author: BROOKE, J.

text:
    BERRYHILL et al. v. BERRYHILL.
    (No. 65.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1917.
    Rehearing Denied March 7, 1917.)
    1. Trial <&=139(1) — Direction of Verdict— Grounds.
    A verdict should not be directed unless there is no room for ordinary minds to differ as to the conclusion to be drawn from evidence.
    . [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341.]
    2. Wills <@=>327 — Contest — Direction oe Verdict — Sufficiency of Evidence. •
    Where all evidence showed that a will was properly executed and witnessed 13 years before testator’s death, although not dated, and that he had provided for omitted children by previous deeds, held- sufficient to justify direction of verdict for proponent.
    [E'd. Note. — For other cases, see Wills, Cent. Dig. § 773.]
    3. Wills <@=3304 — Contest — Testimony of Subscribing Witnesses — Date of Execution.
    In view of Rev. St. art. 3267, providing that, where subscribing witnesses are dead, a will maybe probated by proof of two witnesses of the subscribing witnesses’ handwriting, it was immaterial that a subscribing witness could not remember the exact circumstances and date, although identifying his own and testator’s signatures.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 724^728.]
    4. Wills <@=293(6) — Contest—Admissibility of Evidence — Testator’s Declarations After Making Will.
    Where contestants claimed a will was not the act of the testator, who could not write or read, and that the will was not read to him, but was drawn by a careless lawyer addicted to the use of morphine, evidence that testator submitted the will to another lawyer for his opinion, and was advised of its validity and effect, was properly admitted.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 676-678.]
    Appeal from District Court, Liberty County.
    Action to contest will of Miles F. Berryhill by C. .W. Berryhill and others against Ida Berryhill, proponent. Judgment for proponent, ancf contestants appeal.
    Affirmed.
    Stevens & Stevens, of Houston, for appellants. E. B. Pickett, Jr., of Liberty, for ap-pellee.
   BROOKE, J.

This is an action to contest the will of Miles P. Berryhill, deceased, the proceedings having been properly instituted in the county court of Liberty county, Tex., and taken from thence on appeal to the district court of said county. O. W. Berryhill and the other children of said Miles E. Berry-hill, deceased, contested his will upon the following grounds: (1) Because the will which was offered for probate by his widow, Ida Berryhill, was not the will of the said Miles E. Berryhill, deceased; (2) because at the time of its purported execution the same was not witnessed by two witnesses as required by law; (3) because the alleged testator could not read and write, and the said will was not read to him; (4) because the said Miles P. Berryhill, for more than a year prior to his death, was not of sound mind and did not have testamentary capacity nor mental capacity sufficient to republish any will which might have been defectively executed.

The will was probated in the county court, as above stated, and from the order probating the same the contestants appealed to the district court, where a trial was had before a jury. The court, however, took the case away from the jury, and directed them to return a verdict in favor of the proponent of the will, which was accordingly done, and a judgment was entered in the district court admitting the will to probate. The contestants appealed from this action of the district court.

Miles Berryhill, the testator, died on January 16, 3914, and his will, which is being contested, is witnessed by J. A. Jett and J. L. Ellis. It is not .dated, but Mrs. Ida Berry-hill, his widow, testified that he gave her this will to put away about four or five months after their marriage, in October, 1901. The contestants O. W. Berryhill, Will Berryhill, Ellen Partlow, and Elizabeth Key are children of the testator by his first marriage, and the contestants Viola, Sanders, Miles, and Will Phillips are his grandchildren, being the children of a deceased daughter by his first marriage. Testator’s first wife died about 1891 or 1892, and the proponent, Mrs. Ida Berryhill, was his second wife, and in the will she is named as sole devistee and appointed executrix without bond, and the will closes with this statement:

“I desire to state that my children, to wit, William Berryhill, Ellen Partlow, Jerusha Phillips, Charlie Berryhill, and Bettie Key, have received their full share of my estate coming to them in my lifetime; hence they are not made parties to my will of my remaining property."

At the time of his death testator was 78 years of age. He could not read or write, and the will is signed by his mark.

Appellants’ first assignment assails the action of the court for the following reasons:

(a) Because the court erred in instructing the jury to return a verdict for Ida Berry-hill for the alleged will.
(b) The evidence on the part of the proponent having shown that one of the witnesses, to wit, J. L. Ellis, whose name is subscribed to the instrument, offered for probate would have known and would have remembered if he had signed the will in the presence of the alleged testator, M. Berryhill, deceased, and the evidence having further shown that the attorney who wrote the will was a man addicted to the use of morphine and was a careless man, and the evidence having further shown that shortly before the death of M. Berryhill the said Berryhill exhibited the paper, which was offered for probate, to O. H. Cain, with the statement that Judge Swilley had informed him it was no good, and there being no evidence to show that J. A. Jett and J. L. Ellis signed the instrument, which was offered for probate in the presence of the alleged testator, hence the court erred in instructing the jury to return a verdict in favor of Ida Berryhill, proponent.
(c) In passing upon a motion for a directed verdict, the court cannot weigh the evidence, but is bound to concede to be true all evidence which supports the view of the party against whom the motion is made, and must give such party the benefit of all legitimate inferences which are to be drawn therefrom in his favor; hence the court in directing a verdict in favor of Ida Berryhill, the proponent of the alleged will, took away from the jury the right to pass upon the fact as to whether or not J. L. Ellis and the other purported witness, J. A. Jett, signed the alleged will in the presence of the alleged testator, there being evidence to support the contention of the contestants that the witness J. L. Ellis at least did not sign the said instrument in the presence of M. Berryhill, the deceased, the said Ellis having testified that, if the said M. Berryhill had been present when he signed his name as a witness to the instrument, he believed he would have remembered the fact of his presence.

Appellants present the following proposition under this assignment: A verdict should not be directed unless there is no room for ordinary minds to differ as to the conclusion to he drawn therefrom.

We believe the proposition announces a correct legal principle, but we are unable to see from the testimony any evidence that would have a tendency to leave room for ordinary minds to differ as to the conclusion to be drawn from the testimony in this case. It is entirely unnecessary for us to rehash the testimony. The statutes of this state provide that, if none of the witnesses to the will are living, it may be probated on proof by two witnesses of the handwriting of the subscribing witnesses thereto, and also the testator, if he was able to write, and the testimony shows that J. A. Jett was deceased, and that J. L. Ellis was without recollection of having signed the will as a witness, and did not recall anything of the transaction, but he (Ellis) admitted that his signature to the will was genuine, and also his handwriting, and the signature of J. A. Jett, the other witness, was proved by two other witnesses, and Ellis also identified Jett’s signature as genuine. The fact that a man did not remember distinctly — in fact, did not remember anything — about the particular transaction does not leave any room for conjecture, and we are of opinion that, as provided by the statute, the testimony shows that the will was executed as required by law.

The exact language used by Ellis was as follows, after .testifying that he knew Mr. Miles Berryhill intimately:

“My relations with him were friendly. I was familiar with the signature of Mr. John Jett; had occasion to handle his writing frequently; in his official capacity as county treasurer I haa occasion to see and notice his signature very often. Erom my knowledge of his handwriting and his signature I would say that. the signature on this instrument of J. A. Jett is his genuine signature. I am positive that that is my signature on that paper, but I do not recall when I signed it, nor do I recall when he signed it. I have no hesitancy in giving it as my opinion that J. A. Jett signed that paper; that is his signature.”

