author: LEVY, J.

text:
    HAVARD v. CARTER-KELLEY LUMBER CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 26, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Appeal and Error (§ 66) — Final Judgment-Necessity.
    If the judgment appealed from is not final, the Court of Civil Appeals has no jurisdiction to entertain the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. § 66.]
    2. Appeal and Error (§ 76) — Judgments Appealable — “Final Judgmfn ¡.”
    Tlie test of whether a judgment is final and appealable is whether it disposes of the whole controversy as to all parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426-428, 430, 431, 435-443; Dec. Dig. § 76.

    For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]
    3. Appeal and Error (§ 80) — Judgments Appealable — Final Judgment.
    Where the petition in trespass to try title prayed for an adjudication of title and possession in plaintiff, and for damages for converting timber thereon, and the answer merely set up ownership to the timber, a judgment which awarded plaintiff damages was not final and ap-pealable, not disposing of the.issue of title.
    [Ed. Notei — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 482, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    4. Trespass to Try Title (§ 34) — Disclaimer.
    A disclaimer by a defendant in trespass to try title is only an admission upon record of plaintiff’s right to recover title, and a denial of the assertion of any title by defendant.
    '[Ed. Note. — For other cases, see Trespass to "Try Title, Dec. Dig. § 34.]
    Appeal from District Court, Angelina County; Ros Young, Special Judge.
    Action by S. W. Havard against the C-ar-ter-Kelley Lumber Company. From a judgment in part for plaintiff, hie appeals.
    Appeal dismissed.
    Claiming to be the owner in fee simple of the east half of the James Warren 240-acre survey, the appellant brought the action in trespass to try title, and to recover damages for the alleged conversion of the pine timber thereon, against appellee. By its amended original answer, the appellee pleaded that it was the owner of all the merchantable pine timber growing on the east half of the James Warren 240-acre survey, through conveyance from Frances Havard, surviving wife of W. F. Havard, deceased, to Wm. Cameron & Co., Incorporated, and by conveyance from Cameron & Co. to appellee. The plaintiff offered in evidence a patent from the state of Texas to Jeremiah Havard, assignee of James Warren, for 240 acres of land, dated December 5, 1860. It was then agreed in open court: (1) That W. FÍ Havard is the common source; (2) that W. F. Havard was the husband of Frances Havard, from whom Wm. Cameron & Co. purchased the timber; (3) that W. F. Havard, ⅜ his death in 1894 or 1895, owned the 120 acres in controversy; (4) that it was community property, and the homestead of himself and wife, Frances; and (5) that at the death of W. F. Havard he left surviving him his wife, Frances, and 12 children, of whom plaintiff was one. Caroline Havard, one of the children, died after 'institution of this suit. Appellant then introduced in evidence a deed to himself dated June, 1906, from the heirs of W. F. Havard, deceased, except Annie and Caroline Havard, and also a deed from Frances Havard to J. L. and C. J. Havard, describing the land in suit. ’ The defendant offered in evidence a timber deed to the timber on the feast half of the James Warren survey, dated May 8,1902, from Frances Havard to Wm. Cameron & Co., and then a deed from Cameron & Co. to itself for the timber. The appellee offered evidence going to show that, prior to the time of the deed from Frances Havard to Wm. Cameron & Co., Mrs. Havard and all her children, except Caroline Havard, had an agreed partition of their land, and that the children agreed that Mrs. Havard take as her part of the community estate of herself and deceased husband the 120 acres described in plaintiff’s petition. The court submitted special issues to the jury to find whether an agreed partition was made, and whether ap-pellee had disaffirmed the same after reaching majority, besides the findings on quantity of timber cut and its value. On the findings of the jury the court entered judgment that appellant recovered the sum of $35.04, and interest, against appellee, being one twenty-second of the total value of the timber cut, and that same proportion of court costs to be recovered by appellant, and appellee to recover twenty-one twenty-seconds of the costs. The title to the land sued for was not disposed of in the judgment, but, so far as the record shows, was undisposed of by any judgment of the court.
    W. J. Townsend, Jr., of Lufkin, for appellant. Manto oth & Collins, of Lufkin, for ap-pellee.

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

   LEVY, J.

(after stating tile facts as above).

The judgment as entered in this case fails to make disposition of the title to the land, placed in controversy by the petition of the plaintiff, and the question is thereby presented of whether such judgment, in view of the pleading, can be characterized as a final one. Such question, raised on our own motion, must first be determined, for, if the judgment is not legally a final one, this court, under the statutes and numerous decisions, would not have jurisdiction to entertain the appeal.

As said in Linn v. Aramboult, 55 Tex. ■611, the test of a final judgment was thus truly stated by Justice Smith: “When the whole of the matter in controversy is disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ of error can be taken.” To like effect and application is the case of Frank v. Tatum, 20 S. W. 869.

And the test must be according to the pleadings placing the matters in controversy between the parties. The petition here declared on an action in trespass to try title to land, and for damages for conversion of timber thereon. The prayer in the petition was for title and possession of the land, and for damages. Thus, according to the petition, ^the matters placed in controversy, and calling for judicial disposition, were the title to the land and as well damages for taking the timber thereon. The defendant sued was thereupon legally called upon to make answer as to both of such matters alleged by the plaintiff. As the petition, which the court must look to, stated the rights claimed by the plaintiff, his ownership of the land, in order to recover, was the primary right to be settled, and the right to the timber followed as the legal incident of the ownership of the land. It was not a case, as pleaded by the petition, for claim of timber only. If the petition had claimed title to the land, and asked say $25, or even $400, as damages for timber taken, the district court would nevertheless have jurisdiction to try the case, because the title to the land would have determined the jurisdiction. But, on the other hand, if the petition had not declared on title, but had only claimed damages say for $400 or less for cutting and removing timber that the plaintiff asserted some right in, the district court would not have jurisdiction.

Now, the defendant in this case made answer to the claims of the plaintiff, as made by his petition, by demurrer, and by plea setting up ownership to the timber on the land through conveyances under the mother of plaintiff. So, considering tie character of the plea made by the defendant to the plaintiff’s claim under his petition, it would appear that the defendant was not making any claim of ownership of the land, but ownership only of the timber thereon. And the legal effect of the answer of defendant would be a disclaimer merely on the part of the defendant to any title in the land itself, or else a failure to make any answer to the claim of title to the land. But giving effect to the answer of a disclaimer of any title to the land, or a failure in this respect to make answer at all, it would not operate to so change the legal character of the action as to make the suit a suit in the first instance, considering the petition and prayer, purely one for damages. The effect given to a disclaimer is only an admission upon the record of the plaintiff’s right to recover the title to the land, and a denial of the assertion of any title to the land on the part of the defendant. Herring v. Swain, 84 Tex. 525, 19 S. W. 774. And the effect to make answer at all is a default judgment for plaintiff for the land. Article 7750, Rev. Oiv. St. 1911. The court, nevertheless, would be called upon to dispose of the question of title by a formal judgment; it being placed in controversy as an issue to be settled between the parties by the petition. For the effect of the disclaimer was not to withdraw further from the suit the right of plaintiff to have judgment by the court for the land sued for, but only the denial in point of fact by the defendant that he has any claim to the land. And unless the title sued for by the plaintiff is disposed of by the court by a formal judgment, then all the matters considered from the petition before the court in this case, and which the court must look to, could not be said to have been disposed of by the court. And as a consequence the judgment in the record, considering the pleadings, fails to meet the test laid down by the decisions that characterizes a judgment as a final judgment. It is not made clear by the record, and we could not say from the record, that the parties here treated the answer, in practical construction, as a disclaimer of title, or nonanswer as to title to the land, for it appears that the plaintiff introduced and insisted upon evidence of his title. And even if the parties had treated the case, so far as conveniently offering evidence is concerned, as one ultimately to determine the right to the timber, yet, nevertheless, considering the character 0¾ suit made by the petition, when the time came for pronouncement by the court of a complete final judgment, it was required as a judicial action on the part of the court that the matters and all of them made a controversy by the petition as well as by the answer be regarded and disposed of by the court.

