author: PLY, O. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. LA TOLTECA CIA DE CEMENTO PORTLAND, S. A.
    (No. 6053.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    Rehearing Denied June 21, 1918.)
    Cabeiebs <s=3'13S — Relation — Destkuction op Goods — Liability.
    Where goods were consigned to place in Texas, care of third person “not for purpose of delivery,” ultimate delivery being to consignee in Mexico, and it was the custom of the carrier after goods had been changed to Mexican car to transfer them across border to carrier in Mexico, payment of freight and notice to carrier by consignee that he had transferred goods to Mexican car was sufficient to render carrier liable, as a carrier, and not as warehouseman for negligent delay in transporting the car whereby goods were destroyed by fire; no formal acceptance being necessary.
    Appeal from District Court, Maverick County; Joseph Jones, Judge.
    Suit by La Tolteca Cia de Cemento Portland, S. A., against the Galveston, Harrisburg & San Antonio/ Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker :& Garwood, of Houston, Boggess & Smith, of Del Rio, and W. B. Teagarden, of San Antonio, for appellant David E. Hume and Sanford & Wright, ail of Eagle Pass, and Lewright & Douglas, of San Antonio, for appellee.
   PLY, O. J.

Appellee sued for and recovered of appellant the sum of $7,290.93 for a certain carload of cement bags destroyed by fire in Eagle Pass, Tex. The cause was tried by jury and a verdict instructed for ap-pellee. Appellant contends that, under the facts, a verdict should have been instructed for it.

The car of cement bags was shipped from St. Louis, Mo., by the Chase Bag Company, and was consigned to appellee at Eagle Pass, Tex., care of J. D. Beck; but it was recited in the bill of lading that, while the property was so consigned, it was “not for purposes of delivery.” The bags were really destined for a point in Mexico, and it was the custom, in case of such shipments, to demand a Mexican car from appellant in which to transport the property to Mexico. That demand was made in this case as soon as the freight bill was delivered to Beck. It was the custom for appellant to make the transfer to the Mexican side of the Rio Grande. A Mexican car was furnished after a delay of two weeks or more, and Beck had the hags transferred to that car at once. Appellant had been notified that the transfer had been made and the car ready to he carried across the river. Appellee had done all that was required of it when the fire occurred that destroyed the car of bags. The car and bags were totally destroyed by fire. The car and its contents were in the possession of appellant when destroyed, to be transported by it across the Rio Grande.

It was customary for appellant to carry' cars across the river intrusted to it for shipment to Mexico, and it had assumed this duty in this case. The duties and liabilities imposed upon it as a common carrier did not cease until it delivered the property to its connecting carrier. It negligently delayed such carriage across the river, and the car was consumed by fire through such negligence. Appellee performed every duty resting upon it in connection with the freight. All the charges had been paid. It was not intended that the hags should be delivered to appellee at Eagle Pass, and the stipulation that “for loss, damage or delay caused by fire occurring after forty-eight ,ho)urs (exclusive of legal holidays) after notice of the arrival of the property at destination or at’ port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only,” could have no hearing on this case. It was expressly stipulated that the freight was not to be delivered. The freight never passed from the possession of appellant, but was held by it for over two weeks before it resumed its journey. Payment of the freight did not constitute a delivery of the bags.

In the case of Southern Ry. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836, cited by appellant, the goods had been shipped from Petersburg, Ya., to Edgefield, S. C., and a part of them had been taken away by the consignee. The other goods were consumed by fire, and, of .course, the Supreme Court held that the liability of the company as a carrier had ceased, and that It could only be held liable for negligence as a warehouseman. Such is not the state of facts in this case. If there had been a shifting from the liability of a carrier to that of warehouseman, when the bags were transferred from the American to the Mexican car, the liability of appellant again attached, for it then became its duty to transport the car to the other side of the river. Having made it a rule to accept property thus loaded for transportation, its acceptance of the car dated from the moment that it was notified that the ear was ready for shipment. “When the owner of the goods has done all in his power and all that he is required to do by his understanding with the carrier or the usage of the business to further the shipment, and it becomes then the duty of the carrier to do whatever else is necessary to put them in transitu, the deliverance and acceptance will be considered as complete from the time the carrier is informed that they are ready for him. No formal acceptance is necessary.” Elliott on Railroads, § 1404; Aiken v. Railway, 68 Iowa, 363, 27 N. W. 281; London v. Rome, 144 N. Y. 200, 39 N. E. 79, 43 Am. St. Rep. 752; Railway v. Cage, 174 S. W. 855.

The testimony was positive as to delivery to appellant, and was not contradicted, and the court was justified in instructing a verdict in favor of appellee.

The judgment is affirmed.
      gb^jFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    RUNNELLS v. PRUITT.
    (No. 7976.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.
    Rehearing Denied June 29, 1918.)
    1. Vendor and Purchaser <@=140 — Furnishing Abstract.
    Where land contract provides that abstract shall bo furnished, but does not fix the time, the abstract is to be furnished within a reasonable time before the date fixed for performance of the contract.
    2. Vendor and Purchaser <@=140 —Furnishing Abstract.
    Where under a land contract dated June 11th, and setting the date for performance as the following January 1st, the abstract of title was furnished July 1st following the date of the contract, it was furnished within a reasonable time.
    3. Vendor and Purchaser <@=144(2) — 'Kme oe Perfecting Title.
    Generally, in the absence of agreement to the contrary, it is unimportant that the vendor’s title is bad, or that the land is incumbered at the time the contract is made, if the contract is made in good faith and the vendor is prepared to convey the title guaranteed at the time set for performance.
    4. Vendor and Purchaser <@=144(1) — Defects in Abstract.
    Where defects in title as shown by vendor’s abstract were, upon return of the abstract with objections of purchaser’s attorney, cured by securing deeds and releases, and mistakes of the abstracter were discovered by comparison with the records, and the corrections were noted unofficially on the abstract, and, before the date of performance of the land contract the abstract was returned to the purchaser’s attorney, who refused to accept it as it was or agree to take the land if a new official abstract with the notations included and certified to was furnished, although admitting that the unofficial memoranda purported to cure objections to the title, a finding that the purchaser breached the contract was justified.
    5. Vendor and Purchaser <@=330 — Damages for Breach of Purchase.
    The measure of damages for the breach by the purchaser of a contract to convey and purchase land is the difference between the price the seller was to receive and the market value of the land at the date of the breach, plus interest from the date of such default.
    6. Mortgages <@=118 — Obligation Secured —Breach of Contract.
    Where land contract expressly gave the purchaser the right of possession pending examination of the title, etc., and the purchaser to secure its performance gave a deed of trust on other land, such security on breach of the purchaser’s contract could be subjected to satisfaction of the purchaser’s damage and waste while in possession, since the right of possession given by the contract contained the implication, as a matter of law, that in case the purchaser refused to accept the land he would return it free of damage or waste.
    7. Damages <@=80(1) — “Liquidated Damages.”
    Generally, if damages from breach of contract are certain and determinate, a sum named as damages for breach will not be treated as “liquidated damages,” unless it bears such proportion to the actual damages as to raise the presumption it was arrived at by fair estimation of the parties.
    [Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Liquidated Damages.]
    8. Damages <S=79(5) — “Liquidated Damages.”
    Where a land contract provided for possession by the purchaser pending examination of title, etc., the disposition of rentals and crops, and the giving of security by the seller and purchaser for performance thereof, and, upon the purchaser’s refusal to perform, damages from his waste and conversion of crops and failure to account for the seller’s share of the crops and depreciation in value of the land could be made certain and determinate by proof, the seller’s recovery for the breach was not limited to the sum named as security, but such sum would be treated as a penalty only.
    Error from District Court, Dallas County; W. F. Whitehurst, Judge.