The evidence further shows that' the deceased, Miles Berryhill, within a very short time after his second marriage, gave the instrument that was probated as his will to his wife, Mrs. Ida Berryhill, and that she kept it, and had it in her possession until a short while before the death of Miles Berryhill, and it is shown that just a short while before his death Miles Berryhill got that same will from the custody of his wife, and presented it to Mr. Gain, an attorney, and stated to Gain that he wanted to leave everything he possessed at his death to his wife, and had a conversation with Cain, in which conversation Cain told him that, if that was his desire, the will had carried out his intention in that respect, and that the will was all right if that was what he wanted to do. The will was as follows:

“In the Name of God, Amen:
“I, Miles Berryhill, of the county of Liberty and state of Texas, recognizing the certainty to death and uncertainty of life, and being desirous of settling and disposing of my affairs, while I am of sound and disposing mind, do hereby make, publish and establish this my last will and testament, hereby revoking, annulling and setting aside any and all other wills that may have been made by me.
“It is my will and desire that I do hereby grant, give and bequeath to my well beloved wife, Ida Berryhill, all my property of whatsoever nature and character real and personal in fee to dispose of as she may deem best and proper.
“I hereby grant, give and bequeath to my said wife, Ida Berryhill, the following described real estate owned by me lying in Liberty county, Texas, and known and described as follows: 122Í4 acres of the Samuel Stranghn headright, and known as my homestead to come off of the eastern portion of said tract owned by me, also 2214 acres on said tract bought by me from William Berryhill.
“And - also the following described personal property, which I also give and bequeath to my said wife, Ida Berryhill, all my entire stock of cattle marked, crop and upper bit in one ear and branded A some may be branded A and all my entire stock of cattle branded and unbranded. Also my entire stock of hogs running on the range or otherwise marked crop and upper bit in the right ear, or that may not be marked, owned by me.
“Also my entire household and kitchen furniture of whatsoever nature and character owned by me.
“Also I give and bequeath to my well-beloved wife all moneys that I may have on hand at my death and all accounts and debts due me of whatsoever nature and character.
“It is my will and' desire that the probate or county court of Liberty county, Texas, take no action in my estate except to probate my will as provided by law and for an inventory to be filed of my estate by my executrix. I hereby appoint my well-beloved wife, Ida Berryhill, as the executrix of my estate without bond. I desire to state that my children, to wit, William Berry-hill, Ellen Partlow, Jerusha Phillips, Charley Berryhill, and Bettie Key, have received their full share of my estate coming to them in my lifetime; hence they are not made parties to my will of my remaining property.
his “Miles X Berryhill. mark
“Signed in the presence of “J. A. Jett.
“J. L. Ellis.”

It was also shown by the following deeds that said Miles Berryhill had conveyed community land, or a part thereof, to his children under his first marriage, to wit:

“Partition Deed.
“State of Texas, County of Liberty.
“Know all men by these presents that we, Jerusha Phillips, joined by her husband, J. O. Phillips, Wm. Berryhill, joined by his wife, Mrs. Mary Berryhill, Ellen Partlow, joined by her husband, Joseph Partlow, O. W. Berryhill, joined by his wife, Emma Berryhill, and S. 0. Key, joined by his wife, Betty Key, all of the county of Liberty and state of Texas, for and in consideration of one hundred and seventeen and half acres of land valued at five hundred and eighty-seven dollars and half dollar, being our share in' the community of Miles Berryhill and our deceased mother, Caroline Berryhill, the receipt of which, is hereby acknowledged, have granted, bargained and sold, and do hereby grant, bargain, sell, alien, convey and confirm unto the said Miles Berryhill, of the aforesaid state and county, all that certain tract or parcel of land lying and being situated about 7 miles N. 10 deg. E. of the town of Liberty, being the north half of the Miles Berryhill and Caroline Berryhill, deceased, homestead survey, containing one hundred and seventeen and one-half acres of land, and being a part of the Samuel Strong survey, and being more particularly described by following metes and bounds, to wit: [Then follow field notes.] To have and to hold all and singular the above-described and conveyed premises and property', all and singular the rights, privileges, hereditaments and appurtenances thereunto belonging or in any wise appertaining unto the said Miles Berryhill, his heirs and assigns forever, and we do hereby bind ourselves, our .heirs and executors and administrators to warrant and forever defend all and singular the said premises unto the said Miles Berryhill, his heirs and assigns against every person -whomsoever lawfully claiming or to claim the same or any part thereof. Witnes our hands at Liberty this the 4th day of November, A. D. 1899. Interlined between the 16 and 17th lines before signing.
“Jerusha Phillips. J. O. Phillips.
“Wm. Berryhill. Mary Berryhill.
“Ellen Partlow. J. H. Partlow.
“O. W. Berryhill. Emma Berryhill.
“S. C. Key. . M. E. Key.”

This instrument was duly acknowledged by each of the parties thereto on the 4th day of November, A. D. 1899, before J. N. Dark, notary public in and for Liberty county, and was filed for record December 2,1899, and recorded on January 13, 1900, in Book W, page 70, Deed Records, Liberty County, Tex.

Deed from Miles Berryhill to Jerusha Phillips et al. being the same children that gave him the deed above quoted, as follows: “State of Texas, County of Liberty.

“Know all men by these presents that I. Miles Berryhill, of the county and state aforesaid, in consideration of one hundred and seventeen and one-half acres of land valued at five hundred and eighty seven dollars and one-half dollars, being one-half of the community property owned by Miles Berryhill and his deceased wife, Caroline Berryhill, the receipt of all of which is hereby acknowledged, have granted, bargained and sold, and do hereby grant, bargain, sell, alien, convey and confirm unto the said legal heirs of my deceased wife, Jerusha Phillips, Wm. Berryhill, Ellen Partlow, C. W. Berryhill and M. E. Key, of the aforesaid state and county, all that certain tract or parcel of land lying and being situated in the county of Liberty and state of Texas, about 7 miles 1 deg. E. of the town of Liberty, being the south half of my homestead survey, containing one hundred and seventeen and one-half acres of land and being a part of the Samuel String survey, and being more particularly described by the following metes and bounds, to wit: [Then follow field notes.] To have and to hold all and singular the above described and conveyed premises and property with all the rights, privileges, here-ditaments, and appurtenances thereunto belonging in any wise appertaining unto the said Jerusha Phillips, Wm. Berryhill, Ellen Partlow, 0. W. Berryhill, and M. E. Key, their assigns forever, and I do hereby bind myself, my heirs and executors and administrators, to warrant and forever defend all and singular the said premises unto the said Jerusha Phillips, Wm. Berryhill, Ellen Partlow, C. W. Berryhill, and M. E. Key, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness my hand at Liberty this 4th day of November. A. D. 1899.
“Interlining'between 10th and 11 lines executor fee for signing.
his “Miles X^ Berryhill.
“Witness:
“J. N. Dark.”

This deed was duly acknowledged before J. N. Dark, notary public in and for Liberty county, Tex., and filed for record May 1,1901, and recorded in volume X, page 452, of the Deed Records of Liberty County, Tex.

The assignment is without merit, and is overruled.

The action of the court is next challenged as error in permitting the witness C. H. Cain to testify, over the objection of contestants, that some months prior to the death of Miles Berryhill the said Berryhill came to his office with the instrument which is offered for probate, and informed the said Cain that he wanted him to draw a will, and that one Judge Swilley had told him that the instrument offered for probate was not any good, and informed the said C. H. Cain that he wanted to give all his property to the said Ida Berryhill, and wanted said Cain to draw a will to that effect, whereupon Cain advised him, after reading over said instrument offered for probate, that the said will was all right, and gave the property to his wife, Ida Berryhill; the objection to the same being that it was hearsay, irrelevant, immaterial, and could not form any basis of the fact to prove the execution of the will which was offered for probate.

The proposition under the foregoing assignment is that the declarations of a testator before and after the making of a will are inadmissible on the issue of its execution.

The counter proposition is that in the contest filed to oppose the probate of this will appellants charge that the will offered for probate is not' the will of Miles Berryhill, the testator, that the witnesses thereto “did not sign the same in the presence of the said M. Berryhill and in the presence of each other,” that “the same was not witnessed by two witnesses as required by law,” and “because the said M. Berryhill could not read and write, and the. said will was not read to him”; and in questioning witnesses who were called for proponent appellants proved that the attorney, Chapman, who drew this will, at one time was addicted to the use of opiates, thus attempting by such testimony to cast the imputation that the will offered for probate was the production or act of said Chapman, and not the last will and testament of Miles Berryhill. Therefore, that being the nature of the attack upon the will, it was competent to repel such charges by declarations made by the testator after the execution of the will showing that he was familiar with its contents and of necessity that the will had been read or ■ explained to him, and that it had been drawn and executed in accordance with his testamentary desires, and furthermore, under such - circumstances, his declaration could be considered as a circumstance bearing upon the due execution of the will. We believe the testimony was admissible, and therefore the assignment is overruled.

Authorities on the duty of the court to ■ direct a verdict: Joske v. Irvine, 91 Tex. 581, 44 S. W. 1059; Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 44 L. R. A. 279; Parish v. Mutual, etc., Ins. Co., 49 S. W. 156; Seery v. Railway Co., 34 Tex. Civ. App. 89, 77 S. W. 952; Rickards v. Bemis, 78 S. W. 243. On proof of will being sufficient see articles 3267, 3271, and 7857, R. S. 1911; Hopf v. State, 72 Tex. 281, 10 S. W. 589; Elwell v. U. G. Convention, 76 Tex. 514, 13 S. W. 552; Craig v. Craig, 156 Mo. 358, 56 S. W. 1097; Stephens v. Stephens, 129 Mo. 422, 31 S. W. 792, 50 Am. St. Rep. 454; Mays v. Mays, 114 Mo. 536, 21 S. W. 921. Also the following authorities: Tynan v. Paschal, 27 Tex. 300, 84 Am. Dec. 619; Buchanan v. Rollings, 122 S. W. 962; Id., 112 S. W. 785; McElroy v. Phink, 97 Tex. 157, 76 S. W. 753, 77 S. W. 1025; Johnson v. Brown, 51 Tex. 66; Maxwell v. Hill, 89 Tenn. 584, 15 S. W. 253.

The testimony of Mr. Ellis goes to show, and in fact he testified:

“I can’t say that I ever saw this instrument (meaning the will) at the time I testified in the county court, but I must have seen it, because I could not have signed it if I hadn’t seen it.”

Testimony just as cogent and facts just as strong may be shown by circumstances, and but one conclusion can be arrived at from the facts and from the circumstances in this case, and that is that Ellis and Jett signed that will, and witnessed it in the presence of the testator, and the same was read over by some one of them to the testator, and no other conclusion could be reached from the undisputed facts in this case than that the will was entitled to probate. We do not think there was any error in the action of the lower court, and, not finding any merit in the above assignment, it is overruled, and the judgment of the lower court is in all things affirmed.
      itesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GLOBE FIRE INS. CO. v. LIMBURGER et al.
    (No. 5759.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1917.
    Rehearing Denied March 21, 1917.)
    1. Insurance c&wkey;232 — Cancellation—Return 'of Premium.
    Whether insured canceled his policy is not dependent upon the insurer’s agent canceling- a premium charge where insured trusted such agent, who also handled his real estate business, to do so.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 504.]
    2. Insurance <&wkey;229(l) — Cancellation — Waiver of Notice.
    Where insured signed a cancellation of the policy, he waived a provision allowing five days’ notice of cancellation.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 501.]
    3. Insurance &wkey;j232 — Premium—Charge— Cancellation.
    Cancellation of a premium charge against insured by the insurer’s agent does not affect insured’s legal rights when made without his knowledge or consent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 504.]'
    4. Insurance <&wkey;233 — Policy — Cancellation-Validity.
    That insured did not understand he was signing a cancellation of his policy, and did not know the insurer’s agent had been instructed to obtain such cancellation, is insufficient to invalidate the cancellation; no fraud being shown.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 505.]
    5. Insurance <&wkey;235 — Policy — Cancellation — Fraud—Sufficiency of Evidence.
    Evidence that insured did not know what he was signing is insufficient to justify setting aside his written cancellation of a policy because of fraud.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 507.]
    6. Insurance &wkey;>235 — Cancellation—Notice to Agent.
    Evidence that insurer’s agent also handled insured’s fire insurance business for a long period is insufficient to establish an agency to receive notices of cancellation, where such notices had always been given directly to insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 507.]
    7. Appeal and Error &wkey;>117o (5) — Determination — Entry of Judgment.
    Where appellant insurance company proved a cancellation of the policy sued upon, appellee failing to establish grounds for setting it aside and there being nothing to suggest his testimony would be different, judgment will be entered foi appellant.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4579.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Henry Limburger, Sr., and others against the Globe Fire Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment entered for defendant.
    Henry C. King, Jr., M. L. Roark, and Lewright & Douglas, all of San Antonio, for appellant. Irvin R. Stone and Scott & Dodson, all of San Antonio, for appellees.
   MOURSUND, J.

W. A. Wurzbach sued the Globe Fire Insurance Company on a $1,500 fire insurance policy issued by said company, through W. S. Conness, as its agent, to Henry Limburger, Sr., dated May 29, 1913, for the term of one year. Wurzbach’s suit was founded upon a loss payable clause, attached by Conness on September 24,1913. The property was destroyed by fire on January 10, 1914. The insurance company pleaded a general denial; want of consideration to support a recovery on the policy, contending that no premium had ever been paid thereon; that if any premium had been paid, it was returned on June 16, 1913; that immediately upon receipt of advice that the policy had been issued defendant instructed its agent, Conness, to cancel the same; that under date of June 16, 1913, Henry Limburger, Sr., executed and delivered to Conness, as agent, what is known as a lost policy receipt or voucher, reciting that said policy was lost or mislaid, for which reason it could not then be surrendered, and that said Limburger thereby released all of his right and interest in said policy, and agreed to make no claim for loss or damage for which defendant might otherwise be liable under the terms of the policy; that Conness was negligent in failing to cancel said policy, if in- fact he did not do so, when instructed as aforesaid, and in attaching said loss payable clause to said policy, and because of sucb negligence he is liable to his principal, defendant insurance company, for any recovery which may be had against such company. The insurance company impleaded Limburger and Oonness, and ashed judgment over against them for any sum that might be recovered against it, and in the alternative against Limburger for $50.-40, the alleged unpaid premium on the policy. Conness answered by plea of misjoinder of parties defendant and causes of action. Limburger adopted the allegations of the second amended petition of plaintiff and further answered as follows: General denial; denial that he signed the lost policy receipt; plea that if he did sign it, such receipt is void because there was no consideration therefor; allegation that he never knowingly signed such a receipt; plea that five days’ notice of cancellation of policy was not given him; plea that insurance company is estopped to deny that the policy was in full force by reason of the fact that it knew that on September 27, 1913, Oonness, Wurzbach, and Limburger were treating such policy as if it were in full force. Limburger also pleaded misjoinder of parties and causes of action. The insurance company, answering Limburger, alleged that no premium was ever at any time paid by Limburger. The case was submitted on special issues, in answer to which the jury found, in effect, as follows: (1) That Limburger did not know and understand, when he signed the lost policy receipt dated June 16, 1913, that its purpose and effect was to acknowledge cancellation of the policy; (2) that Limburger did not know of the insurance company’s instructions to cancel the policy, (3) that at the time the loss payable clause with the typewritten signature of Oonness as agent was indorsed upon the policy and the policy delivered to Wurzbach, Conness did not have the authority of the Globe Fire Insurance Company to so indorse and deliver said policy or cause it to be so indorsed and delivered; (4) that at the time the loss payable clause with the typewritten signature of Conness, as agent, was indorsed upon the policy and the policy delivered to Wurzbach, Bliss Eckles and Mrs. Matthews did not have the authority of the Globe Fire Insurance Company and of Conness so to indorse said policy or cause it to be so indorsed ; (5) that after the Globe Fire Insurance Company was notified that the loss payable clause had been placed upon the policy and the policy delivered to Wurzbach, said insurance company did not acquiesce in and ratify said acts. Judgment was rendered sustaining exceptions and pleas urging mis-joinder of parties and causes of action in so far as Conness was concerned, and the insurance company’s suit dismissed as to Conness, without prejudice. It was adjudged, upon the verdict, that Wurzbach take nothing against the insurance company; that Limburger recover of the insurance company $1,-682 with interest at the rate of 6 per cent, from January 18, 1916. The insurance company appealed.

Appellant’s first and second assignments of error read as follows:

“First. The court erred in rendering judgment herein in favor of defendant Limburger, because it appears from the undisputed proof in this case that on June 16, 1913, said Limburger signed a written contract called a ‘lost policy receipt,’ by the terms and effect of which he warranted that the policy of insurance involved herein had been lost or mislaid by him; that he would return said written instrument for cancellation, if he should ever find same, and, further, that he did then and there relinquish and waive any and all rights, claims, and demands as against this defendant, under and by virtue of said original policy of insurance; this so-called lost policy receipt constituting a contract between this defendant and said Limburger, which was amply supported by a valuable consideration, and which cannot be legally set aside at the instance of said Limburger, save and except by proper pleading and proof that he was induced through fraud, accident, or mutual mistake of parties to execute said contract of June 16, 1913; moreover, there is no finding of the jury to the effect that said Limburger was induced by reason of fraud, accident, or mistake to execute said contract of June 16, 1913.
“Second. The court erred in rendering judgment herein in favor of defendant Limburger, because it appears from the undisputed proof in this cause that by reason of his execution of the so-called lost policy receipt of date June 16, 1913, he estopped himself to assert as against this defendant any right or cause of action based upon the original policy of insurance involved herein. He was and is thus estopped by reason of his execution of said lost policy receipt, wholly independent of the question of whether or not same constituted a binding contract between himself and this defendant.”

.The lost policy receipt, dated June 16, 1913, was in fact a release of the insurance company from any liability under the policy; and, while in his pleading Limburger denied executing the same, his attorneys in open court admitted his signature thereto. The only pleading in which Limburger attempted to attack the validity of such release if it should be found that he signed it was as follows:

“Further pleading to said paragraph, in the alternative, this defendant affirmatively avers that at the time it is alleged that such receipt was signed this defendant was about 74 years old; that he was and is now unable to read and write the English language; that in signing any instrument of writing in the English language he of necessity relied upon the representations of some other person as to the contents, purpose, and effect thereof; that if any such receipt was ever signed by this defendant, it was so done at the instance of some person acting in behalf of the Globe Fire Insurance Company, and such person, if any, is to this defendant unknown, and that all said facts were to such person well known; that no such person ever presented to this defendant for his signature any such instrument, advising him that the same contained any provision as pleaded in said paragraph, and this defendant never executed any instrument with such knowledge. Wherefore, in event said defendant now has in its possession any such instrument as by it pleaded, because of the facts herein set forth, defendant says that he is entitled to have the same canceled and be relieved- therefrom.”

Tliis plea, when considered in connection with Limburger’s denial of having signed the instrument, indicates that he had no recollection of any such transaction, and therefore was unable to allege any specific acts of concealment or misrepresentation; not recollecting how he came to sign it, he naturally would not be able to allege what induced him to sign it, or what character of instrument he thought he was signing. We do not consider such allegation as sufficient to show that he signed the instrument on account of such fraud or mistake as would be sufficient in law to cancel the same. Nor does his testimony show any such fraud or mistake. He said:

“I cannot swear if I ever signed this lost policy receipt; it is too long a time. I cannot swear I never signed any receipt to Mr. Conness acknowledging that the insurance on nay Austin street property was canceled, knowing what I was signing.”

In answer to a question by the court whether before the fire took place he knew in any manner that the policy had been canceled, he replied:

“No, sir; no. I paid my money in advance.”

On cross-examination, after his counsel had admitted his signature to the instrument, he' said:

“I don’t know why I signed this receipt at the time I signed it; because I can’t read. I don’t know what this paper is (lost policy receipt).”

He did not know whether he went to Conness’ office during the month of June, 1913. Conness testified that in May, 1913, he issued three other policies on this same property, all of which were promptly canceled by the- companies, and great difficulty was experienced by him in getting Limburger to bring in the policies; that when the appellant notified him to cancel the policy involved in this suit he sent a boy for several days to find Limburger, but he was not at home, so finally he wrote a note to Limburger and instructed that it be put under Limburger’s door; that Limburger came to Conness’ office the next day, and Conness explained that the company had canceled the policy, and it had to be returned; that Limburger said he had lost the policy; that then Conness told him he would have to have the policy or a lost policy voucher signed and returned to the company; that he had Mrs. McCormick, who worked' for him at that time, to hand him such a voucher, which he read to Limburger, and Limburger signed it. Mrs. McCormick corroborated Conness in all respects concerning the above testimony, except that she was not sure that Conness read the lost policy receipt to Limburger, but was positive that the matter was fully explained to him.

This testimony, as we view it, relates to the vital issue in the case. Much has been said about payment of premium, but there is no doubt, from the evidence, that the insurance company trusted Conness for the premium and accepted his obligation to pay it. In fact, it was admitted by the insurance company in open court that the policy was in force until June 16, 1913, when Limburger signed the lost policy receipt. Conness, who unknown to the insurance company was Limburger’s agent for the collection of rents on his property and also to procure insurance thereon, trusted Limburger for the premium, agreeing to charge it to him and pay it to the- company out of money collected for Limburger. Now, the evidence conclusively shows that a tentative charge of the premium was made by Conness against Limburger, but before entry thereof in the books it was canceled when the lost policy receipt was signed, and no such charge appeared in several statements furnished Limburger by Conness prior to the fire. Limburger cannot contend that the insurance company is responsible for any debt that Conness might owe Limburger which did not arise from the payment of premium, and when the charge for premium was canceled the premium must be held to have been repaid. In addition, if Limburger made a contract canceling the policy and releasing the company from obligations, it is clear that he trusted his agent to credit him with the amount of premium, and, had the agent failed to do so and kept out said amount of money accruing to Limburger for rents, Limburger could not be heard to say that in so doing Conness was the agent of the company and not his agent. If Limburger contracted to release the company from liability, thereby he accepted notice and waived the five, days allowed in the policy between notice and cancellation, and as he could waive the immediate repayment of premium even if it had been paid to the company, he could not be heard to say, under the facts of this case, that he was entitled to cancellation of the charge against him by his agent as a prerequisite to the taking effect of the release of the policy. Polemanakos v. Austin Fire Ins. Co., 160 S. W. 1134; Westchester Ins. Co. v. McMinn, 188 S. W. 25. On the other hand, the company could not defend on the theory that Conness canceled the charge against Limburger prior to the fire, and that thereby the premium was returned, and no consideration existed for the policy, for if no notice was given Limburger of the cancellation of the policy, the repayment of premium by canceling the charge against him, made without his knowledge or consent, could have no effect on his legal rights. We, therefore, consider that the crucial issue in the case is whether the contract of cancellation and release pleaded by the company and admitted to have been executed by Limburger is shown to have been executed under such circumstances as not to be binding on Limburger.

The jury found that Limburger did not know and understand when he signed the receipt that its purpose and effect was to acknowledge cancellation of the policy. They also found that he did not know of the insurance company’s instructions to cancel the policy. Are these findings sufficient to justify the court in setting aside the so-called receipt which in fact is a contract releasing the company from liability, in effect a contract canceling the policy? If this contract is not set aside, it is useless to talk about notice of cancellation of the policy, for the contract itself provides for cancellation, and Limburger is hound by its legal effect unless reasons exist why it should he set aside and held for naught.

The findings of the jury above set out are, in effect, simply a finding that Limburger did not know the contents of the instrument signed by him. That fact alone would not he sufficient to set aside and cancel the instrument. No issue of fraud or mistake was submitted to the jury, but if there had been any sufficient plea to that effect, could we find from the evidence in support of the. judgment that the trial court was justified in making a finding of fraud or mistake? We think not. In the case of Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 510, we find the following quoted:

“To overturn a written release because of fraud in obtaining it, the proof of the fraud must be clear, precise, and indubitable. Slight parol evidence is insufficient. Thus it was held in a case where the plaintiff proposed to avoid a release executed by him by proof that he could neither read nor write; that he did not know the contents of the paper signed by him; that he understood it to be a receipt, and that he did not intend it to be a release; that this testimony was too slight to warrant the submission of the question of fraud to a jury. Railroad Co. v. Shay, S2 Pa. 203.”

In the case of Chicago, R. I. & T. Ry. Co. v. Williams, 37 Tex. Civ. App. 198, 83 S. W. 248, the court said :

“This, of course, is tantamount to a direction that the appellee can recover in the event the jury find and believe from a preponderance of the evidence that he did not know and understand the nature and effect of the instrument at the time he signed and delivered it, and that such want of knowledge was not caused by his negligence. This is not sufficient to authorize him to recover. Before he would be authorized to recover in this case, the appellee will be required to show, not only that he was ignorant ot the true nature and effect of the release executed by him, but that his want of knowledge in these respects was procured or induced by some act of the appellant amounting to fraud. It is undisputed that appellee was able to read, and could have read the instrument executed by him, and his failure to do so can only be excused by a replication of fraud upon the part of the company’s representative. The principle is illustrated in the language of Mr. Justice Head in Williams v. Rand [9 Tex. Civ. App. 631] 30 S. W. 511; ‘In order for him to avoid its effect, the charge should require him to show, not only that he could not read, and did not, in fact, know its contents, but that it was misread to him, or some other fact that would excuse his negligence in signing an instrument, the effect of which he did not understand.’ ”

See, also, M., K. & T. Ry. v. Craig, 44 Tex. Civ. App. 583, 98 S. W. 907.

As Limburger has evidently no recollection of the matter, his testimony does not show any fraud or misrepresentation, or such a mistake as would excuse him, if- mistake had been pleaded. In his brief he says that his testimony, to the effect that no explanation was made to him, conflicts with that of Conness and Mrs. McCormick. • It is then attempted, in a mild way, to infer that imposition must necessarily have been practiced on the theory that, taking Limburger’s testimony as true, he was not told that it was a lost policy receipt, and therefore he must have been told that it was some other kind of instrument. He has no recollection of signing the instrument, yet undertakes to be positive about what occurred and what did not occur when he signed it. No motive existed for Conness to practice a fraud on him. The company had the absolute right to cancel as provided in the policy. Limburger’s theory that a fraud was practiced on him, it seems to us, is based on his belief that he would have procured, or attempted to procure, other insurance had he been informed of the cancellation. It appears that Conness had tried thrice before this to place the risk with companies he represented, and all had promptly canceled. Limburger denied knowledge of these facts, but at any rate it is clear that he, relied on Conness to keep up his insurance for him, and not on himself. It may be that' Conness was negligent as his agent in not making further efforts to get insurance, but! as agent of the Globe Eire Insurance Company he has no duty to perform -with reference to placing the insurance in another, company, and that company is not responsible because of such failure. The charge of, fraud rests upon too slender a thread to! meet the rule laid down in the case of Wil-j liams v. Rand, supra. We conclude that the testimony does not authorize a finding by the court of fraud to supplement the findings of the jury, and that the judgment should be reversed. The first, fourth, fifth, and seventh assignments of error are sustained. ¡

It is also contended that the evidence conclusively showed an agency on the part of Conness to attend to all of Limburger’s fire insurance business, and that therefore notice to Conness of the cancellation was notice to Limburger. Limburger testified that Conness handled all of his fire insurance during a period of about 20 years. This testimony does not show general authority to represent Limburger in all matters relating to his insurance. It merely shows that he placed all his insurance with Conness during that period, and, in connection with other testimony, would support a finding that Conness during such period was his agent’ to pjocure insurance on his property, but the testimony does not show that Conness was his agent to receive notice of cancellations. The dealings of the parties tend to show that his authority did not extend that far, for notice of cancellations were invariably given Limburger. Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Insurance Co. v. Dalton, 175 S. W. 459; British-American Assurance Co. v. Cooper, 26 Colo. 452, 58 Pac. 592. For annotations on this subject, see note to 38 D. R. A. (N. S.) 623.

As the insurance company pleaded and proved a contract canceling and releasing the insurance policy sued upon, and appellee Limburger wholly failed to show any ground for setting aside and annulling such contract of cancellation and release, and there is nothing to suggest that his testimony upon which his contentions must rest would be other or different upon another trial than that given, we do not feel justified in remanding the case. Wé, therefore, reverse the judgment in so far as it awards appellee Limburger a recovery against appellant, and render judgment that he take nothing by his suit against the insurance company. In all other respects, the judgment will not be disturbed.
      ©s»For other eases see same topic and KEY-NUMBER- in all Key-Numbered Digests and Indexes


text:
    HOYA v. SELF.
    (No. 157.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 1, 1917.
    Rehearing Denied March 21, 1917.)
    Limitation of Actions <@=5148(3) — Statutory Construction — Pubchase-Money Note.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695, effective in 1913, barring notes then four years past due and executed before 1905 as shown by the last record extension, bars such a note although it bore an unrecorded indorsement of extension dated in 1911.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 597.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by Charles Hoya against T. J. Self. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    C. A. Hodges, of Nacogdoches, for appellant. E. B. Lewis, of Nacogdoches, for ap-pellee.
   BROOKE, J.

Appellant, Hoya, sold appel-lee, Self, a tract of land by deed dated February 1,1901, in part payment for which appellee gave appellant Ms note for $161, bearing 10 per cent, interest, with 10 per cent, attorney’s fee, secured by lien against the land, and due December 1, 1901. November 21, 1911, the following was written on the back of the note:

“For value received, I hereby renew the within note and promise to pay same Oct. 1, 1912.”

Suit was filed January 26, 1916. The defendant pleaded the four-year statute of limitation to the note. Appellant answered that the note sued on was valid; that appellant was the original vendor, and by reason of which owned the superior title to the land, and on November 21, 1911, had said nota renewed, in accordance with the law then governing such notes; that same was not affected by the recent act of the Legislature, which did not take effect until 1913. The court held the note barred. A motion for new trial was filed and overruled. Notice of appeal was given as required by law, appeal bond was filed,- errors assigned, and the cause is now properly before this court.

At- appellant’s request, the trial court filed its findings of fact and conclusions of law, as follows:

“I find, as a matter of fact, the note sued on was executed by the defendant February 1, 1901, due December 1, 1901, for $161, bearing 10 per cent, interest from date, with the usual 10 per cent, attorney’s fees clause on the principal and interest as collection fees, if collected by an attorney or in case suit is brought, in favor of the plaintiff and given in part payment for 78 acres of land on the M. J. Sanches Grant about 20 miles northwesterly from Nacogdoches, Tex., fully described in the petition and in said note, and to secure the payment of the note a vendor’s lien was retained therein said note, and find the following payments were made thereon:
February 12, 1903.$25.00
January 29, 1907 . 50.00
February 24, 1909. 50.00
November 1, 1910. 75.00
November 1, 1910. 25.00
January 15, 1913. 40.00
“And the following renewal indorsed on the back of said note by the defendant: ‘November 21, 1911. For value received I hereby renew the within note and promise to pay the same October 1, 1912. [Signed] T. J. Self’ — and no renewal of record.
“Conclusion of Law.
“I conclude as a matter of law, that said note is unenforceable and is barred by the statute of limitation, and find there is yet due on said note $96.39, and 10 per cent, attorney fees, and that plaintiff filed this suit January 26, 1916.
“March 30, 1916.”

Appellant assigns error as follows:

(a) The court erred in rendering judgment for the defendant and in not rendering judgment for the plaintiff for the amount of the note, principal, interest, and attorney fees, with a foreclosure of his lien upon the land described in plaintiff’s petition, because the undisputed testimony showed that the plaintiff was the vendor, and as such held the superior title to said land, and that same is and was a legal, valid, and binding obligation due the plaintiff by the defendant and not subject to the statute of limitation.
(b) The court erred in not rendering judgment for the plaintiff against the defendant for the amount of the note with a foreclosure of his lien against the land, because the cause of action as pleaded was based upon a vendor lien note showing the plaintiff to be the vendor and which note had been by the defendant properly renewed in substance, as follows, to wit: “November 21st, 1911. For value received I hereby renew the within note and promise to pay the same on October 1st, 1912. [Signed] T. J. Self” — by which renewal the same is and was a valid obligation, and not barred by the statute of limitation.
(c) The court erred in not rendering judgment against the defendant for the plaintiff, for the reason plaintiff sought a recovery upon defendant’s obligation execution November 21, 1911, diie October 1, 1912, duly -indorsed on tbe back of tbe original land note, and that same was a valid obligation at tbe time of tbe passage and taking effect of tbe acts passed by tbe thirty-tbird Legislature affecting the renewal of land notes, and same is a valid obligation.”

Article 5694, Vernon’s Sayles’ Texas Civil Statutes, provides:

“The right to recover any real estate by virtue of a superior title retained in' any deed of conveyance heretofore or hereafter executed, or in any vendor’s lien note or notes heretofore or hereafter executed, given for the purchase money of such real estate, shall be barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved in any such notes and deeds conveying the land shall cease to exist four years after the note or notes have matured: Provided the lien reserved in such note or notes may be extended as provided in section 5695 of this chapter: And provided, if several obligations are secured by said deed of conveyance, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes not then barred by the four years’ statute of limitations.”

Article 5695 is as follows:

“When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record in the county clerk’s office in the county in which the land is situated, the lien shall continue and be.in force until four years after maturity of the notes as provided in such extension, the same as in the original, contract and the lien shall so continue for any succeeding or additional extension so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage or the recorded renewal and extension of the same shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned: Provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed prior to July 14, 1905, and which are more than four years past due at the time this act takes effect as shown by the original mortgage, deed of trust or conveyance, or last record extension shall have twelve months after this act takes effect within which they may obtain such record extension as hereinbefore provided for, or bring suit to enforce the liens securing them if same are valid obligations when this act takes effect and if such debt is not so extended of record, or suit is not brought within such time, the right to extend such debt of record, or bring suit to enforce such liens shall be forever barred: And provided that the owners of all notes secured tty deeds of trust or other liens,and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed subsequent to July 14, 1905, shall, have four years .after this act takes effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the liens securing them if same are valid obligations and not already barred by the four years statutes of limitation when this act takes effect, and if such debt is .not extended of record, or suit is not brought within such four years or four years after they mature, they shall be forever barred from tbe right to extend such debt of record, or bring suit to enforce the lien securing the same: And further provided if any such obligations executed subsequent to July 14, 1905, were barred by the four years statute of limitation on the 30th of June, 1913, the owners thereof shall have four years within which to bring suit to enforce the lien securing the same: And providing those owning the superior title to land retained in any deed of conveyance of his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land if their claim to the land is not otherwise invalid and unless such suit is brought within twelve months after this act takes effect, they shall be forever barred from bringing suit to recover the same.”

It will be seen that the latter article pro-, vides that the owners of all notes secured by deeds of trust or other liens, as in the instant case — ■

“which were executed prior to July 14, 1905, and which are more than four years past due at the time this act takes effect, as shown by the original mortgage and deed of trust or conveyance, or last record extension, shall have twelve months after this act takes effect within which they may obtain such record extension as hereinbefore provided for, or bring suit to enforce the lien securing them if same are valid obligations when this act takes effect and if such debt is not so extended of record, or suit is not brought within such time, the right to extend such debt of record, or bring suit to enforce such lien shall be forever barred.”

Tested by tbe above language, tbe note sued on, and tbe conveyance upon wbicb tbe note was based was of record prior to 1905, and there was no recorded renewal or extension of tbe same after tbe act took effect. It'is shown also that more than 12 months elapsed before suit was brought on tbe obligation after tbe act took effect, and that no record extension was obtained as provided in tbe act. We therefore are constrained to hold that the action of the lower court, the same being in obedience to the express provisions of the above statute, was correct, and that there was no error in its action in refusing to enforce or in holding that the said note was unenforceable, and was barred by the statute of limitation.

The assignments are overruled.

We have carefully examined the record, and, seeing no error, the action of the lower court is in all things affirmed.

It is so ordered.
      «teoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    CITY OF FT. WORTH v. BURTON.
    (No. 8497.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 6, 1917.
    On Motion for Rehearing, Feb. 24, 1917.)
    1. Appeal and Error @=>750(1) — Objections —Multifariousness.
    In an action against a city for compensation for the flooding of lands, an assignment of error complaining of a remark of the court in the presence of the jury, while defendant’s witness who was a member of a real estate exchange was on the stand, that he did not intend to have the whole real estate exchange swear in the case, is not open to objections on the ground of multifariousness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074, 3075, 3082, 3083.]
    2. Trial @=>29(2) — Conduct op Triad — Remarks op Court.
    In an action against a city for the flooding of lands, where the city admitted its liability for damages, but questioned the amount of the claim, the court while a real estate man was testifying, stated that he did not intend to have the whole real estate exchange testify in the case, and subsequently remarked to plaintiff, who had testified as to the value of the submerged land which had been sown to alfalfa, that 'there was not much difference between an alfalfa farm and a gold mine. The court also on his own motion questioned a witness as to why he stated the remainder of plaintiff’s lands were enhanced in value by reason of the creation of the water reservoir when he stated he would prefer them before the construction of the reservoir. Held that, as the only issue in the case was that of damages, the first remark by the court that he did not intend to have the whole real estate exchange testify must, in view of other remarks, be deemed prejudicial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 81.]
    3. Eminent Domain @=>303 — Injuries to Hand — Measure.
    In case of injury to or appropriation of lands, the measure of the landowner’s damages is the diminution of its market value for any lawful purpose to which he might have elected to put it, and to which it might be put at the time of the injury or appropriation. .
    [Ed. Note. — For other .cases, see Eminent Domain, Cent. Dig. §§ 815-817.]
    4. Trial @=>194(20) — Instruction.
    ■ ■ In an action for .damages for the flooding of plaintiff’s land, where witnesses had given their opinion as to the value of the submerged premises, in view of the establishment of a stand of alfalfa thereon and the installation of an irrigation plant, a charge that the jury in considering damages should take. those particular elements into consideration is erroneous as on the weight of the evidence.
    5. Evidence @=>553(1) — Expert Testimo NX-Hypothetical Questions.
    A hypothetical question having basis in the evidence of the party propounding it is warranted, though it disregards the evidence of the adversary party.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369, 2372, 2374.]
    6. Evidence @=>474(18) — Opinion Evidence —Expert Testimony.
    A witness having testified that the value of lands in the vicinity was ascertained by the revenue produced, and who was conversant with the crops raised on a particular piece of land, is competent to testify as to the value of such land, though he did not know of any land of that kind being sold in the vicinity.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2217.]
    On Motion for Rehearing.
    7. Appeal and Error @=>722(1) — Assignments op Error — Statute.
    Statutes and rules as to the form and sufficiency of assignments of error should be liberally construed so as not to cut off the approach of parties in good faith seeking relief for prejudicial errors.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996.]
    8. Appeal and Error @=>662(3) — Assignments of Error — Sufficiency.
    In view of Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, declaring that an assignment shall be sufficient which directs the attention of the court to the error complained of, an assignment of error complaining of a remark made in the presence of the jury while a witness for defendant was on the stand, based on a bill of exceptions reciting that at the conclusion of the testimony of a witness the court asked defendant’s attorney how many more witnesses he had on the same lines, and the attorney stated he did not know, whereupon the court directed a recess for five minutes to determine that question, is not open to attack on the ground that the bill of exceptions was not sufficient to show that the remarks were made in the presence of the jury.
    [Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. § 2852.]
    9. Appeal and Error @=>1046(5) — Harmless Error — Remittitur.
    In an action for damages for flooding lands, where the verdict was large, and the court made improper remarks before the jury, the error cannot be disregarded on the ground that it affected only the question of excessiveness of the verdict, and that the Court of Civil Appeals did not determine the amount of the excess.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4134.]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Action by J. W. Burton against the City of Ft. Worth. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    T. A. Altman, B. L. Agerton, and A. B. Curtis, all of Ft. Worth, for appellant. Slay & Simon, Capps, Cantey, Hanger & Short, and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellee.
   BUCK, J.

This suit was instituted by ap-pellee, J. W. Burton, for the recovery of damages from appellant, the city of Ft. Worth, on account of the overflow and submerging of a portion of appellee’s lands lying contiguous to the West fork of the Trinity river, caused by the construction of a dam across said river about two miles south of appellee’s said lands. Said dam was erected for the purpose of constructing a reservior, known as Lake Worth, and it was alleged by plaintiff that, by reason thereof, the water which had previously drained away from ap-pellee’s said lands was caused to back up on, and remain and stand on, about 209 acres of the tillable portions of said land, and that thereby said portions of said land were permanently appropriated by appellant. Appel-lee alleged that the water standing on his cultivated land during the .warm season of the year became stagnant and afforded a breeding ground for mosquitoes, which during the greater portion of the year rendered appel-lee’s home and premises to his family and stock well-nigh uninhabitable, and that by reason thereof, and by reason of the fact that appellee’s valley, or farming, land had been appropriated by appellant, the remaining portion of his land, mostly upland, consisting of 261.8 acres, had been depreciated in value. Appellee further alleged that his 470.8 acres were situated approximately 9% to 10% miles from the city of Ft. Worth; that most of said 209 acres had been sodded in alfalfa, and alfalfa was growing on the same at the time of the alleged overflow, which it was alleged occurred during August, 1914. 1-Ie alleged that the tillable land on said place was of the reasonable market value of $300 per acre, and that the nontillable land, when taken in connection with the tillable land, was of the reasonable market value of $50 per acre, and that the market value of said tillable land so submerged had been totally destroyed, and that the market value of said uplands had been diminished in the sum of $15,000, and that the crop growing upon said tillable land for the year 1914 was of the reasonable value of $5,000; that the improvements on said place were of the reasonable market value of $7,000; and that an irrigation plant which had been installed was of the reasonable market value of $2,500. Damages were sought in the total sum of $62,700.

Appellant admitted that it had constructed a dam and reservoir such as described in ap-pellee’s petition, and that in the construction of the same it had become necessary to take about 209 acres of appellee’s said lands, and that said portion of said land was, and would be, covered with water impounded by said dam. Appellant averred its willingness to pay appellee the reasonable value of said land so appropriated, but denied that the uplands belonging to appellee had been damaged by the overflow of appellee’s bottom lands, and alleged; on the contrary, that the value of said uplands had been increased by the construction of said reservoir. It alleged that the reasonable market value of said cultivated lands was not more than $35 per acre, and that the reasonable market value of appellee’s nontillable lands, considered separately from the tillable lands, did not exceed $15 per acre. Hence, liability having been admitted by appellant, the controlling issue is as to the amount of damages to which appellee is entitled.

On October 23, 1915, the cause having been submitted to a jury under a general charge, a verdict was returned for plaintiff in the sum of $34,903 for the 209 acres of land appropriated by appellant, and $1,305 for the depreciation of the upland of 261.8 acres, making a total of $36,208, with interest. From a judgment for plaintiff in said total amount, the defendant appeals.

The record in this case is quite voluminous, the transcript consisting of some 111 pages, and the statement of facts of 263 pages, and in order to consider intelligently the questions raised under appellant’s ten assignments it has been necessary for us to devote considerable time and labor in reading this lengthy recital of the evidence. Much testimony was introduced pro and con as to the value of the 209 acres, and the evidence upon this item presents a .wide range. Some of ■ plaintiff’s witnesses testified that the market value of said 209 acres was $400 an acre, while some of defendant’s witnesses fixed the value at an amount as low as $35 an acre. Perhaps the controlling issue entering into the question of market value was the acreage out of said 209 acres which had prior to the overflow been successfully sodded with alfalfa, the plaintiff claiming that some 163 acres had been so sodded, and the defendant claiming that only about 3 acres had been successfully sodded. Much of the testimony, and especially on the part of plaintiff, upon this point was in the nature of expert evidence, elicited in response to hypothetical questions, and hence its probative value depends largely on the quantum and nature of the evidence introduced by plaintiff and defendant, respectively, as to whether the 209 acres had been proven peculiarly adapted to the growing of alfalfa, by reason of the nature of the soil, climatic conditions, and the adaptability of the land to irrigation. Plaintiff had prior to the overflow installed an engine and pump to raise water from the Trinity river, and had constructed a flume and irrigation ditches or canals for the purpose of distributing the water over the land sought to be planted in alfalfa.

Appellant’s third assignment is as follows:

“The court erred in making remarks in the presence of the jury while P. W. Hunt, a witness for defendant, was on the stand to the eif ect that he did not intend to have the whole real estate exchange of Ft. Worth swearing in this case, neither to have everybody in Ft. Worth swearing in it, because said remarks were highly prejudicial to defendant, calculated to prejudice the jury against defendant, and creating the impression that defendant was unduly consuming the time of the court and jury, and tending to impress upon the jury that the court did not in fact believe witnesses introduced by defendant, as further appears in defendant’s bill of exception No. 20, filed herein and made a part hereof.”

This assignment is predicated upon defendant’s bill of exception No. 20, from which it appears that at the conclusion of the testimony of the witness P. W. Hunt, shown to be a real estate dealer in the city of Ft. Worth, and a witness introduced by defendant on the question of real estate values, the court said:

“Mr. Curtis, how many more of these witnesses have you got on the same line?
•' “Mr. Curtis: I do not' know.
“The Court: I want to know; I don’t intend to have the whole real estate exchange of Ft. Worth swearing in this case.
“Mr. Curtis: I except to the remark.
“The Court: You can have your exception; I am going to give you reasonable time. Ret me know how many more of these witnesses you want—
“Mr. Curtis: If you will give me a little time—
“The Court: Because I am not going to have everybody in Ft. Worth swearing in this case.
“Mr. Curtis: I except to that remark also.
“The Court: We will have a recess for five minutes. I want to know just how many you are going to have by the time we resume.”

While W. L. Sargent, witness for the plaintiff, was testifying, and after he had testified that in his opinion the market value of the bottom land, embracing in part the 163 acres claimed by plaintiff to be well sodded in alfalfa, was of the reasonable market value of $400, and after he had been examined at length by counsel for each side, the court asked him:

“There is not much difference between your alfalfa farm and a gold mine, is there?”

To which witness answered:

“I would rather have the alfalfa farm than a good many of the gold mines.”

Defendant excepted to this remark, and the court replied as follows:

“I just wanted to know; I was not making any remark; I was asking the witness for information.”

The alleged prejudicial error in the remarks of the court is presented in appellant’s first assignment of error.

While R. L. McMurray, witness for defendant, was testifying, and after he had stated his experience in the real estate business, and his acquaintance with the Burton tract of land, and that in his opinion the bottom land was of the reasonable market value of $75 per acre, and that the upland was prior to the overflow of the reasonable market value of $20 per acre, and that its value had been enhanced by reason of the presence of the body of water resulting from the overflow, and after he had testified that personally he would rather not have the upland in its present condition with the water there than the upland before the water was there to live on himself, the court said:

“If you would not want to live there, why would anybody else want to?”

Witness answered:

“I cannot answer that question; lots of people want to do things I don’t.
“Mr. Curtis: I object to the question of the court.
“The Court: I just wanted to know.
“Mr. Curtis: I do not think it is proper.
“The Court: He said the market value increased. ' I do not want to do anything that is wrong at all.
“Mr. Curtis: I think it is, and I except.
“The Court: I want to ask a question. The court wants to be informed as well as the jury on this question of increasing the market value with reference to the reservoir. You testified that the market value was increased how much per acre?
“Answer: Five to ten dollars an acre.
“Question: Now, you said in answer to the question that was propounded to you that you would not want to make.it a residence or live there at all like it is. The court wants to know and wants to ask this question: What makes the increase of market value — does somebody else want to buy it for some other purpose?
“Answer: Well, I cannot answer that question, only I know men are inquiring continually for that land up around the lake and wanting to buy it. What their object is I cannot tell.”

These three assignments present kindred questions-, and are grouped by appellant for discussion. We have come to the conclusion that the third assignment presents prejudicial error, especially taken in connection with the proceedings set out under the first and second assignments. While appellee objects to the consideration of all three assignments oñ several grounds mentioned, among others multifariousness, we are of the opinion that, at least as to the third assignment, none of the objections should be sustained.

We think it was improper for the court to make the remark:

“I don’t intend to have the whole real estate exchange of Ft. Worth swearing in this case.”

We think said remark was reasonably calculated to, and probably did, cause the jury to believe that the court did not attach any importance to the testimony of defendant’s witnesses who were real estate agents, and that, in the opinion of the court such testimony was of little probative value. Even though it should be said that a trial court has the authority, in the exercise of a reasonable judicial discretion, to limit the number of witnesses upon any particular issue, yet, if so, he should exercise his authority without the use of language tending to disclose any existing or apparent opinion held by the court as to the weight of the evidence theretofore given or sought to be introduced; and where the remarks of the court are sufficient to indicate an opinion held by him as to the probative effect of such testimony, and especially in a case where the issue was-sharply contested, as in this, and where the verdict to be rendered could reasonably take a wide range, according to whether the jury believed the testimony of the witnesess for the plaintiff or for the defendant, we think such action by the court presents reversible error. Gorman v. Brazelton, 168 S. W. 434; G., C. & S. F. Ry. Co. v. Loyd, 175 S. W. 721; St. L. & S. F. Ry. Co. v. Lane, 49 Tex. Civ. App. 541, 110 S. W. 530; T. & L. Lbr. Co. v. Rose, 103 S. W. 444.

In its fifth specification of error the appellant complains of the third paragraph of the court’s main charge, which reads as follows:

“If you find and believe from the evidence that at the time of the flooding of said 209 acres of land plaintiff, J. W. Burton, had growing upon a part thereof a crop of alfalfa, and if you further find from the evidence that plaintiff had installed an irrigation plant thereon and had made preparations to irrigate said land, then you may consider such facts, if any, in determining the reasonable market value, if any, of said 209 acres of land, if you find and believe from the evidence that the market value, if any there is, is affected thereby.”

This paragraph was objected to in the trial court, and is assailed here, on the ground that it is a charge upon the weight of the evidence and places undue emphasis on certain isolated facts in evidence, and further because under the evidence, it is claimed, the value of the irrigation plant, if any, and the value of the alfalfa that was on the land at the time the land was flooded, were considered by all the witnesses in estimating the market value of the land at the time of such flooding, and further because the court did not give in connection with this charge the instruction that if the plaintiff, by the exercise of ordinary care, after he knew or could have known that his land would he flooded, could have removed the engine from its location, and thereby saved it, and failed to do so, he would not be entitled to recover for the value of said engine.

It is generally true that in a suit to recover damages for injury to, or appropriation of, land, the measure of damages is the diminution of its market value for any lawful purpose to which the owner might elect to put it, and to which it might be subjected at the time of the injury or appropriation. Railway Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; F. W. & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 687, 4 S. W. 365; Gas & Electric Co. v. Belden, 103 Tex. 59, 63, 123 S. W. 119, 27 L. R. A. (N. S.) 237; Railway Co. v. Anderson, 173 S. W. 908. Therefore it was proper for the jury to consider upon the question of the market value of the land in controversy and the amount of damages to which plaintiff was entitled the state of cultivation of the land, the improvements thereon, the uses to which it might be put, etc., but we think it was improper for the court to select two circumstances entering into the question of valuation and to charge the jury specifically that they might consider these items in determining the market value of the bottom land. With equal propriety the court might have charged that, if the plaintiff had made one or more unsuccessful efforts to sod this bottom land with alfalfa, which the evidence seems to establish, they might consider such failures in determining the availability of such land for raising alfalfa, and therefore the market value of the land. The fact that plaintiff had a crop of alfalfa on the land at the time of the flooding, and the fact that prior thereto he had installed an irrigation plant thereon and had made preparations to irrigate the land for the purpose of raising alfalfa, were facts and conditions included in the hypothetical questions propounded to the expert witnesses who testified in plaintiff’s behalf in this case, and we think it was not proper that these two elements of damages should be singled out by the court in his charge. Railway Co. v. Kutac, 76 Tex. 473, 478, 13 S. W. 327; Dupree v. T. & P. Ry. Co., 96 S. W. 647.

It is urged by appellee in his counter proposition to this assignment that because of the • fact that the appellant requested its special charge No. 2 in effect, instructing the jury that they could not consider, as having a value separate and apart from the land itself, the crop of alfalfa growing on said land, but only might consider it as an element affecting the market value of said land, the appellant is in no position to complain of the giving of the instructions contained in said third paragraph of the court’s main charge. But, as the judgment must be reversed for reasons heretofore given, we do not find it necessary to discuss this answer of appellee, in the nature of a confession and avoidance, but suggest that upon another trial the error pointed out be avoided.

Under its sixth and seventh assignments appellant complains that the hypothetical question propounded to appellee’s witness F. B. Parker did not contain all the material elements that were in testimony regarding appellee’s land, because the evidence showed that it was not a good set of alfalfa, and was not in irrigation, etc.; the question being predicated upon an assumed state of facts that it was alfalfa land subject to irrigation, with an irrigating plant on it, of class A, silt soil, etc. We are inclined to think that there is no error presented in the ruling of the court in permitting the witness to answer the hypothetical question propounded. While a hypothetical question should not include facts not in evidence, yet such a question may be predicated upon the state of facts established by the proponent’s evidence, and in order to make the question admissible it is not necessary to include the contrary facts which the adversary’s testimony would tend to establish. It is only sufficient that there is evidence tending to prove the supposed facts constituting the basis of the hypothetical question asked. Railway Co. v. Compton, 75 Tex. 667, 673, 13 S. W. 667; Collins v. Chipman, 95 S. W. 666. If the opposite party desires to elicit the opinion of the expert witness upon a state of facts which he claims other evidence introduced tends to establish, he may do so under cross-examination, and by propounding the hypothetical question, including such facts as have been omitted, and which the evidence-tends to establish.

The eighth- assignment is directed to-the admission of the testimony of B. L. Burton, son of plaintiff, upon the issue of the' market value of the land on the ground that the witness did not show himself qualified. Upon cross-examination the witness testified that he did not know of any land of that kind being sold in that vicinity; in fact, there was not any land Of that kind in that, section; that he reached his conclusion as to the market value of the land by the amount the land had actually produced and would produce. A number of witnesses for plaintiff had testified that the market value of farm lands was generally based on the annual revenue derived therefrom; such revenue being accepted as ten per cent, of the value of the land. The witness Burton could properly testify as to the annual income from the land in question, and of land of like kind and condition, and if he knew of his own knowledge that the market value of lands generally in that vicinity was based on the revenue derived therefrom, we are of the opinion that he could properly testify as to such market value. But, on the other hand, we are of the opinion that it would not constitute expert testimony for a witness with actual knowledge of the productive value of land, but with no independent knowledge as to the reasonable market value thereof, to state that by reason of the land producing annually so much, and by reason of the testimony of expert witnesses to the effect that the market value of lands generally was based on the yearly productiveness, therefore the land in question was of the reasonable market value of so much. Such a process of reasoning would not qualify the witness to testify as an expert, but would be rather an argument and conclusion of the witness, and a conclusion based on such facts and circumstances would be one for the jury rather than for the witness to draw.

For the reasons given, the judgment of the trial court is hereby reversed, and the cause remanded.

On Motion for Rehearing.

Appellee urges that we erred in our original ' opinion in sustaining appellant’s third assignment: (1) Because appellant’s bill of exceptions does not affirmatively show that the remarks of the court of which complaint is made were uttered in the presence and hearing of the jury; and (2) because this error, if any, could only affect the question of the excessiveness of the verdict, and that this court failed to affirmatively hold the verdict to be excessive.

In support of the first proposition the case of Waggoner v. Dodson, 96 Tex. 6, 68 S. W. 813, 69 S. W. 993, and many other cases are cited. It is true that in Waggoner v. Dodson the 'Supreme Court did intimate, without holding, that Chief Justice Conner, of this court, was correct in declaring the rule to be:

“That a party desiring to present for revision a ruling of the character involved in this case must do so by bill of exception which in terms is so specific as to point out the precise error intended to be relied upon, and that it should state the facts so as to exclude any reasonable conclusions of fact other than those stated upon which the decision could be maintained.”

The opinions in all the cases cited by ap-pellee were rendered prior to the amendment of article 1612, Revised Civil Statutes 1911, in 1913 (Acts 33d Deg. c. 136), by which were added:

“But an assignment shall be sufficient which directs the attention of the court to the error complained of,”

While the former strictness as to form has been somewhat relaxed by reason of this above amendment, yet we understand the rule still to be that in order for an assignment to be held sufficient it must point out the specific error of which complaint is made. West Texas Supply Co. v. Dunivan, 182 S. W. 425; Wardlow v. Andrews, 180 S. W. 1161. Statutes and rules as to the form and sufficiency of assignments should be liberally construed, so as not to cut off the approach of parties in good faith seeking relief for errors ímejudicial to them in the trial of the case. Land Co. v. McClelland Bros., 86 Tex. 190, 23 S. W. 1103, 22 L. R. A. 105; Orange Lumber Co. v. Ellis, 153 S. W. 1180; 'Rice v. Dewberry (Sup.) 93 S. W. 721. The bill of exceptions upon which the third assignment is based, while it does not say in so many words, makes it apparent that the remarks of the court objected to were uttered in the presence and hearing of the jury. If any doubt as to this conclusion could arise by reason of the failure to so state in so many words, it is removed by the supplemental charge, which instructed the jury to disregard such remarks. Hence we conclude that appellee’s first contention must be overruled.

The second point raised was decided by the majority of the court, adversely to appellee’s contention in T. & P. Ry. Co. v. Rasmussen, 181 S. W. 212, 218, and for the reasons there given the second contention -cannot be sustained. As in the Rasmussen Case, we do not pass upon the question of the ex-cessiveness vel non of the verdict, but only hold that the remarks of the court were of a nature to and probably did increase the verdict beyond the amount which the jury would otherwise have found.

It is further urged that we erred in sustaining the fifth assignment; that a different rule obtains in condemnation proceedings from the one applicable to other suits as to the duty of the court in charging upon the different elements of damages. Appellee cites us to the following cases, to wit: Crystal City & U. R. Co. v. Boothe, 126 S. W. 700; B. & G. N. Ry. Co. v. Elliott, 148 S. W. 1125; City of El Paso v. Coffin, 40 Tex. Civ. App. 54, 88 S. W. 502; Wichita Falls & W. Ry. Co. v. Wyrick, 147 S. W. 730—to sustain his contention that the charge complained of was proper and was not on the weight of the evidence. Wg have read each of these cases, and believe that each is distinguishable from this case; but, if not, we are not prepared to follow a Court of Appeals decision which would hold that the court was required or authorized to instruct the jury that, in passing upon the market value of the larid injured or appropriated, they should consider certain mentioned elements of value, such as partie-ular improvements, its adaptability to the raising of certain crops, its location with reference to market or to business, etc., which elements of value in the introduction of the testimony were included in the hypothetical questions propounded to the witnesses used as experts on the question of value, and which were evidently considered by such witnesses in determining the market value of the land, and entered into their expressed opinion as to such market value. It is true that in suits involving the injury to land, or the appropriation thereof, it is proper for the court to charge the jury that it is the right of the owner to have his damage measured by the extent of the injury to the land used for any lawful purpose to which he had appropriated it, desired to appropriate it, or to have it adapted (St. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908); yet we do not think under this rule the court would be justified in selecting certain elements of value which have already been considered by the witnesses upon value in determining their opinion, and call the attention of the jury particularly to these elements. Such an instruction involves rather an element of value than one of damage. In a case like this, where there was an entire appropriation of the land, the measure of damages would be the reasonable market value of the land, all things considered, at the time of such appropriation. In the charge objected to the court in effect, singled out certain, bits of evidence tending to establish certain elements of value and specifically instructed the jury that they might consider such elements in determining the market value of the land. We still hold that the charge as given was on the weight of the evidence.

The motion for rehearing is overruled.
      ifcsFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes