text:
    MOORE et al. v. COLEMAN et al.
    (No. 706.)
    (Court of Civil Appeals of Texas. El Paso.
    May 3, 1917.
    On Rehearing, May 17, 1917.)
    1. Nuisance <&wkey;75 — Abatement—Evidence.
    An injunction should not issue to restrain the operation of a cotton gin in a city in the absence of a showing that the evils anticipated from the construction and operation thereof are imminent and certain to occur, it not being sufficient that they may probably do so.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184.]
    2. Appeal and Error <@^»1050'(1) — Harmless Error — Admission op Testimony.
    In a suit to restrain the operation of a cotton gin as a nuisance within the limits of a city, evidence by a medical expert that the operation of the gin would injure the health of the residents of the surrounding territory, and would destroy the comfort and pleasure of their homes, though inadmissible as invading the province of the jury, its admission was harmless error where a former witness had given the same testimony without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Big. §§ 4153, 4157.]
    3. Evidence <&wkey;501(7) — Opinion Evidence ' — Admissibility.
    In a suit to restrain the operation of a cotton gin as a nuisance, evidence of a medical expert that in his opinion the operation of the gin would affect the value of the surrounding property and be a detriment to the neighborhood for residence purposes was not inadmissible as opinion evidence, where the facts upon which such opinion was based were also given.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2303.]
    4. Nuisance <&wkey;75 — Abatement—Evidence.
    In a suit to restrain the operation of a cotton gin as a nuisance, it was not error to admit evidence as to the number of teams that would probably congregate at the gin daily, and that as a consequence thereof the ground would be covéred and impregnated with the natural excretions of the teams, producing an odor and flies.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §1 17&-184.]
    5. Nuisance <&wkey;7&wkey;ABATEMENT — Evidence.
    In a suit to restrain the operation of a cotton gin as a nuisance, evidence that the ordinary cotton gin makes and scatters dust, dirt, and lint, and makes a certain amount of noise in its operation, was admissible.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184.]
    6. Nuisance <&wkey;75 — Abatement—Evidence.
    In a suit to restrain the operation of a cotton gin as a nuisance, evidence that the site whereon the gin was located was the only available one in the neighborhood was properly excluded as not warranting defendants in establishing the nuisance.
    [Ed. Note. — For other cases, see Nuisaneo, Cent. Dig. §§ 176-184.]
    7. Venue <&wkey;22(l) — Change op Venue — Noneesidence.
    In a suit to restrain the operation of a cotton gin as a nuisance, nonresident defendants are not privileged to be sued in the county of their residence where their superintendent of construction is a resident of the county and is actively interested in the establishment of the gin.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 35.]
    8. Tbial '<@=3215 — Instbuctions—Special Issues.
    In a suit to restrain the operation of a nuisance, an instruction to find for defendants if certain facts were found to be true was properly refused when the case was submitted upon special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 481.]
    9. Tbial <&wkey;237(6) — Instbuctions—Weight oe Evidence.
    In a suit to restrain the operation of a cotton gin as a nuisance, an instruction to find for defendant unless tho jury should “find and be satisfied” that the evils complained of are imminent and certain to occur was properly refused, since a preponderance of the evidence only was required.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 551.]
    10. Nuisance &wkey;>75 — Abatement—Instructions.
    In a suit to restrain the operation of a cotton gin as a nuisance, while tho evidence must show that the evils anticipated are imminent and certain to occur from the construction and operation of the gin, an instruction to that effect is properly refused.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184.]
    Appeal from District Court, Mitchell County; W. W. Beall, Judge.
    Suit by P. C. Coleman and others against B. C. Moore and others for an injunction. From a decree perpetuating temporary injunction granted by the court below,-defendants appeal.
    Affirmed, and rehearing denied.
    Royall G. Smith, of Colorado, and Ben L. Cox, of Abilene, for appellants. Beall & Douth.it, of Sweetwater, and Shepherd & Sandusky, of Colorado, for appellees.
   HIGGINS, J.

Appellees brought this suit to restrain appellants from erecting a cotton gin upon certain lots in the city of Colorado. A temporary injunction was granted from which an appeal was taken, resulting in an affirmance. 185 S. W. 936. Upon final trial, the injunction was perpetuated and this appeal was prosecuted. Plaintiffs were (1) persons whose residences were located in the near vicinity of the site of the gin whose proposed erection was sought to be enjoined, and (2) the trustees of three churches, likewise so located, two of them being within 80 feet of the gin’s proposed location. ' For a-statement of the allegations of the petition reference is made to the opinion rendered upon the former appeal.

Special issues were submitted to the jury as follows:

“No. 1. Is the gin sought to be erected by the defendants on lots Nos. 1 to 3, inclusive, in block No. 38, in the city of Colorado, Tex., such a gin and in such close proximity to the First. Presbyterian Church, tho Church of Christ or the Episcopal Church, or either of them, that' the same, in the operation thereof, and the machinery therein, would make such noise, or create and send out such an amount of dust, dirt, or lint, that the same would materially interfere or injure such -church congregation or congregations in their devotions or worship in such church or churches, and thereby become a nuisance to such churches or any of thorn?
“No. 2. If said gin be erected and operated by defendants on said gin site, then would there be deposited on such site or yards thereof such an amount of excrement and urine thereat by animals used in hauling cotton, cotton seed, and other materials to and from said gin, as to create from such deposits, vapors.or noxious gases that would .be carried to and into said churches, or any of them, to such an extent that the same would materially interfere and injure the members of such churches, or any of said churches, in the worship or devotional exercises, and thereby become a nuisance to such congregations, or any of them?
“No. 3. Is the gin sought to be erected by defendants on lots Nos. 1 to 3, inclusive, in said block No. 38, in the city of Colorado, Tex., such a gin and in such close proximity to the homes and residences of the plaintiffs or any of them that the same, in the operation thereof and the machinery therein, would make such a noise, or create and send out dust, dirt, or lint to such an extent that the same would materially interfere with or injure the plaintiffs or any of them in the comforts of their homes, or reasonably threaten the health of plaintiffs, or any of them, or their families, and thereby become a nuisance to plaintiffs or any of them?
“No. 4. If said gin be erected and operated by defendants on said gin site, would there be such deposit of excrement and urine thereat by animals used in hauling cotton, cotton seed, and such other materials to and from said gin as would create vapors or noxious gases therefrom, that would be carried to and into the homes and residences of plaintiffs or any of them, to such an extent that the same would materiallj’ injure the comfort of plaintiffs and their families, or any of them, in the enjoyment of their said homo or homes, or reasonably threaten the health of them or any of them, and thereby become a nuisance to plaintiffs, or any of them?
“No. 5. If said gin be erected and operated by defendants on said gin site, would there be such deposit of excrement and urine thereat by tho animals used in hauling cotton, cotton seed, and other materials to and from said gin, that flies would be created thereby, and caused to go into the residences and homes of plaintiffs or any of them, and thereby reasonably threaten the health of plaintiffs, their families, or any of them, thereby become a nuisance to plaintiffs or any of them?”

Each of the issues were answered in the affirmative. In the charge a definition of a nuisance was given, to which no exception is taken.

It is assigned as error that the verdict of the jury is unsupported by the evidence. In support of this assignment, it is asserted that the operation of a gin is a legitimate business, not a nuisance per se, and that the construction thereof should not be enjoined unless the evidence shows that it will certainly and undoubtedly be attended with consequences making it a nuisance.

In a case'of this nature an injunction should not issue unless it is shown that the evils anticipated from the construction and operation of the gin are imminent and certain to occur. It is not sufficient that they may probably do so. Joyce, Law of Nuisances, § 102; 1 High on Injunctions, §§ 743 and 787; Robinson v. Dale, 62 Tex. Civ. App. 277, 131 S. W. 308; Rouse v. Martin, 75 Ala. 511, 51 Am. Rep. 464.

An examination of the record discloses that there was ample evidence to warrant the jury, in finding that the construction and operation of the gin would certainly result in at least some of the evils complained of and sufficient to constitute a nuisance. It will serve no useful purpose to incumber this opinion with a detailed statement of the testimony of the witnesses. We have carefully examined the same and have reached the conclusion that it is sufficient. The assignments complaining of the sufficiency of .the evidence as well as that complaining 'of the refusal of a peremptory instruction are therefore overruled.

The plaintiff Dr. Coleman, a medical expert, was permitted to testify that the operation of the gin upon the proposed site would injure the health of the occupants of the homes owned by the plaintiffs, and would destroy the comfort and pleasure of their homes, affect the value thereof, and make a noise very objectionable for a distance of 300 to 500 feet away; that in his opinion the noise would be detrimental to a home and disturb the quietude thereof.

It was objected to this testimony that it was a conclusion of the witness upon a question of law and fact and invaded the province of the jury. As to that portion of the testimony to the effect that the operation of the gin upon the proposed site would injure the health of the occupants of the homes owned by plaintiffs, we find that when a former witness (Sheperd) was upon the stand, the appellants, upon cross-examination, elicited substantially the same testimony from him. This being the case, the subsequent admission of Coleman’s testimony over objection does not constitute reversible error. It has frequently been held that the erroneous admission of testimony is not reversible error where testimony of like character has been admitted without objection. See cases cited in 1 Michie, 815. The writer is of the opinion that Dr. Coleman, though a medical expert, should not have been permitted to testify that the operation of the gin would injure the health of the occupants of adjacent homes. He could properly testify to the effect upon health that noxious odors, vapors, dust, noise, etc., would have, but that it was improper to permit him to testify to his opinion or conclusion that the operation of a gin would have such effect. It was the province of the jury to deduct the conclusion that the establishment and operation of the proposed gin would create noxious odors, vapors, dust, noise, etc., and thereby impair or. endanger the health of adjacent residents. But, however that may be, we all concur in the view that the admission of his testimony as to the effect it would have upon their health presents no reversible error for the. reason indicated above.

As to the remainder of Coleman’s testimony, we are not altogether sure that it was improper. There are exceptions to the general rule that a witness must speak alone as to the facts. There are cases, where the question is not one of skill or science, in which witnesses are permitted to express their opinions. In such cases, the opinion given is not a speculative one, but is knowledge which may amount to certainty or may hot. The conclusions or opinions of common observers, testifying to the result of their observations, as to common appearances or facts and a condition of things which cannot be reproduced and made palpable to a jury, are admissible under an exception to the general rule excluding the conclusion of a witness. McCabe v. San Antonio, etc., 39 Tex. Civ. App. 614, 88 S. W. 387; Cooper v. State, 23 Tex. 331; Rogers v. Crain, 30 Tex. 284; Railway Co. v. Daniels, 9 Tex. Civ. App. 253, 28 S. W. 548, 711; Railway Co. v. Brantley, 26 Tex. Civ. App. 11, 62 S. W. 94.

The exception is based upon the reason that the facts which constitute the cause from which the opinion of the witness- is deduced as an effect cannot themselves be so presented or communicated to the mind of the jury as to impart the knowledge actually possessed by the witness. Turner v. Strange, 56 Tex. 141; Railway Co. v. John, 9 Tex. Civ. App. 342, 29 S. W. 558. But it is immaterial whether or not the testimony falls within the exception to the general rule excluding opinion •evidence. The witness had testified to all of the facts upon which his conclusions were based. It was all before the jury. In such case, to permit the witness to state his Conclusion if erroneous, was harmless, and does not necessitate a reversal. Smith v. Eckford (Sup.) 18 S. W. 214; Railway Co. v. Warner, 60 S. W. 442; Railway Co. v. McElree, 16 Tex. Civ. App. 182, 41 S. W. 843; Davis v. Davis, 20 Tex. Civ. App. 310, 49 S. W. 726; Railway Co. v. Long, 26 Tex. Civ. App. 601, 65 S. W. 882; Bond v. Railway Co., 55 Tex. Civ. App. 119, 118 S. W. 867; Collins v. Chipman, 41 Tex. Civ. App. 563, 95 S. W. 666; Railway Co. v. Steele, 29 Tex. Civ. App. 328, 69 S. W. 171.

There was no error in admitting the testimony of Coleman, based upon sufficient observation of the number of teams that would probably congregate at the gin daily, and as a consequence thereof that the ground would be covered and impregnated with the natural excretions of the teams, producing an odor and flies. We do not understand Robinson v. Dale, 62 Tex. Civ. App. 277, 131 S. W. 308, as an authority contrary to this view.

And testimony that the ordinary cotton gin made and scattered dust, dirt, and lint, and made a certain amount of noise in their operation was admissible. Of necessity, plaintiffs could not know the exact kind of a gin that would be erected by defendants. If the defendants intended to erect a gin which would not scatter dust, dirt, and lint and make a noise, it was incumbent upon them to prove such fact. For the reasons indicated assignments 7 to 10 are overruled.

The court did not err in refusing, to permit the witness McSpadden to testify;

“That the defendants Moore & Anderson first contracted to Buy some lots just west of the southwest corner of the courthouse tract for the purpose of erecting this gin, and that they were threatened with injunction proceedings by owners and occupants of residences lying north and northwest therefrom, and further that the title was found defective. That said witness would further have testified that he, acting for the plaintiffs, made a full search for other property in the city of Colorado in reasonable distance of the business portion of said town and suitable for a gin site, and was unable to find any such property outside of the fire limits of the city of Colorado, in which any structure would have to be of 'brick, concrete, or' stone, which' would render the cost of a gin building prohibitive. That there were a number of suitable sites for a gin in- said city of Colorado in blocks wholly devoted, to residence purposes and situated nearer to residences and nearer to more residences than is the site involved in. this suit.”

. The facts which the witness proposed to testify to would not have warranted defendants in establishing and maintaining a nuisance to plaintiffs. We do not regard as in point, the cases cited in support of the admissibility of this evidence.

The eleventh and twelfth assignments relate to question of venue. The defendants Moore & Anderson owned the site of the proposed gin, and were proposing to erect the gin. upon the same. They lived in Taylor county. ■ The suit was brought in Mitchell county,. where the defendant McSpadden resided. Moore & Anderson filed a plea of privilege asserting the right to be sued in the county of their residence. They averred that McSpadden had been fraudulently joined as a party defendant for the purpose of conferring . jurisdiction in Mitchell county.- The evidence shows that McSpadden was superintendent of construction for Moore & Anderson, and manager of ■ the work in erecting ■the gin, being paid a salary. This, shows that he was an active participant in the establishment of the proposed nuisance, and as such he was a proper party defendant in a suit to enjoin the establishment thereof. Furthermore, Moore & Anderson, in their plea of privilege, alleged that McSpadden had a contract to thereafter purchase an undivided interest in- the property. This allegation showed that he was interested in the subject-matter of the litigation, and therefore a proper party.'

What has heretofore been said disposes of the thirteenth assignment, which complains of the admission of the testimony of W. E. Watson.

There was no error in refusing special charge No. 2, wherein the jury was instructed to find for the defendants if they.-found certain facts to be true. Charges of this nature ■are not proper when the case is submitted upon special issues. In cases so submitted a general charge to find for or against a party is not permissible.

Error is assigned to the refusal of this special charge:

“You are further instructed that, unless you should find and be satisfied that the purported evils and threatened injuries complained of by plaintiffs in their petition are imminent and certain to occur when said gin is constructed and operated by defendants, at the site and in the manner proposed by them, then you will answer the special issues propounded to you by the court in the negative, in such instances as you so fail to find and be satisfied.”

This charge was properly refused for two reasons. ■ In the first place, the requirement that the jury should “find and be satisfied” was not a proper instruction. It is the duty of the jury to find in accordance with the preponderance of the evidence, and the proof need not be to their satisfaction. Railway Co. v. Matula, 79 Tex. 577, 15 S. W. 573; Railway Co. v. Everett, 99 Tex. 269, 89 S. W. 761; Wallace v. Berry, 83 Tex. 328, 18 S. W. 595.

Furthermore, while in cases of this nature, the evidence must show that the evils anticipated are imminent and certain to occur from the construction and operation of the gin, yet it would not be proper to so instruct the jury. Baylor v. Hopf, 81 Tex. 637, 17 S. W. 230; Howard v. Zimpelman (Sup.) 14 S. W. 59; Western, etc., v. Hillyer, etc., 167 S. W. 816, and cases there cited. In the cited cases, it was attempted to ingraft a parol trust upon a deed absolute upon its face. In such cases, the trust must be clearly and convincingly shown by the evidence, yet it is held to be improper to instruct the jury to that effect. The same rule is applicable here.

Special charge No. 4, the refusal of which is made • the basis of the sixteenth assignment, was argumentative, and was further objectionable in instructing that the operation of the gin would not he a nuisance unless it was certain that such operation would result in one or more of the anticipated evils. As is held above, such an instruction would not be proper.

Affirmed.

On Rehearing.

The statement in original opinion that two of the three churches were within 80 feet of the gin’s proposed location is incorrect. The evidence shows it is a distance of 180 feet to the property line of the nearest church.

In support of our holding that charges of the nature of defendant’s special charge No. 2 should not be given when the ease is submitted upon special issues, ■ we cite Cole v. Crawford, 69 Tex. 124, 5 S. W. 646; Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132, s. c., 93 S. W. 1007; Railway Co. v. Jones, 175 S. W. 488; LaGrone v. Railway Co., 189 S. W. 99; Southern Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638; Pacific Express Co. v. Rudman, 145 S. W. 268; Hengy v. Hengy, 151 S. W. 1127; Southerland v. Railway Co., 40 S. W. 193; Crosby v. Stevens, 184 S. W. 705.

The motion for rehearing is overruled.
      cte=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgz^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    PANHANDLE & S. F. RY. CO. v. WRIGHT-HERNDON CO.
    (No. 696.)
    (Court of Civil Appeals of Texas. El Paso.
    May 3, 1917.
    Rehearing Denied May 24, 1917.)
    1. Carriers <&wkey;219(5) — Carriage oe Goods— Liability eor Damage on Other Line.
    Where turkeys were shipped over the S. road, and, at destination, the O. road switched the shipment from the S. tracks to the place of business of the shipper, the O. road acting as agent for the S. road, it was immaterial when the delay and rough handling which damaged the shipment occurred; the S. road being liable in either case, though the bill of lading limited its liability to damage occurring on its own line.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 950.)
    2. Trial &wkey;>191(6) — Instructions — Assuming Facts — Negligence.
    In an action against a railroad for damage .to a shipment of turkeys, the charge that, if the jury' believed from the evidence that the consignment was roughly handled by the road and delayed, and that the delay and rough handling was the direct and proximate cause of the damage, they should find for plaintiff, was erroneous as assuming that rough handling was negligence as a matter of law.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 429.)
    3. Trial <&wkey;279 — Presentation oe Objection to Charge.
    In such action the fourth paragraph of the written objections to the charge, which complained that in submitting the issue of rough handling, the language placed a higher duty on defendant than the law required, in not requiring a finding of negligence, sufficiently indicated to the trial court the vice in the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 690.)
    Appeal from Nolan County Court; Jolm H. Cochran, Jr., Judge..
    Suit by the Wright-I-Iemdon Company against the Panhandle & Santa Fé Railway Company and another. From the judgment, defendant named appeals.
    Reversed and remanded.
    Beall & Douthit and Allen Wight, all of Sweetwater, for appellant. Grisham & Gris-ham, of Sweetwater, for appellee.
   HIGGINS, J.

This suit was brought by-appellee against appellant and the Pecos &. Northern Texas Railway Company for damages to a shipment of turkeys from Floydada,. Tex., to Sweetwater, Tex., resulting from alleged delay and rough handling in transportation, resulting in a verdict for the plaintiff against the Panhandle & Santa Fé Railway Company.

Appellee loaded the car of turkeys at Floydada on December 11, 1914, completing-the same at 6 p. m. The car moved out of Floydada on the first train after loading was finished, which was 8 a. m. December 12th;. that being the schedule time for the departure of the train and the time at which plaintiff expected them to move. At some subsequent time the Santa Fé delivered the car to the Kansas City, Mexico & Orient Railway Company at Sweetwater. It does not appear from the record at what time such delivery was made nor what was the condition of the shipment at the time of such delivery. After-delivery to the Orient, at a time not disclosed by the record, but not later than the-morning of December 14th, the car was delivered by the Orient to the plaintiff at its place of business, and the turkeys were thereafter unloaded by appellee. The shipment was made under bill of lading issued by the-Panhandle & Santa Fé Railway Company limiting its liability to damages accruing on its own line. The record fails to show any connection with the shipment by the Pecos & Northern Texas Railway Company, and a verdict in its favor was instructed.

The first assignment of error complains of the refusal of a peremptory instruction to find for the appellant, these two propositions being urged in support thereof:

“(1) In an action against the initial carrier for negligent delay of an intrastate shipment of live poultry moving under, a contract limiting the liability of the receiving carrier to damages accruing on its- own line plaintiff cannot recover for.delay unless such delay is shown to have occurred on the line of th.e receiving carrier.
“(2) In an action against the initial carrier for negligent, rough handling of an intrastate shipment for live poultry moving under a contract limiting to damages accruing on the line of the said receiving carrier, plaintiff cannot recover for rough handling not shown to have accrued on the line of the receiving carrier.”

Under the facts of this case, the propositions stated have no application. The bill of lading issued was' for through transportation from Floydada to Sweetwater. The connection of the Orient with the shipment was simply to switch the same from the Santa Fé tracks in Sweetwater to the place of business of appellee, which was situated on the tracks of the Orient. The record discloses that this switching operation was made by the Orient for the Santa Fé. The testimony upon this phase of the case is not altogether clear, but the plain inference to be drawn therefrom is that the switching operation was made by the Orient as an agent of the appellant in spotting the car at appellee’s place of business.

Under this state of facts it is immaterial whether the delay and rough handling occurred while the shipment was in the possession of the Santa Fé or the Orient. If it occurred while it was in the possession of the Orient, the Santa Fé would nevertheless be liable therefor. The peremptory instruction was therefore properly refused.

The second assignment com plains of that portion of the seventh paragraph of the court’s charge which reads:

“Bearing in. mind the foregoing definitions, if you believe from the evidence that plaintiff’s consignment was not handled within a reasonable time and was not delivered by the defendant, the Panhandle & Santa Fé Railway Company at Sweetwater to its connecting line, the Kansas City, Mexico & Orient Railway Company of Texas, for delivery to plaintiff within a reasonable time, and if you further believe from the evidence that the said consignment was roughly handled by said defendant, and that same was delayed, and that said delay and rough handling, if any, by defendant, was the direct and proximate cause of plaintiff’s damage, if any, then you will find for the plaintiff. * * * ”

The objection made is that the charge is erroneous, in that it authorizes a recovery for rough handling without requiring a finding that appellant was guilty of negligence in so handling the same. The charge, in effect, treats rough handling as synonymous with negligent handling, when such may not be the ease. A certain- degree of rough handling may have occurred even though the care of an ordinarily prudent person may have been exercised on the part of appellant’s employés engaged in the transportation. It assumed that rough handling was negligence as a matter of law, which is not permissible. The charge was erroneous. Railway Co. v. James, 89 Tex. Civ. App. 408, 87 S. W. 730.

Appellee makes the point that this objection to the charge was not presented to the court below as is required by law. In the fourth paragraph of the. written objections filed by the appellant and called to the attention of the trial court it is expressly complained of the charge that in submitting the issue of rough handling the language placed a higher duty on the defendant than the law requires in not requiring a finding of negligence. This quite plainly indicated to the court the vice in the charge.now considered.

The seventh assignment complains that the verdict is excessive. But, since the case must be reversed, it is unnecessary to pass upon this assignment.

The remaining assignments present different phases of the question raised by the first assignment, and are without merit and are overruled.

Reversed and remanded.
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author: HARPER, C. J.

text:
    CAMP v. FIRST NAT. BANK OF ALPINE et al.
    (No. 537.)
    (Court of Civil Appeals of Texas. El Paso.
    March 9, 1916.
    Rehearing Denied May 31, 1917.)
    1. Abatement and Revival <&wkey;8(2) — Another Action Pending.
    A prior suit pending between the same parties involving the same cause of action, when interposed by a plea in abatement in proper form, will abate the subsequent suit, where the facts are undisputed.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 40, 42, 50, 52, 55, 56, 60-62, 68-72.]
    2. Abatement and Revival <&wkey;9 — Another Action Pending — Identity of Parties.
    Under Rev. St. 1911, art. 1812, providing that all civil suits in a district or county' court shall be commenced by petition and filed in the office of the clerk of such court, persons are made parties to a suit by another filing a petition which states a cause of action with a bona fide intention that citation shall issue arid be served; and hence the contention that the parties to two suits are not the same because two parties had not been served in one of the suits is without merit.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 73-85.]
    3. Abatement and Revival <&wkey;8(4) — Another Action Pending — Identity of Causes and Issues.
    A prior pending suit to enjoin further transfer of a note in the hands of a bank and for cancellation of such note will abate’ an action by the bank upon the note, since, although the bank in the injunction suit cannot be required to ask for affirmative relief, it was entitled to such relief in the injunction suit if the court should decree that the note bo not canceled.
    [Ed. Note.—Eor other cases, see Abatement and Revival, Cent. Dig. §§ 50, 52, 54-56, 61.]
    Appeal from District Court, Presidio County; W. C. Douglas, Judge.
    Suit by the Eirst National Bank of Alpine and others against H. D. Camp. Judgment for plaintiffs, and defendant appeals.
    Reversed and dismissed.
    Ware & Norcop and C. M. Wilchar, all of El Paso, and Belcher & Sutton, of Marfa, for appellant. Lea, McGrady & Thomason and J. C. Brooke, all of El Paso, for appellees.
   HARPER, C. J.

This suit was filed in district court of Presidio county by First National Bank of Alpine against H. D. Camp, D. W. Gourley, J. D. Jackson, and S. D. Harmon, on June 21, 1915, to recover on a promissory note for the sum of $5,000, dated November 30, 1914. The note was executed by defendant Camp to defendant Gourley, due six months after date, payable at Marfa, Presidio county, Tex., in which county defendant Gourley resided. On May 29, 1915, H. D. Camp, J. D. McDaniels, and John M. Wyatt filed suit in El Paso county, Tex., against D. W. Gourley, the First National Bank of Alpine, Tex., J. H. Pruett, J. A. Gil-lett, the First National Bank of Marfa, Tex., J. D. Jackson, and Sam Harmon, alleging that the plaintiffs had executed and delivered to defendant Gourley a note, H. D. Camp for $5,000, and McDaniels a note for $3,000, indorsed by Camp and Wyatt, in payment for the purchase price of certain milch cows, which said cows were represented by Gourley and Jackson and Harmon to be clean and free from disease, etc.; that, upon inspection after the purchase, the cows were found to be afflicted with tuberculosis, etc.; that the defendant .bank, at the time of acquiring the note for $5,000, was aware of the fraud practiced and the defense that" the plaintiffs had to the said note, and prayed for injunction against further transfer of the note and for cancellation. Citation was issued to all parties defendant and all served except Jackson and Harmon. In his answer to the bank’s suit in Presidio county, Camp pleaded in abatement the pendency of the suit in El Paso county. This plea was heard by the court and overruled. Camp then answered, and judgment was rendered against all of the defendants, and Camp appealed. The act of the trial court in overruling the plea in abatement is assigned as error.

The plea in abatement, setting up the fact of prior suit pending between the same parties, involving the same cause of action, is in proper form, and the facts are undisputed. Therefore, following the case of Sparks v. National Bank of Commerce, 168 S. W. 48, we hold that the trial court erred in overruling the plea in abatement.

For counter propositions, appellee urges that, because Jackson and Harmon had not been served in the El Paso county suit when judgment was taken in the instant case, therefore the parties to the two suits are not the same. Persons are made parties to a suit by another filing a petition which states a cause of action, with the bona fide intention that citation shall issue and be served. Article 1812, Revised Civil Statutes 1911; Blagge v. Shaw, 41 S. W. 756; Ricker, Lee & Co. v. Shoemaker, 81 Tex. 25, 16 S. W. 645.

Citation was served on appellee bank in the El Paso county suit prior to the institution of the Presidio county suit; so it had due notice of the pending suit. But ap-pellee urges further that because the bank, plaintiff in the instant suit, could not be required to seek judgment through affirmative relief in the El Paso county suit, all of the rights of the parties could not be determined in that suit; that all the bank, at most, can be required to do in relation to the El Paso county suit, is to defend itself against the attacks on the note; and that, if the note be not canceled, then it can prosecute its suit in the district court of Presidio county.

The principle involved in this plea in abatement is that this suit cannot be maintained while there is a prior pending suit about the same subject-matter between the same parties in a court of competent jurisdiction. If the judgment in this suit should be sustained, and then upon trial of the suit in the El Paso county court the note sued upon be ordered canceled, we would háve one court holding the demand collectable and the other enjoining its collection. Which process would the sheriff of El Paso county enforce? There can be no doubt about the correctness of the rule of law invoked by the plea in abatement. M. & V. L. Co. v. Williamson, 164 S. W. 440. It is true the bank cannot be required to ask for affirmative relief —judgment for the amount of its note— in the El Paso county suit, and that, if 'the El Paso county court should decree that the note be not canceled in the hands of the bank and go no further, then the bank could prosecute a new suit in the Presidio county court to recover upon the note; but it is not likely that any such course will be pursued by it when by its pleading the same relief can be had in the El Paso county suit.

This question being decisive of the appeal, it becomes unnecessary to pass upon the other assignments.

The facts being undisputed, we reverse the judgment, and here render judgment for- appellant, sustaining his plea in abatement and dismissing appellee’s suit without prejudice.

Reversed and dismissed.
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author: FLY, C. J.

text:
    HOPKINS v. SCHALLERT.
    (No. 5855.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 9, 1917.)
    1. Guaranty <&wkey;9 —What Constitutes — Letters.
    Letters written to tlie holder of a note by the son of the maker, stating at_ one time that the maker was endeavoring to dispose of some property, and that when the deal was closed he would be able to take up the note, and that the writer felt sure that the addressee would get his money if he would delay for a short time before bringing suit, and subsequently stating that the deal was being closed, and that the maker would mail the money to the addressee as soon as the deal was closed, and later stating that the writer had the money and would see the addressee personally and pay the note, did not make the writer liable as guarantor for the debt of his father.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 10.]
    2. Guaranty <&wkey;85(l) — Action—Pleading.
    Where, in an action to recover from defendant as guarantor of a note, the written evidence on which it was alleged that defendant had guaranteed payment was fully set out in the petition, the petition alone could be looked to to fix defendant’s liability.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 99.]
    3. Guaranty <&wkey;9 — Essentials oe Contract.
    Where letters are relied on as constituting a guaranty of payment of a note, all the essential terms of a guaranty contract must clearly appear from the writing, and nothing be left to depend on parol evidence.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 10.]
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action by Robert Schallert against S. D. Hopkins. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    S. D. Hopkins and R. R. Fleming, both of San Antonio, for appellant. Dawson & Anderson, of Corpus Ghristi, and J. E. Leslie, of Edinburg, for appellee.
   FLY, C. J.

This is a suit by appellee against appellant to recover from him as the guarantor of a note for $750, executed by H. T. Hopkins. The cause was tried without a jury, and judgment rendered against appellant for $912.

The evidence shows that H. T. Hopkins is the father of appellant; that the latter, acting on behalf of his father, as his attorney, wrote letters to the attorney of appellee, seeking a postponement of a suit on the note, in order that his father might obtain the money and pay off the note. There were numerous letters written, in several of which it was plainly said that the father was trying to raise the money. For instance, in a letter written to Y. W. Taylor on February 15, 1915, appellant wrote that others were owing his father, and that if suit was postponed “my father will get the money.” On February 22, 1915, appellant wrote:

' “Replying to your favor of the 17th inst., I beg to advise that my father is on a deal where he is to sell the 610 acres which the $2,200 notes are secured by, and expects within a very short time to close this deal and be able to take up the Schallert note.”

The $2,200 notes referred to were those left with appellee as collateral security for the $750. On March 24, 1915, appellant wrote Taylor:

“I want to thank you for waiting this long, and I want to further urge you not to file suit as yet, for my father is on a trade whereby he will realize enough to pay off your client and much more. He has closed one up here, but can’t realize any money from it just now; but the one he is on now, when closed, will be ample, and means a great deal to us, and the filing of the suit might be a means of breaking up the deal, and if possible for you to wait for a while longer, say 30 days, I feel sure that you will get your money from my father.”

On April 26, 1915, appellant wrote Taylor:

“Replying to your favor of the 24th inst., beg to advise my father has practically closed a.tleai whereby he would realize enough out of it to take care of Mr. Schallert, and it was on account of the expectation of this deal being closed, why I delayed writing. There will have to be an examination of the abstract, and curing of title, before the deal be consummated, and at that time my father will mail you the money for Mr. Schallert.”

On June 24, 1915, appellant wrote V. W. Taylor:

“I beg to advise that I have the money, and have had the money for-a couple of days, but inasmuch as I have to be in San Diego I am not mailing you the check, but intend to see you personally and pay off Mr. Schallert.”

In another letter he stated that “we have made arrangements to get the money.” The two letters are the ones relied upon as showing that appellant agreed to pay his father’s debt. '

All of the correspondence of Y. W. Taylor and appellant must be construed together, in order to arrive at the intention of the parties. In none of the letters is there one word or sentence indicating that appellant intended to make himself liable for the debt of his father. It was his father who whs seeking to sell land and to raise money to pay the debt, and the promise to pay off the debt, made by appellant after he had secured the money, does not show any assumption of the debt. , He was at all times acting for his father, and he intended paying his father’s money to take up the note, but changed his mind when Taylor sought to collect the attorney’s fee. Patton v. Rucker, 29 Tex. 402. There is not one word in all of the correspondence tending to show that appellant intended to bind himself to pay the debt of his father, and it cannot be contended with any degree of reason that the fact that appellant had the money, but would not pay it to appellee, rendered him liable. It is not pretended that anything, to the interest of appellant would arise from his payment of fee note. If appellant is liable upon the letters written by him, any attorney who might promise payment upon the part of his client would be liable personally.

The written evidence upon which it was alleged that appellant had guaranteed payment of the note was fully set out in the petition. That alone could be looked to in order to fix appellant’s liability, and it failed to show such liability. The petition did not state a cause of action, and that would be a fundamental error, even if none of the assignments of error should be considered.

It must be kept in mind, in weighing the evidence in this case, that from the letters, construed as one whole, all the essential terms of the contract must appear, and cannot be aided by parol evidence. The whole promise must appear from the writing. Brandt, Sur. & Guar. § 92; Bohm v. Hoffer, 2 Colo. App. 146, 29 Pac. 905. If the writing indicates that the payment is to come out of a certain fund, the promise will be confined to that fund. It must be a clear and express contract, in writing, to pay the debt of another.

The judgment is reversed, and here rendered that appellee take nothing by his suit and pay all costs in this behalf expended.
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author: KEY, C. J.

text:
    SMITH v. RAILROAD EMPLOYES DEVELOPMENT CO.
    (No. 5740.)
    (Court of Civil Appeals of Texas. Austin.
    March 21, 1917.
    Rehearing Denied May 23, 1917.)
    1. Appeal and Error <&wkey;1033(9) — Parties Entitled to Complain — -Inadequate Verdict.
    Defendant cannot complain of a verdict against him, as showing compromise by the jury, on the ground that the undisputed evidence showed plaintiff entitled to twice as much, if entitled to recover anything.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4061.]
    2. Evidence <&wkey;265(2) — Admissions — Solvency.
    Even if the solvency of plaintiff, a joint-stock company, was pertinent to any issue, defendant’s testimony to its insolvency was precluded by his admission that the individuals composing the company were solvent.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1030.]
    Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
    Action by the Railroad Employés Development Company against D. A. Smith. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. D. Krause, of La Grange, for appellant. Page & Jones, of Bastrop, Duncan & Burle-son, of La Grange,, S. L. Staples, of Smith-ville, and Shelton, Phelps & Shelton, of Austin, for appellee.
   KEY, C. J.

Appellee, an unincorporated joint-stock association, brought this suit against appellant to recover damages for the breach of a contract which obligated appel-. lant for a specified consideration and upon certain- conditions to drill a well upon land belonging to appellee, for the purpose of ascertaining whether or not oil could be obtained. The amount sought to be recovered was $1,178. Appellant filed an answer which included a general denial and special plea, alleging that he abandoned the work becausé appellee refused to furnish necessary casing, as required by the written contract. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for one-half of the amount sued for, and the defendant has appealed.

Appellant concedes that the case was submitted to the jury under proper instructions, but presents the contention, under several assignments of error and in several different forms, that the case should be reversed, because the undisputed proof shows that, if he wrongfully breached the contract, the plaintiff was entitled to recover $1,178, the full amount' sued - for, instead of $589, the' amount awarded by the jury. Appellant’s contention seems to be that when the verdict is considered in the light of the testimony, it must necessarily be concluded that some of the jurors did not believe that appellant had breached the contract, and that as a compromise the jury finally agreed to allow the plaintiff half the amount sued for.

Counsel for appellee make two answers to that contention,, both of which this court regards as sound. In the first place, they point out the fact that appellant testified that he had done $600 worth of work upon the well, for which he had received no pay, and in the next place, they assert the proposition, which is sustained by authorities, that appellant cannot take advantage of the fact that the verdict and judgment rendered against him is for an amount less than was established by the proof. Blassingame v. Davis, 68 Tex. 595, 5 S. W. 402; Hamman v. Willis, 62 Tex. 507; 29 Cyc. 848. Shropshire v. Doxey, 25 Tex. 128, and other cases cited by counsel for appellant, are distinguishable from the ease in hand. In the Shropshire Case the complaining litigant was the party in whose favor the verdict had been rendered, and the Supreme Court sustained his contention and reversed the case because the undisputed proof showed that he was entitled to recover a much larger sum than the amount awarded by the jury. In that and other similar cases cited in appellant’s brief, it was the party in whose favor the verdict was rendered, and not the party against whom it was rendered, who was complaining of the smallness of the verdict.

The other questions presented in ap-' pellant’s brief relate to certain rulings of the trial court in regard- to the admissibility of testimony. The plaintiff was a joint-stock company, and appellant admitted that the individuals who constituted that company were solvent, and therefore it was not error to refuse to permit the defendant to prove that the company kept no funds or assets on hand. If the solvency of the company was at all pertinent to any issue in the case, testimony upon that subject was precluded by appellant’s admission that the individuals who composed the joint-stock company were solvent. We also overrule appellant’s contention that certain witnesses had not qualified themselves to express an opinion as to the character of work which appellant had done in attempting to drill the well in question.

No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.
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