author: HUFF, C. J.

text:
    WICHITA FALLS SASH & DOOR CO. v. JACKSON et al.
    (No. 1332.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 10, 1918.
    Rehearing Denied May 8, 1918.)
    1. Constitutional Law &wkey;34 — Self-Executing Peo vision of Constitution.
    Const, art. 16, § 37, providing mechanics shall have a lien on the buildings and articles made or repaired, and that the Legislature shall provide for speedy and efficient enforcement thereof, gives an enforceable lien without action by the Legislature.
    2. Mechanics’ Liens &wkey;198 — “Akticles Made” — Pkiokity—Relinquishment — Notice.
    There being no statute providing a method of giving notice of mechanic’s lien on “articles made,” that is, personal property, Rev. St. 1911» §§ 5621, 5622, 5624, relating only .to buildings, any right of priority of lien of one who having constructed store fixtures for the lessee of a store, surrendered them to the lessee, who put them into the building, was relinquished as against the lien of the landlord, who was given no actual notice of such lien.
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Actions by the Wichita Falls Sash & Door Company and by J. L. Jackson against Nick Pappas and others were consolidated. From an adverse judgment, the plaintiff company appeals.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. T. R. Boone and E. H. Eddleman, both of Wichita Falls, for appellees.
   HUFF, C. J.

This is a contest as to priorities between an asserted material and mechanic’s lien, and the landlord’s lien. Ap-pellee, J. L. Jackson, owned what is known in the record as the Herne Café, and leased ' the same by written lease to Nick Pappas and C. E. Cartevinis, Mardh 31, 1916, for a term of two years and six months from that daté for the agreed rental of $75 per month. It was stipulated therein that the lessor should have the lien to secure the rent upon all goods, wares, chattels, implements, fixtures, furniture, tools, or other personal property which are or may be placed on the premises. The tenants went into possession on the date of .the contract, and continued therein as tenants under the contract until January 1, 1917,- but failed to pay the. rents for the balance of August, 1916, and for the months of September, October, November, and December, 1916, amounting to the sum of $325. At the time of the lease contract and at the time the tenants took possession of the café there was in the building certain designated personal property which is not necessary to describe. During the year 1916 and prior thereto the appellant, the Wichita Falls Sash & Door Company, was a duly incorporated company under the laws of Texas; its business being the furnishing of labor and material and the erection of screen doors, tables, shelves, iceboxes, counters, mirrors, back cases, and also sash and doors. On the 15th of April, 1916, the appellant contracted with the tenants aforesaid to furnish the labor and material to construct and make for the tenants a back counter for the sum of $125, and another counter for $120, and charged for extra labor in placing the same $17.25, two screen doors, $7, and screen wire for two doors $3.25, and also between the above date and the 22d day of June, 1916, several other articles were made, the material and labor of which was done and furnished by appellant to the tenants. Some of the items appear to have been for repairs or addition to other articles. The aggregate amount of the labor and material so furnished totaled $469.75, with credits amounting to $200; leaving a balance due on the account of $269.75. All the articles so furnished, together with the labor thereon, were placed in the café on or before June 22, 1916. The appellant filed its verified account to fix a mechanic’s lien on the above articles with the county clerk of Wichita county on August 29, 1916. The appellant and the appellee each sued the tenants Pappas and Cartevinis on their respective claims, seeking to foreclose their liens on the property in question. Jackson, by his suit, also made appellant the Wichita Falls Sásh & Door Company and others parties. Other parties also sued the tenants to establish debts against them, and sued out attachments. These latter parties are not complaining in this court, and it will be unnecessary to further mention them. All the cases were consolidated in the lower court and tried before the court without a jury. The court rendered judgment for Jackson against Pappas and Cartevinis for tlie sum of $325, foreclosing Ms landlord’s lien upon all tlie articles in tlie café, including those upon wMch appellant claims a mechanic’s lien; also rendered judgment for the Wichita Fails Sash & Door Company against Pappas and Cartevinis, for the sum of $269.75, foreclosing the lien on the articles upon which it claimed a mechanic's lien subject to the landlord’s lien. The decree directed that the articles other than those upon which appellant claimed a lien he first sold, and that the articles upon which a lien was given to appellants he next sold and the proceeds he first applied to the remainder of the judgment in favor of Jackson, etc.

Under the first assignment appellant, by proposition, asserts that mechanics and materialmen, under article 16, § 37, of the Constitution, have a lien upon articles made or repaired by them for the value of the labor done thereon and material furnished, superior to the landlord’s lien. The Constitution gives mechanics and materialmen of every class a lien upon articles made or repaired by them for the value of the labor done thereon or material furnished therefor, and provides that the Legislature should by law make provision for the speedy and efficient enforcement of the lien. Our Supreme Court has settled that tMs provision of the Constitution gives such lien to the class named independent of the statute, and if no law has been passed in obedience to this provision the general rule of equity would govern the foreclosure of the lien. Warner Elevator Co. v. Maverick, 88 Tex. 489, 30 S. W. 437, 31 S. W. 353, 499; Implement Co. v. Electric Co., 74 Tex. 605, 12 S. W. 489; Trammell v. Mount, 68 Tex. 210, 4 S. W. 377, 2 Am. St. Rep. 479; Johnson v. Amarillo Implement Co., 88 Tex. 505, 31 S. W. 503; Strang v. Pray, 89 Tex. 525, 35 S. W. 1054. We understand from the above authorities and many others, while the Legislature has the power to provide for a speedy remedy, the mere fact that the mechanic has not complied with the statute as to the time of filing his lien, notice, and the like, the lien as between the original parties would not be defeated, but may be enforced. It is true, we think, that if after work done or material furnished the mechanic, within the time prescribed by law, files his lien, it will.relate back to the date when such labor or material was furnished, and will be superior to an intervening contract lien created after the inception of the mechanic’s lien. Oriental Hotel Co. v. Griffith, 88 Tex. 574, 33 S. W. 652, 30 L. R. A. 765, 53 Am. St. Rep. 790; Sullivan v. Coal Co., 94 Tex. 541, 63 S. W. 308, and authorities above cited. As we understand, the effect of the authorities is that the Legislature, under the Constitution, may prescribe such things done as may be deemed necessary for the protection of the owner or purchaser of property.

The lien contended for by appellant is for labor and material furnished upon “articles made or repaired,” as distinguished from a building. It is asserted that “articles,” as used in the Constitution, was used in the ordinary sense of the word, and therefore referred to such articles as would fall under the designation of personal property, as distinguished from buildings. It is contended by appellee that article 5621, B. C. S., does not relate to “articles made or repaired,” but only refers to such articles when used to erect, repair, or improve a building, giving the parties so furnishing the articles a lien on the building and land, and to secure such lien, and that the filing of the original contract or a verified account in the county clerk’s office and recorded in the mechanic’s lien records, as provided for by articles 5622 and 5624, does not apply to this case. In this contention we think appellee correct. Appellant in some measure concedes that the articles above named do not here apply. If they do not apply, then the filing of the bill of particulars with the county clerk for record would not constitute notice to the landlord. The appellee further contends that articles 5665-5667, are the articles which relate to articles made or. repaired. By these statutes it is provided if any article shall be repaired with labor and material or with labor without furnishing material by any carpenter or other workman, such mechanic is entitled to retain possession of the article until the amount due for repairing by contract is fully paid. It is doubtful if these articles refer to “articles made” mentioned in the Constitution. If any of the articles were repaired the mechanic, if he relinquishes possession to the owner, could not again recover them. This was held by two different courts. Caldwell v. Auto Sales & Supply Co., 15S S. W. 1030; Ford Motor Co. v. Freeman, 168 S. W. 80. However, the constitutional question was not considered in those cases, and the question of a lien fixed thereby was not discussed in either case.

As to articles made, we think the Constitution gives a lien to secure the amount due for labor and material, and, as found by the trial court in this case, could be foreclosed. We do not find any statute, and have not been pointed to one, which provides a method of giving notice of such lien to subsequent mortgagees or lienholders. Such mechanic’s lien may have a preference over the landlord’s lien if when the article was placed in the building the landlord had notice thereof. It occurs to us if the mechanic surrenders possession to his employer, and permits him to place the article in the building rented without notifying the landlord, he would relinquish his preference right. As to third parties who have no actual notice of the labor having been performed or material furnished the lien we do not think enforceable as a preference one. De Bruin v. San Domingo, etc., 194 S. W. 654. The above case cites and discusses the authorities with reference to mechanic’s lien and its effect with reference to notice and the requirements of the statute in regard thereto. It has been held in this state that a landlord is a creditor, and when property is placed in his building by the tenant prior to the time of recording a chattel mortgage thereon that the landlord’s lien has preference. Furniture Co. v. Hotel Co., 81 Tex. 135, 16 S. W. 807; Low v. Troy Laundry Co., 160 S. W. 136, and authorities cited; Rogers v. Griggs, 29 S. W. 654. In this case the current contract year began March 31, 1916. The property was placed in the building thereafter and before June 22d following. The default on the rent occurred in August, September, October, November, and December of that year, for which Judgment was rendered. The statute fixed the lien for the current contract year, even if the contract was for a longer term. Article 5490, R. C. S.; Allen v. Brunner, 33 Tex. Civ. App. 128, 75 S. W. 821; Low v. Troy, etc., supra. We do not believe that this case comes within that class of cases where precedence is given to laborer’s lien over existing liens. In that class of cases the preference right rests upon the principle that it is as much benefit to the mortgagee as to the mortgagor. So far as the facts show, the property in this case was delivered to the tenant and placed in the building .without any notice to others that there was a prior lien.

We believe the judgment should be affirmed.

HALL, J., not sitting.
      <S=jFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J,

license: Public Domain

text:
    MOSHER v. DINGEE et al.
    (No. 8843.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 6, 1918.)
    1. Appeal and Error <&wkey;500(4) — Scope of Review — Preservation of Exceptions.
    Where record showed that the canse was tried March 22d and judgment on peremptory instruction was rendered the same day, and that plaintiff filed exceptions to the charge on the same day, but failed to show that- the court considered them or acted thereon, assignment of error to the giving of peremptory instruction could not be considered.
    2. Appeal and Error <&wkey;230 — Scope of Review-Preservation of Exceptions.
    To preserve the question for review, objection to the charge must be made before giving the charge to the jury, and the rule applies to peremptory instructions.
    Error from District Court, Tarrant County ; R. E. L. Roy, Judge.
    Suit by B. M. Mosber against Mrs. Margaret Ann Holloway, individually and as executrix of the estate of H. C. Holloway, deceased, A. S. Dingee, and others. Judgment for defendants, and plaintiff .brings error.
    Affirmed.
    Wm. R. Booth and D. W. Odell, both of Et. Worth, for plaintiff in error. Bryan, Stone & Wade, of Ft. Worth, for defendants in error.
   BUCK, J,

Suit was instituted by plaintiff in error against Mrs. Margaret Ann Holloway, individually and as executrix or ad-ministratrix of the estate of H. C. Holloway, deceased, and others, for possession and the right to use as a road and means of ingress and egress to and from plaintiff’s premises a certain strip of land across a portion of the premises belonging to the estate of H. 0. Holloway, deceased. From a judgment denying the relief prayed for, Mrs. Mosher has prosecuted her appeal by writ of error. Only one assignment of error is presented, that is, to the giving by the court to the jury of a peremptory instruction in favor of the defendant. Appellees object to the consideration of this assignment on the ground that the record fails to disclose that any objection to the giving of the peremptory instruction was made by appellant before the court’s charge was delivered to the jury, or that the objection was called to the attention of the court or was acted on by the court.

The record discloses that the cause was tried March 22, 1917, and judgment upon peremptory instruction was rendered the same day. That plaintiff filed her exceptions to the court’s charge on the same day, but there is nothing to show that the court considered the same or acted thereon. The term of the court ended March 31, 1917. A motion for a new trial was filed on March 24th, and on May 7th, at the next term, the court overruled the same and plaintiff excepted and gave notice of appeal. The appeal bond shows to have been filed April 11, 1917, and to have been given to enable the appellant to prosecute her appeal from a judgment rendered on the 10th day of March, 1917, and from the overruling of a motion for a new trial on March 31, 1917. In this state of the record we have concluded that appellee’s objection to the consideration of appellant’s assignment must be sustained.

Objection to the charge must be made before the giving of the charge to the jury. Thorne v. Dashiell, 189 S. W. 986; Pearce v, Knights and Ladies of Honor, 190 S. W. 1156; Case v. Folsom, 170 S. W. 1066; and Railway Co. v. Wilson, 176 S. W. 619. It was held by the Supreme Court in the case of Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184, that while it was not necessary in order to obtain a review of a general charge of the court on appeal that a bill of exception to the charge should be reserved, yet it must appear that the objection was presented to the court before the charge was read to the jury. This rule was held in Thorne v. Dashiell, supra, to apply to peremptory instructions. See, also, Railway Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Railway Co. v. Wilson, 176 S. W. 619; Donaldson v. McElroy, 184 S. W. 1100. Writ of error was refused in Donaldson v. McElroy, supra.

The judgment is affirmed,

Affiimed.
      <S=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    POYTHRESS v. IVEY et al.
    (No. 8822.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 16, 1918.
    Rehearing Denied April 20, 1918.)
    1. Limitation of Actions <&wkey;>167(l) — Action to Enforce Right of Action Pledged — Bar of Debt.
    Though a pledge can be subjected to payment of a debt already barred, where the contract of bailment gives the pledgee the right to sell the article in case the debt is not paid, recovery cannot be had on a collateral note, where resort must be had to the court to establish the original debt and enforce the rights, and such debt is barred.
    2. Limitation of Actions <&wkey;146(l) — Verbal Acknowledgment.
    Mere verbal extension of past-due note without further consideration is within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5705, providing that acknowledgment of justness of claim after it is due, unless in writing, shall not toll the running of the statute.
    3. Limitation of Actions <S=o167(2)— Foreclosure of Mortgage — Bar of Debt.
    The debt secured being barred by limitations, action to foreclose mortgage is barred.
    Appeal from District Court, Tarrant County ; R. E. L. Roy, Judge.
    Action by Joe Poythress against Mrs. Minnie E. Evans Ivey and others. From the judgment, plaintiff appeals.
    Affirmed in part, and undisturbed in part.
    R. H. Smith, of Ft. Worth, for appellant. Jas. C. Scott and Harris & Burton, all of Ft. Worth, for appellees.
   BUCK, J.

Appellant filed suit against Mrs. Minnie E. Evans Ivey, in her individual capacity as well as in the capacity of independent executrix of the estate of Wm. M. Evans, deceased, and her husband Richard M. Ivey and A. Lindsay and wife V. A. Lindsay, Nelson Mebane, Mrs. Mattie Jackson, H. L. Vaughn, W. J. Meggs, and J. R. Chambers. The petition alleged that Mrs. Ivey was the surviving spouse of Wm. M. Evans, deceased, and that since the death of Evans, Mrs. Evans had intermarried with Ivey; that on June 27, 1905, Evans executed to appellant his promissory note in the sum of $400, bearing interest at 10 per cent, per annum, and stipulating for the usual 10 per cent, attorney’s fees; that on same date said Evans executed and delivered unto said appellant a deed of trust on lots 2 to 7 of block 1 of the Wm. M. Evans addition to the city of Ft. Worth, Tex., and that said mortgage was placed on record on July 5, 1905; that thereafter the said note for $400. was, by ■ consecutive annual renewal extensions, extended to June 27, 1906, 1907, 1908, 1909, 1910, 1911, and 1912, as shown by various interest payments indorsed on back of said note; said note being extended from each recurring annual period after its original date of maturity, so that the last date of maturity thereon extended it to mature June 27, 1913, and all interest, to wit, the sum of $40 a year, was paid up to and including June 27, 1912, as shown by indorse-ments on back of said note, leaving due and outstanding thereon on June 27, 1913, the sum of $400, bearing interest from said date at 10 per cent, per annum. It was further alleged that on October 29, 1910, said Evans made and executed unto defendant Mebane his warranty deed, conveying lots 2 and 3 of block 1 of said addition, and as part payment therefor said Mebane executed and delivered unto said Evans his certain 19 promissory notes, payable monthly, each in the sum of $20; that after the first two notes had matured and been paid, said Evans hypothecated the other 17 of said notes to appellant to secure the $400 note, said notes being indorsed in blank, and that appellant became vested with the legal title thereto, together with the liens on said land and said notes to secure appellant in the payment of said $400 note; that on February 21, 1907, said Evans by general warranty deed conveyed to the Lindsays lot 6 out of said block, and that said Lindsays executed and delivered to said Evans their promissory note in the sum of $765, payable in monthly installments of $15 each; that said note had 41 credits indorsed on the back thereof as payments, aggregating the sum of $485; that on March 9, 1909, said Evans executed and delivered unto said 'appellant “his, certain collateral promissory note” in the sum of $450, due one year from date, and bearing 10 per cent, interest, etc., “and said aforementioned note for $765 attached thereto as collateral security securing same, and also indorsed said note in blank on the back thereof, and deposited and hypothecated same with said Poythress as security for said $450.” It was alleged that “by reason of such acts, said Poythress became vested with the title, liens, and security as securing same.” A credit of $205 on the $450 note was admitted. It was further alleged that Mrs. Evans qualified as independent executrix of the estate of her deceased husband,’ and that thereafter said appellant filed his claim against the estate of said Wm. M. Evans, and that said claim was by the court approved for the sum, of $689.31. It was further alleged that the other defendants were claiming some interest in portions of said land described, and were asking to have foreclosed their liens thereon, but that said claims and liens were inferior and subsidiary to the lien of plaintiff. Defendants Lindsay and wife pleaded that any extensions given to plaintiff by said Evans on the $400 note were without their knowledge and consent and not binding on them, and that therefore they should be discharged on their plea of four-year limitation. They pleaded limitation also by exception. They further pleaded payment in full to Wm. M. Evans and his executrix, Mrs. Minnie E. Evans Ivey. From the judgment in favor of plaintiff as against Mrs. Minnie E. Evans Ivey, in her individual capacity and as independent executrix, and against Nelson G. Mebane, with the writ of foreclosure as against lots 2 and 3, owned by Mebane, and in favor of defendants Mrs. Mattie Jackson, H. L. Yauglin, the Lindsays, and the other defendants, plaintiff has appealed.

On April 4, 1907, Poythress executed a release to lot 6, sold by Evans to the Lind-says on June 27, 1905, but by said instrument the lien existing on the other lots covered by the deed of trust was specifically stated to remain in full effect. The evidence supports the conclusion that the Lindsays had paid in full the amount of the said $765 note given by them to Evans, and hypothecated. by Evans to Poythress as additional security for Evans’ debt to him, the payments being made to Evans during his lifetime, and after his death, on, to wit, December 22, 1912, such payments were made to the executrix; á receipt of payment in each instance being given. The evidence further shows that the inventory and appraisement filed by the executrix showed a balance due on the Lindsay note of $269.50. Plaintiff’s testimony tended to show that prior to the filing of the inventory and appraisement Lindsay was notified by Poythress or his attorney that he held the note against lot 6, and that there was a balance due thereon of about $175. Lindsay denied ever having received such notice from Poythress or his attorney, but we do not think the conflict of testimony is material, since the controlling question is whether or not the original debt of Evans to Poythress evidenced by the $400 note was barred by limitation, for before Poythress could recover on the collateral note, he would have to establish in court the original debt evidenced by the $400 note to secure which the $765 note was given. In order to enforce his security, the plaintiff would be required to go into court, and would thereby necessarily bring himself within the operation of the statute of limitation. Limitation affects the right to enforce a claim through the medium of the courts, and not necessarily the validity or justness of said claim. It closes the doors of the tribunal to the tardy claimant who would seek the portals of the courthouse to enforce a right or to collect a claim in the assertion of which he has been guilty of undue laches. It is true that a pledge may be subjected to the payment of a debt already. barred (17 R. G. L. 948; 31 Cyc. 819; Tombler v. Palestine Ice Co., 17 Tex. Civ. App. 596, 43 S. W. 896; Gage v. Riverside Trust Co. [C. C.] 86 Fed. 984), where the contract of bailment gives the pledgee the right to sell the pledged article in case the debt is not paid, but not so where the pledgee must call upon the courts to establish and enforce his rights.

The question to be determined is whether or not the $400 note dated June 27, 1905, could be successively extended by parol so as to prevent the running of the statute of limitation. Article 5705, V. S. Tex. Civ. Stats., is as follows:

“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party [sought] to be charged thereby.”

In Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220, it is said:

“The new promise pleaded was a forbearance to sue on the part of plaintiff and a promise to pay the account at a later day on the part of defendant. The subject of the transaction was an open account. The promise of forbearance on the part of plaintiff was based ón no consideration, and did not suspend his right to sue. Under the statute any acknowledgment made after a debt is due must be in writing in order to extend the bar. To allow plaintiff’s contention would amount practically to an annulment of the statute. The case of Heisch v. Adams, 81 Tex. 94, 16 S. W. 790, cited by appellant, is not decisive of the question. The principle decided in that case is that a verbal contract made after the due date and before the bar of a note, and embodying new elements of consideration which amount to a novation, takes the place of the note forming.in part the basis of the new contract, and the statute runs from the due date of the new contract. The facts here alleged fall far short of those in the case cited. In Howard v. Windom, 86 Tex. 560, 26 S. W. 483, it is held that the acknowledgment or new promise is a new cause of action which must be declared on. In Gibson v. Irby, 17 Tex. 174, it was held that a verbal agreement to extend the due date of a note, the debtor agreeing to pay the principal and interest on .that date, did not bind the holder of the note not to sue sooner; the reason given being that the contract was without consideration passing from the debtor.”

See Neyland v. Neyland, 19 Tex. 423, 430; San Antonio, etc., Loan Ass’n v. Stewart, 94 Tex. 441, 448, 61 S. W. 386, 86 Am. St. Rep. 864; Russ v. Cunningham (Sup.) 16 S. W. 446; Lowe v. Dowbarn, 26 Tex. 507, 510. Appellee cites a number of cases, to wit, Casey-Swasey v. Anderson et al., 37 Tex. Civ. App. 223, 83 S. W. 840, Carter-Battle Co. v. Clarke, 91 S. W. 882, Fambro v. Keith, 57 Tex. Civ. App. 302, 122 S. W. 40, Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165, and others, in which a parol agreement by the principal, without the consent of the surety, to extend the payment of a debt was held binding on the principal, and therefore to relieve the surety, but these cases do not deal wit-h the question of limitation, nor dispute the rule that in order for the plaintiff to recover by reason of the parol promise he must declare on said parol promise, and not on the original instrument in writing. In the instant case plaintiff did not seek to recover on the parol promise, hut on the note itself. The last extension of interest, as pleaded, was made on June 27, 1912. The suit was filed August 21, 1914, more than two years thereafter. Hence any action on the oral contract alleged would have been barred by the two-year statute, even had plaintiff declared thereon. But he did not do so. Hence we conclude that the original note for $400, given on June 27, 1905, was at the time of the suit barred by the four-year statute of limitation, and that the Lindsays could successfully plead the statutes. In this connection it might be noted that there had, been no formal assignment or transfer of the $765 note from Evans to Poythress put on record. Evans merely indorsed the note in blank and delivered it to Poythress. So the Lindsays had no constructive notice of the ownership by Poythress of the note in question. The actual notice was denied by A. Lindsay, as before stated.

With reference to the defense of Mrs. Mattie Jackson and H. L. Vaughn, no vendor’s lien notes from Mrs. Jackson’s predecessor in title appear to have been executed to Evans and delivered to Poythress. The record does not disclose, so far as we have been able to determine, whether any vendor’s lien was retained by Evans or not. It was agreed that Mrs. Jackson and Vaughn, claiming under G. W. Jackson, deceased, had held possession of lot No. 7, block No. 1, since'the 4th day of August, 1908; that they proved actual possession of same by deed from Evans and wife to G. W. Jackson. No pleading of plaintiff suggests any right of foreclosure against the Jackson lot, unless such right be shown by reason of the $400 notd and the deed of trust executed by Evans to secure the same. Hence as to this lot, the right of foreclosure would be barred, by reason of the statute which barred the debt from Evans to Poythress. No complaint is made as to the judgment against Mrs. Ivey individually and as executrix and against Mebane. The judgment in this respect will he left undisturbed, and • otherwise will be affirmed. All assignments are overruled.

Affirmed in part, and undisturbed in part.
      <gs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    GALVESTON, H. & H. R. CO. et al. v. FLEMING.
    (No. 7552.)
    (Court of Civil Appeals of Texas. Galveston.
    March 27, 1918.
    Rehearing Denied April 25, 1918.)
    1.Master and Servant &wkey;>380(3) — Tort of Servant — Scope of Authority — Sufficiency of Evidence.
    In an action against a railroad and its watchman for the latter’s shooting of plaintiff, evidence held sufficient to support the jury’s finding that the watchman was acting within the general scope of his authority.
    2. Master and Servant <&wkey;330(3) — Tort of Servant — Unintentional Character — Sufficiency of Evidence.
    In such action, evidence held sufficient to justify the jury in finding that the shot which injured plaintiff was not fired maliciously or with intent to shoot plaintiff, but merely to induce him to leave the railroad yards; the watchman not knowing and having no ill will against plaintiff.
    3. Trial &wkey;>350(6) — Special Issues — Tort of Servant.
    In an action against a railroad and its watchman for shooting plaintiff in the railroad’s yard, the question whether defendant watchman shot plaintiff intentionally presented a pertinent and material issue to be submitted, since if he shot to gratify a private grudge, and not pursuant to his duty to guard the railroad’s property, the latter was not liable.
    4. Master and Servant <&wkey;304 — Tort of, Servant — Liability.
    If a railroad’s yard watchman, within the general scope of his employment to protect the railroad’s property from depredation, acted unreasonably and negligently in the performance of his duties as he saw them, the railroad was liable for any injury suffered by another thereby, whether the watchman acted upon reasonable appearances or not; he having been made the judge as to when it was necessary to shoot.
    5. Trial <&wkey;>115(2) — Argument of Counsel-Special Issues.
    The statement of plaintiff’s counsel in closing argument to the jury that the reason that counsel for defendants wanted the jury to answer the first question “No” was because they knew that, if the jury answered the question “No,” it would end the case, was improper, as where special issues are submitted it is the single duty of the jury to find the facts in support of the issues.
    6. Appeal and Error <&wkey;1060(l) — Harmless Error — Argument of Counsel.
    Impropriety of plaintiff’s counsel in arguing that defendant’s counsel wanted the jury to answer the first special issue negatively because they knew that if the jury so answered the issue it would end the case was harmless, where the jury must have gathered on trial the legal result of a negative finding on the issue.
    7. Appeal and Error <&wkey;1033(5) — Error Favorable to Appellant — Instruction.
    In an action for personal injuries, where all damages allowed by a charge submitting the question of permanent injury were such as were allowable under the law whether the injury was permanent or not, the charge that plaintiff might recover such damages only on proof of permanent injury was favorable to defendant.
    8. Damages <&wkey;130(2) — Injury to Leg — Excessive Verdict.
    In an action against a railroad and its yard watchman for shooting_ plaintiff in the calf of the leg, verdict for plaintiff for $2,500 was not excessive.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Andrew J. Fleming against the Galveston, Houston & Henderson Railroad Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Baker, Botts, Parker & Garwood and Me-Means, Garrison & Pollard, all of Houston, and Jno. L. Darrouzet, of Galveston, for appellants. Frank S. Anderson, of Galveston, for appellee.
   LANE, J.

This suit was instituted by ap-pellee, Andrew J. Fleming, against the Galveston, Houston & Henderson Railroad Company and R. J. Stanley to recover damages for alleged personal injuries.

The plaintiff alleged that on the 20th day of February, 1917, said railroad company had laid and was maintaining its railroad tracks in, upon, and along Postoffice street, a public street and highway in the city of Galveston, Tex.; that on said date the said railroad company had in its employ one R. J. Stanley as watchman and guard over its properties; that on said date while he (Fleming) was passing along said public street and highway and along one of the railroad tracks of said ,company, said Stanley, while, acting within the scope of his employment and instructions, carelessly, negligently, willfully, and maliciously assaulted and shot him (Fleming) in the leg, thereby seriously and permanently injuring and damaging him, for which he prayed judgment in the sum of $2,500 actual, and $2,500 exemplary, damages. Defendant answered by general demurrer and general denial. The question of exemplary damages was not submitted to the jury, and we shall, therefore, not further refer to this matter.

The ease was tried before a jury upon special issues submitted to them, to which they made the following answers: (1) That the defendant Stanley, in the shooting of the plaintiff, was performing an act within the scope of his employment, and in furtherance of his duties for which he was employed by the defendant railroad company; (2) that 'the defendant Stanley shot the plaintiff unintentionally ; (3) that in shooting the plaintiff, the defendant Stanley was guilty of negligence, (4) which proximately caused plaintiff to sustain the injury as alleged by him; and (5) that the amount of damages that would be fair and reasonable compensation for plaintiff’s injuries was $2,500. Upon the verdict a judgment was rendered in favor of plaintiff against both defendants for $2,500, from which the defendants have appealed.

By the first, second, and third assignments it is insisted, that the court erred in not instructing a verdict for defendants, as requested by the defendant railroad company, for the reason that there was no evidence to prove that defendant Stanley, at the time he shot plaintiff Fleming, was acting within the general scope of his authority as a watchman and guard for the defendant railroad company, and because the testimony failed to show that Stanley, in shooting plaintiff, was acting in discharge of any duty he owed to the defendant railroad company. We do not think there is any merit in the contention of appellants.

It was admitted in evidence that the defendant R. 3. Stanley was employed by the defendant Galveston, Houston & Henderson Railroad Company as a watchman and guard in its yards on February 2, 1917, at a salary of $65 per month, and that he was such watchman on the night of February 20, 1917, when appellee was shot, and from the time of his employment to the date of the trial had continuously been in its employment as such watchman and guard. It was further admitted that Stanley was the man who shot the plaintiff.

The undisputed evidence shows that while it was a fact that the point or place at which appellee was shot by Stanley was on Post-office street in the city of Galveston, it was also within the yards of the defendant railroad company, said street being closed at that point by virtue of a city ordinance; and that where said street entered said railroad yards said company had placed a sign which reads:

“This is the property of the G., H. & H. Railroad Company. Persons entering upon or crossing are trespassers, and assume all risks.”

The undisputed evidence also shows that for about three years appellee had passed unmolested over and among appellant’s tracks and through its yards, and that many persons had s-o passed day and night for many years. Appellee Fleming testified that on the night and at the time he was shot by Stanley he was walking along the track of the defendant railroad company; that he met a man (who later proved to be Stanley) who passed by him, and that after the man had passed him the man said, “Stop there!” that he did not stop, but as he thought it might be a burglar he continued to walk on, and that the man fired on him; that after the man fired he (Fleming) continued to walk on off from him, but looked back to see what the man was doing; that he did not then see the man, but that the man then ran around in front of him and shot him in the calf of the left leg. He also testified that when he was shot the man said, “I am the watchman; you get off the track here;” that he could not remember whether he (Fleming) said anything or not; that he did not know what became of the man after he was shot; that he left him immediately; and that he (Fleming) lay on the track about half an hour after being shot. He further testified that the first shot fired by the man was after he told him to stop; that this shot passed close to his head, but did not hit him; that he then turned around to see where the man was, and as he turned back the man shot him in the left leg; that at the time he was shot he had turned around to face the man, and then the man shot him; that, the shot that struck him was fired downward; that he never knew that the railroad company kept a watchman in the yards. Neither of the defendants introduced any evidence, but closed when the plaintiff closed his evidence.

The case of Baker, Receiver, v. Ives, reported in 188 S. W. 950, is a case in which the nature of the suit and facts proven were very similar to the nature and facts of the present case, except that one Watts in that case testified that he employed one Grace as watchman and guard in the yards of the International & Great Northern Railway Company at Palestine, Tex., and further testified as follows:

“I instructed Mr. Grace at the time of his employment to watch out for these merchandise cars, never making any arrest of anybody unless he actually caught him in the act. I also instructed him that the main line, south, west, and north, had become a public thoroughfare from long usage and to let travelers pass along there, but any one he caught meddling and depredating to put them out. * * * He had no authority whatever to stop or question any one passing along through the yards in the regular way; that was against instructions. I employed him [on] the 11th day of November, 1914, as night watchman, Palestine yard, because so many cars were being broken open and robbed and burglarized, and goods carried away, and it was necessary on account of depredations. * * * Yes; I have heard of several cases of people asking the railroad employés for matches at night, and trying to get their watches or rob them; that is a favorite way and.an old way. Yes, it was left to Mr. Grace’s judgment on the instructions I had given him to decide whether a man was out of the way, or a suspicious looking character, or not.”

In that ease the court said:

‘■‘Under these authorities, we think it clear that the trial court properly submitted the issue of liability of appellants for the act of Grace in making the assault upon appellee. If, in fact, the appellee had been a thief or depredator upon the property of the appellants, or if his conduct had been such as to lead Grace reasonably to believe that he was such, the latter would certainly have been acting within the scope of his employment if he used all reasonable and proper means to protect the company’s property. He was undoubtedly charged by appellants with the authority, and it was his duty to exercise the discrimination necessary to distinguish between burglars, thieves, depredators, and innocent persons, and to make arrests when called for by the circumstances, and to determine the degree of force necessary to be exercised. If, through want of proper care or the exercise of the proper discrimination, he mistook appellee for a depredator or person who otherwise should be dealt with in the manner in which he did deal with him, he was certainly acting within the apparent scope of his employment, and the appellants must be held liable for any want of proper discrimination or improper conduct of his in that respect.”

Appellant contends that the opinion in the Ives Case is not applicable to the present case, because in that case there was proof showing what the watchman’s duties were under his employment, while in the present case the evidence as to what the watchman’s duties .were is wholly silent. That in that case it was shown that an innocent man was injured by Grace by reason of the failure of the latter to use ordinary care in using the authority conferred upon him to discriminate between depredators and innocent persons. Here it was not shown that any authority of discrimination was conferred upon Stanley, or that his act was done in the accomplishment of any object for which he was employed.

The contention of .appellant cannot he sustained. We think the holding in the case cited is applicable to this case. While it is true that in the Ives Case the instruction to Grace, the watchman, to watch the property of the railroad company and to arrest persons only when he caught them in the act of depredating on such property was expressly given, we think a fair inference is that when Stanley was employed by the appellant railroad company to watch its property he was impliedly instructed to do such things as he might in his discretion think necessary to protect the property of his employer. Any other conclusion seems to us unreasonable and unsound. No one could reasonably conclude that the railroad company in the present case employed Stanley to go in and upon its yards and simply watch, persons who were depredating upon or threatening to depredate upon its properties, but to the contrary, reason would force one to the conclusion that Stanley’s duties were not onjy to watch such property, but that he was to take such necessary action as would protect the same from depredation. We therefore conclude that the court did not err in submitting the question to the jury, as to whether Stanley was acting within the general scope of his authority. We also conclude 'that there was sufficient evidence to support the finding of the jury that he was so acting. We therefore overrule the first, second, and third assignments.

The fourth assignment complains of the action of the court in submitting the question to the jury as to whether or not Stanley was performing an act within the scope of his employment, and in furtherance of his duties for which he was employed when he shot appellee. What we have said under the first, second, and third assignments disposes of this assignment. It is therefore overruled.

By the fifth assignment appellant insists:

That the trial court erred in submitting to the jury the following question, “ ‘Did the defendant R. J. Stanley shoot the plaintiff intentionally?’ for the reason that there was no evidence to justify the conclusion or finding that defendant Stanley shot the plaintiff unintentionally, and all of the evidence introduced in this case upon the issue shows without dispute that defendant Stanley’s act in shooting the plaintiff was intentional and not accidental.”

We cannot agree with the contention of appellant. Appellant was contending that in accosting and shooting plaintiff, defendant Stanley was not acting within the scope of his employment, but that in doing so he had turned aside from the duties imposed upon him and with malicious intent shot plaintiff. There was no evidence, either direct or circumstantial, that Stanley held any malice or ill feeling toward the plaintiff, or that he knew the plaintiff, or had ever seen or heard of him before the shooting; nor was there any attempt to show such facts; nor was there any evidence remotely showing that Stanley and the plaintiff: had quarreled at the time of the shooting, but upon the contrary the evidence shows that when Stanley saw the plaintiff in the yards of the defendant railroad company he called to him and told him to stop; asked him to stop before he fired the first shot; that the plaintiff continued to walk off from Stanley along the railroad, and that to impress upon plaintiff that he must leave the yard Stanley fired the shot; that after said shot was fired the plaintiff turned toward Stanley, who said to him, “I am the watchman; you get off the track here,” and was shot by Stanley in the calf of the left leg: We think there was . sufficient evidence to justify the jury in finding that the shot that injured the plaintiff was not fired either maliciously or with the intent to shoot plaintiff, but that the same was fired for the purpose of inducing plaintiff to leave said yard, and not with the malicious intent to wound and injure a man whom he did. not know, and against whom he had no ill will. We think the question submitted, of which complaint is made, presented a pertinent and material issue, that there was evidence calling for its submission, and that the trial court properly submitted the same. The fifth assignment is overruled.

By the sixth assignment complaint is made of the refusal of the trial court to submit to the jury the special issue requested by appellant, as follows:

“Was the plaintiff, Fleming, at and just before the time that he was shot by the defendant Stanley, doing any act that would reasonably appear to defendant Stanley that the said Fleming was about to do or was doing any act or thing that would interfere with the use of said property or railroad yards, or to injure, destroy or depredate the property of the defendant Galveston, Houston & Henderson Railroad Company, or to prevent the railroad company from the free use of the same?”

We have already held that the implied duties of Stanley were not only to watch the properties of the railroad company, but contemplated that he would do such acts as reasonably appeared to him to be necessary to protect said properties from depredation of others. He 'was clothed with the duty of determining when he should act for the protection of said property, and if while he was acting within the general scope of his employment he acted unreasonably and negligently in the performance of his duties as he saw' them, his employer was liable for any injury suffered by another by reason of such unreasonable and negligent acts. So then it was an immaterial issue as to whether Stanley acted upon reasonable appearance or not. He was made the judge as to when it was necessary to act by the defendant railroad company, and it is liable for his mistaken judgment when the same results in injury to others. We do not think the court erred in refusing to give to the jury the special charge, the refusal of which is complained of by the sixth assignment.

In his closing argument counsel for the plaintiff said to the jury:

“The reason that they [counsel for defendants] want you to answer the first question ‘No’ is because they know that, if you answer that question ‘No,’ it will end this case.”

After these remarks were made to the jury counsel for appellant objected thereto, assigning as a reason for such objection that such remarks were improper and prejudicial to the rights of defendants, in that such remarks were in effect advising the jury of the effect and result of the answer they might make to the question as to whether or not Stanley was acting within the scope of his employment in shooting appellee, Fleming. After this objection was made counsel for appellee repeated said remarks. The court did not stop counsel in suc.h argument, nor give any instruction to the jury relative thereto; there being no request for such instruction by appellants. Appellants make these remarks of counsel for appellee the grounds of their seventh assignment.

The argument of counsel complained of was improper, and the court should have stopped it when attention was called to it. In cases where special issues are submitted, it is the sole duty of the jury to find the facts in support of the issue submitted,' if any. The jury have nothing to do with the effect of their finding on the parties to the suit. They should not be concerned in the result of such findings. G., H. & S. A. Ry. Co. v. Hodnett, 182 S. W. 7; Fain v. Nelms, 156 S. W. 281. In the case last cited the court said:

“We have no hesitation in saying that the argument was, in the circumstances, improper, and that the court should have stopped it when attention was called to it, and should have instructed the jury to disregard it. The jury, as triers of the facts solely, had nothing to do with the legal effect of their findings. This was a matter which could not properly concern them. They were only to find the facts. The argument came very near a direct invitation to the jury to consider, in finding this fact, what the legal effect would be. The argument should not have been made, nor should the court have allowed it to be made, and to give tacit approval of it by disregarding appellant’s objection. In passing upon the question, however, as ground for reversal, its effect on the jury must be considered, and upon this point it must be assumed that during the course of this trial, amid the strenuous conflict between counsel as to the time ap-pellee’s adverse . possession began, and the amount of evidence on that issue, it must have been a remarkably stupid juror who would not have gathered what would be the legal result of a finding on this issue. We are inclined to the opinion that counsel only told the jury what they already knew, and we cannot believe that they disregarded the evidence and charge of the court, and were influenced by this argument. These improper remarks, we think, ought not to bring upon appellee the penalty of a reversal.”

We specially adopt the last portion of the foregoing quotation as a reason why we refuse to reverse the judgment of the trial court in 'the instant case on account of the argument of counsel, as the language there used is forcefully applicable to tbe matter under consideration in this case.

By the eighth assignment it is insisted that the court erred in instructing the jury they might allow.damages for permanent injury in the event they found from the evidence that plaintiff’s injury was permanent, because there was no evidence tending to show permanent injury. We agree with appellant that there was no evidence justifying the submission of the question of permanent injury, but we are of the opinion that so much of the charge complained of as refers to permanent injury was calculated to be prejudicial to appellee, and was favorable to appellant in this: All the damages allowed by the charge was such as are allowable under the law, if sustained by the evidence, whether the injury was permanent or not, and hence the charge that appellee might recover such damages only upon proof of permanent injury was prejudicial to appellee, and to the same extent favorable to appellant. We overrule the assignment.

We do not feel justified in holding that the verdict of the jury for the sum of $2,500 in favor of appellee is excessive. We therefore overrule the ninth and last assignment.

We find no such error in the trial of this case in the court below as would justify us in reversing the judgment there rendered. The judgment of the trial court is affirmed.

Affirmed.
      ©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    STOCKWELL v. STATE, by DAVIS, Commissioner of Agriculture.
    (No. 7534.)
    (Court of Civil Appeals of Texas. Galveston.
    March 29, 1918.
    Rehearing Denied April 18, 1918.)
    1. Agriculture <&wkey;l — Searches and Seizures <&wkey;7 — Police Power — Unreasonable Seizure of Personal Property.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, making it unlawful to keep a citrus plant infected with disease, and authorizing destruction thereof by commissioner of agriculture or his representative, is within the police power of that state, and cannot be held to authorize an unreasonable seizure of private property contrary to Constitution.
    2. Constitutional Law &wkey;>320 — Due Process oe Law — Taking Private Property.
    Although the method provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, for destruction of citrus plants infected with diseases, does not have all the elements of judicial trial, it is not in violation of Constitution as to taking private property without due process of law.
    3. Constitutional Law &wkey;>251’— Public Welfare.
    Constitution, as to taking property without due process of law, has a different meaning when applied to. controversies between citizens than it has when property is taken or destroyed by the government for public' use or public welfare.
    4. Constitutional Law <&wkey;251 — Police Power.
    When the Legislature, in the exercise of police power of state, interferes with the use and enjoyment of private property, all that is necessary to make the interference valid is that it be justified by established rules applicable to the special case.
    5. Constitutional Law &wkey;>81 — Police Power.
    Every one’s rights to the use and enjoyment of property is limited, in an organized society, by consideration of public welfare and safety,- and the Legislature, in exercise of police power of the state, can enforce such limitation by any reasonable method appropriate to its accomplishment, and the citizen must submit.
    6. Eminent Domain <&wkey;2(l) — Constitution-Taking Private Property for Public Use.
    The contention that Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, as to destruction of citrus plant infected with disease, is in violation of constitutional inhibition against taking private property for public use without compensation, cannot be sustained, since such constitutional provision applies only where the state takes private property under powers of eminent domain, and is not a limitation upon the police power of the state.
    7. Constitutional Law <&wkey;316 — Constitutional Right of Appeal.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, as to destruction of citrus plant infected with disease being an appropriate exercise of police power, it was competent to provide that decision of commissioner of agriculture as to existence of disease should be final, the constitution not requiring that a right to appeal be given.
    Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge.
    Suit by the state, by Fred W. Davis, Commissioner of Agriculture, against W. R. Stockwell. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. R. Rucks and Elmer P. Stockwell, both of Angleton, for appellant. Munson & Williams, of Angleton, W. A. Keeling, of Austin, and Wm. Burkhardt, of Angleton, for appel-lee. ,
   PLEASANTS, C. J.

This suit was brought by the state of Texas, acting by and through Fred W. Davis, commissioner of agriculture of the state of Texas, in his official capacity, against W. R. Stockwell, to have a certain Citrus trifoliata hedge on block 13, in Graham’s addition to Alvin, belonging to defendant, declared and adjudged a nuisance and ordered abated; and also for a writ of injunction restraining and prohibiting defendant, his agents and attorneys, and all other persons who may claim to be interested in said land and premises and hedge, from in any manner interfering ■ with or opposing plaintiff, his deputies, agents, assistants, servants, and employes, in the destruction of said hedge, and that said injunction be and remain in all things perpetual. Judgment was rendered overruling defendant’s plea in abatement, general and special demurrers, and sustaining plaintiff’s demurrers and exceptions to defendant’s answer, and granting the injunction prayed for by plaintiff.

Plaintiff’s petition alleges, in substance, that there is situate and growing upon premises owned by defendant and described as block 13 of Graham’s addition to Alvin, Tex., a Citrus trifoliata hedge, and various Citrus trifoliata trees, all of which are badly infected with citrus canker. The remaining allegations are:

“That said disease is most contagious and destructive to the life and value of citrus fruit trees, such as lemons, grape-fruit, and oranges, is capable of being distributed and communicated to other trees and orchards, and such trees will then become infected therewith, and be ultimately ruined, destroyed, and lost, and of no value whatever to the owners thereof; that said disease is highly infectious, and is capable of being, and often is, carried about from an infected tree, and communicated to other citrus trees and orchards a great distance therefrom, by birds, animals, the wind, and by other causes, so as to cause the infection thereof, and the death, destruction, and loss of all such trees and orchards; that under the laws of the state of Texas it is the sworn duty of said Fred W. Davis, in his said official capacity, aided and assisted by his deputies, employés, servants, and assistants, to kill and destroy all such trees found to be afflicted and infected with citrus canker, and thereby suppress, destroy, and eradicate said disease, so as to protect and save the clean and unaillicted and uninfected trees, orchards, and hedges of the state of Texas, and thus protect and build up a great and valuable industry in those sections of the state where citrus fruit trees will grow and fruit, to the advantage and profit of the owners thereof and to the state at large.
■ “Now the plaintiff would represent that, in obedience to said law and in pursuance of his duty thereunder, this said Fred W. Davis, as aforesaid,' caused the said hedge in and upon said land and premises, as well as all other such trees and plants' in said community and in Brazoria county, to be fully and carefully inspected by his said deputies and assistants, who were and are learned in the art and science of citrus canker and other diseases of citrus fruit trees, and were and are fully capable of making a proper inspection thereof; and on inspection, on or about May 13, 1916, found the said hedge on said land and premises to be, and the same is now, badly infected with said citrus canker as aforesaid; and after giving all due and legal notice of the infected and diseased condition of said hedge and trees to said defendant, W. R. Stockwell, and in the manner and as required by the laws of this state, and notifying and demanding such defendant to cut down, kill, and destroy said trifoliata hedge, as required by law, and thus give protection to the other trees and orchards of citrus fruits growing in the neighborhood thereof, from which decision of said inspectors said W, R. Stockwell duly appealed to Fred W. Davis, commissioner of agriculture for the state of Texas, as provided by law ; and said appeal was duly heard by said commissioner of agriculture at Alvin, in Brazoria county, Tex., on the 21st day of October, A. D. 1916, at which hearing all parties at interest appeared in person and by attorneys, and fully presented said cause to said commissioner, whereupon said commissioner took said cause under advisement, and on the 23d day of November, 1916, rendered his judgment, sustaining the judgment of his inspectors, and ordering said hedge destroyed ; that, in pursuance of said judgment and order, R. W. Holbert, deputy inspector of the state department of agriculture, acting under authority and by instructions of the commissioner of agriculture, did on the 12th day of December, 1916, call upon said W. R. Stockwell, and demanded of him that he dig up, burn, and destroy said hedge; that thereupon said W. R. Stockwell-refused to comply with said order of the said inspector R. W. Holbert, and the said R. W. Holbert then notified said W. R. Stock-well that he would, as inspector, acting under the authority of law, proceed to dig up, bum, and destroy said .hedge, whereupon said W. R. Stockwell forbid said inspector, R. W. Holbert, to enter upon said premises and destroy said hedge, stating to said Holbert that he would not allow him to enter upon said premises and destroy said hedge; and by the acts of said defendant, the said Stockwell, the said Fred W. Davis is prevented from carrying out his duty, as required by law, in the destruction of said hedge.
“Plaintiff further shows unto the court that said hedge is of no value to defendant, and will in a few years be destroyed as a result of the disease, and in its -infected and diseased condi-' tion is a nuisance to the community, is a cause and source of infection of citrus fruit trees and orchards in said community, and within a radius of several miles thereof, and that the absolute and complete destruction by being cut down, dug up, and burned, all such contaminated, infected, and diseased hedge, is the only way to eradicate, suppress, and destroy said dangerous disease; so as to save and preserve other citrus trees and other orchards therefrom.
“Plaintiff further shows unto the court that there are many other valuable citrus fruit trees and citrus fruit orchards belonging to other and various citizens of the Alvin neighborhood, which are contiguous to and in danger of and capable of being infected and afflicted with said citrus canker, and become diseased therewith, and rendered wholly valueless by infection from said hedge on said premises as aforesaid, and said trees and orchards are now daily becoming so infected and diseased and rendered valueless, and unless said defendants, their agents, em-ployés, and attorneys, are restrained in their violent acts toward, in, and upon plaintiff’s said deputies, assistants, servants, and employés, so that they may be permitted to so destroy said hedge, all of said clean, undiseased, uninfected, and healthy citrus fruit trees and orchards as aforesaid will soon be and become infected and diseased with said citrus canker, communicated from said hedge, and rendered valueless, to the great and irreparable injury and loss of many citizens of said Alvin county and Brazoria county, as well as the state at large, and cause great loss to said citizens, county, and state.
“Plaintiff further shows that the state of Texas, nor its agents, deputies, assistants, or em-ployés, nor the citizens of said community, county, or state of Texas, have an adequate remedy at law.
“Wherefore plaintiff prays that said hedge as aforesaid be declared and adjudicated a nuisance and ordered abated; that your honor issue your most gracious writ of injunction, restraining and prohibiting the said defendants, and each of them, their agents and attorneys, and all other persons who may claim to be interested in said land and premises and hedge, from in any manner interfering with or opposing plaintiff, his deputies, agents, assistants, servants, or employés, in the destruction of said hedge as aforesaid, and that said injunction be and remain in all things perpetual. Plaintiff further prays for all such other general and special relief to which he may be entitled, either at law or in equity, for all costs of suit, and for same will he ever pray.’’

Attached to the petition is an affidavit of Fred. W. Davis to the effect that the facts therein stated are true.

The defendant answered by plea in abatement, general demurrers, and special exceptions, and special denials of many of the allegations of fact contained in plaintiff’s petition, but admitted that the hedge in question was infected with citrus canker. This admission was qualified, however, by statements that only some of the plants in the hedge were so infected, and by averments that the destruction of the entire hedge was unnecessary. The answer further admits that the hedge was inspected by a deputy inspector of the state department of agriculture, who condemned it, and notified appellant to dig it up and burn it; that appellant appealed from that decision of the inspect- or to Fred W. Davis, commissioner of agriculture, and upon a hearing of the appeal the commissioner sustained the findings of the inspector, and ordered the hedge destroyed ; but it is averred in the answer that the hearing was informal and illegal, because defendant was denied a right of trial by jury, and because the commissioner took the position of an opposing party, employed counsel to represent him, and was thereby “wholly disqualified to give a fair and impartial judgment and decree upon any issue presented to him,” and that no facts were determined by the commissioner on said hearing in the written order or decree made by him.

The plea in abatement filed by the defendant is as follows:

“That plaintiff has instituted this suit against the defendant, and alleges that the hedge and trees growing upon defendant’s land and premises are infected with citrus canker and purple scale, and that such diseases are infectious and communicable to other citrus trees in the vicinity of the defendant’s land, and that by reason thereof said hedge and trees constitute a nuisance, and the plaintiff prays that said hedge be declared and adjudicated a nuisance and ordered abated; that the plaintiff has invoked the jurisdiction of this court upon the issue as to whether or not said hedge constitutes a nuisance; that until such issues are determined by a proper trial, and adjudicated in the district court of Brazoria county, Tex., and until said hedge is adjudicated a nuisance and ordered abated by the decree of said court invoked by the plaintiff herein, defendant is well within his right to deny the plaintiff and its commissioner, Fred W. Davis, his agents and inspectors, from going upon defendant’s premises and destroying said hedge and trees.”

Under appropriate assignments of error, appellant assails the judgment of the trial court on the grounds that the statute under which the commissioner acted in ordering the destruction of appellant’s hedge is unconstitutional and void in that it violates the provisions of the Constitution against an “unreasonable seizure,” against the taking of private property “without due process of law,” and against the taking of private property “without nompensation.” These objections are also urged against the acts of the commissioner and his inspector in condemning appellant’s property and ordering its destruction.

The provisions of the statute in question, which.is article 4459, Vernon’s Sayles’ Texas Civil Statutes, declares it unlawful for any person in this state to keep any citrus stock, plants, trees, or shrubs Infected with injurious insect pests, or “contagious diseases of citrus fruit”; and that every such tree, plant, or shrub “shall be a public nuisance, and as such it shall be the duty of the commissioner of agriculture, or his representatives, to abate it.” It is further declared in this statute that the owner of any such trees, plants or shrubs shall not be entitled to damages for their destruction if done in accordance with the provisions of the act. The article then provides as follows:

“But the owner of the trees, shrubs, or plants shall be notified immediately upon its being determined that such trees, shrubs or plants should be destroyed, by a notice in writing signed by the commissioner, or the person or persons representing him; which said notice in writing shall be delivered in person to the owner of such trees, shrubs or plants, or left at the usual place of residence of such owner, or, if such owner be not a resident of the locality, to notify by leaving such notice with .the person in charge of the premises, trees, shrubs or plants, or in whose possession they may be. Such notice shall contain a brief statement of the facts found to exist, whereby it is necessary to destroy such trees, shrubs or plants, and shall call attention to the law under which it is proposed to destroy them, and the owner shall, ¡within ten days from the date upon which such notice shall have been received, remove and burn all such diseased or infected trees, shrubs or plants. If, however, in the judgment of said commissioner, or person representing him, any tree, shrub or plant infected with any disease, or infested with dangerously injurious insects, can be treated with sufficient remedies, he may direct such treatment to be carried out by the owner under the direction of the commissioner, agent, employe, or representatives. In case of objections to the findings of the chief inspector, employés or representatives of the commissioner, an appeal may bo made to the commissioner, whose decision shall be final. An appeal must be taken within five days from service of said notice, and shall act as a stay of proceedings until it is heard and decided. When the commissioner, or chief inspector, or employer or representative appointed by him, shall determine that any tree or trees, shrub or other plants must be treated or destroyed forthwith, he may em- ■ ploy all necessary assistance for that purpose; and such representative or representatives, agent or agents, employé or employés, may enter upon any or all premises necessary for the purpose of such treatment, removal or destruction. But such commissioner, or the person representing him, shall, before such treatment or destruction, first require the owner or person in charge of the trees, shrubs or plants, to treat or destroy same, as the ease may be; and, upon the refusal or neglect upon the part of said owner or person in charge to so treat or destroy such trees, plants or shruDS, then such commissioner, chief inspector, or person or persons representing him, shall treat or destroy such trees, shrubs or plants; and all charges .and expenses thereof shall be paid by such owner or person in charge of said trees, shrubs or plants, and shall constitute a legal claim against such owner or person in charge, which may be recovered in any-court having jurisdiction, upon the suit qf siieh commissioner, or chief inspector, or the county attorney of the county where the premises are situated, together with all costs, including an attorney fee of ten dollars, to be taxed as other costs.”

We do not think this statute is obnoxious to any of the provisions of the Constitution invoked by appellant. The authority of the Legislature in the exercise of the police power of the state for the protection of public health, safety, and morals, and the security of the great body of the citizens in the safe enjoyment of their property rights, to make unlawful the doing of any, act by the individual citizen which will endanger the public welfare, cannot be doubted; and the provisions of the act in question which makes it unlawful for any person in this state to keep a citrus plant infected with any injurious and. contagious disease, and authorizes the destruction of such plant by the proper officers, after determination in the method provided in the statute that it is so infected, cannot be held to authorize an unreasonable seizure of private property. The seizure and destruction by the state of individual orchards or trees for the necessary protection of the fruit-growing industry of the state is no more, an unreasonable seizure of private property, in the purview of our Constitution, than is the seizure and destruction of diseased animals for the protection of the stock industry, nor the exercise of the police power in destroying private property to prevent the spread of a conflagration, or of a contagious human disease. The right of the state to seize and destroy private property for any of these purposes has been uniformly recognized and upheld by the courts.

We think it also clear that the method provided by the statute for determining the necessity for the destruction of the plants refutes appellant’s contention that the statute authorizes the taking of private property without due process óf law.

The provision of the Constitution which prohibits the Legislature from depriving any citizen of his property except by due course of the law of the land has a different meaning, when applied to controversies between citizens, to that given it when property is taken or destroyed by the governmeni: for public use, or the public welfare; and when the Legislature, in the exercise of its police powers, interferes with the use and enjoyment of private property, we have only to see that the interference is justified by established rules applicable to the special case. Cooley’s Constitutional Limitations, § 435. It would be a strained construction of our Constitution to hold that the exercise of police power by the state cannot be valid without a judicial trial for ascertaining in each case the necessity of the authorized action. The method provided in this statute for the condemnation and destruction of diseased plants does not have the elements of a judicial trial, but the proceedings are appropriate and adapted to the nature of the case and must be held valid.

Every one’s right to the use and enjoyment of property is necessarily limited in organized society by considerations of public welfare and safety, ánd the Legislature, in the exercise of police power of the state, can enforce this limitation by any reasonable method appropriate to its accomplishment, and the citizen must submit. To hold otherwise would deny society the right to protect itself by lawful means. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; Chambers County Judge v. Gilbert, 17 Tex. Civ. App. 106, 42 S. W. 630; Livingston v. Ellis County, 30 Tex. Civ. App. 19, 68 S. W. 723; City of New Orleans v. Charouleau, 121 La. 890, 46 South. 911, 18 L. R. A. (N. S.) 368, 126 Am. St. Rep. 332, 15 Ann. Cas. 46.

The contention that the destruction of appellant’s property, under the provisions of this statute, is a violation of the constitutional inhibition against the taking of private property for public use without compensation to the owner, is one that seems to us has much force; but it has been decided by our courts that this provision of the Constitution only applies to the taking of property by the state under its powers of eminent domain, and is not a limitation upon the police power. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850; Livingston v. Ellis County, 30 Tex. Civ. App. 19, 68 S. W. 723.

Having reached the conclusion that the statute is not invalid upon any of the grounds, above discussed, it follows that it was competent for the Legislature to provide in the statute that the decision of the commissioner should be final. If appeal was allowed to the courts from the decision of the commissioner, the delay incident to regular judicial proceedings, with the right of a jury trial upon the facts, would in many cases-render the statute impotent for the purposes for which it was enacted. Any remedy for the prevention of the spread of infectious-disease among animals or plants, to be efficacious, must be prompt; and the Legislature, having provided a constitutional method and tribunal for determining the fact of the existence of the disease, was not required, by any provision of the Constitution, to give a right-of appeal from the decision of such tribunal.

We think the court correctly held that the-decision of the commissioner was final, and properly sustained exceptions to appellant’s, answer attacking that decision upon the grounds of informality or irregularity. These conclusions make it unnecessary to-discuss the remaining assignments of error presented in appellant’s brief.

We are of opinion that the judgment should be affirmed, and it has been so ordered.

Affirmed.
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