author: REESE, J.

text:
    YOUNG MEN’S CHRISTIAN ASS’N v. JASSE et al.
    (No. 6007.)

    (Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1912.
    Rehearing Denied Feb. 10, 1916.)
    1. Judgment <@=o256 — Verdict—Validity.
    In an action against two defendants, each of whom sought affirmative relief against the other, by way of contribution as joint tort-feasors, where the verdict was in favor of plaintiff against one defendant, and for the other defendant, judgment was properly rendered thereon for the plaintiff against the first defendant and for the second defendant, decreeing further that neither defendant should take anything under his cross-petition against the other defendant.
    [Ed. Note. — Eor other eases, see Judgment, Cent. Dig. §§ 449, 450; Dec. Dig. <⅝»256.]
    2. Akpeal and Error ⅞=»1003 — Review — Verdict — Evidence.
    Where the evidence in an action for injuries received by a pedestrian in falling into a coal-hole justified the conclusion that the covering thereon was defectively constructed, it could not be said that the verdict against the property owner was against the preponderance of evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.]
    3. Indemnity <§=»13(1) — Streets — Obstructions — Liability.
    Where a property owner maintained a coal hole in the sidewalk which was dangerous, unless the cover was placed in a certain position, and he instructed one delivering coal to replace the cover in that position, and hq failed to do so, the property owner could recover from the active tort-feasor the amount recovered by the injured party from the owner, who was a mere passive tort-feasor.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §{j 29, 30, 33, 34; Dec. Dig. <$=> 13(1).]
    4. Municipal Corporations <$=>822 — Streets — Obstructions — Liability — Contribution-Instructions.
    Instruction in action for personal injuries by falling in coalhole negligently closed, held not affirmative error where it correctly stated certain conditions under which one defendant might recover from the other as a joint tort-feasor, but did not state that they were the only conditions.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 175&-1762; Dec. Dig. <$=>822.]
    5. Municipal Corporations <$=>821(19) — Joint Tort-Feasors — Instructions—Proximate Cause.
    Plaintiff was injured by falling into a coal-hole in the walk abutting defendant association’s property. In his action the association contended that the cause of the injury was the negligent replacing of the cover by defendant coal company’s driver after delivering a load, contrary to instructions of the association. Held, that if the injury resulted from negligent replacing of the cover by the driver, such act was the proximate cause of the injury, and it was error to submit such question to the jury as an issse of fact.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1753; Dec. Dig. <®=> 821(19).]
    6. Trial <$=>228(3) — Instructions—Particular Words.
    Error cannot be predicated on the use by the court in an instruction of the word “slipped,” instead of the word “tilted,” as used in the petition, where the evidence on the nature of the injury was clear, and no prejudice could have resulted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 512; Dec. Dig. <$=>228(3).]
    7. Municipal Corporations <$=>S22 — Streets — Obstructions — Liability — Contribution-Instructions.
    In an action for injury to a pedestrian from falling into a coalhole, error cannot be predicated on the giving of an instruction submitting the issue as to whether the crossbar designed to hold the lid in place, was in place, where the evidence thereon was controverted.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. <$=>822.]
    8. Appeal and Error <$=>1033 — Review — Harmless Error — Error Favorable to Appellant.
    A party cannot complain of an instruction submitting an issue to the jury on which the evidence against him was undisputed, the instruction being more favorable to him than the evidence warranted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <$=> 1033; Trial, Cent. Dig. § 587.]
    9. Municipal Corporations <$=>817 — Streets —Injuries—Presumptions.
    Where a property owner is negligent in failing to maintain a coalhole properly, he must be presumed to have anticipated any injuries to pedestrians, such' as broken limbs, received in falling into the hole.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. <$=> 817.]
    10. Damages <$=>130 — Personal Injuries — Excessive Damages.
    Where plaintiff, 40 years of age, had been a bookkeeper for over 15 years, although he had been out of work 8 months prior to his injury, in which he received a compound, comminuted fracture of both bones of the leg just above the ankle, and was in the hospital for 3 months, and under the doctor’s care for 6 months, and had to use crutches for a long time, and at the time of the trial used a stick, and his broken leg was 1½ inches shorter than the other, and the log was very much weakened and stiffened, a judgment of $8,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. <g=>130.]
    11. Trial <$=>133(2) — Cure op Errors.
    Although plaintiff’s counsel made improper remarks, the error in admitting them was cured where on request the court instructed the jury not to consider them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <$=>133(2).]
    12. Appeal and Error <$=>1173 — Reversal— When Necessary.
    Although a judgment must be reversed as to the several liabilities of the defendants to each other, that does not require that it also be reversed as to the liability of one of them to the plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent, Dig. §§ 4562-4572, 4656; Dec. Dig. <$=>1173.]
    Reese, J., dissenting in part.
    Error from District Court, Harris County; J. A. Read, Special Judge.
    Action by Fred Jasse against the Young Men’s Christian Association, a corporation, and another, wherein each defendant filed a cross-petition against the other. Judgment for plaintiff against the Association, and against plaintiff as to defendant A. T. Lucas, and against the defendants on. their cross-petitions, and the Association brings error.
    Reversed and remanded in part.
    Hutcheson & Hutcheson, of Houston, for plaintiff in error. Fisher, Sears & Campbell and J. W. Parker, all of Houston, for defendant in error Jasse. Thos. H. Stone and W. J. Howard, both of Houston, for defendant in error Lucas.

      Application for writ of error pending in Supreme Court.

   REESE, J.

Fred Jasse instituted this action in the district court against the Young Men’s Christian Association, a corporation, and A. T. Lucas, to recover damages for personal injuries occasioned by- reason of his stepping upon the lid or covering in an opening in the sidewalk which was alleged to have been, .through the negligence of defendants, left in an insecure condition, on account of which it tilted up on one side when he stepped upon it, causing his leg and part of his body to fall into the hole, | breaking his leg and otherwise injuring him. Both parties denied generally the allegations of the petition, denied the charges of negli* gence, and pleaded contributory negligence on the part of plaintiff, and each defendant pleaded over against the other for such amount as might be recovered by the plaintiff against such defendant. The case was tried with the assistance of a jury, resulting in a verdict in favor of the plaintiff against the Young Men’s Christian Association for $8,-000, and against the claim of plaintiff against Lucas, but not finding specially as to the claim of the Association against Lucas. Upon this verdict judgment was rendered in favor of the plaintiff against the Association for the amount of the verdict, and against the plaintiff and the Association as to their respective demands against Lucas. The Young Men’s Christian Association brings the case to this court on writ of error as against both of the other parties. In speaking of the parties we will use the terms appellant and appellee, and the Association instead of the full name of Young Men’s Christian Association.

The Association is the owner of a building located on the corner of Fannin street and McKinney avenue in the city of Houston, the building on the two sides extending to the edge of the sidewalk or street. In the sidewalk, on the McKinney avenue side of the building, there is a circular hole about 2 feet in diameter, placed for the purpose of delivering coal into the basement of the building, which at this point extends under the sidewalk. This hole has a circular iron rim, flush with the surface of the sidewalk, with a flange about one-half inch wide on ■its inner surface, upon which rests an iron top or lid, which, when properly in place, is also flush with the surface of the sidewalk. An iron rod extends through the center of this lid into the excavation below where there is some sort of contrivance, the exact nature of which is not explained clearly to us so that we can describe it, but it is so contrived that when this lid is on, by means of this contrivance fastening to the iron rod through the lid, the rod can be so fastened below as to securely hold the lid in place, and also prevent any one from removing it from the outside.

On the 10th day of December, 1908, ap-pellee Jasse, accompanied by his wife, was walking along McKinney avenue, and when they arrived at this hole in the sidewalk Jasse stepped upon the lid over the hole, when the same tilted, and by reason thereof the leg and part of the body of Jasse went into the hole, breaking his leg and inflicting upon him other injuries. The appellee was in the exercise of due care at the time.

On the day of the accident Lucas was engaged in delivering a carload of coal to the Association, having three drays, driven by Will Mayfield, Dan Dunlavy, and another man named Will, whose surname is not shown, doing the work of delivery. These men were directed by those in charge of the building when a load had been delivered td> replace the lid and to notify appellant’s engineer of that fact in order that he might see that the lid was properly replaced and secured in the hole, and to get his ticket showing such delivery.

The sharply contested issue in the casé was whether the driver who delivered the last load preceding the injury to Jasse had performed this duty. It was conceded that the fastening spoken of underneath the lid had not been made, and that if the lid had been thus secured it would have been impossible for the accident to happen. It is appellant’s contention that this driver in replacing the lid negligently failed to place it squarely in the hole and on the inside flange, but left one side of it on the rim of the hole so that it would easily tilt if stepped upon, and that this was the proximate and active cause of the accident. Lucas’ contention, on the contrary, is that this driver replaced the lid carefully in the hole and notified the engineer and got his ticket. To support its contention appellant contended that if the lid had been placed squarely in the hole it would have been impossible for it to have tilted as it did. Appellees denied this contention, and evidence was introduced of experiments made after the accident. Appellant on this appeal insists that the result of these experiments Conclusively supports its contention. Our conclusion is that there was sufficient evidence to support the finding of the jury that the driver of Lucas was not negligent in the matter.

We further find that regardless of whether or not the servants of Lucas were negligent in this respect, as charged by appellant, the appellant, as owner of the premises, was negligent in failing to keep the sidewalk in a reasonably safe condition, and this negligence was a proximate cause of ap-pellee’s injury. We also find that Jasse was injured substantially as charged in the petition, and that his injuries are of such character as to justify the verdict as to the amount of damages sustained by him.

Four issues were presented by the pleadings: First, as to plaintiff’s right to recover against appellant; second, his right to recover against Lucas; third, Lucas’ right to recover over against appellant; and, fourth, appellant’s right to recover over against Lucas. The court instructed the jury as to the form in which the verdict should be returned to meet the different findings, instructing the jury that if they found a verdict in favor of plaintiff against only the defendant Association, and against plaintiff as to the defendant Lucas, the verdict should be as follows:

“We, the jury, find for the plaintiff against the defendant Young Men’s Christian Association, and assess the damages in the sum of-dollars. And we find against the plaintiff in favor of the defendant Lucas.”

The verdict returned followed this form and did not specifically pass upon the issue as to the liability of Lucas to appellant. The Judgment followed the verdict, and further adjudged that appellant and Lucas take nothing as to their respective demands upon each other. By the first assignment of error appellant complains that the verdict did not dispose of these issues, that the judgment could not go beyond the verdict, and that this issue as to appellant’s right to recover over against Lucas not having been properly disposed of, the judgment is not final. We conclude that as the case was presented by the pleadings and evidence, the finding in favor of Lucas, as to the claim of the plaintiff, necessarily involved and carried with it a finding that Lucas was not guilty of any negligence proximately causing or contributing to the accident, the necessary result of which finding was that he was not liable to appellant. It would have been logically impossible for Lucas, to have been liable to appellant, such liability based upon his negligence, and not liable to the plaintiff, Jasse, such nonliability'being based upon his not being guilty of negligence as a proximate cause of the injury as found by the jury. So the finding in favor of Lucas as against plaintiff’s claim necessarily was a finding in favor of Lucas as to the claim of appellant. In directing the form of the verdict the court evidently took this view, and the jury was not directed as to the form of a verdict covering the claim of appellant against Lucas, if they found in his favor as against the claim of the plaintiff, Jasse. No charge was requested by appellant as to this. We are of the opinion that there can be no difficulty in determining from the verdict as returned, in view of the issues presented by the pleadings and evidence, that the jury found against the claim of appellant against Lucas. The verdict supports the judgment. The assignment is overruled. Burton v. Anderson, 1 Tex. 93; Burton v. Bondies, 2 Tex. 204; Mays v. Lewis, 4 Tex. 45; Horton v. Reynolds, 8 Tex. 294; Smith v. Johnson, 8 Tex. 424; Railway v. James, 73 Tex. 18, 10 S. W. 744, 15 Am. St Rep. 743.

The second assignment of error assails the verdict and judgment on the ground that the verdict is against “the great preponderance” of the evidence in finding against appellant and not finding for appellant against defendant Lucas, because the evidence affirmatively shows in the way and manner in which the accident occurred that the injury must have occurred from the failure of Lucas to properly replace the lid or cover, and that the injury could not have occurred had the cover been properly replaced. We will not undertake in this opinion to set out the evidence or the issue. Our findings of fact sufficiently show our conclusions. There was evidence which tended to show that on account of inherent defects in the covering of the hole it was not safe and secure against such accidents as this, even when properly placed in the hole. We have carefully examined the testimony of the witnesses who made the experiments referred to, and which is relied upon, in connection with other testimony, conclusively to rebut the positive testimony of Lucas’ driver, Mayfield, that he was the driver who delivered the last load of coal, and that he carefully replaced the lid and notified the engineer, by showing by the physical facts that this could not be true, and that it would have been impossible for the lid to be made to tilt by some one stepping upon it, as Jasse did, if it had been thus securely replaced. The testimony does not produce this impression on us, but, on the contrary, some of the testimony authorizes the conclusion that the opening and lid were defectively constructed, and in certain position of the lid with reference to the hole it was unsafe and could be made to tilt when stepped upon. It is sufficient to say, in answer to the assignment, that the finding of the jury that the servant of Lucas was not guilty of negligence proximately causing or contributing to the injury, and hence that Lucas is not liable to the appellant, is sufficiently supported by the evidence; that is, that it is not so against the preponderance of the evidence as to authorize this court to set it aside. The assignment is overruled. This disposes also of the third assignment of error, which is also overruled.

The requested charge referred to in the fourth assignment of error related solely to the issue of the liability of Lucas to appellant. It was properly refused. The basis of the charge is that the uncontroverted proof shows that Jasse “stepped on the cover at-such a place and in such a way and manner that if the cover had been placed within the rim it could not have been displaced.” This, we think, is not true. The charge otherwise was misleading and confusing. The assignment is overruled.

In its petition against Lucas appellant alleged that it had given to Lucas, his servants and agents, instructions that in delivering coal to the appellant they should not deliver any load of coal without advising the engineer in charge, and should in no event remove the cover from the hole, and that in every instance, after a load of coal had been delivered, they should replace the cover securely back on the hole before driving away. In submitting the issue of the liability of Lucas to appellant, the court gave the following charge, which is paragraph 6 of the general charge:

“If you find for plaintiff against both defendants, then you are instructed that if you believe from the evidence that, substantially as alleged by defendant Association, it had given to said Lucas, his servant or agents, instructions that in delivering coal to said Association, they should not deliver any load of coal to the building without advising the engineer or fireman in charge of said Association’s engines, and should, in no event, remove the cover from said manhole, and that in every instance, after a load of coal had been delivered they should replace the cover securely back on the hole, before the driver had driven away; and if you believe from the evidence that, just prior to plaintiff’s injury, the servant or agent of the defendant Lucas, without notifying defendant Association, or its agents or employes that he had a load of coal to deliver so that they could be present and superintend the same, without right and against the instructions of defendant Association, removed the cover of the coal chute and loaded in a load of coal, and thereafter replaced or attempted to replace the cover on the said coal chute, and departed from the building without notifying defendant Association’s engineer, or any one representing said Association that he had removed the cover of said manhole, or that said cover was insecurely replaced, if you find that it was, and that as a result thereof plaintiff was injured, then the defendant Association will be entitled to a verdict over against the defendant Lucas for such amount of damages as you may find for plaintiff, if you do find for the plaintiff.”

Complaint of this charge is made by the fifth assignment of error. The gravamen of such complaint is that by it the jury was required to find, as a condition of recovery by appellant of Lucas, certain facts which were not necessary to such recovery, even though they were alleged in appellant’s petition or cross-action against Lucas. It is contended that in order to authorize such recovery it was only necessary to establish that the servant of Lucas negligently failed to replace the cover on the coalhole. In this we agree with appellant as in such case appellant and Lucas would not he joint tort-feasors, but the act of Lucas being the direct and immediate cause of the injury, he would be considered as the active, and appellant as only the passive, tort-feasor, and in such case, if plaintiff recovered judgment against appellant, appellant would be entitled to recover over against Lucas. The following authorities are, we think, applicable: Cooley on Torts, 166 et seq.; Gas Co. v. Singleton, 24 Tex. Civ. App. 341, 59 S. W. 920; San Antonio v. Smith, 94 Tex. 266, 59 S. W. 1109; Railway Co. v. Vance, 41 S. W. 171; Kampmann v. Rothwell, 101 Tex. 540, 109 S. W. 10S9, 17 L. R. A. (N. S.) 758.

But appellant is in error in construing this charge to be affirmative error, granting the soundness of its contention. The charge merely instructs the jury that these several acts and omissions on the part of Lucas' servant would entitle appellant to recover agáinst Lucas, which is unquestionably correct. It was not charged that these facts were necessary to a recovery. It is true that appellant requested certain charges presenting his right to recover upon the negligent omission properly to replace the lid on the hole by Lucas’ servant, which were refused, and upon which refusal appellant has assigned error. These assignments will be discussed later. But the assignment now presented, with the several propositions thereunder, is overruled, for the reasons indicated. We may add, however, that in the latter part of the charge the jury were told that the mere failure to securely replace the cover by ' Lucas’ servant which resulted in the injury to plaintiff, would entitle appellant to recover of Lucas; the disjunctive “or,” and not the conjunction “and,” being used to separate this from the other facts which the jury was instructed would authorize such recovery. What we have said disposes also of the sixth and seventh assignments and the several propositions thereunder, which are overruled.

Appellant requested the court to give the following charge, which was refused, and the refusal is made ground for the eighth assignment of error:

“You are instructed at the request of the defendant Young Men’s Christian Association that while the said defendant owed the plaintiff the duty of exercising ordinary care, to keep and maintain its premises in a safe condition, and if you find that it has been negligent in its duty of maintenance and as a result thereof the plaintiff was injured, and if you find the plaintiff entitled to recover under the charge of the court, still, if you further find that such condition existed by reason of the failure on the part of the driver or servant of A. T. Lucas to properly replace the cover on the manhole, and that such failure to so place the cover was negligence, and that as a result of such negligence plaintiff was injured, you will find in favor of the defendant Young Men’s Christian Association over and against the defendant A. T. Lucas for any sum or sums which you may find in favor of the plaintiff as against the defendant A. T. Lucas.”

A similar charge was requested and refused, as set out in the succeeding assignment of error, also numbered 8. The court also charged the jury in subdivision D, paragraph 5, of the general charge, in substance, that if they believed that the servant of Lucas was negligent as charged, but did not believe that such negligence was a proximate cause of the injury, Lucas would not be liable to plaintiff. Objection to this charge is made ground for the twelfth assignment. These assignments, in the opinion of the majority of the court, have such a bearing upon each other as renders it proper that they be considered in connection with each .other. The charges referred to in the two assignments numbered 8, and that made ground for the fifth assignment, refer to the issue as between appellant and Lucas. It is contended by appellant that if the servant of Lucas failed properly to replace the cover on the coalhole and left it in the insecure condition of having one side down in the hole resting on the edge of the flange and the opposite side resting on the inner edge of the rim, such act was necessarily the proximate cause of the injury — in fact, the direct and immediate cause — and that the court should have so declared as matter of law, and erred in submitting it to the jury as an issue of fact. If this conclusion is, as urged, the result of the uncontro-verted evidence, there can be no doubt that the submission of the issue to the jury in the form in which it was submitted was error (Railway Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; Culpepper v. Railway Co., 90 Tex. 627, 40 S. W. 386; Railway Co. v. Rowland, 90 Tex. 365, 38 S. W. 756), even as explained by Parks v. Traction Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100.

The majority of the court concludes that if the servant of Lucas was negligent in the matter and manner indicated, such negligence was clearly, as matter of law, a proximate cause of the injury. This the writer is inclined to doubt. The line between the two conclusions, whether the evidence conclusively establishes a fact making it the duty of the court to so declare, or whether the evidence as to the fact raises an issue of fact to be submitted to the jury, is very often difficult of ascertainment. Where the matter is left in doubt, I think the issue should be submitted, and I am not inclined to reverse the judgment, especially in the case of such an issue as is here presented if the trial court mistakenly submits the issue. The majority, as I understand, also agree that the judgment as between Lucas and appellant should not be reversed on this ground alone, but that the submission of the issue on paragraph 6 of the charge, as set out in the fifth assignment, although standing by itself it was not affirmative error, in connection with the refusal to give the special charges requested, as set out in the two assignments numbered 8, submitting such issue correctly, as appellant had a right to have it submitted, together with the erroneous charge submitting the issue of whether, if the servant of Lucas was guilty of negligence in not properly replacing the lid, such negligence was a proximate cause of the accident, all taken together and in connection with the entire charge, constitutes reversible error, in so far. as the judgment against appellant on his claim against Lucas is concerned. This error, the majority holds, is not rendered harmless by the fact that the jury found that Lucas was not guilty of negligence, as between himself and the plaintiff: such finding being probably affected by the error in the charges referred to, and especially by tlie erroneous charge upon the issue of proximate cause, in that part of the charge submitting the issue of liability of Lucas to the plaintiff. Prom some of these conclusions the writer is compelled, reluctantly and respectfully, to dissent My views on this point will be presented in a separate opinion. In the opinion of the majority the assignments of error numbered 8 and 12 must be sustained, and on account of the errors thus pointed out the judgment in favor of Lucas against the claim of appellant must be reversed.

In view of the length of this opinion, assignments of error 9, 10, and 11, and the various propositions thereunder, are overruled without discussion.

What we have said disposes substantially of the thirteenth and fourteenth assignments of error, which present substantially the same error that is presented by the twelfth assignment.

There is no merit in the fifteenth and sixteenth assignments of error. The use by the court of the word “slipped,” instead of “tilted,” in the charge, although the petition uses the word “tilted” as describing the movement of the lid when Jasse stepped upon it, could not have misled the jury. The evidence showed how the accident occurred and the movement of the lid, and even though tilted was the proper word to describe this movement, the use of the word “slipped” in the charge in this connection is a matter of too trifling importance to engage serious attention.

Complaint is made by the seventeenth assignment of error that the court erred in its general charge in submitting to the jury as a ground of liability of appellant whether the crossbar, designed to hold the lid in place, was in place, and, if not, whether the absence of it was the cause of the injury. The objection to the charge is predicated upon the proposition that the undisputed evidence showed that the injury must have occurred by reason of the failure of the servant of Lucas properly to replace the lid. As we have shown, this was a contested issue, in fact found against appellant’s contention upon what we have held to be sufficient evidence. The assignment is without merit.

By the eighteenth assignment appellant complains that the court erred in submitting the issue as to whether this bar was in place, on the ground that the undisputed evidence showed that it was not. If this be true, and the charge of negligence on the part of appellant be based upon this failure on its part to have the lid secured in place by means of this crossbar, certainly it is not an error of which appellant can complain that the court submitted the issue to the jury instead of assuming that there had been such failure. Such submission of this issue could not reasonably have had the effect of confusing the jury, as contended by appellant. The assignment is overruled.

The charge referred to in the nineteenth assignment, being charge No. 2 requested by appellant and refused, is to the same general effect as the charges referred to in the two assignments numbered 8 and heretofore discussed. By it the jury was instructed, in substance, that if the servant of Lucas negligently failed to replace properly the lid over the coálhole, and such negligence was a proximate cause of the injury, Lucas woulu be liable both to plaintiff, Jasse, and the ap pellant. It is not necessary that we say more as to this assignment than what has already been said on the question involved.

The twentieth assignment of error com. plains of paragraph 6 of the court’s charge, upon the same general grounds presented by the fifth assignment of error. This paragraph of the charge does not present affirmative error. The assignment is overruled.

There was no error in the refusal of the charge requested by appellant set out in the twenty-first assignment. If appellant was negligent in failing to use ordinary care to keep tlie lid on tiie coalliole in a sale condition to avoid injury to persons walking along the street, it must have foreseen that some such accident as that which happened to Jasse would happen. It was no error to refuse to submit the issue specially to the jury as was requested. The same general principle applies to the charge asked and refused, as set out in the twenty-second and twenty-third assignments of error.

The twenty-fourth assignment complains of the verdict as excessive in the amount of damages awarded. The verdict is a liberal one, very liberal, and stops just this side of the point where we would feel compelled to require a remittitur, but it appears to be the result of the dispassionate consideration of the evidence by the jury. Appellee is a bookkeeper by calling, and has been engaged in that business for more than 15 years. He has been, for some 8 months prior to the accident, out of work, having been unable to secure satisfactory employment. While his injuries are of such a character as to impair his capacity to work and earn money in most kinds of manual labor, this capacity to do so in his chosen calling does not appear to be impaired. Still there are many elements of serious damage present. Appellee was, at the time of the accident, 40 years of age. By the fall both bones of one leg were broken just above the ankle, a compound, comminuted fracture of the worst kind. There can be no question that he suffered for some time the greatest pain. The accident occurred December 10th. Ap-pellee was in a hospital under treatment of his physician nearly 3 months, and after his release from the hospital was under such treatment until the succeeding July. While in the hospital, at different times, various incisions had to be made in his wounded leg to drain out infected matter and remove pieces of crushed bone. He had to use crutches' until the following July, and now walks with the aid of a stick. The wounded leg is about 1½ inches shorter than the other. Appellee gets about without difficulty, but experiences pain in this leg when he has to walk as much as three-quarters of an hour, but the physician testified that there will always be a greater liability for the bones in this leg to break, and it is very much weakened, and the foot has a tendency to turn in when walking. There is a weakening of the large bone and partial loss of motion in the ankle. His physician considered Mr. Jasse’s recovery without amputation of the leg most remarkable and due largely to his uniform patience in suffering and obedience to directions. The medical expenses, hospital fees, etc., amounted to between $600 and $700.

During the course of the argument one of appellee’s counsel indulged in the use of j language which was very improper in an evi- | dent endeavor to create for his client syrnpa- ! thy, and thus swell the amount of the verdict. No notice of these remarks was taken at the time by any one, but the next day, when the case was submitted to the jury, at the request of counsel committing the error, the court instructed the jury that the remarks were improper, and must not have any consideration at their hands. As these improper remarks seem to have had for their object to convince the jury that it would take at least $40,000 to properly compensate the appellee, they do not seem to have been reflected in the verdict, but to have been very properly utterly disregarde'd. No bill of exceptions was taken to these remarks, and they only appear in the record in aid of the assignment of error complaining of the excessive amount of damages allowed, in support of the argument that the improper remarks, to some extent, caused the amount to be unreásonably increased. We can hardly conceive that any juryman of the most ordinary common sense could have been thus influenced by the remarks referred to coming from the lips' of counsel. We are of the opinion that we would not be justified in substituting our judgment for that of the jury as to the proper amount of compensation in this case. The assignment must be overruled.

None of the assignments, of error present any grounds which would require a reversal of the judgment in favor of Jasse against the Young Men’s Christian Association. The issues as between them were submitted in a charge which, at least, presents no reversible errors. There is no substantial reasons why the judgment as between them should be reversed on account of errors committed in the trial of the issue of the liability of Ducas to the Association. In fact, it seems to us that the undisputed evidence establishes the liability of the Association to the plaintiff, regardless of the question of liability of Lucas to appellee, and no other verdict than one in favor of the plaintiff woiild have been justified. This, of course, does' not at all mean that Lucas, as the active tort-feasor, if he was in fact negligent in the manner charged, may not be also liable to appellant for the damages suffered by it. Kampmann v. Rothwell, 101 Tex. 538, 109 S. W. 1089, 17 L. R. A. (N. S.) 758; San Antonio v. Smith, 94 Tex. 268, 59 S. W. 1109.

The majority of the court concludes that the judgment in favor of Jasse against the Young Men’s 'Christian Association should be affirmed, and that the judgment in favor of Lucas against the Association should be reversed and the cause remanded, as to this issue, for another trial in accordance with this opinion; and it is so ordered.

From so much of the opinion and decision of this case as results in a reversal of the judgment in favor of Lucas against appellant I feel compelled to record my dissent, and will state very briefly the grounds of such dissent. In a proper charge clearly presenting that issue, and upon evidence which we agree was entirely sufficient to support the verdict, the jury have found that Lucas was not guilty of any negligent act proximately causing the injury to Jasse. The issue as to such negligence was clearly cut and clearly presented to the jury. It is entirely clear to me that the jury based their verdict upon the testimony that May-field was the last of the drivers of Lucas to deliver coal before the accident, that he was telling the truth when he testified that he carefully replaced the lid in the hole and reported to the engineer, and that it was possible for the lid in this position, but without the fastening of the crossbar below, to be tilted up by stepping upon it. It seems clear to me that this verdict was not influenced by any of the errors in the charge submitting the issues between Lucas and appellant. The error in the charge referred to in the ninth assignment of error, in submitting the issue as to appellant’s liability to Jasse, with regard to proximate cause, if it be an error, under the authority of the Cul-pepper, McCoy, and Rowland Cases cited, did not, I think, influence the jury in rendering the verdict. I think it is unreasonable to suppose that the verdict discharging Lucas and holding him not guilty of negligence could have been affected by this charge submitting to them the issue of proximate cause, even if such submission was error. So we have, in my opinion, a correct trial of the issue of Lucas’ negligence and a proper verdict that he was not guilty of any negligence to which the accident could be attributed. How could it then be logically possible for the jury, in determining the right of appellant to recover against Lucas, under any sort of charge to have found that Lucas was guilty of negligence proximately causing or contributing to the accident, and therefore while not liable to Jasse, liable to the Association. This would seem a most absurd conclusion. If this view be correct, then none of the errors in the giving or refusal of charges in submitting the issues of appellant’s right to recover of Lucas, based on his negligence, could have been harmful to the Association. In such case I cannot bring myself to agree with the majority in a reversal of the judgment as between Lucas and the Association, and a remand of the cause for another trial of these issues. My conclusion is that the entire judgment should be affirmed.

Affirmed in part. Reversed and remanded in part.

REESE, J., dissents.
      <§r^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gc5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J. HAWKINS, J.

license: Public Domain

text:
    FIRST STATE BANK OF AMARILLO v. JONES.
    (No. 2785.)
    (Supreme Court of Texas.
    March 8, 1916.)
    1. Mortgages <J£=j151(5) — Priorities — Judgment Liens — “Innocent Holder.”
    A judgment lienholder does not stand in. the same position as an innocent purchaser of land for value without notice being entitled only to whatever interest the judgment debtor may have in the land, and therefore the lien of a judgment creditor is inferior to a prior deed of trust, though through mutual mistake a release of the trust deed was executed, reciting-payment of the entire debt and releasing lands on which a judgment lien was claimed.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 320-322, 332-336; Dec. Dig. <S=3 151(5).
    For other definitions, see Words and Phrases, First and Second Series, Innocent Holder.]
    2. Reformation of Instruments <§=19— Right to Reformation — Mistake.
    Where a release of a deed of trust through mutual mistake recited payment of the entire debt and erroneously released more of the land than was intended, the instrument will be reformed by a court of equity.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. ©=319.]
    3. Reformation or Instruments ©=345(18)— Action — Evidence—Sufficiency.
    Where a release reciting payment of entire debt did not purport to release all of the lands subject to the deed of trust, held, that such recital could not overcome abundant other evidence showing that it was made through mutual mistake.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 169, 192; Dec. Dig. ©=345(18).]
    Hawkins, J., dissenting.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by T. K. Jones against the First State Bank of Amarillo and another. Judgment for plaintiff was affirmed on the named defendant’s appeal to the Court of Civil Appeals (171 S. W. 1057), and such defendant brings error.
    Reversed and reformed.
    Turner & Rollins, of Amarillo, and W. T. Allen, of Henrietta, for plaintiff in error. R. E. Taylor, of Henrietta, Leslie Humphrey, of Wichita Falls, and Wantland & Parrish, of Henrietta, for defendant in error.
   YANTIS, J.

The trial was in the district court before the judge without a jury. A judgment was rendered in favor of T. K. Jones, the plaintiff there, and defendant in error here. A judgment was rendered in his favor in the district court foreclosing his judgment lien on the land of W. S. Roberts, one of the defendants, giving priority to his lien over the deed of trust lien held by the First State Bank of Amarillo, one of the defendants in said suit, and plaintiff in error in this court. Judgment was also given in favor of the bank against Roberts for its debt and a foreclosure of its lien, but giving priority to the Jones judgment lien. The bank alone appealed to the honorable Court of Civil Appeals for the Second District, in which court the judgment of the district court was affirmed. The hank presented in this court its petition for writ of error. Jones, the defendant in error, filed an answer thereto, which rendered the case subject to immediate disposition.

We take the following statement of the ease from the opinion of the honorable Court of Civil Appeals, which presents the issues to be considered:

“T. K. Jones instituted this suit against W. S. Roberts and the First State Bank of Amarillo to foreclose an alleged judgment lien upon land situated in Clay county, consisting of two lots in the town of Henrietta and a tract of 103.2 acres. Plaintiff alleged in his petition that the bank was asserting some claim to the property, • and prayed that the judgment lien sought to be foreclosed be established as superior to any claim asserted by the bank. From a judgment in favor of the plaintiff, granting the relief prayed for, the defendant bank alone has appealed.
“On the original hearing the judgment was reversed, and judgment was here rendered in favor of the bank; but upon a motion for rehearing by appellee Jones the judgment was affirmed. Appellant has now moved for a rehearing, and, in order to set out more fully and more accurately the facts shown in the record, both original opinions are withdrawn, and this is filed as a substitute therefor. The judgment upon which the alleged lien was-predicated was rendered in favor of Jones against Roberts on October S, 19.12, and an abstract of same was filed in Clay county on October 9, 1912.
“The evidence shows that plaintiff’s judgment against Roberts was rendered for $12,986.74, and as so rendered it was abstracted. Three days after the rendition of the judgment a re-mittitur of $860.48 was filed by the plaintiff in the judgment, reciting that to that extent the judgment was excessive, and that the ertor was due to a mistake in calculation of the amount due upon the promissory notes which formed the basis of that suit.
“The controversy between Jones and the bank in this suit is a question of priority of liens, the bank claiming a lien upon the land in controversy superior to that of the judgment lien. The following evidence appears in the statement of facts:
“On December 21, 1911, Roberts executed a deed of trust upon the property in controversy ancl another tract of land consisting of 50 acres also situated in Clay county to secure the bank in the payment of a promissory note for the principal sum of $5,500, dated December 1, 1911, and due 20 days after date with 10 per cent, interest and 10 per cent, attorney’s fees. This deed of trust was duly filed for record in Clay county on December 22, 1911. On April 18, 1912, the bank, acting through its president, Mike C. De Master, executed a release in words and figures as follows:
“ ‘State of Texas, County of Potter.
“ ‘Know all men by those presents:
“ ‘Whereas, on the 1st day of December, 1911, W. S. Roberts of Potter county, Texas, did execute, acknowledge and deliver to Mike O. Le Master, trustee, for benefit of First State Bank, Amarillo, of Potter County, Texas, a certain deed of trust on the following described real estate, situated lying and being in the county of Clay in said state of Texas, which deed of trust is recorded in Book 17, page 253, Mortgage Records of Clay County, Texas, to wit, a certain fifty acres of land, which is described by metes and bounds in the above-mentioned deed of trust, and being part of a certain deed recorded in Book 49, page 18, Deed Records of Clay County, Texas, and specifically described in a deed, dated Amarillo, Texas, dated April 17, 1912, executed by W. S. Roberts to E. O. Carter, to secure the prompt payment of one certain promissory note executed by the said W. S. Roberts and payable to the order of First State Bank, Amarillo, Texas, as follows: One note of fifty-five hundred dollars, due March 1, 1912, and bearing interest from maturity at the rate of ten per cent, per annum; and
“ ‘Whereas, said note with accrued interest has been Lilly paid, and at the time of such pay-i ment said note was the property of First State Bank, Amarillo, Texas:
“ ‘Now, therefore, know all men by these presents, that I, Mike C. Le Master, president of First State Bank, Amarillo, Potter County, Texas, in consideration of the premises and of the full and final payment of said note, the receipt of which is hereby acknowledged have this day and do by these presents, remise, release and quit claim unto the said W. S. Roberts, his heirs and assigns, the lien heretofore existing on said premises by virtue of said deed of trust, and do hereby declare the same fully released and satisfied.’
“That release was properly filed for record in Clay county on May 27, 1912. On October 15, 191.2, W. S. Roberts executed another deed of trust to Mike C. Le Master, trustee, for the First State Bank of Amarillo, which was filed for record in Clay county October 17, 1912, and duly recorded in deeds of trust records of that county, upon all the land described in the original deed of trust, except that described in the release, which recited the execution and record of the' deed of trust dated December 21, 1911, also the execution and record of the release of date April 18, 1912, from the First State Bank of Amarillo to W. S. Roberts, stating, in substance, that said release was intended only to release the two tracts of land therein described and referred to containing one 5-acre tract and one 50-acre tract, two of the tracts described in the deed of trust of date December 21, 1911; that the execution of said release was in consideration only of the payment of the sum of $800, and not the whole indebtedness secured by the deed of trust; that it was the intention of all the parties to the instrument that the release should be made to said 55 acres only and no more, and that the recital in the release of the full payment of the $5,500 note was a mistake made through inadvei'tenee on the part of the person who prepared the release and on the part of Mike O'. Le faster, president of the bank. This instrument further stipulated that it was given to secure the payment of the balance due the bank evidenced by a note for $4,-798.85, dated September 9, 1912, due November 1, 1912, with 10 per cent, interest from maturity and 10 per cent, attorney’s fees; that said note was in renewal of said original indebtedness of $5,500 secured by the first deed of trust, and that the deed of trust then being executed was given to continue in, full force and effect the original deed of trust executed by Roberts and mentioned above.
“The defendant also introduced in evidence the following promissory notes all executed by W. S. Roberts, payable to the order of the First State Bank of Amarillo: The first for the principal sum of $5,500 dated December 1, 1911, due 90 days after date; the second for the principal sum of $4,798.85, dated September 6, 1912, due November 1, 1912; the third for the principal sum of $5,253.59, dated August 8, 1913, due October 1, 1913. It does not appear from, the statement of facts that either the second or third note purports upon its face to be a renewal of any other note. Mike O. De Master testified upon the trial as follows: T was president of the hirst State Bank of Amarillo during the latter part of 1911, the year of 1912, and the first half of 1913, and was president of said bank on the 18th day of April, 1912. I am now familiar with the release executed by me as president of said bank to W. S. Roberts, dated April 18, 1932, recorded in Volume 67, p. 512, Deed of Trust Records of Olay County, Tex., but was not familiar with the contents thereof at the time of its execution. The statement in said release to the effect that the note for $5,500, secured in the deed of trust of December 21, 1911, recorded in Volume 17, p. 253, Deed of Trust Records of Olay County, Tex., made by W. S. Roberts to me as trustee for First State Bank of Amarillo, is not true. The note mentioned has never been paid, except in part. There was paid on it $900 about the time of the execution of said release. Am error of the stenographer in failing to cancel a portion of the printed form of said release, which was overlooked by myself when signing such release, accounts for the mistake in said release. My intention was to release certain lands, about 55 acres, described in á certain deed from. W. S. Roberts to E. O. Carter, dated the 17th day of April, 1912, and now of record in the Deed Records of Clay County, Tex., in Volume 66, p. 110, and it was not my intention to release all the property covered by said deed of trust, dated December 21, 1911, of record in the Deed of Trust Records of Clay County, Tex., in Volume 17, p. 253. $900 was paid about the time of the execution of said release. There remains now $5,253.59 principal and interest due First State Bank of Amarillo on said note. I am not now employed in any capacity by the First State Bank of Amarillo. The first time I learned that the release did not set forth the facts was about the 15th day of October, 1912. It was discovered when Mr. Roberts offered to deed us the property in settlement of his debt to us, at which time we sent our attorney, Mr. Thos. F. Turner, to Henrietta to look into the title of this property, and he discovered the error at that time., and instructed us to. have a corrected deed of trust executed, which we did, and the samé is filed in the Deed of Trust records of Clay County, Tex., and recorded in Volume 17, pp. 429, 430.’
“Defendant W. S. Roberts testified as follows: T signed the deed of trust dated December 21, 1911, to secure the payment of a note for $5,-500 described in said deed of trust. There has never been paid on said note except about $909, at the time I sold the land to E. C. Carter described in my deed to him, dated April 17, 1912, which has already been introduced in evidence, and I have paid in addition thereto some small payments of interest, so that there is now due on said original indebtedness the principal sum of $5,253.59, evidenced by the note made by me to said bank and already Introduced in evidence. That note was but a continuation of the old indebtedness secured by said original deed of trust, and I executed and delivered to said bank from time to time renewal notes, so that this last note for $5,253.59 is a continuation of an unbroken chain of notes given by me for said indebtedness. When I sold the land to E. C. Carter, it was necessary for me to get a release of the 55 acres I was selling to him in order to make him a good title, and I agreed with the bank that I would pay $900 out of the money received from him and the sale of the note I g’ot from him if the bank would release these two tracts of land. I got a cash payment of $500 from Mr. Carter and sold the notes he gave me and paid the bank $900 as soon as I sold the notes. The bank executed a release, but I never did see this release. I think it was sent to a bank at Henrietta along with my deed to Mr. Carter to be delivered to Mr. Carter. I did not intend for the bank to release anything but the 55 acres, nor did I ever know that the release recited that the whole $5,500 note had been paid until about the time I executed the second deed of trust on October 3.5,-3.93.2. Mr. De Master told me that there was some mistake in the release which be desired to have corrected, and I then executed the second deed of trust dated October 15, 1912, in order to correct the mistake in the release wherein it was recited that the whole of the note bad been paid. At the time the plaintiff’s abstract of judgment was filed in Clay county, I owed the First State Bank of Amarillo a note for $4,798.85, dated September 6, 1912, due November 1, 1912, and it was secured by said original deed of trust of December 21, 1911, and was a continuation of the original indebtedness secured by said original deed of trust, after deducting the $900 which I bad paid; this last note being the amount due with whatever interest I owed the bank. It was understood between me and the bank all the time, of course, that these renewal notes were secured by said original deed of trust.’
“There was no evidence showing the particular items and dates of the several interest payments testified to by Roberts. Plaintiff introduced no witness to contradict the testimony of Mike C. De Master and Roberts. The two deeds of trust, the three promissory notes, and the release set out above were all specially pleaded by the two defendants, who further pleaded that only $900 was paid to the bank by Roberts at the time the release was executed, and that the recitals contained in the release of full payment of the original debt were inserted by mutual mistake of the parties to that instrument.
“From the facts recited above, it will be noted that the renewal deed of trust was filed for record six days subsequent to the record of the abstract of judgment under which plaintiff claimed a lien.”

The judgment lien of Jones would only fasten upon the interest in the land which was actually owned by Roberts. It would not attach to a greater interest therein than Roberts owned in the land, even though the deed records erroneously disclosed in his favor a greater interest in the land than belonged to him. A judgment lien holder is not in the same attitude as an innocent purchaser for value without notice. The latter has expended his money in good faith to the amount of the purchase price of the land, and is justly entitled to be held harmless. It is right that the loss under such circumstances should be visited upon the landowner whose negligence, in failing to give notice through the deed records of his ownership, occasioned the loss, rather than that it should fall upon the innocent .purchaser who was without fault. The judgment lienholder is in a different attitude. He is not in any sense an innocent purchaser. If his lien fails to attach, he loses nothing. His judgment still remains unimpaired in its full amount. In such a case, even though the owner of the land has been negligent in failing to provide a correct record notice of bis title, still bis negligence has not resulted in injury to the judgment creditor. Under such circumstances, there can be no good reason for any other rule than that his lien attaches to no more than the interest actually owned in the land by the judgment debtor. This was the common-law rule, and it has been consistently followed by this court. If the recital of full payment of the note held by the bank against Roberts was occasioned by a mutual mistake, its correction was an equitable right to which the bank was entitled. This equitable right was not controlled by our registration laws, but was superior thereto. Grace v. Wade, 45 Tex. 522; Blankenship v. Douglas, 26 Tex. 226, 82 Am. Dee. 608; Hill v. Moore, 62 Tex. 610; Hawkins v. Willard (Civ. App.) 38 S. W. 365; Henderson v. Hushing, 47 Tex. Civ. App. 485, 105 S. W. 840.

If the recital in the release which was executed by the bank, through its president, to the effect that the Roberts note which had been secured by deed of trust in the bank’s favor had been paid in full, was in fact a mistake, and the note had not been paid in full, then the bank should not, and would not, lose its lien by reason thereof. In such circumstances, equity would reform the release so as to correct the mistake and speak the truth. On the issue of mistake, the evidence is uncontradicted that the recital of full payment was a mistake, and that the note had not been paid except in part. The bank’s president so testified, and Roberts, whose debt it was, so testified. No person testified to the contrary. No one testified to the existence of any circumstance tending to show that it was not a mistake. There was no evidence of collusion between the bank and Roberts. The only circumstance which could be in any way relied upon as disproving the mistake is the recital of full payment in the instrument itself. The judgment of the trial court rests alone upon this circumstance. This recital standing alone as the only impeachment of the testimony of the president of the bank, and of Roberts, has little probative force, when considered in connection with the other recitals contained in the release and in the deed of trust, which was made a part of it by reference to it in the release. It does not amount to “any evidence,” even when excluding from consideration the clear and convincing evidence presented in the record to the effect that the note had not been paid, and that the recital to that effect was an error. Especially is this true when the release is considered in its entirety. Upon its face, when considered in connection with the original deed of trust referred to in the release, the recital of full payment is contradicted by the circumstance that the written release does not release all the security which the bank held to secure the payment of said note. It only releases a 50-acre tract of land from said mortgage, and fails to release the other land described therein, consisting of a tract of 100⅛ acres; another of 5 acres; also lots 4 and 5 in block 7, Henrietta, which lots were covered by a one-story brick building of “three 20-foot rooms.” Any one reading the release and the deed of trust would not necessarily conclude therefrom that the note had been paid in full. He might surmise that it had been paid in full, but he could do no more, for it would be apparent that a mistake had been made, either in stating that the note had been paid in full, or in retaining a mortgage on the greater portion of the bank’s security. If it was paid in full, why did the bank not release all of the land, instead of only one small tract of the land? No other reason would suggest itself than that the mortgage was retained on the balance of the land to secure the payment of some of the unpaid portion of said note. Under such circumstances, even a person claiming as an innocent purchaser would fail in his plea, since a mistake in the release is apparent on its face when read in connection with the deed of trust. After reading the release and the deed of trust, the duty would then devolve upon him to prosecute an inquiry as to the nature of the mistake. The prosecution of this inquiry would lead him directly to Roberts, whose debt was involved, and to the president of the bank, who executed the release. From them he would learn that the mistake was in reciting full payment of the note. This would defeat his plea. The recital of full payment was a circumstance in the nature of a declaration against interest, it is true; but its probative force is greatly impaired when considered in the light of the circumstance that the bank failed to release its mortgage on the other tracts of land contained in the deed of trust. We do not think this recital in the release, when so considered, amounts to more than a scintilla of evidence; a surmise or suspicion; its probative force is so weak as that it should be considered as not any evidence in contradiction of the otherwise undisputed evidence to the effect that the note had only been paid in part. When the evidence has no greater force than this, the law does not sanction a judgment based thereon. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 44 L. R. A. 279; Radley v. Knepfly, 104 Tex. 134, 135 S. W. 111; Cobb v. Bryan, 37 Tex. Civ. App. 339, 83 S. W. 888. .

In the case of Joske v. Irvine, supra, the Supreme Court, speaking through Mr. Justice Denman, and addressing itself to the value of evidence having little probative force, said:

“From a careful examination of the cases it appears: (1) That it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established; such testimony in legal contemplation falling short of being ‘any evidence.’ And (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining, as a question of law, whether the testimony establishes more.”

We conclude tliat the uncontradicted evidence shows that the recital of full payment in the release was a mistake, and that the $5,500 note, with interest, had not been paid in full, but that there had been paid upon it only the sum of $900. It is therefore our opinion that the Court of Civil Appeals erred in affirming the judgment of the district court, and in thereby giving priority to Jones’ judgment lien over the mortgage lien held by the bank.

The judgment of said court, and of the district court, will therefore be reversed, and the judgment here reformed in favor of the plaintiff in error, the First State Bank of Amarillo, against W. S. Roberts, so as to give it a foreclosure of its said mortgage lien on the property described in the deed of trust, as a prior and superior lien to the judgment lien of Jones, the defendant in error, whose judgment against W. S. Roberts will be undisturbed, except that the foreclosure of his lien shall remain in effect, subordinate to the mortgage lien of the bank, and the judgment atf the district court in favor of the bank against Roberts wall be otherwise undisturbed.

HAWKINS, J.

(dissenting). The trial court and the Court of Civil Appeals having found and held, upon the evidence, that the note had been fully paid, and the legal effect of such payment being to relieve and release, in fact, all the land described in the deed of trust from the lien thereby created, there is presented, in this court, the naked question as to whether there is, in the record, any evidence of probative force in support of that finding of fact. If that question should be answered affirmatively, the judgments of both lower courts properly disposed of this case.

With the weight of conflicting evidence upon an issue of fact this court is not concerned, that entire matter lying wholly outside of its jurisdiction. Const, art. 5, § 3; R. 8. art. 1521; Warren v. City of Denison, 89 Tex. 557, 36 S. W. 404; Insurance Co. v. Hayward, 88 Tex. 315, 30 S. W. 1049, 31 S. W. 507; Land Co. v. McClelland, 86 Tex. 187, 23 S. W. 576, 1100, 22 L. R. A. 105; Railway v. Levine, 87 Tex. 437, 29 8. W. 466; Railway v. Echols, 87 Tex. 339. 27 S. W. 60, 28 S. W. 517; Railway v. Cannon, 88 Tex. 312, 31 S. W. 498; Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66; Schley v. Blum, 85 Tex. 551, 22 S. W. 667. In Railway v. Levine, supra, this court said:

“It is not within the power of this court to determine the issue made by the evidence; it is a question of fact, and, no matter how overwhelming the rebutting evidence may be, the Constitution and laws of the state have denied jurisdiction to this court.”

Indeed, that much is conceded, in effect, by the majority opinion in this case.

Inherently, and under the settled practice in this court, the only fair and adequate test in the premises which this court can apply is to disregard all contradictory evidence, and to consider, by itself alone, the testimony tending to prove that the note had been paid in full.

In Wininger v. Railway, 105 Tex. 56, 143 S. W. 1150, this court, through Chief Justice Brown, said:

“The honorable Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence, but it could not render the judgment, if, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.”

And in Cartwright v. Canode, 106 Tex. 507, 171 8. W. 696, this court likewise said:

“In passing upon this question, we must reject all evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict, and, if the jury in an honest and impartial effort to arrive at the truth might have reached the conclusion embodied in this verdict, this court cannot set it aside. * * * This court must pass upon that issue as if the evidence favorable to defendants had not been before the jury. The facts are of such nature that one reading the record might not get their full force, as would one seeing and hearing the witnesses.”

This rule applies whether the trial was before a jury or not.

Eliminating, then, the testimony of the president of the bank, which was both payee and owner of the note, and also the testimony of its maker, to the effect that it had not been fully paid and that the recitals in the release to the effect that the note had been fully discharged are simply erroneous, we face the foregoing question concerning the probative force of said release as a whole.

In support of the judgment of the trial court, all reasonable presumptions must be indulged; wherefore this court must presume that the trial court found and held that the note described in and secured by said deed of trust had been fully paid off and satisfied.

In my opinion, the oft-repeated recitals in the release, to the effect that the entire debt, principal and interest, secured by the original deed of trust, had been fully paid off and satisfied, were amply sufficient, in and of themselves, and without regard to any or all other testimony in the case, written or oral, to support such finding of fact and the judgments of the lower courts, and that effect of said recitals is heightened and strengthened by the declarations, in the same instrument, that the lien theretofore existing by virtue of said deed; of trust was being fully released and satisfied; wherefore I think the judgments of the lower courts should be affirmed.

That my conclusion is sound and unanswerable seems obvious; but, in deference to the views expressed by the majority, and their action in reversing and rendering, I will indicate the course of reasoning by which my conclusion has been reached.

The record before us shows that the release was signed by the bank, acting through its president, and acknowledged by him in that capacity. Throughout this case it has been treated as the act and deed of the bank, and I will so treat it. Muller y. Boone, 63 Tex. 91; Ballard v. Carmichael, 83 Tex. 368, 18 S. W. 734.

In determining the probative force and legal effect of said release, as it stood in evidence, it is necessary, first, to ascertain the meaning and import of its language. The declaration therein that “said note with accrued interest has been fully paid” is unequivocal and definite. Following that recital, and after fully describing the note, and referring to the book and page of the county records upon which the deed of trust securing it had been recorded, said release declared that it was executed “in consideration of the premises and of the full and final payment of said note, the receipt of which is hereby acknowledged.” Unquestionably, payment of an entire debt extinguishes, ipso facto, any and all liens securing it. Consequently, and necessarily, the fair and legal effect of said -recitals, upon the face of the instrument, was to release all of the land described in said deed of trust from the lien thereby created. To effectually accomplish that result no declaration of purpose or consequence was necessary. However, said recitals were followed by the operative words “do by these presents, remise, release and quitclaim unto the said W. S. Roberts, his heirs and assigns, the lien heretofore existing on said premises by virtue of said deed of trust, and do hereby declare the same fully released and satisfied.” It will be observed that the release does not, as is usual in merely partial releases of liens, declare that a certain defined portion of the land covered by the lien- is released from its operation and effect, coupling with such declaration a statement that the lien shown by the deed of trust is expressly retained and continued in force to secure the unpaid portion of the debt.

It is true that the words “said premises” there relate to and mean only said “fifty acres,” but that which is declared released is not said 50 acres, or any other land, but “the lien”; the words “heretofore existing on said premises by virtue of said deed of trust” being descriptive merely, and serving no purpose whatever except to identify the lien which was being released. It is but natural and reasonable to presume, or infer, from the instrument as a whole, that if its purpose had been to restrict its operation apter words to express that purpose and legal effect would have been employed. The words “remise, release and quitclaim” are not inapplicable to a “lien,” while the words “do declare the same fully released and satisfied” are plainly inapplicable, or, at least, inappropriate, in referring to the “fifty acres,” or to any land. It would be absurd to declare any land fully “satisfied,” but it is entirely natural, customary, and proper to declare a lien “fully released and satisfied,” and I think that was done by said release.

Any other view of the matter appears to me to be purely fanciful and entirely too transcendental to control the practical affairs of mortals who are accustomed to rely and act upon statements, whether oral or written, upon the assumption that words embodied therein are used in their ordinary sense. In that sense the operative words of this release certainly mean that the entire lien on all the land described in the deed of trust is being fully and finally discharged. That interpretation of said operative clause is supported and even rendered actually necessary by the 'preceding reiterated recital of full payment of the note, with interest. Moreover, the fundamental, elementary, and established rule for the construction of deeds and like instruments affecting title to land is that they are to be construed most strongly against the grantor.

The majority opinion, in several passages, treats the instrument in question as not releasing all the security; as releasing only 50 acres; as failing to release the other land; as not necessarily implying that the note had been paid in full; as suggesting that a mistake had been made, “either in stating that the note had been paid in full, or in retaining a mortgage on the greater portion of the bank’s security”; as showing that “the bank did not release all of the land”; and.holds, in substance, that the only reasonable explanation of what it thus assumes to be contradictory statements in the release is “that the mortgage was retained on the balance of the land to secure the payment of some of the unpaid portion of said note.” Respectfully, yet emphatically, I must say that I regard all that as but the sheerest assumptions. In said release as a whole I am utterly unable to find any contradictory expressions whatever, and, even if the operative clause could be construed as expressly releasing only the 50 acres, it would not imply that the lien was to be retained on the residue of the land, and that clause, therefore, would not, in any wise, conflict with the recitals that the note had been paid in full. Certainly between those recitals and an operative clause expressly declaring that all of the land was being released from that lien there would be no sort or shade of conflict whatever; and for the same reason there can be no inconsistency between those recitals and the operative clause which expressly released only a described portion of the land from that lien, and did not, expressly, or by necessary implication, retain such lien upon the residue of the land or any part thereof.

But even if it he conceded, for the sake of the argument, that the latter portion of said release impliedly purports to retain and preserve said deed of trust lien upon all the land except the 50-acre tract, yea, even if it expressly so declared, that would introduce into the release an element of inconsistency which X am unable to find in it; but such inconsistency, while it might detract somewhat from the probative force of the release as a whole, certainly would not wholly destroy or neutralize the natural and legal force and effect of said reiterated declarations therein that the entire deed of trust debt had been fully paid off and satisfied; and, even in that condition, the release, as a whole, would support the finding that said recitals of full payment silently spoke the truth. The trial court, like a jury, has a right to believe one witness, even though he contradicts himself, rather than two or more witnesses who testify to the contrary without crossing themselves, or each other, and that principle applies to such documentary evidence as said release and the contradicting oral testimony of the two living witnesses. Under such circumstances, the most that can be said, justly,, is that the evidence would support a judgment either way, and that, if not satisfied therewith, the Court of Civil Appeals might properly reverse and remand, but even that much this court could not properly do.

To illustrate the meaning and legal effect of said release, let us suppose that, in an action by the bank against the maker of the note for debt and foreclosure of its deed of trust lien, the bank should introduce in evidence only said note and deed of trust, and that the maker of the note should introduce in evidence only said release, and that, on such evidence alone, a jury or the trial court should find for the defendant, and that judgment should be entered accordingly; under such circumstances, could it justly be said that such judgment was without evidence to support it? Clearly not, it seems to me, and I apprehend that, in such case, this court would not disturb such judgment; yet, logically, that very-result would follow from an application therein of the reasoning set forth in the controlling opinion in this case.

Clearly, I think, the phraseology of said release is such as to protect, to the fullest extent, against said deed of trust lien, an innocent purchaser for value, in reliance thereon, of all or any portion of the land embraced by said deed of trust. In such a case, under our registration laws, both the payee and the maker of the note would be bound by the recitals and terms of the instrument of record, and neither would be heard to contradict .them; and, especially if the release were the only evidence relating to payment of the note, it would be not only the right, but the duty, of the trial court, to charge the jury, peremptorily, that to the extent necessary for the protection of such innocent purchaser, it must be considered that the note had been fully paid and that the entire lien securing its payment had been fully extinguished and finally released of record. In the case at bar the party relying upon said release, being merely a judgment creditor, is not so favored by our registration laws, and is relegated, for the satisfaction of his judgment lien, to what the- judgment debtor actually owns in the land covered by the deed of trust; but, in determining the character and extent of that interest, as a matter of fact in contradistinction to a matter apparent upon the mortgage record, the rules for the construction and interpretation of the release are identical in the two cases. It is a matter of common knowledge that in thousands of instances, and all over Texas, titles to land rest upon just such releases, which, customarily, are considered good and sufficient to release all the land from all the lien, and I can see no good reason whatever for disturbing them.

I can find no avenue of escape from the conclusion that the fair intent and purpose of the release, as disclosed by its terms and provisions, and apparent upon its face, if it states the facts, though but mutely, was to release the entire lien created by said deed of trust, and not merely to release from the operation of that lien the 50-acre tract, the sale of which constituted the immediate occasion for obtaining the release; and such, necessarily, is its legal effect, in the absence of contradictory evidence, from which standpoint, alone, as we have seen, this court must view the item of evidence consisting of the release itself.

Such being the purpose and legal effect of the release upon its face, was it permissible for the trial court to disbelieve and disregard the contradictory oral testimony? I think it was.

Said release was a formal document, solemnly executed by the chief executive officer of tlie payee bank for record. Presumably it was executed upon due deliberation and with proper care. Aside from that, it ivas entitled to due consideration as a mere receipt in full. Between the inaudible yet cogent evidence presented by the release and said oral testimony there was what the trial court might reasonably consider a sharp and irreconcilable conflict upon the issue of full payment of said mortgage debt, which issue resolved itself into the question whether the statement by the bank, set out in said release, or the dral testimony of its officer, reflected the actual facts involved. Manifestly they were inconsistent. To settle and determine just such conflicts in evidence, in the light of all the facts and circumstances of the case, including the demeanor and appearance of the witnesses, is the peculiar province and function of the trial court. That court evidently rejected said oral testimony and found and held that the release spoke the truth. If it did, the note had been fully paid, the lien which had secured it no longer existed, and the judgment lien had become a first lien upon all the unsold land.

For the reasons stated, I think that the judgments in this cause, accordingly, should be affirmed.
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