A motion was made to strike out the briefs; but we overrule such motion, concluding, as we do, that the waiver of service attached to the reply impliedly waives the filing in the district court. But, if we had sustained the motion, we would necessarily, under the rules, have had to pass on the record to determine our jurisdiction, and the same ruling as now would have resulted.

The appeal is dismissed for want of jurisdiction.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    COX v. GARROW et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1913.
    Rehearing Denied Jan. 15, 1914.)
    1. Judgment (§ 251) — Conformity to Issues — Ckoss-Complaint—General Denial.
    Where cross-complainant, in trespass to try title, claiming an undivided interest, relied on the theory that a conveyance to the defendant in the cross-action was in trust, such defendant, having pleaded only the general issue, was not entitled to an affirmative judgment for an interest in the land, as against cross-complainant, based on his purchasing at a specific price and thereby obtaining a specific interest.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    2. Vendor and Purchaser (§ 79) —Construction of Contract — Conditions — Rights of Parties.
    Where a grantor conveyed land in consideration of the grantee’s advancing a specified sum in cash and paying a specified sum annually for five years, and any additional amounts necessary for the grantor, and in further consideration of the grantee undertaking to clear the title and sell the property and receive for his compensation a half of the net proceeds, the grantee, to secure a vested interest, must undertake to clear the title, pay the money, and sell the land, and, where he merely paid part of the money, he was not entitled to judgment giving him a substantial interest in the land.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 7, 8, 127-131; Dec. Dig. § 79.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by J. W. Garrow and others against J. Wade Cox and others. Erom a judgment for plaintiffs against all of the defendants and in favor of defendant Pruett against defendant J. Wade Cox, the latter appeals.
    Affirmed.
    W. O. Huggins and Daniel E. Garrett, both of Houston, for appellant. Hunt, Myer & Teagle and Lewis, ICinnard & Norton, all of Houston, for appellees.

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

   HARPER, C. J.

This suit was instituted by J. W. Garrow and others, heirs of John T. Brady, deceased, in form of trespass to try title to 1S.41 acres of land, against Frank Taylor, Dorothea Eggert, Emma Pruett, and J. Wade Cox.

Defendant Cox answered by plea of not guilty, general denial, an assertion of. title to the land described in plaintiff’s petition, pleaded ten years’ statute of limitation, and that if plaintiffs should recover the 18.41 acres sued for, or any part thereof, that he have judgment upon covenant of warranty in and from defendant Pruett to him.

Defendant Eggert pleaded general denial, not guilty, asserted title to one half interest in land sued for, and admitted that defendant Pruett owned the other half of the 18.41 acres and all of the 50 acres lying north of the land described in plaintiffs’ petition.

Defendant Pruett answered by general denial, not guilty, and, by way of cross-action against defendant Cox, alleged that her father, Christian Eggert, purchased from W. R. Baker 50 acres of land, being a part of the league originally granted to P. W. Rose, as shown by deed to said Eggert from said' Baker, of date May 19, 1858, recorded in Book U, pp. 136 and 137, of the Deed Records of Harris county, Tex., here referred to; that Christian Eggert afterward purchased the same tract of land from A. H. Hodge and afterward with his family occupied said 50 acres of land, together with about 18 acres situated next to and adjoining said 50 acres on the south, as a home for a period of about 34 years, “possession and occupancy, being the basis of his claim to all but the 50-aere tract”; that about 20 years ago said Christian Eggert moved with his family to Houston, and since said time said land has been occupied by tenants of the defendant Pruett and Eggert; that some time in 1890 “Christian Eggert died intestate, leaving said land to the defendant Pruett”; that in October, 1896, the defendant Eggert conveyed to the defendant Pruett her interest in said 50 acres of land; that appellant Cox proposed to her that if she would place the title to said land in his name, and he would supply and advance to her $500 in cash and $500 each year for five years, together with such additional amounts as she might need,^ and he would undertake to- “clear” the limita-0 tion title to said 18 acres of land, paying all expenses incident thereto, and at some favorable opportunity sell all of the land and as his compensation for this, he was to receive one-half of the net proceeds of such sale; that she accepted said proposal and executed an instrument which she understood to be intended to carry the same into effect, and appellant advanced to her $500 in cash and executed notes payable in five annual installments for $500 each representing the balance; that afterward appellant paid the first three of said notes when they became due; that appellant made no effort to perfect the title to said 18 acres of land and performed no part of his said undertaking, except to pay said three notes; that, after this suit was filed, appellant' repudiated said agreement, whereupon the defendant Pruett rescinded same and tendered to appellant the sums which had been advanced to her incident to same and presented to appellant a deed to be executed by him, reconveying the title to her, which he refused to sign. She prayed for title to the land as against appellant and a cancellation of the deed and notes, upon the return by her to appellant of the amounts advanced, or upon such terms as should be found equitable, and for general relief. To this plea of defendant Pru-ett, Oox answered by general denial.

Tried before jury, verdict in favor of plaintiffs for the 18.41 acres against all of the defendants, and in favor of defendant Pruett against J. Wade Cox for the 50-acre tract, canceling the deed from Pruett to Cox and the vendor's lien notes incident thereto upon the repayment by Pruett to Cox the moneys advanced.

Appellant's first and second assignments of error complain that the court erred in not instructing a verdict for appellant against defendant or appellee Pruett; his proposition being that the verdict is against such a' preponderance of the evidence that it is proper that this case be reversed and remanded. The evidence is sufficient to sustain the verdict of the jury.

Appellant’s third assignment is as follows: “The court erred in giving in charge to the jury the third paragraph of his charge, which is as follows: ‘If you believe from the evidence that the instrument executed by Mrs. Emma Pruett to the defendant J. Wade Cox of date October 26, 1908, which on its face is a deed from the said Mrs. Pruett to the said Cox, was intended by the parties thereto as a deed of trust, for the purpose of carrying out the alleged objects and intentions of the parties thereto, as stated by Mrs. Pruett in her cross-bill herein against the defendant Cox, and that thereafter the defendant Cox repudiated and denied said trust and agreement, if any, as alleged, then, if you so find these facts, you are charged that said trust would terminate, and the title to said land would not pass from Mrs. Pruett to the defendant Cox, and that the said Mrs. Emma Pruett would be entitled to recover from the defendant Cox the title to all of the land described and purported to be conveyed therein, and to judgment canceling the said deed, and that in such event the defendant Cox would be entitled to judgment against the said Mrs. Pruett for all moneys paid by him to her in said transaction, with 6 per cent, interest per annum from the date of the respective payments up to the 8th day of March, 1912, and the said Cox would also be entitled to judgment canceling the two unpaid vendor’s lien notes held by Mrs. Pruett. If, on the other hand, you should not believe from the evidence that said instrument was executed in pursuance of the trust agreement alleged, then you are instructed that said instrument would convey all of the right, title, and interest of the said Mrs. Emma Pruett to the land described therein, subject to a lien in her favor for the two unpaid purchase-money notes.’ ” His proposition being that, assuming the theory advanced by defendant Pruett to be that the land was simply conveyed in trust, Cox bought at a specific price a specific interest in the land to which he now has the legal and equitable title.

The only pleading filed by the appellant, Cox, in answer to the allegations of Eggert and Pruett, is a general denial. This would be sufficient to permit evidence to be introduced but would not support an affirmative judgment for an interest in the land as against defendant Pruett, even though the facts would support such an interest. Winn v. Gilmore, 81 Tex. 345, 16 S. W. 1058; Rivers v. Foot, 11 Tex. 662; Guess v. Lubbock, 5 Tex. 535.

The defendant Pruett pleaded that the title to the land was placed in the name of Cox for the following consideration and purposes, viz., he to advance $500 in cash and $500 each year for five years thereafter and any additional amounts she might need, he to undertake to clear the title to the limitation title to the 18 acres, pay all expenses incident thereto, and at some favorable opportunity sell all of the land, and as his compensation for all this he was to receive one-half of the net proceeds of such sale.

Now, in order for Cox to secure the vested interest (aside from the pleading necessary), he must have undertaken to clear the limitation title to the 18 acres, pay the moneys, and sell all of the land’; according to the pleading and evidence he did attempt to clear the title to the 18 acres, but in himself. He paid some of the money, but for himself (i. e., that he have the fee-simple title to all the land), thus asserting that he will not undertake to do the last and most important part, sell the land, and divide the amount it might bring over the sums paid by him to his codefendant, and then asks this court to find that this is a compliance of a condition subsequent which gives him a substantial interest in the land in controversy.

The assignment is pverruled, and, since the other a’ssignments urge the same proposition in one form or another, they are also overruled without further comment.

Affirmed.


author: MOURSUND, J.

text:
    HICKS v. MURPHY et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.
    Rehearing Denied Jan. 7, 1914.)
    1. Appeal and Erbob (§ 218) — Questions Reviewable — Failube to Submit Issues.
    Under Rev. Civ. St. 1911, art. 1985, providing that the failure to submit any issue shall not be a ground for reversal, unless such submission has been requested by the party complaining, a party who permits the submission of a case on issues framed by the court, without requesting the submission of additional issues, may not complain because other issues were not submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1321, 1323;. Dec. Dig. § 218.]
    2. Injunction (§ 241) — Damages foe Delay —JURISDICTION OF COURT.
    Rev. Civ. St. 1911, art. 4667, providing that, on the dissolution of an injunction, the court, if satisfied that the injunction was obtained only for delay, may assess damages at a percentage on the amount released by the dissolution, confers on the trial court jurisdiction to determine whether an injunction dissolved on final hearing was sued out for delay.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 54iL552; Dec. Dig.- § 241.]

      3. Appeal and Error (§ 242) — Questions Reviewable — Questions Not Raised in Trial Court.
    Where the trial court made no ruling, the point is not reviewable on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1417-1425; Dee. Dig. § 242.]
    4. Costs (§ 260)—Appeai^-Damages por Delay-Statutory Provisions.
    Rev. Civ. St. 1911, art. 1627, authorizing the award of damages not exceeding a specified per cent, on the amount of the judgment affirmed, does not authorize the assessment of damages on the affirmance of a judgment dissolving an injunction restraining a sale under a deed of trust, because there was no judgment for any sum of'money.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.1
    5. Costs (§ 260)—Appeal—Damages por Delay-Statutory Provisions.
    Rev. Civ. St. 1911, art. 1629, authorizing damages at 10 per cent, of the amount in dispute, where the party appealing was defendant and appealed foy delay, does not authorize the court to award damages on an appeal by plaintiff from a judgment dissolving a temporary injunction obtained by him, though the appeal was taken for delay.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dee. Dig. § 260.]
    Appeal from District Court, Bexar County; J. L. Camp,, Judge.
    Action by E. G. Hicks against J. E. Murphy and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    McFarland & Lewright, of San Antonio, for appellant. C. A. Davies and Geo. M. Clifton, both of San Antonio, for appellees.

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

   MOURSUND, J.

Appellant sought by this suit to restrain the sale by appellees of certain land under a power of sale given in a deed of trust. A temporary injunction was granted, which, upon answer being filed, was dissolved. An appeal was taken and decided adversely to appellant by this court (See 151 S. W. 845), and a writ of error denied by the Supreme Court prior to the trial upon the merits in the lower court. Reference is made to our former opinion for a statement of the allegations contained in the petition. An amended answer was filed prior to the trial upon the merits, but it is not necessary to state the allegations thereof. The trial resulted in a verdict for appellees upon the special issues submitted, upon which verdict judgment was entered refusing the injunction prayed for.

Only two assignments of error are briefed. By one, complaint is made that a certain disputed issue was not submitted to the jury; by the other, that the court failed to submit all the disputed issues to the jury. The case was submitted upon special issues, and appellant, having permitted the case to go to the jury upon the issues framed by the court, without requesting that additional issues be submitted, cannot complain because other issues were not submitted. Article 1985, Revised Statutes, 1911; Henyan v. Trevino, 137 S. W. 458; Hall v. Southland Immigration Co., 53 Tex. Civ. App. 592, 116 S. W. 834; Mabry v. Lumber Co., 47 Tex. Civ. App. 443, 105 S. W. 1156. The assignments are overruled.

Appellees ask that we render judgment in their favor for 10 per cent, upon the amounts for the payment of which they sought to-sell the land under the deed of trust. They cite articles 4667, 1627, and 1629 (Statutes of 1911) in support of their plea for damages.

Article 4667 confers upon the trial-court jurisdiction to determine whether an. injunction was sued out for delay. Carpenter v. First Natl. Bank, 53 Tex. Civ. App. 23, 114 S. W. 905.

No ruling was made by the trial court on the question, so there is none for us to review.

Articles 1627 and 1629 authorize us to assess damages in certain cases.

Article 1627 authorizes damages to be included not exceeding 10 per cent, on the amount of the original judgment. In this case there was no judgment for any sum of money.

Article 1629 authorizes damages in the sum of 10 per cent, on the amount in dispute, where the party appealing was defendant below, and appealed for delay. The appellant was not defendant below, nor was any money judgment sought to be procured against him. We think the appeal was taken for delay, but we are not authorized by any statute to impose á penalty in a case of this kind, even though the appeal be taken for delay. However, we do not wish to be understood as holding that the appeal and super-sedeas bond had the effect of preventing ap-pellees from proceeding with the sale of the land. Article 4644, Revised Statutes 1911; Williams v. Pouns, 48 Tex. 145; Ft. Worth Street Ry. Co. v. Rosedale Street Ry. Co., 68 Tex. 163, 7 S. W. 381; Electric Park Co. v. San Antonio Baseball Association, 155 S. W. 1189.

The judgment is affirmed.


author: HIGGINS, J. McKENZIE,-J. HIGGINS, J.

text:
    AMERICAN EXPRESS CO. v. PARCARELLO et al.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.
    On Rehearing, Dec. 4 and 8, 1913.
    Further Rehearing Denied and Dissent Certified to Supreme Court Jan. 15, 1914.)
    1. Death (§ 33)—Action for Negligent Death—Liability oe Corporations.
    Under Rev. Civ. St. 1911, art. 4694, authorizing a recovery for death caused by the wrongful act, negligence, or default of another, damages for death may be recovered from a business corporation only where the death was caused by the wrongful act, negligence, or default of the corporation itself, as eontradistin-guished from that of its mere agents and servants.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.]
    2. Death (§ 33) — Action fob Negligent Death — Liability of Corporations.
    Where a local agent of an express company could take out an animal used in driving, where it for any reason became unfit for service, and could hire another temporarily, his duty to displace unsuitable animals was the duty of the company, and he represented the company in its corporate capacity, and his negligent failure to displace unsuitable animals was that of the company, within Rev. Civ. St. 1911, art. 4694, authorizing a ■ recovery for death caused by the neglect of another, though a corporation is liable only when the death was caused by its wrongful act, as contradistin-guished from that of its mere agent or servant.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.]
    3. Animals (§ 70*) — Injuries by Animals— Liability of Corporations — Notice.
    Where an express company retained in its service for five or six months vicious, unruly, and dangerous mules used in its business, the jury could find that it knew, or, in the exercise of ordinary care, could have known, of the viciousness of the mules, so as to charge it with negligence, and hold it liable for death of a person in a collision between vehicles as a result of the viciousness of the mules.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 225, 228-237; Dec. Dig. § 70.]
    4. Death (§ 104) — Instructions—Construction.
    In an action for negligent death in a collision between vehicles, caused by the viciousness of a team of mules belonging to defendant, a corporation, an instruction that if the team was uncontrollable and was known to be so by defendant, or would have been known to be so by the exercise of ordinary care, and if the collision was caused by the fact that the team was uncontrollable, and defendant in the exercise of ordinary care should have foreseen that an accident of like character was liable to happen, it was liable, predicated liability on the negligence of defendant as distinguished from the negligence of its agents or servants.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.]
    5. Appeal and Ebbob (§ 216) — Objections —Instbuctions—Requests—Necessity.
    Where an instruction in an action against a corporation for negligent death predicated liability on the negligence of the corporation, but did not define the relationship of a vice principal, as distinguished from a mere agent or employs, the corporation, desiring a more complete instruction, must request one or it cannot complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    6. Coepoeations (§ 428) — Notice to Agents.
    A requested instruction in an action against a corporation for negligent death in a collision between vehicles, caused by the viciousness of a team of mules belonging to the corporation, which makes the liability of the corporation depend on the knowledge of the character of the mules by an officer or officers, is properly refused, since knowledge of any agent sustaining the relationship of a vice principal fixes liability.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dee. Dig. § 428.]
    7. Appeal and Ebbob (§ 216) — Instructions— Requests — Sufficiency.
    A corporation when sued for negligent death must request a correct charge distinguishing between its representatives for whose negligence it is liable, and those for whom it is not, and it cannot complain of the failure of the court to frame correct instructions in lieu of improper requested ones on that subject.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216 ; Trial, Cent. Dig. § 627.]
    On Rehearing.
    8. Appeal and Ebbob (§ 688) — Questions REVIEWABLE — IMPEOPEB ARGUMENT OF Counsei>-Bill of Exceptions.
    Under Courts of Civil Appeals rules 39, 41 (142 S. W. xx), requiring counsel to confine the argument to the evidence and the argument of opposing counsel, and that the court need not wait for objections when the rules as to arguments are violated, but opposing counsel may ask leave to present his point of objection, a bill of exceptions complaining of improper argument, which sets forth the argument and the exceptions thereto, and the failure of the court to take any action thereon, is sufficient to present the point on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2894-2896; Dec. Dig. § 688.]
    9. Trial (§ 121) — Misconduct of Counsel —Improper Argument.
    Where, in an action against a corporation for negligent death, the case for plaintiffs, decedent’s widow and children, depended on the testimony of two witnesses who had made statements to the corporation which conflicted with their testimony, and the testimony of other witnesses was in harmony with the statements, and there was nothing”to show that the statements were improperly obtained, the argument of plaintiffs’ counsel asking the jury whether they would take the statements against the sworn evidence in behalf of plaintiffs, and inquiring whether it was fair to them to take from them their rights on statements obtained ex parte, and that it was a rule among corporations to take statements, and that there was no more reprehensible practice than that of taking statements and bringing them into court to contradict a witness, and then denounce him as a liar, was reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 29A-298, 300; Dec. Dig. § 121.] •
    Higgins, J., dissenting in part.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Lena Parcarello and others against the American Express Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, Walter H. Walne, and Jesse Andrews, all of Houston, for appellant. John Lovejoy and J. W. Parker, both of Houston, for appellees. .

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

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

   HIGGINS, J.

This suit was brought by the surviving wife and children of Peter Parcarello against the American Express Company for damages arising from injuries resulting in death, under the second subdivision of article 4694, Revised Civil Statutes of 1911. The deceased received the injuries from which death ensued by being thrown from a wagon in which he was sitting on Main street in the city of Houston, when one of the defendant’s wagons, driven by one of its employes, came in contact therewith. It was averred that the mules drawing the wagon were headstrong, hard-mouthed, unbridlewise, unruly, and uncontrollable; that the defendant was negligent in employing said mules in drawing its wagons, knowing them to be of the character and disposition- described, or of which it would have known by the esercise of ordinary care. We find that the deceased came to his death through the negligence of defendant, and upon his part that he was free from negligence contributing to his injuries.

Under the second section of the article quoted above, damages on account of injuries resulting in death may be recovered of a corporation such as appellant only when the death of deceased is caused by the wrongful act, 'negligence, unskillfulness, or default of the corporation itself, as contradistinguish-ed from that of its mere agents and servants. Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250.

It is insisted the evidence wholly fails to convict appellant of negligence in employing in its service the mules in question; that the negligence of its local agent, Frazier, in this respect cannot be imputed to the company, as he was not a vice principal, and a peremptory instruction in its behalf should have been given. In this view we cannot concur. It is quite true the drivers Thrift and Chandler were mere employés, and that their knowledge of the vicious, unruly, and dangerous disposition of the animals would not convict appellant of negligence in retaining them in use, but the knowledge of Frazier would. While Frazier had nothing to do with the original selection of the animals and their installation in the company’s service, and the agent of the company who did so may have been free from negligence in this respect, yet the evidence discloses that, if an animal for any reason became unfit for service, Frazier had the authority to take him out and hire another one temporarily until he could procure a proper one from Kansas City, at which point the com-, pany procured its animals and had a man to make purchases for it. In respect to his duty to displace unsuitable animals, Frazier performed a corporate duty, and acted not as a mere agent or employé, but represented appellant in its corporate capacity, and as its alter ego. His negligence in this respect was the negligence of the company.

If it should be conceded that he was not the vice principal of the company in this matter, nevertheless the fact remains that the mules had been in the service for five or six months. During all this time the evidence shows them to have been vicious and dangerous. Their employment for this length of time is sufficient to support a finding that appellant knew, or, in the exercise of ordinary care, would have known, of their vicious and dangerous character.

Paragraph IV of the charge to the jury reads: “Now, therefore, if you shall believe from a preponderance of the evidence that the mules driven by Thrift were of an unruly and uncontrollable disposition, and were known to be so by defendant, American Express Company, or would have been known to be so by said company by the exercise of ordinary care, and believe the wagon drawn by said mules, 'while being driven by said Thrift in the business of the said company, came into collision with the wagon in which the deceased Parcarello was, and thereby threw or caused him to fall from said wagon to the pavement of the street and be injured substantially at the time and place and in the manner alleged by plaintiff, and that as a result of such injury he died, and you believe the coming into collision of the wagon drawn by the said mules with the wagon in which the said Parcarello was, if it did that, was due to unruly and uncontrollable conduct on the part of one of said mules, and believe defendant in using said mule for drawing its wagons, in the exercise of ordinary care, should have foreseen that an accident of like character was liable to happen, and believe defendant in using said mule for drawing said wagon was guilty of negligence under the circumstances, and believe said negligence was the proximate cause of the injury and death of said Parcarello, you will return a verdict for plaintiffs, but, unless you so find, you will return verdict for defendant.”

The paragraph quoted is criticised in the following particulars: (a) It was erroneous to instruct that the company was liable for negligence in the particulars enumerated, without limiting the acts of negligence for which it would be liable to those of a vice principal or officer authorized to represent it in its corporate capacity, (b) The charge should have affirmatively eliminated the negligence of the company’s servants and agents as a basis of recovery, (e) The charge as given fixes liability for the negligence of defendant’s servants and agents. As to this last criticism, it is not well taken. The charge predicates liability upon the negligence of the company in accordance with the statute, and not upon its agents or servants. The other objections are likewise without merit. It is true the charge does not define the relationship of a vice principal, as distinguished from a mere agent or employé, but there is no positive misdirection, and if appellant desired more complete instructions in this respect, it should have requested same. The error was of omission and is not reversible. Parks v. Ry. Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; Ry. Co. v. Motwiller, 101 Tex. 521, 109 S. W. 918; Ry. Co. v. Dumas, 149 S. W. 543; Freeman v. Cleary, 136 6. W. 525; Ry. Co. v. Hampton, 142 S. W. 93.

Considering the charge as a whole and in connection with, the special charge given at appellant’s instance, it is not subject to the objections urged under the third assignment. Ry. Co. v. Berry, 47 Tex. Civ. App. 327, 105 S. W. 1020; Ry. Co. v. Morrison, 46 Tex. Civ. App. 186, 102 S. W. 145; Ry. Co. v. Ochiltree, 104 Tex. 265, 136 S. W. 767; Womack & Sturgis v. Ry. Co., 100 Tex. 455, 100 S. W. 1151.

Appellant requested special charges which read:

“No. 4. A private corporation such as is the American Express Company is not hable for injuries resulting in death from the negligence of its servants or agents, but is liable in no case for such injuries, unless the death was caused by the negligence of some officer or officers of it authorized by it to represent it in its corporate capacity. If you believe from the evidence that no officer of the American Express Company authorized by it to represent it in its corporate capacity knew of the character or disposition of the mules driven by Thrift, or would have known of the same by the exercise of ordinary care, you will return a verdict for the defendant, American Express Company, although you may believe from the evidence that one or more of its agents not so authorized to represent it knew of the character or disposition of said mules, and further believe that said mules were of an unruly and uncontrollable disposition.”
“No. 6. If you believe from the evidence that only an agent or agents of the American Express Company knew of the character or disposition of the mules which Thrift was driving, and that their character or disposition was not known by any officer or officers of the American Express Company authorized by it to represent it in its corporate capacity, and would not have been known by them in the exercise of ordinary care, you will return a verdict for the defendant, even though you believe that the mules were of an unruly and uncontrollable disposition, as a corporation such as is the American Express Company is not liable for the negligence of its servants or agents, but only for the negligence of the persons authorized to represent it in its corporate capacity.”
“No. 8. If you believe from the evidence that the mules driven by Thrift were permitted to remain in the service by the agents of the American Express Company and not by any officer of the company authorized to represent it in its corporate capacity, you will return a verdict for the defendant.”

These charges were evidently intended to supply the omission in the charge noted, so as to make clear the distinction and liability of defendant for the negligence of its representatives, who acted in the capacity of vice principals, as distinguished from mere agents or servants; but the charges in the form requested were properly refused, since the liability of defendant is made to depend upon knowledge of the character of the mules by an officer or officers, whereas knowledge by any agent sustaining the relationship of a vice principal would fix liability.

The fifth, seventh, and ninth assignments complain that, if these special charges were not correct as drawn, they were nevertheless sufficient to call the court’s attention to the omission in its main charge, and the court therefore erred in omitting to frame and give a correct charge upon the.subject. The charge of the court predicated liability upon defendant’s negligence. This was a correct, general presentation of the issue. If appellant desired a charge which would distinguish between its representatives for whose negligence it would be liable and those for whom it would not, it should have prepared and requested correct charges, and the failure of the court to frame correct instructions in lieu of the improper requested ones presents no error. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Southwestern etc., v. McBrayer, 140 S. W. 388; Landrum v. Thomas, 149 S. W. 813; Ry. Co. v. Sorey, 142 S. W. 119. The assignments last indicated, as well as the eleventh, are therefore overruled.

Special charge number two was properly refused. It would have authorized the jury to disregard the knowledge of Erazier, wh'o was an agent intrusted with powers which made him a vice principal, with respect to the duty of removing the mules from the company’s service, and his knowledge of their nature and disposition was in law the knowledge of defendant.

Under its twelfth assignment of error, appellant complains of certain language used by appellee’s counsel, John W. Parker, while addressing the jury. The language objected to was highly improper and justly subjects counsel to criticism for its use. It was uncalled for, and finds no support in the record, and the trial court should have reprimanded him for its use. The majority of this court are of the opinion that the use of this language constitutes reversible error. The writer concurs in the view that the language was improper, but is not of the opinion that it constitutes reversible error. For the reason hereinafter indicated, we all concur in the view that the assignment should be overruled, and it is therefore unnecessary to state our divergent views upon the question of whether or not the use of the objectionable language constitutes reversible error. The bill of exception simply states that defendant in open court excepted to the language used, and that the court made no ruling, did not reprimand counsel for making the remarks, and permitted him to proceed without rebuke. If language be used by counsel in addressing a jury which opposing counsel deem improper, and to which they object, they should, in calling the court’s attention to the language which they deem improper, state the grounds of their objection. Unless the bill of exception discloses that the grounds of objection were pointed out to the trial court, this court will not revise the action of the trial court in failing to rule or act upon such an objection made. It is clearly analogous to objections made to the admission of evidence. The action of the trial court in such matters will not be revised, unless the bill of exception shows the objections made. It has been frequently so held. We therefore all concur in the view that the bill of exception taken to the objectionable language is insufficient to warrant this court in taking any action in regard thereto.

Affirmed.

On Rehearing.

McKENZIE,-J.

We are of ’opinion that the appellant’s twelfth assignment of error is well taken, and that the bill of exception in support thereof is sufficient. The bill of exception is as follows: “Be it remembered that upon the trial of the above numbered and entitled cause, while Mr. John W. Parker, attorney for plaintiff, was making his opening argument, he used the following language : ‘Now, that is all they have got, those two statements. Will you take them, obtained as they were, against the sworn evidence of these men, in behalf of this widow and her children, and thus deprive this widow and her children, who had no opportunity to be represented? Is it fair, is it just, to the wife and to those children, to take from them their rights on statements obtained in such ex parte manner? Why, gentlemen of the jury, if you can do that, who has any rights in this country? It is a rule among certain corporations, and they make it a practice to take such statements. They go out and take statements. They go out and take statements from their employes when they are in their service, when they are under their influence, when they are in their pay. Then they put them away. Now, then, if in that way they can make testimony that must be accepted by a jury, there is nobody that has dny right that is secure against one of them.’ To which language of plaintiff’s counsel, the American Express Company, in open court, then and there excepted. Be it remembered that the court made no ruling and took no action on the objection of defendant American Express Company so made, and did not reprimand counsel for the remarks so made, and counsel for plaintiff proceeded with his argument as follows: T want to add right in this connection, and you can except if you wish to, that there is no more reprehensible practice in the administration of justice in this country than this thing of taking these statements and bringing them into the courthouse, and the man, when he takes the witness stand, undertakes to deny them, they bring him forward and attack and denounce him as a liar.’ To which statements the defendant, the American Express Company, again in open court excepted, and the court failed to take any action thereon, but permitted counsel to proceed without rebuke. * * *

The following rules governing the district and county courts (142 S. W. xxi) are applicable to and govern the practice where improper argument is being made:

“Rule 39. Argument on the facts should be addressed tq the jury when one is impaneled in a case that is being tried under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, but when indulged in shall be promptly corrected as a contempt of court.”
“Rule 41. The court will not be required to wait for objections to be made when the rules as to arguments are violated, but if they should not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection.”

It will be seen from an examination of the above rules that a sharp distinction is made ■ as to the requirements of a bill of exception taken to improper argument and of a bill of exception taken to the admission or exclusion of testimony. The latter is controlled by rules 57, 58, and 59 (142 S. W. xxi), which require that the objection shall be stated with enough of the evidence or facts proved in the case to make intelligible the rilling of the court excepted to in reference to the issue made by' the pleading. We are therefore of opinion that we erred in our original opinion in holding the bill of exception insufficient.

The majority, Justice HIGGINS dissenting, are of opinion that the remarks of plaintiff’s counsel, as complained of, constitute reversible error. The witness Thrift, who was at the time of the accident in the employ of the defendant company driving the mules, voluntarily made and signed one of the written statements as introduced in evidence. In this statement, he describes the accident as follows: “I unblocked my team, mounted seat of my wagon, backed team several feet to clear delivery wagon, and then turned directly towards middle of street; after the front of wagon, or front wheels of my-wagon, clearing delivery wagon some six feet, I directed my team straight down the street, facing north; this necessitated another turn, but left three or four feet for the hind wheel of my wagon to clear the delivery wagon; while passing the delivery wagon, the mule attached to same became unruly, stepped backwards, and hung my hind wheel with hind wheel of delivery wagon, this, for the reason that my team was moving, caused delivery wagon to be tilted up in rear. I judge that hind wheel of delivery wagotí'was raised two feet from ground. I had my team under control, In fact, they were stepping slowly, and when I felt the wagons collide I immediately stopped my team, backed the wagon, which let the delivery to ground. In the meantime, the occupant jumped,' or fell, or stumbled. * * * In connection with this affair, I will state positively that my wagon did not run into delivery wagon, but that the mule attached to delivery wagon stepped back sufficiently to cause the rear of that wagon to collide with mine; my front wheel cleared the delivery wagon’s hind wheels at least six feet, and the hind wheels of my wagon should have also cleared about five feet, as I was turning my team north when the collision occurred; the second turn of my team would naturally throw the hind wheel of my wagon nearer the delivery wagon, and I had made ample allowance for the clearance. I do not know what caused the delivery wagon mule to back, it .is possible that driver wanted to back into place that my wagon — formerly occupied by my wagon, for the reason that delivery was too far in the street to avoid passing traffic. The mule, before and after the collision, appeared to be much excited.”

The witness Free was not in the employ of the defendant company. The next day after the accident, he ’phoned the defendant’s agent that he had witnessed the accident and offered to make a statement. He describes the accident as follows: “The first I noticed was that Parcarello’s mule was unruly, and backing to and fro as if scared of some obstacle near him; the next thing I noticed was that his hind wheel became hung with hind wheel of express wagon; this raised the grocery wagon up at rear about two feet, more or less, from ground; the express driver was walking his team, stopped immediately, backed his wagon, and let the grocery wagon down. However, before this was done, the occupant of the grocery wagon jumped out in direction of automobile, and landed on his face, as far as I could see.”

The record discloses that Thrift and Free were the only eyewitnesses testifying upon the trial to any misconduct on the part of the mules of the express wagon at the time of the accident. Without their testimony, appellees had failed to make even a prima facie case against the appellant. Their testimony was a contradiction in every material particular of their signed statements, which they each had voluntarily made when the facts pertaining to the accident were fresh in mind. Their testimony was also a contradiction in every material particular of the testimony of three other witnesses. Thrift and Free and the three witnesses were the only witnesses testifying in the case who saw the accident, and who gave details as to how the accident occurred. The three witnesses’ testimony is in complete harmony with the signed statements of’ Thrift and Free. Plaintiff’s right to recover as against the defendant was dependent entirely upon the testimony of the witnesses Thrift and Free. Their testimony raises a sharp conflict upon the vital issue in the case as to whether or not the defendant was guilty of any negligence causing the accident. The question involved, then, is not one as to the preponderance of the evidence, or that the jury’s verdict is excessive, but one rather upon the vital issue as to whether or not the defendant is liable at all. Hence it is seen that as between the voluntary statements of Thrift and Free, corroborated by the three other witnesses, and their testimony upon the trial depends the respective rights of the parties.

An examination of the record fails to disclose any suggestion that the statements were improperly obtained or were obtained for any improper motive; or that certain corporations took statements concerning accidents for the improper purposes indicated; or that the defendant company whs one among such ■corporations guilty of the improper conduct as charged; or that the defendant company had used any improper means or influence in obtaining the two statements. The assertions of the counsel in the opening address to the jury were beside the record.

When the remarks were objected to the trial court remained silent, acquiescent. Plaintiff’s .counsel, to make sure the advantage gained by this action of the court, proceeded to address the jury as follows: “I want to add right in this connection, and you can except if you wish to, that there is no more reprehensible practice in the administration of justice in this country than this thing of taking these statements and bringing them into the courthouse, and the man, when he takes the witness stand, undertakes to deny them, they bring him forward and attack and denounce him as a liar.” To this language the defendant again urged objection, but the court failed to act and remained silent. Can it be said, then, that the remarks of the counsel, when viewed in the light of the court’s silence, did not have an improper influence upon the jury, as the same pertained to the vital issue in the case? The majority of this court are of the opinion that said remarks made in the opening argument were calculated to have and did have such an influence; nor can it be said that the experienced counsel, in making the remarks, was indulging in idle talk. We feel constrained to say, as was said by Chief Justice Stayton, in Moss v. Sanger Bros., 75 Tex. 321, 12 S. W. 619: “The course pursued in this case was one that no court of justice ought for a moment to tolerate, and it certainly must be true that the judge who tried this case did not fully understand the language of counsel or he would not have permitted it, would have rebuked it, and ought to have, punished its author.”

For the reasons indicated, we are of the opinion that the case should be reversed and remanded, and it is so ordered.

HIGGINS, J.

(dissenting).

I concur in the view of my associates that error was committed in the conclusion originally reached as to the insufficiency of the bill of exception reserved by appellant to objectionable language used by appellee’s counsel in argument, and that, if such use constituted reversible error, the motion for rehearing should be granted, and the cause reversed and remanded. However, I adhere to my original view that the use of the objectionable language was not such as would warrant or authorize this court in reversing the case.

In the original opinion, it was held that this court would not revise the action of the trial court in failing to rule or act upon an exception taken to objectionable language of counsel, unless the bill discloses that the grounds of objection were pointed out and called to the attention of the trial court. The writer still thinks such should be the rule, although, in writing the original opinion, he was aware of the fact that the courts had frequently passed upon assignments relating to objectionable language where the bill was similar to the one in the instant case. It is unnecessary to state the reasons for this view, since it appears that the matter is controlled by district court rules 39 and 41 (142 S. W. xx). We were'of the opinion that the matter was analagous to objections made and bills taken to the admission of improper evidence. Bills of exception relating to this latter matter are governed by district court rules 57 and 58 (142 S. W. xxi), which are quite different from 39 and 41, and furnish ground-for distinction with reference to the sufficiency of the requisites of bills of exception relating to the two subjects. The writer frankly confesses that, in reaching the conclusion expressed in the original opinion, rules 39 and 41 were overlooked, and he was not familiar with Willis v. McNeill, 57 Tex. 473, construing the same. Under the authority of these rules and the case cited, it must be conceded that the bill here in question is sufficient. This being conceded, and adverting now to the position of the majority that the objectionable language constitutes reversible error, an extract from an opinion rendered by Chief Justices Stayton, in Ry. Co. v. Irvine, 64 Tex. 529, is quoted as follows : “The use of improper language or course of argument by adverse counsel within itself furnished no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict, or in eases in which the verdict seems excessive, and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal. Parties are not to be punished by reversals for the improprieties of their counsel, unless there is reason to believe that the course pursued affected the merits of the case. We see no reason, in this case, to believe that the. language of counsel had an effect upon the jury. There was conflicting evidence, but it cannot be said that the verdict is not sustained by the preponderance of the evidence, nor that it is excessive.”

The correctness of the rule there stated has never been questioned. Appellant’s brief in this case will be searched in vain for a suggestion or an intimation that the verdict in this case is against the preponderance of the evidence, or that the same is excessive. Not only does appellant fail to make any such contention, but what tangible reason is there to believe that the verdict was affected by the improper language, which, it is said, is a further condition which must be present before the case should be reversed upon such grounds? It cannot be and is not asserted by the majority “that the verdict is not sustained by the preponderance of the evidence, nor that it is excessive” ; furthermore, “parties are not to be punished for the improprieties of their counsel, unless there is reason to believe that the course pursued affected the merits of the case.” As showing the scope of appellant’s contention under its twelfth assignment of error, its propositions in its brief are quoted as follows:

“First Proposition. Where counsel, in his argument to the jury, goes outside of the record and makes to the jury statements of fact that are not supported by any testimony whatever in the record, and, if believed by the jury, are calculated to arouse the resentment or passion of the jury against his adversary, it is reversible error for the trial court to fail or refuse to reprimand counsel, and to fail to instruct the jury not to consider such remarks, anil the error so committed is all the more harmful when the testimony in the record is sharply in conflict.

“Second Proposition. Where suit is brought by the widow and children against an express company for damages claimed to have resulted to them from the death of the husband and father, and the evidence is sharply conflicting on the facts relied on by plaintiffs for a recovery, it is reversible error for the trial court to permit plaintiff’s counsel, without rebuke, and without instruction to the jury, to disregard the same, to go outside of the record and charge the defendant with being guilty of the reprehensible practice of inducing an employs to sign a false statement as to the facts of the accident to deceased, for the purpose of confronting such employs therewith when he testifies on the witness stand.

“Third Proposition. It is reversible error for the trial court to permit counsel, in an argument to the jury, to charge the adverse litigant with unfair and reprehensible conduct in the absence of any testimony in the record to support such charge.”

Nowhere is there any suggestion that the verdict rendered was against the preponderance of the evidence, or that it was excessive, or that there is any reason to believe that the verdict was affected by the objectionable language. And can it be reasonably contended, and is it contended that, if the court had reprimanded counsel and instructed the jury to disregard the objectionable language, a verdict would have been rendered other than the one which was rendered?

In Freeman v. Griewe, 143 S. W. 736, this court had occasion to pass upon an assignment of error relating to the use of improper language in argument, and, speaking through Chief Justice Peticolas, it was said: “Another contention made by appellant and assigned as error is to language used by Hr. Parker, counsel for appellee, in argument. The exact language used was this: ‘After Mr. Griewe was injured, the railroad took him to the hospital and gave him morphine, which disordered his mind so that he had delusions, and now seek to bring these delusions into court and use them to defeat his wife and child. If this can be done, then to hell with the courthouse.’ No exception was taken to the language at the time; but appellants contend that it was both profane and violent, and that the jury was manifestly prejudiced thereby. The bill of exceptions shows that defendant’s counsel in their addresses to the jury criticised plaintiff’s counsel for using - the language, and claimed that the same was highly improper. We are of the opinion that none of the language infringes upon the latitude allowed to counsel in discussing the facts as they appear in this case, except the statement: ‘If this can be done, then to hell with the courthouse.’ It is apparent that this language was highly improper, uncalled for by the facts, and certainly should not have been indulged in. But the question specifically presented to this court is: Should we reverse the case because of the use of this language? The reason of the rule for reversing cases for improper remarks of counsel is that thereby the jury may have been misled, their passions and sympathies aroused so that they are caused to render an untrue verdict. In nearly all of the cases in which reversals have been had for such language, the remarks complained of have extended over some considerable portion of the argument, and it seems to us that, if we believed that the isolated remark here quoted influenced the jury, we should reverse the case; but, if we do not believe that it did have any appreciable influence upon their verdict, we should not reverse the case. As we believe this to be the true test, and as we do not believe that this remark, though highly improper and uncalled for, had any appreciable effect on the result of the case, the assignment is overruled.” The improper remarks in the Griewe Case, as here, were made in commenting upon a written statement which conflicted- with the sworn testimony given upon the trial, and the language there used was much more inflammatory and more likely to improperly influence the jury, and yet it was unanimously held that its use did not constitute reversible error, and I see no reason to warrant this court in now departing from the rules there enunciated.

The foregoing views are entirely independent of the recent rule adopted by the Supreme Court for the government of the Courts of Civil Appeals which reads as follows: “No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Rule 62a (149 S. W. x). This rule was adopted for the purpose of preventing reversals for errors of law committed by the trial court, which, while erroneous, did not reasonably indicate that the error was calculated to cause, and probably did cause, the rendition of an improper judgment. The adoption of this rule was a forward step towards the prevention of unnecessary reversals, which has been long delayed, and is in accordance with what is generally conceded by the bench and bar to be a reform much needed, and, in the judgment- of the writer, the rule should be enforced wherever it is reasonably applicable, to the end that its beneficent purpose may be accomplished. The question of error presented by the trial court’s failure to reprimand and rebuke counsel is surely one where the rule may be applied without conflicting with any rule of law which the Supreme Court could not change by mere court rules. And, considering the question in the light of this rule, what reason is there to believe that the error of the trial court in failing to rebuke or reprimand counsel was such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment? Is the judgment contrary to the weight or the preponderance of the evidence upon the issues of negligence? Is the verdict excessive? Is there anything to indicate that an improper judgment was rendered? Appellant does not so contend, and, in the opinion of the writer, there are no facts in the record that warrant this court in assuming that such failure was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. Under this rule, the burden unquestionably rested upon appellant to show injurious consequences and the rendition of an improper judgment. Ry. Co. v. Shinn, 153 S. W. 636.

Believing, under the authorities cited, that the failure of the trial court to reprimand and rebuke counsel for the improper language used by Mm does not constitute reversible error, and believing further that the rule cited above alone would prevent a reversal, I therefore dissent from the action of the majority, and here now enter of record the grounds of my. dissent.


text:
    BONZER et al. v. GARRETT.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 17, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Covenants (§ 78) — Actions on Wabeanties — Right on Action.
    Where the county opened up a road on land purchased by plaintiff, after he had sold it, any right of action existing on warranties in plaintiff’s deed violated by the opening up of the road was not held by plaintiff.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 77; Dec. Dig. § 78.]
    2. Vendoe and Purchases (§ 165) — Deficiency in Acreage — Right of Action.
    The existence of a public land across land sold would not authorize a recovery by the grantee as for a deficiency in acreage.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 329, 329½; Dec. Dig. § 165.]
    3. Fraud (§§ 20, 25) — False Representations — Reliance.
    To recover for false representations, plaintiff must have relied thereon and been deceived by them to his injury.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 17, 18, 24; Dec. Dig. §§ 20, 25.]
    4. Fraud (§ 593 — Misrepresentations — Measure of Damages.
    The measure of damages for fraudulent representations that there was no road over the land sold would not be the purchase price per acre paid for the land.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dee. Dig. § 59.]
    5. Contracts (§ 47) — Enforceability—Necessity of Consideration.
    Where, after the execution of a contract for the sale of land, the purchaser complained of his bargain being a hard one, and asked that he be allowed to have the rents of the property until the closing of the transaction, to which the seller assented, the agreement was without consideration and not enforceable.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 220, 221, 256-258; Dee. Dig. § 47.] •
    On Motion for Rehearing.
    ' 6. Appeal and Error (§ 1178) — Disposition —Return.
    ■ Where an action was brought as one to recover for a deficiency in acreage of land contracted to be sold by reason of the existence of a road on the land, upon reversing a judgment for plaintiff for failure to sustain the action on that ground, the Court of Civil Appeals will not return the case to permit amendment of the petition to allege an action for fraudulent representations that the road had been abandoned; the petition not having alleged even defectively a cause of action on the theory of fraud.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by J. E. Garrett against A. F. Bon-zer and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Purcell & Divet, of Wahpeton, N. D., and David M. Picton, Jr., and McDonald, Kleberg & Stayton, all of Corpus Christi, for appellants. G. R. Scott, Boone & Pope, and J. A. Cohn, all of Corpus Christi, for appellee.

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

   MOURSUND, J.

Appellee, plaintiff below, in his amended petition upon which the case went to trial, alleged: That about November 10, 1910, he entered into a written contract with J. L. Mathews, A. F. Bonzer, Anton Wohlwand, Frank Jahoda, and J. A. Gotch-ian, defendants, for the purchase of 8 fractional sections of land, 11 entire sections, the unsold portion of a fractional section, and the unsold portion of a section, all out of Roberts & White subdivision of the Hoffman Pelronella ranch, as appears from map of said subdivision filed in the county clerk’s office of Nueces county, “and in said written contract plaintiff contracted to purchase said lands for certain prices and upon certain conditions and stipulations and agreements of payment of the purchase money, as are more fully set out in said contract”; that December 17, 1910, a supplemental contract was entered into by the parties, amending the terms and conditions of the contract; that on March 13, 1911, a second supplemental contract was made; that, in addition, plaintiff made an oral agreement with defendants, represented by J. L. Mathews, which was to be no part of said written contract, by which defendants promised and agreed to pay plaintiff all the rents to be collected for the use of said lands by Richard King from February 1, 1911, to July 1, 1911, at which time said written contract and supplements were to be fully performed; that said rent aggregated $95, and was collected and appropriated by defendants; that defendants have collected from plaintiff $23.60 interest in excess of that to which they were entitled upon the money paid as cash payment upon section 19; that defendants collected from plaintiff excess interest amounting to $100.75, the same being charged upon purchase money for sections 4, 5, and 11; “that plaintiff in keeping with his contracts sold sections 9, 10, and 11 of said lands to various purchasers, and defendants in all things warranted the title to said respective sections to the plaintiff as containing respectively 640 acres' each, but, subsequent to the purchase of said lands and delivery of deeds thereto, the county of Nueces, through its officers asserted title to a strip of land across said sections 3 miles in length and 60 feet wide, which said county claimed to have been dedicated as a public road, and in all things appropriated said strip and holds possession thereof, claiming title thereto by dedication and prescription, has deprived this plaintiff and his assigns of the title and possession of said strip of land, although defendants in all things warranted the title and possession to said strip of lands to this plaintiff and his assigns, and in all things contracted and agreed that said strip of land used for a county road had in all things been discontinued for the purposes for which it was originally laid out, and, under and according and by reason of said warranty and agreement on the part of defendants, plaintiff paid to defendants the sum of $26.50 per acre for said strip of land, aggregating the sum of $569.75;” that plaintiff, by reason of the premises, was entitled to deduct the said sums, aggregating $789.10, but was compelled to pay same to protect himself from damage, and is entitled to recover the same from defendants, with interest from September 12, 1911.

Defendants answered by general demurrer, general denial, and set out the contracts in full, and pleaded that under the contracts, at plaintiff’s request, the deed to section 11 was made to plaintiff, and that to sections 9 and 10 was made to parties designated by plaintiff, and he received pay for the full acreage thereof, wherefore plaintiff has not been damaged by any breach of warranty, if any there may have been, or by any promises or representations as to acreage of said sections, or as to the existence of the road, and that, if defendants are liable at all, they are liable to the parties to whom said lands were deeded and warranted.

The court overruled the general demurrer, and rendered judgment against plaintiff upon the interest items, and for plaintiff for the rent and the amount claimed by reason of the road across the three sections. Defendants appealed.

By the first assignment of error, appellants contend the court erred in concluding, as a matter of law, that plaintiff should recover for the strip of land across sections 9, 10, and 11, because the proof showed that, if any one could recover therefor, it would be plaintiff’s father and uncle, and not plaintiff, and because there was no proof that a county road was across said sections when defendants contracted with regard to the same.

The first supplemental contract provided that deeds to sections 9 and 10 should be made to R. G. Garrett, plaintiff’s father. This was done, and he owned the same at the time of the trial. .Section 11 was conveyed to plaintiff, and by general warranty deed conveyed by him. to his uncle who owned the same at the time of the trial.

Appellee testified that after he sold to his purchasers the county came in and opened up the road. It is clear that whatever right of action may exist upon the warranties expressed in the deed or implied by our statute was not held by appellee. Eustis v. Fostick, 88 Tex. 615, 32 S. W. 872; Taylor v. Lane, 18 Tex. Civ. App. 548, 45 S. W. 317; Hollingsworth v. Mexia, 14 Tex. Civ. App. 369, 37 S. W. 455; Penney v. Woody, 147 S. W. 873.

Appellees contend that this is a suit to recover on a contract for the sale of land by the acre for a deficiency in acreage, citing us to the case of Bennett v. Latham, 18 Tex. Civ. App. 403, 45 S. W. 934, and other cases. No case is cited wherein it has been held that the existence of a public road across a section of land would authorize a recovery for a deficiency in acreage. If there was a road by prescription across the land,-nevertheless the fee passed by the deeds. The land would then be burdened with an easement, which is recognized by many courts as an incumbrance. Elliott on Roads and Streets (3d Ed.) §§ 921, 922; Maupin on Marketable Title to Real Estate (2d Ed.) p. 301, 377, 775. No ease is made by appellees on the theory of a deficiency in acreage.

The court found that appellees had made fraudulent representations to the effect that the road had been abandoned and discontinued by the county. The petition fails to allege a cause of action upon the theory of fraud, for it merely alleges that defendants warranted the title and possession of said strip of land to plaintiff, and in all things contracted and agreed that said strip of land used for a county road had been in all things discontinued, and by reason of said warranty and agreement plaintiff paid defendants $26.50 per acre for the land. No such agreement appears in any of the written contracts, nor is there any evidence of any verbal agreement to that effect, but merely that statements of that kind had been made by defendants and their agent. There is no allegation that the representations claimed to be false were relied upon by plaintiff and that he was deceived thereby. Luckie v. McGlasson, 22 Tex. 285; Carson v. Kelley & Swett, 57 Tex. 379; McCreary v. Douglass, 5 Tex. Civ. App. 495, 24 S. W. 367.

Had the petition alleged a cause of action based upon fraud, the measure of damages would not be the purchase price per acre paid for the land.

We find no theory upon which the judgment of the court under the pleadings and evidence, can be sustained, and conclude that as to this item the judgment should be reversed and here rendered for appellants. The court also erred in finding the evidence sufficient to establish a road by prescription over the three sections. No witness testified who had any knowledge concerning the road for a period of more than about three years prior to the suit, though one of them described it as an old road when he saw it; there was no proof of any facts which would put the owners upon notice that a public road was being claimed either by the public or the county, except its being graded, which, according to the testimony of one of the appellants, occurred some time in 1909, and, according to appellee’s testimony, occurred after the conveyances were made by appellants. Hall v. City of Austin, 20 Tex. Civ. App. 65, 48 S. W. 53. Nor was there any effort made to prove that the owners were not under legal disabilities during the time necessary to establish a prescriptive right. Wright & Vaughn v. Fanning, 86 S. W. 786; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874. There was no evidence of such use and possession as would warrant a claim of 60 feet in width, had the requisites to establish title by prescription been shown. The error in finding the evidence sufficient to show a road by prescription would require a reversal of the judgment,, but not its rendition for appellants.

By the eighth assignment, it is contended that the court erred in allowing plaintiff a recovery of the item for rents because there was no obligation resting upon appellants to pay same to appellee, for the reason that the agreement to do so was without consideration. Appellee testified that the second or third contract was made “subject to the rents,” and no further mention was made about the rents until after this second supplemental contract was made. It was then he had the conversation with Mathews about the rents. Mathews testified the conversation took place while he was gathering up his papers preparatory to leaving, and within two minutes after making the contract. Wakefield testified the conversation occurred after the contract had been signed; that Garrett contended the deal had been closed and he was paying 10 per cent, on the money, and should have the revenues, and Mathews reluctantly agreed; that witness and Garrett discussed the matter before the contract was signed, but decided it was best not to bring it in until the contract was closed. The contract had been made, and it is clear that the verbal agreement to pay the rents to appellee was not made as an inducement for appellee to enter into the contract. Appellee had' not breached the contract, and he did not agree to pay anything or do anything that he was not already bound to the performance of by his contract. The promise was without consideration to support it, and appellants’ contention must be sustained as to this item. Beach on Modern Law of Contracts, §§ 6, 165; Brin v. McGregor, 45 S. W. 923.

As appellants are entitled to judgment upon both items allowed by.the court, the judgment of the trial court is reversed, and judgment rendered that appellee take nothing by his suit, and that appellants recover of him the costs of both courts.

Reversed and rendered.

On Motion for Rehearing.

Appellee, while still contending for an af-firmance, earnestly insists that, if the judgment be reversed, this court should not render judgment, but should remand the case. The contention is again made that the suit was not upon a warranty, but for a deficiency in acreage, and it is sought to combine the ideas of deficiency an.d fraud or misrepresentation, and thus evolve a defense supporting the judgment of the court. This theory is advanced in an effort to meet our holding that no cause of action for a deficiency in acreage was alleged or established, and no cause of action for fraud was alleged. We are fully convinced that there is no cause of action for a deficiency in acreage, and that appellee’s remedy, if he has been wronged, is by an action for misrepresentation amounting to fraud, and in such case his damages would be measured by the amount that the value of the land purchased by him was diminished by reason of the existence of the road, if it be a public road. Appellee cites the case of Kevil Sons v. Wilford, Stunston & Co. (Ky.) 104 S. W. 348, as holding that the measure of damages in such a ease would be the value of the land over which a highway lies. In that ease the petition sought to recover on account of fraudulent representations to the effect that there were no streets over the land, the sum in which the value of the property was diminished by reason of certain streets across it, and a demurrer was sustained. This was held to constitute error, and, in discussing the matter, the court states that it is difficult to see why the appel-lee should have been allowed to retain that part of the purchase money representing the. value of the land occupied by the highways. We do not understand that the court, by such expression, sought to establish a rule respecting the measure of damages, especially as it cited with approval the ease of Butt v. Riffe, 78 Ky. 352, as holding that, where an adverse easement existed (being a private right of way), the vendor could recover the vaiue that the property was diminished by reason of such incumbrance.

Had appellee alleged even defectively a cause of action upon the theory of misrepresentation amounting to fraud, we would, of course, reverse the judgment, as the law fixes the measure of damages, but the petition alleges an express contract and agreement that the road had been discontinued, and there is no evidence to that effect, nor any pretense that the same can be obtained, and there is no allegation that any representation to that effect was made, that it was relied upon by plaintiff and deceived him, or that he would not have bought had the same not been made.

Appellee is not entitled to have this case remanded in order that by amendment he may change the same to a suit based upon a different cause of action. In our opinion, this suit should end here, and, if appellee is entitled to recover on the theory of fraud, he should bring a suit upon that theory.

The motion is overruled.