author: FLY, O. J.

text:
    LOPEZ et al. v. VELA et al.
    (No. 5949.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Boundakies @=37(5) — Establishment by Acquiescence — Sufficiency of Evidence.
    In an action of trespass to try title, the suit resolving itself into a contest as to the location of a boundary line, evidence held, sufficient to establish the line against plaintiff’s contention by acquiescence.
    2. Boundakies @=48(2) — Acquiescence—Absence of Doubt as to Tkue Location.
    Whero there is no room to doubt the true location of a boundary, mere acquiescence in another line does not support a verdict in favor thereof.
    3. Boundakies @=40(3) — Acquiescence — Question oe Fact.
    Acquiescence in a boundary is a question of fact for judge or jury.
    4. Boundaries @=33 — Acquiescence — Presumption.
    Acquiescence in a boundary affords a strong presumption that the line acquiesced in is the true line.
    5. Appeal and Error @=756 — Brief Not in Compliance with Rules — Consideration.
    Appellees’ typewritten brief, consisting of 53 pages, in gross violation of the rules, will not be considered by the Court of Civil Appeals.
    Appeal from District Court, Hidalgo County; Y. W. Taylor, Judge.
    Action by Francisco Lopez and others against Jesus Maria Yela and others. From a judgment for defendants, plaintiff's appeal.
    Judgment affirmed.
    James B. Wells, F. W. Seabury, and Har-bert Davenport, all of Brownsville, for appellants. Dawson & Anderson, G. R. Scott, and Boone & Pope, all of Corpus Christi, for appellees.
   FLY, O. J.

This is an action of trespass to try title to 2,000 acres of land out of-a Spanish grant to Alejandro Farias, known as the San Jose tract, on January 24, 1809, and patented'by the state of Texas on January 15, 1S76. The suit was instituted by Francisco Lopez and 10 others against Jesus Maria Vela and 37 others. The suit resolved itself into a contest as to the location of a boundary line between the San Jose tract and the San Ramon tract, which was granted by the government of Spain to Julian Farias on January 24, 1S09. The boundary line in dispute is the east line of the San Jose tract and the west line of the San Ramon tract. The cause was tried without a jury, and resulted in a judgment for appellees.

■ The facts show that in 1804, the Spanish government granted 16 leagues of land to Julian, Alejandro, and Francisco Farias, three brothers, each receiving about four leagues of land, the grant to Julian Farias being called the San Ramon, the one to Alejandro Farias being named the San Jose grant, and the one to Francisco Farias being known as the Santa Cruz grant Surveys of the three tracts were made by the same surveyor in the year 1808, in the same month. The three tracts were surveyed consecutively, beginning with the San Ramon taking a starting point on the west boundary line of a tract known as the Santanita, an older survey. The three tracts lay alongside each other, the Ramon on the east, the San Jose in the center, and the Santa Cruz on the west of the San Jose. The court found, and the evidence justifies the finding, that the tracts were laid off' in rectangular shapes, the perpendicular lines running from north to south,, the San Ramon grant being not so long, hut some wider than the other two grants. There is evidence tending to show that, as originally surveyed, the land in controversy was mostly on the San Jose tract and not a part of the San Ramon grant.

In issuing the patents the true meridian lines laid out in the original Spanish grant were not followed, but for some reason not apparent the Santanita, an older survey, which was originally surveyed and granted on meridian lines which formed a pentagon, were changed by the patent to magnetic lines, and the shape changed to a rectangle. The San Ramon grant was also patented on magnetic lines, and not on the original meridian lines. These changes caused a conflict between the east line of the Ramon and west 'line of the Santanita tracts which caused a lawsuit. A map was made by Cocke and Hord which was used in evidence in this suit. That máp showed that under the original surveys the-northwest corner of the Ramon was a short distance west and north of the corner fixed by subsequent surveys on magnetic lines, and the west line of the Ramon tract on its way south cut into the west magnetic line, forming a small triangle in the northwest corner of the tract, which under the magnetic survey would he on the San Jose tract. After crossing the magnetic line aforesaid, the original meridian would pass further and further east of the west magnetic line of the San Ramon until it reached the original southeast corner of the San Ramon tract, forming with the west and south magnetic lines a large triangle containing the land in dispute. In the survey made by J. E. Eivet, the northwest corner of the Ramon tract was fixed at a point 480 varas due east of the east line of the San Jose, thence a little west of south until the east line of the San Jose tract is reached, thence with that east line to its southeast comer, thence on the south line of the San Jose tract, 1,912 varas to a stake, thence a little west of south to the extreme southwest comer of the Ramon tract, thence to southeast corner, thence to northeast corner to beginning. The lines on the west of the Ramon were produced by a failure of the surveyor to run a straight line from the northeast to the southeast corner, which would have taken a triangle oft' the San Jose tract in its southeastern corner. The patent from the state followed the Eivet survey.

We adopt the findings of facts of the trial judge, .as follows:

“Hirst. In the year 1804, four leagues of laud each were denounced by Julian, Alejandro, and Francisco Farias, brothers, which were known, respectively, as the San Ramon and San Jos'e and Santa Cruz grants, and surveys of said grants were made by the same surveyor, Antonio Margil Cano in the same month of the year 1808, consecutively, beginning with San Ramon, and starting from the west boundary of San-tanita, which had been previously surveyed. The grants to these lands were made by the same Spanish governor, and title vested in the grantees to the respective grants in the year 1808, and by the act of the Legislature of the state of Texas of February 10, 1852, the lands so granted were confirmed, and the state of Texas relinquished to said original grantees, their heirs and assigns all the right of the state to said lands, as originally surveyed and granted, and each was subsequently patented by the state of Texas.
“Second. Plaintiffs deraign title by regular chain from and under the original grantee to the lands claimed by them respectively in the San Jose grant, and defendants deraign title by regular chain from and under the original grantee to the lands claimed by them respectively in the San Ramon grant.
“Third. The _surveys of the San Ramon, San Jose, and Santa Cruz grants were made by the same surveyor, in the same month of the year, beginning with San Ramon, and then consecutively San Jose and Santa Cruz, in the order named, and all maps of the original grants show that said lands as originally surveyed and granted were surveyed between parallel lines in the form of rectangles, that they adjoined in the order named, and that no vacancies existed between them.
“The point marked ‘XXI’ on the Cocke & Hord man in evidence is the correct northwest corner of the San Ramon grant, as originally surveyed, and is on the east line of the San Jose grant, as originally surveyed. The southeast comer of the San Jose grant as originally surveyed is the point designated ‘Y,’ on said Cocke & Hord map, and this corner is on the west line of the San Ramon, as originally surveyed.
“Fourth. The point ‘H’ on the Cocke & Hord map, in evidence, being the point located and identified by a stone about 6,380 varas N. 81 deg. W. from the stone called ‘Rosario’ marked ‘U,’ on the Cocke & Hord map, and 388 varas N. 9 deg. E. from the point marked ‘F’ on the Cocke & Hord map and a mesquite with a stone at the foot thereof marked ‘E’ on said Cocke & Hord map, just west of the San Ramon ranch and on the west side of a depression in which the old San Ramon ranch and wells are situated, has for more than 30 years been recognized, regarded, and accepted by the owners of the land in the San Ramon and San Jose grants as tho northwest corner of the San Ramon, and other well known and accepted corners and boundaries of the San Ramon grant are identified on the Cocke & Hord map by the following letters and figures: ‘F,’ ‘E,’ ‘S,’ ‘L,’ ‘M,’ ‘XIII,’ ‘B,’ ‘G,’ and T.’
“Fifth. The aforesaid corner designated ‘H’ on said Cocke & I-Iord map and the line running therefrom S. 9 deg. W. through -the point ‘F’ and the point ‘E’ (stone at foot of rqesquite tree), ‘X,’ ‘S,’ ‘W,’ and to the point ‘L,’ are recognized and well established and identified locations, and such line so running has been recognized, accepted, and acquiesced in by the owners of the San Jose and San Ramon grants, including plaintiffs and defendants, and those under whom they respectively claim, as the common and true) boundary line between said grants of land for many years longer than necessary for any period of limitation, to wit, for more than 30 years.
“Sixth. The old San Ramon Ranch, which is located east of the point ‘E’ on said Cocke & Hord map, and referred to in the fourth paragraph hereof, is on the San Ramon lands, and this ranch site has existed at its present location since about the year 1804, and has been occupied by successive owners under the original grantee of the San Ramon ranch for more than 50 years, claiming it as a part of the San Ramon grant.
“Seventh. For a longer period of time than necessary to prescribe under any period of limitation, the defendants, and those under whom they claim, have been in possession, use, and occupancy of the. lands claimed by them herein, and asserting title thereto as part of the San Ramon grant, and their respective claims during all these years have not been disturbed by adverse claims until the institution of this suit, on the 26th day of March, A. I>. 1910.
“Eighth. The defendants, and those under whom they claim, have for many years rendered and paid taxes on the lands respectively claimed by them, some of said defendants paying taxes for consecutive years and others for consecutive years with one or two omissions. The renditions so made gave the abstract number and the name of the original grantee.
“Ninth. Defendant Vela fenced a part of the land owned by him in the San Ramon grant, and being a part of the land in controversy herein, in 1895, and completed his fencing and inclosure of all the lands claimed by him in the San Ramon grant in 1896, except as to a small portion in the northeast corner, which was held jointly fenced with cotenants until 1905, when he changed his fences so as to include same in his inelosure, and some of the defendants who own land in both the San Jose and San Ramon grants have had their holdings in the two grants inclosed under fence since about the year 1898, and these fences inclosing these holdings extend over the recognized boundary between the two grants, and the others built fences inclosing their lands, within the tract of land in controversy, some time in 1898, and all said parties have continuously maintained their fences and have been in possession, use, and occupancy of said lands since said respective dates.
“Tenth. Some of the plaintiffs joined fences with the fences on this boundary line, and none of the plaintiffs, or those under whom they claim, raised any objection to said fences, or claimed any of the lands within said fences until the institution of this suit, but all recognized, accepted, and acquiesced in the line above described as the boundary line between said San Ramon and San Jose tracts or grants of land.
“Eleventh. The defendants Vela and others building said fences so built said fences in reliance upon the line claimed by them being the boundary line between the San Jose and San Ramon grants.”

The evidence shows without contradiction that the boundary line fixed by the court had been recognized as the boundary line between the San Ramon and San Jose tracts for many years. Tlie whole line had been fenced for a long time. In 1898, a fence extended along the boundary line a larger part of its length. The ranch houses were west of the meridian line contended for by appellants, and had been there for 50 years or more. There is sufficient evidence to show that the magnetic boundary line contended for by appellees was recognized and acquiesced in by those owning the San Jose tract. When Lund surveyed the grant and fixed the line between the San Jose and San Ramon grants from objects he found on the line, that survey was made to be used in a contest as to the boundary line between the San Jose and Santa Cruz grants. The case in which it was used was Barrera v. Guerra, 122 S. W. 902, which was decided on appeal by this court. The survey was made at the instance of appellants, and was used by them in the case cited to establish the magnetic lines as their true boundaries. The fence was on the boundary line between the San Ramon and San Jose grants, and Lund said that the plaintiffs in that suit, who own the San Jose tract, told him that the fence was the west line of the San Ramon. They desired to extend their land on the west side of the grant, and it was only after they had failed in that effort that they then turned to their line on the east, and sought to gain land on that side. The owners of the San Jose tract pointed out the corners of the San Ramon to Lund, and those are the corners contended for by appellees. The survey by Lund was made from the starting point and on the lines pointed out by the owners, who were then seeking to win the case involving the west line of the San Jose tract. Portions of the San jRamon grant were bought by different parties with reference to the fence on the old boundary line. The evidence was sufficient to establish the boundary line by acquiescence, and appellants are estopped to deny that the line is the true boundary. Brackenridge v. Howth, 64 Tex. 199. In the case of Floyd v. Rice, 28 Tex. 841, it was held:

“This is not a suit for land; the question in the case is one of boundary. There is no conflict of title. Bach of the parties acknowledges the title of the other to the land designated in his deed. The contest is waged for the purpose of ascertaining and establishing the common boundary recognized by both titles. On this question of the locality of the boundary, the acquiescence of the parties in or their recognition of a particular line is evidence! which should have great weight in determining their boundary, affording, as it does, a strong presumption that the line so recognized is the correct line, which presumption is strengthened by the lapse of time.”

Of course there is no time fixed by law that would raise a conclusive presumption of the correctness of a line, but each case must furnish its own rule, to be deduced from all the circumstances. All the circumstances arising through many years tend to show acquiescence in the line. This acquiescence was carried to the extent of joining fences with those living on the San Ramon grant. The case of Rice v. Floyd has been followed in a number of cases. Medlin v. Wilkins, 60 Tex. 409; Lagow v. Glover, 77 Tex. 448, 14 S. W. 141; Bohny v. Petty, 81 Tex. 524, 17 S. W. 80; Colorado County v. Travis County, 176 S. W. 845.

It may be that, where there is no room to doubt the true location of a boundary, mere acquiescence in another line would not support a verdict in favor thereof. Bundick v. Moore-Cortes Canal Co., 177 S. W. 1030. In this case, however, there has been and is grave doubt as to the true location of the common boundary line between the San Jose and San Ramon tracts, so much so that several lawsuits have entertained the question as to the true boundaries. Acquiescence is a question of fact for judge or jury, as the case may be, and such acquiescence affords a strong presumption that the line acquiesced in is the true line. Beebe v. Sweeney, 158 S. W. 235; Koenigheim v. Sherwood, 79 Tex. 508, 16 S. W. 23. We think the facts were sufficient to. show acquiescence in the line claimed by appellees.

No brief was filed in this case by appellees until after the cause was submitted, and then only one brief was filed, which consisted of 53 pages of typewritten matter. Being in gross violation of the rules, it has not been considered, and the printed briefs presented some days later were not permitted by the court to be filed. We have deemed it necessary to call attention to this matter, although the cause has been decided favorably to appellees, in order that a precedent may not be established that would destroy the rules as to briefs.

The judgment is affirmed.
      <£=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    MORRIS v. FT. WORTH LIFE INS. CO.
    (No. 1845.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1918.
    Rehearing Denied Jan. 24, 1918.)
    1. Insurance &wkey;138(2) — Discrimination — Collateral Agreement.
    An agreement of an insurance company to lend money to one at a low rate of interest if he would take out a certain amount of insurance, not being mentioned in the policy, was void under Rev. St. 1911, art. 4954, prohibiting discrimination in favor of individuals.
    2. Insurance <&wkey;13S(2) — Cancellation of Policy — Promises Violating Statutes — Constructive Knowledge of Truth.
    A policy holder cannot ask rescission of policy, in that he was deceived by a promise to lend him money at a low rate of interest if he would take out a policy, which violated Rev. St. 1911, art. ‘4954, prohibiting- insurance companies from discrimination between individuals by giving valuable inducements not mentioned in the policy, being charged with a knowledge of its invalidity.
    Appeal from District Court, Camp County ; It. M. Smith, Judge.
    Action by James W. Morris against the Ft. Worth Dife Insurance Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.'
    M. M. Smith, of Pittsburg, for appellant. R. M. Rowland and Robt. Harris on, both of Ft. Worth, for appellee.
   HODGES, J.

This appeal is from the action of the court in sustaining a general demurrer to the plaintiff’s petition, of which the following is the substance: (

The plaintiff alleged that in July, 1914, he was approached hy two agents of the ap-pellee company and solicited to take out two policies of insurance of $5,000 each— one upon his own life, and the other upon the life of his wife. He informed the agents that he' had similar policies in another insurance company, that he owed a debt upon which he was paying the highest rate of interest allowed by law, and he did not feel financially able to incur any further obligations. The agents of1 the appellee company then and there represented to him that if he would cancel the policies he was then carrying in another life insurance company and take out insurance "in their company that company would make him a loan of $5,000 or $6,000, as he might prefer, upon the same security then held by the hank, and would charge him interest at the rate of 6 per cent, per annum. It is alleged that the agents were acting within the scope of their authority, and with the consent of the appellee company. Appellant thereupon, in consideration of the agreement to carry his loan then held by the bank at an interest rate of 6 per cent, per annum, canceled his insurance policies carried in the other company, and made application for insurance in the appellee company ;• and in due course of time a policy was issued and he executed his notes aggregating the sum of $373.84 for the payment of the premiums. Those notes were made payable to the agents representing the appellee company, but were really for the benefit of the appellee, and were taken in the name of the agents merely as a matter of form. The notes were delivered .to the company, and are now held by it. 1-Ie further alleges that he made application for the loan, and tendered the security agreed upon, to- which no objection, was made, but .the loan was refused upon the ground that it was not convenient for the appellee to make it at that time. He charges that he has been unable to make any sucb loan from the appellee; that the promise on the part of the agents to make such loan was fraudulent and made for the purpose of deceiving him into canceling the insurance held in another company and taking out insurance in the company represented by them. He asks that the note be canceled; he tenders the policy of insurance into court and asks that it be canceled, and prays for damages in the sum of $1,000.

Upon the refusal of the appellant to amend his petition the case was dismissed. All of the assignments of error presented in this appeal complain in different forms of that ruling of the court.

The appellee justifies the action of the court in sustaining the general demurrer upon the ground that if the facts alleged be true and the appellee’s agents did promise to make to the appellant a loan upon his real estate at a reduced rate of interest, such promise, not appearing as a part of the written contract of insurance, was void because prohibited by article 4954 of the Revised Civil Statutes. That article is as follows (italics ours):

“No insurance company doing business in this state shall make or permit any distinction or discrimination in favor of individuals between insurants [the insured] of the same class and of equal expectation of life in the amount of, or payment of, premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon; nor shall any such company or agent thereof make any contract of insurance or agreement as to such contract other than as expressed in the policy issued thereon; nor shall any such company, or any officer, agent, solicitor or representative thereof, pay, allow or give, or offer to pay, allow or give, directly or indirectly, as an inducement to insurance, any rebate or premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any paid employment or contract for service of any kind, or any valuable consideration or inducement whatever not specified in the policy contract of insurance; or give, sell or purchase, or offer to give, sell or purchase, as an inducement to instiranee, or in eomieotion therewith, any stocks, bonds or other securities of any insurasice x company or other corporation, association or ' partnership, or any dividends or profits to accrue thereon, or anything of value whatsoever not specified in Hie policy, or issue any policy; containing: any special or board contract or similar provision, by the terms of which said policy will share or participate in any special fund derived from a tax or a charge against any portion of the premium on any other policy,” etc.

The appellant replies by saying that the agreement relied on does not come within the terms of the statute, and for that reason it is not unlawful. In legal effect the complaint of the appellant is that the agents of the appellee falsely and fraudulently represented to him that if he would take out a policy of insurance in their company the latter would make him a loan by which he could save in interest $200 or more for each year during which the loan existed; that such promise was valuable and formed the consideration which induced him to cancel his other insurance and to make this particular contract. According to his contention it lies at the very base of the agreement, and upon it alone rests the agreement to make the insurance contract; and had no such promise of the loan been made, he would not have taken out the policy of insurance in the appellee company.

If the proanise of the agents to make the loan at the reduced rate of interest is so connected and interwoven with the contract to pay the insurance premiums as to authorize a rescission of the latter upon proof that the promise was fraudulently made, then such a promise must have formed a material part of the actual consideration for entering into the insurance contract. Manifestly such a promise would be an “offer to give * * * as an inducement to insurance” something of value, and should have been “specified in the policy.” It is one of the evident purposes of the statute above quoted to prevent discriminations and secret agreements by which certain policy holders may be enabled to secure special favors as a consideration for their contracts of insurance. In this instance the policy of insurance was made an exhibit to the appellant’s petition, and there is no contention that it contained the stipulation here insisted upon as a ground for rescission. Hence it falls within the prohibition of the statute.

That being true, it logically follows that the appellant cannot insist that he was deceived by a promise .which the agents could not legally make. 1-Ie is charged with a knowledge of the provisions of the statute relating to such transactions; he will not be allowed to plead that did not know that such limitations upon the power to make insurance contracts existed. He is therefore in no attitude to insist that he was the victim of a fraud perpetrated by the representatives of the insurance company. Ho had a right to give his notes for his premiums. It is not contended that the premium rates which he promised to pay were in excess of those ordinarily charged for that character of insurance. Neither is it charged that they are different from the rates he had been, previously paying, or that the insurance he now holds was less satisfactory than that which he had in the former company. On the contrary, it appears that the reduction in the interest rate on the loan promised was a special benefit which he was not' enjoying prior to the making of this contract, and one which he expected solely in consideration of transferring his insurance to the appellee company.

We are therefore of the opinion that there was no error in the action of the court in sustaining the demurrer, and the judgment is affirmed.
      @=oFar other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: EEVY, J.

text:
    YOUNG v. TEXAS & P. RY. CO.
    (No. 1906.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1918.
    Rehearing Denied Feb. 14, 1918.)
    Railroads &wkey;>350(33) — Death of Person on Trestle — Question for Jury.
    In action for death of one struck by train on trestle, evidence held to make issue of negligence after discovered peril one for the jury.
    Error from District Oourt, Marion County; J. A. Ward, Judge.
    Action by Mary Young against the Texas & Pacific Railway Company. Judgment for defendant and plaintiff brings error.
    Reversed and remanded.
    R. A. Sexton and F. M. Scott, both of Marshall, T. D. Rowell, of Jefferson, and W. T. Brothers, of Santa Rosa, N. M., for plaintiff in error. Armistead & Benefield, of Jefferson, for defendant in error.
   EEVY, J.

The appellant, an infant, sues by next friend for damages for the alleged wrongful death .of her mother; A ground for recovery in the petition is that of discovered perih The court, after the introduction of all evidence, peremptorily instructed a verdict for the defendant. The appeal is to review the ruling of the court in giving a peremptory instruction.

The trestle of the railroad company that spans Biig Cypress bayou near Jefferson;, Tex., is 125 yards long. Mary Young’s mother, while crossing the trestle, going south, was struck by the north-bound railway passenger train, which was running about two hours late and at the speed of about 45 miles an hour. About 125 feet on the south from the trestle the track begins a gradual curve. At a point beginning on the track 2,400 feet on the south of the trestle a full, clear view, according to the evidence, may be had of a person on the trestle. There is evidence that the train could be stopped within 1,700 feet or less at the speed it was going. The fireman and engineer both saw the woman on the trestle, and her danger from the approaching train. The fireman first notified the engineer of the woman’s being on the trestle. The engineer said:

“X put on the air when I got that signal [of the fireman], and I ran about 1,700 feet before I stopped. I stopped with my engine over the bridge and part of the train on the bridge. The engine had gotten over the bridge to the dump.”

The fireman testified that the train ran 1,600 or 1,700 feet “from the time I saw her until it stopped. The train had not all passed the bridge when the woman was struck when we stopped.” When the train stopped the seventh ear rested at the point where the woman was killed. Whether the train could have been stopped and the death avoided by the exercise of reasonable care was, in the further circumstances, it is believed, an issuable fact for the jury. The evidence raises an issue of discovered peril sufficiently, it is concluded, to be a jury question. Railway Co. v. Tinon, 117 S. W. 936; Railway Co. v. Yarbrough, 73 S. W. 844; Knights of Maccabees v. Johnson, 143 S. W. 718.

Appellant duly excepted to the ruling of the court in giving the peremptory instruction, and the second ground in the motion for new trial makes complaint thereof, it is thought, to the court. The motion in the case is overruled.

Judgment reversed, and the cause remanded for a new trial.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SOUTHWESTERN GAS & ELECTRIC CO. v. COBB.
    (No. 1888.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 19, 1918.
    Rehearing Denied Jan. 31, 1918.)
    1. Remase c&wkey;24(l) — Dueess—Lack op Consideration — AvoinANCE.
    If a contract between a gas company and a customer avoiding the liability of the gas company for injuries from an explosion was obtained by duress, and was without consideration to her, she was legally entitled, in her action for the injuries, to allege and prove such facts in avoidance.
    2. Gas &wkey;>20(2) — Explosion—Negligence.
    In an action against a gas company for injuries from an explosion of gas after removal of the meter, evidence held to authorize the jury to find that the breaking of the pipe in the premises resulted from the company’s negligence.
    3. Appeal and Error <&wkey;248 — Review—Assignments — Lack op Exceptions.
    Assignments of error, no exceptions having been reserved, may not be reviewed.
    Appeal from Bowie County Court; J. B. Lytal, Judge.
    Suit by Mrs. Efiie Cobb against the Southwestern Gas & Electric Company. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee had apartments in the second story of a building, and used natural gas for fuel in the cook stove. The appellant company furnished the natural gas. Appellee desired to give up the apartments, and requested the company to take out the gas meter and cease furnishing gas. Two employds of appellant came and removed the meter. About three or four hours after removal of the meter a gas explosion occurred in the building, damaging the building and injuring appellee. She sues for damages for the personal injuries sustained, alleging negligence on the part of the employds of appellant: (1) In the manner in which they removed the meter; and (2) in breaking the pipe to which the meter was attached while attempting to plug or close the end of the pipe, and in failing to repair it after knowing that it was broken. The defendant answered by demurrer, general denial, and specially pleading a written contract between plaintiff and defendant in avoidance of liability, and further pleaded that the explosion was due to the defective and worn-out condition of the pipe inside the building and under the exclusive control of the occupants and owner of the building. The plaintiff by supplemental petition pleaded that the special contract set up by defendant was signed by her under duress and constraint, and was without any consideration moving to plaintiff. The defendant filed a general demurrer to the supplemental petition.
    There is evidence warranting the findings of the jury in response to special issues: (1) That the employds of defendant in removing the gas meter from the plaintiff’s apartments broke the gas pipe to which the gas meter was attached, and the breaking of the same was caused by negligence; (2) that the escape of the gas into the building, and +he consequent explosion which occurred therein, was a proximate result of the breaking of the pipe; and (3) that the employds by exercise of reasonable care could have known that the pipe was broken before they left the building, and negligently failed to repair such pipe, and to prevent the escape of gas from such broken pipe and to notify any person in the building of the broken condition of same.
    Chas. S. Todd and C. A. Wheeler, both of Texarkana, for appellant. Mahaffey, Keeney & Dalby, of Texarkana, for appellee.
   LEVY, J.

(after stating the facts as above). It is not apparent from the record whether or not the court sustained the appellant’s demurrer to the plaintiff’s supplemental petition. But assuming that the court did overrule the demurrer, there was no error, it is concluded, in so doing. For if the contract set up in the appellant’s answer was, as alleged in the supplemental petition, obtained in point of. fact by duress and was without consideration to plaintiff, she would be legally entitled to allege and prove such facts in avoidance. The first assigned error is overruled.

The peremptory instruction requested by appellant was, it is believed, properly refused, by tbe court. Tbe pipe which supplied appellee’s apartment witb gas entered tbe basement of tbe building from tbe street and connected by an elbow to a pipe going upward through an air shaft in tbe wall to tbe second story, and tben through a bole into tbe room, and there connecting to a meter. Tbe testimony for appellee goes to show that tbe employés of appellant in removing tbe gas meter broke tbe pipe which led upward from the basement, and thereby allowed gas to escape into tbe building, which, from some cause, became ignited and caused tbe explosion. The fact of explosion and the extent of it, and that the gas escaped from a broken pipe, was undisputed. The pipe was broken three or four inches above tbe elbow, and it was shown that the break was a complete and fresh one. The pipe was old and very much rusted, but without a considerable strain on it, as testified, it would not have broken. The employs in taking the meter out unscrewed the nut in the union of the pipe, and then with a monkey-wrench screwed the nut on the pipe. It was shown that a person could tell and would know when a pipe breaks while screwing a nut or shut-off on it. And there is evidence tending to show that the pipe was broken by the employés who took the meter out, and that they must at the time have known that they broke it; and such evidence was sufficient to authorize the jury to find that the breaking of the pipe resulted from negligence. And if the contract offered in evidence by appellant should be regarded as offered against the plaintiff, then there is nothing, it is concluded, in the terms of the contract that would relieve the appellant from the consequences of the special negligence averred as resulting in her injury. The evidence for plaintiff, it is held, makes a jury question.

It is believed that the evidence warrants the findings of fact by the jury, and the sixth assignment of error is overruled.

The other assignments of error may not be reviewed, it is concluded, because no exceptions were reserved. Railway Co. v. Cody, 92 Tex. 632, 51 S. W. 329. The Acts of the Thirty-Fifth Legislature, p. 389 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), had not taken effect at the time of the trial.

Judgment affirmed.
      cgc^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. TAYLOR.
    (No. 1902.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Bailroads <§=222(2) — Nuisance—Bound-house.
    A roundhouse and its operation constituting a nuisance, it was no defense to the railroad in action for damages therefrom that it was more convenient to construct and operate it at that place than another, that in constructing and operating it the railroad neither “took” nor “de- ' stroyed” plaintiff’s property, or that the railroad was not negligent in constructing or operating it.
    2. Bailroads <§=222(2) — Nuisance—Bound-house.
    Defendant railroad’s federal charter, though not expressly making defendant liable for “damaging” property, but only for “taking” or “destroying,” and Const. TI. S. Amend. 5, prohibiting “taking” of private property for public use without just compensation, do not relieve defendant from liability for unreasonably damaging adjoining property by soot, smoke, etc., from its roundhouse.
    3. Appeal and Error <§=907(3) — Presumptions — Findings—Support by Evidence.
    On appeal by defendant from judgment for real property damages, where there was no statement of facts, but the court found that plaintiff owned the property, and had owned it for more than 20 years, and also found that plaintiff did not introduce any deed or other muniment of title, but testified orally that she owned the property described, and the court stated that he based his finding that she owned it upon that testimony alone, such finding will not be construed as a finding of ownership on plaintiff’s mere oral testimony that she “owned” the property, but would be assumed to be based on oral evidence of possession.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Action by Mrs. Josie Taylor against the Texas & Pacific Bailway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee owned a dwelling house and the land on which it was situated in or near Longview. Appellant owned land 390 feet from appellee’s property, on which it constructed and afterwards operated “a roundhouse and appurtenances and appliances.” Appellee, claiming that tbe operation of the roundhouse produced smoke, dust, soot, unpleasant vapors, gases, and noises, whereby her property was injured, sued appellant for damages, and on a trial to the court without a jury recovered judgment against it for $500. There is no statement of facts with the record sent to this' court, but the trial court made and filed findings of fact. Among other things, he found that as a result of smoke, dust, soot, unpleasant vapors, gases, and noises emitted from the roundhouse ap-pellee’s property was so injured as to depreciate its value in the sum he adjudged to appellee, and that the damage to appellee from the operation of the roundhouse “was not suffered by her in common with the community in general, but same was speciál damage to her.”
    Young & Stinchcomb, of Longview, and Geo. Thompson and B. S. Shapard, both of Dallas, for appellant. E. M. Bramlette and F. J. McCord, both of Longview, for appel-lee.
   WILLSON, C. J.

(after stating the facts as above). The validity of the judgment is attacked on two grounds:

1. Notwithstanding the operation of the roundhouse with its appurtenances and appliances “produced,” as found by the court, “smoke, soot, dust, unpleasant vapors, gases, and noises,” which so injured appellee’s property as to depreciate its value, it is insisted that appellant was not liable as determined by the judgment. The contention is based upon findings: (1) That appellant was a federal corporation engaged in interstate commerce as a common carrier; (2) that it was necessary to the conduct of its business as such a carrier to construct and operate the roundhouse, etc.; (3) that it was more convenient to it, and less expensive, to construct and operate same at the place it did construct same than at any other place obtainable for the purpose; (4) that the roundhouse, etc., could not be operated without the emission therefrom of smoke, soot, dust, unpleasant vapors, gases, and noises; (5) that in the construction and operation thereof appellant neither took nor destroyed appellee’s property, or any of it; and (6) that appellant was not guilty of negligence in either the construction or operation of the roundhouse.

It could not be, and we do not understand that it is, contended that the annoyance to occupants of the premises in question caused by smoke, soot, dust, unpleasant vapors, gases, and noises which the court found were emitted in the operation of the roundhouse did not constitute a nuisance within the meaning of the law. 29 Cyc. 1152, 1184; Daniel v. Railway Co., 96 Tex. 327, 72 S. W. 578. That being true, that it was more convenient and less expensive to appellant to construct and operate the roundhouse at the place where it did construct and operate same than at some other place, that in constructing and operating same as it did appellant neither “took” nor “destroyed” the property in question, and that appellant was not guilty of negligence either in the construction or operation of the roundhouse was of no importance. 29 Cyc. 1155, 1161; Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Railway Co. v. Edrington, 100 Tex. 496, 101 S. W. 441, 9 D. R. A. (N. S.) 988. Therefore, if the contention is a sound one, it must be because appellant, being a federal corporation engaged in interstate commerce as a common carrier, was not liable, as otherwise it would have been, for the consequences of its acts in the particulars complained of. And this seems to be the view appellant takes of the matter. It insists that because it was such a corporation its liability was determinable with reference alone to its charter and the federal Constitution and laws. It then calls attention to the fact that, while it was provided in the acts of Congress incorporating it that it should secure, “in accordance with the laws of the state or territory, in which they were situated,” such lands as it was necessary for it to take for its line of railway, said acts contained no provision making it liable where it did not talce or destroy, but merely damaged, property. It then refers to the clause in, the Fifth Amendment to the federal Constitution declaring that private property shall not “be taken for public use without just compensation,” and argues, in effect, that the prohibition against talcing such property without compensating the owner licensed it to damage it without compensating him. It cites, as supporting its view of the law of the cáse, Northern Transportation Co. v. City of Chicago, 99 U. S. 635, 25 L. Ed. 336, and Richards v. Washington Terminal Co., 233 U. S. 546, 34 Sup. Ct. 654, 58 L. Ed. 1088, L. R. A. 1915A, 887. The first mentioned of the two cases was for damages the transportation company claimed against the city because of a temporary obstruction which prevented access by the company to property it owned, due to work of the city in improving its streets. The principle which controlled in the determination of the question in that case we think has no application to this one. In the Richards Case it appeared that the terminal company, having been authorized by acts of Congress to do so, constructed a tunnel and tracks for use by railway trains. A fanning system installed in the tunnel forced smoke and gases emitted from engines while in the tunnel out of same. The smoke and gases injured the plaintiff’s dwelling house, which was situated 114 feet from the mouth of the tunnel. ' The Supreme Court, reversing the judgment of the Court of Appeals of the District of Columbia, held that the terminal company was liable to the plaintiff for damages to his property caused by the gases and smoke that issued from the tunnel. In so holding the Supreme Court said:

“The case shows that Congress has authorized, and in [legal] effect commanded, defendant to construct its tunnel with a portal located in the midst of an inhabited portion of the city [of Washington]. The authority, no doubt, includes the use of steam locomotive engines in the tunnel, with the inevitable concomitants of foul gases and smoke emitted from the engines. No question is made but that it includes the installation and operation of a fanning system for ridding the tunnel of this source of discomfort to those operating the trains and traveling upon them, All this being granted, the special and peculiar damage to the plaintiff as a property owner in close proximity to the portal is the necessary consequence, unless at least it be feasible to install ventilating shafts or other devices for preventing the outpouring of gases and smoke from the entire length of the tunnel at a single point upon the surface, as at present. Construing the acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiff’s property without compensation to him. If tho damage is not preventable by the employment at reasonable expense of devices such as have have been suggested, then plaintiff’s property is ‘necessary for the purposes contemplated,’ and may be acquired by' purchase or condemnation (32 Stat. at L. 916, c. 856, § 9), and pending its- acquisition defendant is responsible. If the damage is readily preventable, the statute furnishes no excuse, and defendant’s responsibility follows on general principles.”

It seems to us that the case from which the quotation above is made, far from supporting, instead determines, appellant’s view of the law to bo erroneous, and that it alone might very well be regarded as sufficient authority for overruling appellant’s contention. But as strong, if not stronger, authority for doing that is found in Railway Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 710, 27 L. Ed. 739, and cases following it. In the Baptist Church Case the railway company had constructed and was operating an enginehouse and repair shop near the church. The suit was by the church for damages caused by noise, smoke, cinders, etc., emitted from the enginehouse and shops. The court affirmed a judgment in favor of the church, saying, with reference to the contention made that the railway company had done nothing more than it was authorized by act of Congress to do:

“It is no answer to the action of the plaintiff that the railroad company was authorized by act of Congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the completion and maintenance of its road, and that the enginehouse and repair shop in question were thus necessary and expedient; that the chimneys of the enginehouse are higher than required by the building regulations of the city, and that as little smoke and noise are caused as the nature of the business in them will permit. In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. * * * Whatever the extent of the authority conferred, it was accompanied with this implied qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies like those in question confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. The great principle of the common law, which is equally the teaching of Christian morality, so to .use one’s property as not to injure others, forbids any other application or use of the rights and powers conferred.”

2. The other ground upon which the judgment is attacked is that it appeared from the court’s findings, it is asserted, that appellee failed to show that she owned the property described in her petition. The finding of the court was that appellee owned the property at the time of the trial, had owned it “for more than 20 years, enjoying the fruits and revenues therefrom, claiming same as her own,” and owned it at the time appellant constructed its roundhouse, etc. The contention is based on a further finding by the court that appellee “did not introduce any deed or other muniment of'title, but testified orally that she owned the property described in her petition,” and the statement of the court that upon that testimony alone he based his finding that she owned it. We do not think the statement of the court should be construed to mean that he based his finding that appellee owned the property on her testimony merely that she “owned” it. On such testimony alone he could not have found that she had owned the property “for more than 20 years, enjoying the fruits and revenues therefrom, claiming same as her own.” 1-Ie must have meant that appellee offered no written evidence of title in herself to the property, but relied entirely upon oral evidence of possession thereof to prove that she owned the property. That she might, as against appellant, have proved ownership by that kind of evidence, is well established by the authorities, and in the absence of a statement of facts we think it should be assumed in support of the court’s finding that she did so prove it.

The judgment is affirmed.
      <@=»For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: FLY, C. J.

text:
    GRIMM et al. v. WILLIAMS et ux.
    (No. 5960.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Vendor and Purchaser &wkey;>93 — Contracts — Compliance.
    Where the vendors who understood that a payment for land should be in cash, on finding that the purchaser was not prepared to make such payment executed the deed, consenting that it should be held in escrow for two days, when payment was to be made, the vendors may, in event of the purchaser’s failure to make payment on or before the expiration of the time limited, rescind the contract.
    2. Deeds &wkey;>108 — Delivery—Effect.
    A deed takes effect only from its delivery.
    3. Escrows &wkey;*9 — Condition — Compliance.
    When a deed is placed in escrow, the grantee is entitled to delivery only upon strict compliance with the terms of the agreement, and a substantial compliance is not sufficient.
    4. Trial <&wkey;349(l) — Instructions—-General Charge.
    Where a cause is submitted on special issues, no charge should be given requiring a general verdict.
    5. Trial <&wkey;349(l) — Instructions—Request.
    Where the cause was submitted on special issues, the refusal of requested instructions which would not have aided the jury in answering the questions is not error.
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Suit by Otto C. Grimm and others against Charley Williams and wife. From a judgment for defendants, plaintiff's appeal.
    Affirmed.
    E. E. Fischer and Greenwood & Short, all of Seguin, for appellants. Geo. G. Clifton and J. F. Carl, both of San Antonio, and II. M. Wurzbach and J. M. Woods, both of Seguin, for appellees.
   FLY, C. J.

This is a suit by appellants to compel the specific performance of a contract for the sale of a certain tract of land out of the Green De Witt league on the south bank of Guadalupe river in Guadalupe county, which was tlie property of appellees. It was tlie contention of appellants that the land was to be sold to them by appellees for a certain sum, of which $2,500 was to be paid in a “reasonable time,” the deed being in the meantime placed in escrow, and the appellees contend that the $2,500 was to be a cash payment as recited in the deed. The court submitted the cause on the following special issues, which were answered as indicated:

“(1) When the deed was deposited with Judge Dibrell, was it agreed by the parties, or their authorized agent, that the cash payment recited in the deed was to be made in a reasonable time? Answer: No.
“(2) When the deed was deposited with Judge Dibrell, was it agreed by the parties, or their authorized agent, that the cash payment was to be made not later than March 15, 1917? Answer: Yes.”

Upon the answers of the jury, judgment was rendered in favor of appellees.

The evidence shows that there was a positive agreement between the parties that the $2,500 was to be paid not later than March 15, 1917, and the money was not paid nor tendered before or on that date. The evidence showed that the $2,500 was to be paid in cash, and it was only when it was ascertained by appellees, on March 13, 1917, the day the deed was executed, that appellants were not prepared with the cash, that it was agreed that the cash payment could be made not later than March 15, 1917. The trade was made on a cash basis, and the deed was placed in escrow only until March 15th had expired. The cash was not paid or tendered until March 19, 1917. Appellees had the right, which was exercised by them, of declaring the trade at an end when the money was not paid as agreed. There can be no question under the facts as to time not entering into the essence of the contract. The money was to be paid on or before a certain date; it was not paid, and the matter was at end if either party so desired. He was not compelled to give any reason for his action. The contract was breached by a failure to pay the money on March 15th.

The instrument, having been placed in the hands of a third person to be held until a certain date, after that date, was absolutely at the disposal of the vendors, and they had the absolute right at any time after that date to demand the return of the deed. The evidence clearly indicated an escrow, and the future delivery was conditioned on the payment of a certain sum of money. No title to the land passed to appellants until that condition was complied with. They acquired no rights under the deed until the $2,500 was paid. “A deed takes effect only from its delivery; and where a deed is placed in the hands of a third person as an escrow, as in this case, the grantee was only entitled to a delivery of the deed upon a strict compliance with the terms of the agreement, which was clearly a condition precedent to its delivery.” Devlin on Real Estate, § 321, and footnotes.

It is the rule that the performance of the condition of an escrow must be absolute and accurate, and cannot be dispensed with on any otherwise substantial performance. Ruling Case Law, p. 635. The evidence indicates that the grantors wanted the cash money at once, and there is nothing to indicate that a payment in a reasonable time would satisfy them. Time was an essential matter with them, and was of the essence of the contract. There is no evidence tending to show that there was any agreement that appellants might pay the money in a reasonable time.

The first special charge requested by appellants was a general charge to find under a certain state of facts for appellants. When a cause is submitted on special issues, no charge should be given requiring a general verdict. Southerland v. Railway, 40 S. W. 193; Bridgeport Coal Co. v. Wise County Coal Co., 44 Tex. Civ. App. 369, 99 S. W. 409; Hengy v. Hengy, 151 S. W. 1127.

The second and third instructions sought by appellants were properly refused. The only real issues in the case were submitted by the court, and the requested instruction would not have aided the jury in answering the questions. The jury were to find their conclusions from the facts, and the court would then apply the law. The special issues sought by appellants were not pertinent nor prpper, and were properly refused. The evidence did not raise any issue of waiver or estoppel.

The judgment is affirmed.
      <§^>For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBERTSON.
    (No. 1901.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Teiai, <&wkey;260(8) — Instructions—¡Refusal.
    Refusal of trial court to submit affirmatively one of appellant’s defenses was not ground for reversal, where such defense was substantially presented in tbe court’s general charge.
    2. Evidence <&wkey;128 — Complaints op Pain.
    In personal injury action against a railroad, it was error to reject testimony of plaintiff’s attending physician that, during the time of treatment, plaintiff repeatedly complained of severe pain in his neck, shoulder, back, and side.
    3. Appeal and Error &wkey;>1058(3) — Harmless Error — Exclusion op Evidence.
    Exclusion of testimony of plaintiff’s attending physician, in personal injury action, as to plaintiff’s complaints during treatment, was not ground for reversal, where it was substantially covered by other testimony of the physician, who was examined fully as to plaintiff’s condition, and detailed evidence of injury at the very place where evidence of plaintiff’s complaints would have tended to locate pain.
    4. Evidence &wkey;>363 — Extracts prom Work, on Surgery.
    In personal injury action, it was proper to refuse to permit plaintiff to read in evidence extracts from a book written by an authority on surgery.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Action by W. D. Robertson against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for plaintiff, both parties appeal.
    Affirmed.
    Chas. C. Huff, of Dallas, and. Schluter & Singleton, of Jefferson, for appellant. S. P. Jones, of Marshall, for appellee.
   HODGES, J.

The appellee recovered a judgment in the court below for the sum of $1,800 as damages for personal injuries. Both parties have appealed. Appellant seeks a reversal upon the ground that the judgment is without support in the evidence, and because of the court’s refusal to give certain requested charges. The appellee complains of the rejection of proffered testimony tending to show the character and extent of his injuries; he also urges the inadequacy of the damages recovered.

In a former appeal this case was reversed and remanded, for reasons not appearing in this record. See M., K. & T. Ry. Co. v. Robertson, 189 S. W, 284. The facts there stated are not materially different from those disclosed by the record on this appeal. It is shown that Robertson, at the time of his injury, was attempting to drive his wagon and team on one of the crossings over the appellant’s tracks in the city of Jefferson. There were three tracks at that point. According to appellee’s evidence, a train had come in, and had been separated at the crossing in order to permit passage. He drove onto the first track, and was stopped by a warning from one of the trainmen, who called his attention to the fact that he was liable to be injured. He looked down the railroad track in. the direction of the engine, observed that it was emitting smoke, and, thinking that he was in a place of danger, and that the best method of extricating himself would be to pass on over the crossing, he attempted to drive on. He, however, at the same time turned to notify Ms son, who was in a wagon behind, not to come on, and while in that attitude his team was frightened by the movement of a car, which caused them to make a sudden jerk, throwing him out, and causing the injuries for which he sued. The negligence alleged was in moving the cars on the crossing without ringing the bell or giving any notice. The testimony ivas conflicting as to whether or not the bell had been rung. Robertson testified that he discovered no warning until he was on the first track of the railway. It is unnecessary, we think, to discuss the facts at length and the law applicable to the issues presented in the appellant’s first and second assignments of error, which question the sufficiency of the evidence. That was done on the former appeal.

The special charges requested were properly refused. That referred to in the third assignment of error complains of the refusal of the court to submit affirmatively one of the appellant’s defenses. That defense was substantially presented, in the court’s general charge. The appellant’s assignments are overruled.

Appellee has presented cross-assignments, the first of which complains of the rejection of testimony from Robertson’s attending physicians as to the complaints which Robertson macle during the time he was being treated. It is contended that, if the witness had been permitted to testify, he would have stated that Robertson, at various times when examined, complained of severe pain in the back of his neck, his left shoulder, his back, and left side. This testimony, we think, was clearly admissible. Railway Co. v. Barron, 78 Tex. 421, 14 S. W. 698; Newman v. Dodson, 61 Tex. 91; Railway Co. v. Ayres, 83 Tex. 268, 18 S. W. 684. However, we are of the opinion that it was substantially covered by other testimony of the attending physician. He was examined fully as to appellee’s condition and detailed evidence of injury at the very place where the bill of exceptions says appellee would have located pain. It is not probable that the verdict of the jury would have been different, had these complaints been admitted. The, jury would naturally infer pain as the result of those injuries.

Appellee also complains of the refusal of the court to permit him to read in evidence extracts from a book written by Dr. J. B. Murphy, proven to be an authority on surgery. This book was written in 1912. We think the court’s ruling was proper. G., C. & S. F. Ry. Co. v. Farmer, 108 S. W. 729; Railway Co. v. Jones (Sup.) 14 S. W. 309.

We cannot say as a matter of law that the amount allowed by the jury is so inadequate as to require a reversal of this case, and the judgment is therefore affirmed.
      «Scsl’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STONE v. BURNS et al.
    (No. 5974.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.)
    1. Limitation of Actions &wkey;»100(ll) — Feaud — Diligence in Discoveeing.
    Where in negotiations for the purchase of land the purchaser requested that the vendors have the land surveyed, and the vendors assured him that the tract contained 326 acres, that a former owner had recently had it surveyed, and that one of the vendors had stepped the lines, and they were positive that it contained such acreage, the statute did not run against an action for fraud until there was some circumstance or fact to arouse the purchaser’s suspicion that there was a shortage, as he was justified in acting upon the vendors’ representations, and was not required to have a survey made in order to detect the falsehood.

      2. Fraud <&wkey;38 — Actions for Fraud — Laches.
    Where the purchaser did not discover that there was a shortage for over four years and until after he moved on the land and began to clear it, such delay in bringing an action for the fraud did not constitute laches.
    Appeal from District Court, Dimmit County; J. F. Mullaly, Judge.
    Action by W. R.~ Stone against C. C. Bums and others. Judgment for defendants, and plaintiff brings error.
    Reversed and remanded.
    B. 6. Neighbors, of San Marcos, and J. O. Rouse, of Carrizo Springs, f@r plaintiff in error. L. H. Browne, of San Antonio, for defendants in error.
   FLY, C. J.

This is a suit by plaintiff in error against defendants in error, hereinafter styled plaintiff and defendants respectively, to recover $2,262 as damages for a shortage of 55.8 acres in a tract of 826 acres of land sold to plaintiff by defendants. It was alleged that the land was sold to plaintiff by the acre for the sum of $40 an acre, on September 13, 1909; that the land is situated in Dimmit county, and plaintiff lived at a distance from it in Hays county, and continued to live there until about February 20, 1913, at which time he moved upon the land. He further alleged that he did not ascertain the shortage in the land until the month of August, 1913, when he began to clear the land to cultivate it; that it was densely covered with brush and prickly pear; that defendants had represented that the land had been surveyed and contained 326 acres of land, and plaintiff had relied upon the statement; that the representations were falsely and fraudulently made with full knowledge of the shortage; that at the time plaintiff was negotiating for the land he requested defendants to have the land surveyed, but they assured him that the tract contained 326 acres, that Wallace, their vendor, had recently had the land surveyed, and that Burns, one of the defendants, had stepped the lines, and that they were positive that the tract contained 326 acres of land, and that the tract was one-half a mile wide and one mile long, being a half section, the north and south lines running parallel, when in truth and in fact the lines were not parallel.

We are of the opinion that the petition states a cause of action, and that the demurrers were improperly sustained, and that such action of the court was fundamental error. There was nothing to arouse suspicion, and plaintiff acted upon the theory upon which business confidence and commercial affairs are founded, namely, confidence in the honor and integrity of mankind. To the civilized man agreements are not “mere scraps of paper” to be trampled upon when necessity or desire may prompt, but the business world proceeds upon the theory that men are honest and truthful, and we are justified in acting upon that theory. The great Psalmist would not deliberately brand all men with dishonesty, for he asserted: “I said in my haste, ‘All men are liars.’ ” It is only when there is some circumstance or fact to arouse suspicion that action is called for and the running of the statute would start from that time. Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970; Smalley v. Vogt, 166 S. W. 1; Swearingen v. Swearingen, 193 S. W. 442.

If the allegations of the petition are true, plaintiff was justified in acting upon the representations of defendants as to the quantity of land, and it was not incumbent upon him to have a survey of the land made in order to detect the falsehood and deceit of defendants in error. He acted as any ordinarily prudent man might have acted, and his allegations do not disclose laches on his part. The petition shows a cause of action.

The judgment is reversed, and the cause remanded.
      <®=^For other oases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes 200 S.W. — 71


text:
    FIRST STATE BANK OF SALTILLO v. ENNIS TITLE CO.
    (No. 1907.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1918.)
    Chattel Mortgages <&wkey;138(2) — Priority.
    The renewal of a chattel mortgage, by executing a new mortgage and discharging the old mortgage of record merely continues the lien, and the renewed mortgage is superior to a chattel mortgage executed before the renewal, but subsequent to the original mortgage.
    Appeal from Franklin County Court; O. L. Reeves, Judge.
    Controversy between the First State Bank of Saltillo and the Ennis Title Company. Judgment for the latter, and the bank appeals.
    Judgment reformed.
    Wilkinson & Davidson, of Mt. Vernon, for appellant. B. O. Shurtliff and B. F. Caudle, both of Mt. Vernon, and S. D. Goswick, of Mineral Wells, for appellee.
   HODGES, J.

This appeal presents a contest for priority between opposing parties, each claiming mortgages upon a fund which represents the value of two mules killed by a railway train. The railway company paid the value of the mules into the hands of the sheriff, who now holds it subject to the result of this suit. The appellee claims under a mortgage dated February 14, 1914, given to secure a note executed by J. C. Newman for $400, due the 1st of the following October. This mortgage contains the following stipulation:

“Those being the only mules I own, and the same mules that Saltillo Bank has a lien on.”

Appellants rely upon a lien which they claim is a continuation of one acquired by a mortgage executed by Newman on October 24, 1913, to secure a debt for $425, payable ” to the First State Bank of Saltillo, on which the other appellants were sureties. This note was due March 24, 1914. On March 11, 1914, this note was renewed by the giving of another for $450, due the 1st of the following November. On the latter date the debt was again renewed by a note for $468. Upon the maturity of the last-mentioned note the bank advanced $100 additional upon the original debt and took another renewal note for $627. According to the undisputed evidence the original debt of $425, which Newman contracted to pay the bank,.was never paid, and was carried forward in each of the renewal notes. It and the interest which thereafter accumulated constituted the entire consideration of all those notes, except the last. At each renewal of the debt to the bank a new mortgage was executed upon the same property. In the last renewal some aa-ditional property was also included. The evidence shows that, when the first renewed mortgage was filed, the clerk entered upon the record the following words: “Canceled 6th day of April, 1914.” He testified that W. O. Martin, one of the appellants' and a beneficiary in the mortgage, brought in a new mortgage upon the same property, and the question arose as to what should be done with the old instrument, and that it was finally agreed that it should be marked “canceled.”

The trial court evidently based his judgment in favor of the appellee upon the ground that there was a break in the continuity of the original mortgage given to secure the debt to the bank by one or more of the renewals, and that appellee’s mortgage took precedence. The lien is a mere incident to the debt, and unless released continues till the debt is extinguished. The execution of new evidences of the debt has no effect upon the lien. Its continuity is not broken merely by the execution of a new instrument perpetuating the same debt. 19 Ruling Case Law, p. 450, and authorities cited. In this there was nothing in the execution of the renewal notes to indicate an extinguishment of the original debt. The evidence is undisputed that this debt had never been extinguished. ’ The debtors and the creditor remained the same, and the original consideration continued throughout as the larger portion of that which entered into all of the notes. Had no new mortgages been taken when the several renewals of the debt occurred, there would now be no reason for questioning the continuity of the original lien. But the execution of a renewal mortgage for the same debt has no more effect upon the continuity of the lien than does the execution of renewal notes have upon the continuity of the debt. If the parties intended to perpetuate the lien, the fact that they embodied evidence of that lien in a new instrument and surrendered the old one was not sufficient to defeat that purpose. See the cases above referred to; also Adams-Burke-Simmons Co. v. Johnson, 51 Tex. Civ. App. 583, 113 S. W. 176; Ploeger v. Johnson, 26 S. W. 432; Ross v. Strahorn, 18 Tex. Civ. App. 698, 46 S. W. 398. The testimony in this case shows conclusively that it was the purpose of the parties in the several transmutations to continue the first lien. The cancellation entered by the clerk upon the record was merely a formal method of annulling an old instrument after the lien had been carried forward into the new instrument. That entry was made under circumstances which show no intent to extinguish one mortgage and take a new one.

We are therefore of the opinion that the court erred in holding that the appellee’s mortgage was entitled to priority, and the judgment will be reformed accordingly.
      ©m>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    NATIONAL SURETY CO. v. MASTERS.
    (No. 5968.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1918.)
    1. Sheriffs and Constables <&wkey;168(l) — Action Against Surety — False Arrest — Petition — Sufficiency.
    In an action against the surety on a constable’s bond by one falsely imprisoned by the constable, the petition, which alleged that the constable as such arrested plaintiff for disturbance of the peace committed in the presence of the constable, and also alleged that the latter took plaintiff in custody on the plea that he was guilty of such offense, as against general demurrer sufficiently showed that the constable was acting in his official capacity.
    2. Sheriffs and Constables <&wkey;168(l) — Action Against Surety for False Arrest-Petition — Sufficiency.
    The petition, which disclosed that the arrest was made at a dance for disturbance of the peace or disorderly conduct in a public place, deemed by the constable to constitute a misdemeanor authorizing plaintiff’s arrest without warrant, sufficiently charged as against general demurrer that the constable arrested plaintiff for what he construed to bo an offense classified as a breach of the peace.
    3. Appeal and Error <&wkey;1040(10) — Harmless Error — Pleading Ruling on Exceptions.
    Overruling exceptions directed at conclusions in the petition was not prejudicial, where after eliminating the conclusions a cause of action was stated, especially where the trial was without a jury.
    4. Sheriffs and Constables <&wkey;169 — False Imprisonment — Arrest for . Breach of Peace — Sufficiency of Avoidance.
    In an action against a constable’s surety for a false imprisonment, evidence held, to support a finding that the constable arrested plaintiff on account of conduct which he construed to constitute a breach of the peace, though he gavo plaintiff opportunity to escape arrest by leaving the dance at which the arrest was made.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by J. L. Masters against H. C. Boek and tbe National Surety Company. From judgment for plaintiff, the Surety Company appeals.
    Judgment affirmed.
    Nelson Lytle, of San Antonio, for appellant. Chambers & Watson, of:, San Antonio, for appellee.
   MOURSUND, J.

Appellee sued -H. C. Boek, who was constable of precinct No. 7, Bexar county, and National Surety Company, as surety on Boek’s official bond, for damages for false imprisonment, alleged to have been effected by plaintiff having been unlawfully arrested by Boek without a warrant. It was alleged that the arrest took place at a dance, and that Boek handcuffed plaintiff to a buggy at the dance from about 9:30 p. m. until 1:30 a. in., and then took him a distance of about nine miles to or near El-mendorf and fastened a chain around a tree and handcuffed plaintiff to the chain and kept him in such position and condition until about 10 o’clock a. m. These allegations were accompanied by averments showing that plaintiff was subjected to humiliation, shame, public disgrace, physical discomfort and injuries. National Surety Company answered by general demurrer, special exceptions and general denial. The trial resulted in a judgment against both defendants for $1,000 actual damages, and against Boek for $1,000 exemplary damages. Only the surety company appealed.

Appellant contends that the petition, in so far as it relates to it, is subject to a general demurrer, the theory being that in order to hold the surety liable it is necessary to allege either that the arrest was made under a warrant or that it was made for a breach of the peace actually committed in the presence or view of the constable; otherwise he would not be shown to' have been acting in an official capacity. If this contention be correct, a person could never recover against the sureties for his wrongful arrest unless there was an offense actually committed by some one else, and the officer arrested plaintiff thinking he was the guilty person.- The petition does not specifically allege that plaintiff was guilty of certain conduct construed by Boek to constitute a disturbance of the peace, but, as it alleged that Boek, as constable, arrested plaintiff for disturbance of the peace, charged to have been committed in the presence, hearing, and view of said officer, and also alleged that the officer took plaintiff in custody upon the plea that plaintiff was guilty of such offense, we think, indulging every reasonable intendment, it was sufficiently alleged as against a general demurrer that the officer determined that plaintiff had been guilty of an offense in his presence and hearing authorizing his arrest without a warrant. In the case of Riter v. Neatherly, 157 S. W. 439, Chief Justice Conner said:

“In order to constitute the act of Bozeman an official one it was not necessary that an offense in fact had been committed either by appellee or any of his friends. It was only necessary that Bozeman from the facts and circumstances observed by him at the time had so determined. The question has been so carefully and clearly discussed in the opinion of Judge Brown in King v. Brown, 100 Tex. 109, 94 S. W. 329 [10 L. R. A. (N. S.) 498, 123 Am. St. Rep. 831], that we need to add but little in answer to the contentions stated. If Bozeman was marshal, as he was alleged to be, and if at the time he assumed to act in his official capacity, as is undoubtedly alleged, then, according to the authority cited, it devolved upon him to determine from the facts presented whether the offonse of disturbing the peace had been committed, and also to decide whether ap-pellee was guilty of the offense. In - making this decision Bozeman acted in his official capacity, and the arrest of appellee was an official act, as was also the assault committed while he was so officially acting, the assault being merely an abuse of the official authority, for which appellants as his sureties, are undoubtedly liable.”

The language is applicable to the petition and facts in this case.

Appellant criticizes that- portion of the opinion in the case of King v. Brown relied, on in the Riter v. Neatherly Case, and contends that the reasoning therein was repudiated in the case of Brown v. Wallis, 100 Tex. 548, 101 S. W. 1070, 12 L. R. A. (N. S.) 1019. We have examined the opinion in the latter case, and conclude that there was no intention to recede from what was said in the King v. Brown Case. In the Brown v. Wallis Case the court was called upon to pass upon certain facts which failed to disclose that the officers were near the parties who fired the pistols at the time the same were fired. The officers entered upon the scene one mile from the place where the offense was committed, and there was no evidence from which a purpose on their part to arrest for an offense committed in their presr ence or view could be deduced. The Court of Civil Appeals first asked, in effect, whether there was evidence tending to prove that Oozárt and Allen were acting in an official capacity. They then said:

“That is, did it tend to prove * * * that he or some other person had committed a felony, or an offense against the public peace in their presence?”

The Supreme Court first disposed of the second question, the fact question, and t]ien answered tie first‘question, which called for a conclusion of law. Then, probably in answer to the contention in the, brief that it becomes the duty of the peace officer to decide and determine whether a breach of the peace has been committed within his view, and that an arrest by him in pursuance of such determination is an official act, the court in explanation of its holding said:

“They had no warrant, and there is no proof of any purpose on their part to enforce the law against offenders who had violated it within their view or presence.”

It cannot be contended that it was held that, if Cozart and Allen had been close to the shooting, and had decided that it was in their presence, when under the law it was not, their acts would not have been official. No authorities were discussed, and there appears to us no basis for contending that the court repudiated what it had said in the former case. In the case of King v. Brown the court cited Clancy v. Kenworthy, 74 Iowa, 740, 35 N. W. 427, 7 Am. St. Rep. 508; Seitner v. Ransom, 82 Minn. 404, 85 N. W. 158; Hall v. Tierney, 89 Minn. 407, 95 N. W. 219. These cases support the holding made by us in this case, and in addition we cite: Holliman v. Carroll, 27 Tex. 27, 84 Am. Dec. 606; Luck v. Zapp, 1 Tex. Civ. App. 528, 21 S. W. 418; Stephenson v. Sinclair, 14 Tex. Civ. App. 133, 36 S. W. 137; Lasater v. Whites, 67 S. W. 518; Gomez v. Scanlan, 155 Cal. 528, 102 Pac. 12; Drolesbaugh v. Hill, 64 Ohio, 257, 60 N. E. 202; Lee v. Charmley, 20 N. D. 570, 129 N. W. 448, 33 L. R. A. (N. S.) 275.

Appellant also contends that the petition is defective because it charges that plaintiff was arrested upon the plea that ,he was guilty of a misdemeanor, to wit, “disturbing the peace, or disorderly conduct, charged to have been committed in the presence, hearing and view of said officer.” The petition discloses that the arrest was made at a dance, and that it was for disturbance of the peace or disorderly conduct in a public place, deemed by the officer to constitute a misdemeanor authorizing the arrest of plaintiff without a warrant. This sufficiently charges as against a general demurrer that the officer arrested plaintiff for what he construed to be an offense classified as a breach of the peace. All assignments complaining of the failure to sustain the general demurrer are overruled.

By a number of assignments complaint is made of the overruling of special exceptions to the petition directed at conclusions of the pleader that Boek was acting in his official capacity. If the petition be taken and every statement objected to be eliminated, it will still state a cause of action, and we fail to see how appellant could have suffered any injury by. the rulings of the court, conceding their incorrectness. Appellant contends that the retention of the conclusions in the pleading confused the issues, but this contention must be held to be without merit, especially as the trial was without a jüry. The assignments are overruled.

It is also contended that the judgment is contrary to the undisputed evidence. Here again it is contended that, if no breach of the peace was committed, but the officer construed plaintiff’s acts as such a breach, his act in arresting plaintiff was not an official act. What we have said in discussing the petition disposes of such contention adversely to appellant. It is further contended that the evidence shows the arrest to have been made because of personal resentment felt by Boek towards plaintiff by reason of a remark made or believed to have been made by plaintiff, and because plaintiff did not leave the dance within 20 minutes, as directed by Boek. The evidence amply supports a finding that Boek arrested plaintiff on account of conduct which he construed to constitute a breach of the peace. It is true that he gave plaintiff an opportunity to escape arrest by leaving, but when plaintiff failed to avail himself thereof, he arrested plaintiff, subjected him to the treatment iileaded by plaintiff, and made a complaint against him charging him with disturbance of the peace, of which charge plaintiff was acquitted.

The judgment is affirmed.
      <&wkey;For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    STRICKLAND v. DOBBS.
    (No. 1886.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 24, 1918.)
    Chattel Mortgages <®=c30 — Household Furniture — Wife's Signature.
    The Loan Brokers’ Law (Acts 34th Leg. c. 28, § 11 [Vernon’s Ann. Civ. St. Supp. 1918, art. 6171j]), rendering void mortgages on household furniture to secure loans unless the wife joins therein, is inapplicable to a mortgage securing the furniture’s purchase price.
    Appeal from Harrison County Court; J. H. Strength, Judge.
    Action by Phillip Strickland against N. J. Dobbs. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Appellee, a dealer in household furniture, sold appellant, a married man, certain furniture for $16, to be paid in semimonthly installments of $2 each. To secure the payment of the $16 appellant executed a mortgage on the furniture, in which he agreed that, if he defaulted in his undertaking, ap-pellee might, without legal process of any kind authorizing it, enter upon his premises and take and carry the furniture away. Aft-erwiards appellee loaned appellant $6, which the latter agreed (the former testified) to repay before he paid all the installments on the furniture. Appellant having defaulted in the payment of the final installment on the furniture, and in the repayment of the $6 borrowed, appellee had one Thompson,who worked for him, to take the mortgaged property from appellant’s premises. This suit was then brought by appellant for damages, alleged to amount to $516, on the theory thaf; the mortgage was void, and therefore that the taking of the furniture by Thompson was unlawful. It did not appear from the testimony that Thompson used force in taking the property. Appellant testified that he protested against Thompson’s act, but he was contradicted by Thompson and one Drommer, who testified that he did not object to the taking. Appellant further testified that before Thompson took the furniture he tendered him the sum due appellee thereon. 1-Ie was contradicted in this particular by Drommer. The jury having found in appellee’s favor, judgment was rendered that appellant take nothing by his suit.
    Bibb & Bibb, of Marshall, for appellant. Brown & Hall, of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). The contention that the mortgage to secure the payment of the purchase price of the furniture was void because it was not signed and acknowledged by appellant’s wife is predicated upon section 11 of Act March 1, 1915 (General Laws, p. 48 [Vernon’s Ann. Civ. St. Supp. 1918, art. 6171 j]), known as the “Loan Brokers’ Law.” If that act applies to mortgages to persons not engaged, and appellee was not, in the business of lending money on interest, it nevertheless did not apply to the mortgage in question. The statute was intended to apply only to arcase where the husband, owning household or kitchen furniture, undertakes to mortgage it to secure the repayment of money loaned to him. In that kind of a case a mortgage by the husband is, by the terms of the act, void unless signed and acknowledged by the wife. The mortgage to appellee was not to secure a loan. It was to secure the payment of the purchase money of the identical property it covered.

The judgment is affirmed.
      cgr^jFor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes