text:
    CARDWELL et al. v. AUSTIN.
    (No. 6732.)
    (Court of Civil Appeals of Texas. Galveston.
    June 2, 1914.)
    1. Waters and Water Courses (§ 75)— Pollution — Injunction — Jurisdiction —Statutory Provisions.
    Acts 33d Leg. c. 47, punishing the pollution of any water course by the discharge of any sewage therein, and providing that on conviction the county court shall issue an injunction enjoining the person or corporation responsible for the pollution from a further continuance thereof, does not deprive the district court of jurisdiction to prevent and suppress nuisances by injunction, and at most the remedy by injunction conferred on county courts is only cumulative of the remedy resting in the district courts.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 66; Dee. Dig. § 75.]
    2. Municipal Corporations (§ 736) — Powers — Núisance.
    A city incorporated under the general laws, with authority under its charter to provide a sewer system, must exercise its authority in a proper manner, and it may not create or maintain a nuisance, and in the construction of a septic tank for the purifying of sewage it must exercise care to build one of such character and dimensions as to prevent the escape therefrom of foul odors in such volume as to create a nuisance to any of its citizens.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.]
    3. Municipal Corporations (§ 742) — Powers — Nuisance.
    ■ In a suit against a city and the owner of a franchise to construct and maintain a septic tank in connection with the sewer system in the city, evidence held to support a finding that the construction and operation of a proposed septic tank would create a nuisance, but not to support a finding that the construction and operation of a tank of proper dimensions and character would create a nuisance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1560, 1563; Dec. Dig. § 742.]
    4. Municipal Corporations (§ 736) — Powers — Nuisance.
    Where a method can be adopted by which sewage of a city may be purified and discharged practically free from odor, or where the odor will not interfere with the comfortable use and enjoyment by an individual of his home, and where the effluent will not so contaminate a stream as to render it unfit for drinking water for stock, the mere fact that the proximity of a septic tank to the residence of an individual will produce a degree of mental annoyance or tend to lessen the value of his property does not justify an injunction to restrain the establishment and operation of the tank, for the individual may be compensated in money for the damages sustained.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by Wm. E. Austin against H. W. Cardwell and another. From a judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    Gaines & Corbett and W. C. Carpenter, all of Bay City, for appellants. Linn & Austin and J. W. Conger, all of Bay City, for appel-lee.

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

   McMEANS, J.

Appellee, Wm. E. Austin, brought this suit against the city of Bay City and H. W. Cardwell, seeking to enjoin the defendants from constructing and maintaining upon a tract of 1.6 acres of land owned by defendant city a septic concentration tank to be used in connection with a sewer system in said city, owned by defendant Cardwell and constructed by him under a franchise granted by the defendant city. It was alleged in substance that the effluent from the concentration tank would be into Cottonwood creek, a public water course, at a point some 300 to 550 feet from plaintiff’s residence, and that the same would pollute the creek, and noxious and unwholesome odors and gases would arise from the tank, and the polluted stream, thereby creating a nuisance, and plaintiff would be deprived thereby of the comfortable enjoyment of his home. He alleged several other grounds for injunction, but in the view we take of the case they need not be specifically stated. The defendants answered by general demurrer and several special exceptions and by general denial and by certain special pleas which we do not deem necessary to set out, contenting ourselves with the statement that the points hereinafter discussed were sufficiently raised by the pleadings.

On presentation of the petition to the district judge in chambers, a temporary restraining order was granted, and a time and place fixed for a further hearing upon the petition in chambers; but it does not appear that such further hearing was had. The case being afterwards reached in regular order was tried by the court without the intervention of a jury and resulted in a judgment for plaintiff reading, in part, as follows:

“And thereupon the cause came on for hearing on the merits, and after hearing the evidence of the parties and the argument of the counsel thereon, and being fully advised, it is the opinion of the court that the septic tank contracted for or proposed to be constructed, and the location thereof upon the site proposed, would be and create a nuisance, and would pollute the stream called ‘Cottonwood creek’; and being further of the opinion that the construction and operation of said tank on the site proposed would materially damage and injure plaintiff’s adjacent property and impair its healthfulness and comfort as a home, and that the plaintiff’s property cannot and ought not to be thus damaged and injured without adequate compensation being first made. It is therefore considered by the court, and it is so ordered, adjudged, and decreed, that the defendants, H. W. Cardwell and the city of Bay City, and each of them, their servants, agents, employes, and officers, and all persons acting-under them, be and they are hereby perpetually enjoined and restrained from constructing, maintaining, and operating any septic tank constituting a concentration tank for sewage material upon the tract of 1.6 acres of land lying along the south side of the townsite of Bay City, Tex., and being out of and a part of the E. Hall League, in said county of Matagorda, Tex., and being the same tract described in defendant H. W. Cardwell’s original answer and which lies adjoining plaintiff’s property, as described in the original petition herein, and that they, and each of them, be and they are hereby perpetually enjoined and restrained from constructing, maintaining, and operating such tank and its outfall or outlet pipe in said Cottonwood creek at or along said tract, and from the use of said stream as a conduit and channel for the effluent of such tank, and the pollution of such stream thereby at any point at or near plaintiff’s property.”

From this judgment the defendants have appealed.

Appellants by their first assignment of error complain that:

“The court erred in overruling the exception of these defendants to the jurisdiction of this court to hear and determine this cause.”

Under this assignment appellants, by their several propositions, contend:

(1) That “chapter 47, Acts 33d Legislature of Texas, providing for the punishment of those polluting any water course by a fine, and providing that upon conviction of such offense it shall be the duty of the court in which conviction is had to then issue an injunction restraining the continuance of such pollution, plainly indicates the purpose of the Legislature to prohibit the issuance of injunctions in such cases until conviction.” (2) That said act “conclusively indicates that no injunction was to be issued against cities and towns, and independent contractors having disposal of the sewage of cities and towns, until a conviction had upon a criminal charge, with the right of trial by jury.” (3) That the court had no power to issue an injunction until after the defendants had been convicted on a criminal charge under the statute, and (4) the county court alone had jurisdiction.'

Chapter 47, Acts of the 33d Legislature, in so far as it affects the questions here presented, is as follows:

“Section 1. That it shall be unlawful for any person, firm or corporation, private or municipal, to pollute any water course or other public body of water, from which water is taken for the use of farm live stock and for drinking and domestic purposes, in the state of Texas, by the discharge, directly or indirectly, of any sewage or unclean water or unclean or polluting -matter or thing therein, or in such proximity thereto as that it will probably reach and pollute the waters of such water course or other public body of water from which water is taken for the use of farm live stock and for drinking and domestic purposes. A violation of this provision shall be punished by a fine of not less than one hundred dollars and not more than one thousand dollars. * * *
“Sec. 2. Upon conviction of any person under section 1 of this act, it shall be the duty of the court, or judge of the court, in which such conviction is had, to issue a writ of injunction, enjoining and restraining the person or persons or corporation responsible for such pollution from a further continuance of such pollution. * * *”

We think it clear that the Legislature in adopting the act did not attempt or intend to interfere with the exercise by the district court of its general equity jurisdiction to prevent and suppress nuisances by means of the writ of injunction. At most the remedy by injunction conferred by the act upon county courts, is only cumulative of the remedy conferred by law upon and resting in the district courts. Certainly it cannot be held that the act deprived the district courts of jurisdiction. The assignment and propositions are without merit and are overruled.

The seventh and eighth assignments complain that the court- erred in finding and holding that the septic concentration tank, if constructed upon the proposed location, would create a nuisance and would pollute Cottonwood creek; the contention being that there was no evidence to warrant such findings.

On October 14, 1913, the city of Bay City by an ordinance granted a franchise to H. D. Cardwell, his successors and assigns, to construct, maintain, and operate a sanitary sewer system in the city of Bay City for a term of 50 years, with the privilege of using the streets, alleys, and' public grounds for the purpose of laying its pipes, conduits, etc.; the city reserving the right and option to purchase the sewer system from the grante' at any time after its completion, at a price agreed upon and named in the ordinance. It was provided that the terminal of the system should be a septic tank located at or near the south end of I avenue, at a point near Cottonwood creek or some other available place, and that the city should furnish the site thereof to the grantee. It was further provided that the septic tank should be 18 feet wide, 60 feet long, and 8 feet deep. The city designated for the location of the tank-a tract of 1.6 acres of land owned by it. This tract was upon or near the west bank of Cottonwood creek, and the proposed tank was to be located on a spot about 520 feet in a southwesterly direction from plaintiff’s house, in which he and his family resided. The discharge pipe from the tank was to be laid to a point in Cottonwood creek about 576 feet almost south from plaintiff’s residence.

It was shown by the testimony that the sewer system was intended to accommodate about 1,500 users, and that the amount of sewage flowing into the tank per day would be from 30 to 50 gallons per capita. The defendant Cardwell testified that a tank of the dimensions specified in the ordinance was too small for the purposes to which it would be applied, and that he intended to enlarge it by making it two feet wider and two feet deeper.

There was testimony from which the trial judge could reasonably have concluded that a septic tank of the dimensions of the one proposed would be sufficient to purify the sewage flowing into it; and, had the court so found, his finding would have been approved. But there was also testimony which warranted the court in finding that the proposed tank was too small and that it would not purify the sewage flowing into it, and in consequence foul, disagreeable, and unwhol-some odors would be given off therefrom in such volume and of such character as to create a nuisance, and to interfere with the comfortable use and enjoyment by plaintiff of his home and to render his house practically uninhabitable.

The city of Bay City is incorporated under general laws and under its charter has authority to provide a sewer system for the city; but this authority must be exercised in a proper manner. It has no authority to create or maintain a. nuisance, and in the construction of a septic tank for the purifying of sewage it must exercise care to build one of such dimensions and character as to prevent gases and foul odors to escape therefrom in such volume as to create a nuisance to any of its citizens. Donovan v. Royal, 26 Tex. Civ. App. 248, 63 S. W. 1054.

We think that under the facts proven the court properly granted the injunction to prevent the construction and operation of the proposed septic tank. But the judgment went further than this, and enjoined the construction and operation of any tank on the 1.6 acres furnished by the city. The testimony is practically undisputed that septic tanks are efficient in purifying sewage when constructed in a proper manner and of proper dimensions. Appellants’ witness, Dr. F. J. Slataper, a bacteriologist, testified to this fact, and further that water flowing from a discharge pipe from such a tank was fit for domestic use. In this he was contradicted. He further testified that no disagreeable odors or gases would be given off from such a' tank if properly constructed; that the size required to purify a given amount of sewage is a matter of engineering, with which he was not familiar. Plaintiff’s witness E. L. Dormant, a sanitary engineer of large experience, after testifying that the tank proposed to be constructed would be too small to purify the sewage that would flow into it, and that foul gases and odors would, in consequence, be given off of such volume as to be a nuisance to persons living as near as plaintiff, testified:

“It is possible to construct a filter on the inside of the tank so as to absolutely eliminate odor, if the tank is large enough. I will say that I would rather put the filter tank on the inside than on the outside, provided the tank is large enough. That is the only way to eliminate the large quantity of flies and odor.” '

He further testified:

“Taking it all the year around, I think it is very safe to answer that you use 50 gallons per capita (per day) sewage for 2,500 people. * * * If you use a contact bed, that would require 2.10 of an acre, or approximately 8,000 square feet. If you use a filter bed of charcoal and gravel instead of a contact bed, it takes the same area. If you use gravel and sand, it takes a large area. * * * It would not be possible to construct a septic tank without a contact bed or sprinkling filter without creating a nuisance.”

It appears from the testimony generally that there is an odor inseparable from septic tanks; but we think the testimony conclusively proves that the odors thrown off from a septic tank of proper dimensions and of correct construction are of such small volume as not to be hurtful or annoying to one living as far away as the plaintiff from the proposed tank. We think therefore that the court, while correctly enjoining the construction and operation of the tank in question, was not warranted in perpetually enjoining the defendants from constructing and operating a septic tank of proper dimensions and construction, upon the 1.6 acres of land. The proper disposal of sewage is a question of vital importance to cities and towns, and where a method can be adopted by which sewage may be purified and discharged practically free from odor, or, applying the facts concretely, where the odor will not interfere with the comfortable use and enjoyment by plaintiff of his home, and where the effluent will not so contaminate the creek as to render it unfit for drinking water for stock, the mere fact that the proximity of the tank to plaintiff’s residence would produce a degree of mental annoyance, or would tend to lessen the value of his property, ought not to prevent the establishment.and operation of the tank on the 1.6-acre tract. If the market value is lessened thereby, and there is no annoyance other than mental disturbance due to the fact that the tank is in the vicinity, then plaintiff could be compensated in money for his damages thus sustained. We think that the judgment should be reformed by eliminating that part of the decree prohibiting defendants from constructing a septic tank of proper dimensions and construction upon the 1.6 acres, and that as thus reformed the judgment should be affirmed, and it has been so ordered. We have examined all of the appellants’ assignments of error and are of the opinion that none of them points out errors requiring a reversal.

Reformed and affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. et al. v. HARRIS.
    (No. 6752.)
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1914.)
    Execution (§ 172) — Application for Temporary Injunction — Affidavits.
    In an action to enjoin the enforcement by execution of a judgment for injuries rendering the judgment plaintiff impotent at the time of trial, the refusal of a temporary injunction was not error, where the supporting affidavits showed merely that he attempted, after the trial, to induce his sister-in-law to submit to him, and to run away with him, and told her that he was not and never had been impotent, and strong controverting affidavits were made by plaintiff and his wife; and affidavits of physicians showed that his condition and actions were not inconsistent with impotency.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. § 172.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Galveston, Harrisburg & San Antonio Railway Company and others to enjoin A. H. Harris from enforcing a judgment by execution. From judgment for the defendant, plaintiffs appeal.
    Affirmed.
    See, also, 159 S. W. 907.

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

   McMEANS, J.

This is an appeal from an order of the district court of Harris county refusing to grant to appellants a temporary injunction restraining the appellee A. P. Harris and others from enforcing, by execution, a judgment theretofore rendered in Harris’ favor against the appellants.

Appellants alleged that on March 11, 1912, appellee Harris instituted suit in the district court of Harris county against appellants to recover damages for personal injuries sustained by him while in appéllants’ employment, said suit being styled A. P. Harris v. Galveston, Harrisburg & San Antonio Railway Company et al., and numbered on the docket of said court 54797; that a trial on December 4, 1912, resulted in a verdict and judgment against defendants, appellants here, for $27,500; that on appeal to the Court of Civil Appeals the judgment of the district court was affirmed fon $22,500 after appellee had entered a remittitur of $5,000; and that a writ of error from the judgment to the Supreme Court was applied for and refused.

The fourth and fifth paragraphs of the petition are as follows:

“Plaintiffs further aver and charge that said judgment 'in favor of said A. P. Harris in said cause No. 54797 should now be set aside, canceled, annulled, and held for naught, for that the same was obtained and procured by reason of the willfully false and fraudulent testimony given by said A. P. Harris himself upon the trial of said cause in the district court, upon the issues joined therein, which substantially affected the right and extent of his recovery in said cause in this, the said A. P. Harris in said cause No. 54797 alleged in his petition, upon which the trial was had, that, among other injuries sustained by him at the time of the accident complained of, he had been rendered impotent, which allegation was denied by the defendants in said cause and issue was joined thereon; that upon the trial of said cause the said A. P. Harris, sworn in his own behalf, and to support the issue of alleged impotency, testified substantially as follows: Since the accident to me I have not had any manhood. All the time till I got hurt, I was the same as any other man; but now I can’t have intercourse with my wire. I just live at home; that is all. That is the reason I am so unhappy, I guess, and miserable. I am not able to produce an .erection. I didn’t notice it until I got on my crutches; then I wanted to have an intercourse and couldn’t.' I tried, and even ate raw eggs and everything else, I done everything a man could do to try to do it. I am 35 years old.
“Plaintiffs further aver and charge that the testimony of said Harris with regard to his alleged impotency was willfully and knowingly false, and, although the plaintiffs at the time of said trial believed said testimony to be false and made diligent efforts to discover and make known to the jury the falsity thereof, they were unable to do so, on account of the personal and private nature of said alleged injury; but plaintiffs now aver and charge that since the trial of said cause and the affirmance of said judgment they have received voluntary information from the family of the wife of said A. P. Harris showing that said Harris was not in fact impotent at the time of the institution and trial of said suit and at the time testified therein, and that he has since said trial and the giving of said testimony stated that his testimony with regard to his alleged impotency given upon the trial of said cause was in fact false, and that he was a sound man; that said information first reached the plaintiffs on, to wit, February 26, 1914,-in a letter addressed' to Messrs. Parker & Gar-wood, members of the firm of general attorneys representing the plaintiffs herein, which said letter is as follows:”

The letter referred to is one from W. E. Shill, the father of appellee’s wife, dated February 21, 1914, in which it is stated in substance that, while appellee and his wife and her mother and sister were temporarily stopping at a hotel in New Orleans on January 12, 1914, the appellee attempted a criminal assault upon his daughter Ida Mae. Appellant further alleged that after the receipt of this letter and another letter from the same party on or about March 6, 1914, a representative of the claim department of appellants proceeded to McLaurin, Miss., where • the Shills then lived, and obtained affidavits from Ida Mae Shill, Mrs. W. E. Shill, and W. E. Shill, under date of March 14, 1914, substantial copies of which were attached as exhibits to the petition; and that W. E. Shill had delivered to appellants the original of a letter written to Shill and wife by the wife of appellee relating further to the transaction in the hotel at New Orleans, a copy of which was also attached to the petition as an exhibit. The sixth paragraph of the petition is as follows:

“Plaintiffs aver and charge that it appears from the affidavits afoi’esaid that the said A. P. Harris is not impotent, at this time, and. was not at the time of said trial, and that he admitted to the said Ida Mae Shill that he swore falsely when he testified on the trial of the said cause that he was impotent. Plaintiffs have reason also to believe, and do believe, that while the said Harris also testified upon the trial of said cause that he had sustained other severe and grievous injuries, that he had in truth and in fact sustained only slight and inconsequential injuries, and that he willfully and knowingly gave false testimony upon the trial of said cause with reference thereto. Plaintiffs further charge that, by reason of the false and fraudulent testimony of the said A. P. Harris upon the trial of said cause as to his true condition, the court and jury were misled and deceived and, being so misled, returned a verdict for an amount wholly unreasonable and unconscionable ; that because thereof the ends of justice have not been attained in said cause, and said judgment should therefore be canceled, annulled, and held for naught. Plaintiffs further aver that neither they nor their attorneys had any knowledge or suspicion whatsoever of the transaction in the hotel at New Orleans referred to in the affidavits at- • tached, or the real condition of the defendant with respect to his alleged claim of impotency, until the receipt of the letter copied in paragraph fifth hereof on, to wit, February 26, 1914, and that since the receipt thereof they have proceeded with diligence to obtain the true facts, so as to place them before this court, and expose the fraud practiced upon it.”

Appellants further alleged that the ap-pellee and his attorneys, unless restrained, will in due time procure the issuance of an .execution to collect the amount of the judgment, and that the same when so issued will be placed in the hands of the sheriff or other proper officer to be levied upon the property of appellants, and that the sheriff would levy same and collect said judgment unless restrained from so doing “to the plaintiffs’ great and irreparable injury and damage; the defendant,/A. P. Harris, being wholly insolvent, and the plaintiff having no adequate remedy at law.” The petition concluded with the prayer that they have judgment canceling and annulling the judgment in cause No. 54797, and for costs, and that pending the hearing that appellee and his attorneys be enjoined from in any manner selling or transferring said judgment or any part thereof, and that the district clerk be enjoined from issuing any execution in said case, and that the appellee, his agents and attorneys, be restrained and enjoined from in any manner proceeding to collect said judgment against the appellants or the sureties upon the super-sedeas bond given by them on appeal, and that the injunction be perpetuated upon final hearing.

The affidavit of Ida Mae Shill, referred to in the petition is here given in full.

“I, Ida Mae Shill, being duly sworn on my oath, do say: That I am 16 years old, reaching that age last September. That I know A. P. Harris of Houston, Tex., who sued the Texas & New Orleans Railroad Company for damages alleged to have been sustained by him while switching, on the - day of -,' 191 — . That the said A. P. Harris is my brother-in-law, having married my sister. That on or about January 10, 1914, in the city of New Orleans, state of Louisiana, the said A-P. Harris did in the Monteleon Hotel, attempt a criminal assault upon me. That myself, my mother, the said Harris, and the said Harris’ wife were on our journey from Melville, La., to Hattiesburg, Miss. That we stopped at said Monteleon Hotel, stopping there from Sunday night until Tuesday morning. That the room occupied by said Harris was adjoining the room occupied by my mother and myself. That there was a door between said rooms allowing pass-way from one room to the other. That the said Harris claiming that he was not well, and for the purpose of carrying out his designs, under the pretense of wanting some baggage checked, sent my mother and his wife away, and had them leave me to wait on him should he need anything. That I stayed in the room occupied by myself and mother; and, to further carry out his designs, the said Harris pretended that the maid was going to clean his ro.om, and, while I stepped out of our room, he came and got in our bed. When I came back, he claimed he wanted me to make him a toddy, which I did. He asked me to come and get the glass after he had drunk his toddy, and I told him to just set it down. That he told me, ‘No, to come and get it.’ Not suspecting anything, I went to get the glass, and when I did so he' reached up and grabbed me around the waist and pulled me over him, pulling me across him. I tore loose from him and left the room. After that he called me to the door and begged me to leave with him — to run away with him, and we would go where we could not be found. I told him what I thought of him and his conduct. His wife finally came and found out what had happened and pleaded with me not to tell Papa, because Papa would kill him. I did not tell my papa until after we got to McLaurin, and after Harris and his wife had left for Texas. I did not tell it before on account of-the pleading ánd begging of my sister, who was Harris’ wife, and I did not want to get Papa into trouble. While we were on the train after leaving New Orleans, he (Harris) came over and sat down on a seat where I was and again began to beg me to run away with him. He stated that he believed I would not do so because I did not think he was a sound man; that he and his wife had swore a lie in regard to his having lost his manhood; and that he was all right, and I could ask his wife. I told him to go away from me, that he was insulting, and to go on back and sit by his wife. He said he did not love his wife, and that I was the only woman he ever loved, and that when he got his money from the railroad he would build me a home and he would do nothing but sit up and look at me, and after he was dead and gone I could marry who I wanted to.”

Mrs. Shill in her affidavit corroborates Ida Mae Shill in regard to appellee sending his wife and herself from the hotel to check some baggage and leaving Ida Mae with him while they were away. She says Ida Mae told her of appellee’s conduct after appellee and his wife left for Texas, and that the reason given by her for not telling sooner was on account of her sister, the appellee’s wife, and because she knew her father would kill appellee and get into trouble. She further stated that in January, 1914, Mrs. A. P. Harris in complaining of the way appellee was doing, and while talking about the railroad suit, said, “Mama, I have sworn things for that man that were not right.”

The only portion of W. E. Shill’s affidavit at all material is that in which he stated that his daughter Ida Mae told him of ap-pellee’s conduct toward her in the hotel in New Orleans.

The letter written by appellee’s wife, to her father and mother consists mainly in an appeal to her father to not press the charges against her husband and to cease his efforts to prevent her husband from collecting the judgment.

Before the court acted upon the petition for temporary injunction, the appellee filed his answer, in which he denied under oath all the material allegations of the petition, and specifically denied that he had sworn falsely as to his impotency upon the trial, and specifically denied the statements of Ida Ma.e .Shill that he had attempted a criminal assault upon her and that he had asked her to run away with him and that he had told her that he and his wife had sworn falsely to his having lost his manhood and that he was all right. He alleged that his wife did not testify in the trial of his suit and therefore could not have sworn a lie therein regarding his “lost manhood.” He attached to his answers the affidavit of his wife, Mrs. A. P. Harris, Dr. Gavin Hamilton, and Dr. F. H. Neuhaus. Mrs. Harris stated under oath that she was present at the trial of her husband’s case and heard him testify in regard to his physical condition and that his testimony copied in paragraph 4 of plaintiffs’ petition, which she had read, was true; that his statement therein that he could not have intercourse with her was true; and that his condition of inability to have intercourse with her “has continued to this time, and he is now and has been impotent.” She corroborated the statement of Ida Mae Shill, about the latter remaining with appellee while affiant and her mother went out to check baggage, and says that when she returned to the hotel she found there her husband and sister Ida Mae and a Mr. Powers, and that her sister said nothing to her or her mother about any misconduct of appel-lee during their absence. She tells of the journey of all of them from New Orleans to Hattiesburg, Miss., where they spent four days together, in a boarding house, from thence to McLaurin, the home of her father and mother, where they stayed with her parents for about a week, and that not until her husband left to return to Texas did her sister, Ida Mae, tell her that appellee had made improper advances toward her in New Orleans. ■ She further stated that she had discussed with her mother more than once the condition of her husband regarding impotency; that she told her mother he was impotent, and that she did not believe he would ever regain his health or his powers in that respect; that since his injury he has been practically a nervous wreck; that he is still paralyzed in his right leg; and that his testimony on the trial regarding his injuries, their nature and extent, according to her knowledge and observation was true in all respects and that such condition has continued to the time of making affidavit.

Dr. Gavin Hamilton stated in his affidavit that he had again examined appellee and had read over the testimony that he (affiant) had given at the trial.

“From a physical examination made to-day I find that he has made absolutely no improvement in the condition of his right leg since the time of giving the testimony; the condition of this leg corresponds exactly to the conditions then, with the exception that the measurement of the circumference of the two legs shows a slightly greater discrepancy than existed at the time of the trial. This would indicate that, instead of an improvement in the meantime, there has been a further degree of atrophy. Regarding the condition of impotency, this is a subjective symptom. Impotency would be consistent with his general condition. In a patient so afflicted, a desire for intercourse with inability to perform is not uncommon.”

' The affidavit of Dr. Neuhaus is as follows:

“I hereby state that I was present at the examination — and participated in same — that Dr. Gavin Hamilton made of Mr. A. P. Harris of Houston, Texas, to-day, and that I have read the report made by him, in which I concur ; also from the examination I see no reason to change the opinion I gave in my testimony at the trial, to which testimony I have just referred.”

The testimony of both these physicians will be found in the reported decision of the ease, 159 S. W. 907.

On April 3, 1914, the application for a temporary injunction was heard by the court upon the petition and answer and supporting and controverting affidavits, and thereupon appellants’ prayer for injunction was, by the judgment of the court, denied; from which judgment the appellants have prosecuted this appeal.

This appeal is before us on the record only; neither party having filed briefs.

After carefully considering the sworn pleadings of the parties, and the supporting and controverting affidavits, we have concluded that the trial judge did not err in refusing to grant the temporary injunction applied for. The affidavit of Ida Mae Shill in regard to appellee’s alleged misconduct in the hotel at New Orleans was at most but a circumstance casting suspicion upon appel-lee’s testimony that up to the trial he had been impotent as the result of his injury, but standing alone it was not sufficient to raise the issue of the falsity of his testimony, for he might have been impotent at the time of the trial and have regained his normal sexual powers at the time of his alleged misconduct. National Concrete Const. Co. v. Duvall, 153 Ky. 394, 155 S. W. 761. Her statement to the effect that appellee told her that he was not and had never been impotent, and that he had sworn falsely in respect thereto at the trial, is entitled to greater weight, but is not of such controlling force as to require the granting of the writ, in view of the sworn denial of appellee that he had made such statements to her, and of the. affidavits of his wife that he was impotent at the time of trial and has continued so, and the affidavits of his physicians that impotency would be consistent with his general condition.

The trial judge had the sworn denial and the controverting affidavits before him when he passed upon the application, and, if he gave credence to these, as he evidently did, his action in refusing the injunction was correct. Falfurrias Immigration Co. v. Spielhagen, 129 S. W. 164; Houston Cemetery Co. v. Drew, 13 Tex. Civ. App. 536, 36 S. W. 802. And this being so, it becomes our duty to affirm the judgment, and it has been so ordered.


author: SPEER, J.

text:
    PALO PINTO COUNTY v. GAINES.
    (No. 7963.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 2, 1914.
    Rehearing Denied May 30, 1914.)
    Highways (§ • 115) — Damages from Construction — Overflowing Lands.
    Under Rev. St. 1911, art. 6935, providing that, whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard to the natural flow, and with as little injury as possible to the adjacent landowner, provided that in such cases the commissioners’ court shall cause the damages to be assessed and paid out of the general revenue of the county, a county was liable for damages to adjacent landowners for the overflow of their lands incident to the construction of a road, though there was no technical taking of the property.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 358-370, 372, 373; Dec. Dig. § 115.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action by A. J. Gaines against Palo Pinto County. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. T. Ranspot and W. F. Smith, both of Palo Pinto, and Theodore Mack, of Ft. Worth, for appellant. W. H. Penix, of Mineral Wells, for appellee.

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

   SPEER, J.

This is an action by A. J. Gaines against Palo Pinto County to recover damages for the overflow of certain farm lands alleged to have been caused by the construction by the defendant county of a public road .in such way as to'back the surface water upon the plaintiff’s land and to destroy his growing cropsl The defendant answered, there was a trial before a jury on special issues, followed by a judgment for the plaintiff, and the defendant appeals. ■

The principal contention .of appellant is that, since the county did not take or appropriate any part of appellee’s property, and since, furthermore, the county would not be liable for the negligent acts oí its officers or agents in the construction of the public road adjacent to appellee’s property, the judgment in this case is therefore not supported by the facts pleaded or proved. There is an objection to our considering the' assignments complaining of the error of the court in overruling the exceptions, because such exceptions were not called to the attention of the trial court, and his action thereon shown in the judgment; but, since the same question practically arises upon other assignments, we may as well consider all.

Appellee’s cause of complaint in the present ease, if he has any, is that in constructing a causeway for an established road the county has built up an embankment without placing the necessary culverts, in such a way as to obstruct the natural flow of the water from his land and to cause the same to back up on it and to destroy his crops. Under the undisputed facts there appears to be no question but that the road was constructed as it was under the authority and direction of the county, and there is, therefore, no question of individual negligence of the overseer or other agents of the county in the matter of its construction. Article 6935, Revised Statutes 1911,'specifically declares:

“Whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard to the natural water flow, and with as little injury as possible to the adjacent landowner: Provided, that in such cases the commissioners’ court shall cause the damages to such premises to be assessed and paid out of the general revenues of the county, and in case of disagreement between the commissioners’ court and such owner, the same may be settled by suit as in other cases.”

It thus appears that the county is expressly made liable for damages to adjacent landowners for the overflow of lands incident to the construction of its roadways. See Voss v. Harris County, 33 Tex. Civ. App. 249, 76 S. W. 609. Whether such be technically a taking of the plaintiff’s property or not is immaterial, if the statute expressly makes the county liable in damages.

It is complained that the court erred in rendering judgment for the plaintiff upon the answers of the jury, for the reason that the same were contradictory of each other. It is true the jury did answer, in response to special issues submitted by appellant, that appellee erected a levee on the north side of his land and near to the public road of about the same height as the road grade, and that its effect was to some extent to obstruct the flow of water in the county’s ditch; yet in response- to another question they expressly answered that the water would have been impounded upon appellee’s land, had it not been for the construction by him of said embankment or levee. We have examined all of the issues submitted, together with .the answers returned, and are of the opinion that on the whole they support the judgment affirming appellant’s liability, under the statute cited and within the rule announced in Voss v. County, supra.

The judgment of the district court is therefore affirmed.

Affirmed.


author: DUNKLIN, J.

text:
    YOUNG v. BARCROFT.
    (No. 7967.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 9, 1914
    On Motion for Rehearing, June 20, 1914.)
    1. Appeal and Error (§ 934) — PRESUMPTIONS IN SUPPORT OF JUDGMENT.
    Every reasonable presumption must be indulged oh appeal to support the judgment rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. § 934.*]
    2. Fraud (§ 4) — Transpee op Note — Liability op Transferror.
    'The transferror of a note, which falsely purported to be secured by a vendor’s lien on land, was_ liable to the transferee for the amount paid for the note, whether he practiced ah intentional fraud or honestly believed that the note was secured by a valid lien on the land.
    [Ed. .Note. — For other eases, see Fraud, Cent. Dig. § 2; Dec. Dig. § 4.]
    3. Fraud (§ 30*) — Liability op Party Participating in Proceeds.
    Where the agent, through whom plaintiff negotiated the purchase of a note which falsely purported to 'be secured by a vendor’s hen, was' jointly, interested with the seller of the note in the proceeds of the sale, he was jointly liable with him to plaintiff for the fraud.
    [Ed. Note. — For .other cases, see Fraud, Cent. Dig. § 35; pec. Dig. § 30,]
    4. Limitation- op Actions (§ 100*) — Compu- ' tation of Period op Limitation — Discovery of Fraud.
    Where- plaintiff, when he purchased a note which falsely, purported to be secured by a vendor’s lierq did not know that the agent, through whom he negotiated the purchase, was jointly interested with the seller of the note in the ' proceeds -of the sale, limitations did not run against his right of action against the .agent for the fraud until his discovery of such agent’s interest.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    5. Frauds,, Statute' op (§ 158) — Parol Evidence,.to Prove Title.
    In an action to recover the amount páid by plaintiff for a note which falsely purported, to be secured by a vendor’s lien, -the testimony of the defendant that the first information he had that the pretended vendor’s title was defective was acquired from plaintiff was not incompetent as proving the title to real estate by parol testimony, but was clearly upon the issue of fraud.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. § 158.]
    6. Fraud (§§ 53,. 58) — Actions for Damages —Evidence.
    In an action to recover the amount paid for a note purporting to be secured by a vendor’s lien on land, testimony that parties other than the pretended vendor had been in peaceable and adverse possession of the land for years was admissible and in connection with the testimony of the county clerk that no deed appeared of record tending to show title in the vendor conclusively established that he had no interest in the land.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 49, 55-59; Dec. Dig. §§ 53, 58.]
    On Motion for Rehearing.
    7. Limitation of Actions (§ 197) — Evidence —Weight and Sufficiency.
    In an action to recover the amount paid for a note which falsely purported to be secured by a vendor’s lien, evidence held insufficient to show beyond controversy that plaintiff had knowledge of the fraud more than two years prior to the filing of the suit.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 722Í-726; Dec. Dig. § 197.]
    8. Limitation, of Actions (§ 100) — Computation op Period op Limitation — Discovery op Fraud.
    Limitations did not run against an action to recover the amount paid for a note falsely purporting to be secured by a vendor’s lien from the time that the purchaser was told by his attorney that he believed' the note was a bogus transaction and that there was something wrong with the title, but only from the time when, by the exercise of ordinary care and with the information furnished him by the attorney, he could have discovered the pretended vendor’s lack of title.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Action by E. A. Barcroft against J. F. Young and others. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    Scarborough & Hickman, of Abilene, for appellant. R. N. Grisham, of Sweetwater, for appellee.

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

   DUNKLIN, J.

O. O. Jobe executed a deed purporting to convey to Jud Brown 280 acres of land out of the Mary Hall survey in Frio county,' and at the same time Brown executed six promissory notes in the sum of $600 each payable to Jobe and purporting to be purchase-money notes for the conveyance. One of these notes was transferred to J. F. Young by Jobe by written transfer, which also included a transfer of the purported vendor’s lien retained in the deed, with the further agreement that the note so transferred should be a first lien upon the land superior to • the lien for the other five notes. Young transferred the note and purported lien to J. E. Pratt, who in turn transferred the same to E. A. Barcroft. E. A. Barcroft instituted this suit against Brown, Jobe, Young, and Pratt to recover the amount of' the note, alleging the facts above recited, and further that Jobe never owned the land described in his deed to Brown, or any part thereof; that neither. Jobe nor any of his vendees were ever connected with the title or possession of the said land; and that the purported lien was a fiction and the recital thereof fraudulent. It was further alleged that Jobe, Young, and Pratt had each warranted the note to be a good, valid, and legal instrument and a first lien on the land mentioned; that Young and .Pratt received jointly the consideration paid by plaintiff for the note and represented to plaintiff at the time that the note was secured by a valid and subsisting lien on the land; that the land was of sufficient value to pay the note; that the title to the land was free from all incum-brances, except the purported purchase-money notes mentioned; that plaintiff relied on and believed all of the representations so made by Young and Pratt and was induced thereby to purchase the note; that all of said representations were false and known to be false by Young and Pratt at the time they made them; and that Young and Pratt made the same for the purpose of defrauding the plaintiff out of the consideration paid for the note. On account of his insolvency, a nonsuit was taken as against Brown. A judgment was rendered in favor of plaintiff against Jobe, Pratt, and Young for the amount of the note; the judgment against Jobe and Pratt being by default. Defendant Young has appealed.

Among other defenses Young urged the statute of limitations of two years to plaintiff’s cause of action. He also pleaded specially that he transferred the note to Pratt without recourse. He further denied any fraud on his part in the several transfers ¿1-leged and denied knowledge of any fraud by the other defendants.

The case was tried by the court without a jury, and no findings of fact by the court appear in the record. In the statement of facts appears a written transfer of the note and purported lien from Young to Pratt which stipulates that the transfer of the note is “without recourse on me in any way or manner whatsoever.” The transfer contains this further stipulation:

“Said note being executed in part payment for the following described tract of land situated in the county of Frio, state of Texas, being 280 acres of land out of Mary Hall survey, as fully described in deed from O. O. Jobe to Jud Brown of even date with this said note, the above-described note is one of a series of six notes, executed by same party, and being for the same amount, but it is expressly understood by and between the parties hereto the note herein conveyed shall be a first lien prior to all the other notes, as described in transfer from O. O. Jobe to J. F. Young. And I also hereby bargain, sell and convey unto .the said J. E. Pratt all .of the right, title and interest owned or held by me in said land by virtue of said note herein conveyed and assigned. Said land and note being fully set out and described in a deed duly executed by Jud. Brown to the'said O. O. Jobe and recorded in volume-, page-, records of deeds for - county, Texas, which is referred to and made a part hereof for further description. To have and to hold unto the said J. E. Pratt, bis heirs and assigns, the above-described note, together with all and singular the contract lien, vendor’s lien, rights, equities, title and interest in saidjand which I have by virtue of being the legal holder and owner of said note.”

The record shows without dispute that Jobe never owned a vestige of title to the land described in his deed to Brown. Plaintiff testified that he exchanged for the note in question certain real estate which had been listed with Young as his agent for sale; that Young, áeting as Such agent, proposed that plaintiff make such exchange and strongly advised him to do so, and this testimony was not denied by Young. The evidence further shows without controversy that Young and Pratt shared jointly in the fruits of the trade with the plaintiff. Plaintiff further testified that he never discovered thát Young was interested with Pratt in the trade so made until the fall of 1911. He further testified that, in order to induce him to make the trade, Young represented ' to him that the note was a good note; that the title to the land covered by the purported vendor’s lien had been investigated and found good; and that the land was of good quality.

The principal contentions made by the appellant are: First, that, as Young had transferred the note without recourse upon him in any manner whatsoever, he cannot be held as indorser or warrantor of the note or the lien; second, that, if Young is liable at all, his liability is for fraud and deceit practiced upon the plaintiff, and that the cause of action for such fraud was barred by the statute of limitations of two years.

“When the indorsement is ‘without recourse,’ the indorser specially declines to assume any responsibility, -as a party to the bill or note; but, by the very act of transferring it, he engages that it is what it purports to be — -the valid obligation of those whose names are upon it. He is like a drawer who draws without recourse; but who is nevertheless liable if he draws upon a fictitious party, or one without funds. And therefore the holder may recover against the in-dorser ‘without recourse’: (1) If any of the prior signatures were not genuine; or (2) if the note was invalid between the original parties, because of the want or illegality of the consideration ; or if (3) any prior party was incompetent ; or (4) the indorser was without title.” 1 Daniel, Negotiable Instruments (6th Ed.) § 670.
'“The transferror of commercial paper, even where indorsed ‘without recourse,’ warrants the validity of the instrument. Thus he is held impliedly to warrant that the paper is supported, by valid consideration; that it is properly stamped; that the prior parties had capacity to contract; that the instrument is still subsisting as a valid obligation; and in general that there is no written defense growing out of his own connection with the paper.” 1 Cyc. 831-833.

Every reasonable presumption must be indulged to support the judgment rendered. As Jobe bad no title to tbe land purported to be conveyed to Brown, there was a total want oi consideration to support tbe note as a demand against Brown, and, if tbe rule announced in tbe, authorities above noted should be held to apply, Young in transferring the note and purported lien was liable upon bis indorsement, even though tbe same was without recourse, and, if so liable, tbe statute of limitation of four years, and not that of two years, would be applicable. But it is not necessary to determine, and we do not determine, whether or not Young is liable upon his indorsement of tbe note, for we have concluded that the judgment must be affirmed for other reasons hereinafter -stated.

According to the testimony of Bar-croft, Young induced him to believe that he was acting as his agent in the transaction between Barcroft and Pratt, which resulted in the purchase of the note by Barcroft from Pratt, and did not discover that Young was jointly interested with Pratt in the transaction until the fall of 1911. Aside from his liability by reason of any indorsement of the note by him, Pratt was liable to the plaintiff for the amount the latter paid for the note whether he honestly believed that the note was secured by a valid lien upon the land, or whether he practiced an intentional fraud in the transaction, as the evidence seems to indicate, and, if Young was jointly interested with him in the proceeds acquired by the transaction, he was also jointly liable with Pratt to the plaintiff for the fraud. If, through no negligence on his part, plaintiff did not discover such interest of Young until the fall of 1911, as the court could reasonably have found, then his cause of action for fraud against Young did not begin to run until that time, and; if it did not begin to run until that time, the statute of limitations of two years, as against the cause of action for fraud and deceit, is not available to Young, since the suit was instituted in August, 1913. While the plaintiff testified substantially that he discovered that there was something wrong with the title to the land the latter part of 1910, yet, according to his testimony, he believed at the time and until the fall of 1911 that Young had acted as his agent only in the transaction. Young testified that he had no information that the title was defective until he learned it from Bar-croft after the latter had acquired the note. Under this and other testimony, the court reasonably could have concluded that the participation with Pratt in the fruits of the transaction with Barcroft was the only fact which rendered Young liable for the fraud practiced upon the plaintiff in selling him the note, notwithstanding the fact that it seems that the negotiations which Barcroft had with Pratt were chiefly through Young.

Error has been assigned to the admission of testimony of the defendant Young over his objection that the first information he had of the title to the land being defective was from the plaintiff himself. The objection urged was that the title to real estate cannot be proven by parol testimony. Substantially the same objection was urged to the testimony of John Pranglin introduced over defendant’s objection; John Pranglin’s testimony being substantially that other parties have been in peaceable and adverse possession of the land described in the notes since the year 1892. The testimony of the defendant Young was clearly upon the issue of fraud only and did not in any manner tend to show title, while the testimony of Pranglin was admissible to show title in parties other than any of the persons connected with the note in question. Furthermore, it was shown conclusively by the testimony of the county clerk; of Frio county that no deed appeared of record in his office tending in any manner to show title in Jobe to the land. This evidence was introduced without any objection on the part of the appellant, and in connection with Pranglin’s testimony conclusively established the fact that Jobe never owned any interest what: ever in the land which he purported to convey to Brown.

For the reasons noted, the judgment is affirmed.

On Motion for Rehearing.

Appellant earnestly insists that plaintiff’s petition contained no allegation that Young fraudulently concealed the fact that he was jointly interested with Pratt in the trade made with Barcroft, and that, in the absence of such an allegation, the plea of limitation of two years could not be made to begin at the time Barcroft discovered that Young and Pratt were jointly interested in the transaction. The fraud practiced upon Barcroft consisted of misrepresentations that the note was secured by a valid and subsisting lien on the land. Those misrepresentations induced Barcroft to make the trade and necessarily constituted his cause of action. The concealment of Young’s joint interest with Pratt in the transaction was not the particular fraud relied on for a recovery, but it was so intimately connected with it as to form a part and parcel thereof. Plaintiff alleged in his petition, as a part of the fraudulent transaction, that Young and Pratt received jointly the consideration paid for the note, and Young in his verified answer thereto specially denied that he received any part of such consideration, and specially denied:

“That he made any representations that were false or fraudulent, or that he was a party to or in any manner connected with J. E. Pratt in making this or any false representations whatever, and never at any time intended to defraud the plaintiff in any manner.”

It further appears that the testimony of Barcroft that he did not discover that Young was interested with Pratt in the trade until the fall of 1011 was introduced without objection on tlie part of Young, and his testimony that he did not discover Young’s interest in the transaction until after the consummation of the trade was several times repeated without objection. Young also testified by deposition as follows:

“I represented Mr. Bareroft in the sale of the land to Pratt, and it was thoroughly understood between Mr. Bareroft, Mr. Pratt, and myself that I was to deed the lots direct to Mr. Bar-croft and that Mr. Pratt was to deed me one-half of the land, though I bought the land from Mr. Pratt.”

This deposition was introduced by plaintiff without objection on the part of Young. The evidence shows without controversy that, during the latter part of the year 1910, Barcroft’s attorney informed him that in his opinion the note was a bogus transaction, and that there was something wrong with the title to the land. This information was sufficient to put Bareroft upon inquiry to discover the fact that Jobe never owned any title to the land at the time the note in controversy was executed by Brown to him. It would not necessarily set in operation the statute of limitation at that time, as limitation would begin to run only from the date when Bareroft should, by the exercise of ordinary care and with the information noted, have discovered such lack of title in Jobe. Upon the trial he proved such lack of title by the testimony of the county clerk that there was no record of any such title in Jobe and by the witness Pranglin of peaceable possession by other parties than Jobe for more than 30 years. Of course such proof did not necessarily show that Jobe did not hold an unrecorded deed, but during the pendency of the suit plaintiff attempted to take the deposition of Jobe, who, upon being notified by the notary to appear and answer the interrogatories, requested' a few days’ delay to enable him to make a trip to another county, but afterwards wholly failed to appear and answer the interrogatories. Furthermore, the evidence shows that, after receiving the information from his attorney, noted above, he wrote to Young relative thereto, requesting that he take the matter up with Pratt, but. failed to get any information in answer to such inquiry. And Young, who once owned the note, testified on the trial as follows:

“I have never heard from any source except Mr. Bareroft that Jud Brown, Jobe, myself, and Pratt never owned any land in Frio county.”

Under all the facts and circumstances in evidence, we are unable to conclude, as contended by appellant, that the evidence showed without controversy that Bareroft was chargeable with full knowledge that the purported lien stipulated in the note was a fraud more than two years prior to the filing of the suit, and for that reason, in addition to the reasons noted in the original opinion, we are unable to say that the action of the trial court in refusing to sustain the plea of limitation was erroneous.

The motion is overruled.

SPEER, J., not sitting.


text:
    CONTINENTAL OIL & COTTON CO. v. WRISTEN & JOHNSON.
    (No. 7954.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.
    Rehearing Denied May 30, 1914.)
    1. Negligence (§ 134) — Fire—Sufficiency of Evidence.
    Evidence that defendant’s employés, other than plaintiff’s assignor, who was himself an employe, negligently drew coals from the fire box of a cotton gin, and that the fire which destroyed it and the assignor’s property resulted therefrom, sustained a judgment against defendant for damages.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 267-279, 272, 273; Dec. Dig. § 134.]
    2. Negligence (§ 68) — Destruction oe Property.
    Where defendant was negligent in putting coals from the fire box of a cotton gin so as to expose plaintiff’s property to danger of destruction, it would still be liable even though plaintiff exercised all possible care to prevent the consequences of its negligence but failed to do so.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 92, 94, 95; Dec. Dig. § 68.]
    3. Negligence (§ 80) — Contributory Negligence-Destruction oe Property.
    Defendant, which placed coals from the fire box of its cotton gin where they exposed plaintiff’s property to danger of destruction, was not liable if plaintiff was its representative in charge of the gin, or if he was guilty of negligence in not extinguishing .them.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 84, 85; Dec. Dig. § 80.]
    4. Trial (§ 252) — Instructions—Application to Evidence.
    In an action for damages for the destruction of a wagon and seed cotton by fire the submission of an issue as to the market value of the property was error, where there was no evidence thereof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Damages (§ 174) — Evidence—Issues and Prooe — Market Value.
    In such case the actual value of the property could not be shown unless it appeared that there was no market value.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462 — 467; Dec. Dig. § 174.]
    6. Appeal and Error (§ 1170) — Review — Harmless Error.
    Though Courts of Civil Appeals rule 62a (149 S. W. x) provides that no judgment shall be reversed and new 'trial ordered for error at law in the trial, unless the appellate court is of opinion that the error was such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, the erroneous admission of evidence as to damages necessarily resulting in a judgment which could not otherwise have been rendered was ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]

      Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by Wristen & Jolmson against the Continental Oil & Cotton Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    S. P. I-Iardwicke, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for ap-pellees.

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

   SPEER, J.

Wristen & Johnson, as assignees of one S. C. Gist, brought this suit against the Continental Oil & Cotton Company to recover damages for the destruction by Are of a certain wagon and seed cotton belonging to Gist, and alleged to have been destroyed through the negligence of the defendant. There was a jury trial, and verdict followed by a judgment in favor of the plaintiffs, and the defendant has appealed.

The first three assignments of error complaining that the judgment is unsupported by the evidence on the issue of negligence of appellant are overruled. The evidence tends to show and would support a finding by the jury that appellant’s employes other than Gist, who himself was an employe of appellant, neligently withdrew coals from the fire box beneath its boiler, and that the fire which destroyed appellant’s gin and Gist’s property resulted from this act. We note appellant’s suggestion that if any one was at fault in the matter of extinguishing the coals drawn from the fire box it was Gist himself, who testified that he had attempted to extinguish them and thought he had, but this is no answer at all, since, however great Gist’s care may have been, it would not excuse appellant’s prior negligence in putting the coals where they were and thus exposing the property to the danger of destruction. In other words, if Gist exercised all possible care to prevent the consequences of appellant’s prior negligence, yet failed to do so, the company would still be liable.

The jury were told if Gist was the representative of appellant in charge of its gin and had control of its management, or if he was guilty of negligence in the matter of extinguishing the coals, to find for the defendant. This requires us to overrule assignment 8a.

We must sustain, however, the fourth and fifth assignments. The fourth complains that the court erred in submitting as an issue to the jury the market value of the wagon because there was no evidence as to the market value of the wagon, and the fifth is to the effect that the court erred in admitting in evidence ovér objections of the appellant the testimony of the witness Gist as to what he paid for the wagon when new. We have carefully examined the statement of facts, and fail to find any evidence as to the market value of the wagon, and it was therefore error to submit such issue.

Neither is there in the statement of facts any evidence that such wagon had no market value so as to permit the introduction of the testimony complained of in the fifth assignment. The rule is well established that before actual value can be shown it must be made to appear that there is no market value. 13 Encye. of Evidence, 510.

Rule 62a (149 S. W. x.) has been invoked by appellees, and the suggestion is made that the errors were not such as were calculated to cause or probably did cause any improper verdict. But we think differently. We do not think it was meant , by the adoption of rule 62a to alter the well-established rules of evidence, one of which has been violated in this case, and we are further of the opinion the violation of it has necessarily resulted in a judgment which could not otherwise have been rendered.

Eor the errors indicated the judgment is reversed, and the cause remanded.


text:
    CHICAGO, R. I. & G. RY. CO. et al. v. BELL.
    (No. 7965.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.
    Rehearing Denied May 30, 1914.)
    1. Carriers (§ 135) — Injury to Freight — Damages.
    Where goods, while in possession of a carrier, are entirely destroyed, the carrier is liable for the full value thereof, but, if they are not entirely destroyed, the owner is bound to receive them and recover the difference between their sound value and their value in their injured condition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603%-604y2; Dec. Dig. § 135.]
    2. Appeal and Error (§ 900) — Presumptions.
    Every reasonable presumption must be indulged in favor of the validity of the judgment appealed from.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3667-3669; Dec. Dig. § 900.]
    3. Carriers (§ 137% New, vol. 3, Key-No. Series) — Injury to Goods — Total Destruction — Award op Goods to Carrier.
    Where, in an action against a carrier, there was evidence of the total destruction of the goods sued for, the fact that the court awarded to the carrier title to the goods in their injured condition and rendered judgment for plaintiff for'their value did not necessarily imply a finding that the goods as injured were' of any special value.
    4. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    Where, in an action against a carrier for injury to goods, error was assigned in that plaintiff was not entitled to recover more than $400, which was the exact amount of the judgment, a proposition under the assignment that in all events the freight charges should have been deducted from the amount awarded was not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]

      5. Costs (§ 234) — Costs of Appeal — Modification op Judgment — Assignment of Ee-eok.
    Where reformation of a judgment on appeal was not the result of the sustaining of any assignment of error, but Resulted solely from a voluntary offer of appellee, all costs of appeal would be taxed to appellants.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. § 234.]
    Appeal from District Court, Young County; P. A. Martin, Judge.
    Action by W. C. Bell against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Reformed and affirmed.
    C. W. Johnson, of Graham, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellants. Kay & Akin, of Graham, for appellee.

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

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

   DUNKLIN, J.

W. C. Bell entered into a contract with R. M. Todd to sell to him certain pool room equipments consisting of billiard and pool tables, cues, -and other similar appliances. By the terms of the contract the goods were to be delivered to Todd at Graham, Tex. At the time the contract was made, the goods were at Brownsville, and Bell shipped them to Graham for the purpose of delivering them; the shipment being over the International & Great Northern Railway and the Chicago, Rock Island & Gulf Railway. Upon their arrival at Graham, Todd refused to accept them. They were then tendered to Bell, who likewise declined to accept them; his objection being based upon the contention that the goods had been so damaged in shipment as to be rendered value-, less. Bell then instituted this suit agáinst the two railway companies to recover the sum of $1,200, the alleged value of the goods, alleging that they were so negligently and carelessly handled by the two railway companies that their .value was wholly destroyed. The case was tried without the aid of a jury, and, from a judgment in favor of the plaintiff, the defendants have appealed.

The amount of the judgment so rendered was $400, and by its terms title to the property so shipped was vested in the two defendants. The evidence shows without controversy that Todd did refuse to accept the goods; that they were tendered to Bell, who likewise refused to accept them. By different assignments it is insisted that, as the evidence conclusively shows that the goods were not wholly destroyed, the correct measure of plaintiff’s damage was the difference between the value of the goods in the condition they did arrive at their destination and the value in the condition they would have arrived if they had been properly handled in transit from Brownsville to Graham, and that the court erroneously ignored that rule for measuring plaintiff’s damages, and rendered judgment for the full value of the goods.

It is well settled by the authorities that, where property is not wholly destroyed by the carrier in shipment, the owner cannot refuse to accept the goods and charge the carrier with their full value, but his measure of damages is the difference between the value of the goods in their injured condition and what would have been their value if they had not been so injured. G., C. & S. F. Ry. Co. v. Everett, 37 Tex. Civ. App. 167, 83 S. W. 257, and authorities there cited. The authorities are equally as well settled that, if the goods are wholly destroyed through the negligence of the carrier, their full value may be recovered. The trial judge did not file findings of fact and conclusions of law. Evidence introduced by the defendants tended strongly to show that the goods were of very little value even before they were shipped; that they were old and out of date and had been stored for a long time. But, according to testimony offered by the plaintiff, they were in good condition immediately prior to the shipment; that they then were worth $1,200; and that they were so damaged in transit from Brownsville to Graham as to be rendered wholly worthless. According to other testimony offered, it would, at all events, require a sum in excess of $400 to repair the damage done in shipment to the billiard and pool tables alone. .

Every reasonable presumption must be indulged in favor of the validity of the judgment rendered, and under this rule it must be presumed that the trial judge found that the goods would have been worth $400 if they had been properly handled by the defendants, and that their value was wholly destroyed through the negligence of the defendants, or that it would require that sum to repair the damage done to them.

The mere fact that the court awarded to the defendants title to the goods does not necessarily imply that he considered them of any special value, but rather that the court was of the opinion that the defendants should be given the benefit of the doubt. Accordingly the assignments presenting the question now under discussion must be overruled.

By another assignment, it is insisted that, even if the property had been totally destroyed, plaintiff was not entitled to recover more than $400, the price for which he had contracted to sell them to Todd. By propositions submitted under this assignment, it is insisted that at all events the freight charges should have been deducted from the $400 allowed by the court. This proposition is not germane to the assignment; the assignment being simply that plaintiff was not entitled to recover more than $400, which was the exact amount of the judgment. However, appellee has offered to remit the sum of $24, the amount of the freight charges for the shipment, and the remittitur will accordingly be entered.

All assignments oí error are overruled, and the judgment of the trial court is reduced to the principal sum of $376 instead of $400, as rendered, and, as so reformed, it is affirmed.

As this reformation of the judgment is not the result of sustaining any assignment of error, but follows solely from the voluntary offer of appellee, all costs of appeal are taxed against the appellants.

Reformed and affirmed.


text:
    WICHITA FALLS & N. W. RY. CO. v. WATTAM et al.
    (No. 7927.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.
    Rehearing Denied May 23, 1914.)
    Carriers (§ 86) — Transportation op Freight — Damages to Fruit — Delivery— Peddling prom Car.
    Where a carrier delivered a car load of fruit to the consignee, and afforded every opportunity to unload it, but the consignee insisted on the right to peddle the fruit directly from the ear, which the carrier refused to permit, it was not liable for damages to the fruit resulting from such refusal.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 316-322; Dec. Dig. § 86.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    Action by W. H. Wattam and others against the Wichita Falls & Northwestern Railway Company. Judgment for complainants, and defendant appeals.
    Reversed and rendered.
    R. H. Hopkins, of Denton, for appellant. Zumwalt & Key, of Denton, for appellees.

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

   SPEER, J.

W. H. Wattam filed this suit

in the county court of Denton county to recover damages to a car load of bananas which he alleged was delivered to the International & Great Northern Railroad Company for shipment to Burkburnet, Tex., a station on the line of the Wichita Falls & Northwestern Railway Company, at which point it, was rebilled to Frederick, Okl. He alleged that after said car of bananas arrived at Frederick, Okl., the Wichita Falls & Northwestern Railway Company forcibly took possession of the same, and sealed it up in an improper manner, and that the fruit was damaged to the amount of $100. 1-Ie further alleged that such act was malicious, and that he had been put to considerable extra expense, which he placed at the sum of $50, for which sums, together with exemplary damages to the extent of $300, he sued both railroads. The defendants answered, there was a judgment for the plaintiff, and the defendants have appealed.

We think the trial court erred in refusing to give appellants’ special charge directing a verdict in their favor. The answer tendered the issue, and the evidence indisputably established the defense that the bananas were duly shipped to the destination and delivered or tendered for delivery to the appellee. Upon their delivery, instead of unloading the fruit, appellee undertook to peddle the same from the car directly, and was notified by the appellants that such course was contrary to the rules of the company, and would not be permitted. He insisted, and the agent of the appellants was directed to, and did, seal up-the car. There is no contention but that ap-pellee was afforded every opportunity to unload the fruit directly from the car; the only controversy being as to his right to use appellants’ car as shown by peddling the bananas therefrom. The law imposes upon-a railroad company the duty of safe transportation and sound delivery of merchandise committed to its care as a carrier, but it does not imposempon such carrier the further duty of furnishing its cars to the shipper to be used as a storehouse in which to conduct a business with the public. A regulation forbidding such practice is a reasonable-one, or at least there is no contention here-that such is unreasonable; and, under the-facts of this case, a verdict should have been, instructed for the defendants.

Reversed and rendered for appellants.


text:
    MOORE et ux. v. JENKINS et al.
    (No. 7932.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.
    Rehearing Denied May 16, 1914.)
    Vendor and Purchaser (§ 287*) — Foreclosure oe Vendor’s Lien — Vacating Sale.
    Where the assignee of a judgment foreclosing a vendor’s lien agreed to release the owner of the land and her husband from liability on such judgment in consideration of the husband’s-agreement to refrain from bidding at the foreclosure sale, but the assignee thereafter repudiated such agreement, the owners could not have the sale set aside for fraud, as their cause-of action, if any, was for a satisfaction of any balance due upon the judgmént, and, moreover, if the agreement was valid, it would be a defense to any effort on the part of the assignee to collect such balance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 810-814; Dee. Dig. § 287.*]
    Appeal from District Court, Eastland. County; Thos. L. Blanton, Judge.
    Action by W. S. Moore and wife against J. V. Jenkins and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Stuart, Bell & Moore, of Gainesville, and D. G. Hunt and A. D. Dabney, both of Eastland, for appellants. R. L. Rust, of Eastland, for appellees.
   DUNKLIN, J.

Three hundred and twenty acres of land were purchased by J. V. Jenkins, who in part consideration for the transfer assumed the payment of certain outstanding vendor’s lien notes against the land. He then executed a deed of conveyance to Mrs. R. G. Moore, wife of W. S. Moore, and Moore and wife assumed the payment of those notes. Thereafter a judgment was rendered in favor of Claude McCauley, the holder of the notes, against Jenkins and his vendees, and also against H. M. Payne and W. E. Oglesby, former owners of the land, who had also assumed the payment of the notes. The judgment so rendered was for the sum of $1,387.-46, with foreclosure of vendor’s lien upon the land. Later McCauley transferred the judgment to Jenkins, who paid therefor the full face value of the judgment. Jenkins then procured an order of sale upon the judgment, under and by virtue of which the land was levied upon and sold to him for the sum of $100, the amount of which bid was credited upon the judgment.

W. S. Moore and R. G. Moore instituted this suit against Jenkins to set aside that sale upon an allegation of 'fraud practiced upon the plaintiffs. According to allegations in the petition and the evidence of W. S. Moore, Jenkins and W. S. Moore prior to the sale agreed with each other that Jenkins should purchase the property at the sheriff’s sale at such price as he could acquire it; that W. S. Moore would not be a bidder at such sale, and that, in consideration of his agreement to refrain from bidding and to permit Jenkins to purchase the land as cheaply as possible, Jenkins agreed to release plaintiffs from the payment of any balance that might be due upon the judgment after crediting thereon the amount of Jenkins’ bid therefor; that on the morning of the day of the sale Jenkins denied to plaintiff W. S. Moore that he had made the alleged agreement referred to above, and informed Moore that Allen, his agent employed to bid in the property, would buy it at the lowest price possible. Jenkins and Moore were then in Gainesville, and Allen was in Eastland, where the land was to be sold, and had been sent there for the purpose of buying in the property for Jenkins. It was further alleged and testified to by W. S. 'Moore that after said conversation with Jenkins he made diligent effort to submit a bid upon the property to the amount of the judgment, if necessary to purchase the same, and that he was able to pay the amount of the judgment on such bid, but that the agent employed by him in Eastland over the telephone to represent him at the sale received the message too late to submit a bid. There was testimony further to support the allegation in plaintiff’s petition that the land was worth considerably more than the amount due on the judgment. It was further charged in the petition that prior to the transfer of the judgment from McCauley to Jenkins the same agreement was made between Jenkins and W. S. Moore referred to above; that the transfer of the judgment from McCauley to Jenkins thereafter was the result of a fraudulent collusion on the part of McCauley and Jenkins for the acquisition of the property by Jenkins under the foreclosure sale for a price less than the amount of the judgment and less than its market value. But this allegation of fraud is not sustained by any testimony introduced upon the trial. The trial court gave a peremptory instruction to find for the defendant, and from a judgment rendered in compliance with that instruction the plaintiffs have appealed.

The theory upon which the court proceeded in giving the peremptory instruction is not disclosed in the record from the trial court, but in the briefs for the parties it is suggested that the court did so for the reason that there was no consideration for the alleged agreement by Jenkins to release any balance due on the judgment after crediting the amount of his bid, and that therefore the agreement was nudum pactum, and hence of no force or effect. It thus appears that the ultimate relief desired by plaintiffs is to avoid any liability upon the judgment rendered against them in the foreclosure suit. Their only purpose for having the sale set aside was that they might have the opportunity at another sale to make the property sell for the amount of the judgment. If the alleged agreement on the part of Jenkins to release plaintiffs from the unpaid balance of the judgment after crediting the price for which he bought the property is valid and binding upon Jenkins, then the same would be a valid defense to any effort on the part of Jenkins to collect such balance of the judgment from the plaintiffs. The purchase of the land by Jenkins at the lowest price possible was in exact accordance with the agreement of plaintiffs, who did not desire the property, but whose only desire was to be released from any balance due on the judgment. Accordingly we are of the opinion that plaintiffs had no cause of action to set aside the sale, but that their cause of action, if any, was for a satisfaction of the balance due upon the judgment in accordance with Jenkins’ agreement referred to above, and that the judgment of the trial court should be affirmed, without prejudice to plaintiffs’ right to invoke said agreement as a defense to any demand against plaintiffs for the balance due upon the judgment of foreclosure, or to base a suit thereon for cancellation of such balance.

Judgment affirmed.


author: CONNER, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. BECKHAM.
    (No. 7897.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.
    Rehearing Denied May 9, 1914.)
    1. Carriers (§ 211) — Liability foe Injuries to Live Stock — Defenses.
    Where a carrier’s negligence in failing to furnish a shipper of mules proper facilities and an opportunity to feed and water them proximately contributed in causing injury to the mules, it was not relieved of liability by the fact that the shipper’s act, in failing to restrain the mules, when subsequently watering them, was the immediate cause of the injury, unless such failure on the part of the shipper was negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.]
    2. CaRrieks (§ 211) — Liability eor Injuries to Live Stock — Proximate Cause.
    Where a carrier failed to furnish a shipper of mules proper facilities and an opportunity to feed and water them, as a result of which they were unloaded in a famished condition and sustained injuries when watered by the shipper without restraint, the jury were justified in finding that the carrier’s negligence was the proximate cause of the injuries, since, while it could not be required to anticipate the shipper’s negligence in the manner in which he watered the mules, it might well have anticipated that the mules would be in a famished condition and that the shipper would attempt to relieve their distress by watering them.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.]
    3. Carriers (§ 228) — Actions for Injuries to Live Stock — Sufficiency of Evidence.
    In an action for injuries to a shipment of mules, evidence held to support the jury’s conclusion that the shipper was not negligent in the manner in which he watered the mules when unloaded in a famished condition, due to the carrier’s failure to furnish proper facilities and an opportunity to feed and water them.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from Nolan County Court; Jno. F. Cochran, Jr., Judge.
    Action by C. T. Beckham against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    See, also, 152 S. W. 228.
    H. S. Garrett, of San Angelo, for plaintiff in error. Beall & Spencer, of Sweetwater, for defendant in error.

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

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

   CONNER, C. J.

Defendant in error recovered a judgment for $190 as damages to a car of young mules transported by plaintiff in error between points named in the plaintiff’s petition. The evidence warrants the conclusion that the mules were negligently delayed and confined in the cars about 44 hours without feed or water, and then unloaded in a famished condition. By the contract of shipment the plaintiff agreed to feed and water his stock, but there is evidence tending to show that proper facilities and opportunity to do so had not been afforded by defendant. When unloaded, as above stated, the plaintiff watered his mules without restraint in quantity, as a result of which the damage in controversy was caused.

Plaintiff in error’s .main contentions are that defendant in error’s own contributory negligence in not separating or otherwise restraining his mules from drinking too much proximately caused the damage in question, and further that the undisputed fact that the damage resulted from plaintiff’s act precludes a recovery for him, regardless of the issue of his contributory negligence.

The case of Hart v. Chicago & N. W. Ry. Co., by the Supreme Court of Iowa, and reported in 69 Iowa, 485, 29 N. W. 597, is cited in support of the latter contention. In that case a caretaker sent by the plaintiff went into a car containing live stock and other property in course of transportation with a lighted lantern. In some way not attributed to the railway company, the lantern was overturned and set fire to combustible material with which the car was bedded and injured the plaintiff’s property. It was held that the railway company was not liable, regardless of whether the caretaker’s act in causing the fire amounted to negligence. Of similar import are the cases of T. & P. Ry. Co. v. Edins, 36 Tex. Civ. App. 639, 83 S. W. 253, and Tex. Cen. R. R. Co. v. O’Laughlin, 72 S. W. 610, both by this court. But it will be found, by an examination of all the cases cited, that the act relied upon as the proximate cause of the injury was either induced by the plaintiff under circumstances sufficient to constitute an estoppel, or was performed by him without any concurring fault on the part of the. railway company. In such cases there is evidently good reason for denying a recovery against the carrier notwithstanding its general liability under the common law.

We conclude, however, that the carrier is not to be excused in cases where its negligence proximately contributes in causing injury merely because an act- of the plaintiff was the immediate cause. In such case the evidence must further show that the causal act of the plaintiff was negligent. Otherwise the case is only one of frequent occurrence, where the negligence of the carrier concurs with some other act for which it is not liable. See G., C. & S. F. Ry. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395, and cases therein cited.

The vital questions in the case before us, therefore, are: First, was the plaintiff guilty of contributory negligence in watering his mules as he did? If not, was the negligence of the carrier a proximate cause of the injury resulting? Under appropriate instructions, both issues were submitted to the jury, which determined both in defendant in error’s favor, and we feel unable to say that. the verdict is wrong. While plaintiff in error cannot be held to have anticipated negligence on defendant in error’s part in the manner in which he watered his mules, it may well be held to have anticipated that, as a result of the long delay and confinement, the mules would be in a famished condition, and that defendant in error would attempt to relieve their distress by watering them. If injury followed as a natural sequence, unaffected by any contributory negligence on defendant in error’s part, then the original negligence on the part of plaintiff in error which brought about or necessitated such watering must be held, we think, to be a proximate cause of the result. See T. & P. v. Corn, 110 S. W. 485; Bennett y. G., C. & S. F. Ry. Co., 159 S. W. 182; F. W. Belt Ry. Co. v. Cabell, 161 S. W. 1083. At least it was well within the province of the jury to so determine, and, as stated, we feel unable to disturb the jury’s conclusion. So, too, on the issue of contributory negligence we have been unable to say that, as a matter of law, the jury’s verdict is erroneous. It is not pointed out in plaintiff in error’s statement, under the assignment so asserting, that its pens were in such number or arrangement as that defendant in error could have separated his mules, or that plaintiff in error had furnished facilities which enabled defendant in error to water his mules in any other manner than that in which he did. He also testified that, while he was an experienced stockraiser, he did not know that the mules would be injured as they were in watering them as he did, and his evidence as a whole authorized the evident conclusion of the jury that, under all of the circumstances, he exercised ordinary care.

A number of other assignments of error have been urged, but they present nothing, we think, requiring special discussion. It will be sufficient to say that the charge as a whole fairly submitted the material issues of the case and that the court did not err in charges given or in refusing special charges requested, nor did he commit material error, we think, in his rulings upon the evidence.

We therefore conclude that the judgment must be affirmed.

Affirmed.


text:
    KING v. HUTSON.
    (No. 7938.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.)
    1. Appeal and Error (§ 501) — Assignments op Error — Statements Accompanying Assignment.
    Assignment complaining of the action of the court in overruling exceptions, where the record did not disclose that such exceptions were ever presented to or acted on by the court, will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §
    2. Vendor and Purchaser (§ 299) — Default — Rights op Vendee.
    Where, in an action by a vendor to recover land after default by the purchaser, the petition alleged that the value of the use of the premises exceded all payments made and all improvements; and asked that the value thereof be ascertained and adjustment made, an instruction that defendant was entitled to a return of the purchase money paid, as well as the value of the improvements, was proper, since, under the pleadings, the rule that a defaulting purchaser cannot recover purchase money paid nor the value of improvements, was inapplicable.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 837-842; Dec. Dig. § 299.]
    Appeal from District Court, Montague County; C. B. Potter, Judge.
    Action by S. M. King against J. B. Hutson. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    A. L. Scott, of St. Jo, for appellant. W. W. Cook, of Montague, for appellee.

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

   SPEER, J.

This was an action by S. M. King against J. B. Hutson to recover a certain tract of land situated in Montague county on account of the nonpayment of the purchase-money notes. The defendant pleaded defects in the title to the land as an excuse for his default, and sought to recover the portion of the purchase price already paid, as well also as the value of certain improvements made in good faith on the premises. A trial before a jury resulted in a judgment in favor of the plaintiff for the land and in favor of the defendant for the cash payment made and the value of the improvements. The plaintiff appeals.

The first six assignments are overruled because each complains of the action of the court in overruling an exception to the appellee’s answer, and the record does not disclose that such exceptions were ever presented to or acted on by the court.

The remaining assignments attack the court’s charge upon the issues tendered by appellee of improvements made in good faith and of the return of the purchase money paid. The well-known propositions of law are asserted that a defaulting purchaser cannot recover the portion of the purchase money paid when he chooses, without just cause, to abandon the purchase, and cannot recover for the value of improvements made, uniess at the time of making them he in good faith believed his title was superior to all others, but these propositions, while sound in the abstract, find no application to this ease. The trial court did summarily instruct the jury that the appellee was entitled under the law to a return of the money paid by him, as well also as the present actual value of the improvements he had made on the premises. This-was proper under appellant’s pleading. In his original petition he distinctly alleges that the reasonable value of the use and benefits of the premises for,the time the defendant has had the same vastly exceeds any and all amounts paid on the purchase. price and any and all improvements made on the land, and specifically asks that the value of same be ascertained and adjustment made thereof, and that he have judgment for any sum which may be due him by reason thereof. It thus appears that the court, in submitting the case, did so as appellant himself had pleaded it, and the principles invoked by him are not applicable.

The evidence supported the verdict and judgment; there is no error in the record; and the judgment of the district court is affirmed.