      Suit by C. M. Pruitt against Jesse Run-nells. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Bumpass & Crumbaugb, of Terrell, for plaintiff in error. Adams & Stennis, of Dallas, for defendant in error.
   RASBURY, J.

Defendant in error sued plaintiff in error in tbe court below to recover damages alleged to be tbe consequence of tb'e latter’si breach of contract to purchase from defendant in error certain lands in Dallas county, and to foreclose deed of trust lien upon certain land, executed by plaintiff in error as security for the damages resulting from the breach of the contract. The damages alleged were the depreciation in value of the land, permitting Johnson grass to seed thereon, damage to th'e well on the premises, conversion of growing crops upon said land, consisting of com, oats, and millet, as well as pecans and wood thereon, and for failure to account to defendant in error for his portion of cotton grown on said land. Plaintiff in error answered, admitting the execution of the contract and deed of trust and his refusal to accept the land, which he agreed to purchase, but asserting that his failure to accept the land was due to defendant in error’s failure to furnish him a perfect abstract of the title to the land, as he agreed to do, denied the specific items of damage alleged, and the conversion of growing crops, etc. By agreement of the parties the issue of whether plaintiff in error was excused from accepting the land on the ground that defendant in error failed to furnish a perfect abstract of title to the property was submitted to the court. The issue of damages and th'e amount, if any, to be awarded were submitted to the jury for special verdict. The findings of both court and jury were for defendant in error, upon which judgment was entered for defendant in error for $3,809.30, such sum made up of the several items specified in the pleading. The lien of the trust deed was foreclosed, and the land ordered sold to pay the judgment. From such judgment the plaintiff in error has appealed.

The substance of the findings of the court on the issue referred to him by agreement was that defendant in error did, within a reasonable time, furnish plaintiff in error an abstract of title to the land for examination, which was examined by the latter’s attorney, and to which objectionsi of a material nature were made, tout that before the time set for performance of the contract such defects were cured, and defendant in error offered to furnish a new abstract, showing perfect title, but that plaintiff in error refused to accept same. The court concluded as matter of law that the action detailed constituted a breach of the contract by plaintiff in error.

The effect of the first four assignments is to assert that the findings of the court are without support in the evidence, and that as a consequence the verdict of the jury on the issues referred to them is without basis. The facts deducible from the evidence tending to ; support the finding of the court are, in substance, these: On June 11, 1914, (Pruitt and Runnells agreed in writing that Pruitt would sell and Runnells would purchase 445 acres of land belonging to the former upon the terms stated therein, the transaction to be concluded on or before January 1, 1915. Pruitt agreed to furnish Runnells “a perfect abstract of title” to the land. Runnells was to have possession of the land, and Pruitt’s personal crop on the land. Pruitt was also to account to Runnellsi for the current rents. Runnells was to' deposit in bank one-fourth of the proceeds from all cotton produced by tenants and one-half of the proceeds of that produced by his own efforts pending consummation of the sale and purchase. Each agreed to deposit in bank his check for $1,000 “for the carrying out” of the agreement. Upon failure of either to do that required by the contract th'e bank was to deliver both checks to the other. By supplemental contract of July 11, 1914, it wasi agreed that Pruitt should deposit with the bank his check for $2,000, in lieu of the one for $1,000, and . that Runnells should execute a deed of trust upon certain lands as security in lieu of the $1,000 check. Pruitt deposited an additional $1,000 check, hnd Runnells executed the deed of trust, the provisions of which will be referred to at another place in this, opinion, and took possession of the land and improvements about June 20, 1914. About July 1, 1914, Pruitt delivered Runnells an abstract of title to the land. About two weeks thereafter Runnells delivered it to Mr. A. H. Das-hiell, his attorney, for examination. Das-hiell commenced examining the title about August 1, 1914, the intervening time being spent by Runnellsi in arranging a fee. On September 15, 1914, in response to a letter from W. T. Jacobs & Co., agents for Pruitt, Dashiell wrote the latter that the title was quite defective, reciting some objections but warning that those pointed out were not all, nor intended to be a waiver of the others. Jacobs & Co. sought to employ Dashiell to cure th'e errorsi. The employment was declined. On October 3, 1914, Dashiell advised Pruitt and Jacobs that he declined to approve the title, since at most it was only a title by limitation. Pruitt, after being so advised, and subsequent to October 19, 1914, employed Adams & Stennis, attorneys, to perfect his title. Mr. R. L. Stennis spent approximately five weeks examining into the title as a whole, which was necessary for the reason that Mr. Dashiell had not pointed out his specific objections to the title. Adams & Stennis, on November 27, 1914, for the first time communicated with Dashiell, advising the latter that for Pruitt they had perfected the title, and that Pruitt would hold Runnells to a compliance with! his contract. On November 30, 1914, Dashiell replied in substance that, the title being such a hopeless condition, he had assumed the matter had been abandoned, Since he had not been informed that any attempt was being made to perfect same, and whether it had been perfected he would be unable to determine until the abstract was returned to him. He also advised that the contract called for a perfect record title, and that Bunnells would have accepted such title originally, had it been presented, and would yet do so if presented in time for Bunnells to make his arrangements for the deal. December 4, 1914, Adams! & Stennis again wrote Dashiell, claiming to have cured the material defects in the title, and suggesting that Das-hiell point out any further objections. On December 5, 1914, Dashiell advised Adams & Stennis that if they would send him the abstract of title he would prepare formal written opinion upon the title, since-while he had certain, memoranda, made at the time he examined the title, he could not point the objections out without the abstract. Warning was given, however, that the request and offer were not to be considered a waiver of Pruitt’s failure to furnish a perfect abstract of title in time for the sale to be consummated. December 8, 1914, Dashiell acknowledged receipt of the abstract, and stated that he would see Mr. Bunnells and ascertain if he was willing to accept the land, if title be perfected by January 1,1915, but not waiving the right, which he had exercised, to abrogate the contract when Pruitt failed to present a perfect abstract of title. On December 15, 1914, Dashiell furnished Adams & Stennis formal opinion, pointing out 22 specific objections to the title, from which he concluded, as formerly, that Pruitt’s title was one by limitation which could not be accepted by Bunnells, renewing his statement that his opinion was not a waiver of Pruitt’s original failure to comply with his contract, and advising that possession of the premises would be abandoned January 1, 1915, and returning the abstract. December 28, 1914, Adams & Stennis wrote Dashiell, reviewing his objections, admitting some to be correct, claiming some to be errors of the abstracters, and furnishing certain pencil memoranda which, it was claimed, disclosed a perfect title as construed by the courts, and offering, if Dashiell was not satisfied with the pencil memoranda furnished, to furnish an entire new abstract of title, certifying to the correctness of the pencil memoranda. December 29, 1914, Dashiell advised Adams & Stennis that he was still of opinion that the title was one by limitation, but if presented at that late day with an abstract showing a perfect title, he would not advise Bunnells to accept same. B. L. Sten-nis, after qualifying as an expert, testified upon trial that the deeds, etc., secured and corrections indicated by the pencil memo-randa made by him in his opinion would have shown a perfect title. Dashiell, who also qualified as an expert, testified that the pencil memoranda made by Stennis upon the abstract returned to him purported to cure the objections made by him. Pruitt tendered Bunnells a deed to the land within the time set for performance of the contract.

In order to ascertain whether the conclusion of the court that plaintiff in error’s action in refusing to accept the land under the facts recited was a breach of the contract on his part, it will be necessary to briefly consider the duties of the respective parties in such cases in the light of the contract. In nearly every case the rights and duties of the parties vary according to the dissimilarities in the provisions of the given contract. In the contract under consideration no time was fixed as to when the abstract should be furnished. It merely provided that the abstract should be furnished. The rule in such cases is that the abstract shall be furnished for examination within a reasonable time before the date fixed for performance of the contract. 39 Oyc. 1520. The contract under discussion was dated June 11, 1914, the abstract was furnished July 1, 1914, and the date set for performance of the contract was January 1, 1915. This allowed six months for examination, obviously a reasonable time.

However, whether plaintiff in error was allowed a reasonable time in which to examine the abstract is not the real matter in dispute, and was not what the finding of the court that plaintiff in error breached the contract was based upon. What the court found was, in substance, that after the attorney for plaintiff in error had examined the abstract and pointed out the objections to the title they were in various ways cured, and an offer made, three days before the time set for performance of the contract, to furnish an abstract delineating such title as was contemplated by the contract, which, under all the circumstances, was a reasonable time before the time set for performance in which to furnish “a perfect abstract of title.” Under all the facts recited, did plaintiff in error’s refusal to accept the land constitute a breach of the contract? Generally, in the absence of agreement to the contrary, it is unimportant that the vendor’s title is bad, or that the land is incumbered at the time the contract is made, if it is made in good faith and he is prepared to convey the title guaranteed at the time set for performance. 39 Cyc. 1259: Mitchell v. Allen, 69 Tex. 70, 6 S. W. 745. As a consequence, the contention of plaintiff in error that he was entitled to repudiate the contract before the date set for performance, if before that time the title was defective, is unsound. The cases seem to go even further where time is not of the essence of the contract. “The established principle is that where a contract is entered into in good faith, and time is not of its essence, and is not made material by the offer to fulfill by the other party and a request for a conveyance, the vendor will be allowed reasonable time and opportunity to perfect his title, however defective it may have been at the time of the agreement. All that is necessary is that the plaintiff is able to make the stipulated title at the time when by the terms of the agreement, or by the equities of the particular case, he is required to make the conveyance to entitle him to the consideration.” Andrew v. Babcock, 63 Conn. 109, 26 Atl. 715; Arnett v. Smith, 11 N. D. 55, 88 N. W. 1037 and cc. In the present case plaintiff in error went into immediate possession of the land and used and cultivated same for a period of more than 6⅜ months. Obviously time was not of the essence of the contract to convey, since possession was all that immediate conveyance would have conferred. While the authorities cited indicate that the vendor, the equities being sufficient, would have a reasonable time to perfect his title after the defects were pointed out, even though it extended beyond the time set for performance, it is not disputed that in the present case the defendant in error claimed to have perfected his title before the day set for performance, and was ready to furnish new abstract showing such state of title, if plaintiff in error would accept the land. This plaintiff in error declined to do. His declination cannot be put upon the ground that the tune was too short in which to examine the title, for his attorney had done that. The only additional labor involved was to determine whether the new abstract in fact disclosed that the objections had been cured or obviated. As a consequence the. only inquiry is whether the evidence will sustain the finding of the court that when defendant in error offered to furnish plaintiff in error a new and corrected abstract the former had a perfect title to the land; that is to say, one free of material defects. We have recited the facts tending to support the findings of the court. Summarized briefly they disclose that the material defects in and objections to the title were cured by securing deeds and releases. The other errors were largely mistakes of the abstracter, as shown by comparison of the abstract entries with the county record. These corrections were noted upon the abstract and returned to Dashiell. He was asked ¡to accept the old abstract with the unofficial notations or to agree to take the land if an entirely new one, with the notations included and certified to, was furnished. This he declined to do. He admitted that the memoranda purported to cure the objection, which was but to say that the title was the one contemplated if the notations were correct. Both Dashiell and Stennis were experts in the examination of titles and qualified to pass upon same. The facts so appearing, we conclude we would not be justified in holding they are insufficient to support the trial court’s finding.

As appears from our statement of the case, the contract specifically provides that the plaintiff in error shall, in the manner provided in the contract account for the cotton then growing on the land when marketed. The contract does not in terms covenant against conversion of other growing crops on the land or waste. Verdict and judgment was not only for the- value of the cotton not accounted for, but for items of conversion and waste as well. The deed of trust referred to in our statement was held to be security for the performance of tire-contract by the trial court, and in foreclosing the lien given thereby it was foreclosed in payment of all items of damage. Upon the premises recited plaintiff in error contends that the security is available only for the depreciation in value of the land and the items particularly specified in the contract. The measure of damages for the breach by the purchaser of a contract to convey and purchase land is the difference between the price the seller was to receive and the market value of the land at the date of the breach, plus interest from the date of such default. Kempner v. Heidenheimer, 65 Tex. 587; Monroe v. South, 64 S. W. 1014; Smith v. Lander, 89 S. W. 10. In the absence of anything in such a contract evidencing an intention to include elements of damage other than those which would be the natural consequence of its breach, the security given for its performance could not, in our opinion, be subjected to the satisfaction of such other damages, though recoverable. As we have shown, the contract to convey and purchase in its essentials provides the price to be paid for the land, the manner of its payment, the rate of interest on deferred payments, the disposition of rentals and growing cotton crops, the furnishing of an abstract of title, the right of possession by the purchaser, and the giving of security by the seller and purchaser for the performance thereof. The security given was a deed of trust. The recitations in that instrument are involved, vague, and awkward, but, fairly interpreted, indicate an intention to fix a lien upon the land described for $2,000, to secure the performance on the paft-t of plaintiff in error of the contract. There is in the contract no-express provision covering the conversion of growing crops or waste. 'Hiere is, however, contained therein the right of possession. Such possession, as matter of law, contemplated that in the event the purchaser refused to accept the land he would return it to the seller free of damage or waste. That duty clearly arises by implication from the right of possession. Such being the purchaser’s duty, and it appearing from the evidence that both damage and waste were committed, such additional elements would be recoverable, because the natural consequence of his failure to surrender the premises as received. Such liability, in our opinion, arises, not upon refusal to purchase, but because of wrongful acts while in possession of the premises.

Finally, it is contended that the parties by their contract fixed the amount of their damages, and, as a consequence, neither party was entitled to recover a greater sum. The contention presents the oft-recurring question of whether the sum stipulated to be paid upon a breach of contract is a penalty or liquidated damages. The general rule is that if the damages resulting from a breach of the contract are certain and determinate, courts will not treat the sum named as liquidated damages, unless it bears such proportion to the actual damages as to raise the presumption it was arrived at by fair estimation of the parties. Collier v. Betterton, 87 Tex. 440, 29 S. W. 467. Where, under the rule stated, the sum named is held to be a penalty, that is, where the damages are certain and determinate, the amount of recovery is not controlled by the sum named, but is confined only to whatever sum the proof shows the actual damages are. Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., 148 S. W. 1109. Under the rules cited it follows, we think, that the sum named in the contract under discussion was a penalty, since it is clear that under the decisions of our courts the damages recovered in this case could be made certain and determinate by proof. The depreciation in value of lands, the value of growing crops of cotton, and other farm products can easily be shown.

Finding no reversible error in the record, the judgment is affirmed.

      S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    GULF, C. & S. F. RY. CO. v. SAINT.
    (No. 5939.)
    (Court of Civil Appeals of Texas. Austin.
    June 26, 1918.)
    1. Death <&wkey;75 — Beneficiaries — Evidence.
    In an action for death, brought by wife as administratrix and beneficiary, evidence helcH to sustain finding that husband and wife, though separated, had agreed to again assume marital relations.
    2. Death ■ <&wkey;103(l) —■ Beneficiaries — Separation oe Husband and Wipe.
    That a wife is not living with her husband does not as a matter of law preclude her from recovering damages for his death, as there is probability of a reconciliation and her right of support.
    3. Death <&wkey;99(l) — 'Wrongful Death — Excessive Dama&es.
    Where the life expectancy of deceased was, as a fireman, at which occupation he was killed, 22.78 years, and his average earnings for the 4 years prior to his death were $51.50 per month, and proof showed that he was a negligent fireman, and not thrifty, a verdict of $7,-000 is excessive by $3,000.
    Appeal from District Court, Bell County; F. M. Spann, Judge..
    Action by Mrs. Docie Saint, administratrix of the estate of Albert R. Saint, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed, on condition of remittitur.
    W. W. Hair, of Temple, Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Smith, of Ft. Worth, for appellant. J. F. Hair, of San Antonio, A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellee.
   Findings of Fact.

JENKINS, J.

Appellee brought this suit to recover damages on account of the death of her husband, caused by the negligence of the appellant. The evidence establishes such negligence.

Albert R. Saint, deceased, and Docie Saint, appellee, were married in Williamson county, Tex., in December, 1904, where they resided for about 5 years, not altogether in harmony, but no serious trouble is shown between them. In 1909 Saint left, with the declared intention of finding another home for "himself and wife. We infer that they were living with their mother-in-law. He went to Bartlett, a nearby town, sold sqme mortgaged property, and went to Oklahoma. From there he wrote to a friend to see his wife and ascertain if she would come to him. She did not do so. After remaining in Oklahoma a few months, he returned to Hill county, Tex., where he was arrested on an indictment charging him with disposing of mortgaged property. He was taken to Georgetown, where he remained in. jail some 4 months. He was convicted and sent to the penitentiary. About 18 months afterwards he was pardoned. Soon after this he obtained employment as fireman for appellant, and continued in such employment until his death.

Deceased and appellee never lived together as man and wife after he left her to go to Bartlett. She never visited him while he was in jail. Soon after he was pardoned he wrote her a letter, professing great affection for her, and expressing a desire to again live with her. To this she did not reply. During the following 4 years she saw him only twice (until she went to the hospital), and then for only an hour or two at the time, at which times the subject of their again living together does not appear to have been discussed.

About three months before Saint’s death, appellee was in the hospital at Temple for some 10 days, during which time Saint visited her several times. There is other evidence in the record which indicates to our minds that appellee had no affection for her husband, and never intended to live with him again, and that he had lost his desire to again live with her. During all the time that they thus lived apart, he contributed only $8 to her support, and this was long before his death. He never saw her after she left the hospital, and did not pay any part of her bill ■there. Notwithstanding his name, she evidently thought that, like Jim Bledso, “he weren’t no saint,” and he seemed to have entertained the same opinion of her.

However, her testimony as to what passed between them at the hospital, together with the testimony of her brother-in-law as to what Saint said to him, is sufficient to sustain the finding of the jury that they intended to live together again as husband and wife, which is the effect of the verdict in her favor, and in deference to the verdict of the jury we feel constrained to find that such was the fact.

The life expectancy of deceased, not taking into consideration his occupation as a fireman, was 31.78 years. As a fireman, his expectancy was shown to be about 9 years less. His average earnings for the 4 years prior to his death were $51.50 per month. Appel-lee recovered a judgment for $7,000.

Opinion.

The principal contentions of appellant are: (a) Appellee was not entitled to a judgment for any amount, for the reason the evidence shows that it was not probable that she and her deceased husband would ever live together again, and that she had no reasonable expectation of receiving any pecuniary aid from him had he lived; and (b) the judgment is excessive. For the reason, as stated in our findings of fact, that the evidence is sufficient to sustain the verdict of the jury in her favor on the issue as to the probability of their again living together, we overrule appellant’s assignment of error in reference to this matter, including assignments as to refusal to give several special charges requested by appellant in relation thereto. The fact that a wife is not living with her husband does not, as a matter of law, preclude her from recovering damages for his death. The jury may take into consideration the probability of a reconciliation, as well as her right to be supported by him, in a proper case, and the probability of such support, and her community interest in any property that he may acquire, notwithstanding such separation. Railway Co. v. Bryant, 31 Tex. Civ. App. 483, 72 S. W. 886; Railway Co. v. Spicker, 61 Tex. 431, 48 Am. Rep. 297; Railway Co. v. Murray, 44 Tex. Civ. App. 480, 99 S. W. 152.

We sustain appellant’s assignment that the judgment is excessive. The evidence shows the present cash value of the sum of $50 per month during the life expectancy of deceased, if money is worth 8 per cent., is $6,169. It does not appear that the deceased had any property or money at the time of his death, from which we infer that he was not economical. But, even if he was, as his occupation as a fireman required him to be on the road most of the time, it is not probable that he would have saved more than $25 per month to contribute to his wife. There seems to have been no prospect of an increase in his wages as a fireman, or of his advancement to a more lucrative position. The uncontroverted evidence was that he was very negligent in the discharge of his duties as a fireman; that one engineer had made complaint against him, and that another had refused to make a second trip with him. The evidence indicates that the probability of his losing his position as fireman was greater than that of his advancement to a more lucrative position. There is no evidence of his fitness to earn wages in any other occupation. The evidence, to say the least of it, raises the issue of contributory negligence on the part of Saint as a proximate cause of his death. As the case was not submitted on special issues, yfe cannot say what the finding of the jury was on this issue, which was submitted in the general charge. But, -contributory negligence aside, we do not think the evidence will sustain a judgment for more than $4,000, and therefore the judgment is excessive to the amount of $3,000.

If appellee will file in this court within 10 days a remittitur of $3,000, the judgment of the trial court will be reformed and affirmed for $4,000; otherwise, this case will be reversed and remanded.
      <&5iFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    LAURAINE v. FIRST NAT. BANK OF WHITNEY et al.
    (No. 7601.)
    (Court of Civil Appeals of Texas. Galveston.
    June 20, 1918.)
    1. Receivers ®=o55 — Petition for Appointment — Eotteot oe Insufficiency.
    Mere defects in the petition upon which the receiver was appointed would not render the receivership proceedings void.
    2. Receivers <®=o56 — Appointment — Who may Question.
    Where petition for appointment of receiver stated a cause of action within the jurisdiction of the court, the judgment, however erroneous, cannot be set aside for defects in the pleading, especially when attacked by parties who actively procured its rendition and acquiesced in subsequent orders.
    3. Receivers <®=»56 — Appointment—Failure to Object — Effect.
    The failure of defendants to' except to the petition or appeal from the’ order appointing a receiver precludes them, on denial of later motion to vacate the order of appointment, from complaining on the ground that the petition for appointment was defective and the order improvidently made.
    4. Receivers <®=>60 — Termination of Receivership.
    Where none of the judgments have been executed, and no judgment has been rendered in a suit in intervention against the receiver, there is a necessity for continuing the receivership, although the receivership is no longer necessary for the protection, preservation, and disposition of the insolvent’s property.
    5. Receivers <⅜=60 — Termination of Receivership.
    If Vernon’s Sayles’ Ann. Giv. St. 1914, art. 2153, requiring corporation receiverships to terminate within three years in the absence of litigation pa-eventing it, could be held to apply to individual receiverships, it would not authorize termination of receivership of individual, pending litigation.
    Appeal from District Court, Harris County; Chas. E. Ashe, judge.
    Suit by the Eirst National Bant of Whitney against Margaret E. and A. C. Allen. On death of Margaret E. Allen, W. V. Lauraine, as her administrator, was made a party. The administrator moved to vacate order appointing receiver, to terminate receivership, and discharge the receiver, and H. Masterson and Eliza Kempner, interveners, filed their opposition thereto. From denial of the motion, the administrator appeals.
    Affirmed.
    Jno. G. Tod and Cooper & Merrill, all of Houston, for appellant. H. Masterson and Elliott Cage, both of Houston, and Williams & Neethe, of Galveston, for appellees.
   PLEASANTS, C. J.

This appeal is from an order of the trial com-t refusing to grant a motion filed and presented in said court by W. V. Lauraine, administrator of the estate of Margaret E. Allen, deceased, to vacate an order appointing a receiver of all the property belonging to Margaret E. Allen and A. O. Allen, and to' terminate said receivership and discharge the receiver. The receivership was granted and a receiver appointed on December 26, 1908, in a suit brought by ap-pellee Eirst National Bank of Whitney against Margaret E. and A. O. Allen.

The grounds upon which appellant sought to have the receivership vacated, and the substance of appellees’ answer to the motion, are sufficiently stated in appellant’s brief as follows:

“(1) That the original order appointing the receiver was improvidently made.
“(2) (Said receivership having existed for more than eight years, it was the duty of the court to terminate the same without further unnecessary delay.
“(3) That no necessity exists for the further continuation of the receivership.
“On the 13th day of July, 1917, the defendant A. C. Allen filed his reply to the motion, in which he pleaded to the jurisdiction of the court, and alleged his adjudication in bankruptcy on the 30th day of August, 1913, by the United States District Court for the Western District of Texas, at Waco, and alleged that. that court was the only tribunal having jurisdiction over his insolvent estate. Said answer further adopted the allegations filed by W. V. Lauraine, and prayed that in the event his plea to the jurisdiction be overruled, then that the prayer of the said W. V. Lauraine for the discharge of the receiver and the termination of the receivership be granted.
“On the 11th day of July, 1917, the interven-ers, IT. Bfasterson and Eliza Kempner, filed their opposition to the motion, in which they alleged their ownership of practically all of the claims existing against the estate of Mrs. Margaret E. Allen and against the said A. C. Allen, and sought to prevent the discharge of the receiver upon the following grounds:
“(1) That the matters at issue had been adjudicated adversely to the contention of the petitioner, W. V. Lauraine, for this: (a) That on the 23d day of July, 1913, T. N. Jones, acting as guardian of Mrs. Margaret E. Allen, a person non compos- mentis, filed in said district court his application for the discharge of the receiver, which motion was by the court overruled on the 7th day of October, 1913. (b) That on November 13, 1913, S. E. Stratton, as trustee in bankruptcy for A. C. Allen, filed his independent suit in the trial court by which he sought to compel the delivery to him as such trustee by the receiver of all the property belonging to the estate of A. C. Allen, which cause was heard on the 14th day of November, 1914, and the relief prayed for by the trustee in bankruptcy refused, (c) That on the 7th day of June, 1915, W. V. Lauraine, acting as temporary administrator of the estate of Mrs. Margaret E. Allen, deceased, filed in said court his motion praying for substantially the same relief as is prayed for in this motion, which was duly overruled by the court on the 31st day of July, 1915; that no appeal was taken from the adverse decision on any of said occasions, but that the said W. Y. Lauraine applied to the Supreme •Court of Texas for a writ of mandamus to compel the judge of the district court to require his receiver to deliver over to the said W. Y. Lauraine, as such administrator, the property in the hands of the receiver belonging to the estate of Mrs. Margaret E. Allen, deceased, such relief by mandamus was refused by the Supreme Court.
“Interveners denied that the original order for receivership had been improvidently made, and that since the same had been made many judgments had been rendered on interventions therein, and that the court had continuously and repeatedly recognized and reaffirmed the validity of the appointment by various orders entered in such proceeding; that A. C. Allen had repeatedly acquiesced in and recognized the validity of such appointment, and had on several occasions sought the protection of the court with respect thereto, and that Mrs. Margaret E. Allen, acting through her duly appointed guardian, had likewise recognized and acquiesced in and sought the benefit of such receivership, and that by reason thereof both the administrator and the said A. C. Allen are estopped from now questioning the validity of the receivership; that if said receivership has been unduly prolonged that the same was chargeable to the defendant A. C. Allen, and to Mrs. Margaret E. Allen and her guardian and the administrator of her estate; that the claims of interveners are secured by mortgages upon the whole of the property belonging to the said A. 0. Allen and the estate of Mrs. Margaret E. Allen, and that the liens created by such mortgages can only be enforced through the decree of the district court and the sale of the interest of both estates in the property described in the mortgage; that interveners were the owners, not only of the claims set up in their petition of intervention, but also the judgments theretofore entered in this cause in favor of J. J. Sweeney, H. Mas-terson, Jno. 0. Williams, R. M. Yaughn, Kahn Bros., and H. M. Atkinson, each of which claims was secured by lien.”

The court, on July 13, 1917, after a full hearing upon the motion, refused to terminate the receivership. Prom the order refusing to grant the motion, appellant prosecutes this appeal.

The record discloses the following facts: It is alleged in the petition for the appointment of a receiver that the suit “is brought on behalf of plaintiff and any and all other creditors of said defendants who may wish to join herein and bear their proportionate part of - the expense.” The claim upon which plaintiff based its suit was a joint and several judgment against A. C. Allen, Mrs. Margaret E. Allen, and H. Masterson, who was surety for tlie Allens on the note on which the judgment was rendered. A judgment lien was claimed upon all of the real estate belonging to the Allens. There are no allegations that the Allens or Masterson were insolvent. A list of all the property, real and personal, belonging to the Allens is attached to the petition as an exhibit, which exhibit is referred to in the petition for a description of the property. A large number of conflicting claims and liens is shown, and it is alleged that the value of the property would be greatly depreciated to the injury of both debtors and creditors, unless a receiver is appointed. A. C. Allen, for himself and his mother, Margaret E. Allen, accepted service in the suit, and the evidence discloses that as a matter of fact the receivership proceedings were begun at their instance.

Many creditors have intervened in the receivership proceedings, and claims have been adjudicated therein amounting to approximately $500,000. Judgments have been rendered for many of these interveners, and these judgments have been taken up by the appellee interveners, Masterson and Kemp-ner. In none of these litigations has any exception been made to the sufficiency of the petition upon which the receivership was granted, and the judgments establishing the claims of the various interveners have with few exceptions not been appealed from. Appellees H. Masterson and Eliza Kempner intervened in the receivership suit in April, 1913. Their claim is based upon a contract entered into in September, 1909, less than a year after the commencement of the receivership, between H. Masterson and the Allens, having for its purpose the furnishing of money by Masterson and his associate, afterwards Mrs. Kempner, to take up the debts against the Allens, for their living expenses, the collection of their rents, the payment of their taxes, the closing of the receivership, and the allowing of time in which they might be able to sell property in order to satisfy the claims taken up and the advances made, all in consideration of an agreed compensation. Masterson and Mrs. Kempner were secured by mortgages on all the property. Under this contract claims amounting to many thousands of dollars were taken up by Masterson and associate, and money was advanced by him to the Allens for living expenses, rents collected, taxes paid, and time allowed in which to sell, etc. Ultimately, controversies arose between Masterson and Kempner and the Allens, which are reflected in the proceedings referred to. This explains why Masterson and Kempner are the holders of all the claims, they having been substituted to the rights of original holders. None of the property of the estate has been sold, except one piece of land. In 1913, Mrs. Margaret E. Allen was • adjudged insane, T. N. Jones being appointed her guardian, and A. O, Allen was adjudged a bankrupt. The trustee in bankruptcy and the guardian of Mrs. Allen each attempted to procure an order from the court below terminating the receivership and transferring Mrs. Allen’s portion to the guardian and that of A. C. Allen to the trustee. These orders were refused by the court, and no appeal was taken from the judgments.

After the death of Mrs. Allen and the appointment of appellant as administrator of her estate, he applied for an order terminating the receivership as to' the property belonging to Mrs. Allen and transferring the administration thereof to the probate court. This application was refused by the court below, and no appeal was taken by the administrator. Subsequently the administrator applied to the Supreme Court for a writ of mandamus to compel the court below to transfer the administration of the property to the probate court. This application was refused. The opinion of the Supreme Court upholding the jurisdiction of the court below to continue to administer the property through its receiver, notwithstanding the death of Mrs. Allen and the appointment of an administrator of her estate, is reported in (Sup.) 191 S. W. 563, the style of the case being Lauraine v. Ashe.

In the spring of 1909 J. J" Sweeney intervened on notes and mortgages of the Allens, claiming largely more than $209,000, and an agreed judgment in his favor was entered Eebruary 23, 1911, for about $163,000, and foreclosing lien. This judgment was agreed to by the Allens. In 1913, after Jones’ appointment as guardian, he attacked this judgment because of Mrs. Allen’s alleged insanity, but later declined further to prosecute it, and in December, 1914, another judgment was rendered in Sweeney’s favor re-establishing the former one as against Mrs. Allen. Vaughn, Atkinson, Williams, Kahn, and Masterson intervened in the receivership in 1913 upon notes and mortgages given in 1911, amounting to about $40,000, and no defense whatever being set up, judgments were rendered in their favor about the same time as the last Sweeney judgment. Lauraine was thereafter appointed administrator of Mrs. Allen’s estate, upon A. C. Allen’s waiver of liis prior right to administer, and just before writs of error would have been barred, Lauraine prosecuted them from the judgments in favor of Sweeney and each of the others named. The writ in the Sweeney Case was dismissed by this court for delay in briefing, and the other judgments were affirmed. The opinion of this court affirming the judgment in the case of Lauraine v. Masterson is reported 193 S. W. 708. The opinions in the Vaughn, Atkinson, Williams, and Kahn Cases were memorandum opinions based on the Masterson Case. A writ of error was denied by the Supreme Court in each of these cases.

Sweeney, in 1913, prior to the bankruptcy of Allen and the adjudication of Mrs. Allen’s insanity, undertook to have the property included in his foreclosure sold hy the sheriff under order of sale, claiming that the right to do so was secured by provisions in his original Judgment. The Allens applied to the district court in the receivership for an injunction to prevent such stale, on the ground that the property was in the hands of a receiver, and could not be sold by the sheriff. Sweeney thereupon applied to the court for an order for the receiver to sell the property, and was met by further objection from the Allens, and the order was refused. These efforts of Sweeney to sell were after the expiration of two years’ stay allowed in the original Judgment in his favor, in which the Allens might sell property to pay his debt. In the receivership, receiver’s certificates for nearly $8,000, have been issued and sold from time to time from December, 1916, mainly to raise money to pay taxes. These certificates are outstanding.

The first assignment charges that:

“The court erred in not sustaining the motion of W. V. Dauraine, administrator, to terminate the receivership herein and to discharge such receiver, there being no lawful grounds for the appointment of a receiver at the time a receiver was appointed and no subsequent conditions arising after the appointment of the receiver that would authorize the appointment of a receiver in said cause.”
Under this assignment it is contended:
First, that “the court was without legal authority to appoint a receiver on the petition filed by the First National Bank of Whitney, for the reason that said petition disclosed no controversy or cause of action between the plaintiff and the defendants, or either of them, and sought no relief other than the receivership, except an injunction in aid of such receivership” ; second, that said petition was fatally defective and insufficient to authorize the appointment of a receiver for the reason that it shows upon its face that the judgment upon which the suit was based was not only agairfst the defendants named in the petition, but also against H. Masterson, and the insolvency of Masterson is not alleged; third, that said petition was insufficient in that it failed to allege that execution had been issued upon the judgment and returned unsatisfied ; fourth, that “the receivership /was improvidently granted, for the reason that no property belonging to either of the defendants was described in the petition, and the judgment of the court appoints a receiver of all of the property belonging to said defendants, real, personal, and mixed, and directs him to taire possession thereof, without describing any property and without respect to whether any portion of the property is exempt from forced sale.”

Mere defects in toe petition upon which the receiver was appointed would not render the receivership proceedings void. The allegations of toe petition before set out presented a cause of action within the jurisdiction of toe court, and the judgment of toe court thereon, however erroneous it may have been, cannot now be set aside because of defects in toe pleading, especially when such attack upon toe judgment is made by parties who actively procured its rendition and subsequently acquiesced in and consented to many orders affecting the administra-tion of toe property by toe receiver. After all these years, and when the Allen estate no longer needs the protection of the receivership, and when rights of creditors who were induced to. intervene in toe receivership by toe Allens for toe adjudication of claims amounting to hundreds of thousands of dollars are dependent upon toe validity of those proceedings, neither A. C. Allen nor toe representative of toe estate of Mrs. Allen will be heard to question the validity of the proceedings upon the ground of defects in the petition which do not affect the jurisdiction of the court. Defects in toe petition of a character which might have been available to defeat toe receivership had an appeal been taken from the order appointing toe receiver would not authorize an order terminating toe receivership.

If an appellate court should revise a judgment of a trial court overruling a motion to vacate an order appointing a receiver made long after the receiver was appointed, and based upon objections which should have been made at toe time toe appointment was made, and which do not affect the jurisdiction of toe court or render the order granting toe receivership void, such ruling would, in effect, abrogate tbe statute which provides that an appeal from an interlocutory order appointing a receiver shall be taken within 20 days after toe order is entered of record.

It is clear that if a motion to vacate an order appointing a receiver upon toe ground that error was committed in the proceedings, when toe error complained of is not such as to render toe proceedings void, can be entertained at any time, the order appointing a receiver would never become final and toe statute which only gives 20 dsfys in which to appeal from such order would be rendered nugatory and idle. We cannot believe toe Legislature intended any such result in enacting toe statute giving toe right of appeal from an order overruling a motion to vacate an order appointing a receiver. Baker v. Baker, 83 Fed. 3-5, 27 O. O. A. 396.

We think the failure of the Allens to except to toe petition or to appeal from toe order appointing toe receiver now precludes A. O. Allen and the representatives of Mrs. Allen from complaining of toe refusal of the trial court to vacate the receivership on toe grounds that toe petition for toe appointment of toe receiver was defective and the order appointing a receiver was improvidently made.

The second assignment of error assails the judgment on toe ground that:

“The evidence shows no facts now exist which render the further continuation of the receivership necessary or proper for the protection, preservation, and disposition of the property belonging to either the estate of Mrs. Margaret E. Allen, deceased, or to the said A. C. Allen.”

In toe case of Lanraine v. Ashe (Sup.) 191 S. W. 563, our Supreme Court, in passing upon and refusing an application for mandamus .to compel tlie court below to' vacate this receivership as to the property of Mrs. Allen and to deliver the property to appellant as administrator of the estate of Mrs. Allen, uses the following language:

“It is furthermore essentially tone that when a court of equity in a cause of which ■ it has jurisdiction takes possession of property through a receiver, the property is withdrawn from 'the jurisdiction of all other courts; and so long as its jurisdiction of the cause subsists, the court has the power, whether rightfully or wrongfully exercised, to continue the receivership. The power of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it. Jurisdiction of the property lawfully acquired may be maintained and exerted as a means of aiding and completing the exercise of its jurisdiction over the cause and giving effect to its judgment upon the rights involved. While the jurisdiction of the cause continues, therefore, the power of the court in respect to the receivership alike continues. Whether the receivership should be continued is to be governed-by the necessities of the case as related to the rights of the parties.. But so long as the court maintains its jurisdiction of the cause, that is a question of judicial discretion. It is not one of judicial power. The exercise of judicial discretion is, of course, not subject to control by mandamus.”

In the case of Lauraine v. Masterson, 193 S. W. 708, this court held that the district court was authorized to continue the receivership for the purpose of directing a sale of the property by the receiver in satisfaction of the judgment rendered in Masterson’s favor. A writ of error was refused by the Supreme Court in the Masterson Case.

The evidence in this case shows that none of the judgments rendered in the receivership have been executed by tbe sale of the property upon which liens were established and foreclosed. It is also shown that judgment has not yet been rendered in tbe suit 4n intervention by appellees Masterson and Kempner, and that other matters and claims pending in the receivership are still undisposed of. We think a necessity for the continuation of the receivership is conclusively shown by the evidence, and it is not material that the receivership is no longer necessary “for the protection, preservation, and disposition of the property” of Mrs. 'Allen’s estate or of A. C. Allen. The rights of appellees and others interested in the receivership are equally entitled to protection and preservation, and in order to fully protect the rights of appellees and other in-terveners in the receivership who have claims against the Allens secured by liens upon the lands jointly owned by A. C. Allen and tbe estate of Mrs. Allen it is necessary, as held b.y this court in the Masterson Case, that the receivership be continued until such claims and liens shall have been determined and tbe property upon which liens shall be adjudged sold by order of the district court in satisfaction of said liens.

It is contended by appellant under tbe. second assignment that the fact that this receivership has been pending nine years made it the duty Of the trial court to terminate it. If article 2153, Vernon’s Sayles’ Civil Statutes, which provides that receiver-ships of corporations must be terminated in three years, unless the winding up of the affairs of the corporation is prevented by litigation, could be held to apply to a receivership of property of individuals, it would not authorize the termination of this receivership, because, as shown by tbe facts above set out, litigation between tbe owners of tbe property and the interveners is pending and the enforcement of judgments heretofore rendered in the receivership has been delayed by litigation prosecuted hy appellants.

We think the motion to terminate the receivership was properly overruled, and the judgment of the trial court must be affirmed.

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


author: GRAVES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. PATTERSON.
    (No. 7458.)
    (Court of Civil Appeals of Texas. Galveston.
    May 7, 1918.
    On Motion for Rehearing, June 13, 1918.)
    1. Appeal and Error <§=>732 — Assignments op Error — Sufficiency.
    Assignment of error that the court erred in overruling motion for new trial, because the verdict of the jury is against the great preponderance of the evidence, and is not supported by the great weight of the evidence, siieeifying that the evidence shows that plaintiff’s damage would have resulted independent of the negligence of defendant, was insufficient, as too general, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2020.
    2. Appeal and Error <§=3742(6) — Assignments of Error— Sufficiency.
    Assignment of error, assailing a verdict as excessive in the aggregate, with subjoined propositions that there was no right to recover at ail, and that other causes were responsible for the damage, could not be considered as to the subjoined propositions.
    3. Appeal and Error <§=>1602 — Scope of Review — Findings of Fact.
    Where the evidence would have justified either of two contrary conclusions), the appellate court cannot set aside the jury’s adoption of either.
    4. Waters and Water Courses <§=3126 (2)— Impounding Waters — Damage to Crops — Evidence.
    Evidence held to support verdict for landowner for damages to- crops by construction of railway embankment impounding waters and causing overflow.
    On Motion for Rehearing.
    5. Appeal and Error <§=3732 — Scope — Assignments of Error— Sufficiency.
    Assignment of error that “court erred in overruling defendant’s motion for new trial, because of error in giving paragraph 8 of the charge, as fully shown by defendant’s written exceptions and objections filed thereto,” was sufficient to permit its consideration on appeal.
    Appeal from District Court, Waller County; J. D. Harvey, Judge.
    Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. C. Huff, of Dallas, and Lane, Wolters & Storey and T. B. Blanchard, all of Houston, for appellant. Meek & Kahn, of Houston, and R. B. Hannay, of Hempstead, for appel-lee.
   GRAVES, J.

Appellee, Patterson, owned a plantation at the mouth of Iron’s creek on the east bank of the Brazos river, slightly more than a mile north of where the railroad crosses the river a few miles from Brookshire, Tex. Laying the total amount claimed at $35,000, he sued appellant for damage to his land and for destruction of his own and certain other crops, alleged to have resulted in the spring of 1915 from the railway company’s having so negligently constructed and maintained its railroad dump and bridge across the Brazos river and valley as to obstruct the natural course of the waters from the river and cause and force them to flow upon, over, across, and back upon his own and the other lands upon which the crops involved were growing, and thus to infliot the losses complained of. It was charged that at least 50 acres of the lands belonging to him were so washed and torn that their value was reduced from $75 to $20 per acre, and that all crops upon his remaining lands were destroyed. The balance of the aggregate damages sought was upon claims of other owners for a like destruction of their crops upon adjoining or adjacent lands, which had been assigned to appellee. After general demurrer and denial, the railway company, among other things, specially pleaded that it was guilty of no negligence in the construction and mainte-' nance of its dump, bridge, or other facilities complained of, that they were necessary, and had been built in a most scientific manner by experienced and thoroughly qualified engineers, with sufficient openings left in the embankments to permit drainage through the river of all waters, from usual, ordinary, and known rainfall incident to that country, but that, prior to the overflow complained of, excessive rains fell all over the country drained by the Brazos river in such quantities that the bed of the river was insufficient to carry the water off, and it spread out on all lands, and destroyed crops on both, sides of the river for hundreds of miles above and below appellee’s lands; that this unusual rainfall, and not any alleged negligence of appellant, was the proximate cause of whatever loss appellee suffered; and.that as the direct consequence thereof he would ' have suffered the same loss, even if the railroad bridge and embankment had not been there. A trial before a jury resulted in a verdict and judgment in favor of appellee in the sum of $27,582.50, $2,000 of which was for damage to his land, the balance for destruction of crops. From that judgment this appeal is prosecuted.

At the outset, by motion duly presented and taken with the case, objection is made to this court’s consideration of appellant’s assignments of error, on the ground that they do not comply with the statutes and rules, in that they are too general and point out no specific error. Upon considering it, our conclusion is that the motion is well taken, and must be sustained, except as to assignments 4, 5, and 7.

The first three assignments relate to the same matter, and all have this first provision in common:

“The court erred in overruling defendant’s motion, for a new trial, because the verdict of the jury is against the great preponderance of the evidence, and is not supported by the great weight of the evidence, in this.”
In consecutive order they each then continue, respectively, as follows: First assignment:
“The great preponderance of the testimony, if not all of the testimony, conclusively shows that plaintiff’s crops would have been destroyed by the flood waters of the Brazos river even if there had been no railroad embankment and bridge constructed across the Brazos river and the Brazos bottom at the point in question.”
Second assignment:
“That the great weight of the testimony developed conclusively that the erection of said •bridge and construction of said culverts and embankment were not the proximate cause of the damage to plaintiff’s land.”
Third assignment:
“That the groat preponderance of the testimony developed that plaintiff’s crops were destroyed and his land damaged by water coming directly from the Brazos river-, and not by any backwater impounded by said embankment or railroad bridge.”

Manifestly, we think, no one of these specifications calls the lower court’s attention to any evidence indicating wherein the verdict was not supported by the evidence, or why appellee was not entitled to recover, nor distinctly specifies any particular matter or thing showing how appellee’s crops would have been destroyed by flood waters, if there had been no railroad bridge or embankment, but each and all state a mere general conclusion, amounting in final substance to an assertion that the verdict of the jury is contrary to the great preponderance of the evidence. It has been uniformly held thaf such an assignment is insufficient and cannot be considered. Article 2020, Vernon’s Sayles’ Texas Civil Statutes; Speight v. Speight, 176 S. W. 641; Alexander et al. v. Louisiana Lbr. Co., 154 S. W. 236, and authorities cited therein; Degener v. O’Leary, 85 Tex. 171, 19 S. W. 1004; San Antonio Traction Co. v. Emerson, 152 S. W. 470, and authorities therein cited; Harlingen L. & M. Co. v. Houston Motor Co., 160 S. W. 629; W. U. Tel. Co. v. Hartfield, 138 S. W. 418.

What has been said concerning the first three assignments applies with equal force to ■the sixth and eighth, which ai>e as follows: Sixth:

“The court erred in. overruling defendant’s motion for a new trial, because the court erred in giving to the jury paragraph 8 of its charge, as is fully shown by the defendant’s written exceptions and objections filed thereto.”
Eighth:
“The court erred in overruling the defendant’s motion for a new trial, because the verdict of the jury conclusively developed that the jury, in arriving at their verdict, did not base said verdict upon the preponderance of the testimony or the weight of the evidence, but arrived at same wholly upon their sympathy for the plaintiff and their passion and prejudice against the defendant.”

To say that the court erred in giving paragraph 8 of its charge to the jury is no such specification of error as clearly identifies and makes intelligible the point of the objection, nor does it point out any particular in which it constituted error to give that part of the charge, but is a mere general conclusion of the pleader. Likewise, to charge that the verdict conclusively develops that the jury did not base it upon the preponderance or weight of the testimony, birt upon sympathy, passion, and prejudice, is far from pointing out in what respect the evidence is insufficient to support the verdict, and only amounts to a general assertion that it is against ^he preponderance of the evidence.

In this state of the reco.rd, under the authorities cited, it becomes our duty to decline consideration of assignments 1 to 3, inclusive, and 6 and 8.

Ae seventh assignment assails the verdict as being excessive in amount and as showing that the jury, in rendering a verdict for $27,742, did not consider the case upon its merits, but must have been and yvere governed purely by passion and prejudice, and not by the evidence. There are three propositions subjoined, but neither the first nor the third is germane to the assignment, and for that reason do not merit consideration. The complaint ffiade in the assignment is against excessiveness in the aggregate amount of the verdict resulting from the influence of passion and prejudice, while the two propositions mentioned assert: First, a lack of right to recover at all for the crops of others who assigned their claims for damages «thereto to appellee, upon the alleged ground that no proof of the value and cost of cultivating and marketing such crops was made; and, second, a failure to take into consideration the effect of a storm occurring after the overflow, which it was claimed, independent of the overflow, caused a much less yield of crops in the Brazos bottom that year than the average yearly yield. Clearly neither of these matters could be said to specifically point out wherein the verdict was the product of passion and prejudice.

The second proposition under this assignment presents that the award as a whole is so far in excess of what the undisputed evidence shows appellee entitled to as.to indU cate that the jury, in arriving at it, were improperly influenced by sympathy, passion, or prejudice; but, after an examination of the statement of facts, we are unable to say that any such result appears.

The evidence is very voluminous, comprising over 300 pages, and no useful purpose would be served, we think, by attempting to summarize it here. There was evidence lowing the entire acreage of the lands involved, both of appellee’s own and of those persons who assigned their claims for destroyed crops to him; the fact of such assignments, the number of acres of ail the lands in crops at the time; their condition just before and likewise just after the overflow, and showing the- complete destruction- of all the crops thereon; the depreciation in value of the'50-acres .of washed or torn land; and, finally, sufficient data from which the 'jury could estimate the reasonable market value of all the crops as they stood in the field at the time of their destruction, after taking into consideration what it would have reasonably cost to have matured, harvested, and marketed them. In this state of the record it certainly cannot be said that the undisputed proof showed the verdict to be the result of sympathy, passion, or prejudice, and the assignment cannot be sustained.

Assignments 4 and 5 alone remain. Neither of these raises any issue as to its preponderance, but only that there is no evidence justifying a recovery to appellee, either for damage to his 50 acres of land, or for injury to the crops growing on the land owned by him. The form of both these assignments is also objected to, hut we conclude that they raise the issue stated.

To the findings already made may be added that the evidence disclosed two antagonistic theories asi to how the damages complained of were brought about. That offered by appellee tended to support his aver-ments that the railroad embankment and bridge so obstructed diverted the natural flow of,' and impounded the waters of, the river as to cause them both to- flow across and back up on the lands affected; while that for appellant tended to substantiate its main defense that the flood was so great and the volume of water coming down the river so overwhelming as to have necessarily caused any injuries shown to have resulted, even if its bridge and embankment had not .been there. The body of the testimony as a whole, in our opinion, was susceptible of the application of either theory; and, under that conclusion, this court is not at liberty to set aside the jury’s adoption of the one advanced by appellee. Appellee himself testified:

“The Missouri, Kansas & Texas Railroad was not there in 1885. The lands north of the present Missouri, Kansas & Texas Railroad tracks, including Enos’ land and my land, were not overflowed in 1885. The overflows, as I remember them, that I have seen in the bottom, I think were in 1884, 1885, 1890, or 1891, and 1899, December, 1913, and April, 1915. In none of these overflows that I ever saw in the Brazos valley prior to the building of the present railroad dump by the Missouri, Kansas & Texas Kailroad did I ever see water come over the valley and go back into the Brazos river, into its banks, along that country north of the railroad bridge. I lived there for 30 years until I moved to Brookshire.”

The undisputed proof showed that the width of the valley at the point in question upon the east side of the river was about 3⅛ miles, the railroad embankment extending, all the way across, and at the time of this overflow there were, at intervals throughout that entire distance, only four culverts in the otherwise solid dump, with aggregate openings of but 638 feet for the passage of water through it; that these openings were insufficient to permit the escape of the water of the 1915 overflow, and consequently the railroad embankment caused the impounding of between 2 and 3 feet more of such water upon the north than accumulated upon the south side of the railroad, which condition lasted for some days; that on the west side of the river there was along the railway line first an open trestle for about 75 yards back from the bridge; then the solid embankment or dump for something over a mile, crossing the lowlands bordering the river for 300 or 400 yards to higher land called the second river bank; thence through that to and across a low depression or drain, 500 or 600 feet wide, known as Old river, near the center of which a small culvert or opening of 28 feet was left, that being the only opening in the railroad dump on the west side of the river. Coinciding only ■ in the general features just recited, the lines of proof presented by the contending litigants then quickly and widely diverge. The witnesses for ap-pellee, including the civil engineer, Mr. Ludwig, testified that this drain, known as Old river, supposed to be the abandoned former channel of the Brazos river, came out 'of the river quite a distance above, and ran back into it some distance below the railroad, and when, unobstructed, served as a natural outlet for the excess waters coming down the Brazos during flood time, but that after the railroad dump was put in there, in high-water time it dammed up the water, which could not pass through the 28-foot culvert, and so diverted and forced it across the river toward the east and upon and across the lands here involved. In fact the witness W. J. Dozier testified to having seen that very thing actually happen during the overflow that caused the damage here recovered for.

It is deemed unnecessary to pursue the inquiry further, or to elaborate the details of the evidence. That enough has been mentioned to show there was sufficient basis in the testimony for the verdict rendered is not, we think, subject to doubt. Such being the case, since the assignments now under review merely assert the contrary, they cannot prevail.

No reversible error being pointed out, it has been ordered that the judgment be affirmed.

Affirmed.

On Motion for Rehearing.

This motion for rehearing has convinced us that appellant’s sixth assignment of error, challenging the correctness of paragraph 8 of the trial court’s charge, should have been considered; that has accordingly been carefully done upon rehearing, but the conclusion is reached that it points out no error. The objection made to that paragraph of the charge was that it assumed as an established fact that the roadbed and bridge of the railway company had been negligently and unskillfully constructed. A close examination of the charge, however, convinces us that it was not reasonably subject to such criticism, and the assignment is overruled.

Unconvinced of error in other respects in our original disposition of the case, the motion for rehearing has been overruled.

Overruled.
      <§^3For otlier eases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes