author: FLY, C. J.

text:
    KAMPMANN et al. v. CROSS.
    (No. 5807.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 28, 1917.
    Rehearing Denied April 25, 1917.)
    1. Master and Servant <©=>408 — Injuries to Servant — Workmen’s Compensation Act— Pleading.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz, an injured servant has the right to bring suit for damages in the district court, and if the employer then desires to defend on the ground that he is within the Compensation Act, it becomes a question of fact whether the employer has complied with the law.
    2. Master and Servant <§=>408 — Injuries to Servant — Workmen’s Compensation Act-Person Subject — Posting Notice.
    Mere posting- of notice in a place of business that the employer is a subscriber under the Workmen's Compensation Act is not as a matter of law notice to the employfi, but it is a question of fact whether it was sufficient.
    3. Master and Servant <§=>358 — Workmen’s Compensation Act — Construction.
    Workmen’s Compensation Act, requiring the employer who becomes a subscriber to give notice thereof, should be strictly construed, since the giving of such notice and the act of the employer in becoming a subscriber deprives the em-ployé of common-law rights.
    4. Master and Servant <§=>348 — Workmen’s Compensation Act — Construction.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246yyy, defining a subscriber to the act, and articles 5246x, 5246xx, as to notice to the employs, are not in conflict.
    5. Master and Servant <®=>405(3) — Workmen’s Compensation Act — Posting Notice —Evidence—Sufficiency.
    Evidence held insufficient to show that the employer had posted notice that she was a subscriber under the Workmen’s Compensation Act.
    6. Master and Servant <§=>351 — Workmen’s Compensation Act — Necessity oe Notice.
    Though.the employer has become a subscriber under the Workmen’s Compensation Act, she might still be liable under the common law to injured servant if she failed to give the servant the notice required by the act.
    7. Master and Servant <§=>408 — Workmen’s Compensation Act — Question eor Jury.
    It is not a question for the jury whether an employer is a subscriber under the Workmen’s Compensation Act.
    8. Master and Servant <§=>358 — Workmen’s Compensation Act — Right to Recover.
    Though Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i, deprives employés of a subscriber of the right of action against the employer impersonal injuries, it must be construed with articles 5246x, 5246xx, requiring- notice, and in the absence of such notice the relation of subscriber employer and employé does not exist.

      9. Witnesses <§=>392(1) — Contradiction — Written Statements — Necessity oe Signature.
    The written statement identified and proved to have been made by a witness contrary to his testimony on the trial is admissible to impeach him, though undated and unsigned.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1249-1251.]
    10. Trial <§=>255(4) — Instructions — Requests — Limiting Purpose oe Testimony.
    If the undated and unsigned statement identified to be that of a witness containing statements contrary to his testimony is desired to be limited to impeach him, request to that effect should be made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 632.]
    11. Appeal and Error <§=699(4) — Scope oe Review — Reoord—Sueeicienoy.
    A statement that a defendant is entitled to have presented to the jury for decision by them any group of facts pleaded by it and developed in the trial which, if true, will in law establish a given defense, does not support assignments of error in refusal to give peremptory instruction, in overruling a special exception to the charge, and in refusing to submit a certain issue.
    [IS'd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2929.]

      12. Master and Servant <§=>410— Compensation Act — Actual Notice.
    In employé’s action for injuries, where the evidence showed that there was no constructive notice, if the employer desired submission of issue of actual notice, he should have requested it.
    13. Master and Servant <§=>404 — Workmen’s Compensation Act — Actions eor Injuries — Evidence—Admissibility.
    In employé’s action for injuries, where the employer sought to show that she, was a subscriber under the Workmen’s Compensation Act, evidence that notices that she was a subscriber were posted after the accident was admissible.
    14. BIaster and Servant <§=>289(39) — Injuries to Servant — Proximate Cause — Questions eor Jury.
    In laundry worker’s action for injuries, it was proper to refuse to submit issue whether her negligence was the proximate cause of her injury, since, if she was in any degree negligent, such negligence must have been the proximate cause.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1131.]
    15. Master and Servant <§=>356 — Workmen’s Compensation Act — Contributory Negligence.
    Under the Workmen’s Compensation Act, contributory negligence of the servant does not defeat recovery.
    16. Master and Servant <§=>385(17) — Workmen’s Compensation Act — Contributory Negligence.
    Under Vernon’s Saylcs’ Ann. Civ. St. 1914, art. 5246h, the damages to an injured servant would be diminished in proportion to the amount of negligence that might bo attributed to her.
    17. Damages <§=>134(3) — Excessive Damages.
    Verdict of $10,000 in favor of employs who lost a hand, suffered with tetanus and blood poisoning, was in a hospital for three months, suffered terrible pain and agony, and paid out large sums for medicine and medical attention, and-who when injured was 40 years old and earning $75 a month, whose earning power was greatly decreased, if not destroyed, and who was rendered unfit for the character of work to which she was accustomed, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 389-392.]
    Appeal from Seventy-Third District Court, Bexar County; W. F. Ezell, Judge.
    Action by Jessie Cross against Elizabeth S. Kampmann. On suggestion of defendant’s death Ike S. Kampmann and another, as independent executors of her will, were made defendants. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Kampmann & Burney and Terrell & Terrell, all of San Antonio, for appellants. Sylvan Lang, John Sehorn, and B. A. Great-house, all of San Antonio, for appellee.
   FLY, C. J.

This suit was instituted by appellee for damages alleged to have accrued to her by ..reason of the loss of a hand while she was in the employment of Mrs. Elizabeth S. Kampmann, in the laundry department of the Menger Hotel, in the city of San Antonio. The grounds of negligence were in furnishing a defective mangle used in the laundry, which defect caused appel-lee’s left hand to be caught and so mangled that’ it had to be amputated. The cause was submitted to a jury on special issues, and on the answers judgment was rendered in favor of appellee for $10,000. Before the cause was tried Mrs. Kampmann died, and her sons, two of whom, Ike S. Kampmann and John Herman Kampmann, were independent executors of her will, were made parties. .

The evidence showed that appellee was injured by a defective mangle negligently furnished by appellants, and thereby lost her left hand. She was in the employ of appellants and earned her livelihood by manual labor.

Through the first, second, third, and fourth assignments of error appellants assert the proposition that the district court did not have-original jurisdiction of this cause, but that, under the Employers’ Compensation Act passed by tbe Thirty-Third Legislature (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), the Industrial Accident Board had original jurisdiction.

The act in question was passed in 1913, and its objects, aims, and requirements are fully discussed by the Supreme Court in answer to certified questions in the case of Middleton v. Texas Power & Light Company, 185 S. W. 556. The operation of the act as applied to employers is thus summarized in that opinion:

“1. They may, at their election, become subscribers under the act, or what may be termed consenting members to its general scheme of liability and compensation, or remain without its pale.
“2. If they become subscribers and give the required notice to that effect to their employés, they are exempt from all common-law or other statutory liability for personal injury suffered by such employés in their service, except that for exemplary damages where an employé is killed through an employer’s willful act or omission or gross negligence, which may be defended against as under existing law.
“3. If they do not become subscribers, they are amenable to suits for damages recoverable at common law or by statute on account of personal injuries suffered by their employés in the course of- their employment, and are denied the right of making what constitute the common-law defenses thereto. In such a suit, however, no recovery may be had against an employer except upon proof of his negligence, or negligence on the part of some agent or servant acting within the general scope of his employment, or where the employé willfully caused his own injury.”

The following is the summary therein of the requirements of the law as applied to employés:

“I. They are at liberty to work or not to work for employers who are, or who may become, subscribers under the act.
“2. If they enter the service of a subscribing employer, or remain in his service after written or printed notice given by him that he is such an employer, and are injured in the course of their employment, a stated compensation, based upon their average wages, is paid them therefor, or to their representatives or beneficiaries in the event of death from the injury, without regard to whether the employer is liable therefor as at common law, and therefore without the necessity of proving negligence, through an agency provided by the act as the means of insuring such payment.
“3. Such employés as are injured in the service of subscribing employers who comply with the act are denied all right of action therefor against such employers, as are the representatives and beneficiaries of deceased employés for injuries resulting in death, except that the surviving husband, wife and heirs of any such deceased employé killed through the willful act or omission or gross negligence of such employer may maintain an action for exemplary damages on account of his death.”

The Supreme Court held the act constitutional. The act is embodied in Vernon-Sayles’ Tex. Civ. Stats, in articles from article 5246h to article 5246zzzz, inclusive.

It will be noted that, in order to obtain the benefits of the act employers must become subscribers or consenting members, and after becoming subscribers or consenting members, in order to obtain the exemptions provided for in case of injury to an employe in their service, they must give the notice required by the statute to the employe. That requirement is that written or printed notice must be given all employés that the employer is a subscriber, and that he has provided for payment by the association of compensation to the employé for injuries received by him in the course of his employment. The printed or written notice to the employé is the condition precedent to the benefits of the bill being appropriated by the employer. The employé is being deprived by the act of the right of obtaining redress for injuries in the courts of the state, and in order to do this a certain method of procedure is prescribed by the law. It must be in case he remains in the service of the employer after notice given as required by law.

While not directly passing upon the absolute necessity of the employer giving the statutory notice in order to obtain the protection therein provided for, the constant repetition of the necessity of notice clearly shows in the Middleton Case that it is the opinion of the Supreme Court that notice is abso-i lutely essential. The status of the employé is fixed by the notice, and he can only escape the results of the act by leaving the employment of the subscriber. He has no choice, and cannot, as is the case ,in Massachusetts herein cited, retain his right under the common law by notice to the employer. The right to elect as to whether he would or would not retain his rights under the common law seems to be the pivotal point upon which the case was decided of Young v. Duncan, 218 Mass. 346, 106 N. E. 1. Under the Massachusetts statute it is provided that:

The employé “shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right.”

The Supreme Judicial Court of Massachusetts held that the plain and absolute provision of the statute was not dependent upon any other condition or circumstance. In Massachusetts notice is required of the em-ployé, in Texas of the employer, and if it was essential that the employé should give notice to retain his common-law status, it must be as essential in Texas for the notice to be given by the employer in order to destroy such common-law right. The Massachusetts case is relied on by appellants to sustain the proposition that notice by the employer was not essential, but the opposite conclusion, it seems, should be drawn from the decision.

In the case of Daniels v. Boldt (W. Va.) 88 S. E. 613, and Bernard v. Traction Co., 188 Mich. 504, 154 N. W. 565, cited by appellants, it is held positively and directly that the employé is entitled to notice and without it he cannot be deprived of his common-law rights. In the West Virginia case it was ¿eld that it was absolutely necessary to show notice as required by the statute for the employer to avail himself of the law known as the “Workmen’s Compensation Act.” The Michigan case is to the same effect. In those states notice by posting is recognized by tho statute, but in Texas the statute is silent as, to how the notice shall be given; the only requirement being that it shall be written or printed.

The plea in abatement was properly overruled. Appellee had the right to bring her suit for damages in the district court, and if appellants then desired to defend on the ground that Mrs. Kampmann had brought herself within the terms of the Texas Employers’ Compensation Law, she could do so, and it then became a question of fact as to whether she had complied with the law so as to be a subscriber thereunder. The answer to the question was reached, as it should have been, by the verdict of a jury.

In the Michigan cases cited by appellants it was held that the employe could not take advantage of the want of notice on the part of the employer, because the law peremptorily demanded that he give notice to his employer at the time of his employment that he would retain his common-law rights. No court has held, so far as we have"'ascertained, that where notice is required by law that it is not essentially necessary. We can readily see that there might be actual notice which might serve the purpose of written or printed notice, but to comply with the Texas statute there must be notice.

The Texas law does not recognize the giving of notice by posting, and we are not prepared to hold that mere posting in the place of business would as a matter of law be notice. It might under certain circumstances be sufficient to show that an employé had actual notice, while under other circumstances it might be insufficient to convey notice to the employé. The posting of notices might be sufficient to carry the question of notice to the jury, but could not be held notice by the court.

When courts permit the question of notice to become one of fact, they have given employers the benefit of as -generous a construction of the statute as it will bear, for laws depriving citizens of rights possessed by them should be strictly construed, and a strict construction of the statute might require the placing of a written or printed notice in the hands of each employé in order to deprive him of his common-law right to go into a court and prove and recover his damages.

There is no antagonism or conflict between article 5246yyy, which defines a subscriber' and articles 5246x and 5246xx, which are on the subject of notice to the employé. The one defines a subscriber; the others require certain duties of the employer to obtain the benefits of the law. They are easily reconciled. -It cannot be supposed that the Legislature intended that the employer should, without notice, deprive the employé of his common-law rights, and protect the employer at the expense of the employé. It would be oppressive and unjust to deprive an employé of his rights under the common law, when injured by his employer, without notice.

The ' evidence was conflicting as to whether the notices were posted. At least four witnesses, appellee among the number, swore that they never saw any such notices, and at least three swore positively that they had not been posted either in the laundry where appellee worked or other parts of the hotel. The evidence was ample to justify the jury in finding that notice had not been given to appellee. Even if the posting of notices could be held to comply with the statute, the posting was an issue of fact determined by the jury adversely to appellants, The uncertainty of Stanish, who testified as to posting the notices, as to when the notices were posted, was sufficient to weaken his testimony and justify a finding against it. Mrs. Nelson was not positive as to when she received the notices.

The eighth assignment of error is overruled. The requested charge ignored the question of notice, and instructed a verdict if Mrs. Kampmann was a subscriber under the law. We are of the opinion that, although Mrs. Kampmann was a subscriber under the law, still she might be liable under the common law if she failed to give appeL lee the required notice. She may have become a member of the association by paying a year’s premium in advance and have received the receipt of the association therefor, the association being duly licensed; still she would be liable at common law to appellee unless she had given her notice as required by law. The giving or not of the notice did not affect Mrs. Kampmann’s subscription, but it would not avail her except as to employés notified. She might he able to claim the benefit of the law as to one employé and not as to another. She was still a subscriber, although she could not claim the benefits attached thereto so far as appellee was concerned. That is the plain intention of the law. It was not necessary to submit the question of Mrs. Kampmann being a subscriber to the jury. That could not be disputed.

It is true that it is provided in article 5246i that the employés of a subscriber to the association shall have no- right of action against the employer for damages for personal injuries, but that article must be construed with articles 5246x and 5246xx, which require notice to employés. So far as the employé who has not been notified is concerned, the employer is not a subscriber. The notice creates the relation of subscriber employer and employé, and without the notice the relation cannot exist.

The foregoing is, as before stated, undoubtedly the construction placed upon the statute by the Supreme Court, for it is held:

That every employer becoming a subscriber “is required to give written or printed notice to all employés” ; that, “if they become subscribers and give the required notice to that effect to their employés, they are exempt from'all common-law or statutory liability for personal injury suffered in their service. * * * ”

These quotations show that the Supreme Court is of the opinion that in order to be protected from suits the employer must not only subscribe, but he must give notice of such subscription to the employé. Again, in noting the effect of the act as to employés, it is stated:

“If they enter the service of a subscribing employer, or remain in his service after written or printed notice given by him that he is such an employer,” a stated compensation is paid them.

Again it is held that all right of action is denied employés against employers who are “subscribing employers who comply with the act.” It was unnecessary to mention notice in connection with other matters that are essential to bring employer and employé within the law, if notice was not an absolute condition precedent. The act is not compulsory upon the employé, and he cannot be brought within its scope without a compliance upon the part of the employer with every requirement of the statute. The law was passed largely for the benefit of the em-ployé, but he must be a willing beneficiary.

The purpose of requiring .notice to em-ployés by such statutes is well stated by the West Virginia court in the case of Daniels v. Boldt, herein cited:

“The plain object of the statute in requiring notice is that employés thereafter continuing in the employment may be thereby charged, as provided, with waiver of their common-law rights of action against the employer for injuries sustained due to defendant’s negligence while engaged in such employment.”

The West Virginia statute is no more mandatory in requiring notice than is the Texas statute; the only material difference being that the former provides for posting the notices.

It is well said by the Michigan circuit judge in an opinion adopted-by the Supreme Court of that state in Bernard v. Traction Co., herein cited:

“But it seems to me an essential part of the scheme of the act that the employé have the right of choice. This implies first, actual or constructive notice of the employer’s election and actual submission to the law, and then the right of the employé to choose by giving written notice or abstaining from it. Robbed of this opportunity, he is practically deprived of the right; and, if this is the real meaning of the statute, it is oppressive, an invasion and deprivation of individual right, and hardly to be tolerated or enforced.”

The language applies with all its force to the Texas statute.

The undated, unsigned, but identified written statement made by the witness Wilke was properly admitted for the purpose of impeaching him. He had sworn on the trial that notices were posted in the hotel, and in a written statement that had been read to him before the trial, but which he had not signed, he said no notices had been given or posted in the hotel. The statement was properly admitted in evidence. Cross v. McKinley, 81 Tex. 332, 16 S. W. 1023; Faseler v. Kothman, 70 S. W. 321.

If it was desired that the statement be limited to purposes of impeachment, appellants should have requested the court to so limit it. Shumard v. Johnson, 66 Tex. 70, 17 S. W. 398; Walker v. Brown, 66 Tex. 556, 1 S. W. 797; Railway v. Johnson, 72 Tex. 95, 10 S. W. 325; Railway v. George, 85 Tex. 150, 19 S. W. 1036; Payne v. Snyder, 160 S. W. 1153; Sullivan v. Pant, 51 Tex. Civ. App. 6, 110 S. W. 507; Insurance Co. v. Baker, 10 Tex. Civ. App. 515, 31 S. W. 1072.

The tenth, eleventh, and twelfth assignments are on different subjects and aro improperly grouped. The tenth seeks to present error in a refusal to give a peremptory instruction; the eleventh complains of the court refusing to sustain a “special exception” to the charge; and the twelfth claims error in a refusal to submit a certain issue. The only proposition is that “a defendant is entitled to have presented to the jury for decision by them any group of facts pleaded by it and developed in the trial, which, if true, will in law establish a given defense,” which is not pertinent to either of the assignments. The statement fails to show that a peremptory instruction was requested. The objection to the charge embodied in the eleventh assignment is because of an omission in the charge, and the court properly refused to present an issue as to whether appellee had heard that “the defendant had insurance on their help.” If appellants wanted the issue of actual notice to appellee that appellants had insurance-in the association provided for in the Employers’ Liability Act, they should have asked it. The requested charge did not submit the issue. The testimony did not show that ap-pellee had any notice, actual or constructive, that Mrs. Kampmann was a subscriber under the Employers’ Liability Act.

The evidence did not show that notices were posted, but, on the other hand, the jury was justified in finding that they were not posted. The issue was properly presented by the court. The thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth assignments of error are overruled.

The eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third assignments are on different subjects, but are grouped. There áre four propositions which it is stated are made under all of the assignments. There being four different subjects involved, it is apparent that no proposition can be pertinent to all of them. The assignments are overruled.

The evidence to the effect that notices were placed in the hotel after the accident and were not seen there before was material and pertinent, and was properly admitted. The twenty-fourth assignment of error is overruled. If- there had been any force in the objection to the evidence, it was destroyed by the fact that other testimony, to the effect that notices were posted after, and not before, the accident, was admitted without objection upon the part of appellants. In fact, appellants brought out on the cross-examination of appellee that there were “no notices in the Menger at all at that time I was hurt; they were put up after I was hurt, in Mexican and English.”

The twenty-fifth, twenty-sixth, twenty-seventh, and. twenty-eighth assignments of error are grouped. The twenty-fifth complains of the refusal of this court to present a special issue as to whether certain things which it is assumed that appellee had doné or omitted were the proximate cause of her injury, or certain omissions on the part of appellants were the proximate cause. ' The twenty-sixth presents error in overruling what are denominated “defendants’ special exceptions to the main charge.” The twenty-seventh assignment of error is to the same effect as the twenty-sixth, hoth seeking to raise the question of the failure of the court to submit an issue as to the negligence of ap-pellee being the proximate cause of her injury. The twenty-eighth assignment claims that a judgment could not be rendered on the issues, because the jury found that the defective mangle was the proximate cause of the injury, and yet found that appellee was guilty of contributory negligence. The argument is that, if appellee was guilty of contributory negligence, that must necessarily have been the proximate cause of the injury. The only proposition under the assignments is that, if the jury found that appellee was guilty of contributory ' negligence, it must necessarily have been the proximate cause of the injury.

This proposition destroys the effect of all the assignments except the twenty-eighth; for under the proposition it was unnecessary to submit the question of proximate cause, because the submission of appellee’s negligence was a submission of such negligence being the proximate cause of the injury. Under the facts of this case, if appellee was negligent, such negligence was fiecessarily a proximate cause of her injury. The accident would not have occurred if she had stopped the machine or had kept her hand away from it and she would not have been hurt. It was not only unnecessary to present to the jury the issue as to whether the negligence of ap-pellee was a proximate cause of her injury, but it would have been positive error to have done so. Railway v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper v. Railway, 90 Tex. 627, 40 S. W. 386; Railway v. Lester, 99 Tex. 214, 89 S. W. 752; Coffee v. Railway Co., 104 Tex. 127, 134 S. W. 1174.

If the acts of appellee were necessarily a proximate cause of her injury, that, under the common law, would have precluded a recovery by her, but this case is being tried under a law that has provided that contributory negligence, where a defendant has been negligent, will not preclude a recovery, but the damages will be reduced in the proportion that the plaintiff was negligent. There could be two or more causes concurring that might produce a certain result, and under the application of the rule of comparative negligence, whenever the employers named in the law are guilty of negligence, the employés are authorized to recover no matter how negligent they may have been. Railway v. Galbreath, 185 S. W. 901. It follows that the assignments of error must be overruled.

It is provided in article 5246h, Rev. Stats., that:

“In an action to recover damages for personal injuries sustained by an employé in the course of Ms employment, or for death resulting from personal injury so sustained, it shall not be a defense: 1. That the employé was guilty of contributory negligence.”

And then the rule of comparative negligence is made applicable under such circumstances.

It follows that there is no force in the contention that the verdict was inconsistent in finding that appellee was guilty of negligence and then find a verdict in her favor. Comparative negligence was explained to the jury, and they were instructed to diminish the amount of damages awarded the plaintiff in proportion to the amount of negligence that might be attributed to appellee. This was the proper statement of the rule of comparative negligence which is made applicable to such cases. The court did not err in refusing the special issue asked by appellants on comparative negligence.

This court cannot under the facts hold that a verdict for $10,000 for the loss of a hand evidences any prejudice, and that it is excessive. The ' evidence showed that the left hand of appellee was amputated; that she suffered with tetanus and blood poisoning; that she was in a hospital for three months, suffered terrible pain and agony, and paid out large sums for medicine and medical attention. She was, when injured, about 40 years old, and was earning $75 a month. Her earning power has been greatly decreased, if hot destroyed, she has lost valuable time, and will continue to lose it, and is unfitted for the work to which she was trained. While precedents for amounts that have been sustained are not conclusive, they may be persuasive, and there are Texas precedents for sustaining even larger verdicts for loss of a hand. Railway v. Beauchamp, 54 Tex. Civ. App. 123, 116 S. W. 1163; Freeman v. Grashel, 145 S. W. 695. Writs of error were refused in those cases, but that adds nothing to their force, because questions of excess in verdicts are those -of fact, over which the Supreme Court has no jurisdiction.

The jury in this case found that appellee was guilty of contributory negligence, but did not find what it amounted to, and in order to enable this court to pass intelligently upon what amount should have been deducted from her damages that issue should have been requested by appellant and submitted to the jury. The jury may have deemed appellee’s negligence so slight as to require only a nominal sum to be deducted, or may have thought her negligence sufficient to cause her to lose a large sum. If the jury had found what the negligence of appellee amounted to in dollars, this court would be in a much better position to pass on the question of excess. As it is, we cannot say, under the evidence, that the verdict is excessive.

The judgment is affirmed.
      <§=>]?01' other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    ALLING et al. v. VANDER STUCKEN et al.
    (No. 5823.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 28, 1917.
    Rehearing Denied April 25, 1917.)
    1. Specific Performance <§=>95 —• Title of Vendor — Abstract' of 'Title.
    In order for the owners of property to require specific performance of a contract to purchase, it devolves upon them to show that they have complied with the terms of the contract, including an agreement to furnish a complete abstract showing a merchantable title to the land.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 257-277.]
    2. Vendor and Purchaser <§=>130(8) — Title of Vendor — “Merchantable’ ’ — ‘ ‘Marketable.”
    Where a contract for the purchase of land provided that the vendor furnish a complete abstract showing a “merchantable” title to the land, which, taken to mean a “marketable” title, is a title reasonably free from doubts that would affect the market value of the land, and a title which a reasonably prudent man would accept as satisfactory, where it was shown that there were several mortgages on the land sought to be conveyed, and no releases were shown in the abstract furnished by the vendors, the purchasers were justified in refusing to pay for the land, and the vendor was not entitled to specific performance of the contract, since, whenever the abstract or record shows that an incum-brance exists, specific performance by a purchaser was not enforced (quoting Words and Phrases, Marketable Title).
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Gent. Dig. § 246.]
    3. Vendor and Purchaser <§=>144(2) — Title of Vendor — Time to Perfect.
    In a suit by vendors for specific performance of a contract for the purchase of land, in which the vendor agreed to furnish an abstract of title showing merchantable title to the property and deliver the same within 30 days, releases of mortgages against the property, executed 13 months after the date of the contract, Iwore properly excluded as not complying with Ithe terms of the contract; 13 months being Imore than a reasonable time in which to obtain Isuch releases.
    I [Ed. Note. — For other cases, see Vendor and purchaser, Gent. Dig. §§ 272-274.]
    It. Corporations <§=>480½ — Representation I by Officers — {Release of Mortgage — Va-I UDITY.
    I In view of Rev. St. 1911, art. 1173, providing that any corporation may convey lands by lleed, sealed with a common seal of the corpora-lion and signed by the president or presiding Bfficer of the corporation, etc., a release of mortgages executed by a church by its corresponding secretary is not valid, although the discipline of the church made three corresponding Secretaries executive officers of the board, which Biso had a president and five vice presidents.
    I [Ed. Note. — For other cases, see Corporations, ■lent. Dig. §§ 1874, 1875.]
    5. Evidence <§=>213(1) — Offer to Compromise —Admissibility.
    In a suit by vendors for specific performance of a contract to purchase land, a letter containing an offer of compromise and making no statement of fact was properly rejected.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745, 748-750.]
    6. Specific Performance <§=>117 — Pleading and Proof — Waiver of Defects in Title.
    In a suit by vendors for specific performance of a contract to purchase land, in which the petition alleged full compliance with every provision of the contract, and the defense was that the vendors had not complied with a provision of the contract requiring him to furnish an abstract showing merchantable title, if the plaintiff desired to depend upon a waiver of the defects in title, it should have pleaded such waiver in the alternative and proved it.
    [Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 377-381.]
    7. Vendor and Purchaser <§=>143 — Title of Vendor — Estoppel.
    A receipt signed by some of the^urehasers of land to the vendors for commissions for selling the land does not estop the purchasers to deny that the vendors’ title was imperfect.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 267-270, 311.]
    8. Specific Performance <§=>117 — Pleading and Proof — Objection to Title — Estop-pel.
    In suit by vendors for specific performance of contract to purchase land, if a receipt signed by some of the purchasers to the vendors for commissions for selling the land would estop such purchasers to deny that the title of the vendors was imperfect, it could be of no avail to the vendors, if not pleaded.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 377-381.]
    9. Appeal and Error <§=>499(4) — Review-Bill of Exceptions.
    A bill of exceptions, which does not contain the objections urged, is not sufficient to sustain an assignment of error to admission of evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 2298.]
    10. Evidence <§=>183(15) — Documentary Evidence — Admissib ility.
    Under Rev. St. 1911, art. 3700, which allows certified copies of lost instrument to be used in evidence, an action by vendors to enforce specific performance of a contract to purchase land, the record of a deed was properly rejected, where there was no affidavit of loss, and no certified copy or notice given to the opposite party, since strict compliance with the statute is required in order to use a copy of a deed.
    [Ed. Note. — For other cases, see Evidence, 'Gent. Dig. §§ 635-637.]
    11. Evidence <§=>183(15) — Documentary Evidence-Admissibility.
    The necessity of an affidavit of loss might possibly be dispensed with, if the evidence of witnesses offered who testify to diligent search and inquiry made of the proper person and in the proper place.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 635-637.]
    12. Exceptions, Bill of <§=>26 — Contents.
    A bill of exceptions must stand or fall by its recitals, and reference to the statement of facts is not permissible.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Gent. Dig. § 33.]

      13. Evidence @=3174(3) — Admissibility — Record of Ancient Deed.
    The fact that a deed is an ancient one will not justify the admission of the record book, showing the record of the deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 5G4.]
    14. Appeal and Error <s=>1 051(1) — Review-Harmless Error — Evidence.
    In a suit by the trustees' of a church for a speciiic performance of a contract to purchase church property, where it was shown that the trustees had authority to sell the property, the admission of a written consent by a third person to the sale was not error, and could not have made the verdict on that point any more effective.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    15. Vendor and Purchaser @=>140 — Contract-Abstract of Title.
    An abstract of title showing unreleased mortgages, a pending suit for taxes, and mechanics’ liens which had not been released, and which failed to show any facts upon which to base a title by limitations, did not comply with a provision of a contract for the purchase of land requiring a complete abstract brought down to date showing merchantable title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by E. B. Ailing and others, trustees of the Trinity Methodist Church, against Alfred' Vander Stucken and others. Judgment for defendants, and- plaintiffs appeal.
    Affirmed.
    C. A. Keller and W. S. Anthony, both of San Antonio, for appellants.' W. C. Linden and Lewright & Douglas, all of San Antonio, for appellees.
   FLY, C. J.

Appellants herein, as trustees of Trinity Methodist Church, instituted suit against Alfred Vander Stucken for specific performance of a certain agreement in writing on Ms part to purchase certain property belonging to appellants in the city of San Antonio, consisting of a lot and the church and parsonage located thereon. Vander Stucken filed a general demurrer and general denial, and afterwards C. L. Blandin intervened, alleging that he was jointly interested with Vander Stucken in the contract. Special issues were submitted to a jury, and upon the answers judgment was rendered for appellees.

The contract was appended to and made a part of the petition, one clause of which provided that appellants should “furnish a complete abstract brought down to date showing merchantable title to the above-described property, and will deliver the same within 30 days from date.” It was also provided that appellees should point out, in writing, any defects in the title within 60 days from date, a reasonable time being allowed in which to cure the same, but if such defects could nat be cured the contract should be canceled. Having-alleged the contract and the suit being based thereon, in order to require specific performance, it devolved upon appellants to show that it had complied with the terms of the contract, among the number being the agreement to furnish a complete abstract showing a merchantable title to the land.

The word “Merchantable” is not accurately used in connection with a title to land, it being used more correctly in connection with commodities or materials, as merchantable flour, merchantable hay, or merchantable logs or wood. The word “marketable” would not only include all commodities and materials mentioned, but is also applied to a title to land. We shall, however treat the word “merchantable” as it is treated by the parties, as being synonymous with “marketable.” A title that is open to reasonable doubt, such as would affect the market value, is not a marketable title. Words and Phrases, pp. 4388, 4389; Adkins v. Gillespie, 1S9 S. W. 275. By a marketable title is meant one reasonably free from doubts that would affect the market value of the land; a title which a reasonably prudent man, in the light of all the facts and their legal effect, would accept as being satisfactory.

Incumbrances upon premises concerning which a purchase contract has been made, which do not appear by the record to have been satisfied will render the title doubtful and consequently unmarketable, even though the vendor be able to show satisfaction ali-unde the record. They are a cloud upon the title which should be removed before the purchaser is called upon to complete the contract. Although there may be an extreme improbability that a mortgage lien will ever be enforced, still the title will be subject to objection. Whenever the abstract or record shows that an incumbrance exists, specific performance by the purchaser will not be enforced on the ground that it is doubtful whether the incumbrance will ever be foreclosed. Maupin, Marketable Title, §§ 306, 307; Brooklyn Park Co. v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70. The rule as to actions of specific performance is thus stated in Pomeroy on Contracts, § 198:

“If there arises either on the face of the pleadings, or from the examination made during- the progress of the suit, a reasonable doubt concerning the title to be made and given by the vendor, the court, without deciding the question between the parties before it — which decision might not be binding upon other persons, and, therefore, might not prevent the same question from being subsequently raised by other claimants to the land — regards the existence of this doubt as a sufficient reason for not compelling the purchaser to carry out the agreement and accept a conveyance.”

In Waterman on Specific Performance, § 412, the following pertinent and correct proposition of law is quoted from Dobbs v. Norcross, 24 N. J. Eq. 327:

“Every purchaser of land has a right to demand a title ⅜ ⅜ ⅜ which shall protect him from anxiety, lest annoying, if not successful, suits be brought against him, and probably take from him or his representatives, land upon which money was invested. He should have a title which should enable him, not only to hold the land, but to hold it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.”

For a thorough decision of this question we refer to the opinion of this court, rendered through Associate Justice Neill, in the case of Greer v. Stock Yards, 43 Tex. Civ. App. 370, 96 S. W. 79. See, also, Estell v. Cole, 62 Tex. 695.

The facts of this case show that there were several mortgages on the land sought to he conveyed, and no releases were shown in the abstract. These defects were sufficient to justify a refusal on the part of appellees to pay for the land.

The first assignment of error complains of the refusal of the court to admit in evidence a purported release of the mortgages against the property. The contract of sale of the land was entered into on April. 17, 1914, in which it was agreed that the appellants would furnish appellee Yander Stucken an abstract of title “showing merchantable title” to the property, and deliver the same in 30 days. The abstract furnished did not contain the release, and in fact it was not executed until May 15, 1915, about 13 months after the contract was made, and over a year after- the attorney for Vander Stucken had advised him that the unreleased mortgages caused a defect in the title, and long after he had refused to proceed further with the purchase. A release properly executed at the time the one in question was signed would not have complied with the terms of the contract. A reasonable time was allowed in which appellants could cure any defects pointed out by appellees. Thirteen months were not a reasonable time in which to obtain the releases of the mortgages.

The release in question purports to have been executed by “The Board of Home Missions and Church Extension of the Methodist Episcopal Church, by Charles M. Boswell, Corresponding Secretary,” and it is recited in the instrument that the board which executed it was “formerly Board of Church Extensions,” whereas the mortgages were all in favor of the “B'oard of Church Extension of the Methodist Episcopal Church.” • How the' mortgages were transferred from one board to another was not shown, nor was it attempted to be shown that a corresponding secretary had the power and authority to execute the release for the board. It is the claim of appellants that the release “was executed in full accordance with the discipline of the Methodist Episcopal Church,” but neither the court below knew, nor can this court know, that assertion to be well founded, in the absence of any proof thereof. A certain provision is quoted from the “Book of Discipline,” making corresponding secretaries “executive officers of the board, and co-ordinate in authority;” but this court cannot recognize such provision, in the absence of proof of its existence, even if it tended in the least to show authority in one of the secretaries named to execute such an instrument as a release of mortgages. While being the law of the Methodist Episcopal Church, it is not a statute, and of course cannot be judicially known to. this court. There is certainly no authority found in article 1173, Rev. Stats., for a corresponding secretary to execute a release. The corresponding secretary is not the “president or presiding member or trustee” named in the statute, even if the discipline did make the three corresponding secretaries executive officers of the board, for a president and five vice presidents were provided for, and it cannot be supposed -that the secretaries were to displace those officers, even if the statute permitted it. The ease of Ballard v. Carmichael, S3 Tex. 355,-18 S. W. 734, which held, among other things, that a deed could be executed by the vice president of a corporation, has not the remotest applicability to a release executed by a corresponding secretary. The discipline .of the Methodist Church, in the face of the statute, could not, if it desired, authorize a corresponding secretary to execute a -deed. The release was properly excluded.

The letter written by Vander Stucken was an offer of compromise and was properly rejected. The whole letter hinges upon the offer of compromise, and no -statement of a fact is made, which is not so bound up with the offer as to render it impossible to separate them. As stated by this court in Sanford v. Finnigan, 169 S. W. 624:

. “It is the rule that, when any fact stated in an offer of compromise can be separated from the offer and still convey the idea in the writer’s mind, it is admissible in evidence.”

The whole object in writing the letter offered in evidence in this case was a compromise, and no fact is stated that is disconnected therefrom.

It was alleged in the petition that appellants had fully complied with every provision of the contract, one of which was to furnish an abstract showing a marketable title. Appellants failed to show a compliance with the contract in that regard, its abstract showing, not only unreleased mortgages on the land, but a pending suit for taxes and penalties, and, if they desired to depend upon a waiver of the defects in title, they should, in the alternative, have pleaded such waiver. This was not done. The letter could only have been intended to show a waiver because Yander Stucken did not testify, and it was not admissible for purposes of impeachment. If it were intended to show fraud on the part of appellees, •neither-had fraud been alleged. It is well settled that, if a party relies upon waiver to destroy a defense, he must allege and prove it.

Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. 72; Texas Produce Co. v. Turner (Tex. Sup.) 27 S. W. 583; Howard v. Metcalf (Tex. Civ. App.) 26 S. W. 449; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 97.9.

We cannot see what bearing the receipt signed by Vander Stucken and two others to appellants for commissions for selling the land had upon the issues in this case. Appellants state that it was an admission that appellants had the right to execute the contract. There was no issue remaining after verdict as to the authority of the trustees to execute the contract. The jury found that they were so authorized. The receipt would not have shown that ap-pellees were estopped to deny that the title was imperfect; but, if it had estopped him, it could not be of avail to appellants because riot pleaded. The bill of exceptions is not sufficient to sustain the assignment, because the objections urged to the admission of the evidence are not mentioned therein. Green v. White, 18 Tex. Civ. App. 509, 45 S. W. 389; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Lindsey v. State, 27 Tex. Civ. App. 540, 66 S. W. 332; Johnson v. Crawl, 5)5 Tex. 571; Stratton v. Riley, 154 S. W. 606.

The court properly rejected the record of a deed purporting to have been made by Edwin H. Terrell and Mary M. Terrell to George W. Brackenridge and others. No effort was made by appellants to comply with article 3700, which allows certified copies of a lost instrument to be used as evidence. There was no affidavit of loss; no certified copy was filed among the papers or notice given to the opposite party. Strict compliance with the statute is required in order to use a copy of a deed. Pennington v. Schwartz, 70 Tex. 212, 8 S. W. 32; Henry v. Bounds (Tex. Civ. App.) 46 S. W. 120. No certified copy of the deed was offered, and the statute makes no provision for the admission of the record itself in evidence.

The necessity of an. affidavit of loss might possibly be dispensed with, if the evidence of a witness is offered who-testifies to diligent search and inquiry made of the proper person and in the proper places. Hill v. Taylor, 77 Tex. 295, 14 S. W. 366; Trimble v. Edwards, 84 Tex. 497, 19 S. W. 772. The bill of exceptions fails to show that this was done. Reference to the statement of facts is not permissible, but the bill of exceptions must stand or fall by its recitals. It fails to show that a single witness was sworn in regard to the loss of the deed. It is, of course, an untenable contention that, the instrument being an ancient one, the record book should have been admitted. Age could not supply the original or a certified copy.

The fifth assignment is overruled. The jury found that the trustees of Trinity Church had authority to sell the property, and the admission of the written consent of James W. Hervey to a sale would not have made the verdict on that point any stronger or more effective. The bill of exceptions fails to show the grounds of objection to the instrument.

Eor the same reasons hereinbefore given, under the fourth assignment of error, the sixth assignment is overruled.

The seventh and eighth assignments of error are overruled. Not only did the abstract of title show unreleased mortgages on the property, but showed that there was a suit for taxes pending and that the mechanic’s lien of Martin & Nason had not been properly released, and the abstract failed to connect the title with the sovereignty of the soil. The abstract failed to show any facts upon which to base a title by limitations. Appellee could not know what appellants might be able to show as to title by limitation. The abstract did not show, as appellants promised it should, “a complete abstract brought down to date showing merchantable title.” Bowles v. Umberson (Tex. Civ. App.) 101 S. W. S42; Nicholson v. Lieber (Tex. Civ. App.) 153 S. W. 641.

The judgment is affirmed.
      <&3»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ttex>For other oases see same topic and KEY-NDMBER in all Key-Numbered Digests and Indexes


author: DAVIS, J.

text:
    PINCHBACK et al. v. SWASEY et al.
    (No. 170.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 5, 1917.
    Rehearing Denied April 25, 1917.)
    1. Trespass to Try Title <§=>41(1) — '“Naked Trespasser’ ’ — Evidence.
    In toespass to try title to land upon which defendant had planted rice crop, defendant held, under evidence, a “naked trespasser,” without title to crop or right to have the same on payment of rent.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62.]
    2. Pleading <§=>236(4) — Amendment of Pleadings — Discretion.
    Refusal to allow defendant to file an amendment pleading a lease or rental contract, after all parties have rested, is not an abuse of discretion, especially where testimony clearly shows that there was no agreement for such lease or contract.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 601.]
    3. Trespass to Try Title <§=>52 — Recovery on Replevy Bond — Removal oe Crop — Measure of Damages.
    Where owner brings trespass to try title against a naked trespasser having a crop growing on land, and who during pendency of suit replevies and sells crop, the owner may recover on replevy bond the value of the crop.
    [Ed. Note. — For other cases,- see Trespass to Try Title, Cent. Dig. §§ 83, 84.]
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by C. J. Swasey and others against R. T. Pinehback and others, in which plaintiffs filed an amended petition, joining as defendants’ sureties on a replevy l)ond. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    P. A. Dowlen and E. E. Easterling, botli of Beaumont, for appellants. Thos. J. Baten, Henry G. Bussell, and Silas M. Johnson, all of Beaumont, for appellees.
   DAVIS, J.

This is a suit brought by ap-pellees on September 9, 1915, and is a suit in trespass to try title to -recover 273 acres of land in the Josiah Dyches league in Jefferson county, Tex. The original petition sought relief against the defendant B. T. Pinchback, alone. At the time of the institution of the suit, there was a rice crop growing upon 54 acres of the land sued for. After the suit had been brought, the appellees, plaintiffs below, on the 14th day of September, 1915, sued out a writ of sequestration, which was executed by the sheriff of Jefferson county on September 15, 1915, by taking into his possession the property sued for; and on the 16th day of September, 1915, the defendant B. T. Pinchback, as principal, placed his replevy bond in the hands of the sheriff, with W. H. Caswell and E. J. Suit as sureties thereon, which’ replevy bond was approved by the sheriff, and the defendant B. T. Pinchback thereupon was placed in possession of and took possession of the entire property sued for. Thereafter plaintiffs filed their second amended original petition, and, after making the ordinary allegations in actions of trespass to try title, set out the facts with regard to the sequestration of the property sued for, together with the replevy bond, under which defendant B. T. Pinchback took possession of the property, and sued to recover on the replevy bond the damage done to the property sued for by reason of the removal of the rice crop standing and growing thereon at the time of the levy of sequestration and the replevy of same, and also to recover the rental value of the land replevied. The defendants B. T. Pinchback and W. H. Caswell originally answered, with pleas of not guilty. Thereafter the defendant Pinch-back filed a supplemental answer, in which he disclaimed all interest in the land sued for, except the land described in his appliea- ' tion fór a survey to George W. White, county surveyor of Jefferson county; the application being attached to his- answer and described as Exhibit A, and which application was for a survey of unsurveyed land, appropriated to the public school fund under chapter 11, Act Feb. 23, 1900. The defendant W. H. Caswell amended, and disclaimed as to all the land sued for, but specially denied the allegations of plaintiffs in paragraphs 5 and 6 of their petition. Upon these pleadings the case was tried, and resulted in the trial court’s instructing a verdct in favor of plaintiffs for the land sued for, and the sum of $2,360.60 as injury to the land, because of the removal of the rice crop, and the further sum of $108 as rent on the land replevied from September 16, 1915, the date of the replevy bond, to the 25th day of May, 1916, the date of trial; and from the judgment rendered in said court, defendants have appealed to this court

On the trial, appellees, plaintiffs below, offered in evidence a number of deeds and other proof showing a consecutive chain of title from the Government down to themselves, and upon the trial it was agreed that there was no controversy as to the plaintiffs’ title, that the 273 acres sued for was entirely within the bounds of the Josiah Dyches league, that the rice crop planted and harvested by the appellant Pinchback was on a part of the 273 acres sued for, and that plaintiffs’ title was on record in Jefferson county, where the land is located, long prior to 1912; also appellants, during the trial, in open court disclaimed any interest in the land, except that land on which the rice crop was planted, and claimed this as vacant land, and also claimed to have gone upon this land in good faith, in that the defendant Pinchback, believing the land to be unsurvey-ed land, appropriated to the public school fund under chapter 11, Act Feb. 23, 1900, filed his application for a survey of same. The appellant Pinchback, on thp question of entry in good faith, bases his belief that the land he made application to have surveyed and desired to purchase from the state was unsurveyed land, appropriated to the public school fund under chapter 11, Act Feb. 23, 1900, and was vacant land, was because the county surveyor, White, had informed him there was some vacant land in there, because there was more land in the Josiah Dyches league than it called for. The facts show, and it is admitted, that Pinchback knew that prior to the time he went upon the land one Tyndall had rented this land from Swasey, one of the plaintiffs in this suit. He made no inquiry as to whether or not the land was claimed or owned by any one, and made no examination of the records of the county to see whether there was any one claiming to own the land, and made no investigation whatever, but made his application for a survey of vacant land, because he had been informed and believed the land was vacant land, because there was an excess in the Dyches league.

The facts conclusively show that the appellant B. T. Pinchback was a naked trespasser ; that he went upon, the land in controversy without any right or authority whatever, and planted on a portion thereof a rice crop, which was standing and growing upon the land at the time of the institution of this suit, the levy under the writ of sequestration, and the replevy thereof by appellant Pinchback of the land in controversy; that since the replevy of the property sued for, and before final judgment was rendered in the case, the appellant Pinch-hack cut and removed therefrom the rice crop, and sold same to the appellant W. II. Caswell. It appears that the appellant R. T. Pinchbaek, at the close of the trial of this case, and after all parties had rested, asked leave of the court to file a trial amendment, in which he pleaded a lease or rental contract between himself and S. M. Johnson, agent of appellees, which leave was refused by the court, and which action of the court is complained of. We do not think the trial court abused its discretion in its refusal to allow appellants to file their trial amendment under these circumstances, and for the further reason that the testimony adduced upon the trial and testified to by the appellant Pinchbaek clearly shows there was no contract or agreement whatever as to the lease or rental of the land by him. The evidence does show that Johnson was willing to rent the land to Pinchbaek for $3 per acre, but it conclusively shows that no such contract, either implied or expressed, was ever entered into.

The only question presented to us for review on this appeal is: Can the owner of the fee, finding a naked trespasser upon his land, who had planted and was growing a crop thereon, and the' owner of the fee files suit against the trespasser to- recover the land, and sues out and has levied thereon a writ of sequestration, and his property is replevied by the trespasser, and before the trial of the case and the rendition of a judgment the crop is removed from the land and sold by the trespasser, recover on the re-plevy bond the value of the crop as injury to the land because of the removal of the crop therefrom? This is a question on.which the courts of some of the states do not agree, some holding that, if the crop is removed before judgment is rendered, recovery can only be had for the rental value of the land. ' It appears to us that, if this should be announced as the rule in this state, any trespasser desiring to cultivate the land of another, without any lawful authority, and even against the wishes of the owner of the land, could move upon the same and raise a crop, in defiance of the owner’s wishes, and in the courts of the country only be required to pay the rental value of the land, and necessarily force the owner to rent his land, whether he desired to do so or not. We have not been able to find a decision in our state based upon the facts as represented in this case; but we believe the rule should be that where a naked trespasser, who is sued and the land sued for sequestrated by. the owner, the crop growing thereon at the time of the levy of the writ of sequestration being a part of the realty, it not having been severed from the soil, the value of the crop removed therefrom, either before or after judgment, may be recovered by the holder of the fee on the ground of injury to the land occasioned by. its removal. Love v. Perry,. 111 S. W. 203; Duncan v. Jouett, 111 S. W. 981; Warner v. Sohn, 86 Neb. 519, 125 N. W. 1072, 21 Ann. Cas. p. 427; Crotty v. Collins, 13 Ill. 567; Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374; Myer v. Roberts, 50 Or. 81, 89 Pac. 1051, 12 L. R. A. (N. S.) 195, 126 Am. St. Rep. 733, 15 Ann. Cas. p. 1031; McGee Irrigation Ditch Co. v. Hudson (Sup.) 22 S. W. 907; Bagley v. Columbus Southern Ry. Co., 98 Ga. 626, 25 S. E. 638, 34 L. R. A. 286, 58 Am. St. Rep. 325.

There being no errors pointed out, which will justify a reversal of this case, we think the same should be affirmed; and it is so ordered.

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


author: HIGHTOWER, C. J.'

text:
    JEFFERSON COUNTY TRACTION CO. v. WILHELM et ux.
    (No. 143.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 17, 1917.
    On Motion for Rehearing, April 25, 1917.)
    1. Eminent Domain <©=3262(4) — Compensation — Excessive Verdict.
    A verdict in condemnation proceedings on appeal from the award of the commissioners, allowing as damages to the land not taken an amount which was within the damages testified to by defendants’ disinterested and qualified witnesses, cannot be set aside as so excessive that it indicates prejudice, though it was nine times the amount of the award made by the commissioners.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 685.]
    2. Eminent Domain <©=3239 — Compensation —Damages—Negligent Construction.
    Where, pending appeal from the award of commissioners in condemnation proceedings, the railroad company had deposited in court double the amount of the award, and had taken possession as authorized by Vernon’s Sayles’ Ann. Civ. .St. 1914, art. 6530, and had thereafter constructed its road across the tract condemned, damages to the land occasioned by the improper or negligent construction of the road cannot be awarded by the jury on the trial de novo on appeal, but the owner would have recourse for such damages in a proper proceeding instituted by Mm for that purpose, and therefore no inquiry as to the manner of construction which would show negligence is proper.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 615-620, 675, 676, 678, 680.]
    3. Eminent Domain <©=3239 — Compensation —Damages—Evidence—Construction.
    In a trial of condemnation proceedings, where the railroad had been constructed pending appeal from the commissioners’ award, the condition arising from construction of the road without negligence may be given in evidence.
    - [Ed. Note. — For other cases, see Eminent Domain, Cent: Dig. §§ 615-620, 675, 676, 678, 680.]
    4. Eminent Domain <©=*201 — Compensation
    — Damages — Evidence — Negligent Construction-Drainage.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6495, forbidding a railroad to construct a roadbed without constructing the necessary culverts or sluices for the necessary drainage, evidence that the railroad as constructed interfered with the drainage of the land not taken shows negligent construction, and is inadmissible in condemnation proceedings.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 540½.]
    5. Eminent Domain <§=>201 — Compensation — Evidence — Negligent Construction —Disavowal.
    The fact that defendant in condemnation proceedings specifically stated that he did not claim damages for negligent construction, and contended that the evidence of construction offered did not show negligence, does not render the evidence admissible, where it would, in law, establish negligent construction.
    [Ed. Note. — For other eases,, see Eminent Domain, Cent. Dig. § 540½,]
    6. Eminent Domain <§=>202(1) — Compensa- . tion — Damages—Time op Death.
    In determining the value of land actually taken as well as damag'es to the remainder, the evidence should be confined to the market value of the land as it existed, when possession was taken by plaintiff, which was the date of the appropriation thereof in contemplation of law.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 541.]
    7. Eminent Domain <§=>200 — Compensation — Damages — Negligent Construction —Presumptions.
    At the trial of condemnation proceedings after plaintiff had taken possession and constructed its road, it will be presumed that the road was properly and skillfully constructed, and that whatever was done was necessary and proper, and the court could so expressly instruct the jury.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 540.]
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Condemnation proceedings by the Jefferson County Traction Company against Lew Wilhelm and wife. From a judgment awarding as damages the amount fixed by the jury on appeal from the commissioners, the petitioner appeals.
    Reversed and remanded, and motion for rehearing overruled.
    R. E. Hardwicke, and Townes, Foster & Hardwicke, all of Beaumont, for appellant. Chas. D. Smith, of Beaumont, for appellees.
   HIGHTOWER, C. J.'

This suit was filed in the county court of Jefferson county, Tex., on July 5, 1913, by appellant, Jefferson County Traction Company, against appellees, Lew Wilhelm and wife, Cora M. Wilhelm, for the purpose of condemning a right of way, consisting of .64 of an acre of land across a 10-acre tract of land owned by appellees. Upon the filing of such petition, the county judge, in compliance with the statute .in such matters, appointed B. R. Nor-vell, Hal G. Land, and E. P. Bennett, as commissioners to hear testimony and assess damages that might be sustained by appellees in consequence of the taking and condemnation of the right of way sought. The commissioners so appointed duly notified appel-lees of the time, and place of the hearing to be had before them, and appellees appeared in person at such time and place, and said commissioners, on July 13, 1913, after hearing and considering the testimony before them, assessed the damages that they considered would be sustained by appellees by reason of the appropriation of such right of way in the sum of $500. When this award was made by the commissioners, appellant’s road had not been constructed across ap-pellees’ property. In due time, appellees filed their objections to the award of said commissioners and the case was duly appealed to the county court of Jefferson county, to be tried de novo, as provided by statute.

The award of the commissioners having been contested, appellant, in order that it might, pending the appeal, enter upon the property so condemned,’ and construct .its road, filed with the county clerk, as provided by .law proper bond, and also deposited with said clerk double the amount; of the award made by said commissioners, such 'deposit being made and bond filed on August 2, 1913. Thereafter, about December following, appellant constructed its railroad across the property of appellees, and ever since has operated the same as constructed.

It seems that this cause in the county court was continued from term to term, and was never finally tried until the December term of said court, 1915, and on December 6, 1915, the appellees filed their first amended pleading in the county court, in which they renewed their objections to the amount of the award made by said commissioners, alleging that it was inadequate and unjust, and that as a matter of fact, the appropriation of the-right of way and construction of appellant’s road in the manner that it was constructed, damaged their property to the extent of $7,960, it being alleged that the quantity of land actually appropriated for right of way purposes by appellant was worth, at the time of its appropriation, $960, and that the damage done to the remainder of appellees’ land, not actually appropriated, by reason of the construction of appellant’s road, as it was constructed, amounted to-$7,000. The 10-acre tract of land crossed by appellant’s railroad was alleged by appellees to be 3S3.8 feet wide and 1,305 feet long, and it was further alleged by appellees that at the time of such condemnation and appropriation of said right of way across said land by appellant, the same was used and resided upon by appellees as their homestead; that said tract of land at that time was high, level, naturally well drained, and well and favorably situated in the town’or community known as South Park; that before and at the time appellant constructed its railroad across said tract of land, the lands throughout said community of South Park, including appellees’ tract, had a high, fixed, and known market value; that the said town or community of South Park is situated between the city of Beaumont to the north, and.the oil field known as Spindletop to the south, and in fact, embraces the said oil fields on the south, and adjoins the city of Beaumont on the north; that said South Park community was at the time alleged one of the richest, if not the richest, independent school districts in the state of Texas, and that it maintains and has for many years maintained one of the finest and highest class schools to be found anywhere; and that its said school and its large interests and industries, and general progressiveness give and gave to all lands situated within its boundaries, and especially lands situated as favorably and as close to said school and main thoroughfares and residence sections, as appellees’ said tract 'was situated, a very high market value, etc., and further it was alleged:

“The said tract of land before and at the time the plaintiff [meaning appellant] constructed its road upon and across the same, had a market value of $1,500 per acre, or a value of $15,000 for the entire tract; that the plaintiff constructed its roadbed, ditches, embankments, and fences in a diagonal direction across said tract of land, that is to say the right of way of the plaintiff [appellant] enters the said tract from the south 169 feet from • the southeast corner of same, and runs diagonally through the tract to its opposite side at about the center of the north line, thereby leaving upon one side of said roadbed and track and ditches and embankments and fences a triangular or three-cornered piece of ground, and on the other side thereof a similarly shaped piece of ground, the right of way through said tract actually appropriated being 55 feet wide; that the said two small pieces of land separated by the said roach bed and track and ditches and embankments and fences consist now principally of sharp corners and angles, and are unsightly, inconvenient, and practically ruined for any purpose; that nowhere did the plaintiff [appellant] provide any means to go across said roadbed and track and ditches and embankments and fences from one of said triangular or many cornered pieces of ground to the other, and it is necessary, in order to go from one to the other, to seek crossings upon the property of others, or to go clear around by circuitous ways to public crossings and back again; that the construction of said roadbed, track, ditches, and embankments and fences seriously and injuriously interferes with the natural drainage of said land; that said railroad, besides the damage now resulted to the wholo property by the construction of same, almost entirely destroyed the market value of some of said land, becahse 'there being no crossing over said road, and it being bounded on each side by property which docs not belong to these defendants, the same was left with no outlet whatever, that is to say, no way or ways of ingress and egress to and from the same, and is entirely shut in.”

We have quoted from appellees’ petition in ⅛⅜ county court thus far, in ordei; to a clearer understanding of the questions hereinafter discussed. There were further allegations in the petition of appellees, but it is not necessary to here quote them, but it will suffice to say that, taken as a whole, all the contentions above set out and complained of in the portion quoted had the effect, so appellees claim, to greatly reduce the market value of that portion of appellees’ tract wíiieh was not actually appropriated by appellant for railroad purposes.

The verdict of the jury on the trial de novo in the county court was in favor of appellees for the sum of $4,640, as against the award of the commissioners theretofore made in the sum of $500, as before stated. Thus it will be seen that the disparity between the amount as awarded to appellees by the commissioners and that awarded by the verdict of the jury was very great.

Appellant’s first assignment of error is as follows:

“The verdict of the jury is excessive, and shows that same was prompted by prejudice against the plaintiff [appellant], hi that the jury allowed to defendants [appellees] not less than $3,680 as damages to the remainder of their land by reason of the appropriation by condemnation of a portion, and said -sum is wholly unreasonable and unjust and not supported by the evidence, and clearly shows that the jury was improperly influenced and prejudiced in rendering its verdict.”

The proposition under this assignment is:'

“The verdict of the jury and judgment based thereon should be set aside whenever it is shown that it is excessive, unreasonable in amount, or was prompted by prejudice against the party against which it was rendered.”

Under this proposition, there is a statement, of course, showing the evidence introduced by both sides bearing on this point, and this statement is very long, and consists of nearly all the testimony that was introduced, pro and con, on this point, and we could not attempt, without prolonging this opinion to an unreasonable length, to set out all of this evidence. Suffice it to say that approximately a half dozen witnesses testified upon this point for appellant, and a like number for the appellees, most of appellant’s witnesses placing the value of appellees’ said tract of land at figures ranging from $350 to $500 per acre, at the time of the condemnation proceedings had below, while appellees’ witnesses testified that the market value of the 10-acre tract ranged between $1,000 and $1,500 an acre at the time the condemnation proceedings were had below, and before the construction of appellant’s railroad across the same. The witnesses for both sides were shown to be fairly well qualified to give their opinions touching the market value of this property, as they, did, and most of them on both sides were quite familiar with the property; and, if we leave out of question the testimony of the appellees themselves, being interested parties, and consider only the testimony of other .witnesses produced by them, and who seem, so far as this record shows, to be disinterested parties, we still are confronted, regarding this assignment, with the proposition that the testimony as to the value of appellees’ property prior to the construction of appellant’s railroad and the damage thereto by reason of its construction is pretty evenly divided, and we cannot say that it is manifest that the verdict of the jury was the result of prejudice, or other improper motive, and under the well-established rule in this state, we do not feel authorized to say that \he verdict of. the jury was excessive, as complained by appellant, though, to say the least, the verdict seems to us to be very large. But, in view of the fact that we have decided this ease must be reversed on another assignment made by appellant, we will not discuss the question of excessive verdict further, and it may be that a different result will be obtained upon another trial.

This case .was tried in the court below by 'the parties hereto upon theories diametrically opposed to each other, as to the law that governed this character of proceeding. The appellant had the theory that appellees were only entitled to recover the market value of the strip of land that was actually appropriated for right of way purposes at the time of the appropriation thereof, and in addition thereto, such damages, if any, as resulted to the remainder of the tract, by reason of the appropriation of the strip for right of way purposes, and the use to be made thereof by appellant in the operation of its road, and that this value of the part actually taken must have been arrived at as it existed on August 2, 1913, on which day appellant complied with the award of said commissioners by filing its bond, and depositing double the amount of the award, as required by statute; that the' right on the part of appellant to enter said property accrued on that-day, and that no subsequent use of the property by appellant, and that no actual construction or works placed thereon, should have been taken into, consideration by the jury in the trial of the case in the county court, some 16 or IS months later, and that in arriving at the damages, if any, caused to the remainder of said tract, not actually appropriated by appellant, the value of same must have been inquired about as it existed on the 2d day of August, 1913, and that no works and no part of the actual construction of appellant’s, railroad should have been looked to or testified about before the jury as the same existed at the time of the trial in the county court. .On the other hand, it seems to be the contention of appellees that they were entitled to recover the market value of the strip actually appropriated for right of way purposes, as such value existed on August 2,1913, and, in addition thereto, that they were entitled to recover damages to the remainder of the tract by reason of the appropriation by appellant of the right of way strip as the value •of such remainder existed at the time appellant . 'constructed its roadbed across said tract, some 16 months later.

After full and careful consideration of the many authorities cited by counsel in their briefs for both sides, we have reached the conclusion that appellant’s theory, as above stated, was the correct one, in so far as some of the items of damage pleaded and proved by appellees was concerned. It seems to be now settled, beyond controversy, by the decisions of the appellate courts of this state, that in a condemnation proceeding, as this was, damages to land not actually taken, and which may result on account of improper and negligent construction of its works by the condemnor, cannot be recovered by the owner of land, or even considered by the court or jury for any purpose, but the owner of the land so damaged would have his recourse in a court or tribunal having jurisdiction of the amount claimed in a proper proceeding instituted for that purpose. Sayles’ Civil Statutes, art. 6530; G., C. & S. F. Ity..Co. v. Lyons, 2 Willson, Civ. Cas. Ct. App.. § 139; T. & P. Ry. Co. v. Matthews, 60 Tex. 215; Railway Co. v. Cave, 80 Tex. 137, 15 S. W. 786; Railway Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040; Fordyce v. Wolfe, 82 Tex. 239, 18 S. W. 145; Allen v. Railway Co., 25 S. W. 826; Railway Co. v. Hunnecutt, 18 Tex. Civ. App. 310, 44 S. W. 535; Railway Co. v. Elliott, 148 S. W. 1125; Routh v. Traction Co., 148 S. W. 1152; St. Louis R. Co. v. Barnes, 162 S. W. 373; Railway Co. v. Pape, 62 Tex. 313; Railway Co. v. Moore, 51 Tex. Civ. App. 205, 111 S. W. 758; Gregory v. Railway Co., 21 Tex. Civ; App. 598, 54 S. W. 617.

While it is true that none of the above-cited eases go so far as to hold that it would be improper to admit evidence showing any part of the actual construction by the con-demnor, subsequent to a lawful entry on the property condemned, still all of them, as well as many other authorities of this state, clearly hold that in a condemnation proceeding, nothing can be recovered by the landowner, and no inquiry can be had because of any negligence on the part of the condemnor by reason of the manner in which the works are constructed across the owner’s land, and the reason of the rule for holding the landowner to such narrow limits in introducing testimony showing the works as actually constructed by the condemnor is because a jury might, in some instances, allow the owner damages which the jury thought was occasioned him in consequence of some negligent act or improper construction of his works by the con-demnor.

But, as stated above, we would not be willing to say, without well-established precedent for the proposition, that the owner of land in a condemnation proceeding should not be permitted to show anything touching the actual construction of the works; by the condemnor before final adjudication of the owner’s claim, even where the condemnor rightfully enters upon the land, as was done in this case, and has his works constructed before final trial of the condemnation proceeding. We think that appellant’s counsel go too far on this point, but we do believe that if the landowner in such a proceeding attempts to show a cdndition of affairs arising out of the construction of his works by the condemnor, which necessarily and at once shows negligence on the part of the condem-nor, then it would be error to permit the landowner to show such state of affairs; and that this ought to be and is thé rule, even-though it be,not specifically alleged by the landowner, or contended by him that such state oí affairs so complained of constituted negligence on the part of the condemnor.

Now in this case, on the trial below, among other things, it was alleged by appel-lees, in substance, that in consequence of the manner in which appellant’s railroad was constructed across his land, the height of the embankment, the depth of the ditches, the angle,, etc., at which the same crossed his land, the natural .drainage of that portion of his land not actually taken had been seriously interfered with, and impaired, and in following up this allegation by the evidence, witnesses were permitted to testify that before the construction of appellant’s road, ap-pellees’ land was high and level, and its natural drainage was good, but that since the construction of the road, and in consequence thereof, water was frequently caused to stand upon the remainder of his land, and that at times pools or lakes would form, which had never been the case theretofore, all of which went to show that appellant tfms guilty of negligence as a matter of law. It is true that nowhere in the petition of ap-'pellees was the word “negligence” used, but when they alleged that the natural drainage of their land had been seriously and injuriously interfered with, by reason of the manner in which appellant’s road was constructed across the land, and that in consequence of such interference with drainage, the market value of their land had been greatly damaged and reduced, they at once charged appellant with negligence, which had caused them damage, to wit, had clearly reduced the market value of. their land. We believe that in view of the statute on this question, it was entirely unnecessary for appellees to say that such conduct on the part of appellant constituted “negligence”’ because ■ the statute itself makes such conduct on the part of a railroad negligence, and when the facts are alleged, which the statute says shall constitute negligence, there would be no necessity for the conclusion of the pleader to that effect. Article 6495, Yernon’s Sayles’ Texas' Civil Statutes, reads:

“In no case shall any railroad company construct a road bed without first constructing the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof.”

It seems to us that there is no escape from the conclusion that when appellees alleged, as they did, that the construction of appellant’s roadbed, etc., across' their land seriously interfered with the natural drainage of the same, they alleged negligence on the part of appellant, and sought to recover damages therefor, and this allegation, as stated before, was followed up by direct proof on the part of appellees.

It is also true that the record shows that counsel for appellees declared emphatically during the trial in the court below that appellees were not claiming damages for negligence 6n the part of appellant, and seemed to recognize the rule that damages so sustained, if any, could not be recovered in this proceeding, and in counsel’s brief in this case, he 'Strenuously contends, and with much ability and plausibility, that appellees had the right to recover whatever diminution in market value their land sustained in consequence of its natural drainage being interfered with by reason of the construction of appellant’s road, and claims that it does not necessarily follow that appellant was guilty of negligence because it constructed its road in such manner as to interfere with the natural drainage of appellees’ land, but after careful consideration, we are driven to' the conclusion that appellee is wrong in his contention, and that the statute itself says that appellant was guilty of negligence, which caused damage to appellees, if their allegations and proof on this question of the interference with the natural drainage of their land was true, and we are of the opinion that appellees should not be permitted to thus indirectly do what the rule, as it obtains in this state, forbids them directly to do. In other words; we believe that appel-lees ought not to be permitted to allege a certain state of facts and introduce proof thereunder, which- clearly show that damages were sought to be recovered, because of negligence on the part of appellant, merely because appellees did not themselves specifically claim that such state of facts constituted negligence. Gregory v. Railway Co., 21 Tex. Civ. App. 598, 54 S. W. 617; Kirby v. Railway Co., 39 Tex. Civ. App. 252, 88 S. W. 281; Railway Co. v. Moore, 51 Tex. Civ. App. 205, 111 S. W. 758; Railway Co. v. Barnes, 162 S. W. 373.

We are not unmindful of the contention made throughout the argument by appellees’ counsel, and also in his brief, that the cases just above cited are easily distinguishable from this case, in so far as they treat the question of damages to land by reason of the failure on the part of the railroad company to construct proper culverts, sluices, etc., so as to not interfere with the natural drainage of the land of another; and, while it is true that in some of these cases damages to crops were sought to be recovered by reason of an overflow alleged to have been occasioned by the failure of the railroad company to have proper culverts and sluices, still the principle of law1 and the rule of evidence contended for by appellant in this ease is announced and adhered to in these cases, and we think that the principle so announced is applicable here. ■ ■

We think that the trial court ought to have sustained appellant’s special exception to that portion of appellees’ amended answer, alleging, in substance, that the market value of their land was diminished in consequence of the natural drainage being interfered with ■by reason of tbe construction of appellant’s roadbed, and also, that tbe trial court committed error in admitting evidence offered by appellees to tbe effect that tbe natural drainage of appellees’land bad been obstructed or interfered witb on account of tbe construction of appellant’s road. And while we have not mentioned or discussed in tbeir numerical order appellant’s several assignments raising this point, we think that all such assignments ought to be and they are sustained.

While we agree witb tbe contention of appellant to tbe effect that in arriving at tbe amount of damages that appellees should be allowed to recover for that portion of tbeir land actually taken, as well as for tbe diminution in value of tbe remainder, tbe evidence should be confined to tbe market value of such land as tbe same existed on August 2, 1913, which was tbe date of lawful taking and appropriation thereof, in contemplation of our Constitution and statute on tbe subject, still we do not think that it was improper to permit appellees to introduce testimony, ■as was done, showing tbe actual construction of appellant’s railroad across tbe land, ás tbe same existed when first completed.

Of course, it should be and must be assumed in this proceeding that appellant’s road was in all respects properly and skillfully constructed, and that whatever was done by appellant in that connection was necessary and proper, and that appellant was not guilty of any negligence or wrong whatever in tbe construction of its road and works, and we think it would be entirely proper for tbe court to so expressly instruct the jury on another trial of this case.

We have considered all assignments of error made by appellant, and overrule them all, except those above sustained, and because of the error of the trial court there pointed out, tbe judgment of tbe trial court is reversed, and this cause remanded.

On Motion for Rehearing.

At a former day of this term, tbe judgment of tbe trial court in this cause was reversed, and tbe cause remanded, and in due time appellees filed tbeir motion for rehearing. We have carefully considered tbe motion, and have reached tbe conclusion that same should be overruled.

Counsel for appellees have suggested that our opinion in this case is susceptible of tbe construction that counsel contended that ap-pellees were entitled to recover tbe difference in tbe market value of tbe remainder of tbe land before construction and at tbe time of trial below, and that all items of injury occurring up to tbe time of trial were to be legitimately considered. We do not think that tbe opinion is, in fact, susceptible of such construction, but at tbe request of counsel, we here now state, in bis own words, bis contention on this point:

“The landowner is entitled to recover the difference in the market value of the remainder of his land just before and just after the construction of the works, or the difference in value with or -without the public works thereon, irrespective of the time or the method by which the damages were arrived at and assessed.”

We were unable to agree witb counsel on this point, in view of tbe facts in this case, and we think our reason is sufficiently stated in tbe opinion.

Tbe motion for rehearing is overruled.
      <©=sFnr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes