author: HUFF, C. J. HENDRICKS, J.

text:
    FT. WORTH & D. C. RY. CO. v. TAYLOR.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Appeal and Erroe (§ 754) — Assignments of Error.
    In the absence of an assignment of error to the overruling of a motion for new trial for insufficiency of the evidence, the appellate court may assume that the verdict was supported by the evidence on questions of fact, such as negligence and proximate cause.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 754.]
    2. Teial (§ 260) — Instructions on Negligence-Requests.
    Where it was in issue, in a railroad passenger’s action for injuries in alighting, whether the train stopped long enough for plaintiff to alight safely, and whether the trainmen announced in plaintiff’s car the part of the train from which the passengers should alight, and such issues were submitted negatively for plaintiff, they should also, on request, have been submitted affirmatively for the company.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Cabeiebs (§ 333) — Passengers—Conteib-utoey Negligence — Caee in Alighting.
    Railroad passengers must exercise ordinary care to leave the train upon its arrival as well as to ascertain the m'eans of exit from the coach.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1386, 1386, 1388-1397; Dec. Dig. § 333.]
    4. Carriers (§ 348) — Passengers—Injuries — Instructions — Contributory Negligence.
    Where, in a railroad passenger’s action for injuries in alighting by negligently failing to hold the train long enough and not providing sufficient. exits, the evidence raised the issues whether the station was called in plaintiff’s coach, and whether two doors were open for the exit of passengers, the court should have fully instructed on plaintiff’s duties.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1406; Dec. Dig. § 348.]
    5. Carriers (§ 333) — Passengers—Contrib- . utory Negligence.
    A passenger was required to use ordinary care in alighting, and, if she could have safely left the coach at the exit provided by the exercise of due care, she cannot recover if she did not do so, even though the train employes were negligent in not sufficiently designating the exits, etc.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§.1385, 1386, 1388-1397; Dec. Dig. § 333.]
    6. Carriers (§ 321) — Passengers—Injuries —Instructions.
    An instruction,. in a railroad passenger’s action for personal injuries from not providing sufficient exits for alighting, that if some other person not in defendant’s employment informed plaintiff that she could not leave by certain doors, because they were closed, such statement did not bind defendant was not sufficiently full for not limiting the effect of such statements to the persons making them; one of the issues being whether the door was open or closed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    7. Carriers (§ 348) — Passengers—Injuries —Issues—Contributory Negligence.
    In a railroad passenger’s action for injuries in alighting, claimed to have been caused by negligence in not furnishing sufficient exits, the evidence showed that plaintiff and her brother started to the front of the train to alight, and after going through the cars met some passengers who told them there were no doors open that’way, when they went back to the coaches and again returned forward, and, while the train was in motion, plaintiff attempted to alight and was injured. The trainmen testified that there were two doors open in the front of the train, one between the day coach and smoker and one between the smoker and baggage car. Held, that the evidence raised the issue whether plaintiff was negligent in accepting the statement of third persons that no doors were open, when she could have alighted safely had she not relied thereon, so as to require the submission of such issue.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1406; Dec. Dig. § 348.]
    8. Carriers (§§ 317, 346) — Declarations oe Third Persons.
    The statements of persons not in the employ of a railroad company as to the exits open on a passenger train which misled a passenger, causing her injury, were not admissible to show negligence by the company, in an action for such injuries, though admissible for it to show contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305, 1400; Dec. Dig. §§ 317, 345.]
    9. Carriers (§ 315) — Injury to Passenger —General Deniau — Evidence Admissible.
    Under the general denial in a railroad passenger’s action for personal injuries, the company could show any fact which would establish that plaintiff was not injured through its negligence.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 1270, 1281, 1282; Dec. Dig. §
    10. Appeal and Error (§ 1066) — Prejudicial Error — Failure to Instruct.
    Where the evidence made it an issue, in a railroad passenger’s action for injuries from alleged failure to have sufficient exits open for alighting, whether plaintiff was guilty of contributory negligence in relying on statements by third persons that the doors were not open, failure to instruct on such’ issue was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    11. Trial (§ 295) — Construing as Whole.
    The instructions must be construed as a whole.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dee. Dig. § 295.]
    12. Carriers (§ 315) — Passengers—Injuries —Issues.
    In a railroad passenger’s action for injuries caused by alleged failure to have sufficient exits open, allegations of the petition that there was no door conveniently open, and that defendant did not indicate from what part of the train passengers could alight, did not raise the issue of negligence in failing to give plaintiff personal notice that there was a door open.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 1270, 1281, 1282; Dec. Dig. §
    13. Carriers (§ 321) — Passengers—Injuries —Instructions.
    In a railroad passenger’s action for injuries from alleged failure to provide and designate such exits for alighting, an instruction on negligence, using the term “safe accommodations-to alight,” was reasonably accurate in the use of such term.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec-Dig. § 321.]
    14. Damages (§ 216) — Instructions.
    An instruction, in a personal injury action, that in estimating damages the jury could -consider “the probable effect in the future upon”' plaintiff’s health was defective for riot limiting such damages to such as were “with reasonable probability likely to result.”
    [Ed. Note. — For other cases, see Damages; Cent. Dig. §§ 548-555; Dec. Dig. § 216.]
    Appeal from District Court, Armstrong County; J. N. Browning, Judge.
    Action by R. M. Taylor against the Ft. Worth & Denver City Railway Company-From a ' judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Turner & Wharton, of Amarillo, and Thompson & Barwise, of Ft. Worth, for appellant H. H. Cooper, of Houston, and JA. Stanford, of Waco, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

R. M. Taylor, the appellee, brought suit for damages against appellant, the Ft. Worth & Denver City Railway Company, for injuries received by his wife while a passenger on one of appellant’s trains. The ground of negligence alleged is that the station -was not announced or opening sufficiently convenient made for the exit of passengers, the train being a vestibule one and no announcement made of the means for exit, and the train was not stopped long enough to allow Mrs. Taylor to alight therefrom in safety. The issues and facts of this ease will be found more at length in the report of this ease on the former appeal. 153 S. w. 355.

The appellee in this case presents for our consideration the proposition that inasmuch as no assignment is presented in this court to the action of the- court in overruling the motion for new trial, calling in question the sufficiency of the evidence to support the verdict, therefore it is to be assumed that appellant was guilty of the negligence alleged, and that such negligence was the proximate cause of the injury, and therefore precludes further inquiry into the assigned error. We think, in the absence of such assignment, we may infer from the verdict that there was testimony sufficient to support it, but it does not necessarily follow that error by the trial court did not “amount to such denial of the rights of appellant as was reasonably calculated to cause and probably did cause an improper judgment in the case.” The appellant has the right to have the fact or combination of facts, which it contends exonerates it from liability, submitted to the jury for their consideration. If there is evidence which, if a jury believe, would exonerate it, and they are not submitted to the jury, such action is “reasonably calculated and probably did cause an improper judgment.” If the cause was improperly submitted to the jury under the charge of the court, it becomes our duty, as we understand it, to examine the record and ascertain if this error “was reasonably calculated and probably did” obtain an improper verdict. If it was not so calculated, then we can treat it as immaterial. If it was so calculated, then we should reverse the case. We therefore conclude it to be our duty, even though there is no assignment assailing the verdict because of the insufficiency of the testimony, to examine the ease and ascertain if appellant’s right has been sufficiently protected and presented in the trial of the case.

We believe the case can best be understood by setting out the sixth paragraph of the court’s charge in full: “Bearing in mind the foregoing definitions and instructions, if you believe and find from a preponderance of the testimony that the defendant’s servants and employes, in charge of the train in question, neglected and failed to keep its said passenger train standing at the station at Claude a reasonable time for plaintiff’s wife to safely alight therefrom, and you further believe, from a preponderance of the evidence, that the said servants and employes of defendant caused said train to be started moving before it had stood still for a reasonable time, at said Claude station, for plaintiff’s wife, in the exercise of ordinary care, to safely disembark therefrom, and you further believe from the evidence that in causing said train to be started moving, at the time it was started, was negligence, on the part of defendant’s servants and employes, in charge of it, as that term has hereinbefore been defined, and you further believe from a preponderance of the evidence that the plaintiff’s wife, in the exercise of ordinary care on her part, in attempting to alight from said train, and without negligence on her part, was thrown to the ground and, by reason thereof, received the injuries, or any of them, in the manner and form alleged in plaintiff’s petition, or if you believe from a preponderance of the testimony that defendant’s employes failed to cause a convenient number of doors to be opened, on the arrival of said train at Claude, for the accommodation of the passengers desiring to disembark from and leave said train at said station, and that said servants and employes in charge of said train neglected and failed to indicate or give notice to the said passengers at what door they could disembark from said train, and you further believe, from the evidence, that the failure, on the part of said servants and employes, to .inform plaintiff’s wife where she could disembark from said train, and to have a door open convenient to the coach in which she was riding for the purpose, was negligence, as that term has heretofore been defined, and you further believe from the evidence that by reason of such negligence plaintiff’s wife was unable, before said train started, to find an opening to disembark therefrom, and that plaintiff’s wife, in the exercise of ordinary care on her part, in attempting to alight from said train, was thrown to the ground and by reason thereof was injured, as alleged, and you further believe that such negligence, if any of the defendant, was the proximate cause of the injuries received by plaintiff’s wife, then you will find for the plaintiff and assess Ms damages as hereinafter directed, unless you find for the defendant under instructions hereinafter given you.”

Under appellant’s first assignment of error we shall treat the second, third, ninth, twentieth, and twenty-first assignments together with the first. The appellant,-by its fifth special requested instruction, asks the court to submit the issue affirmatively, which had been submitted negatively by the sixth paragraph in the main charge; that is, if the train was stopped at the station a sufficient length of time, considering all the facts and circumstances, in which to allow Mrs. Taylor time to alight therefrom in safety, and if it was announced by the employes in a reasonable manner, in the car wherein Mrs. Taylor was riding, what part of the train passengers could alight therefrom, and if the employes were not guilty of negligence in the above respect, to find for appellant. The third special charge sought to obtain a submission of the same facts, but it does not cover all the issue. It is suggested by appellant that the issue in this case was whether the train failed to stop a reasonable time, and a finding on this issue in plaintiff’s favor that it did not stop long enough necessarily included a finding against appellant’s contention that it did stop long enough, and that it was useless to present the issue in a different form, and they further assert, “Jurors should be credited with having some common sense,” and so with reference to opening the door for departure therefrom.

The facts in this case presented the controverted issue whether the train was stopped at the station a time reasonably sufficient to permit Mrs. Taylor to alight therefrom, whether there was a door open sufficiently convenient to admit her exit therefrom, and whether the acts of appellant’s servants with reference thereto were negligent. The court told the jury, if appellant was negligent in the particulars charged, to find for appellee. If, however, they had found there was no negligence in the particulars charged, they are not instructed what to do. Where, as in this case, testimony leaves the issue to be determined doubtful, owing to its nature or the conflict of testimony, each party has the right to reguest the court to submit to the jury that phase of the ease favorable to.them and to request the consideration from their side of the question. In testing the correctness of the charge requested and that given, where the evidence is conflicting or the issues are conflicting arising upon the testimony, the charge must give each party the benefit of the hypothesis that his testimony is true. The question here presented' has been submitted in different forms in various courts. It can be said usually that, if the jury find an injury resulted from negligence, such a finding excludes the idea that there was no negligence. Usually the question arises upon the question that some other cause than that of negligence produced the injury. Railway Co. v. Dawson, 34 Tex. Civ. App. 240, 78 S. W. 235; North Texas Traction Co. v. Moberly, 109 S. W. 483; Railway Co. v. Burk, 150 S. W. 748; Id., 146 S. W. 600; Railway Co. v. Ayres, 83 Tex. 268, 18 S. W. 684. This ground of itself perhaps is not sufficient to require a reversal. It appears, however, to be the established doctrine of the courts of this state in a case of this kind, where such charge is requested, to require it to be given. We perhaps could say that no injury is shown in the refusal of the above charge, but we believe the trial court, in submitting the case to the jury, should observe the rule. It can work no hardship and is much the safer practice. It is simple justice to tell the jury if a sufficient and reasonable stop was made, and a door open for exit, reasonably convenient for the passengers, that they ought to find for the defendant. The jury should have been told what to do if they so found the facts and appellant given the benefit of the hypothesis that his testimony was true. The eleventh specially requested charge sought to have the jury instructed that it was the duty of Mrs. Taylor, on arrival of the train at the station, to exercise ordinary care to ascertain from what door of the train she could disembark therefrom, and by the seventh special charge contributory negligence is submitted to the jury, based upon her failure to exercise ordinary care so to ascertain. In the main charge the court instructed substantially that if Mrs. Taylor used ordinary care to disembark and ordinary care in attempting to alight from the train, and if the jury then found the other necessary facts, to find for appellee. The issue is raised by the testimony of appellant, as well as that of the ap-pellee, that the station was called in the coach in which Mrs. Taylor was riding; also the issue presented by the facts that two doors were open for the exit of the passengers.

It was the duty of Mrs. Taylor to exercise ordinary prudence and care to leave the train upon its arrival at her destination, and also to ascertain the means of exist.

The peculiar state of facts in this case requires the court to clearly instruct the jury the duties resting on Mrs. Taylor. If she failed to exercise ordinary care in preparing to leave the coach and in ascertaining the exit by which she should leave, she could not recover, if that was the cause or contributed proximately to her injury.

Of course she was also required to use ordinary care in alighting. If, by ordinary care, she could have left the coach at the exist provided in safety, and she did not do so, even if appellant’s servants were negligent, a recovery could not be had. Railway Co. v. Walden, 46 S. W. 87; Railway Co. v. Bagby, 127 S. W. 254. Appellant also sought to have the court instruct the jury as requested in the eighth and fourteenth specially requested charges.

We do not approve the forms of charge 14, and think it not sufficiently full as to the law applied to the facts. It was to the effect if the jury should find that some other party not in the employment of appellant informed Mrs. Taylor that she could not leave by certain doors, because they were closed, such statement was not binding upon appellant. If such statements were made, their effect should have been limited to the parties making them. One of the very questions in this case was whether the door was open or closed.

By the eighth requested charge, appellant sought to have submitted the question that if Mrs. Taylor relied upon such statements by third parties that the doors were closed, and that she was guilty of negligence in taking this advice, and, if she had not acted upon such advice, that she could have alighted from the train after it stopped in safety, and that such doors were open, and that such negligence contributed proximately to her injury, to find for appellant. These charges were refused. The appellant specifically alleged this act of Mrs. Taylor as contributory negligence. The court nowhere in the main charge submitted this question to the jury. The evidence raises this issue. Mrs. Taylor and her brother started to the front of the train for the purpose of making their exit, and after going through the cars met some passengers who told them there were no doors open that way, whereupon they turned and went back through the coaches, and after doing that they again returned to the front, and by that time the train was in motion, and while so in motion Mrs. Taylor attempted to alight, and the injury was inflicted of which she complains. The conductor and brakeman testify that there were two doors open, one between the day coach and the smoker and one door between the smoker and the baggage car.

The declaration or statements of persons not in the employment of appellant were not admissible to show negligence on the part of appellant. It is held by a number of decisions that the company is not liable for the acts or declarations of persons not the em-ployés of the railway company. Dumas v. Railway Co., 43 S. W. 908; Railway Co. v. Woods, 15 Tex. Civ. App. 612, 40 S. W. 846; Krone v. Railway Co., 97 Mo. App. 609, 71 S. W. 712; Railway Co. v. Farrell, 31 Ind. 408. The testimony was admissible for appellant but not against it, and therefore the court should have directed the jury’s attention to the purpose for which they could consider it, and that it could not be considered against appellant. If Mrs. Taylor did not use ordinary care in heeding the directions by others, when, if she had continued, she could have found an open door and quit the train in safety, then clearly appellee could not recover if this was such negligence on her part as to cause or proximately contribute to her injury; she yet could not recover even if the servants of appellant had been negligent as alleged. This specific act on her • part was pleaded by the appellant as contributory negligence on her part. The facts raise the issue and should have been presented to the jury for their consideration.

Under the general denial, appellant had the right to show and have presented to the jury any fact, or group of facts which would show that it was not through its negligence that Mrs. Taylor was injured. Railway Co. v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; Railway Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Railway Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Railway Co. v. Hall, 98 Tex. 480, 85 S. W. 786; Railway Co. v. Johnson, 98 Tex. 76, 81 S. W. 4.

The evidence in this case raised the issue: (1) That the train was stopped at the station a reasonable length of time in which Mrs. Taylor could have left the train in safety ; (2) that there were doors open sufficiently convenient to have permitted Mrs. Taylor to leave the train, and that that fact was announced to the passengers; (3) that Mrs. Taylor’s delay in departing from the train was not occasioned by the failure of appellant’s servants to perform their duty with reference to stopping the train a reasonable length of time and in opening doors for the departure of passengers, but that the failure of Mrs. Taylor to leave the train was occasioned by the wrong direction of third parties or their unauthorized declaration as to the doors being closed. These questions all arose and could have been submitted under a general denial, and the court should, upon proper request by appellant, submit the issues thereby raised to the jury. If the jury should find that Mrs. Taylor did not leave the train on account of appellant having failed to perform its duty with reference to stopping the train and opening the doors but on account of the statement of third parties, the appellant would not be liable. If Mrs. Taylor was negligent in heeding the declarations of third parties which caused or contributed proximately to her injury, then appellee could not recover even if appellant’s servants were negligent.

We think these issues were sufficiently called to the attention of the trial court by the requested charges, and the court was in error in refusing to submit such issues, and that such refusal was material error and will reverse this case. Under the law as now amended, the court has all the special charges from which to prepare his charge before reading to the jury. We do not indorse the charges presented as being accurate in form or as being quite accurate in their application of the law to the facts, but they were sufficient to require a submission of the issues mentioned. Assignment 1, 2, 3, 9, 20, and 21 will be sustained under qualifications above set out It is urged that the questions here involved were presented on the former appeal. The declaration of third parties was not. The hypothesis of the truth of appellant’s evidence offered to disprove negligence was perhaps presented on the former appeal and overruled. We have, since passing on the former appeal, had occasion to investigate the question in the Finklea Case, 155 S. W. 612, and reached the conclusion that such should be given when requested, quoting from the Moberly Case, 109 S. W. 483. It has been held by the courts that it is proper to give affirmatively the defense arising upon the testimony of the defendant (Klatt v. Houston Elec. Street Ry. Co., 57 S. W. 1112; Smith v. Whiteside, 39 S. W. 381; Western Union Tel. Co. v. Audrews, 78 Tex. 305, 14 S. W. 641; Railway Co. v. Renfro, 83 S. W. 21; San Antonio Machine Co. v. Campbell, 110 S. W. 770), and by a number of cases it has been held that the affirmative of the negative issue should be presented. We so understand our Supreme Court to have held in a number of eases, among which may be cited Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318, Railway Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039, and others which could be cited. In this case the court presents negligence on the hypothesis that appellees’ testimony is true. While, if the jury believe the testimony offered by appellant to show no negligence, there is no presentation of a hypothesis that, if such testimony was true, they should find for appellant.

The fourth, fifth, sixth, fourteenth, sixteenth, and twenty-second assignments all complain of the sixth paragraph of the court’s main charge. It is urged in various forms and ways that the court instructed the jury that it was the duty of appellant to give Mrs. Taylor personal notice and direction as to leaving the train. The charge, as we read it, submitted the issue to the jury as to whether the failure to stop the train a sufficient length of time, and whether a door was open sufficiently convenient for exit, was negligence, made appellant’s liability turn on the question of negligence. The appellant detached several phrases from their connection in the charge and assigned error on the ground that the charge assumes that appellant was negligent and that Mrs. Taylor’s injuries were occasioned by such negligence.

We do not think the charge subject to the criticism when the entire paragraph is read with its proper connection. Detached portions and excerpts from it may be made to have the meaning contended for by appellant, but it must be taken as a whole. The other questions presented by appellant, we think, have been sufficiently answered by this court on the former appeal.

[T2] The seventh assignment complains of the action of the court in refusing the fourth special charge. There was no issue presented that appellant was negligent in failing to give Mrs. Taylor personal notice that there was an open door by which she could leave the train. The allegation in the petition is that there was no door open convenient and in not announcing or indicating from what part of the train passengers could disembark. The court only submitted the question, under all the facts stated, whether appellant was negligent He did not submit that, if Mrs. Taylor was not personally notified, negligence could be founded thereon. We think, under the issues submitted and the facts in this case, there was no necessity for the charge-requested. The assignment is overruled.

' The tenth and eleventh assignments of error are overruled. The court’s charge, eleventh paragraph, is substantially the same-as special charge No. 2, requested by appellant. The charge of the court is not, in our opinion, subject to the meaning sought to-be placed on it by appellant and is in fact substantially the charge requested by appellant

The twelfth assignment further complains-of the eleventh paragraph, because it is asserted it assumes that, if appellee’s wife’s-health was worse after the fall than before, the jury must find ■ such condition “resulted directly and proximately, in whole or in part, by reason of such fall,” and that such condition resulted from negligence on the part of appellant. This would be a strained construction to place on the charge. This charge was in part the rule given the jury by which they would measure the damage. They had been theretofore instructed, in order to find for appellee, they must find that the appellant was negligent in the particulars mentioned, and, under the rule given them for-measuring the damages, the jury were told, if under the above charges they found for-appellee, then the measure of damages given would be the compensation. This assignment is overruled.

The thirteenth and fourteenth assignments-are overruled. We do not think the fourth and eighth paragraphs of the court’s charge subject to the construction placed on it by the appellant. The propositions of law asserted by appellant are in the main correct, but we do not think apply under the facts of this case. It was not necessary to apply them here as asserted by appellant.

We regard the verbiage of the charge in the use of the term “safe accommodations to alight” as reasonably accurate. While it may not convey with the exact nicety and discrimination upon which appellants insist, we must confess, as for us, it would be hard to select a more appropriate one. We can-at least say we think the jury were not at all likely to misunderstand the issues involved- and would not be misled thereby.

The seventeenth assignment of error is-overruled. We do not think the tenth paragraph assumes that appéllant was negligent. The charge must be read as a whole. Appellant disconnects an isolated phrase and detaches it from its connection in the charge. We think the charge considered as a whole, considering the purposes for which it was given, is a proper one.

In the eighteenth assignment complaint is made to the twelfth paragraph of the-court’s charge, and the nineteenth assignment to the action of the court in refusing the-thirteenth specially requested charge. In the-charge on the measure of damages, given by the court, the jury were told that in estimat--ing damages they could take into consideration “the prohable effect in the future upon her health.” Appellant asserts that appellee was entitled to recover only such damages “as are with reasonable probability likely to result.” The Supreme Court in the case of Railway Co. v. Powers, 101 Tex. 161, 105 S. W. 491, said that a question asking for an opinion from a physician as to the probability of epilepsy resulting from injury was improper, citing the case of Railway Co. v. Harriett, 80 Tex. 83, 15 S. AY. 559, where it was said: “We think the evidence should show that there is a reasonable probability of the occurrence of future ill effects of the injury, and that it need show no more in order to justify the jury in considering future consequences in estimating damages.” AAre take it from these authorities the charge was defective in the particulars complained of, and the requested charge on that point should have been given. It is contended by appellee that the charge given and the charge refused became harmless, since there is no complaint of the amount found by the verdict. This is perhaps true. Railway Co. v. Sears, 155 S. W. 1003. But, as the case will be reversed, we thought it proper to direct the trial court’s attention to this error. We also cite the case of Railway Co. v. Paschall, 41 Tex. Civ. App. 357, 92 S. W. 446.

The twenty-third assignment complains of certain remarks made in the closing argument by counsel for appellee. We will not discuss this assignment as the question is not likely to occur upon another trial.

We have gone over the assignments as carefully as we could and have suggested our views thereon. For the errors pointed out, the case is reversed and remanded.

HENDRICKS, J.

Upon a former appeal of this case, and in the record of same, there was presented by the appellant, the Ft. Worth & Denver City Railway Company, an assignment based upon the following requested special instruction, refused by the trial court: “Gentlemen of the Jury: You are charged that if you believe and find from the evidence in this case that the employés of defendant exercised that decree of care, as the same is defined in the court’s main charge (as defined in reference to the acts or omissions, if any, of defendant’s employés), in announcing what doors or vestibules of said cars and train that plaintiff’s said wife and passengers should alight from, if you find they did so, and in opening a sufficient number of said doors and vestibules for plaintiff’s wife to alight from, if they did so, and in stopping said train at Claude a reasonable length of time to allow plaintiff’s wife to get off of it, if you find they did so, then under such circumstances you will find a verdict for defendant company, although you may believe plaintiff’s wife sustained the injuries as alleged by plaintiff.” This charge is an affirmative presentation of what is termed as the negative side of the issue with reference to matters of exculpability of the defendant. It is noted that the reversal of this cause upon the former hearing was in reality based upon another requested instruction which was refused by the court, which was an affirmative presentation of an independent fact and inference therefrom,- constituting a warning to her not to jump from the train, presenting an independent substantive defense, the refusal of which this court concluded there was positive error, and which has always been the law, of course; that is, where there is an independent, substantive, defensive issue arising upon the facts in any case and properly presented, often in negligence eases, where contributory negligence is requested. For example, a failure to pursue a safer course under circumstances where a more dangerous course of conduct is manifested by the plaintiff, and which proximately contributes to his injury, or intoxication by the plaintiff, on account of which he fails to exercise ordinary care, and as a result of which there is a proximate contribution to his injury, and, as in this case, upon a former appeal where the facts presented the issue of a warning by another passenger to the woman, who nevertheless jumped from a moving train, and the issue was ignored by the trial judge, the former illustrations of some one fact or combinations of facts suggestive of an appropriate presentation of substantive defense in behalf of the defendant.

This is different in a sense from the cases where the defendant presents a fact or a combination of facts to prove that instead of being guilty of negligence he in reality exercised ordinary care, and the writer confesses that he has been impatient with the doctrine relative to an affirmative presentation of the negative side of the case often arising where negligence is presented to the jury in a court’s main charge; that is to say, if the defendant is charged with negligence relative to the presentation of a certain issue, based upon the defendant’s acts or omissions, and a request is made by the latter to the trial court to present affirmatively that he in reality exercised ordinary care (this has heretofore presented to my mind quite a strained construction upon the part of the higher courts as to the consequences of an omission of a trial court, causing retrials, where error, if committed, had been entirely harmless), a jury is charged, if you find negligence and it is the proximate cause of the injury, to find for the plaintiff. The defendant requests a charge, if you find that the defendant exercised ordinary care with reference to the matters complained of, to find for the defendant. That has seemed to me to be tantamount to saying that if a trial court were to request a jury that, if you find that a man was sitting upon a box at a certain time and at a certain place, certain results would follow in favor of this plaintiff, to then request that if you find that said individual was not sitting upon a certain box at a certain time to find for the defendant was rather absurd to, say that it is reversible error, and placed a premium upon the ignorance and understanding of ’jurors, and was in reality a fictitious rule, if it existed, and carried too far the results of omission of the trial court, and placed too much stress upon same, and adding to the reversal of causes upon such grounds.

Where a case is presented and plaintiff attempts to prove acts of negligence, and the defendant does not affirmatively attempt to prove affirmative acts manifested by him, exhibiting ordinary care, but relying merely upon the weakness of defendant’s proof of negligence and not upon any affirmative presentation of testimony showing that he exercised ordinary care, I am in doubt whether the Supreme Court in that kind of a case has ever held that a denial of a requested instruction constituted error, and this is where the writer has not sufficiently grasped the subject; but where the defendant presents specific testimony that he exercised ordinary care, as in this case, relative to the acts charged, and presents an affirmative requested instruction with reference to ordinary care upon his side of the case, based upon his 'testimony, as any other substantive defense, either upon an isolated or a combination of facts presented in a record, may be an entirely different question; and, as to the presentation of such an issue, the Supreme Court, in the case of Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318, has extended the doctrine to a considerable limit, as the general charge in that case, in a general way, presented the same defense, based upon the affirmative presentation of the issue for the defendant, which, however, it having been pronounced by the Supreme Court, I am not in the slightest either criticising or condemning. My reference to this matter is that the specially requested instruction upon the former appeal in this case, set out by me, should have been noticed in the opinion of this court, at least to the extent of a direction to the trial court that it would be better to give such charges than to refuse them. It had no effect, it is true, with reference to the reversal of this cause upon this appeal, for the reason that this case is specifically reversed upon the presentation of independent defenses, brought forward and presented in this record by the defendant under its assignments specifically pleaded and presented and which were not in the former appeal of this case. The presentation of the requested instruction, which I copy, on the proposition of ordinary care by the defendant, and in the former appeal of this cause, as stated, and refused by the trial court, was regarded in the nature of harmless error and in a sense a wrong doctrine, and with reference to which the writer desires to say that he was in error and heartily agrees with the opinion of the Chief Justice in commenting upon a similar charge, much more extended, however, presented in this record; the cause, however, specifically reversed upon other grounds.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    ADAMS et al. v. WEST LUMBER CO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 10, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Records (§ 19) — Public Records.
    Public records are only constructive notice of what one would discover by examining the recorded instruments, and not of what he might ascertain by following an inquiry suggested by inspecting them.
    [Ed. Note. — For other cases, see Records, Cent. Dig. § 44; Dec. Dig. § 19.]
    2. Records (§ 19) — Public Records — Tax Officer.
    Entries in the abstract in a tax assessor’s office, showing that a certain patent patented to J. E. A. was rendered for taxation at a certain value in the year 1880 by M. M. A., and in 1881 by Mrs. M. N. A., were sufficient to charge the county attorney, when suing in 1900 to foreclose a tax lien on the land, with knowledge that Mrs. M. N. A. had an interest in the land at the time the suit was brought, unless further inquiry showed that she had parted with it; and hence a judgment against unknown owners, selling the land for taxes, would not bind her.
    [Ed. Note. — For other cases, see Records, Cent. Dig. § 44; Dec. Dig. § 19.]
    3. Husband and Wire (§ 252) — Community Estate — What Constitutes.
    Property belonged to the community, though the husband was a mere settler under a pre-emption claim, and occupancy had not been completed at the death of his wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 895; Dec. Dig. § 252.]
    4. Taxation (§ 648) — Foreclosure of Tax Liens — Parties.
    If a valid judgment may be rendered in a proceeding to foreclose a tax lien under Rev. St. 1895, art. 5232g, in the absence of necessary parties, those who are actually parties are bound thereby, while those who are not parties are not bound; the statute adding nothing to the general rules of law as to parties.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1316; Dec. Dig. § 648.]
    5. Taxation (§ 648) — Sale—Persons Bound by Judgment.
    A proceeding for collecting delinquent taxes is an action in rem against the property, and a judgment foreclosing the tax lien is good as pgainst parties in interest joined in the suit, and parties not joined are not bound by such judgment.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1316; Dec. Dig. § 648.]
    Appeal from District Court, Trinity County ; S. W. Dean, Judge.
    Action by A. J. Adams and others against the West Lumber Company and others. From a judgment for defendants, plaintiffs appeal.
    Reversed in part, and remanded for new trial.

      King & King, of Nacogdoches, Crow & Phillips, of Groveton, and D. M. Short & Sons, of Center, for appellants. Hill & Hill, of Livingston, Hayne Nelms, and J. A. Platt, both of Groveton, Baker, Botts, Parker & Garwood, of Houston, Dean, Humphrey & Powell, of Huntsville, and B. F. Bean, of Livingston, for appellees.

      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

This is an action to recover the title and possession of 320 acres of land situated in Trinity county known as the J. E. Adams survey, and damages for the value of timber cut and removed therefrom. The suit was instituted by A. J. Adams, a son of the original grantee, joined by the minor children of one of his deceased sisters, who sue by their father, as next friend. All of the plaintiffs in the suit are claiming by inheritance from J. E. Adams. A. J. Adams also claims in part under a conveyance from his mother executed in 1909.

The testimony shows that in 1849 John E. Adams and his first wife were residing upon the land involved in this suit; that the first wife died about 1850, leaving two children. Shortly thereafter Adams married a second wife, who lived only about a year, and died, leaving no children. In 1855 he married a third wife, by whom he had eight children, one of whom, it is shown, died in early life. In 1861, after continuous possession by Adams and his wives from 1849, a patent was issued to him by the state of Texas. In 1870 or 1872 Adams died, while still residing on the place. After his death his widow, Ma-hulda Adams, now Mahulda Taylor, continued to reside upon the premises with the children till about 1875. She then moved to another place in the same county, and for five years thereafter rented the Adams place to other parties. After that time the land seems to have remained unoccupied till after its sale for taxes a number • of years thereafter. In 1893 J. E. Adams, Jr., a son of Mrs. Mahulda Adams and J. E. Adams, Sr., conveyed to his mother all of his interest in his father’s estate, both personal and real. This deed appears to have been filed for record on the same day it was executed. It will be referred to later in discussing one of the issues involved in this appeal. In 1900 a judgment was rendered in favor of the state, foreclosing a tax lien on the 320 acres of land in a suit theretofore instituted by the county attorney against unknown owners. The land was thereafter sold, and purchased by parties under whom the appellee in this suit claims title. At the conclusion of the testimony the court instructed a verdict for the defendants.

Practically the only question presented in this appeal is that which involves the legal effect that should be given to the judgment foreclosing the tax lien against the parties plaintiff in this suit. No complaint is made that the proceedings were in any particular irregular, except in the failure to sue the owners by their proper names, and to serve them with personal notice. The attack on that judgment is merely an effort to evade its terms by showing that the appellants were not in law parties to that suit — that they were not “unknown owners,” within the meaning of the statute. They rely upon the rule announced by the Supreme Court in Scales v. Wren, 103 Tex. 304, 127 S. W. 164. In support of its title the appellee offered in evidence the judgment and order of sale in the tax suit and the sheriff’s deed made thereafter. All of these were objected to by the appellants, substantially because they were not parties to the tax suit. As supporting that contention appellants rely upon the following grounds: (1) That they, as the owners of the land, were known to the county attorney when he made the affidavit as to basis of the suit against the unknown owners; (2) that the records in the office of the county clerk of Trinity county disclosed the names and residences of the owners of the property; (3) that the records in the office of the tax assessor of Trinity county disclosed the names of the owners who had last rendered the property for taxation, and furnished data from which the county attorney could easily have ascertained the names of the true owners at the time he filed the suit.

In disposing of the first ground, it is sufficient to say that it has no support in the evidence.

The testimony relied upon to sustain the second ground consists of the following facts, about which there appears to be no controversy: It is admitted by all parties to this suit that the deed records of Trinity county were destroyed by fire in 1872. The original patent issued to J. E. Adams in 1861 was not recorded in the office of the county clerk of Trinity county till 1910, long after the tax suit had been brought, and the judgment rendered. The deed from J. E. Adams, Jr., executed in 1893, conveying his interest in his father’s estate, is the only instrument relating to this tract of land which was of record in the office of the county clerk of Trinity county at the time the tax suit was instituted. The granting clause of that instrument is as follows: “Have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said M. N. Taylor, of the county of Trinity in the state of Texas, all of my right, title, and claim in and to the estate of J. E. Adams, deceased, to both real and personal property, to have and to hold,” etc. The deed contains no other description by which to ascertain the property to which it refers. The question, then, is, Did the records of the county clerk’s office as they stood in 1900 and prior thereto furnish notice to the county attorney of Trinity county as to who were the owners of the land in controversy? Had he examined those records, he would have found only the deed above referred to, and that did not identify the land to which it related in such a manner that he could have located it.

Public records are constructive notice of what one would ascertain by examining the recorded instruments. They are not constructive notice of what one might ascertain by pursuing an inquiry suggested by their inspection. Neyland v. Texas Yellow Pine Lumber Co., 26 Tex. Civ. App. 417, 64 S. W. 696; Taylor v. Harrison, 47 Tex. 454, 26 Am. Rep. 304; White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875; McLouth v. Hurt, 51 Tex. 115; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dee. 626. It is only when the evidence shows that they have been .actually examined, and their contents become known, that a person will be charged with notice of these facts concerning which they may put him upon inquiry. Whether that rule applies to the several prosecuting officers whose duty it is to institute tax suits need not to be here determined. For, had the county attorney of Trinity county examined the records of the county clerk’s office, he would have found no patent from the state vesting any title to the premises in J. E. Adams, Sr., nor any other evidence that Adams ever owned the land. But at most a discovery of this deed to Mrs. Adams would only have disclosed her ownership, and, in view of the disposition which we make of the next ground urged by the appellants, a further discussion of this proposition is rendered unnecessary.

As to the third ground, the abstract from the tax assessor’s office showed the following:

Patent No. 303, Vol. 34; to whom patented, J. E. Adams. Month, July. Year, 1861.
Year. By whom rendered. Acres. Value.
1880 M. M. Adams 320 $160.
1881 Mrs. M. N. Adams 320 $160.

The remaining entries in the assessor’s abstract down to and including the year 1910, when this suit was brought, show that this land ivas unrendered from 1882 to 1900, and that it was rendered thereafter by parties who claimed under the tax sale. Whether the assessor’s records showed that the land had not been assessed at all, or had been assessed against unknown owners during the interval between 1882 and 1900, or had been assessed against the real owners, does not appear from the record before us.

An examination of the assessor’s abstract would have disclosed to the county attorney that the land had been rendered for taxation by Mrs. Adams. This was notice that she was either the sole owner, or had an interest in the property at that time. He then had no right to assume, without inquiry, that she had parted with that interest at the time he began his preparation for the tax suit. Had he looked into the record of deeds and found there a connected chain of title in Mrs. Adams, the fact that her deed bore ■date during the year 1881 would not have justified him in assuming that she was not still the owner of the land. If, under such a state of facts, he had brought a suit against unknown owners, under the ruling announced in Scales v. Wren, the judgment would not have been binding on Mrs. Adams, for the reason that the records which he was required to investigate would have furnished him the name of the owner, although her deed was an old one. We think that the same effect should be given to the records of the assessor’s office of which the county attorney was equally bound to take notice in such proceedings.

It then becomes necessary to ascertain the extent of Mrs. Adams’ interest in the property in order to determine the exact effect which should be given to the judgment rendered in the tax suit. As early as 1849 J. E. Adams, Sr., was occupying the premises with his first wife and children. It was apparently used as a homestead from that time till the death of Adams in 1870. Just what the nature of the claim was by which Adams occupied these premises is not made clear by the record before us. The fact that a patent was issued to him in 1861 indicates that he was there by virtue of some legal right which later ripened into a fee-simple title. If he were a mere settler under a pre-emption claim, although occupancy had not been completed at the death of his first wife, the property would nevertheless belong to the community estate of that marriage. Creamer v. Briscoe, 101 Tex. 490, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869. The character of the estate when the title was subsequently perfected would be determined by the nature of the incipient right.

Upon the death of the first Mrs. Adams her community interest vested in her two children, subject to the right of Adams to occupy the homestead during his lifetime. At his death the children of the first marriage had the right to demand a partition, and to have the interest of their mother set apart to them. In one-third of the remaining half the last wife had a life estate, with the further right to the homestead during her life. It thus appears that, at the time she rendered the property for taxation, Mrs. Adams had only a life interest in a portion of it.

Article 5232g of the Revised Statutes of 1895 requires that “the proper persons shall be made parties defendant in such suits and shall be served with process and other proceedings had therein as provided by law for suits of like character in the district courts of this state.” These provisions add nothing to the general rules of law to he observed in the making of parties in litigation where property rights are to be disposed of and settled. If the proceeding is one in which a valid judgment may be rendered in the absence of some of the necessary parties, those who are parties are bound, while those who are not parties are not bound by the judgment rendered. In suits for the collection of delinquent taxes, the proceeding is an action in rem against the property only. Stone v. Tilley, 100 Tex. 487, 101 S. W. 201, 10 L. R. A. (N. S.) 678, 123 Am. St. Rep. 819, 15 Ann. Cas. 524. We see no good reason for holding that a judgment rendered in such a suit where all the parties in interest are not joined is not good as to those who are joined. While it is true that the law contemplates that all those who own an interest in the land shall be made parties, that requirement is exacted merely for the purpose of concluding by one judgment all those who have any interest. It is not -prescribed as a necessary condition to the rendition of a valid judgment In any event, and as to any of the part owners who may be sued, the result is the same as in any other suits to foreclose liens where different parties have an interest in the subject-matter of the litigation. Blair v. G. S. Co., 54 Tex. Civ. App. 443, 118 S. W. 608.

The fact that Mrs. Adams was in legal effect a known owner at the time this tax suit was filed, and that she was not actually or constructively a party to that proceeding, exempts her and the interest owned by her at the time the suit was filed from the terms of the judgment. And that judgment was not admissible in evidence for the purpose of showing that the purchasers had acquired her interest at the tax sale. The records of the assessor’s office, however, did not disclose the names of the other owners of the property. The fact that Mrs. Adams may have been known as an owner does not imply that the others were also known. Had the county attorney filed his suit against Mrs. Adams alone, a judgment rendered foreclosing the state’s lien would have affected her interest only. While the state’s lien is superior to all other rights, the purchaser at the tax sale takes only the interest of those who are actually or constructively made parties to the suit.

It follows from what we have said that the court properly admitted in evidence the judgment, order of sale, and tax deed offered by the appellee in this case, but erred in instructing a general verdict for the defendant below. Our conclusion is that all of the joint owners of the property except Mrs. Adams were unknown owners, and were concluded by the judgment rendered in the tax suit, and for that reason the minor plaintiffs were not entitled to recover. But we also conclude that the appellant A. J. Adams is entitled to recover to the extent of the interest which he acquired from his mother prior to the institution of this suit. The extent of that interest we are unable to determine from the evidence before us, nor are we in a position to say whether or not he would be legally entitled to recover any sum as damages for the timber which the appellee had cut and removed from the land. Those are questions which must be passed upon in another trial, where the evidence may be made more satisfactory.

On Motion for Rehearing.

Appellees insist that the records of the assessor’s office should not be given the same legal effect as to constructive notice which is attributed to the records in the office of the county clerk; that there is a general statute which makes the records in the latter office constructive notice of the contents of the instruments there registered to all persons, while no such effect is by law given to the records of the assessor’s office. In Scales v. Wren, referred to in the original opinion, Chief Justice Gaines quotes as follows from the act of 1897 (Acts 25th Leg. c. 103, § 6): “The county collector, county clerk and county assessor shall furnish all affidavits, certified copies of the records of their respective offices, and such other evidence as may be in their possession by virtue of such office as may be applied for by the county attorney.” He then adds: “Now, it is plain that, if the county attorney had called upon these officers, as it was his duty to do, the county clerk would have furnished him information which would have apprised him that the owner of the land was not unknown.” It is thus made clear that the Supreme Court relied upon the statute quoted for saying that the records of the county clerk’s office were constructive notice in such instances to the county attorney, and not upon the general law relating to recorded instruments. It may be said here that, had the county attorney called upon the assessor for these data, as it was his duty to do, that officer would have furnished him with information apprising him of the name of one of the owners of the land, Mrs. Adams. We do not wish to be understood as holding that.A. J. Adams has an interest in the land that may be recovered upon another trial, for, if Mrs. Adams parted with her interest before she executed the deed to him, she conveyed him nothing. The evidence as to her having sold the land in controversy is conflicting, and this appeal is from an instructed verdict. The testimony upon that issue, at least, presented a question of fact which should be submitted to the jury upon another trial.

Both the motion of the appellees and of the appellants are overruled.


author: MOURSUND, J.

text:
    HOWARD’S UNKNOWN HEIRS et al. v. SKOLANT et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 3, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. PLEADING- (§ 228) — ORDER OE PLEADING.
    A special exception to a petition as insufficient, which was filed after the general denial, was not filed in due order of pleading as required by Revi Civ. St. 1911, art. 1902, and district court rule 7 (142 S. W. xvii), and hence was waived.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.]
    2. Appeal and Error (§ 1041) — Harmless Error.
    Any error on the ground that the first supplemental petition alleged a new cause of action in that the land sued for was different than that described in the original petition, and the citation by publication only described the land as described in the original petition, was immaterial whore the judgment for plaintiff described the land the same as it was described in the original petition with an immaterial variance in one call.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-⅛109; Dec. Dig. 10¾1.⅞
    3. Adverse Possession (§ 19) — Sueficiency oe Possession.
    The land in controversy was claimed for more than 10 years by the owners of the C. ranch, which consisted of about 8,000 acres under fence, and was situated in a pasture containing about 3,800 acres inclosed by a fence and used continually during that time for grazing. The land in controversy, which fronts on a certain road, is bounded on its remaining sides by land situated in the 3,800 acre pasture, but does not touch any of the remaining pastures of the C. ranch, and was not used for agricultural purposes. Rev. Civ. St. 1911, art. 5678, provides that possession of land belonging to another by a person owning 5,000 acres or more of land inclosed by a fence in connection therewith or adjoining thereto, shall not be the peaceable and adverse possession contemplated by article 5675, unless such land belonging to another shall be segregated by a substantial fence from said land connected therewith or adjoining thereto, unless at least one-tenth thereof be used for agricultural purposes, etc. Hold, that persons claiming through the owners of the C. ranch could claim the land in controversy by adverse possession, since a fence could not be disregarded because it was a partition fence or became such by the acquisition of adjacent fenced land.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    Error to District Court, Bexar County; Claude Y. Birkhead, Judge.
    Action by A. Skolant and another against the Unknown Heirs of George T. Howard and others. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    L. H. Browne, of San Antonio, for plaintiffs in error.

      E'er other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

A. Skolant and H. Wink-ler, defendants in error, on May 27, 1910, sued the unknown heirs of George T. Howard, Charles McCormick, Richard Forrester, and Elizabeth Crockett to remove cloud from the title to Survey No‘. 306 in Bexar county,

located by virtue of certificate No. 428, issued to David Crockett by James S. Gillett, adjutant general, on March 13, 1852. The first field notes to the land were set out, also corrected field notes upon which patent issued. Plaintiffs alleged ownership by virtue of the three, five, and ten years’ statutes of limitation, and that, by reason of there appearing upon the records of deeds of Bexar county transfers to the parties whose heirs are sued, a cloud is cast upon plaintiffs’ title, notwithstanding the said parties’ title is void and a pretense. Defendants, through their attorney, appointed by the court, filed their “second amended answer,” containing: (1) A motion to quash the citation by publication issued in the case. (2) A general demurrer. (3) A general denial. (4) A special exception to the sufficiency of the petition because it fails to set out the claim of the defendants and does not allege that such claim is unknown to plaintiffs. (5) A special answer, to the effect that the land sued for is entirely surrounded by lands owned and fenced by plaintiffs, and is not segregated and separated from such other lands by fences, nor is one-tenth used for agricultural or manufacturing purposes, and further that plaintiffs owned and claimed more than 5,000 acres inclosed by a fence in connection with the land sued for and adjoining thereto, and the land sued for was never segregated and separated by a fence from the lands connected therewith and adjoining thereto, nor was one-tenth of the land sued for cultivated or used for manufacturing purposes, nor was actual possession thereof held by plaintiffs. (6) A cross-action for the land in form of trespass to try title.

Plaintiffs by supplemental petition excepted to defendants’ special exceptions because not filed in due order of pleading, and alleged that defendants could not make any claim to the land sued for and never have, and that it is now too late for them to make such claim because they are barred by the statute of limitations, and further alleged that the only reason for bringing the suit is that a location of said land was made about 20 years prior thereto, but a patent was withheld by reason of the fact that a portion of the land so located was in conflict with older surveys; that another survey was made and a patent procured thereon by outside parties who were setting up at the time a false and unlawful claim to said property, and who caused the second set of field notes set forth in plaintiffs’ petition to be sent into the General Land Office and incorporated in a second patent, stating the acreage of the survey as 128 acres, which was incorrect; that the true amount of land in the survey is only about 60 acres, the same being bounded on the north by the Sevey survey No. 357, on the west by the Hunt road, which is the line of the Olementa Tehoda survey No. 69, and on the south and southeast by surveys No. 301, in the name of Tbomas Thomas, and survey No.-, in the name of E. Rivas; that said Crockett land fronts, on the Hunt road about 400 or 500 varas, its north side- is about 1,076 varas, and the south side and southeast side is bounded by the Thomas Thomas and E. Rivas surveys, respectively, and the land sued for is a part of the land described in said patents; that, by reason of said location and certain papers filed in the names of the defendants, a cloud was formed upon plaintiffs’ title.

Defendants moved to strike out plaintiffs’ supplemental petition or to require a new citation to be issued, and filed special exceptions to be considered in the event of the overruling of the motion to strike out, also a general denial should the exceptions be overruled. Defendants’ demurrer and exceptions were over ruled,, and the trial before the court resulted in a judgment for plaintiffs, from which defendants appealed.

By the first assignment of error complaint is made because the court overruled defendants’ special exception attacking the petition as insufficient on the ground that it did not set out the defendants’ claim to the land nor allege that such claim was unknown to plaintiffs. As the exception was preceded by the general denial, it was not filed in due order of pleading as required by article 1902 of Revised Statutes of 1911, and rule 7 for the district courts (142 S. W. xvii), and was therefore waived. Had it been filed in due order of pleading, the overruling thereof would not have constituted such error as would require a reversal of the case. Rule 62a for Courts of Civil Appeals (149 S. W. x). The assignment is overruled.

By the second assignment complaint is made because the court did not grant defendants’ motion to strike out plaintiffs’ first supplemental .petition; the contention being that a new cause of action is alleged therein in that the land sued for is different from that described in the original petition, which should not be permitted as there was no personal service, nor any attorney selected by defendants, and the citation by publication only contained the description of the land contained in the original petition. ’ As the judgment describes the land as the same is described in the original petition, with an immaterial variance in the last call, we fail to see how the error, if it be one, is material. Had the judgment been for the land as described in the supplemental petition, it would be necessary to determine whether the same land was described as in the original petition, and we think there can be no doubt that it was the same; but, as the judgment follows the description contained in the original petition upon which the citation was issued, the want of a citation containing the other description becomes immaterial. The assignment is overruled.

The third assignment is overruled for the reason stated in overruling the second assignment

The fourth and fifth assignments attack the sufficiency of the evidence to support the finding that plaintiffs had title to the land sued for under the 10 years’ statute of limitations, as held by the trial court. The Cable ranch consists of about 8,000 acres, all under fence; the various tracts of land composing the same having been purchased from 1885 to 1892 by those under whom plaintiffs hold. These tracts were inclosed by fence when bought. For more than .10 years the land in controversy was claimed by the owners of the Cable ranch, being situated during all of said time in a pasture containing about 3,800 acres of land, inclosed by fence, and used continuously during all of said time by them for grazing purposes. The land in controversy fronts on the Hunt road, and is bounded on its remaining sides by lands situated in said 3,800-acre pasture, and does not touch any of the remaining pastures of the cable ranch. No part of same was used for agricultural or manufacturing purposes, and there were no improvements thereon other than a portion of the fence inclosing the 3,800-acre pasture. Plaintiffs in error contend that, as the entire ranch contains about 8,000 acres, article 5678, Revised Statutes of 1911, precludes the acquisition of the land in controversy under the 10 years’ statute of limitations; that the owners of the Cable ranch owned or claimed more than 5,000 acres inclosed by a fence in connection with or adjoining to the land in controversy; and that none of the exceptions existed which would permit the acquisition thereof by limitation under the statute. In other words, that the cross-fence separating the 3,800 acres from the remainder of the Cable ranch would have no effect upon the question of limitation. The contention does not appeal to us as correct. To disregard a fence because it was made as a partition fence or became a partition fence by the acquisition- of adjacent fenced land would be to give the words “inclosed by a fence” a meaning other than the usual and ordinary one and one which the Legislature could have easily expressed had it desired to do so. The Legislature had no desire to discriminate between the landowners on account of the size of their holdings, with respect to their rights to acquire title to other lands by limitation, but merely to mitigate to a certain extent the evil of any one acquiring title by means of such large inclosures that the owners would have difficulty in ascertaining whether their land was inclosed, use made thereof, and the same held adversely when the only evidence thereof was that a line of fence extended' along the same and stock was permitted to graze thereon. The requirements as to size of in-elosure and methods of use were arbitrarily fixed. Questions naturally suggest themselves as to why the uses which would make inoperative' the provision as to size of inclosure should be limited to agriculture or manufacturing, also what was meant by actual possession, and it is easy to suggest that other effective means of giving notice could have been mentioned besides the uses stated or actual possession, and it may also be inconsistent to leave the size of the pasture an immaterial matter under the five years’ statute, presumably because of notice by deeds and payment of tases, and yet make no exception when the ten years’ statute is invoked under recorded deeds. Without seeking to justify the peculiar wording of the statute or even to construe the same further than is necessary, we hold that the possession of the land in controversy in this case was the possession contemplated by article 5675, Revised Statutes of 1911, because the possession held by plaintiffs and those under whom they hold was not by persons owning or claiming 5,000 acres or more of land inclosed by a fence in connection therewith or adjoining thereto. The inclosure was of such character that plaintiffs acquired title by limitation to the land in controversy under the facts stated, and the court did not err in so holding. The assignments are overruled.

Judgment affirmed.