, but it works backwards and forwards. * * * I mounted the cars and went on top with my lamp on my arm. I set the ratchet and got the brake and started "to-setting it, started to pulling it on, and got up there and twisted it around, and seen the cars was not slowing down any, and I applied my stick, and they still kept going; then 1 went to fasten the dog, and the brake staff had come up, and the dog went underneath it. The brake staff, 1 mean, would rise. When the brake staff would rise, that would bring the ratchet wheel up with it. I don’t know what it is that makes or permits a brake staff to rise when you wind it up, unless the key is gone from the bottom of it. * * 41 There is an apparatus or appliance in the shape of a brake key underneath and down at the bottom or near the bottom end of the brake rod that holds it in place and prevents it from rising as you operate it. * * * Ordinarily, when a brake is in good working order, and when you wind it up, the brake rod ought not to rise as that one did. It is not intended to rise. * * * When I applied the stick, the brake staff raised up. I tried only once to fasten that with the dog. The dog had to go underneath at this time, and I did not have time to throw it out. Then, in the meantime, by the time I did that and discovered that the dog would not work, I was right on those cars — right close to them. When I saw the brake would not work and that the dog would not hold, I did not then turn the brake loose and let it go and protect myself because I was scared to, because I was scared the stick would knock me off. ;s * * If I had turned the stick loose, I don’t know what would have become of the stick; don’t know where it would have went to. It would have flew off somewhere if I could have turned it loose, but I could not; I was scared to turn it loose, scared it would hit me.”
    With reference to the manner, etc., in which the cars were kicked, there was testimony as follows:
    Axspellee, as a witness, testified:
    “The cars were kicked pretty hard. The foreman give the signal, and the engineer taken the foreman’s signal to kick them.”
    Appellant’s witness McKenzie on his cross-examination testified as follows:
    “Phillips, the night foreman, was acting as night foreman on this night of November 17th. The night foreman is the man who is supposed to give the signals, and so forth, for the switching, and when to come backwards and forwards. * ■* * i don’t remember whether Mr. Earl, the superintendent, was down there in the yard on the night of November 17, 1913. I could not say whether it was the night of the 17th, but he was down there one night, and just about that time. Q. Don’t you remember that the night you say Mr. Earl was down there was about this time — that he complained to the men there in the yard of the rough manner in which the cars were being kicked and handled, and the rapidity with which they were being sho't over the track? A. Well, Mr. Earl was there, and he was talking to Phillips; that is, the foreman. After he left he was telling— Q. Well, did you yourself hear anything that Mr. Earl said to Mr. Phillips that night, or to any of the switching force down there, with reference to the manner of handling the cars that night? A. No, sir; as a matter of fact, the cars were not handled with unusual roughness on that night. That is the way Phillips kicked the cars ever since he worked the engine. He kieked them no harder that night than he did any other night. Q. Wasn’t Phillips — the way in which he had the cars handled, and the directions he gave for the cars being kicked — wasn’t he an unusually rough man in the handling of the cars? A. Yes, sir. I-Ie gave the signals, and we obeyed; or the engineer and the fireman and the men who had charge of the operation of the cars obeyed the signals of the foreman who gave them. Q. Well, didn’t he that night — the night this man said he was injured, whatever particular night of the week or the month it might have been — the night he was injured, didn’t Phillips on that night and the other nights, didn’t he have the cars and cause the cars to be kicked with more violence and speed and momentum than was usual and customary down there in those yards? A. Well, I don’t see as he did. I don’t see no difference that night and no other night. Q. I ask you how Phillips ordinarily and customarily had the cars handled and give the signals? Didn’t he have the cars kicked and handled in a manner that was unusually and unnecessarily rough? A. Yes, sir. Q. Now, the particular night Mr. Earl was down there and you saw him talking to Phillips — on that particular night, whatever night that was — Phillips was handling the ears and having them kicked with unusual speed and violence and roughness that night, wasn’t he? A. I think he was. Yes, sir.”
    Appellant’s witness Beaird, the engineer in charge of the locomotive, on his direct examination testified:
    “In regard to the switching of the cars in the yards there at night, in the movement of my train (engine?) and the cars, I switch them in keeping with and am governed by lamp signals. * * * When I get these signals, if I think they are not as they should be, I use my judgment. If I think they are all right, I execute them like they give them. There was nothing unusual on that night, that I can recall to mind, regarding the unusual manner in which the cars were handled by my crew. I don’t remember of anything.”
    On his cross-examination the witness testified:
    “I think this man Phillips was the night foreman of the switching crew at that time, but I am not exactly certain about it. The foreman of the switching crew is the man who ordinarily gives the signals for the movement of the cars, when he is in sight. Q. Isn’t it a fact that Phillips ordinarily and customarily had the cars kicked and moved with unusual violence and speed and momentum? A. He tried to; yes. And but for the intervention of my own judgment, when I felt like he was doing it too violently, but for that fact, he would have had the cars kicked all the time too violently. When it come to kicking cars, I always use my own judgment. If I were kicking cars in on the side track and letting them run down a certain distance and stopping them, the train switching the ears and kicking them around, and if it became necessary to kick some more down that same track, frequently I would not know just how far the cars would have to run. Q. Consequently, when he gave the signal to come back, kick them a certain distance or certain speed, you had to depend very largely upon the foreman's signals at that time? A. Yes. Q. It is a fact, is it not, that some of the time you have to be governed by what signals you got from the foreman, because you could not tell, from where you were, just exactly how far those cars would have to run? A. Yes, I couldn’t tell.”
    The evidence was sufficient to show that appellee, without fault on his part, was injured, as alleged, because of negligence on the part of appellant, and we so find.
    Marsh & Mellwaine, of Tyler, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. Johnson & Edwards, of Tyler, for appellee.
   WILLSON, C. J.

(after stating the facts as above). Among the instructions given by the court to the jury was the following:

“If you shall find that the defendant’s employes, Phillips and Beaird, or either of them, caused the car in question to be sent or kicked onto the sandy track with great and unnecessary violence, and if you find that such act, if any, on their part, was negligence, and that they could and would, by the use of ordinary care, have known that plaintiff was in danger of being injured by reason pf the force with which said car would come in contact with other cars on said track, then if you shall find that as the direct and proximate result of the great and unnecessary speed, if any, with which the cars were kicked on said sandy track, the plaintiff was jerked and wrenched and injured while he was holding to the brake to lessen the speed and violence of the collision of said car with others on said track, you will find for the plaintiff, and, unless you do so find, plaintiff cannot recover by reason of the cars coming in contact with other cars on said track.”

Before the charge was read to the jury, appellant objected to the portion thereof set out above, on the ground that it was misleading in that it was calculated to “lead the jury to believe that in the opinion of the court” there was evidence to show that Beaird or other of appellant’s employes had been guilty of negligence in the manner in which the cars were kicked, whereas appellant contended there was no such evidence. The first assignment is based on the action of the court in overruling said objection.

It is believed there was testimony sufficient to support findings: (1) That under the circumstances shown a reasonably prudent person would not have kicked the cars, nor caused same to be kicked, as violently as they were kicked; (2) that Phillips, the foreman of the switching crew, whose duty it was to signal the engineer when and how hard to kick the cars, signaled him to kick them as they were kicked; and (3) that the engineer, either in compliance with the signal, or in disregard thereof and of his own volition, kicked them as he did. If the jury might have found that the engineer kicked the cars, as he did, in compliance with signals given him by the foreman, they might have concluded that the latter was guilty of negligence; and, if they might have found that the former kicked the ears as he did of . his own volition, they might have concluded that he was guilty of negligence. Therefore we are of opinion the court did not err when he overruled the objection urged to the instruction.

Three other assignments are presented in the brief. Bach of them is based on the action of the trial court in overruling an objection made by appellant to testimony specified, and each refers to “defendant’s bill of exceptions No. 2,” which is not in the record sent to this court. The assignments, therefore, must be disposed of with reference only to objections and exceptions noted in the statement of facts as authorized by the rules.

The complaint in one of the three assignments is that the court erred in overruling appellant’s objection to certain testimony given by the witness McKenzie on his cross-examination by appellee. As it does not appear that the action of the court was excepted to, the ruling should not be reviewed nere. McFaddin v. Prater (Sup.) 3 S. W. 306; Foley v. Railway Co., 50 Tex. Civ. App. 218, 108 S. W. 169, 110 S. W. 96.

In another of said three assignments appellant complains that the court, over its objection that same was irrelevant and immaterial, permitted the witness Beaird, on his cross-examination by appellee, to give certain testimony. We think the court was justified in overruling the objection on either of two grounds: (1) That it was too general (1 Wig. on Ev. § 18; Railway Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 996); and (2) that a part of the testimony objected to, to wit, “when it come to kicking ears, I always use my judgment,” etc,, was admissible. The rule is that if an objection “goes to the whole of the testimony complained of, and a part is admissible, the objection to the evidence will not 'be considered.” Dolan v. Meehan, 80 S. W. 101.

Cross-examining appellee, appellant proved by him that he continued to work during the night of November 17th, after the collision in which he claimed to have been injured occurred, and during several days between that date and November 26th, when he resigned the position he held with appellant. Appellant further proved by appellee that he suffered from a stricture, and that in October, before the accident occurred, he underwent an operation for same at a point on his person near the place where a femoral hernia developed after the accident. And appellant further proved by appellee that, when he resigned on November 26th, he never said anything to its agents, to whom he tendered his resignation, about having been hurt. On his re-examination by his own counsel, the court permitted appellee, over appellant’s objection that same was “hearsay, self-serving, and not res gestee,” to testify as follows:

“Q. Did you make any statement to Mr. Phillips, the night foreman, that night, after you got down from the car and came back to where he was, with reference to what happened on the car? A. Yes, sir. Q. Now, tell the jury, as near as you can, what you said to him. A. When I got down I went up there and said: ‘Phil, you oughtn’t to be kicking these cars so damn hard. I hurt myself back there while ago.’ He said: ‘How?’ I said: T wrenched my back there while ago. The brake was bad, and I couldn’t hold those cars, and you kicked them entirely toó hard.’ He said: ‘Are you-hurt bad?’ I said: ‘No; I wrenched my back a little, I think.’ He said: ‘Well, shall I make out a statement?’ I said: ‘No; there is no use of making out a statement, I don’t think. I will let you know between now and morning.’ ”

Other testimony in the record shows that the conversation just detailed took place within three or four minutes after the collision between, the cars occurred.

It is believed the court did not err when he overruled the objection urged to the testimony. We are riot prepared to hold it was not admissible in rebuttal of inferences deducible from testimony drawn by appellant from appellee while cross-examining him (Railway Co. v. Patterson, 47 S. W. 686; Railway Co. v. Fox, 156 S. W. 924, Railway Co. v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1040); but, if it was not admissible on that ground, we think it was admissible under the rule recognized in this state, which admits, as parts of the res gestee, “not only such declarations as accompany the transaction, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design.” Railway Co. v. Hall, 80 S. W. 133, 34 Tex. Civ. App. 535; Railway Co. v. Anderson, 82 Tex. 519, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Gray, 95 Tex. 428, 67 S. W. 763; Railway Co. v. Vance, 41 S. W. 169.

The judgment is affirmed.
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author: DUNKLIN, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ANDERSON.
    (No. 8047.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 28, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Railroads &wkey;>457 — Pires—Liability por Damages.
    A railroad on whose boarding car a fire started, and which failed to-extinguish it before it reached plaintiff’s grass or pasture land and destroyed the grass, was liable in damages.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1661; Dec. Dig. <&wkey;>457.]
    2. Appeal and Error <&wkey;719 — Review—Assignment.
    In an action for damages for burning defendant’s grass, where the court assumed that the fire was started in defendant’s boarding car through negligence of its employés, and no assignment of error for such assumption was presented, a proposition that there was no evidence that the fire originated through any negligence of defendant’s employés could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. &wkey;719.]
    3. Railroads &wkey;>482 — Eire®—Negligence.
    Where railroad employés were using a boarding car shortly before the fire, and the railroad put in no evidence of probability that the fire started through some other agency than the negligence of its employés, there was a showing prima facie that the fire originated through some act or omission of its employés.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. <S=>482.]
    4. Damages &wkey;>112 — Pires—Evidence.
    Where it appeared that plaintiff was using his land for pasturage and hay purposes, the measure.of damages for injury to the land was the depreciation in its market value for that or any lawful purpose.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. &wkey;>112.]
    5. Damages &wkey;>138 — Excessive Damages — Injury to Land.
    In an action for the burning of plaintiff’s grass and for injury to his land, where there was evidence that the grass burned was worth $432, that the depreciation of the land was $334, that the cost of replacing fence posts was $52, aggregating $818, a verdict for $813, with interest, was not excessive.
    [Ed. Note. — Por other case, see Damages, Cent. Dig. §§ 397, 398; Dec. Dig. <&wkey;138.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by Neil P. Anderson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Thompson & Barwise and A. C. Wood, all of Pt. Worth, for appellant. Flournoy, Smith & Storer, of Pt. Worth, for appellee.
   DUNKLIN, J.

Eire originated in a boarding car belong to the St. Louis Southwestern Railway Company of Texas while standing' on one of the company’s side tracks, spread to the Maddox farm adjacent to defendant’s right of way and from there to land belonging to Neil P. Anderson adjoining the Maddox land, where it destroyed grass on 216 acres. Anderson instituted this suit against the railway company to recover the value of the grass so destroyed, and also for depreciation in the market value of the land by reason of injury done to the turf by the fire. Two grounds of negligence alleged in the petition as a proximate cause of the damages so sustained were, upon the trial, abandoned by the plaintiff, namely, that the fire originated in the boarding car through the negligence of the' defendant, and that the fire spread from the car to the Maddox land through the medium of combustible material, which defendant had negligently permitted to accumulate upon its right of way. The only other negligence alleged in plaintiff’s petition, and upon which he relied for a recovery, was that of the defendant in failing to extinguish the fire before it reached plaintiff’s land. A judgment was rendered in favor of the plaintiff, and the defendant has appealed.

Appellant insists that there could be no recovery without a showing that it was guilty of negligence in the origin of the fire in the boarding ear, or proof that it had negligently permitted combustible material to accumulate upon its right of way, through the medium of which the fire spread to the Maddox land. In other words, that if the fire originated through no negligence on its part, and through no negligence on its part spread from its right of way to the Maddox land, it owed no legal duty to follow it up and extinguish it before it reached plaintiff’s land. This contention is made the basis of several assignments of error such as that the court erred in submitting the issue of negligence relied on by the plaintiff as a ground for recovery, in refusing to peremptorily instruct the jury to return a verdict in favor of the defendant, and that the judgment is without sufficient evidence to support it.

While there are authorities in other states supporting the rule that, as a person has the lawful right to start a fire upon his own premises, he is not responsible for injury done to adjacent property through the spread of the fire thereto, if he is guilty of no negligence in starting the fire and none in permitting it to spread to the other property: A contrary rule, however, is firmly established by the decisions of this stated and upon those decisions the assignments of error now under discussion must be overruled. See Mo. Pac. Ry. Co. v. Platzer, 73 Tex. 117, 11 S. W. 160, 3 L. R. A. 639, 15 Am. St. Rep. 771; Mo. Pac. Ry. Co. v. Donaldson, 73 Tex. 124, 11 S. W. 163; Rost v. Mo. Pac. Ry. Co., 76 Tex. 173, 12 S. W. 1131; Dillingham v. Whitaker, 25 S. W. 724; Pfeiffer v. Aue, 53 Tex. Civ. App. 98, 115 S. W. 300; H. & T. C. Ry. Co. v. Anderson, 44 Tex. Civ. App. 394, 98 S. W. 440; H. & T. C. Ry. Co. v. Crook, 56 Tex. Civ. App. 28, 120 S. W. 594.

.We deem it proper to discuss specially a proposition submitted under one of the assignments noted above and overruled, which is, in effect, that there was no evidence to prove that the fire originated through any act or omission of any of the defendant’s employés. If, as suggested by this proposition, the rule announced in the decisions above noted, and under which the recovery was had, is limited to cases in which the origin of the fire is chargeable to the person against whom damages is sought, nevertheless the proposition is unavailing to appellant in this case for the following reasons: First, the assignment under which it is submitted does not present it; second, in applying the rule the court in his charge did not submit as a disputed issue whether or not the fire in the boarding car started through some act or omission of defendant’s employés, but assumed that it was so started and no assignment of error is presented that the court erred in that assumption of fact; third, there was testimony showing that defendant’s employés were using the car for boarding house purposes shortly before the fire originated, and defendant introduced no testimony to show that probably the fire started through some other agency than that of its employés. Under such circumstances there was a showing prima facie that the fire originated through some act or omission of appellant’s employés.

It is further insisted that the court erred in admitting testimony offered by the plaintiff to show the value of plaintiff’s land for grass purposes before and after the fire as proof of the measure of plaintiff’s damages for injury to the turf, and in instructing the jury, in effect, that the measure of plaintiff’s damages for injury to the turf would be the depreciation in the market value of the land by reason of such injury “for any lawful purpose.” This contention must be overruled, since the proof showed that plaintiff was using his land prior to the fire for pasturage and hay purposes, and the rule is well established, as announced in F. W. & N. O. Ry. v. Wallace, 74 Tex. 581, 12 S. W. 227, that:

“It is the right of the owner to have his damages measured by the extent of the injury to the land used for any lawful purpose to which he had appropriated it, desired to appropriate it, or to which it is adapted. Railway v. Hogsett, 67 Tex. 687 [4 S. W. 365]. It does not rest with the wrongdoer to say to the owner: Use your land for a purpose for which you do not desire to use it, and it would be as valuable to you for that use as it was before for another.”

See, also, Sherman Gas & Elec. Co. v. Belden, 115 S. W. 897.

By another assignment it is insisted that the verdict of the jury was excessive. This contention seems to be predicated in part upon the statement, contained in the assignment, that the evidence shows without controversy that only about 150 acres of plaintiff’s land were burned over. If that statement was borne out by the record, there would be merit in the assignment; but in the statement following the assignment no testimony is pointed out to sustain the contention. On the contrary, testimony of plaintiff’s witnesses is set out which is, in effect, that 216 acres of plaintiff’s land were burned over. Furthermore, the testimony of one of plaintiff’s witnesses was that the grass burned was worth $432, the value of the land by reason of injury to the turf was depreciated in the sum of $334, and that the cost of replacing the fence posts, which were also burned, and for which damages were prayed in plaintiff’s petition, would amount to $52. The aggregate of the damages so stated would be $818, while by the verdict of the jury plaintiff was allowed $813, with interest thereon from the date of the fire to the date of the judgment. Under this showing, we cannot say that the verdict was excessive.

All assignments of error are overruled, and the judgment is affirmed.
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