author: McMEANS, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. BELL.

    (No. 7041.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1916.
    Rehearing Denied Feb. 3, 1916.)
    1. Master and Servant <§=>278 — Injuries to Servant — Sufficiency of Evidence — Negligence-Proximate Cause.
    In a freight brakeman’si action for injuries through breaking of a handhold, evidence held sufficient to support the jury’s affirmative answers, favorable to plaintiff, to the special issues on defendant’s negligence and proximate cause of injury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. I>ig. §§ 954, 953-958, 960-969, 971, 972, 977; Dec. Dig. @~>27&]
    2. Damages <S=> 130 — Personal Injuries — Excessive "Verdict.
    In a freight brnkeman’s suit for injuries when a handhold broke, precipitating him to the ground with great force and violence, verdict for $12,500 was not so excessive as to show that the jury was actuated by an improper motive.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-3G7, 370; Dec. Dig. <S==>130.]
    3. Trial 33 — Remark oe Counsel.
    In a freight brakeman’s action for injuries, where counsel for tho railroad mentioned that an annuity equal to the full earning power of plaintiff could be purchased for $10,000 or $11,-000, whereupon one of plaintiff’s attorneys stated that he would like to know in that connection who would buy an annuity for Mm, but thereafter stated to court and jury that lie made the remark in jest, and withdrew it, requesting the court to instruct the jury not to consider it, which was done, there was no error, there being nothing in the Size of the verdict showing the jury were influenced.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec; Dig. <S=>133.]
    Appeal from District Court, Harris County.
    Suit by Louis W. Bell against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Aliiirmed.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appel-lee.

      Application lor writ of error pending in Supreme Court.

   McMEANS, J.

Louis W. Bell brought this suit against the St. Louis, Brownsville & Mexico Railway Company, to recover damages for personal injuries sustained by Mm. Plaintiff alleged, in substance, that he was In the employment of defendant in the capacity of freight brakoman on defendant’s train running between Corpus Christ! and Iiobs-town; that while said train was running at its ordinary speed, plaintiff undertook, in the discharge of his duties, to climb down from the top of a box car of said train, in order to see about a hot box on one of the cars of said train, and that in doing so, and proceeding in the customary and usual manner, he took hold of the handhold on top of said box car, when the part of the car on which said handhold was placed suddenly and unawares to him broke, separated, and came apart, releasing the handhold and the small piece of timber to which it was attached, whereby he was ttoown and caused to fall from said train and to strike the ground with great force and violence, and to suffer the injuries of which he complained. He further alleged:

“That the part of said car which broke, separated, and came apart and the handhold which was released were each and both defective and insufficient, in that tho materials in the construction of such part of said car were unsound and unsuitable, and in that such part of said car was imperfectly constructed, and in that said handhold was improperly attached to said car, and in that such part of said car had been ‘cornered,’ or otherwise injured, so that it was weak and unsubstantial, and liable to break, separate, or come apart, and thereby release said handhold and the small piece of timber to which it was attached. That such defective and insufficient condition of said car and handhold was known, or in the exercise of ordinary care would have been known, to the defendant or agents or emplojés representing it in that behalf, within a reasonable time to have been remedied before the injury herein complained of, and such defects and insufficiencies so existing at the time of such injuries to plaintiff were each and all due to negligence of the defendant towards him. That aforesaid injuries to plaintiff were proximately caused to him by the negligence of the defendant in the particulars aforesaid, severally and collectively, and would not otherwise have happened.”

The answer of the defendant consisted of a general denial of the allegations of plaintiff’s petition. The ease was submitted to a jury upon special issues, and upon the return of their answers, all of which were favorable to plaintiff, the court entered judgment in. plaintiff’s favor for $12,500, being the amount found by the jury as reasonable compensation for the injuries sustained by him. From this judgment the defendant has appealed.

The fifth, sixth, and seventh special issues submitted by the court to the jury, all of which were answered in the affirmative are as follows:

“(5) If the car was so defectivo or insufficient, would the defendant, or any of its agents or em-ployés representing it in that behalf, in the exercise of ordinary care have known thereof after the car was received by it, and before it was taken into and carried as a part of the train in question?
“(6) If the car was defective or insufficient, as above submitted, was its being carried in this train in question in that condition due to negligence on the part of tho defendant — that is, due to a failure on its part to exorcise ordinary care to see that such car was in reasonably safe condition?
“(7) Was negligence on tho part of defendant as above submitted, if any, a proximate cause of alleged injuries to plaintiff; that is, a cause without which such injury would not have happened, and from which such injury to him or some like injury might reasonably have been anticipated as a natural and probable consequence?”

Appellant by its first assignment of error assails the action of the court in refusing to grant its motion for a new trial, the contention being that the affirmative answers of the jury to the above issues were unsupported by any evidence. The evidence in the record justifies the conclusion, and warranted the jury in finding that when plaintiff attempted to descend on the side of the car, the top handhold, together with a part of the car to which it was fastened, separated from the ear, thus causing plaintiff to fall; that the-part that broke and the fastenings of the handhold were defective and insufficient, in that the materials in the construction,- of same-were unsound and unsuitable, and tbe handhold was improperly attached to the car. The train had only shortly before plaintiff fell left Corpus Ohristi, which is an inspection-point for defendant, and the ear in question had been in defendant’s possession a sufficient length of time for it to have been properly inspected. While the evidence does not show whether the ear had in fact been inspected, the jury were warranted in finding that the defects which allowed the handhold to pull out, and thus cause plaintiff to fall, could have been discovered by a reasonable inspection, and that the ear was incorporated in and carried in the train in the condition that it was by reason of the defendant’s failure to exercise ordinary care to see that the same was in a reasonably safe condition; that such failure was negligence, and such negligence was the proximate cause of the injuries sustained by plaintiff. Nowlin v. Hall, 97 Tex. 441, 79 S. W. 806. The assignment is overruled.

What we have said above sufficiently disposes of the second assignment of error, which in a different form presents the same contention as the first.

The third assignment complains that the verdict is so excessive as to manifest that the jury in making their award were not governed by the testimony, but by sympathy for the plaintiff, prejudice against the defendant, or some other improper motive. We have examined the evidence upon the issue of the extent of plaintiff’s injuries, and find therefrom that the amount allowed the plaintiff was not more than to reasonably compensate him. Certainly it cannot be found that the award was so large as to indicate that the jury were actuated by an improper motive in fixing the amount of his compensation. The assignment is overruled.

While defendant’s counsel was addressing the jury and discussing the measure of damages and the evidence as to the amount that would reasonably compensate the plaintiff for his injuries—

“ho mentioned what was deemed by him to be a mathematical calculation that an annuity equal to the full earning power of the plaintiff could be purchased foi' $10,000 or $11,000.”

Whereupon one of the plaintiff’s attorneys interrupted the counsel with the statement that he would like to know, in that connection, who would buy an annuity for him. To this remark defendant excepted, whereupon plaintiff’s said attorney stated to the court and jury that he made the remark in jest, and withdrew it, and asked the court to instruct the jury not to consider it, which the court did. The fourth assignment is predicated upon the refusal of the court to grant to defendant a new trial on account of the above remark of plaintiff’s counsel, the contention being that the remark had the effect of presenting to the jury, as a basis for a recovery, a matter not embraced in the pleadings, and that the same was highly prejudicial to the rights of the defendant, and tended to influence the jury in their finding of the amount of plaintiff’s damages. We think the assign-

ment is without merit. We must assume that the jury gave heed to the request of plaintiff’s counsel and the admonition of the court, and that they did not permit the remark complained of to influence them in fixing the compensation they allowed, and it is our opinion, based on the evidence, that there is nothing in the size of the verdict to indicate that the jury were influenced by the remark. The assignment is overruled.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.
      i&xoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»lTor other oases see same topic and KEY-NUMBER in. all Key-Numbored Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    PRUDENTIAL LIFE INS. CO. OF TEXAS v. SMYER et al.
    (No. 879.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 5, 1916.
    On Motion for Rehearing, Feb. 9, 1916.)
    1. Insurance <©=>33 — Issuance of Stock for Note — Constitution.
    The issuance of stock by an insurance company in return for a noto and a deed of trust and the note so given were void, being in violation of Const, art. 12, § 6, providing that no corporation shall issue stock except for money paid, labor done, or property actually received, although a third person subsequently sold property to the corporation, taking the note in part payment.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 38; Dec. Dig. <©=>33.]
    2. Insurance <§=>33 — Insurance Companies —Issuance of Stock for Note — Statute.
    The issuance of stock by an insurance company for a note secured by deed of trust, and the note itself, were void, as in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4725, 4726, 4728, touching the organization of insurance companies, and providing that the amount of an insurance company's capital stock must bo subscribed and fully paid up and in the hands of the corporators before articles of incorporation are filed, etc.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 38; Dec. Dig. <©=>33.]
    3. Bills and Notes <©=>375 — Note Violative of Statute — Right of Holder.
    A note executed in violation of a statute is void, even in the hands of one who would otherwise be a bona fide holder.
    [Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dee. Dig. <®=5 375.]
    4. Bills and Notes <©=>277 — Indorser's Liability-Liability on Void Note.
    An insurance company which issued its stock, in contravention of Constitution and statute, in return for a note secured by deed of trust, and before maturity indorsed the note to a third person as part consideration for property transferred to it, was liable to the third person on its indorsement, though the note was void as between it and the maker, since an indorsement warrants the validity of the instrument and is a separate and independent contract.
    [Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. § 626; Dec. Dig. <@=>277J
    On Motion for Rehearing.
    5. Appeal and Error <©=51175 — Disposition —Rendering Judgment — Statute.
    By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, where the judgment below is reversed, and there is no matter of fact to be ascertained, damage to be assessed, and the matter to be decreed is not uncertain, the court will render such judgment as the court below should have rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4673-4587; Dec. Dig. ©=» 1175.]
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Action by J. F. Smyer against the Prudential Life Insurance Company of Texas and Nat M. Washer. From a judgment sustaining demurrer to the Insurance Company’s answer, it appeals.
    Modified and judgment rendered.
    Jas. A. King, of Albany, for appellant. Y. W. Holmes, of Plainview, for appellee Smyer. Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellee Washer.

      Application for writ of error pending in Supreme Court.

   HALL, J.

This action was brought by J. F. Smyer against the Prudential Life Insurance Company and Nat M. Washer to cancel a note for $6,000 given in payment of 24 shares of the capital stock of the Prudential Life Insurance Company of Texas, and also to cancel a deed of trust on certain land in Swisher county, executed to secure the payment of said note, and for the recovery of $480 interest paid thereon. Plaintiff prayed for the cancellation of the stock certificates representing said shares in said corporation, alleging that the note and deed of trust had been transferred to Nat M. Washer, and prayed that, if judgment be rendered in favor of Washer on the note, he have judgment over against the life insurance company. The ground assigned for the cancellation of the note, trust deed, and stock certificates was that the note and trust deed were executed and delivered in payment for 24 shares of the capital stock of the company. It is alleged in plaintiff’s petition that said note was given for the purpose of paying for 24 shares of stock in said company issued by the company to plaintiff, and for no other purpose. That part of the petition which shows the transfer of the note to Washer alleges, in substance, that Washer sold to the said life insurance company a certain building in San Antonio, at the total price of $176,000; that the building was reasonably worth $200,000 and that ap-pellee’s note, given with other like notes, was part of the consideration paid to Washer for said building; that at the time Washer took the said notes the officers of the defendant company represented to him that the same were good and valid obligations; that defendant relied upon said representations of the defendant company, and, had he known the notes, including the note of this defendant, were invalid, he would not have accepted the same. The court overruled the general demurrer of the life insurance company to the first amended original petition of plaintiff, and sustained the general demurrer of the defendant Washer to the same pleading.

The life insurance company filed an answer, setting up, in substance, the transaction as above set out between it and appellee Smyer, and the transfer thereof to Washer, alleging that it received for the note in question the full sum of $6,000 by way of interest in the property transferred in exchange for the notes. The court sustained a general demurrer urged by appellee to this answer. From these rulings of the court, this appeal is prosecuted.

Appellant insurance company insists that the court committed error in overruling the general demurrer of the life insurance company to plaintiff’s first amended original petition, because it appears therefrom that, even if said stock was issued for the notes and deed of trust, it was subsequently satisfied by the sale of the same to Washer, and that property was received therefor at the fair and reasonable value of said note, which it is insisted is in full compliance with the law, and had the effect of giving vitality and validity to the note. The petition having alleged that the stock was issued at the time the note was executed, it is well settled in this state that the transaction is in violation of article 12, § 6, of the state Constitution, and is void. This is held in' unequivocal terms by our Supreme Court in San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1176, where it is said:

“Section 6, art. 12, of our state Constitution, reads as follows: ‘No corporation shall issue stock or bonds except for money paid, labor done, or property actually received.’ The terms ‘money paid’ are very definite and plain, and do not mean that stock can be sold for money to be paid, but must be sold for cash. Of course, it' can be paid for in installments, but it must be paid for in money, or in property actually received, or by labor actually performed for the company. The contract which Deutschmann sets up, by which he was not to pay for the stock in money at the time of its issue, is plainly and unquestionably in violation of the Constitution of the state, and, being in violation of the Constitution, that agreement, in so far as it provided that Deutschmann should have all the time that he might find necessary in which to pay for his stock, was void.”

In that opinion the invalidity of the transaction is declared because of the fact that it is in contravention of section 6, art. 12, of the state Constitution. We think, and as held by us in General Bonding & Casualty Insurance Company v. Mosely, 174 S. W. 1031, it was contemplated by the Thirty-First Legislature in the passage of the act published as chapter 108, and brought forward in Vernon’s Sayles’ Civil Statutes, arts. 4725 (e), 4726, and 4728 (relating to the organization of insurance companies), that an issuance of certificates of stock before the amount subscribed is “fully paid up and in the hands of the corporators” is in violation of the statute as well as of said act, and such issuance of stock, together with the obligation of the subscriber taken in payment therefor, is ultra vires and void. A note executed in violation of a statute is void, even in the hands of one who otherwise would be a bona fide holder. Jones v. Abernathy, 174 S. W. 682. The same rule is announced by Judge McMeans, as being applicable to a note given in exchange for the stock of a corporation. F. & M. State Bank v. Falvey, 175 S. W. 833. See, also, Jefferson v. Hewitt, 103 Cal. 624, 37 Pac. 638; 1 Dan. Neg. Inst. (6th Ed.) §§ 197, 198, and S07. Both the constitutional provision and the act above referred to, under which insurance companies must be organized in this state, having, if not by express provision, by necessary implication, inhibited the execution of the note herein for stock in appellant insurance company, it must be declared void as between the insurance company and the appellee Smyer. Quoting from section 807, 1 Dan. Neg. Inst., supra:

“But, although the party executing such bill or note cannot be bound, even to a bona fide holder, the indorser will be liable upon his in-dorsement which warrants its validity and is a separate and independent contract.”

The pleadings of Washer show that the insurance company indorsed the note to him before its maturity and for value; therefore, according to his allegations, he is entitled to recover against the company on its in-dorsement, but not against Smyer.' The com-, pany is not shown to be insolvent, and the question of Smyer’s liability upon his subscription to the creditors of a corporation is not an issue presented by this appeal. So far as the record shows, the company is financially able to respond to a judgment against it for the amount of the note indorsed to Washer.

Our conclusion of the whole matter is that the judgment of the lower court, in so far as it sustains the general demurrer of Washer to the appellee’s petition and decrees a recovery against him in favor of Washer, and in so far as it decrees a recovery against the company in favor of appellee, is reversed. We think the judgment in all other respects is proper, and to that extent it is affirmed.

Affirmed in part, and reversed and remanded in part.

On Motion for Rehearing.

Appellant insists that the court erred in holding that articles 4711, 4728, and 4734, Revised Statutes of 1911, are unconstitutional. This contention would be correct but for the fact that we did not hold any such thing. The judgment below was rendered in favor of appellee, and against the life insurance company, for .$480 interest which had been paid by him on the notes sought to be canceled. In framing the judgment in this court, this item was overlooked. After reviewing the pleadings and the motions, we have concluded that, instead of remanding the cause, the judgment of the lower court should be rendered. Under article 1626. Vernon’s Sayles’ Civil Statutes, it is ordered and decreed that appellee Smyer have judgment canceling the note and deed of trust and removing the cloud from the title to the land described in the deed of trust; that he recover of the Prudential Dife Insurance Company of Texas, the sum of $480, with interest at 6 per cent, thereon from the time said amount was paid by him. It is further ordered that Nat M. Washer recover of the insurance company the full amount of the note indorsed to him, and that he take nothing as against the appellee Smyer, and that, except the $480, and interest above named, Smyer take nothing against the appellant insurance company.

The opinion heretofore rendered and the judgment heretofore entered will be modified and reformed in accordance herewith.
      ®=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    CITY OF LAREDO v. DE MORENO et al.
    (No. 5606.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1916.)
    1. Adverse .Possession <&wkey;9 — Operation or Limitations — Title oe Municipal Corporations.
    Limitations run against the title of a city acquired by patent from the state as they would had it acquired land by purchase from an individual.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 42, 50; Dee. Dig. <&wkey;>9.]
    2. Adverse Possession <&wkey;8 — Operation oe Limitations — Title oe Municipal Corporations — Streets.
    Under Rev. St. 1911, art. 5683, providing that no person shall acquire by adverse possession any title to any portion of any street belonging to any city or which shall have been dedicated for public use to any city, where a city has platted all the land granted to it into lots, blocks, streets, and avenues, and sold lots with reference to the plat, limitations do not run against it as to the streets shown on the plat.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. <&wkey;S.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by Nidia Benavides de Moreno and another against the City of Laredo. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    A. Winslow, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellees.
   MOURSUND, J.

Appellees on April 1, 1915, sued appellant in trespass to try title to recover a certain tract of land described in the petition by metes and bounds, and including 19 entire city blocks and portions of 9 other city blocks, the numbers of all of which are stated in the petition. Appellee pleaded title under the 10-year statute of limitation. Appellant answered by plea of not guilty. The court rendered judgment in favor of appellee for all the land sued for except the streets and avenues between the blocks, as to which judgment was entered that the city recover the same as public easements subject to its orders and the opening thereof whenever the city decides that a necessity exists therefor.

The city of Laredo was duly incorporated in the year 1848, and has ever since remained an incorporated city under the laws of this state. About 1756, the government of Spain established the town of Laredo, and granted to same a tract of land four leagues square, about three-fifths of which lies on the Texas side of the Rio Grande and within the corporate limits of the city of Laredo, Tex., and includes the land in controversy in this suit. The portion of said grant on the Texas side of the Rio Grande was patented to said city by the state of Texas in the year 1884. After Texas was admitted into the United States, the city of Laredo procured, and is now acting under, a charter for cities of more than 2,000 inhabitants. All who own title to their property in the city of Laredo, by regular chain of title from the sovereignty of the soil, hold under a deed or deeds, originally executed by the proper officers of said city and by mesne conveyances thereunder. Said city has the title to the property in controversy, unless it has been defeated by the possession, claim, and use of plaintiffs, as hereinafter set forth, under their plea of limitation of ten years.

About the year 1878, the city of Laredo platted all of its land, so granted it by Spain, into lots, blocks, streets, and avenues, including the lands in controversy; but the original map has been mislaid, lost, or destroyed. All maps of the city now extant, and those in use for more than 20 years, show that all of said grant is in the incorporated limits of the city, and that all of said grant, including the land in controversy, has been for more than a quarter of a century platted into lots, blocks, streets, and avenues. All that part of said grant situated in the vicinity of the land in controversy has for a very great length of time been used for farming and grazing of stock without reference to the streets or avenues platted as above stated, and no part of the land in controversy or in the immediate vicinity has ever been used by the city for any purpose. The city has never opened or in any way used any of the streets and avenues of any of the property in controversy. Said property and that contiguous thereto has never been used for any purpose other than for farming or grazing, for which purposes it has been used for many years and is now used, and such use has always been, and is now, without reference to any street or avenue delineated on the maps of the city, as no street or avenue has ever been opened on said lands.

In the year 1898, Jose Maria Moreno, whose title is held by plaintiffs, fenced all the land in controversy and continuously used the same for grazing purposes up to the time of his death, and plaintiffs continued to hold possession of and use same up to the time of the trial. As no question is raised concerning the sufficiency of such possession and use to show title under the 10-year statute . of limitations, if limitation runs against the city, we will omit the details concerning such possession and use.

The land in controversy is about three miles east of the center of the city, and is about one mile beyond the suburban residence. While south of the Texas Mexican Railway “there are many residents, houses, and farms extending as far east as the land in controversy, there are only three or four of such residents, houses, and farms on the north side of the railroad and between the land in controversy and the suburban residents of the city. There are one or two small farms adjoining the land in controversy on the west, and three or four on the north. But none of these settlements are what may be termed ‘urban,’ to contradistinguish them from ‘rural,’ settlements.”

A map showing the portion of the city grant inclosed by plaintiffs was introduced in evidence.

Appellant contends that the court erred in adjudging to appellees any portion of the land sued for, its theory being that:

“The city of Laredo is such a sovereign of all the lots and blocks of land situated within its corporate limits as to place it beyond the pale of, and exempt from the operation of, the 10-year statute of limitation.”

We are .unable to see any reason for holding that the city of Laredo holds any different title to its lands than any other city operating under a similar charter. Limitation runs against said city just as it would against it had it acquired its land by purchase after it had been granted to an individual by the state.

Appellant’s assignments of error are therefore both overruled.

Appellees, by cross-assignments of error, contend that the court erred in holding that they did not establish title by limitation to the streets delineated on the map. They seek to avoid the effect of article 5683, R. S. 1911, adopted in 1887, on the theory that the city, under the facts proven, never dedicated the streets in such manner that it could not at any time have repudiated the map and sold the land as acreage property, without reference to the map. While the property was urban property in fact, the city had in 1878 made a map showing the division thereof into lots, blocxs, and streets. It sold lots with reference to said map, and the city has grown to considerable size, as is shown by the fact that, while this land is three miles' from the center of the city, it is only one mile from the suburban residences, and south of this land there are many residences as far east as this land. We do not think the city is in the attitude of a person who subdivides his land but does not record the plat thereof and makes no sales with respect to the streets delineated on the plat. The map of the city of Laredo had entered into and become a part of the sale of all lots described by reference to such map. Such purchasers had the right to insist that all parcels of land delineated on such map as streets should in fact be streets. It was not necessary that all streets should be actually opened up and worked at once. As was said by the Supreme Court, in the case of City of Corsicana v. Zorn, 97 Tex. 323, 78 S. W. 925:

“It was not expected that the streets and alleys should all be opened at once, but, as is well known in the history of such transactions, many years might elapse before the settlement of that part' of the city would require the use of such streets.”

There is no evidence that the city ever undertook to revoke the dedication of the streets, and mere nonuser would not set in motion the statute of limitations. If the right to revoke should be held such an interest in the parcels of land delineated as streets as could be acquired by limitation, or such a right should be held to so affect the streets as to remove them from the provisions of article 5G83 — which we do not hold — then we say the evidence in this case is insufficient to show that the city had such right of revocation at the time plaintiff’s ancestor took possession of the land, or any time thereafter. Lamar County v. Clements, 49 Tex. 355; City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; Martinez v. City of Dallas, 102 Tex. 54, 109 S. W. 289, 113 S. W. 1167; City of San Antonio v. Rowley, 48 Tex. Civ. App. 376, 106 S. W. 753; Spencer v. Levy, 173 S. W. 557.

We conclude that the court did not err in holding that plaintiffs were not entitled to recover the streets. Strictly speaking, the judgment is incorrect in providing for the recovery by the city of the streets, there being no affirmative relief asked; but, as the legal effect of a provision that the plaintiffs take nothing as to their suit for the streets is the same as the effect of the judgment actually entered, we deem it unnecessary to reform the same.

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


author: LANE, J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. GREEN.
    (No. 7055.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1916.)
    1. Evidence &wkey;>113 — Relevancy — Market Value of Property.
    In an action for damages for depreciation of real estate, evidence of the cost of constructing a house three years before the acts complained of was admissible for the jury to consider in connection with other testimony to assist them in determining the market value of the
    real estate immediately before and after the acts complained of.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. &wkey;>113.]
    2. Evidence <&wkey;543 — Opinion Evidence — Market Value op Property.
    In an action for damages for depreciation of real estate, the testimony of a witness who had bought and sold real estate in the vicinity of the property in question as to his opinion of the value of the plaintiff’s lot before the acts complained of and the percentage of depreciation caused thereby, was admissible, as relevant and material to the question in issue.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2356½-2358; Dec. Dig. &wkey;543.J
    3. Railroads &wkey;>265 — Effect of Receivership — Torts.
    In an action against the railroad company alone, ■ it was error for the court not to limit the inquiry of the jury as to what damages resulted to the plaintiff’s property, if any, to such acts complained of as occurred prior to the date on which the railroad company was placed in the hands of a receiver, as no recovery could be had against the railway company for damages suffered after its property had passed into the hands and control of the receiver.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 838-853; Dec. Dig. <&wkey;>265.]
    4. Trial <&wkey;>256 — Instructions—Failure to Request Special Charge.
    The plaintiff could not complain of the court’s error in defining the measure of damages. where he did not make a request for a special charge.
    [Ed. Note. — Por other cases, see Trial, Gent. Dig. §§ 628-641; Dec. Dig. <S&wkey;256.]
    5. Railroads &wkey;>222i — Injuries from Operation— Sufficiency of Evidence.
    In an action to recover damages from a railroad company for destruction and depreciation of real estate caused by its siding' and engines, evidence held sufficient to sustain the verdict and judgment.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 726-724; Dec. Dig. &wkey;222.]
    6. Trial <&wkey;115 — Arguments of Counsel.
    It was error for counsel for the plaintiff to comment to the jury on the court’s refusal to direct a verdict for the defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-283, 295, 298; Dec. Dig. &wkey;115.]
    7. Trial &wkey;>29 — Remarks and Conduct of Judge.
    It was error for the trial judge, in making a ruling in the presence of the jury, to say or do anything calculated to influence the jury in reaching its verdict.
    • [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 86-83, 568; Dec. Dig. &wkey;29.]
    8. Trial &wkey;>115 — Argument of Counsel.
    It was error for counsel for the plaintiff to tell the jury that the court thought a verdict should be rendered for the plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-283, 295, 298; Doc. Dig. &wkey;115J
    9. Appeal and Error «&wkey;166G — Review — Harmless Error.
    Error by counsel in telling the jury that the court thought a verdict should be rendered for plaintiff would not alone be sufficient to reverse the judgment, where under the facts proven the jury could not have found in favor of defendant and such an argument was not calculated to increase the amount found by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;1066.]

      10. Appeal and Error <&wkey;1170 — Review — Harmless Error.
    A technical error in a judgment which could be corrected by the appellate court would not be cause for reversal of judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170J
    11. Receivers <&wkey; 149 — Payment op Claims
    —Judgment in Another Action.
    A judgment, recovered against a railroad company while its properties are in the hands of a receiver, should be presented to the court in which a receivership, is pending as evidence of the claim and for approval and payment.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 261-266; Dec. Dig. &wkey;>149.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by George Green against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver. From a judgment rendered on a directed verdict for defendant Frank Andrews, and on a verdict for the plaintiff, the defendant railroad company appeals.
    Reversed and remanded.
    Gaines & Corbett, of Bay City, and Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, for appellant.
   LANE, J.

This suit was instituted by George Green against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver, on the 5th day of March, 1914, and for cause of action he alleges, in substance: That plaintiff is the owner of lot No. 12, in block 27, of the town of Bay City, Tex., upon which he had' constructed a two-story dwelling house, expecting to make the same his home. That about the year 1904, the defendant company constructed its main line along First street in said town of Bay City, opposite plaintiff’s property, and that in the latter part of the year 1912 the defendant company imposed an additional servitude upon said First street, by the construction of a side or switch track, and by such additional servitude destroyed the use of said First street. Plaintiff furthermore alleged that the tracks of the defendant company are elevated as much as three feet above the level of plaintiff’s premises, creating a dam and obstructing the drainage of water, and causing the water from ordinary rainfall to be impounded, dammed up, and to stand upon the ¡plaintiff’s premises; further alleging that the defendant has failed to provide any means for the draining of water across or under its roadbed, to plaintiff’s damage in the sum of $500. So much for the allegations against the defendant railway company alone. The plaintiff then alleges that both of the defendants use the said side track as a place to park locomotives at night, in close proximity to plaintiff’s premises, creating offensive smells and odors, to plaintiff’s damage in the sum of $1,000. Plaintiff then alleges that such use of said side track by both of the defendants has rendered his property uninhabitable, and has depreciated the value of the same at least one-half. The defendant railway company expressly denied that its roadbed was elevated as claimed, or that it caused the water from ordinary rainfall to be impounded and stand upon plaintiff’s premises, and specifically denied that it parked or bedded locomotives in close proximity to the plaintiff’s residence, or that such use of the street rendered the plaintiff’s property uninhabitable. The defendant Frank Andrews furthermore expressly pleaded that on the 5th day of July, 1913, he was appointed receiver of the properties of said railway company, and up to said date he was in no way responsible for the acts of commission or omission complained of by plaintiff, or for any acts occurring during the time that said railroad was conducting its own business. The case was called for trial on the 28th day of January, 1915. The court charged the jury to find a verdict for the defendant Frank Andrews, receiver, and submitted for the consideration of the jury the question of the railway company’s liability only, and the jury returned a verdict in favor of the plaintiff for $500 against the railway company, and judgment was duly entered thereon. From this judgment the St. Louis, Brownsville & Mexico Railway Company alone has appealed.

Appellee has filed no brief. We shall therefore dispose of the issues as presented by the brief of appellant.

The first assignment insists that the trial court erred in permitting the plaintiff to testify as to the sum expended by him in constructing his said house in 1909, because the acts of defendant of which complaint is made did not occur until some time in 1912, about three years after said house was built, and therefore such testimony was wholly insufficient to establish the market value of the property of plaintiff immediately before, or immediately after, the acts complained of.

Plaintiff, George Green, testified:

“I have a five-room two-story frame house I built there in 1909 after the July storm. I think I built that house about October, 1909. The house cost me $1,100.00; it is weather boarded outside and ceiled and papered inside. * * * I did have my house painted, but they have thrown oil on it and it turned black, the color of oil. * * * That is my home where my family and I live. I have a wife and children.”

It will be noted that the assignment insists only that the testimony complained of is insufficient to establish the market value of the property immediately before or immediately after the acts of defendant complained of, and not that the testimony is immaterial and irrelevant to the issues being tried, and hence the last question is not presented for our consideration. However, while we agree with appellant that such testimony is not sufficient to establish the market value of the house of appellee immediately before or immediately after tlie acts complained of, we do think such testimony was admissible, when considered together with other testimony, hereinafter set out, to assist the jury in determining the market value of said property immediately before and after the acts complained of, and, so believing, we overrule the first assignment.

Assignments Nos. 2 and 3 insist that the trial court erred in admitting the testimony of the witnesses P. T. Swansey and O. M. Magill, hereinafter set out, because the same was immaterial and irrelevant, and does not show or tend to show the market value of plaintiff’s property immediately before or immediately after the acts complained of. P. T. Swansey testified:

“I live in Bay City * * * and have been living here since 1901, and I am acquainted with property values in Bay City to some extent, and was so acquainted in the fall of 1912. I am acquainted with the property of the plaintiff, George Green, down at the Brownsville Railroad in the ‘south end’ of the town of Bay City, and was acquainted with the value of the property in that locality, in a general way, in 1912. Yes; I knew the market value of property in that locality at that time, as I bought and sold property down there. * * * George Green’s property * * * between the 1st of September and 21st of December, 1912, before the switch in question was put in there, that lot, without any improvements, I think was worth $250. I could not say just what the house on that lot is worth, as I have never been inside of it, and only know it from the outside appearance, but I should judge that house, being a two-story house, and if it is ceiled and papered inside, would cost somewhere about $800 to build. I have worked at the carpenter’s trade a good deal, and I judge, from the general outside appearance of that house and the cost of material during that time that the house was built, that $800 would be a fair valuation of the cost of the house to build it, including the cost of lumber, work, and everything. I heard George Green testify regarding the location of that side track there, and am acquainted with it, as to how close the side track runs to his lot, etc.; and, in view of the conditions as they really exist down there now, I would not hardly want that property at any price at all. By reason of this track being put in there, and these other things, I think that George Green’s property has depreciated in value 50 per cent. In saying that this property has depreciated in value about 50 per cent. I had in mind the fact that the railroad company parks live locomotives to the number of two or three at a time and keeps steam up in them, opposite the house, which engines emit noxious odors and make uncanny noises.”

On cross-examination this witness testified:

“The reason I stated I knew the value of this plaintiff’s property unimproved was because I have bought and sold some property in that vicinity, but I am not considered a real estate man. I think I at one time owned an inside lot in the same block, just two lots away from the plaintiff’s. ⅜ * * Yes, sjr; ⅛6 on]y transaction that I had down there at all near the time that this track was put in there in the fall of 1912 was the lot I bought, which is two lots away from the plaintiff’s, and that was after the switch was put in. In the next block north of the one in question I owned at different times four or five lots.”

O. M. Magill testified that the value of plaintiff’s lot, without the house, before the. acts complained of, was about $250, and that Ms estimate of the damage by reason of said acts would range from 15 per cent, to 25 per cent, of the value of the property. We think the testimony pertinent and material to the question in issue, and therefore overrule said assignments.

Assignment No. 4 complains of the court’s charge, which reads as follows:

“In this case you will find a verdict for the defendant Frank Andrews, receiver. -If you believe from the evidence that the plaintiff’s property is rendered less valuable by reason of the construction and operation of the defendant St. Louis, Brownsville & Mexico Railway Company’s switch over, across, and upon First street, or near plaintiff’s said property, or that by the engines of defendant St. Louis, Brownsville & Mexico Railway Company, being parked on said switch, at or near plaintiff’s property, as alleged in plaintiff’s petition, or by both, you should find for the plaintiff and assess him such an amount of damage as you may believe from the evidence will compensate him for such depreciation, if any, in value of said property before and after the construction of defendant St. Louis, Brownsville & Mexico Railway Company’s switch, or parking of said defendant’s engines, or both, caused by the same. The measure of plaintiff’s damage, if any he has sustained, is the difference between the market value of plaintiff’s property before the acts complained of by the plaintiff and the market value of the same after said acts.”

Appellant’s contention is: First. That the court should, have limited the inquiry of the jury as to what damages resulted to plaintiff’s property, if any, by such acts complained of, as occurred prior to July 5, 1913, at which time its properties and the operation of its railroad were placed in the hands and under the control and management of Frank Andrews as receiver; that such charge does not so limit such inquiry, but it permitted the jury to assess such damages as occurred after July 5, 1913, if any, against appellant. Second. That such charge was insufficient upon the question of what constituted market value, or the method of determining the same.

In plaintiff’s petition it is alleged as follows:

“That both of said defendants (the railway company and Frank Andrews, receiver) constantly used, and do now use, said side track as a place to park their locomotives at night, and do park or bed live locomotives, as many as two or three at a time, upon shid track in close proximity to plaintiff’s said residence, and allow them to stand at such place all night, at times, and the said locomotives, being oil burners, make disagreeable noises in blowing the oil, which keeps the fire alive, and the said burning oil creates noxious odors, and creates offensive smells, and the engines eject oil into plaintiff’s yard and against his house, staining and disfiguring it; and the vibrations of said locomotives cause plaintiff’s said house to vibrate violently at times, and on occasions to the extent of causing his dishes to fall from his table and be broken, and even jarring loose the shingles upon the roof of his dwelling house, to the extent of causing the same to leak whenever it rains thereon; and has even caused the paper upon the walls of Ms said house to crack — all of which things and acts were and are in violation of plaintiff’s rights and a virtual destruction. of his property without compensation, to Me great damage in the further sum of one i thousand dollars. That such use of said street has rendered, and does render, plaintiff’s said property uninhabitable as a home, and has depreciated the value thereof at least one-half of such value it had before the acts complained of were committed.”

The defendant railway company specially denied that it has used said side track as a place to park engines since July 5, 1913, same being the date on which Eranlt Andrews took possession, control, and management of all of its properties, as receiver.

The plaintiff testified that he filed this suit on the 5Lh day of March, 1914; that he alleges in his petition—

“that the defendants, since 1912, have used that side track opposite my houso and contiguous to my lot to park live locomotives on at night, as many as two or three at the time. * * * They have been standing there, as near as 1 can get at it, eight or nine months. * * * They stand so close to my houso that 1 can come out of my house * * * and sweep the engines off with a broom; on one occasion an engine came in there and squirted hot water on my gallery. Those locomotives burn oil, and fire is kept up in them, and they make disagreeable noises and smell, and sometimes the oil runs down inside my yard, and stands in puddles there; early in the morning and at other times the burning oil is offensive to the smell; they throw oil up against my houso and in the morning when they steam up they shoot oil and water in my yard and kill all my flowers. * * * 1 did have my house painted, but they have thrown oil on it, and it turned black — the color of the oil.” •

He also testified that vibrations from the engines makes his house tremble and shakes the glass out of his windows; that ever since July 8, 1913, locomotives have been parked on the side track opposite his house continuously; “* * * that every time an engine comes in it is tied tip on this side track for the night.” It is admitted that Frank Andrews was appointed receiver of the defendant railway company on the 5th day of July, 1913.

After hearing the pleadings of the parties read, and the testimony adduced, the trial court directed a verdict for the receiver, Frank Andrews.

From the pleading and testimony we reach the conclusion that it is entirely possible and probable that under the charge of the court complained of the jury considered such acts pleaded and testified to, as set out above, which occurred after Frank Andrews was appointed receiver, and therefore such charge constitutes affirmative error, as no recovery can be had against the railway company for damages suffered by plaintiff after its properties passed into the hands and control of Frank Andrews, receiver. Such acts as caused plaintiff’s house to leak, the window glass to fall from the windows, the paper on the walls of the house to crack, the paint on the walls of the house to become discolored, and the killing of plaintiff’s flowers by oil thrown on them, are such acts, as are alleged and proven, which tend to diminish the permanent value of plaintiff’s property,. and as such acts are alleged and proven to be the joint acts of the receiver and said railway company, and as the trial court instructed a verdict for the receiver, as the charge complained of does not limit the liability of the railway company to such damages as occurred prior to the appointment of said receiver, we are of the opinion that it caimot be said that said charge did not probably injure appellant. St. Louis, Brownsville & Mexico Railway Co. v. Dawson, 174 S. W. 850, and authorities there cited.

We overrule appellant’s complaint to the second paragraph of the charge complained of. If the definition of the measure of damages given by the court was not technically correct, and the appellant desired a fuller definition, he should have made a request therefor by special charge, and his failure to do so renders his complaint untenable.

The substance of assignments Nos. 5 and 6 is that the evidence is not sufficient to support the verdict and judgment. We think the evidence, which we have hereinbefore set out, amply supports the verdict and judgment, and therefore we overrule said assignments. We have also considered appellant’s seventh assignment and overrule the same.

The eighth assignment is as follows:

“Tlie court erred in permitting the attorney for the plaintiff, in Ms closing argument over the objection of the defendant, to use the following language: ‘Gentlemen, you know that the statement of counsel that there was no evidence that authorized the jury to return a verdict for the plaintiff is not well founded, because it filed a motion asking the court to instruct a verdict for the defendant, which was overruled, and the court evidently was of the opinion that there was sufficient evidence to justify a verdict, or he would have granted the motion ; and if the court thinks so, you are bound to think so.’ ”

The argument complained of by this assignment was improper, and should not have been made. The fact that counsel for appellant moved the court for an instructed verdict, and that the court refused same, was not a matter which the jury could properly consider in reaching its verdict. If there was anything said or done by the trial judge in making his ruling in the presence of the jury which was calculated to influence the jury in reaching its verdict against appellant, as counsel in his argument assumes he did, such statement or act would constitute error, and it follows that counsel’s argument to the jury as to the fact that the court overruled appellant’s motion for a verdict was also error. He evidently believed such argument would influence the jury, or he would not have made it.

As to whether the evidence called for a verdict in favor of appellee was a question for the jury to determine under proper instructions, and counsel should not have told the jury that the court thought that a verdict should be rendered for appellee. We think the language used by counsel must be so construed. But if this was the only error presented we would not reverse the judgment on that alone, as we think, under the facts proven, the jury could not have found in favor of appellant. And we cannot see that such an argument was calculated to increase the amount found by the jury.

The ninth assignment insists that the judgment rendered is erroneous in that it authorizes the issuance of execution against the property of appellant, although such judgment contains the further clause as follows:

“But * * * no execution shall be levied upon the property of said railway company while in the hands of said receiver.”

This may be technical error, but not cause for reversal of the judgment, because if there was no other error demanding a reversal of the judgment rendered, the error here complained of could be corrected by this court.

Any judgment which the plaintiff may recover against the defendant railway company while its properties are in the hands of said receiver should be presented by the plaintiff to the court in which the receivership is pending, as evidence of his claim, and for approval and payment.

For the errors pointed out, the judgment of the trial court is reversed, and the cause remanded.
      tfc^Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§r^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COMMONWEALTH INS. CO. OF NEW YORK v. FINEGOLD.
    (No. 7043.)

    (Court of Civil Appeals of Texas. Galveston.
    Jan. 19, 1916.
    Rehearing Denied Feb. 10, 1916.)
    1. Statutes <&wkey;113 — Title — Constitutionality.
    Acts 3Sd Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled “An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss and declaring an emergency,” providing that no breach by the insured of any of the provisions of any fire insurance policy upon personalty shall render void the policy or constitute a defense to a suit for loss thereon, unless such breach contributed to bring about the destruction of the property, is not violative of Const, art. 3, § 35, providing that no bill shall contain more than one subject, expressed in its title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 141-144; Dec. Dig. <&wkey;>113.]
    2. Constitutional Law <&wkey;>48 — Constitutionality — Construction in Favor of.
    It is the duty of the court to ascertain the intention of the Legislature in enacting a statute whose constitutionality is in question, and to sustain the law if it can be done by fair construction.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <&wkey;>48; Statutes, Cent. Dig. § 56.]
    3. Statutes <&wkey;211 — Construction — Title.
    In construing a statute, it is permissible to refer to the caption for explanation, and it is equally permissible, in the construction of the caption, to refer to the body of the act.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 288; Dec. Dig. <©=>211.]
    4. Statutes <&wkey;105 — Titles of Acts — Constitutional Provision — Construction.
    Const, art. 3, § 35, providing that no bill shall contain more than one subject, expressed in its title, should be construed liberally rather than to embarrass legislation by a strict construction unnecessary to the accomplishment of the beneficial purposes of the provision.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;105.]
    5. Insurance <&wkey;333 — Fire Insurance — Immaterial Breach of Policy — Statute.
    Under Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b) providing that no breach by the insured of any of the provisions of any fire insurance policy upon personalty shall render void the policy or constitute a defense to a suit for loss unless such breach contributed to bring about the destruction of the property,, a policy of fire insurance on personalty, providing that the keeping of gasoline on the premises should avoid the policy, and that an act increasing the hazard by means in the control of knowledge of the insured should do so likewise, was not avoided, and insured’s recovery thereon was not prevented, by his keeping gasoline on the premises where such breach did not contribute to bring about the destruction of the property.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. S3 842-846; Dec. Dig. <&wkey;333.]
    6. Insurance <&wkey;335 — Fire Insurance — Breach of Policy — Statute.
    Such provision has no application to permit the insured, who has broken the stipulation of his policy insuring his stock of goods that he should keep books, etc., in an iron fireproof safe, to recover on the policy, although the failure to keep the books did not contribute to bring about the destruction of the property, since the statute was passed to prevent insurance companies from escaping liability on the ground that insured had violated the policy only where the breach could have, but in fact did not, contribute to bring about the loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. &wkey;335.]
    7. Insurance <&wkey;335 — Fire Insurance — Material Breach of Policy.
    Insured’s failure to substantially comply with the provision of a fire insurance policy by not keeping his books in a fireproof safe will defeat his recovery on the policy; the provision being material.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 852, 853; Dec. Dig. &wkey;>335.]
    8. Appeal and Error <&wkey;268 — Review — Findings.
    Where the trial court found that a matter of fact was proved by the undisputed evidence, and so instructed the jury, and the party to whom the finding was adverse did not except thereto, or assign error thereon, the Court of Appeals cannot look into the statement of facts to ascertain what facts were brought forward upon the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1596-1604, 1606; Dec. Dig. <©=>268.]
    9. Trial <&wkey;256 — Instructions—Requests.
    In an action on a fire policy covering household goods, the court’s charge, directing the jury to ascertain the value of the goods, instead of the actual cash value, as provided in the policy, being correct so far as it went, was not reversible error in the absence of a request for a special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. <©=>256.]

      Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by B. Finegold against tlie Commonwealth Insurance Company of New York. From a judgment for plaintiff, defendant appeals.
    Affirmed in part and reversed and rendered in part.
    Dannenbaum & Taub, of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.

       Application for writ of error pending in Supreme Court.

   McMEANS, J.

October 6, 1913, appellant, Commonwealth Insurance Company of New York, issued to the appellee, B. Finegold, a policy of fire insurance for the total sum of $1,300, divided as follows: $000 on a stock of goods, wares, and merchandise; $200 on store furniture and fixtures; and $500 on household goods, furniture, wearing apparel, etc. On October 27, 1913, the property insured was destrojred by fire, and Finegold brought this suit against the insurance company to recover the amount for which the property was insured. Defendant answered, pleading the violation by plaintiff of the record warranty clause of the policy and certain other clauses, warranties, and conditions. The case was submitted to a jury upon special issues, and upon return of their verdict a judgment was entered by the court thereon in favor of the plaintiff for $1,300, the full amount of the policy. From this judgment the defendant has appealed.

The “record warranty clause” provides that the assured will make and prepare in the regular course of business, after the date of the policy, a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales, and shipments, both for cash and on credit, and will preserve all inventories of stock taken during the current year, and those taken during the preceding year, and keep and preserve all books showing a record of business transacted during the current and preceding year, and to keep and preserve all inventories taken after the issuance of the policy and all books made and prepared subsequently to the issuance of the policy, showing a record of business transacted, and further provides that said books and inventories and each of same shall he by the assured kept securely locked in a fireproof safe at night, and at all times when the building mentioned in the policy is not actually opened for business, etc.; and provides further that the failure of the assured to comply with any of such requirements shall render the policy void. It is provided in the policy that the entire policy shall be void in case of any false swearing by the assured touching any matter relating to the insurance or the subject thereof, whether before or after the loss, or if the hazard be increased, by any means within the control or knowledge of the insured, or if, any usage or custom of trade to the contrary notwithstanding, there be kept, used, or allowed on the premises mentioned in the policy any gasoline. It is further provided in the policy that in case of loss by fire the insured should furnish to the insurer proof of loss within 90 days from the date of the fire. The court instructed the jury in part as follows:

“You are instructed that said policy of insurance introduced in evidence before you contains the following provisions, among others: That gasoline should not be kept on the premises of the insured, also, that the insured should keep the books and records in an iron safe, and that in case of loss by fire the insured should furnish to defendant proof of loss within 90 days from the date of said fire.
“You are further instructed that the undisputed evidence in this case shows that each of said provisions of said policy have not been complied with, but have been violated by the plaintiff.
“In this connection, however, you are further instructed that no breach or violation by the insured of any of the warranties, condition, or provisions of any fire insurance policy upon personal property shall render void the policy, or constitute a defense to the suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property.”

The court then submitted to the jury, in the form of interrogatories, the following special issues, among others:

“Did the failure upon the part of plaintiff to keep his books and records in an iron safe, as provided in said policy, contribute to bring about the destruction of said goods?
“Did the plaintiff’s breach of said policy in keeping gasoline on said premises contribute to bring about the destruction of said goods?
“Did the failure of plaintiff to furnish the defendant with proof of loss within 90 days from date of the fire contribute to bring about the destruction of said goods?”

To each of said issues the jury replied in the negative. The appellee does not, by any cross-assignment, question the finding of the court to the effect that each of the provisions of the policy above stated had been breached by the plaintiff.

We shall not discuss appellant’s assignments of error in detail, but will undertake, in a general way, to dispose of all the questions presented in its brief.

L1] It is contended by appellant that chapter 105 of the Acts of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b) is unconstitutional. The act, in its entirety, is as follows:

“An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss, and declaring an emergency.
“Be it enacted by the Legislature of the state of Texas:
“Section 1. That no breach or violation by the insured of any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property.
“Sec. 2. That the provisions hereof shall in no way affect or repeal the provisions of article 4874 of the Revised Civil Statutes of 1911 in so far as the same relates to fire insurance policies upon real or mixed property.
“Sec. 3. Whereas, under the existing laws, insurance policies and contracts may be defeated upon purely technical provisions and defenses that in no way affect the merits of the claim against the insurance company, and such defenses have been upheld to the extent of making it almost impossible for an insurance policy upon personal property to be collected by suit, creates an emergency,” etc.

The contention is that the act is violative of section 35, art. 3, of the Constitution of Texas, because the title of the act makes the act apply only to “technical and immaterial provisions” of fire insurance policies, and that the body thereof makes the act apply to “any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance or application therefor,” and that the title of said act is thereby enlarged beyond the subject stated in the caption so as to permit the embodying in the act of a subject beyond the title. The constitutional provision referred to is as follows:

“No bill * * * shall contain more than one subject, which shall be expressed in its title. * * * ”

It is the duty of the court to ascertain the intention of the Legislature in enacting the law under consideration, and to sustain the law if it can be done by fair construction. The caption is a part of the law, and is given the same effect as if it were in the body of the bill. Missouri, etc., Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 883. It is always proper, in the construction of a law, to refer to the caption for explanation, and it is equally permissible in the construction of the caption to refer to the body of the act. City of Austin v. McCall, 95 Tex. 575, 68 S. W. 791. The rule for construing the provision of the Constitution under consideration, as stated in Morris v. Gussett, 62 Tex. 741, and approved in City of Austin v. McCall, supra, is:

“The tendency of the decisions is to construe the constitutional provision on this subject liberally ‘rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it was adopted.’ ”

The caption and the body of the act manifest the same intent and purpose of the Legislature, in that both have the same purpose to prevent fire ■ insurance companies from avoiding liability for loss or damage to personal property by fire where the violation by the insured of a provision of the policy does not contribute to bring about the destruction of the insured property. The only difference in the terms used in the caption and in the body of the act is that in the former insurance companies are forbidden to take advantage of a breach of any “technical and immaterial provisions,” where the breach did not contribute to bring about the loss, and in the latter they are forbidden to take advantage of a breach of any warranties, conditions, or provisions which does not contribute to bring about the destruction of the insured property. If it is permissble to look to the body of the act in aid of the construction of the caption, we must conclude that the “technical and immaterial provisions” there referred to mean, and intended to mean such provisions of the policy, whether warranties or conditions, that, though being breached by the insured, did not contribute to bring about the loss; and if we look to the caption in aid of the construction of the body of the act, then we must conclude that the warranties, conditions, or provisions of a policy, theibreach of which did not contribute to bring about the destruction of the property, are technical and immaterial provisions of the policy. Only the general or ultimate object is required to be stated in the caption, and not the details by which the object is to be attained. Any provision calculated to carry the declared object into effect is unobjectionable, although not specifically indicated in the title. Johnson v. Martin, 75 Tex. 40, 12 S. W. 321; Dooppenschmidt v. Railway, 100 Tex. 535, 101 S. W. 1080. We think that the title of the act fairly gives reasonable notice of the subject-matter of the statute, and that it meets the requirement of section 35 of article 3, of the Constitution, and that the act is valid.

The court having found as a fact, and having so instructed the jury, that the keeping of gasoline on the insured premises was a breach of the contract of insurance by the assured, and the jury having found that such breach did not contribute to bringing about the destruction of the insured property, it was not error to refuse to grant the appellant’s motion for a new trial, based upon the contention that the keeping of the gasoline avoided the policy, because in contravention of said provision, and because the keeping of the gasoline was such an act on the part of the appellee as increased the hazard by “means in the control or knowledge of the insured.” No assignment of error is presented by the appellant assailing the finding of the jury in this regard.

Under the act above quoted we think that the provision as to keeping of gasoline, the breach of which did not contribute to bring about the destruction -of the property, was technical and immaterial, and that the statute had for its object the denial of such a defense to the insurer as a means of escaping liability.

But quite a different question is presented, we think, as to the iron-safe clause. The statute, we think, has reference to only those warranties and provisions in policies, the breach of which might have contributed to bring about the loss, but which in fact did not, and was passed, we think, with the sole purpose of preventing insurance com-pañíes from escaping liability for tbe violation of a provision of tbe policy where tbe breach could have, but in fact did not, contribute to bring about tbe destruction of tbe insured property. In regard to other warranties or conditions in tbe policy, tbe violation of which could not have contributed to bring about tbe loss, such, for instance, as tbe iron-safe clause, tbe statute does not apply. It seems to be well settled that such a provision in a policy is material,' and that a failure on the part of tbe assured to substantially comply therewith will defeat a recovery. Assurance Company v. Kemendo, 94 Tex. 371, 60 S. W. 661; Insurance Co. v. Willcock, 29 S. W. 219; Insurance Co. v. Center, 33 S. W. 555; Couch v. Insurance Co., 32 Tex. Civ. App. 44, 73 S. W. 1077. Tbe iron-safe clause in tbe policy under consideration applied, however, only to tbe stock of goods, wares, and merchandise, which were insured for the sum of $600. Tbe court, having found from tbe undisputed evidence that the appellee bad violated the iron-safe clause, should have directed a verdict against plaintiff for the amount for which the stock of goods were insured.

Appellee in his brief insists, however, that the evidence sufficiently shows that he complied with the iron-safe clause. But, the court having found that the violation of that clause was proved by the undisputed evidence and so instructed the jury, and the ap-pellee not having excepted to such finding, nor assigned error thereon, we are not authorized to look into the statement of facts to ascertain what facts were adduced upon this issue. Buster v. Warren, 35 Tex. Civ. App. 644, 80 S. W. 1063; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889.

We are of the opinion that the evidence was not sufficient to raise any issue of false swearing by the assured, “touching any matter relating to the insurance or the subject thereof,” and that the court properly refused to submit that issue to the jury.

We are also of the opinion that the court did not commit reversible error in directing the jury to ascertain the value of plaintiff’s household goods, instead of the “actual cash value,” as provided in the policy. The charge was correct as far as it went; and, if defendant was not satisfied with it, it should have sought a correction by asking a special charge.

We think that with the exception herein above noted the judgment in favor of plaintiff is, in all things, proper. The judgment will therefore be affirmed except as to that part which awarded a recovery for $600, the amount for which the stock of goods was insured, and as to said amount the judgment is reversed, and here rendered in favor oí appellant.

Affirmed in part Reversed and rendered in part.
      <^=Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    TAYLOR v. HILL.
    (No. 5431.)

    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Vendor and Purchaser &wkey;>176 — Sale by Acre — Abatement for Shortage — Innocent Misrepresentations.
    Where land is sold by the acre, and there . is a material shortage, the purchaser is entitled to a proportional abatement of the purchase price, and is not limited to an action for rescission, though the misrepresentations as to quantity were innocently made, and there was a mutual mistake respecting it.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;il76.]
    2. Dismissal and Nonsuit <&wkey;42 — Cross-Action — Codeeendants.
    A defendant’s cross-action against a code-fendant being dismissed, the case stands as though it had never been filed, as regards the eodefendant’s right to plead in offset and cross-action against him.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 75-83; Dec. Dig. <&wkey;>42.]
    3. Dismissal and Nonsuit <&wkey;12 — Cross-Action.
    A defendant has the right to dismiss at any time his cross-action against a codefendant.
    [Ed. Note. — For other eases, see Dismissal and Nonsuit, Cent. Dig. § 27; Dec. Dig. <&wkey;12.]
    4. Principal and Agent <&wkey;156 — Referring Matter to Another.
    A vendor by referring the purchaser to a surveyor, by whom he stated the tract had recently been surveyed, for confirmation of the fact that it contained a certain number of acres, makes him his agent for purpose of the reference, and so is bound by his answer, as regards liability for deficiency.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. <&wkey;> 156.]
    5. Vendor and Purchaser &wkey;>176 — Shortage — Abatement oe Price.
    The question, What is the character of the soil? having reference to the entire tract sold, - is immaterial relative to the contention that the shortage was in the less valuable part of the land, and that therefore the abatement of purchase price on account thereof should not be based on acreage alone.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]
    Error from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Hood Hill against W. E. Taylor and another. Judgment for plaintiff, and defendant Taylor brings error.
    Affirmed.
    Prior to the 17th of September, 1913, W. E. Taylor, plaintiff in error, sold to H. K. Brown ai tract of land in Coryell county supposed to contain 191 acres, for which Brown agreed to pay him $11,500 $8,000 of which was to be in cash, the balance in a note for $3,500. Thereafter, and before a deed was executed in accordance therewith, Brown sold said land to Hood Hill, who agreed to pay him therefor the sum of $12,500, of which $9,000 was to be paid in cash and the assumption by him of said $3,500 note. Thereafter, on the 17th of September, 1913, deeds to said land were duly executed and delivered by Taylor to Brown and Brown to Hill in accordance with said agreement. Before the execution of said deeds, however, it appears from the evidence that Hill declined to take the land unless it contained 191 acres, and insisted upon a survey thereof. He was thereupon assured by Brown, Taylor, and his agent, Dalton, that the tract of land did contain 191 acres; Taylor stating that he had recently had the land surveyed by Freeman, to whom he referred Hill in confirmation of his statement. Freeman, who lived at McGregor, was, at the instance of Taylor, then called over the phone by Dalton, who told him of the proposed trade and introduced Hill, who talked with him about the matter, and he stated that he had recently surveyed the land, and that it did contain 191 acres. It was afterwards ascertained that there was a shortage therein to the extent of S6.9 acres, and this suit was brought by Hill against both Brown and Taylor for an abatement of the purchase price to the extent of such shortage at the rate of $65.44 per acre, the purchase price thereof, for which amount he prayed judgment against both Brown and Taylor, and that the same be deducted from said note, tendering the balance due thereon in court, and asking that the same be applied to the payment thereof.
    Brown, in effect, admitted the material allegations of plaintiff’s petition, but alleged that he bought the land from Taylor relying upon his representations and those of his agent Dalton that the tract contained 191 acres, averring that he paid Taylor the consideration named in his deed to him, and prayed for judgment over against Taylor in such amount as Hill should recover against him.
    Taylor excepted to plaintiff’s petition and Brown’s cross-action, and denied that he had guaranteed that the tract contained 191 acres, and that Brown and Hill bought same in reliance upon his representations as to quantity. He likewise denied that Dalton had authority to guarantee, or did, in fact, guarantee, that there were 191 acres in the tract. He further denied that Brown paid the consideration named in the conveyance from Taylor to him, and, upon information and belief, denied that Hill had paid Brown the consideration stated in Brown’s deed to him, and put plaintiff on proof of the shortage alleged. He further pleaded that he had conveyed the tract of land in question to Brown, who had conveyed it to Hill, at which time he did not know the exact acreage, and so advised Brown and Hill, but only represented that Freeman, who had surveyed the same, had reported that the tract contained 191 acres, but that he had no personal knowledge as to the truth of said statement. Taylor further alleged that his sale to Brown was an exchange of properties, and that the land was not sold by the acre, but for a gross sum. Taylor also pleaded an offer to rescind the contract, alleging his ability to put the parties in statu quo, but that said Hill and Brown declined to accept such offer. Taylor also alleged that he had represented to Brown ahd Hill that there were about 125 acres of cultivated land and about 65 acres of rough and rocky land in the tract, and that the shortage, if any, in said land was in the rough and rocky part, which was not worth exceeding $10 per acre, and that the difference in value between the cultivated land and the rocky land was taken into consideration in making said sale, praying that in the event of recovery against him on account of shortage such difference should be considered. Replying to Brown’s cross-action, he pleaded misrepresentation, fraud, and failure of consideration, setting up in detail the items of damage which he claimed against Brown, growing out of said transaction.
    Exceptions were sustained to Taylor’s cross-action over against Brown. The case was submitted to the jury on special issues, and they found in response thereto that Taylor and his agents represented to plaintiff that the tract contained 191 acres, and that in reliance thereon he purchased the land, agreeing to pay therefor the sum of $12,500; that said tract did not contain 191 acres, but that there was a shortage of 36.9 acres therein. Thereafter Brown dismissed his cross-action against Taylor. The court rendered judgment on said verdict in favor of plaintiff against both Brown and Tayl'or for $2,414.13, crediting the same on the $3,500 note held by Taylor, from which judgment Taylor alone prosecutes this writ of error.
    Witt & Saunders, of Waco, for plaintiff in error. Tirey & Tirey and Marshall Surratt, all of Waco, for defendant in error.

      Application for writ of error pending in Supreme Court.

   RICE, J.

(after stating the facts as above). [1] Plaintiff in error requested and the court refused to instruct the jury to return a verdict for the defendants. This is assigned as error, on the ground that no recovery of damages can be had for misrepresentations when they are not shown to have amounted to actual fraud, but, in the absence of such showing, the complaining party is limited to an action for rescission. We differ with plaintiff in error in this view of the law, because we regard it as immaterial whether or not the misrepresentations were willfully made where the land is sold by the acre, and it afterwards turns out that • there is a material shortage therein. In such event the law seems to be that, notwithstanding the fact feat there may have been a mutual mistake as to the quantity conveyed, even though the misrepresentations were innocently made, plaintiff would in equity be entitled to a proportionate abatement of the purchase price, See -Franco-Texan Land Co. v. Simpson, 1 Tex. Civ. App. 600, 20 S. W. 953; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Walling v. Kinnard, 10 Tex. 508, 60 Am. Dec. 216; Moore v. Hazelwood, 67 Tex. 626, 4 S. W. 215; Wheeler v. Boyd, 69 Tex. 298, 6 S. W. 614; Smith v. Fly, 24 Tex. 351, 70 Am. Dec. 109; Wuest et al. v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Yates et al. v. Buttrill, 149 S. W. 347.

Chief Justice Wheeler, in Smith v. Ely, supra, says:

“It appears to be well settled that in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief. [Citing authorities.] And this, says Judge Story, would be so, although the land was described as so many acres ‘more or less.’ It would certainly be so where the land is sold by the acre, and the statement of the quantity of acres in the deed is not mere matter of description, but is of the essence of the contract.”

Again, in Wheeler v. Boyd, supra, Judge Gaines says:

“It is insisted also that, if the parties to the transaction are mutually mistaken as to the quantity of the land, defendant is entitled to * * * no abatement of the purchase money. The authorities are not in accord upon this question; but we think the decisions of this court recognize that, save in a case where the land is sold in gross and the quantity stated in the conveyance is qualified by the words ‘more or less,’ the purchaser will be relieved in equity, if the deficiency be great. The disparity being gross between the quantify believed by both parties to exist and that which is found actually, to exist, and both having been mutually mistaken, and the quantity being a material element of inducement in the sale, it is but equitable to let the purchaser retain his bargain and to relieve him from payment for that which he does not get”—citing O’Connell v. Duke, 29 Tex. 299, 94 Am. Dec. 282, and Smith v. Fly, Walling v. Kinnard, and Mitchell v. Zimmerman, supra.

In Franco-Texan Land. Co. v. Simpson, supra, it is held, as shown by the syllabus, that:

“Where land is sold by the acre, and the parties are under a mutual mistake as to the quantity conveyed, or where the vendee is moved to the purchase by the false representations of the vendor as to the amount, even though innocently made, and the deficiency is afterward discovered, equity will grant to the vendee a proportionate abatement of the purchase price.”

We therefore overrule this assignment, because the court did not err in refusing to give the charge requested. Eor a similar reason we, overrule the second assignment of error.

Taylor in his cross-action against Brown sought to recover damages on account of certain misrepresentations as to the value of a machine, as well as other property which he had taken in part payment from Brown for the land in question. The court sustained plaintiff’s exceptions to said answer, and it was stricken out. This furnishes the basis for plaintiff in error’s third assignment of error, insisting by his proposition thereunder that Brown and Taylor were sued as being severally liable, and Brown was permitted, without exception on the part of plaintiff, to ask for judgment over against his codefendant Taylor, wherefore Taylor should have been permitted to plead in offset and in cross-action over against his eodefend-ant Brown. Brown’s cross-action against Taylor having been dismissed, the case stood as though Brown had never filed such plea. Therefore the proposition is based on a reason that did not, in fact, exist; hence was properly overruled. The statement under this assignment is deficient, in that it fails to set out Taylor’s cross-action, and the assignment might also have been disregarded for this reason.

The fourth assignment complains that the court erred in permitting Brown to dismiss his cross-action against Taylor. In this there was no error, since Brown had the absolute right to dismiss his plea against Taylor at any time, and Taylor had no right to complain, since he could not be injured thereby.

The court submitted a special issue as follows:

“Did the plaintiff, Hood Hill, in purchasing said land, make such purchase relying upon the representations of the defendant Taylor or his agent, Dalton, or the witness John D. Ereeman, or all of them, that there were 191 acres of land?”

And it refused to submit two special issues as follows:

“Did plaintiff, in purchasing said land, rely upon the representations of defendant Taylor; or did he rely upon the representations of Eree-man that there were 191 acres in said tract?”

There was no error in giving the first charge and refusing the other two, for the reason, we think, that if the plaintiff relied upon the representations of Taylor, Dalton, or Ereeman, or either or all of them, and such representations proved to be untrue, he would be entitled to recover, because the evidence in this case showed that Dalton was acting as the agent of Taylor in making the sale; that, when plaintiff declined to purchase the land until it was surveyed in order to ascertain whether it contained 191 acres, both Dalton and Taylor assured him that said tract did contain said number of acres, the latter stating that he had recently had it surveyed by Ereeman, and referred plaintiff to Ereeman in confirmation of the fact that it did contain 191 acres. Defendant Taylor was therefore bound by the answer of Freeman, who told Hill that he had surveyed the land, and that it contained said number of acres. See Holland v. Cabaness, 47 S. W. 379. For the purpose of such reference Ereeman, to all intents and purposes, became the agent in this respect of Taylor, and the latter was therefore bound by his answer. Hence we overrule the fifth, sixth¡ and seventh assignments of error.

The eighth assignment urges that the court erred in excluding the proffered testimony of Hill that the shortage was in the less valuable part of the land. Upon an examination of the bill upon which this assignment is predicated we find that the only question asked Hill was:

“What is the character* of the soil of that land; what kind of soil is it?”

The question was objected to on the ground that it was immaterial and irrelevant, which objection was sustained. As this question related to the character of the soil of the entire tract, and not to any particular portion of it, the court did not err in excluding the testimony.

The remaining assignments have had our consideration, and are regarded without merit, and are therefore overruled.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.
      <§z5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    MOSSOP v. ZAPP.
    (No. 5700.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1916.)
    Appeal and Error &wkey;767 — Briefs—Improper Matter — Sufficiency of Amendment.
    Where the brief of the plaintiff in error, containing statements derogatory to the trial judge, was stricken, and plaintiff in error was required to file a new brief, merely filing copy of-the old brief with ink smeared over the objectionable portions was insufficient to comply with the court’s orders, the objectionable matter being legible in spite of the attempted obliteration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. &wkey;>767.]
    Error from District Court, Fayette County; Frank S. Roberts, Judge.
    Action by Mrs. Isolda Zapp against Y. F. Mossop. Judgment for plaintiff, and defendant brings error. Brief of plaintiff in error stricken on the court’s motion, and plaintiff in error given 20 days to file new brief. 179 S. W. 685. Transferred from the Court of Civil Appeals of the First Supreme Judicial District. Brief stricken from the files.
    John T. Duncan, of La Grange, for plaintiff in error. C. D. Krause, of La Grange, for defendant in error.
   CARL, J.

This cause was transferred to this court from the Court of Civil Appeals for the First Supreme Judicial District (179 S. W. 685). While pending in that court, on the court’s own motion, the brief - for the plaintiff in error was stricken out, and 20 days allowed in which to file a brief expunging certain objectionable language contained in the original brief. Chief Justice Pleasants pointed out, in a written opinion, the objectionable language, which is a serious reflection on the trial judge; but, instead of complying therewith, a copy of the same brief was again filed, with ink smeared over the offensive portions. Every word of the language objected to is plainly discernible and, at best, this would be but an indifferent, not to say insolent, compliance with the court’s ordér. After the brief, so mutilated, was refiled, the cause was transferred to this court, doubtless before this was called to the attention of that court. If the same may be termed a compliance at all, it is certainly not a respectful compliance with the court’s order, and will not be tolerated by us.

In duty to this court, as well as to that of the First district, it is ordered that plaintiff in error’s briefs be stricken out, on this court’s own motion; and, unless new briefs shall be filed herein for the plaintiff in error within 20 days from this date, the cause will be dealt with as though no brief were on file for plaintiff in error.