text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HEACKER.
    (No. 7170.)

    (Court of Civil Appeals of Texas. Dallas.
    June 6, 1914.
    Rehearing Denied June 27, 1914.)
    EVIDENCE (§ 359) —DEMONSTRATIVE EVIDENCE — PHOTOGRAPHS—ADMISSIBILITY.
    Where photographic tracings showing the weakness of the pulse of the plaintiff in a personal injury action and microscopic photographs of his excretions indicating injuries to his kidneys were shown to have been taken with scientific accuracy, as well as tracings showing the impairment of his vision, such demonstrative evidence is properly received in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§• 1509-1512; Dec. Dig. § 359.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by W. F. I-Ieacker against the Missouri, Kansas & Texas Railway Company of Texas.. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Huff, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Randell & Randell, of Sherman, for appellee.

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

       Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellee sued appellant, alleging that he was employed by appellant as a brakeman, and that while upon' a coal car attached to a train of cars engaged in the discharge of his duties, and while the train was in motion and about to collide with another train, because of appellant’s negligence, he leaped therefrom to avoid the greater hazard, and was seriously and permanently injured. Appellant by its answer conceded its negligence and appellee’s injuries, but denied that they were as serious or of the extent alleged. There was a jury trial upon special issues, which resulted in a verdict for appellee for $7,000, followed by similar judgment, from which this appeal is prosecuted.

A detailed statement of the' facts proven on trial in support of the verdict of the jury is unnecessary, since the three assignments of error contained in appellant’s brief relate solely to the admission in evidence of certain tracings and a miscroscopieal photograph. In testifying to the physical condition of ap-pellee and to the character, extent, and permanency of appellee’s injuries, Dr. Acheson, witness for appellee, who had charge of him from the time of his injuries until the trial, said appellee was suffering mainly from'injuries to his kidneys, due to his leap from the moving car. One of the symptoms, the witness said, was appellee’s abnormal pulse or heart beats, which witness deposed at the time of his injuries was 103,000 pulsations per day, which was normal, but at the time of trial it had increased to 132,000 pulsations for the same period of -time, which was abnormal ; the pulse being weak and forceless— in fact, so weak it would hardly record a pulse wave. At this point witness produced, and counsel for appellee tendered in evidence, a photographic tracing of appellee’s pulse, which, over appellant’s objection, was admitted in evidence. This tracing is made by an instrument in use among medical men, which is placed upon the wrist of the patient. Attached to the instrument is a needle and slip of paper. As the instrument, which is a species of clockwork, moves the paper over the needle, the needle is elevated and lowered by the pulse beat, and the pulse wave is produced. The stronger the pulse the higher the waves in what would be a straight line across the paper but for the pulsation. The tracing was made in the usual scientific manner, and was correct. It was conceded by all physicians examined at trial on the subject that the instrument was accurate, and the tracings exhibited indicated a very weak heart.

The same witness produced, and the court admitted in evidence, over appellant’s objection, a microscopical photograph.of appellee’s urine. The witness, in taking the photograph, secured a drop of appellee’s urine, placed same upon a piece of glass covered the drop of urine with a microscope in order to magnify same, and finally placed the camera over the microscope, and secured the magnified photographic reproduction. The photograph was scientifically and correctly taken, and disclosed tube easts or crystals in the urine, indicating an inflamed and serious condition of the kidneys.

The same witness also produced, and the court admitted in evidence, a tracing prepared by the witness, showing how appellee’s eyesight was affected by reason of the condition of the kidneys. The witness had testified that an examination of the right eye disclosed that only seven-thirteenths of the “field of vision” or the retina- was available and only five-thirteenths of the left eye. The tracing offered in illustration or demonstration of the condition of the eyes was made by the perimeter, an instrument in general use by scientific men and correctly made, and is, in short, an irregular line traced over a circular piece of pasteboard representing the surface of the eye, showing that portion of the sight affected and that which is not.

It is urged, in effect, that the tracings and the photograph were inadmissible, because the same could not convey to the minds of .laymen, the jury, any legitimate information with which to corroborate the claim of ap-pellee’s witness that appellee’s kidneys were injured by the accident. For obvious reasons we shall not undertake a discussion of the general rules of evidence and an application thereto of the point at issue in the instant case, but shall content ourselves by a reference to cases involving facts, if not similar, at least quite analogous, to those in the instant ease. In Monson v. State (Cr. App.) 63 S. W. 647, a photograph of the head of a deceased person showing the condition of the brain after the removal of the skull was held to be admissible, after the expert witness had testified that same correctly represented that which it purported to show. In Alberti v. New York, L. E. & W. R. Co., 118 N. Y. 77, 23 N. E. 35, 6 L. R. A. 765, a photograph showing the contracted condition of the injured person’s limbs was held admissible and material after testimony of the attending physician to the effect that it correctly represented the actual condition of the limbs. An X-ray photograph delineating in the one case a disjointed wrist and in the other overlapping bones of the leg of living persons due to the result of accident and consequent injuries were held to be admissible, when shown to be correct and adequate by those having knowledge thereof. Bruce v. Beall, 99 Tenn. 303, 41 S. W. 444; Mauch v. City of Hartford, 112 Wis. 40, 87 N. W. 816. We think the rule as stated in Bruce v. Beall, supra, is the correct one, and is conclusive of the issues in the instant case. It is there said:

“New as this process is, experiments made by scientific men, as shown by this record, have demonstrated its power to reveal to the natural eye the entire structure of the human body, and that its various parts can be photographed as its exterior surface has been and now is. .And no sound reason was assigned at the bar why a civil court should not avail itself of this invention, when it was apparent that it would serve to throw light on the matter in controversy. Maps and diagrams of the locus in quo drawn by hand are often used to aid a judge or a jury to an intelligent conception of the matters to be determined, and no one would think of questioning the competency of the testimony of á witness who stated that be knew the map or diagram to be entirely accurate, and who then used it to illustrate or make plain his statement. The pictorial representation of the condition of the broken leg of the plaintiff gave to the jury a much more intelligent idea of that particular injury than they would have obtained from any verbal description of it by a surgeon, even if he had used for the purpose the simplest terms of his art. * * * It is not to be understood, however, that every photograph offered as taken by the cathode or X-ray process would be admissible. Its competency, to be first determined by the trial judge, depends upon the science, skill, experience, and intelligence of the party taking the picture and testifying with l'egard to it, and, lacking these important qualifications, it should not be admitted; and even then it is not conclusive upon the triers of fact, but is to be weighed like other competent evidence.”

-■ We are unable to add anything to the excerpt quoted, other than to say that in the instant case the preliminary proof of accuracy and knowledge on the part of the witness was shown in such manner as to bring both the photograph and the two tracings clearly within the rule stated.

Believing there was no error in the admission of the testimony complained of, it becomes our duty to affirm the case.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    OLD RIVER RICE IRR. CO. v. STUBBS.
    (No. 6534.)
    (Court of Civil Appeals of Texas. Galveston.
    May 19, 1914.
    On Motion for Rehearing, June 18, 1914.)
    1. Judgment (§ 949) — Res Judicata — Plea —Sufficiency.
    In a suit for breach of a contract to furnish water for irrigation under an alleged contract to furnish sufficient water for one-fifth of plaintiff’s rice crop, a plea reciting that a former suit between the same parties had been instituted on the identical contract, which had been construed therein to cover continuous seasons, that a judgment had been recovered by plaintiff which had been affirmed on appeal, and that the identical issues raised in the pending action as to thq interpretation, scope, and validity of the contract were raised and decided on their merits in the former suit, was sufficient as a plea of res judicata.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1794-1S03; Dec. Dig. § 949.]
    2. Judgment (§ 601) — Res Judicata — Matters Concluded.
    Where a judgment in a former suit for breach of an irrigation contract determined that the contract was a continuous one and valid, such judgment, though not res judicata in a subsequent suit between the same parties for a further breach of the contract because the causes of action were not identical, was nevertheless operative as an estoppel as to the validity and construction of the contract and any other matter or issue determined in the prior suit and sought to be raised in the subsequent one.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1116; Dec. Dig. § 601.]
    3. Waters and Water Courses (§ 261)— Irrigation — Contracts — Breach — Damages.
    Where plaintiff had a continuing contract binding defendant to furnish, him water through continuous seasons to irrigate his rice crop for one-fifth of the crop, the fact that defendant, prior to the time plaintiff planted his crop for 1910, positively repudiated the contract and declared that it would furnish plaintiff no water thereunder during that season, did not obligate plaintiff to refrain from expending money or labor in planting such crop on the faith of obtaining water from defendant under the contract, for plaintiff in planting his crop was not performing any part of.the contract which defendant had renounced, and hence plaintiff was entitled to recover, for defendant’s failure to furnish water, the expenditures made by him in planting and cultivating the crop up to the time of defendant’s refusal to furnish water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.]
    4. Appeal and Error (§ 1002) — Verdict— Conflicting Evidence.
    A jury’s finding on a particular issue on which the evidence is conflicting will not be set aside on appeal.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 10Q2.]
    5. Waters and Water Courses (§ 249)— Irrigation — Contract—Constructions.
    Plaintiff conveyed a right of way for irrigation ditches over a tract of land described as containing 427.7 acres on the T. survey, defendant agreeing to furnish plaintiff his equal pro rata share for water for irrigating his rice crop during successive farming seasons; he paying the reasonable water rent for water therefor. Held, that defendant was bound to furnish water to irrigate the rice crop on the whole 427.7 acres, though 80 acres thereof were located in another survey.
    TEd. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 249.]
    On Motion for Rehearing.
    6. Evidence (§ 265) — Admissions—Conclusiveness.
    Where, in a suit to recover damages to plaintiff’s crops by defendant’s failure to furnish water to irrigate the crop in accordance with the contract, plaintiff admitted that the value of the crop he did raise during the season in question was $637.75, such admission concluded plaintiff from showing that the value was less than such amount, but was not conclusive on that issue and did not prevent defendant from showing that the crop raised was of greater value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Action by F. H. Stubbs against the Old River Rice Irrigation Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. W. Marshall, of Anahuac, and Lane, Wolters & Storey, of Houston, for appellant. C. F. Stevens and E. B. Pickett, Jr., both of Liberty, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by the appellee against appellant to recover damages for the failure of appellant to furnish water for the irrigation of a crop of rice planted and cultivated by plaintiff during the season of 1910 upon 425 acres of land adjacent to the irrigation canal owned and operated by appellant. Plaintiff’s claim to the water was based upon a contract executed by the defendant on or about November 10, 1903, by the terms of which defendant, in consideration of the conveyance to it by plaintiff of a right of way for its canal across plaintiff’s land, obligated and bound itself to furnish him “his equal pro rata of water for irrigating his rice crop during the farming season; he paying the reasonable water rental therefor.”

■Plaintiff’s amended petition alleged that though said contract is in the singular, to wit, “that said company would furnish him his equal pro rata of water for irrigating his rice crop during the farming season,” the same was a mutual mistake, for plaintiff and defendant agreed and understood said contract should be, and it was intended to be, in the plural, to wit, “for all seasons; and said contract is an obligation to furnish water to the plaintiff for all farming seasons and that the same was so interpreted by the plaintiff and defendant for many years, and water furnished thereunder.” Also it was alleged:

“That before any water was furnished under said contract, it was understood and agreed by and between the plaintiff and defendant that the reasonable water rental, as provided in said contract, should be construed to mean a one-fifth part of the crop raised by him each successive year.”

That during the seasons of 1906, 1907, and 1908 defendant watered plaintiff’s rice crops under said contract for one-fifth of the crop grown, and also watered the rice plaintiff planted in 1909, but asserted a charge therefor of $8 per acre, which plaintiff refused to pay, but tendered defendant one-fifth of the crop grown during said season. That thereafter defendant herein filed suit against plaintiff herein, said cause being numbered 7S9 on the docket of the district court of Chambers county, Tex., wherein the appellant company, as plaintiff, sued the appellee herein, as defendant, for $8 per acre water rent, and, said cause being heard upon its merits, said district court “adjudged and decreed that the above-mentioned contract applied to all seasons, and said defendant company was bound and obligated thereunder to furnish plaintiff with water for any and all seasons subsequent to the date of said contract, for one-fifth of the rice crop grown on the said lands.” That said judgment was appealed from and affirmed on March 23, 1911, by the Court of Civil Appeals, and writ of error thereafter refused by Supreme Court. See 137 S. W. 154. It is further alleged in said petition “that this cause of action and the issues involved herein, in so far as they relate to the contract aforesaid, the subject-matter hereof, and the parties hereto, are all identical with those in said cause No. 789,” and the judgment in said cause is pleaded as res adjudicata of the issues in this cause.

The defendant interposed a general demurrer, and certain special exceptions, and answered by a general denial, and a special answer, alleging that long before plaintiff planted his land in rice, or went to any expense in preparation therefor, defendant notified him positively that it would not furnish him with water under the old contract, but would only furnish him with water under a new contract, entered into by a reasonable date; that, if plaintiff prepared and planted his land in rice after such notice, he did so with full knowledge that defendant would not water samfe; and that it was not therefore chargeable with any increase of damages.

In its first supplemental answer, defendant alleged that the oral agreement to accept one-fifth of the rice crop as a reasonable water rent, relied upon by plaintiff, came within the provisions of the statute of frauds, and consequently was void and unenforceable.

In answer to defendant’s first supplemental answer, plaintiff pleaded res adjudicata, alleging that all the issues set up therein had been formerly adjudicated in case No. 789, Old River Rice Irrigation Company v. F. H. Stubbs, in the district court of Chambers county, Tex., and that said case was appealed to the Court of Civil Appeals at Galveston, and that the judgment of the district court was there affirmed; that a writ of error was denied by the Supreme Court of Texas, consequently the defendant was estopped to deny the interpretation and construction of said contract. Certified copies of the pleadings, judgment, mandate, and opinion of the Court of Civil Appeals, and the order of the Supreme Court denying the writ of error, were all appended as exhibits.

Defendant specially excepted to the plea of res adjudicata on the ground that it appeared that the present suit involved an entirely different state of facts, being for damages to a rice crop of 1910, while former suit in cause No. 789, Old River Rice Irrigation Company v. F. H. Stubbs, was an action to recover damages to a crop of 1909. The court overruled the exception.

The first assignment of error presented in appellant’s brief complains of the refusal of the trial court to sustain appellant’s exception to the plea of res adjudicata contained in appellee’s supplemental petition.

The plea, with the exhibits thereto, shows that the contract sued on in this case is the identical contract upon which the former suit mentioned in said plea was based; that said former suit was between the parties to this suit, and the identical issues raised in this suit as to the interpretation, scope, and validity of said contract were raised and decided upon their merits in said former suit. These allegations render the plea sufficient as a plea of res adjudicata of the right of appellant in this suit to raise the issues raised in the former suit affecting the interpretation, scope, and validity of the contract. Appellant is estopped by the judgment in the former suit to raise such issues.

The judgment in the former suit is not res adjudicata in the sense that it is conclusive of appellee’s right to recover in this suit because the causes of action in the two suits are not identical.

But a judgment which is not a bar to another suit between the same parties because the causes of action are different may still operate as an estoppel as to any matter or issue determined thereby when such issue is sought to be raised in a subsequent suit between the same parties. This distinction between the operation oí a judgment as a bar to a second suit between the same parties upon the same cause of action and its effect as an estoppel in another action between the same parties upon a different claim is very clearly stated by Mr. Justice Fields in the case of Cromwell v. Sac Co., 94 U. S. 351, 24 L. Ed. 195.

The court did not err in overruling defendant’s exceptions to the plea of res adjudicata. Foster v. Wells, 4 Tex. 101; Cook v. Carroll Land & Cattle Co., 6 Tex. Civ. App. 326, 25 S. W. 1034; Carson v. McCormick, 18 Tex. Civ. App. 225, 44 S. W. 406; Boykin v. Rosenfield, 24 S. W. 323; City of Houston v. Walsh, 27 Tex. Civ. App. 121, 66 S. W. 106.

The second assignment of error complains of the ruling of the trial court in admitting evidence offered by plaintiff in support of his plea of res adjudicata. The objection made to this evidence was that it was immaterial because the subject-matter and issues of the former suit “were separate, distinct, and different from the subject and issues involved in the present suit.”

What we have said in discussing the first assignment of error disposes of the question presented by this assignment. The evidence objected ■ to sustains the allegations of the plea and the exceptions to the plea having been properly overruled, the objections to the evidence should not have been sustained.

The third assignment of error complains of the following paragraph of the court’s charge:

“In ascertaining wliat damage, if any, which the plaintiff is entitled to recover, you will determine from the evidence how many barrels of rice, if any, which plaintiff would have made upon the land he planted in rice during the year 1910, as you may find the amount to be, and also you will determine from the evidence the reasonable market value of the said crop of rice at the time the same would have been ready for market, at the nearest market therefor, and in case you so find, then the measure of damage, if any, would be the market value of four-fifths of the entire crop that would have been ready for market, less the additional expense of raising, harvesting, and preparing for market the entire crop he would have raised, and of marketing his portion thereof, over and above what he had already expended upon said entire crop up to the time the defendant company refused to water his rice crop, on or about the third day of June, 1910.”

The proposition under this assignment is as follows:

“The charge complained of is erroneous in that it allows as damages the expenditures made by plaintiff in planting and cultivating his rice crop up to the third of June, whereas, the undisputed evidence shows that the plaintiff, before he had gone to any expense whatever in preparing his land or planting his rice, ’received positive notice that the defendant company had unequivocally renounced the contract, and would not supply plaintiff any water thereunder.”

The undisputed evidence shows that on January 1, 1910, before any expenses of the 1910 crop were incurred by appellee, he was notified by appellant that it would not furnish him water under his contract. This notice was repeated by letter of January 26th, in which appellant positively repudiated the contract and declared that it would furnish no water thereunder for the season of 1910. Appellee testified upon cross-examination that he went ahead and plowed and planted his crop after he knew that appellant would not furnish him water. On redirect examination he testified:

“I was wrong awhile ago when I answered Mr. Ayers that I knew that they would not give me water after the passage of those letters between my lawyer and the company; I thought they were bluffing, and thought there-was still a chance to get the water. I made a further effort to get water for my crop in 1910. We got out what they call a writ of mandatory injunction, but I did npt get any water with all of that. That bluff did not work, for I kept fighting for water, and filed that court proceeding, and followed it up. I was trying to make them water me.”

In support of the proposition above quoted, appellant invokes the rule that, when one of the parties to a contract is given notice of the renunciation of the contract by the other party, he cannot proceed with performance on his part so as to increase the damage, and cites, among others, the case of Ollesheimer v. Foley, 42 Tex. Civ. App. 252, 95 S. W. 688.

We do not think this rule is applicable to the facts of this case. In the case cited the contract was for the purchase of goods which the seller had to manufacture, and was ex-ecutory as to both parties. Before the goods were manufactured the purchaser, contrary to the express terms of the contract, countermanded his order. The seller proceeded to-manufacture the goods and sought to hold the purchaser liable for the contract price. It was held that the seller, after he received notice of the purchaser’s repudiation of the contract, had no right to proceed with performance on his part and thus increase the purchaser’s liability for damage. In this case the contract was fully executed in so-far as appellee was concerned, and in expending the money necessary to plant his crop he was not performing his part of a contract which the appellant had renounced. He had planted and cultivated a crop of rice on his land for several years and had been furnished water therefor by appellant under his contract, and he was not required to abandon his business as a rice farmer in order to protect appellant from damages caused by its refusal to comply with its contract. If he had not planted the crop and obtained a stand of rice, the probable yield would have furnished a very uncertain basis for estimating his damage. The probable yield of a growing crop was once regarded as too speculative and uncertain to form a basis for estimating damages, and, when the rule is extended so as to include the estimated yield of a crop that was never planted, the uncertainty of the damages is greatly increased. Plaintiff was not required, in order to protect appellant from its own wrong, to so increase the uncertainty of his damage. In addition to this, appellant is a quasi public corporation and independent of its contract owed plaintiff the duty to furnish him water for his rice crop upon the same terms that it furnished it to other farmers, and this duty could be enforced by mandamus. Borden v. Rice Co., 98 Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640. The letter in which appellant notified plaintiff of its renunciation of the contract also informed him that it would not furnish him water upon the same terms that it watered the crops of other farmers. It goes without saying that appellant could not release itself of its legal duty in this way and plaintiff was not required to accept and act upon any declaration of its intention to so release itself.

The record shows that plaintiff’s crop was not entirely destroyed, and, notwithstanding appellant’s failure to furnish water, the crop produced several hundred sacks of rice. The verdict of the jury expressly deducts from the value of the crop that would have been raised if it had been properly watered the value of the crop that was raised and the cost of raising and marketing the entire crop over and above what plaintiff had expended upon said crop. The value of the crop raised by plaintiff having been deducted from the value of the crop that he would have raised, „it is manifest that he would be entitled to recover at least a sufficient amount of the expenses of the crop raised by him to offset the value of said crop, otherwise he would not be compensated for his loss. The statement under the assignment contains a copy of the verdict, which shows that the jury in estimating the damage sustained by the plaintiff deducted from the value of the Crop he would have made the value of the crop he did raise, but there is- nothing in the statement showing what was the value.of the crop raised. For aught that appears in the statement, the value of the crop raised and for which the jury gave appellant credit may have been equal to the amount expended by plaintiff, and if this was true appellant’s damage was in no way increased by plaintiff’s planting and cultivating his crop after he was notified that appellant would not furnish him with water, and if the charge was abstractedly erroneous appellant was not injured thereby. The assignment cannot be sustained.

The fourth assignment complains of the refusal of the court to instruct the jury 'that plaintiff could not recover any expenses incurred by him after he received notice of appellant’s repudiation of the contract, and the fifth assignment complains of the verdict as excessive because it finds for plaintiff the sum of $2,000, which the undisputed evidence shows were expenses incurred by plaintiff in planting and cultivating his crop after he received notice of appellant’s repudiation of the contract.

What is said above in discussing the third assignment disposes of the question presented by these assignments, and both of them are overruled.

The verdict of the jury fixes plaintiff’s damage at the sum of $4,495.22. In arriving at this amount the jury state in their verdict that the yield of the crop would have been eight sacks of rice per acre on 388 acres of land, and its market value would have been $2.60 per barrel.

The sixth assignment complains of the verdict on the ground that the jury in finding the number of acres in cultivation on plaintiff’s farm did not allow sufficient deduction for the acreage taken up by the ditches, drains, and laterals on said land. The evidence as to the actual number of acres planted and cultivated in rice after deducting the acreage taken up by the ditches, drains, and laterals was conflicting; but there is ample evidence to sustain the finding of the jury on this issue. The assignment is overruled.

The evidence is also conflicting upon the issue of the market value of the crop that, would have been raised, but there is sufficient evidence to support the verdict of the jury that the rice would have been worth $2.60 per barrel, and the seventh assignment, which assails the verdict on this issue as unsupported by the evidence, must also be overruled.

There is no merit in the eighth assignment, which assails the verdict on the ground that the evidence shows that 80 acres of’ the land cultivated by plaintiff was on the-Rector survey, and appellant was only bound under its contract with plaintiff to furnish-water for 427.7 acres on the Tilton survey, and therefore was not liable to plaintiff for the loss of the crop on the 80 acres of the-Rector survey.

We do not think appellant’s contract to furnish plaintiff “his equal pro rata share-of water for irrigating his rice crop during-(all) farming seasons, he paying the reasonable water rent therefor,” is limited to land-on the Tilton survey. The right of way conveyed by plaintiff to appellant is-.described' in the contract as being over a tract of 427.7 acres on the Tilton survey, but the undisputed evidence shows that the 80 acres on. the Rector survey is a part of the 427.7 acres - owned by plaintiff and part of the field cultivated in- rice by plaintiff and watered by-appellant under its said contract prior to-1910.

Appellant has unquestionably acquired title-to the right of way conveyed him by plaintiff regardless of whether plaintiff’s land over-which it was given is entirely on the Tilton or partly on the Rector survey. There is no question as to the identity and location of the 427.7 acres which was the subject-matter-of the contract, and the fact that a portion of it is not on the Tilton survey will not relieve appellant of its obligation to furnish water for all of said land.

At a former day of this term we erroneously concluded that, under the charge complained of under the third assignment of error, which we have before set out and discussed, the jury were authorized to allow plaintiif damages for $2,000 in excess of his loss, and for that reason the judgment should be reversed unless plaintiif should file a re-mittitur in the sum of $2,000. This conclusion was clearly unsound, and after discovering our error, upon our own motion, we set aside the order requiring a remittitur.

We are of opinion that the brief of appellant presents no error which requires or would authorize a reversal of the judgment, and it is therefore affirmed.

Affirmed.

On Motion for Rehearing.

In its motion for rehearing appellant complains of the following statement in the portion of our opinion in which we discuss the third assignment of error:

“The statement under the assignment contains a copy of the. verdict, which shows that the jury in estimating' the damages sustained by the plaintiif deducted from the value of the crop he would have made the value of the crop he did raise, but there is nothing in the statement showing what was the value of the crop raised. For aught that appears in the statement, the value of the crop raised and for which the jury gave appellant credit may have been equal to the amount expended by plaintiff,” etc.

The complaint is that the statement under the assignment does show the value of the crop-raised by appellee.

Upon a re-examination of the brief we find that it appears from the statement under the assignment that:

“The plaintiff admitted that the value of the crop he did raise on his land in 1910 was $637.-75.”

The admission of plaintiff of the value of the crop raised by him was not conclusive of that issue. Such admission concluded plaintiff from showing that the value was less than the amount stated by him, but did not prevent appellant from showing a greater value. We fhink, however, that while it does not affirmatively appear from the statement that this admission of plaintiff was the only evidence upon the issue of the value of the crop raised by him, the reasonable inference from the statement is that this was all of the evidence upon that issue. Giving this effect to the statement, it was not deficient in the respect stated in our opinion, and the portion of the opinion before quoted is withdrawn.

This correction in our finding as to the sufficiency of the statement under the third assignment of error eliminates one of the grounds of our holding that said assignment should be overruled. We still think, however, that for the other reasons stated in our opinion the assignment should be sustained. The motion for rehearing is overruled.


author: McMEANS, J.

text:
    BENFORD LUMBER MFG. CO. et al. v. KNOX.
    (No. 6623.)
    (Court of Civil Appeals of Texas. Galveston.
    May 26, 1914.
    Rehearing Denied June 11, 1914.)
    1. Appeal and Error (§ 1003) — Review-Questions oe Fact.
    Appellate courts are only authorized to disturb the finding of a jury upon a question of fact, when there is no evidence to support such finding, or when it is so man'festly against the great weight and preponderance of the evidence as to load to the conclusion that the jury was influenced by an improper motive, and hence an assignment of error, complaining that the verdict was contrary to the preponderance of the evidence, raised no question for review.
    [Ed. Note. — For Other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    2. Corporations (§ 432) — Officers and Agents — Authority—Sufficiency of Evidence.
    In an action against a lumber corporation for the purchase price of a steam log loader, evidence held to support a jury finding that its assistant superintendent in charge of the operations of its sawmill plant had authority to purchase the loader.
    [Ed. Note. — For other cases, see Corporations,' Cent. Dig. §§ 1717. 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.]
    3. Corporations (§ 410) — Officers and Agents — Authority—Estoppel.
    Where the president of a lumber corporation referred a party who solicited the purchase of a steam log loader to the assistant superintendent in charge of the corporation’s sawmill plant, he held out the assistant superintendent as authorized to purchase the loader, even though in fact he had no such authority.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1629-1632; Dec. Dig. § 410.]
    4. Corporations (§ 426) — Officers and Agents — Unauthorized Acts — Ratification.
    Even though the assistant superintendent in charge of a lumber corporation’s sawmill plant had no authority to buy a steam log loader, his act in buying it was ratified, where the president and general superintendent knew that he had bought it, and that it was in almost daily use, received daily reports of its operation without raising any objection to its use, and accepted the benefits thereof without repudiating the purchase.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1596, 1702-1704, 1707, 1708, 1710-1716; bee. Dig. § 426.]
    5. Sales (§ 441) — Warranty—Sufficiency of Evidence.
    In an action for the purchase price of a steam log loader, evidence held to support the jury’s finding that there was no warranty by the seller that the loader would do a certain amount of work.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §| 1277-1283; Dec. Dig. § 441.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Action by Hiram Knox against the Benford Lumber Manufacturing Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed in part, and reversed and rendered in part.
    Hill & Hill and Holshousen & German, all of Livingston, and Kilpatrick, McCollum & Kilpatrick, of Kansas City, Mo., for appellants. Campbell & Campbell, of Livingston, for appellee.

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

   McMEANS, J.

Hiram Knox brought this suit against the Benford Lumber Manufacturing Company and the Glen Lumber Company to recover $4,000 and interest, the purchase price of a steam log loader alleged to have been sold by plaintiff to defendants on the 23d day of February, 1911.

Defendants answered by general denial and specially pleaded in substance, among other matters, that the defendant Benford Lumber Manufacturing Company was incorporated under the laws of the state of Missouri, and the Glen Lumber Company was incorporated under the laws of the state of Kansas, and both were authorized to do business in Texas; that at no time did W. C. Gal-limore, the assistant superintendent of defendants, or any other person, except T. Gunter, the president of defendant companies, have authority to purchase from plaintiff the loader and skidder and legally bind defendants to pay for the same, and, if there was in fact any such purchase, the same was unauthorized, and the party making the purchase was without authority to so purchase it; that, if any negotiations were entered into, the loader and skidder was delivered to defendants experimentally and with the understanding there was no purchase so as to bind defendants, except by approval of the president of said companies, and that the president never approved the purchase. They further alleged that the loader and skidder failed to do the work plaintiff guaranteed it would do, and that it was worthless, and that, after a trial of it in which its worthlessness was proved, the same was turned back to plaintiff, and he was notified that it was subject to his disposal, and he was requested to remove the same.

Plaintiff, by way of replication to defendants’ answer, alleged in substance that, after exhibiting the loading machine to defendants for 20 days and demonstrating its usefulness for loading logs on cars, defendants were pleased and so expressed themselves through their manager, and thereafter, on the 23d day of February, 1911, defendants purchased the loader and agreed to pay for it as alleged in their original petition; that plaintiff did not sell or recommend the machine as a skidder; and that the defendants elected to take the machine for loading purposes only, at the price of $4,000. He further alleged that defendants placed W. C. Gallimore in charge and management of their mill plant at Benford, and held out to plaintiff and to , ! the world that said Gallimore had authority to act for them, and that he did purchase for defendants the loading machine; and that defendants proceeded to use the machine under their contract of purchase, loading onto cars with said machine during the months of March to September, inclusive, 8,-778,654 feet of logs, and during all of said time ratifying and confirming said purchase and asking additional time for payment, all of which was within the knowledge of T. Gunter, the president of defendant companies. There were other allegations in this pleading, but, in the view we take of the case, a statement of them is unnecessary.

The case was submitted to a jury upon special issues, and upon the coming in of their verdict the court foundj in favor of plaintiff for the sum of $4,566.66, being for the purchase price of the loading machine and 6 per cent, interest per annum from February 23, 1911, and judgment was accordingly entered in plaintiff’s favor for said amount. From this judgment the defendants have appealed.

Appellants’ first assignment of error is as follows:

“The jury erred in finding that there was an agreed and closed contract between Hiram Knox and the defendant companies, or either of them, for the purchase .of the log loader and skidder in question. The"preponderance of the evidence shows that such contract was never legally entered into, agreed to, closed, and made binding-on defendants, or either of them, with Hiram Knox; but, on the contrary, the preponderance of the evidence shows that the agents of the company'negotiating- with Hiram Knox for the purchase of the log loader and skidder had no authority to close the contract of purchase and bind the defendant companies, or either of them, to the contract of purchase of said machine.”

It will be observed that the gravamen of the complaint presented by this assignment is that the preponderance of the evidence did not justify the jury’s finding, but, on the other hand, the preponderance of the evidence shows that the agents of appellants, who negotiated for the purchase of the machine, had not the authority to bind appellants. Manifestly this assignment does not present any error which would authorize this court to reverse the judgment of the court below. Appellate courts are only authorized to disturb the finding of a jury upon a question of fact when there is no evidence to support such finding, or when the finding is so manifestly against the great weight and preponderance of the evidence as to lead to the conclusion that the jury was influenced by an improper motive. Railway v. Lee, 32 Tex. Civ. App. 23, 74 S. W. 349; Railway v. Rowell, 45 S. W. 763; Railway v. Holland, 27 Tex. Civ. App. 397, 66 S. W. 68. This assignment does not assail the verdict upon either of these, grounds, and therefore fails to point out any error which would authorize this court to disturb the findings complained of. But, waiving this objection, we think there is evidence in the record sufficient to sustain the finding of tile jury that there was a binding contract of sale for the log-loading machine entered into between the appellant Benford Lumber Manufacturing Company and appellee Knox. As to the binding force of the contract upon the appellant Glen Lumber Company, we will have more to say in the discussion of the next succeeding assignment of error.

The machine in question was invented by appellee Knox, and was designed to load saw-logs on cars, and also to skid logs lying some distance away from the railway track. It was so contrived as to run on its own steam power upon the tracks of a railroad or tramway. The 'loading was done by the use of steam. The Benford Lumber Manufacturing Company is a corporation chartered under the laws of Missouri, and had established, and on and prior to February 21, 1911, was operating, a sawmill plant at Benford, Tex. T. Gunter was its president, as well as the president of the Glen Lumber Company, and resided and kept his office in Kansas City, Mo. T. G. Roberts was general superintendent and resided and kept his office at Shreveport, La. W. C. Gallimore was assistant superintendent and resided and kept his office at Benford and was m active charge of the operations of the sawmill plant at that place. All of appellants’ witnesses agree that only the president, Gunter, had authority to make purchases in behalf of his companies of such machinery as the log loader in question, but that the assistant superintendent, Gallimore, had no such authority. It was shown that the negotiations leading up to the sale apd its final consummation were directly between Knox and Gallimore, so that, before plaintiff was entitled to a judgment, it was incumbent upon him to prove: (1) That Gallimore was intrusted with general authority to make such purchase; or (2) if he-was not, that he was authorized by Gunter to buy the loader; or (3) if he was not so authorized, then that Gunter for his companies, or one of them aft-erwards ratified his act in purchasing it. Upon all of these points, the testimony was conflicting, but it is not our province to settle the conflict, that being the peculiar province of the jury, but only to ascertain whether there was any evidence upon which the jury could have reasonably based their finding.

The witness O. A. Cunningham testified that he was connected with the sale of the loading machine to the “Benford people”; that he knew Gunter and spoke to him about buying the machine; that Gunter told him that he had noticed the machine but very little, and referred the witness to Gallimore, the manager in charge of the plant, saying that he (Gallimore) would attend to that; that he was on the -ground and manager of the mill; and that any arrangement witness made with Gallimore would be all right. This testimony was sufficient, we think, to justify the jury in finding: (1) That Gunter gave his assent for Gallimore to purchase this very machine; and (2) that Gallimore, as the manager of the mill, had general authority to make such purchases. The testimony to prove that Gallimore afterwards purchased the machine, agreeing to pay $4,-000 therefor in two equal payments, 6 and 12 months, respectively, after the date of the purchase, with 6 per cent, per annum interest on the deferred payments, is ample. The president, Gunter, further testified that he visited the sawmill once between the months of January and July, 1911, and saw the loading machine in operation. 1-Ie further said he had received a few letters from the manager, Gallimore, concerning the machine, which letters he had turned over to the attorneys of appellants.

R. C. Handley, shipping clerk for the Ben-ford Lumber Manufacturing Company, in February and March, 1911, testified that he heard Gallimore read a letter from Gunter making inquiry about the machine and asking what he had done about the loader, and he heard Gallimore dictate a letter to Gunter in which he stated that he had closed the trade with Mr. Knox for it a day or two before, and that he was well pleased with it.

Roberts, the general superintendent, testified that daily reports were sent to both himself and Gunter showing the operation of the loading machine each day for the months from February to September, both inclusive. These reports show that the entire cut of the mill for these months were of logs exclusively loaded by the loading machine, except for parts of the months of August and September and two days in July.

C. Torrence testified that the loading machine loaded a sufficient number of logs onto cars to keep the mill running until it was injured by bringing it into collision with a tree near the track, and that after this they could not do good work with it.

We think the foregoing testimony, if believed by the jury, as it evidently was, was sufficient to justify the finding that the contract of purchase and the promise to pay for the machine were, in the circumstances, binding upon appellant Benford Lumber Manufacturing Company. If 'Cunningham spoke the truth, and the jury evidently believed he did, the jury was warranted in finding that Gall-i-more, as manager of the mill, had tfie authority to buy the machine. If, as a matter of fact, he did not have such authority, then Gunter, by referring Cunningham to him with regard to the purchase of the loader, held him out to Cunningham as having such authority.

Again, even if Gallimore had no authority to buy the machine, and even if he was not held out by appellant as having such authority, we think that the appellant Ben-ford Lumber Manufacturing Company, having full knowledge that he had bought it, knowing that it was in almost daily use, and receiving daily reports of the operation of the loader, without raising any objection to its use, but accepting the benefits thereof, and without in any way repudiating the purchase, must be held to have ratified the act of Gallimore in buying it. The assignment is overruled.

The nezt assignment complains that the evidence is not sufficient to show that the Glen Lumber Company made the contract of purchase through 0. W. Gallimore, or that that company is in any way liable to appel-lee for the purchase price of the loading machine. AVe think this assignment must be sustained. There is no evidence that the Glen Lumber Company was engaged in the operation of the Benford Lumber Manufacturing Company’s plant at Benford, or that it purchased or authorized the purchase of the machine, or that the machine was purchased for it. As before shown, they were separate corporations. There was evidence to the effect that the Glen Lumber Company owned the Benford Lumber Manufacturing Company, but it was not sought to be held liable on the ground that it had bought the property and franchise of the Benford Lumber Manufacturing Company, but on the ground only that both corporations had bought the machine. This contention was not sustained by the proof.

Appellants’ eighth and ninth assignments have been sufficiently disposed of by what we have said in disposing of the assignment first discussed.

The tenth assignment complains that the jury’s finding that there was no contract of warranty or guaranty on the part of Knox that the machine would do a certain amount of work is contrary to a preponderance of the testimony.

Again waiving the sufficiency of the assignment, but treating it as a complaint that there was no evidence to warrant such a finding, we answer that Knox himself testified that he made no such warranty, and gave no such guaranty, but that Gallimore bought the machine after having seen it in operation for a period covering several days, and upon the demonstration thus made only. If this was not true, and if there was such a guaranty, the evidence is sufficient to sustain the conclusion that the guaranty was complied with. The assignment is overruled.

The two remaining assignments, the seventh and twelfth, have been carefully examined by us, and we are of the opinion that neither of them points out reversible error.

We are of the opinion that as to the Ben-ford Lumber Manufacturing Company the judgment of the court below should be affirmed, and that as to the Glen Lumber Company the judgment should be reversed, and judgment here rendered in its favor; and it has been so ordered.

Affirmed in part. Reversed and rendered in part.


author: HALL, J.

text:
    ALLEN v. BLAND.
    (No. 625.)

    (Court of tíívil Appeals of Texas. Amarillo.
    May 23, 1914.
    Rehearing Denied June 13, 1914.)
    1. Municipal Corporations (§ '706) — Streets — Action, for Injury by Automobile — Evidence.
    In an action for an injury to plaintiff’s wife, caused by being run over on a city street by defendant’s automobile driven by his minor son, the issue of the boy’s carelessness and incompetency being raised, the court properly permitted a witness to testify that he had on two occasions met the boy with the automobile on the public i'oad and he had on each occasion failed and refused to give him any part of the road.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    2. Municipal Corporations (§ 706) — Streets — Action for Injury by Automobile-Evidence.
    Such evidence was also admissible as tending to sustain plaintiff’s contention that the boy was so small that he was not able to look over the steering wheel and the front of the machine and see objects ahead of him.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    3. Damages (§ 158) — Evidence Admissible Under Pleadings — Personal Injuries — Impairment op Faculties.
    The mind and nervous system being so intimately connected with the body, and so likely to be affected by physical injuries, proof of impairment of these faculties is admissible under allegations in substance setting up grievous or-permanent injuries.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.]
    4. Appeal and Error (§ 1051) — Harmless Error — Evidence.
    In an action for an injury to a woman caused by being run down by defendant’s automobile, the admission of evidence of injury to the woman’s nervous system, if erroneous, was harmless, where the other evidence was sufficient to sustain the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    5. Municipal Corporations (§ 706) — Use of Street as Highway — Action for Injury by Automobile — Instructions.
    In an action for an injury to plaintiff’s wife caused by being run over on a city street by defendant’s automobile being driven by his minor son 11 years of age, an instruction that to render defendant liable he must reasonably have anticipated the injury as a consequence of permitting the boy to drive the car, and that defendant’s negligence made it possible for the boy to cause the injury, etc., and, if defendant permitted the boy to drive the car upon the streets of the city and because of his inexperience, youth, etc., defendant should -have anticipated that danger and injury would result to other persons, and if the boy failed to exercise ordinary care at the time of the injury, etc., and if such negligence upon the part of both was the proximate cause of the injury to find for plaintiff. etc., presented the issue of negligence of both parent and son in as favorable a light as he was entitled to have it.
    [Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. § 1518; Dec. Dig. 8 706.]

      6. Municipal Corporations (§ 705) — Use of Streets — Automobiles — Operation by Child. a

    An automobile is not a dangerous instrument per se when operated by a careful and competent driver, but a powerful heavy machine operated by an 85-pound boy 11 years of age along the streets of a populous town may become a menace to other persons on the streets.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.]
    7. Master and Servant (§ 801) — Injury by Automobile — Liability op Father.
    Where a boy 11 years old by consent of his father purchased an automobile, kept it at a garage, the bills being paid by the father, the boy having unlimited authority to call for the car at any time of day or night, the boy in operating the car was the servant of the father, and hence the father was liable for an injury to a third party under the doctrine of respon-deat superior.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. § 301.]
    8. Municipal Corporations (§ 706) — Streets — Action por Injury by Automobile-Evidence.
    In an action for an injury to plaintiff’s wife caused by being run down on a city street by defendant’s automobile while being operated by his 11 year old son, evidence held to sustain a finding that the boy was incompetent and reckless.
    [Ed. Note. — For. other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Action by C. E. Bland, against R. S. Allen. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

      Por otiier cases see same tooio and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

       Writ of error pending in Supreme Court.

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

   HALL, J.

This appeal is from the district court of Wichita county. Appellee sued appellant to recover damages alleged to have been sustained by Mrs. Belle Bland, wife of appellee. It is alleged, in substance, by ap-pellee that his wife was run over and injured by an automobile driven by De Course Allen, the minor son of appellant; that said son was about IX years of age; and that he carelessly, negligently, and willfully drove said automobile against the said wife of plaintiff, knocking her down in the street and caused the automobile to pass over her prostrate body. After describing her injuries, the petition states that De Course Allen was a very small, weak, reckless, careless, and inexperienced boy, wholly unfit and incapacitated to drive or steer an automobile through the streets of such a town as Wichita Falls, crowded as it was with people passing back and forth and across said street, all of which facts were well known to defendant, and that defendant had allowed his son to drive his machine at all times, day and night, and purchased the car for him; that defendant was guilty of gross, inexcusable, reckless, and careless negligence. The appellant answered by general denial and by a special plea, alleging that appellee’s wife was guilty of contributory negligence in that she went upon the street in a crowded locality without look« ing or listening or taking any precaution whatever for her own safety, and that she negligently stepped in front of the car being driven by appellant’s son, when said automobile was so close to her that appellant’s son was unable to stop the same before she was struck thereby, although he used, every effort in his power to do so. The jury rendered a verdict in favor of appellee for the sum of $3,500.

The first assignment of error presents for review the ruling of the court, in admitting the testimony of the witness St. Claire Sherrod, to the effect that witness had on at least two occasions met De Course Allen driving an automobile along the public road, and that said De Course Allen on each occasion had failed and refused to give him any part of the road. Appellant’s objection to this testimony is that it was calculated to prejudice the jury against the boy and against appellant, as well as against the case. The issue of the boy’s recklessness, carelessness, and incompetency was raised by the pleadings. Appellant had introduced several witnesses who testified that they had been in the car with the boy, and that he was careful and a competent driver, and that they had never known him to be guilty of any carelessness in the operation of his automobile. It was further shown that the boy had owned the car for several months, during which time he had driven it about 3,000 miles. It further appears from the record that the automobile in question was a powerful machine of the “underslung” type; that the driver’s seat was only six or eight inches high, and when driving it the boy’s face barely reached the driving wheel. We think this testimony was admissible to rebut the contention of appellant that his boy was careful and competent. The safety of the public demands that drivers of vehicles should be familiar with and observe the law of the road and the rights of other travelers. This testimony tended to show that the boy was either ignorant or heedless of the law of the road, and we think had a bearing directly upon the issue raised by the pleadings. It was further admissible as tending to sustain appellee’s contention that while seated in his car he was not able to look over the steering wheel and the front of the machine and. see objects ahead of-him. H. & T. C. Ry. Co. v. Willie, 53 Tex. 318, 37 Am. Rep. 756; Texas Central R. Co. v. Rowland, 3 Tex. Civ. App. 158, 22 S. W. 134; Texas, etc., Ry. Co. v. De Milley, 60 Tex. 194; Gulf, etc., Ry. Co. v. Johnson (Tex. Civ. App.) 42 S. W. 584.

Plaintiff alleges that his wife was knocked down and run over by a heavy automobile, “thereby inflicting upon her body painful, serious, and permanent injuries, lacerations, cuts, and bruises, which caused her then, and continuously since has caused her, intense pain throughout various portions of her body; * * * that her right foot and ankle was seriously and permanently bruised, the bones thereof fractured, and the muscles, tendons, and ligaments seriously and permanently lacerated, strained, and injured, causing a lameness inside of right foot which has continued from that time until this, and which will continue permanently; that along her left side and across the upper portion of her body the muscles, tendons, and ligaments of the same are seriously bruised, strained, cut, and lacerated, which caused her great physical pain”; and further declares that she has suffered great physical and mental pain by reason thereof, beginning at the time of the accident until the present, and that she will continue to suffer great physical and mental pain growing out of said injuries for years and to some degree as long as she lives. Over the objection of appellant, Mrs. Bland was permitted to testify that before being injured she was in comparatively good health, but that since the injury she was a nervous wreck. The objection to this testimony was that there was no pleading to sustain it. In our opinion this objection is not well taken. The rule, as announced in 13 Cyc. 189, is:

“The mind and nervous system being so intimately connected with the body and so likely to be affected by physical injuries, proof of impairment of these faculties is admissible under allegations in substance setting up grievous or permanent injuries.”

This rule has been cited with approval and followed by the courts of this state. Rapid Transit Ry. Co. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 487; Texas & New Orleans Ry. Co. v. McCoy, 54 Tex. Civ. App. 278, 117 S. W. 446; Texas Midland Ry. Co. v. Simmons (Tex. Civ. App.) 152 S. W. 1106; Chicago v. McLean, 133 Ill. 148, 24 N. E. 527, 8 L. R. A. 765; Babcock v. St. Paul, etc., Ry. Co., 36 Minn. 147, 30 N. W. 449. The only way in which this testimony could have injured appellant was in augmenting the amount of the damages recovered, and since there is sufficient testimony to sustain the verdict, independent of the evidence relating to the condition of her nervous system, the admission of the evidence, if otherwise improper, is harmless.

- Appellant submits the third and fourth assignments of error together and urges the propositions that, since an automobile is not per se a dangerous instrument, before appellant can be held liable for damages caused by his minor son, in operating it with his permission, the plaintiff must show by a preponderance of the evidence that such minor son was incompetent to properly and carefully operate it under ordinary conditions, and that this fact was known to the parent, and that the jury must further find that an ordinarily prudent person would not have, under the same circumstances, permitted such minor to operate the car. It is further urged under these assignments that it must appear that the son was engaged in .the business of the parent and therefore occupied the position- of a servant, or that the parent was guilty of negligence in permitting his son to operate it, and it is not sufficient that the father’s act made it possible for the child to cause the injuries complained of, nor is it sufficient that the parent might have anticipated the injury. The objection under these assignments is to that part of the charge wherein it is said:

“In order to render a parent liable for an injury caused by the negligence of his child, it is essential that it should appear from the evidence that the parent might reasonably have anticipated the injury as a consequence of permitting the child to employ the instrument which produced the injury, and it must appear that the father’s negligence made it possible for the child to cause the injury complained of.”

Appellant requested a special charge, wherein the court was asked to instruct the jury that an automobile was not such a dangerous instrument as would authorize a finding that the defendant was negligent simply from the fact that he permitted his minor son to operate such automobile, and that plaintiff must further show by a preponderance of the evidence that the defendant’s son was incompetent to properly and carefully operate the machine under ordinary conditions, that this fact was known to defendant and that an ordinarily prudent person would not have under the same circumstances permitted said minor to operate it. We have reviewed the charge of the court and believe it presents the law applicable to the facts, as favorably to appellant as he had a right to demand. It is not contended that an automobile is a dangerous instrument per se, when operated by a careful and competent driver, and the courts have so held frequently. McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. But as said in Daily v. Maxwell, 152 Mo. App. 424, 133 S. W. 353:

“But no one can deny that an automobile in the hands of a careless and incompetent driver would be a dangerous machine to turn loose on busy streets and would constitute a menace to travelers.”

We do not construe the charge as instructing the jury that an automobile is a dangerous instrument per se; but we are not willing to hold that a powerful, heavy machine, such as the one in question, in the hands of an 85-pound boy, not yet in his teens, speeding along the streets of a populous and busy town, may not become a menace to the lives of persons attempting to cross the street in front of it. We do not hold that an automobile is a dangerous appliance as a matter of iaw. They have grown to be a part of the life of the country, and, when properly handled and driven, are useful and convenient vehicles. In this connection the court charges as follows:

“In order to render a parent liable for .an injury caused by the negligence of his child, it is essential that it sho.uld appear from the evidence that the parent might reasonably have anticipated the injury as the consequence of permitting the child to employ the instrument which produced the injury, and it must appear that the father’s negligence made it possible for the child to. cause the injury complained of.”

And further:

“If therefore you find and believe from a preponderance of the testimony that the defendant, R. S. Allen, permitted his son, De Course Allen, to have and drive an automobile upon the streets of Wichita Palls, at the time of the injury, and that at such time, because of the inexperience, youth, and want of fitness and ability to run such automobile at that time and place of De Course Allen, and that at such time defendant, R. S. Allen, should have anticipated that danger and injury would or was likely to result to other .persons from the running of such automobile by De Course Allen, but if you further find that De Course Allen at the time and place of the injury failed to exercise ordinary care to prevent injury to plaintiff, and that such acts upon the part of R. S. Allen, in permitting him to have and run an automobile at that time and place and the manner in which he did run the automobile at the time of the injury, was negligence, as hereinbefore defined, and that such negligence on the part of both was the proximate cause of the injury, and if you further find that plaintiff was injured as charged in her petition, then you will find for the plaintiff and assess his damages as hereinafter directed.”

We think this presented the issue of negligence of both parent and his son in as favorable a light as he was entitled to have it. Contention is made that the plaintiff’s petition does not allege or claim that the minor, at the time of the injury, was acting in the capacity of a servant, but is predicated entirely upon the allegation that the minor was incompetent and that the defendant was negligent in permitting him to operate the car.

The authorities are not in accord upon the question of the liability of a parent for permitting his minor child to operate an automobile when damages result to the person of another, by reason of the tort of the minor. It is held in Birch v. Abercrombie, 74 Wash. 486, 183 Pac. 1020, that a parent is not liable for the torts of his child solely on the grounds of this relationship; but in discussing the late authorities bearing upon the issue it is said:

“The New Jersey case, Doran v. Thomsen [76 N. J. Law, 754] 71 Atl. 296 [19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677], is not distinguishable on the facts from the case before us. The father owned an automobile, kept it on his premises, and the daughter used it with his knowledge and consent at her pleasure. While heartily subscribing to the view there expressed, ‘that the mere fact of the relationship of parent and child would not make the child the servant of defendant,’ we think the opinion unsound in that it ignores the agency induced by the fact, independent of that relationship, that the daughter was using the machine for the very purpose for which the father owned it, kept it, and intended that it should be used. It was being used in furtherance of the very purpose of his ownership and by one of the persons by whom he intended that purpose should be carried out. It was in every just sense being used in his business by his agent. There is no possible distinction, either in sound reason, sound morals, or sound law, • between her legal relation to the parent and that of a chauffeur employed by him for the same purpose. The fact that the agency was not a business agency, nor the service a remunerative service, has no bearing upon the question of liability. McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775. In running his vehicle, she was carrying out the general purpose for which he owned it and kept it. No other element is essential to invoke the rule respondeat superior. Wo think that the instruction which is criticised in .the Doran Case is, in itself, a complete answer to the opinion. It declared the use of the machine for the purpose for which it was owned, by the person authorized by the owner t.o so use it, a use in the owner’s business. It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair — that is, his business —and any one driving the vehicle for that purpose, with his consent, express or implied, whether a member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all. In this there is no similitude to a lending of a machine to another for such other’s use and purpose unconnected with the general purpose for which the machine was owned and kept. An examination of the authorities cited, and an independent search, induces the belief that the Doran Case stands practically alone. Some courts have sought on slight circumstances to distinguish it. One has frankly criticised it. We have found none which follow it. In Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224, the Supreme Court of Kentucky, holding a father liable on closely analogous facts,' used the following language, ‘In the first place, it may be said that a considerable part of the discussion of counsel is addressed to the idea that, even though the son was generally the agent or servant of the father in the operation of the car, the father is not liable under the facts stated here, because the son was engaged at the time in an enterprise of his own, the seeking and giving of pleasure to. himself, his sister, and their friends upon an excursion of his own, in which the father had no interest, and which was not in the line or scope of the son’s employment. The question ordinarily is a vital one in cases of this character ; but it is of no consequence here, for the only ground upon which the father can be held answerable for this act of his son excludes the idea of an independent venture, under the facts detailed. That ground is, as contended for by the appellee, that the machine was bought and operated for the pleasure of the family; and that, at the time of the accident, the son was engaged in carrying out the general purpose for which the machine was bought and kept; and that, as he took it out at the time in pursuance of general authority from his father to take it when he pleased, for the pleasure of the family and himself as a member of it — the purpose for which it had been bought — he was engaged in the execution of his father’s business, i. e., the supplying of recreation to the members of the father’s family.’ So, in the case at bar, the father had provided his family with this car as a means of recreation and amusement; and the son, in the use of the ear for that purpose, was not performing an independent service of his own, but was carrying out what, within the spirit of the matter, was the business of the father. * * * In Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527, it is said: ‘But further we held that the use of the car by the minor son for his own pleasure' and with the consent of his father, the owner, was one of the uses for which the vehicle was kept and therefore was a part of the service for which the owner had authorized the boy to run the car as his servant. The only difference between that case and this is that here the young man had attained his majority, was sui juris, and his father owed him no duty of parentage, and, of course, was under no obligation to provide him with means of pleasure and recreation. We do not think this fact is determinative of the question of defendant’s liability. The real question at issue is, not that of the legal duty defendant owed his son, but is whether or not the son was the agent of his father in running the car. Frequently fathers continue not only to support their children after the latter have become sui juris, but to provide them,, as members of the family, with the means of recreation and pleasure. This car was provided by defendant for the use of his immediate family. He contemplated and intended that his son should enjoy it in common with other members of the family. When in such use it was as much in his service as it would have been had it been occupied by his wife, his daughter, his mother, or his guest. We conclude that the young man was not a mere servant using his master’s vehicle for his own purpose, but was the agent of his father operating the car for one of the purposes of its intended use.’ In McNeal v. McKain, supra, another case of the same character, the court said: ‘Vehicles and motor cars may be used, not only for the business of the master for profit, but also in his business for pleasure. If Paul, the minor son of the plaintiff in error, had been driving his father’s carriage (whilst he was a member of his family) in which were contained his sister and a guest of his father’s house, the same being done by him with the express or implied consent of his father, the relation of master and servant would exist, and the father would be liable for the negligent acts of the minor son whilst engaged in the driving of the carriage, and the same rule is supported by authority as to motor cars.’ * * * We think that, both on reason and authority, the daughter in the present instance should be held the agent of her parents in the use of the automobile. Any other view would set a premium upon the failure of the owner to employ a competent chauffeur to drive an automobile kept for the use of the members of his family, even if he knew that they were grossly incompetent to operate it for themselves. The adoption of a doctrine so callously technical would be little short of calamitous.”

In Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, the Kansas City Court of Appeals said:

“Where a chauffeur, either with or without his master’s consent, uses the machine for his own business or for his own pleasure, and negligently inflicts injury on another, the master cannot be held liable, for the reason that the negligent act, being entirely outside the s.cope of the servant’s employment, cannot call into action the rule of respondeat superior. The fact of consent is material only in the solution of the issue of whether or not the use of the machine was, in fact, on business of the master. Cunningham v. Castle [127 App. Div. 580, 111 N. Y. Supp. 1057], supra. Should we regard the relationship between the two defendants merely as that of owner and chauffeur — master and servant — the owner should not be held liable for the negligence of the chauffeur, since the evidence shows beyond question that the latter was using the machine merely for his own pleasure. But Ernest was more than a mere chauffeur. He was the minor son of the owner and was using the car for his own pleasure, it is true but with the permission of his father and for one the very uses for which his father kept the vehicle. The evidence discloses that the machine was devoted to the use of the family of which Ernest was a member. It was a pleasure vehicle, and, when used for the pleasure of one of the minor' children of the owner, how can it be said that it was not being used on business of the owner? It is the practice of parents to provide their children healthful and innocent amusement and recreation, and certainly it is as much the business of parentage to supervise and control the pleasures of their children as it is to give them nurture and education. Had Ernest been taking his mother for a pleasure ride instead of taking some of his young friends, no one would contend that he was not on his father’s business; or, had he been using the car on an errand of his own, such as shopping for himself, or going to school, he would have been on his father’s business, since it was the duty of his father to support and educate him. ■ The rule that a father is not liable for the torts of his minor child applies only to cases where the tort is committed without the consent of the parent and without the scope of any duty he owes his child. We conclude that, in running the car with the consent of his father and within the scope of family uses, Ernest was the- agent and servant of his father.”

No question is raised in this case as to the right of the boy to use the car at his pleasure and with his father’s consent. The evidence shows that by permission of his father he purchased the car from Will Brown; that it was kept at a garage; that his father paid the bills and the boy had unlimited authority to call for the car at any time, day or night, and to use it not only within the city limits, hut in making excursions across the country to other towns; and that his mother and father frequently accompanied him on such trips. The father testified that he arranged with the garage owner for the hoy to have the car whenever he wanted it and paid all the hills and stated that whatever the boy did was right. While the boy was away at school for a few weeks, the car was cared for by the father and upon his return was delivered to him. We think the authorities quoted above announce the correct rule of liability and they are cited and adopted as announcing the law applicable to the facts of this case.

Appellant insists that there is nothing in the record to show that De Course Allen was incompetent or reckless, and that the uncontroverted evidence shows him to have been a careful and prudent driver. We think that the testimony of Sherrod and of several of the witnesses, who described the boy’s conduct and management .of the car at the time of the accident, and the admissions of the boy himself, to the effect that he was excited when he saw the danger the ladies were in, and that he just had a faint recollection of it, is sufficient for this purpose, and his father must be held to have known that a boy in his twelfth year, and with only a few months’ expei'ienee, was inclined to be venturesome when intrusted with a vehicle of this kind on the public streets, and that danger necessarily attended his use of the car under such conditions. Thoughtlessness of youth is proverbial, and the reckless, careless disposition of tlie average boy bas always been a matter of common knowledge. The Greek word for “boy” also means “a fool,” and the Hebrew word which means boy is translated “darkness,” to indicate that youth is a dark and dangerous age. Very little evidence along this line was necessary to sustain the plaintiff’s case. The court did not err in refusing the peremptory instructions in favor of the defendant. The courts have gone no further than to hold that an automobile is not per se a dangerous instrument in the hands of a competent driver. In McIntyre v. Orner, supra, the court qualified this nondangerous per se doctrine with the significant words, “when managed by an intelligent and prudent driver.” To the same effect is the language of the court in Daily v. Maxwell, 152 Mo. App. 424, 133 S. W. 353. As heretofore stated, the judgment is, in our opinion, not excessive.

While there are some verbal inaccuracies in the language of the charge, and while the criticisms made by appellant are in some instances tenable, the charge as a whole was a fair presentation of the case, and no such error is pointed out as would justify us in reversing the judgment.

Believing that a proper judgment has been entered, it is affirmed.


author: HENDRICKS; J.

text:
    FIRST NAT. BANK OF WICHITA FADES et al. v. ZUNDELOWITZ.
    (No. 624.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 23, 1914.)
    1. Appeal and Error (§ 527) — Record— Conclusions of Fact and Law.
    Conclusions of fact and law filed by the trial court 28 days after adjournment of court cannot be considered by the appellate court; they not being a part of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-2383; Dee. Dig. § 527.]
    2. Adverse Possession (§ 60)— Hostile Character of Possession — Party Wall.
    A bank, owning the north half of a lot and desiring to build thereon, entered into an agreement with the owner of the other half, whereby the bank was to build its south wall on the line, and, when the other owner built on his half, he was to pay the bank one-half the cost thereof, the covenant to run with the land. The other owner having built and sold to plaintiff, the bank demanded from plaintiff one-half the cost of the wall, who refused to pay and repudiated the covenant, and held possession for 16 years thereafter. Held, that plaintiff had acquired title by adverse possession, as limitations began to run from the repudiation of the covenant; the 10-year statute of limitations being applicable.
    [Ed. Note. — For other cases, see Adverse. Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.]
    3. Adverse Possession (§ 63) — Hostile Character of Possession — vendor and Purchaser.
    A vendor may retain title to land as against the vendee as security for the purchase money, and the vendee’s possession is not ordinarily adverse, but, on repudiation by the vendee, adverse possession begins to run from that time, notwithstanding the title of the vendor.
    [Ed. Note. — For other cases, see Adverse Possession, Gent. Dig. §§ 333-357; Dec. Dig. § 63.]
    4. Party Walls (§ 8) — Right of Support. The easement to an adjoining building by a party wall is the right of support of the wall.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 24r-41; Dec. Dig. § 8.]
    5. Injunction (§ 108) — Action fob Injunction — Defenses.
    In an injunction suit by an adjoining owner against a bank seeking to compel the bank to close an opening in plaintiff’s wall, it was not a condition precedent to the relief prayed that plaintiff should comply with a previous agreement to pay one-half the cost of the party wall in which the opening was cut.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 184-186; Dec. Dig. § 108.]
    Appeal from District Court, Widuta. County ; P. A. Martin, Judge.
    Injunction suit by A. Zundelowitz against the First National Bank of Wichita Falls and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part and reversed and rendered in part.
    R. E. Huff and Mathis & Kay, all of Wichita Falls, for appellants. Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

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

   HENDRICKS; J.

On the 2d day of June, 1892, the Panhandle National Bank, the predecessor of the appellant, the First National bank of Wichita Falls, was the owner of the north half of a business lot, 50x150 feet in size, in said town, and Kean & Coffield were the owners of the south half of said lot, and upon said date they entered into the following party wall agreement:

“That whereas the said bank is the owner of the north half of lot one (1), block one hundred and sixty-four (164),' in the town of Wichita Falls, Texas, and the said Coffield & Kean expect to build on their lot, but are not now ready: It is thereupon agreed between the parties that the said bank may at once proceed to erect a two-story brick building on the north half of said lot one (1), block one hundred and sixty-four (164), and shall place its south wall exactly over the dividing line, between the north half and the south half of said lot one, the said wall to be 80 feet in length and not exceeding 36 feet in height above the ground and to be 13 inches in width. The said bank is to erect its own building and to pay all expenses of same for the present, excepting that if Cof-field & Kean desire to have openings left in the south wall of the bank building now they shall pay the extra expense of said opening.
“W. T. Coffield and A. C. Kean, as owners of the south half of lot one (1), block 164, for themselves and their heirs and assigns, hereby agree and bind themselves to pay one-half of the actual cost of the south wall whenever they shall build .on their lot and join to said wall. The said payment to be made without interest, and also without deduction for deterioration of the wall by lapse of time.
“This contract to be a covenant running with the land, and in case of change of ownership on either lot the liability and privilege to pass to the assignee of either side and be performed by said assignee; the actual cost of the south wall to be ascertained by agreement of parties, when completed, or, in case of failure to agree, to be fixed by each side selecting a practical brickmason who shall estimate the cost, and said two may select a third man to assist in making estimate and the amount when fixed in either manner shall be attached to this contract and become the amount to be paid under this contract.
The cost of said wall to be computed at the ruling price of plain brickwork such as enters into south wall at the time of the erection of wall.’'

The bank built a brick house on the north half of said lot, constructing the south wall of said building one half over the dividing line between the property. We are unable to ascertain from the evidence the length, height, and thickness of the south wall; the pleadings indicate that said wall is 100 feet in length, and the evidence discloses that the wall is three stories in height, constructed by said bank, and the adjoining wall thereafter attached to same is 29 feet in height of a two-story building; but the question whether the bank constructed a south wall in conformity with the contract does not seem to be raised or litigated in this cause. The appellee, petitioner for the injunction, sets up that the wall was constructed under an agreement as a party wall, and does not deny that the bank did not build the wall in accordance with said written contract.

On the 23d of February, 1893, Coffield & Kean sold their south half of said lot, conveying the same by deed to one Finkelstein, who constructed thereon the adjoining building, two stories in height and 100 feet in length, connecting to the bank’s wall; and through a foreclosure sale, on account of a mortgage executed by Finkelstein, the ap-pellee, Zundelowitz, became the possessor and owner of the building upon the south half of said lot in July, 1894, renting and enjoying the use of the property since that time.

Several years ago, just when we are unable to definitely ascertain, an agreement was made between the appellee and the bank that the latter could cut an opening into the division wall to permit egress from the bank building to appellee’s building, for the use of a stairway in, or annexed to, the latter’s building, entered from a public street of said city; the bank cut an arched opening in the wall for that purpose, but there is some variation in the testimony as to the consideration and terms of said agreement, especially in regard to the use of the toilet in the bank’s building by appellee’s tenants, which he asserts the bank granted, and which the bank denies; and, further, it- is contradicted whether it was agreed that the opening would be closed by the bank at any time upon appellee’s demand, asserted by appel-lee that it was so agreed, and also denied by the appellant.

The appellee filed this suit for injunction, praying that the appellant bank be required to close said opening, or that all of said appellants be restrained from interfering with him in closing same, which latter relief, upon final hearing, was granted by the trial court.

The trial court filed conclusions of fact and law 28 days after the adjournment of court, which we are unable to consider as an aid in the determination of this cause; legally "they are not a part of the record. We are remitted to the judgment, and any predicable theory upon the statement of facts in aid of the decree, in determining the cause.

The evidence discloses that prior to the institution of the suit the bank refused ap-pellee’s demand to close the opening, or to permit him to close it, refusing the latter’s right to do so, with assertions carrying the meaning that an attempted performance toward that end would be resisted.

When Finkelstein, the grantee of Coffield & Kean (the latter having made the party wall contract), constructed the adjoining building and joined to the division wall, no demand was made by the bank, at least the evidence does not exhibit any, of payment for any proportionate interest in said wall used by said Finkelstein; but about two years after Zundelowitz purchased the property at foreclosure sale the bank notified him of the party wall contract, and which was of record, asserting a claim, and demanding payment, for an interest in the wall, which was refused by appellee. He testified:

“I just told them I didn’t owe anything, and was not going to pay it. I told ’Mr. Huff at the time I went to see him that I was claiming it [meaning the wall].”

Appellee testified that the cashier of the bank upon this oeasion had informed him that the bank had a claim against him in regard to the wall, and that he immediately went to the president, 1-Iuff, and discussed the matter with him, and asserts that the latter stated, “Don’t mind, there is nothing to it.” He also testified, “1 have been claiming a half interest in that wall at all times since I have been occupying the building,” and which period has been about 18 years to the time of the institution of this suit, and about 16 years since his repudiation of the party wall agreement to the time said suit was filed.

The bank’s main proposition in this cause is as follows:

“The court erred in granting injunction herein, for that the plaintiff wholly failed to show any title or interest in the wall in which opening is ordered closed, or any right or easement therein ; the proof showing that such wall had been buildcd under an agreement with defendant bank and those under whom plaintiff claims, by which plaintiff was bound to pay the cost of the wall. Plaintiff had never paid the charge, and could own no right until he did pay.”

The evidence clearly discloses that this very covenant, if it exists, was repudiated by appellee upon demand made by the bank that he pay for the wall, and by virtue of such repudiation necessarily carrying with it an adverse assertion to the bank oí an easement in the wall, for the purpose of supporting the building owned and used by him. This adverse possession continued for about 16 years before the institution of the suit. A vendor may retain the title to land as against the vendee, and the vendee may not obtain the title until he pays for the land, and his possession of the same is ordinarily not adverse; but, when repudiated by the vendee, the adverse possession begins to run from the time of the repudiation, and, notwithstanding the title of the vendor, the vendee may ripen his adverse possession into a title by limitation. Smith et al. v. Pate et al., 91 Tex. 596, 45 S. W. 6. The easement to the adjoining building by the party wall is the right of support of said wall for that purpose. Of course appellant asserts title to the whole wall, and concedes to appel-lee the land upon which the half of the wall is a fixture. There are numerous authorities announcing the proposition that 20 years’ prescription is applicable where the use and possession of the wall as a support is adverse and enjoyed for that length of time.

The constant trend of the authorities in this state is that the 10-year statute of limitations as to an easement in land is applicable. Rippetoe v. Low, 1 Posey, Unrep. Cas. 482; Shepard v. Galveston, H. & H. R. Co., 2 Tex. Civ. App. 565, 22 S. W. 268; Capps et ux. v. Texas & Pacific Ry. Co., 21 Tex. Civ. App. 84, 50 S. W. 643; Railway Company v. Caldwell, 102 S. W. 461; Railway Company v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 714.

Appellants, however, say that it is equitable that appellee should pay one-half of the cost of the wall as a prerequisite to the relief to close the opening, citing a line of cases illustrated by Goldfrank- & Co. v. Young, 64 Tex. 432, which is to the effect that the execution of a power of sale in a deed of trust, outside of court, could not be enjoined without tendering the amount of the debt secured by the mortgage, though the debt was barred by the statute of limitation. It is not necessary to review that case; the reading of it discloses the grounds and principles upon which the same is bottomed, drawing distinctions between a debt barred by the statute of limitations, which affects the remedy, and other actions affecting other rights. In this case, - assuming argumentatively every other contention made by appellant, however, if the appellee acquired the title to the easement or to a half interest in the wall resting upon his land, by the ten-year statute of limitations, it is as good a title to the property as one acquired by grant, deed, or otherwise. We are not concerned, of course, with the credibility of the witnesses, but we have to impute the finding of the court that the agreement with reference to the opening of the division wall into ' appellee’s building was agreed to in accordance with appellee’s testimony, and his theory of the cause. If that be true, appellant failed to comply with said agreement, and' there is no assignment in this record questioning it by the statute of frauds or in any other manner, even if it could be questioned. As an original proposition, we seriously doubt whether a litigant in an injunction suit can answer the injunctive relief prayed for by his opponent by asserting that a failure of compliance with a previous agreement is a bar to equitable relief to the other party attempting to exact compliance with a subsequent agreement, which the court finds is also not complied with by the party antagonizing the relief.

We think the showing is amply sufficient for the $20 judgment in regard to the insurance, but believe, however, that the judgment against Huff and McGregor, as individuals, should not have been rendered. It is true that their language at the time demand was made to close the opening was inferential in its meaning that, if the opening was attempted to be closed, they would resist such an attempt, but it is further coupledi with the statement that this would be resisted until the court adjudicated the matter. These statements were sufficient to make them proper parties to the suit; but their answer, in the nature of a disclaimer, we believe, should have precluded them thereafter as individual parties to the suit, and an injunction against them as officers and representatives of the bank, as prayed for by ap-pellee, was sufficient.

The judgment against-them as individuals for costs of the proceeding in the lower court after the filing of said answer is reversed and rendered in their favor, but ordered that the appellant bank pay all the costs of this appeal.

In all other respects the judgment is affirmed. .